LJWorld.com weblogs Explain it!
Who's a "natural born" citizen?
Article II, Section 1 of our Constitution lays out the qualifications for anyone who wants to be President of the United States:
- Must be at least thirty-five years old.
- Must have been a resident of the United States for at least fourteen years.
- Must be (with one exception) a "natural born Citizen" of the United States.
Lately that last one has been in the news a bit, as various people have claimed that our current President fails that qualification and so isn't eligible to be President. So what, exactly, makes someone a "natural born" citizen?
There's no precise legal definition of the term, but generally it's accepted to mean someone who acquired United States citizenship automatically at birth. Every country has its own particular set of rules for who gets this automatic citizenship, but in general there are two main approaches and each country chooses one or the other, or both. In legal terms they're referred to by Latin names: jus soli (which means "right of soil") and jus sanguinis (which means "right of blood").
Under jus soli citizenship is based on where you're born, and typically this means you're a citizen of the country you were born in. Under jus sanguinis citizenship is based on ancestry, so if you're descended from citizens of a particular country, you'll inherit their citizenship. How far back this stretches varies from country to country; some will grant citizenship only to children of citizens, others will allow claims to citizenship stretching back through grandparents or further.
So which approach do we use in the United States? Well, it turns out we have both. The Fourteenth Amendment to our Constitution states that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
This gives us automatic citizenship at birth via jus soli: if you're born in the US, you're a US citizen (with one exception). Meanwhile, Title 8 of the United States Code provides, among other things, the implementation of the Fourteenth Amendment's citizenship clause, and also adds jus sanguinis by including a variety of situations where children born outside the United States receive automatic citizenship at birth.
This second part can get a bit complicated, because automatic citizenship for children born abroad varies depending on the parents. Covering all of the details in Title 8 would take quite a while, but a few general rules from the law will give an idea of how it works, and how to approach the conjectures being made in the news (most of the following are effective as of 1952, and so would apply to President Obama -- who was born in 1961 -- if necessary):
- If the parents are married, and both are US citizens, then the child is automatically a US citizen from birth.
- If the parents are married, and one parent is a US citizen, then the child is automatically a US citizen from birth.
- If the parents are not married, and the mother is a US citizen, then the child is automatically a US citizen from birth.
- If the parents are not married, and the father is a US citizen but the mother is not, the child is not automatically a US citizen (and cannot be a "natural born" citizen). However, children born in this way may have access to an expedited naturalization process for obtaining citizenship later in life.
That last point has been challenged as discriminatory (since it grants different rights based on a gender difference), but in Tuan Anh Nguyen v. INS the Supreme Court upheld it and said the distinction was reasonable: the identity of the mother is obvious to anyone who witnesses the birth, but the identity of the father is not.
It's clear, then, that President Obama is a "natural born" citizen of the United States. Available records indicate that he was born in 1961 in Hawaii, which was and is a state of the US. Thus, under jus soli and the Fourteenth Amendment, he would have "natural born" citizenship. But even if he was born elsewhere his mother, Anne Dunham, was a United States citizen. So under jus sanguinis as implemented in Title 8, he would still have "natural born" citizenship.
Can you lose citizenship by moving?
There's one other argument that's relevant here: in some cases, a US citizen who moves to another country and stays there can lose US citizenship by doing so. President Obama spent several years living in Indonesia as a child, and so some have argued that his birth citizenship should have been lost at that time. The most relevant bit of law here comes from another Supreme Court case, Perkins v. Elg.
Marie Elg was a citizen of the United States by birth, but her parents were naturalized immigrants from Sweden who returned to that country, and took her with them, when she was very young. At the time, the United States and Sweden had a treaty in place which stated that a US citizen who legally moved to Sweden and lived there for at least five years would cease to be a US citizen and become a Swedish citizen. When Marie Elg, as an adult, attempted to return to the US, immigration officials declared that under the treaty she had become a Swedish citizen and so was an illegal alien here and could be deported.
The Court disagreed with this reasoning, and ruled that since Marie Elg had no choice but to move back to Sweden when her parents did (she was only four years old at the time), her living abroad could not be counted against her. Since she had immediately returned to the United States on reaching adulthood, the Court said she was entitled to claim US citizenship from birth.
So although President Obama did spend several years living abroad as a child, under the precedent of Perkins v. Elg he cannot have lost his US citizenship by doing so.
When I laid out the Constitutional requirements above, I mentioned that there is an exception to the "natural born" qualification. The exact text of the Constitution says:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
When the Constitution was adopted, the United States as a country hadn't existed long enough for any "natural born" citizen to reach the age of thirty-five. So the qualifications also allowed for someone who was a citizen at the time the Constitution was adopted, and it wasn't until 1837 that we had a President who fulfilled the "natural born" requirement (Martin Van Buren, who was born six years after the Declaration of Independence).
There's one other important exception to automatic citizenship, which I also alluded to above: the Fourteenth Amendment grants citizenship to people who are born in the United States "and subject to the jurisdiction thereof". This means that children born in the US to foreign diplomats are not US citizens by birth, since diplomatic personnel are subject to the jurisdiction of their home countries. Originally, this was also construed to mean that children of Native American nations were not US citizens by birth, and this was the standard interpretation until 1924, when Congress passed legislation which granted them automatic citizenship.
And a few final bits of trivia: President Obama wasn't the only candidate in the 2008 election to be subjected to citizenship questions. An independent-party supporter filed a federal lawsuit against John McCain alleging that -- since he was born in Panama (where his father was stationed as a naval officer) -- he was not a "natural born" citizen and so was ineligible for the Presidency. At the time of Senator McCain's birth, the blanket overseas-birth citizenship provisions of Title 8 weren't in effect and a series of separate laws covered children of US citizens in the Panama Canal Zone, so the legal situation there is somewhat complex. However, a bipartisan legal review and a (non-binding) Senate resolution affirmed McCain's citizenship and eligibility, and the lawsuit was eventually dismissed by a federal judge. A similar suit which challenged the eligibility of three candidates (Obama, McCain and Socialist Workers Party candidate Roger Calero) was filed, but the US Supreme Court declined to hear it.