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Legal Learning: Who Can be president Part 2

In my last column I quoted Section 1 of Article Two of the United States Constitution, which sets forth the eligibility requirements for serving as president of the United States:

"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."

So you must be a "natural born citizen" to be president. Frankly, I never understood the claims by right wing "birthers" that Barack Obama was born in Kenya and therefore wasn't a "natural born citizen." Even if that were true, which it is not (he was born in Hawaii), so what? His mother (Ann Dunham) was an American citizen, so that makes him a citizen no matter where he was born, right?

But it's not so simple. The Constitution does not define the term "natural born citizen," and the Supreme Court has never directly addressed the question. The 14th Amendment to the Constitution (adopted after the Civil War) states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .", but that doesn't say who a "natural born citizen" is. Clearly a foreigner who becomes a citizen (who is "naturalized") is not, which is why Arnold Schwarzenegger can never be president.

Question #1 — What about a child born in the U.S. to non-citizen parents (perhaps illegal immigrants)? Question #2 — What about a child born in another country to U.S. citizens? Question #3 — What if only one parent is a citizen?

For an answer we have to go back to the common law of England, which was the governing law in America when our Constitution was adopted in 1787. William Blackstone was the leading authority on the common law at that time. In his "Commentaries on the Laws of England" he wrote "The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such." Edward Coke, another leading authority, wrote that "a child born on the soil of England to a foreign national visiting the country who is not an invader or foreign diplomat is a natural born subject of England." So that answers Question #1 — as long as you are born in the U.S., not to a foreign diplomat or an invader, you are a "natural born citizen" and can be president.

As for Question #2, our first Congress passed The Naturalization Act of 1790, which stated that "the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens . . . ." That law was repealed in 1795, but nonetheless gives some indication of what must have been in the minds of our founding fathers. The Congressional Research Service has published several reports that conclude that persons born abroad to parents who are United States citizens are "natural born citizens". G. Edward White, a professor of law at the University of Virginia, states the term refers to anyone born on U.S. soil or anyone born on foreign soil to American citizen parents.

John McCain was born on a military base in the Panama Canal Zone on Aug.28, 1936, to U.S. citizen parents. Many people argued that he was not eligible to be president, but this never had to be decided since he lost the 2008 election. George Romney (Mitt Romney's father), who ran for president in 1968, was born in Mexico to U.S. parents. Lowell Weicker, who ran for the nomination in 1980, was born in Paris to parents who were U.S. citizens (his mother was born in India). Most people accepted these candidates as "natural born citizens".

On the third question, it seems to be generally accepted that even if just one of your parents is a U.S. citizen, you are a natural born citizen. Ronald Rotunda, professor of law at Chapman University, has remarked "There's some people who say that both parents need to be citizens. That's never been the law." A trial court in New York, in Strunk v. N.Y. State Board of Elections in 2012, rejected the argument that the Constitution requires the president "to have been born on United States soil and have two United States born parents". The judge ruled that "no legal authority has ever stated that the Natural Born Citizen clause means what plaintiff Strunk claims it says."

That's good news for Ted Cruz, who was born in Canada to a U.S. citizen mother and a Cuban immigrant father. He formally renounced his Canadian citizenship last year. It looks like all of this year's candidates, as well as Barack Obama, meet the constitutional requirements to be president.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer.

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