by John Yinger⁽¹⁾
Revised Version, April 6, 2000

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Introduction

In Article II, Section 1, the U.S. 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 (emphasis added).

This commentary focuses on the first eligibility requirement in this clause, namely the requirement that the President be a "natural born citizen." What are the origins of this requirement? What does it mean?

The full answers to these questions are lost in the back room discussions between the Founding Fathers during 1787, but some evidence has survived over the centuries. I first take a look at the evidence from the Constitutional Convention, then I turn to other evidence. In the conclusion I consider the implications of this history for the presidential eligibility of foreign-born adoptees.

Evidence from the Constitutional Convention

The presidential eligibility clause appeared in constitutional drafts near the end of the Constitutional Convention in 1787. The surviving notes on the deliberations at the Convention, and other related material, provide some evidence concerning the origins of this clause.

The John Jay Letter

The most direct evidence about the origins of the "natural born citizen" clause comes from a letter that John Jay wrote to George Washington, who was at the time serving as President of the Constitutional Convention.⁽²⁾ John Jay was not a delegate to the Convention; his views conflicted with those of the majority in his state, New York, and he was not elected by the state legislature.⁽³⁾ However, he was a well-known figure who had been President of the Continental Congress. Moreover, he would become an author, along with Alexander Hamilton and James Madison, of some of the famous Federalist Papers, written to encouraged New Yorkers to ratify the proposed constitution, and, after the Constitution had been ratified, he would be appointed as the first Chief Justice of the U.S. Supreme Court.⁽⁴⁾ It seems reasonable to suppose, therefore, that his letter carried some weight.

In this letter, dated July 25, 1787, Jay wrote:

Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen (emphasis in the original).⁽⁵⁾

The meaning of this letter is not entirely clear. In today's usage, the word "administration" might be thought to limit the focus of the first part of the letter to the executive branch. According to one historian, however, this part was primarily directed at members of the legislative branch.⁽⁶⁾ Moreover, the second part of the letter, where the expression "natural born" appears, also may not have been directed at the President; at that point Jay had no way of knowing that the Convention would ultimately make the President the commander-in-chief. Nevertheless, this letter is the only document connected to the Constitutional Convention that explicitly argues for a "natural born" citizen in a high executive position.

According to one scholar, Charles Gordon, "Possibly this letter was motivated by distrust of Baron von Stuben, who had served valiantly in the Revolutionary forces, but whose subsequent loyalty was suspected by Jay. Another theory is that the Jay letter, and the resulting constitutional provision, responded to rumors that the convention was concocting a monarchy to be ruled by a foreign monarch."⁽⁷⁾ However, Gordon does not give much weight to Jay's letter, and he concludes that "no explanation of the origin or purpose of the presidential qualification clause appears anywhere in the recorded deliberation of the Convention."⁽⁸⁾
 

Madison's Convention Notes

My own reading of James Madison's notes, which are the principal record of the debates in the Constitutional Convention, leads me to a different conclusion about the origins of this clause. On July 25, 1787, when John Jay's letter was dated, the Convention was debating the nature of the Executive branch. In particular, the delegates were considering a clause that called for the Executive to be elected by the Legislature. If this provision were adopted, Madison said,

the ministers of foreign powers would have and make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governm^t a man attached to their respective politics and interests. No pains, nor perhaps experience, will be spared to gain from the Legislature an appointm^t favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho' the elected Magistrate has very little real power, his election has at all times produced the most eager interference of foreign princes, and has at length slid entirely into foreign hands.⁽⁹⁾

Several other delegates reinforced Madison's point. Pierce Butler said "The two great evils to be avoided are cabal at home, & influence from abroad. It would be difficult to avoid either if the Election be made by the Nat^l Legislature."⁽¹⁰⁾ According to Madison, Hugh Williamson "was sensible that strong objections lay ag^st an election of the Executive by the Legislature, and that it opened a door for foreign influence."⁽¹¹⁾

There is a striking similarity between the words in Jay's letter and in these statements at the Convention. Jay is concerned about "the admission of Foreigners into the administration of our national Government." Madison worries that foreign powers will attempt "to have at the head of our Governm^t a man attached to their respective politics and interests." Apparently, however, this timing was nothing more than coincidence. In fact, Jay was in New York when he wrote the letter, engaged in other duties, and "he was still in the dark about the direction toward which that body was moving."⁽¹²⁾ Moreover, the letter was undoubtedly not delivered to Washington until days, if not weeks, after July 25.

In addition, Madison, backed up by Butler and Williamson, appears to be addressing a different issue than is Jay. After all, Madison's comments focus on the method for electing the President, whereas Jay is concerned about the President's, or at least the commander-in-chief's, qualifications.

In fact, however, these two issues are inextricably linked in the Convention debate. The Founding Fathers were very concerned about foreign influence and went to great lengths to design a government that would be insulated from it. At first, they focused on finding a mechanism for electing the President that would minimize foreign influence. Indeed, even though the issue of Presidential qualifications was raised, as we will see, on July 26, the Convention did not turn to that issue in earnest until almost a month later, and it did not restrict eligibility to "natural born citizens" until it had dropped the idea that the Legislature should elect the President. In other words, the Convention regarded Presidential qualifications as a secondary tool for limiting foreign influence, and the delegates put off the debate on this secondary tool until it had succeeded in designing a method for electing the President that could not be manipulated by foreign powers.

The next day, July 26, 1787, the Constitutional Convention returned to the issue of foreign influence on the Executive. Specifically, on that day George Mason moved "That the Committee of Detail be instructed to receive a clause requiring certain qualifications of landed property and citizenship of the United States in members of the legislature...."⁽¹³⁾ Because, at that point in the Convention, the Legislature was still expected to elect the President, this motion can be seen as a way to limit foreign influence on the Executive.

At this point, Charles Pinckney and Charles Cotesworth Pinckney "moved to insert by way of amendm^t the words Judiciary & Executive so as to extend the qualifications to those departments which was agreed to nem. con."⁽¹⁴⁾ This is the first mention of presidential qualifications at the Convention. It appears almost as an aside. Along with an amendment to strike out the word "landed," it was incorporated into Mason's motion and passed by the Convention.

However, several comments during the debate reveal that the issue of legislative and presidential qualifications was far from settled. Right after the original Mason motion, Gouverneur Morris stated that "If qualifications are proper, he w^d prefer them to be in the electors rather than the elected."⁽¹⁵⁾ This comment is directed toward qualifications for members of the Legislature, but it also suggests that Morris and other delegates might have been more concerned about the qualifications of the people electing the President than about the qualifications of the President. Moreover, right after the Pickney and Pickney amendment was accepted, John Dickinson stated that he "was ag^st any recital of qualifications in the Constitution."⁽¹⁶⁾ In any case, the Convention then referred its recent proceeding to the Committee on Detail, which consisted of Delegates Rutledge, Randolph, Gorham, Ellsworth, and Wilson. This committee was specifically instructed "to receive a clause or clauses requiring certain qualifications of property and citizenship in the United States, for the executive, the judiciary, and the members of both branches of the legislature of the United States."⁽¹⁷⁾

The Committee on Detail's first report was presented to the Convention on August 6. It included qualifications for members of the Legislature (three years of U.S. citizenship for the House of Representatives and four years of citizenship for the Senate) but did not mention qualifications for the Executive, who was, in that report, still elected by the Legislature.⁽¹⁸⁾ This report also proposed that: "The Legislature of the United States shall have the authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall deem expedient."⁽¹⁹⁾ There followed a long debate on the propriety of a legislature determining the qualifications of its members, the appropriateness of an requirement based on land or wealth, and the number of years of citizenship required for each house. Before the debate was over, the Convention decided not to let the Legislature determine the qualifications of its members, rejected land or wealth qualifications, and raised the citizenship requirement to seven years for House members and to nine years for Senators.⁽²⁰⁾

The Convention returned to these issues on August 13. The session began with a motion, by James Wilson and Edmund J. Randolph, to cut the citizenship requirement for House members back to four years. Then Elbridge Gerry stated his concerns about the role of foreigners. One historian thinks that Gerry's concerns were stimulated by John Jay's letter, which by that time had surely arrived in Philadelphia.⁽²¹⁾ In any case,

Mr. Gerry wished that in future the eligibility might be confined to Natives. Foreign powers would intermeddle in our affairs, and spare no expense to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services. He was not singular in these ideas. A great many of the most influential men in Mass^ts reasoned in the same manner.⁽²²⁾

The following debate was quite lively, with delegates weighing in on both sides of this proposal. Alexander Hamilton "was in general ag^st embarassing the Gov^t with minute restrictions." He recognized that there was a "possible danger" from foreign influence, but also said:

the advantage of encouraging foreigners was obvious & admitted. Persons in Europe of moderate fortunes will be fond of coming here when they will be on a level with the first citizens. He moved that the section be altered so as to require merely citizenship & inhabitancy. The right of determining the rule of naturalization will then leave a discretion to the Legislature on this subject which will answer every purpose.⁽²³⁾

This statement is important for two reasons. First, it recognizes that disqualifying people who are not "Natives" from public office will make them second-class citizens and discourage them from even coming to the United States. Second, it links naturalization and the rules of eligibility for public office. As discussed below, the Constitution leaves this link unclear, but Hamilton explicitly states that the naturalization process should be used to determine the rules of citizenship.

James Madison seconded Hamilton's motion. He also recognized the importance of avoiding second-class citizenship for immigrants. Specifically. "He wished to invite foreigners of merit & republican principles among us."⁽²⁴⁾ Wilson, who was himself foreign-born, then "cited Pennsylvania as proof of the advantages of emigration, and withdrew his motion in favor of Hamilton's." In contrast, Butler "was strenous ag^st admitting foreigners into our public councils," and Hamilton's motion was eventually rejected.⁽²⁵⁾

The debate then turned to the treatment of current citizens, who, like Wilson and several other delegates, were foreign-born. Gouverneur Morris moved that current residents be exempted from the seven-year rule for eligibility to the House.⁽²⁶⁾ Again, a lively debate ensued. John Rutledge declared that "The policy of the precaution was as great with regard to foreigners now citizens; as to those who are to be naturalized in the future."⁽²⁷⁾ In contrast, Nathaniel Gorham re-stated the principle of equal citizenship for all when he said that "when foreigners are naturalized it w^d seem as if they stand on equal footing with natives."⁽²⁸⁾ Ultimately, Morris's exemption was rejected, although it later reappeared in the presidential eligibility clause.

The issue of qualifications for the President next appeared on August 20, when Elbridge Gerry moved "that the committee be instructed to report proper qualifications for the President."⁽²⁹⁾ He was talking about the Committee on Detail. On August 22, Rutledge presented the Committee's report, which called for the insertion of a presidential qualifications clause. This clause did not include the "natural born citizen" expression. Instead it said that the President "shall be of the age of thirty five years, and a citizen of the United States, and shall have been an inhabitant thereof for twenty one years."⁽³⁰⁾

Madison did not record any debate on this clause. Instead, on August 31, the Convention referred various issues, including presidential qualifications and the method of electing the President, to a Committee of Eleven, which had one member from each state.⁽³¹⁾ This committee presented its report on September 4, 1787.⁽³²⁾ The words "natural born citizen" first appeared in this report. Indeed, these words appeared in a form that is identical to the final version in the Constitution: "No person except a natural born citizen ... shall be eligible to the office of President." The record of the Constitutional Convention provides no explanation for the introduction of the words "natural born." On September 7, "The section requiring that the President should be a natural-born citizen &c, & have been resident for fourteen years, & be thirty five years of age, was agreed to nem. con."⁽³³⁾

The report presented on September 4 also included the provisions calling for the creation of the Electoral College -- the first formal proposal eliminating the election of the President by the Legislature. Although, as discussed below, this step was seen as a way to help insulate the presidency from foreign influence, it also broke the clear link between the citizenship requirements for legislators and the selection of the President and hence opened the door for stronger presidential qualifications.⁽³⁴⁾ The report itself consisted of a series of "additions & alterations," and it may not be just coincidence that the entry calling for the Electoral College, number four, was followed immediately by the entry on presidential qualifications, number five.⁽³⁵⁾

At this point another Committee of Five, also known as the Committee on Style and Arrangement or the Committee on Revision, was appointed to produce the final version of the Constitution. This committee retained the presidential eligibility clause with no change in the "natural born citizen" expression. This version of the clause also was adopted without debate.⁽³⁶⁾

Summary

In summary, the delegates at the Constitutional Convention were deeply concerned about foreign influence on the national government, and in particular on the President. At the beginning of the debate, they wanted the Legislature to select the President, and they tried to limit foreign influence on the President by devising time-of-citizenship requirements for members of the Legislature. Presidential qualifications as such were mentioned, but they received little attention at this stage in the debate. Ultimately, however, the Convention decided that a President elected by the Legislature could not be insulated from foreign influence and it turned, instead, to the Electoral College.

In one sense, the switch to the Electoral College lowered the need for explicit presidential qualifications because it minimized the line of potential foreign influence running through the Legislature. In another sense, however, this switch broke the clear connection between the citizenship requirements of legislators and the selection of the President, and therefore boosted the symbolic importance of a citizenship requirement for the President. This change in context, along with the Convention's decision to make the President the commander-in-chief of the army, gave new weight to the arguments in Jay's letter, and in particular to the suggestion in that letter that the presidency be restricted to "natural born" citizens. When Jay's letter arrived, probably sometime before August 13, the Convention was not ready to deal with it, and indeed was somewhat hostile to its ideas. But between August 31 and September 4, when the Committee of Eleven did its work, the context changed and the seed that Jay had planted bore fruit.⁽³⁷⁾

Evidence from Other Sources

Additional evidence about the origins and interpretation of the "natural born citizen" expression is available from sources other than the Constitutional Convention. To a large degree, this evidence reinforces the above interpretation based on the Convention, but it also raises some additional issues, particularly about the term "natural born" citizen and its relationship to "naturalization."

Natural-born, Native-born, and Naturalization

The term "natural born" citizen has a long history in British common law.⁽³⁸⁾ In fact, a law passed in 1677 law says that "natural born" citizens include people born overseas to British citizens. This usage was undoubtedly known to John Jay, who had children born overseas while he was serving as a diplomat.⁽³⁹⁾ It also appears to have been employed by the members of the first Congress, who included many of the people who had participated in the Constitutional Convention. To be specific, The Naturalization Act of 1790, which was passed by this Congress, declared "And 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; Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident of the United States."⁽⁴⁰⁾

This history suggests that the Founding Fathers used the term "natural born" as an expansive definition of citizenship, that is, as a way to make certain that people born overseas to American citizens would have the full rights of other American citizens.⁽⁴¹⁾

A particularly compelling version of this interpretation, with language that applies, inadvertently, no doubt, to foreign-born adoptees, can be found in an article written almost 100 years ago by Alexander Porter Morse.⁽⁴²⁾ He writes that by drawing on the term so well known from English law, the Founders were recognizing "the law of hereditary, rather than territorial allegiance."⁽⁴³⁾ In other words, they were drawing on the English legal tradition, which protected allegiance to the king by conferring citizenship on all children "whose fathers were natural-born subjects," regardless of where the children were born.⁽⁴⁴⁾ Thus, according to Morse, "the framers thought it wise, in view of the probable influx of European immigration, to provide that the President should at least be the child of citizens owing allegiance to the United States at the time of his birth."⁽⁴⁵⁾ He goes on to say that the presidential eligibility clause "was scarcely intended to bar the children of American parentage, whether born at sea or in foreign territory.... A natural-born citizen has been defined as one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country."⁽⁴⁶⁾

Although this legal history was never explicitly addressed at the Constitutional Convention, Morse's view is similar to a statement by Charles Pinckney in 1800, namely, that the presidential eligibility clause is designed "to insure ... attachment to the country" on the part of the President. This statement is discussed in more detail below.

Morse also emphasizes the difference between the terms "native-born" and "natural-born." The dictionary, which follows the English precedents, defines "native-born" as "belonging to or associated with a particular place (as a country) by birth therein" and "natural-born" as "having a specified status or character by birth."⁽⁴⁷⁾ If the Founders had not wanted an expansive definition of citizenship, Morse writes, "it would only have been necessary to say, 'no person, except a native-born citizen.'"⁽⁴⁸⁾

Another terminological issue concerns the process of "naturalization." Article I, Section 8 of the Constitution gives Congress the power "To establish an uniform Rule of Naturalization." Unfortunately, however, the Constitution does not indicate whether people can be declared "natural-born" through the naturalization process.⁽⁴⁹⁾ In common usage and according to the dictionary definition, a person who is a "natural-born" citizen would appear to be someone who does not have to be naturalized. Moreover, the dictionary definition of "naturalize" is to "admit (an alien) to the rights and status of citizenship." These definitions appear to rule out the possibility of overlap between the categories "natural-born" and "naturalized."

This issue arises in interpreting The Naturalization Act of 1790. One interpretation is that this act is designed to make it clear that people born overseas to American parents are already "natural-born" and do not need to be "naturalized." As Morse put it,

whoever drew the act followed closely the various parliamentary statues of Great Britain; and its language in this relation indicates that the first congress entertained and declared that children of American parentage, wherever born, were within the constitutional designation, "natural-born citizens." The act is declaratory: but the reason that such children are natural born remains; that is, their American citizenship is natural -- the result of parentage -- and is not artificial or acquired by compliance with legislative requirements.⁽⁵⁰⁾

However, the 1790 Act employs the Congressional power to regulate naturalization as a way to clarify the "natural born" citizen category. In fact, the caption of the 1790 Act, "to establish a uniform rule of naturalization," is taken straight from the Constitution. Thus, a literal interpretation of this action by the first Congress is that the Founding Fathers, who dominated this Congress, believed that the right to define "natural born" was conferred by the "naturalization" clause.⁽⁵¹⁾ This interpretation is entirely consistent with the statement made by Alexander Hamilton on August 13.

A strict, some might say strained, reading of the dictionary definitions also provides some support for this alternative interpretation. An second phrasing of the definition of "naturalize" is "to confer the rights and privileges of a native subject or citizen" (emphasis added). Because the dictionary also makes "natural-born" a broader category than "native-born," people who are not "native-born," including people born overseas to American parents, must be "naturalized."

Unfortunately, the link between "natural born" and "naturalization" was never made explicit by the Founding Fathers, and the term "natural born" does not appear in any naturalization legislation passed since 1790.⁽⁵²⁾ Moreover, the few related statements by the U.S. Supreme Court are not very helpful. In perhaps its clearest such statement, in Luria v. United States, the Court declared, "Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency."⁽⁵³⁾ This statement appears to rule out the possibility that "naturalized" citizens could be considered "natural-born," but it does not indicate whether any people other than "native" or "native-born" citizens can be considered "natural-born" and it does not reveal whether the naturalization clause gives Congress the power to determine what "natural-born" means.

Foreign Influence and Presidential Eligibility

Evidence from the period right after the Constitutional Convention also supports the notion that the Founding Fathers were very concerned about foreign influence on the federal government, and in particular on the President.

The most direct evidence comes from a statement made by Charles Pinckney to the U.S. Senate in 1800. Pinckney had been a delegate to the Constitutional Convention and, on July 26, 1787, had been the first delegate to raise the issue of presidential qualifications in the debate. On March 25, 1800, the Senate was debating a bill "prescribing the mode of deciding disputed elections of President and Vice President of the United States."⁽⁵⁴⁾ Pinckney gave a detailed explanation for the Electoral College, emphasizing that the rules governing the Electoral College were designed so "as to make it impossible ... for improper domestic, or, what is of much more consequence, foreign influence and gold to interfere."⁽⁵⁵⁾ Pinckney then made the only documented statement by one of the Founders connecting the Electoral College and the presidential eligibility clause. The Founders "knew well," he said

that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible....⁽⁵⁶⁾

This statement by one of the Founders, thirteen years after the Constitutional Convention, therefore supports the interpretation, given earlier, that the Electoral College and the presidential eligibility clause were intended primarily as the two sides of a plan to protect the President from foreign influence.

Additional evidence can be found throughout the famous Federalist Papers, "a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788."⁽⁵⁷⁾

Essays number 2 through 5 were written by John Jay and they were titled "Concerning Dangers from Foreign Force and Influence." Although the main focus of these essays is on the need for a strong central government to protect a nation from foreign military action, they also suggest that a strong central government can help protect a nation from "foreign influence." Concern about foreign influence also appears in essay number 20, written by Hamilton and Madison; essay number 43 by Madison; and essays number 66 and 75 by Hamilton. Moreover, the role of the presidential selection mechanism in limiting foreign influence is explicitly discussed by Hamilton in essay number 68. Here is what Hamilton says:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.

The Federalist Papers do not mention the issue of presidential qualifications. However, a well-known treatise on the Constitution published in 1803, like Charles Pinckney's statement in the U.S. Senate in 1800, explicitly discusses the linkage between the "natural born citizen" clause and the need to avoid foreign influence. In particular, this treatise says:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, whereever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora's Box.⁽⁵⁸⁾

This interpretation is echoed in another well-known treatise published 30 years later.

But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad but instructive examples of the enduring mischiefs arising from this source.⁽⁵⁹⁾

Neither treatise provides any evidence that it has accurately characterized the views of the Founding Fathers. However, the first treatise was published only sixteen years after the Constitutional Convention by St. George Tucker, who was, according to the title page of his treatise, "Professor of Law, in the University of William and Mary, And One of The Judges of The General Court in Virginia." He also served as a major in the Revolutionary War and was present at the Battle of Yorktown.⁽⁶⁰⁾ It seems reasonable to presume that such an author might know something about the Founders' beliefs. As a result, this treatise provides more support for the view, implicit in the debate at the Constitutional Convention, that the "natural born" citizen expression is designed to exclude from the Presidency those people most likely to represent or to be under the influence of a foreign power.

Note that the Tucker treatise, like the statement to the Constitutional Convention by Elbridge Gerry on August 13, uses the term "native-born," not "natural-born." This suggests that Tucker and Gerry did not make a distinction between these two terms, although Gerry might have made a distinction and wanted to confine legislative eligibility to people literally born in the United States.

Conclusion: Implications for Foreign-Born Adoptees

The adoption of foreign-born children was unheard of in 1787, and it is inconceivable that the Founding Fathers considered such adoptees when they wrote the presidential eligibility clause. Nevertheless, it is instructive to explore the implications of this clause for the elibility of foreign-born adoptees to be President.

First, a strict interpretation of the language in the Constitution seems to imply that foreign-born adoptees are not "natural born" citizens and hence are not eligible to be President. Even if a child is matched with adoptive parents before he or she is born in a foreign country to a citizen of that country, he or she is not considered a U.S. citizen at birth. Instead, he or she only becomes a citizen after a formal process of adoption and naturalization.⁽⁶¹⁾ By the language of the Supreme Court's Luria decision, foreign-born adoptees are therefore not eligible to be President.

Second, in this case, as in many others, a strict interpretation of the Constitution may not be the final answer. Legal scholars have clearly pointed out ambiguity in the meaning of "natural born" and "naturalization," and the Founding Fathers did not leave a record that clears things up. Even the Luria decision cannot be regarded as definitive because it was not directly ruling on the "natural born" citizen clause. Thus, it is conceivable that legislation declaring foreign-born adoptees to be "natural born" citizens could be upheld by the Supreme Court.

Third, none of the above interpretations of the "natural born citizen" phrase conflicts in spirit with presidential eligibility for foreign-born adoptees. The historical record contains two, possibly overlapping, interpretations of the "natural born citizen" clause: It is designed to grant full citizenship to all people with American parents and/or to prevent pernicious foreign influence on the President.

The first interpretation was not intended, of course, to cover foreign-born adoptees, but it is consistent with the notion that American parents build families under many different circumstances and that these circumstances should not influence whether their children are eligible to be President. Although the Founding Fathers did not contemplate the possibility of adopting foreign orphans, their apparent desire to confer full American citizenship, including presidential eligibility, on the children of American parents who give birth overseas is entirely consistent with a desire to confer full American citizenship on the children of American parents who turn to the adoption of a foreign orphan as a way to build their family.

The language used by Morse is particularly favorable to foreign-born adoptees, each of whom is, in fact, "the child of citizens owing allegiance to the United States at the time of his birth." Moreover, foreign-born adoptees, who grow up as Americans, also meet the more modest criteria expressed by Charles Pinckney, namely, that the President should exhibit "attachment to the country." If these statements accurately reflect the Founder's intentions, therefore, then they would support presidential eligibility for foreign-born adoptees.

The second interpretation is also perfectly consistent with presidential eligibility for foreign-born adoptees. No one could argue that a foreign-born adoptee, who after all grows up surrounded by American institutions and guided by American citizens, threatens the United States with foreign influence. Indeed, the idea that innocent orphans represent the foreign "instrument" in Gerry's August 13 statement to the Convention or the "plague" in Tucker's treatise is ludicrous on its face. Making foreign-born orphans eligible to be President would not open a "Pandora's Box"!

Overall, this history leaves foreign-born adoptees as second-class citizens in the sense first expressed by Alexander Hamilton in his statement to the Constitutional Convention on August 13. In fact, foreign-born adoptees are ineligible to be President, even though the Founding Fathers never considered these adoptees' situation and even through all the interpretations offered for the "natural born citizen" clause in the Constitution are consistent with presidential eligibility for people in this category.

This unfair situation might be remedied through legislation. One could argue that Congress has the authority to define constitutional terms, such as "natural-born" that are left ambiguous by the Constitution and the debate at the Constitutional Convention. One might also build on the view, expressed in Hamilton's statement on August 13 and in the 1790 naturalization act, that the "naturalization" power awarded to Congress by the Constitution allows Congress to define the meaning of "natural born citizen." However, the legal uncertainty surrounding an even more basic question about the "natural born citizen" clause, namely whether it covers people born overseas to American parents, indicates that a legislative solution may be illusive.⁽⁶²⁾

The inescapable conclusion is that it will at least take path-breaking legislation, and may take a constitutional amendment, to ensure that foreign-born adoptees are full American citizens, eligible to run for President if they choose to do so.

 

1. John Yinger is Professor of Economics and Public Administration at the Maxwell School of Citizenship and Public Affairs, Syracuse University, and the father of two adoptive children, one of whom, even when old enough, will not be eligible to be President.

2. The term "natural born" citizen also appeared in a debate in the Continental Congress about ten years earlier, on November 11, 1777. In particular, a "Committee appointed to take into Consideration new articles proper to be added or included in the Confederation," which consisted of Richard Henry Lee, Henry Marchant, and James Duane, offered an amendment stating that "the Citizens of every State, going to reside in another State, Shall be entitled to all the rights and privileges of the natural born free Citizens of the State to which they go to reside." See "http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_BmEK::." However, the "natural born" modifier was dropped in the final version of the amendment. See "http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_yCqO::." Unfortunately, this case does not provide any assistance in interpreting the use of this modifier in the Constitution.

3. One source reports that he had been appointed as a delegate but declined to serve. See Wilborne E. Benton, editor, Drafting the Constitution, Vol. I. (College Station, TX: Texas A&M University Press, 1986), p. 20. I have not been able to confirm this information in any other source.

4. As one scholar puts it, "Although he was not present at Philadelphia, Jay's views were known to the most influential delegates, and he even indulged in a bit of lobbying while the Continental Congress was in session." Richard B. Morris, Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution (New York: Holt, Tinehart, and Winston, 1985), pp. 189-90.

5. Max Ferrand, editor, The Records of the Federal Convention of 1787, Revised Edition, Volume III (New Haven: Yale University Press, 1937), p. 61. You can find this letter at the Library of Congress web site: "http://thomas.loc.gov." According to Charles Gordon, "Who Can Be President of the United States: The Unresolved Enigma," Maryland Law Review, Vol. 28, No. 1 (Winter 1968), p. 5, this letter was sent to Washington and "probably to other delegates."

6. Morris, op. cit., p. 191.

7. Gordon, op. cit., p. 5. Gordon cites several sources that discuss Jay's mistrust of von Stuben and the rumors about a monarchy. Another scholar confirms these reports and actually blends them: "Von Steuben had been sounded out about establishing a limited monarchy in America." Morris, op. cit., p. 190.

8. Gordon, op. cit., p. 4.

9. James Madison, Notes of Debates in the Federal Convention of 1878 Reported by James Madison (Athens, OH: Ohio University Press, 1966), p. 364. Many other editions of these notes are available; they can be cross-referenced with this edition by date.

10. Madison, op. cit., p. 366.

11. Madison, op. cit., pp. 367-8.

12. Morris, op. cit., p. 191.

13. Madison, op. cit., p. 372. Mason's motion included a clause "disqualifying persons having unsettled Acc^ts with or being indebted to the U.S. from being members of the Nat^l Legislature." This clause was necessary, he argued, because experience in state legislatures had shown that such people would join a legislature to pass legislation that removes their debts. However, this clause has nothing to do with foreign influence, and it was rejected by the Convention.

14. Madison, op. cit., p. 374. Note that "nem. con." is a synonym for "unanimously."

15. Madison, op. cit., p. 372.

16. Madison, op. cit., p. 374.

17. Madison, op. cit., p. 385.

18. Madison, op. cit., pp. 386-7.

19. Madison, op. cit., p. 387.

20. Madison, op. cit., pp. 387-428.

21. Morris, op. cit., p. 191. Morris writes "Jay's 'anti-foreigners' proposal appears to have been reflected in the motion that Elbridge Gerry made on the floor of the Convention in August."

22. Madison, op. cit., p. 437.

23. Madison, op. cit., p. 438.

24. Madison, op. cit., p. 438.

25. The Wilson and Butler quotations are from Madison, op. cit., p. 439.

26. Madison, op. cit., p. 439.

27. Madison, op. cit., p., 439.

28. Madison, op. cit., p. 440.

29. Madison, op. cit., p. 488.

30. Madison, op. cit., p. 509.

31. Madison, op. cit., p. 569. Although there were thirteen colonies, Rhode Island had declined to send any delegates to the convention, and two of the three delegates from New York had left the Convention because of their objections to a strong central government thereby effectively eliminating New York's vote. See Morris, op. cit., p. 188.

32. The Committee of Eleven consisted of Delegates Gilman, King, Sherman, Brearly, Gouvernor Morris, Dickinson, Carroll, Madison, Williamson, Butler, and Baldwin. See E. H. Scott, editor, Journal of the Federal Convention Kept by James Madison (Chicago: Albert Scott and Company, 1893), p. 655.

33. Madison, op. cit., p. 596.

34. Madison's statement in favor of Hamilton's motion on August 13 may help to explain why legislative selection of the President was ultimately rejected by the Convention. He said "If bribery was to be practiced by foreign powers, it would not be attempted among the electors but among the elected." Madison, op. cit., p. 438.

35. Madison, op. cit., p. 574-5.

36. Wilborne E. Benton, editor, Drafting the Constitution, Vol. II. (College Station, TX: 1986), p. 1199.

37. The Founding Fathers did not rule out foreigners as such. Building on the Morris exception of August 13, they made anyone who was a citizen "at the time of the Adoption of this Constitution" eligible to be President. This phrase applied to thousands of foreign-born citizens, including seven signers of the Constitution (James Wilson, Robert Morris and Thomas Fitzsimons of Pennsylvania, Alexander Hamilton of New York, William Paterson of New Jersey, James McHenry of Maryland, and Pierce Butler of South Carolina). This list (from http://www.nidlink.com /~bobhard/constit3.html) includes one of my ancestors, James McHenry, from whom I inherited my middle name! One commentator argues, without supporting evidence that this exception was included out of respect for these people. See Joseph Story, Commentary on the Constitution of the United States (Durham, N.C: Carolina Academic Press, 1987), par. 1479. This is a reprinted version of the book first published in 1833.

38. See Gordon, op. cit., which is the source of the information in this paragraph.

39. Gordon, op. cit., p. 8.

40. Gordon, op. cit., pp. 8-9.

41. However, this interpretation has been disputed by some. See Gordon, op. cit.

42. Alexander Porter Morse, "Natural-Born-Citizen of the United States: Eligibility for the Office of President," Albany Law Journal, vol.66 (1904), pp. 99-100.

43. Morse, op. cit, p. 99. Emphasis in the original.

44. Morse, op. cit., p. 99.

45. Morse, op.cit., p. 99. Gordon, op. cit, p. 9 writes that Morse makes this claim "without any supporting citation." I think this is a bit harsh. Morse does not cite a statement by one of the Founders, of course, but he does (as does Gordon himself) cite evidence from English law and from the Naturalization Act of 1790.

46. Morse, op. cit., p. 99.

47. These definitions are from Webster's Third New International Dictionary of the American Language, unabridged edition (Springfield, MA: Merriam-Webster, Inc, 1981). Note that the dictionary uses a hyphen in the adjective "natural-born," whereas the Constitution does not.

48. Morse, op. cit., p. 99. It should be noted that Morse is reluctant to accept one implication of the dictionary definition of "native-born," namely, that it includes people born in the United States even if their parents are not citizens. "It remains to be decided," Morse writes, "whether a child of domiciled Chinese parents, born in the United States, is eligible, if otherwise qualified, to the office of president" (p. 100). So far as I know, however, this case has never been unclear: Anyone born in the United States has full citizenship rights.

49. As Gordon, op. cit., put it, "since the presidential qualification clause does not ... refer to naturalization, there may still be room for qualification as a natural born citizen even thought the process of acquisition at birth abroad was characterized as naturalization" (p. 15).

50. Morse, op. cit., p. 100.

51. Further discussion of this issue can be found in Gordon, op. cit., p. 9 According to Gordon, "It is possible that a person who was regarded in 1790 as a naturalized citizen could also be deemed natural born, if he acquired his United States citizenship at birth. Under the direct mandate of the 1790 act, such a person was given the rights of a natural born citizen, whether or not one believes that his citizenship resulted from naturalization. However, such an hypothesis might still leave open the question of whether or not Congress can enlarge or modify the categories of eligible citizens encompassed within the presidential qualification clause."

52. Gordon, op. cit., p. 9. The term "natural born" has appeared in congressional debates, however. On February 19, 1813, for example, Congressman Pitkin was so worried about foreign influence in the navy and merchant marine that he made a motion requiring that a certain portion "of all the persons employed as seamen or sailors on board any public ship or vessel of the United States, or any ship or vessel owned by citizens of the United States, shall be natural born citizens of the United States" or people who are already citizens by a certain time. See "http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_zFb8::." However, he withdrew his motion two days later, after a pause that included the reading of the votes from the Electoral College that made James Madison President and Elbridge Gerry Vice-President!
"http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_Lk8C::."

53. Luria v. United States 231 U.S. 9, 22 (1913). "The naturalized citizen's ineligibility for the Presidency is [also] mentioned in Schneider v. Rush, 377 U.S. 163, 165, 177 (1914); Knauer v. United States, 328 U.S. 654, 658 (1946); [and] Baumgartner v. United States, 372 U.S. 655, 673 (1944)." Gorden, op. cit., p. 1, footnote 1.

54. Journal of the Senate of the United States of America, 1789-1873, Friday, March 28, 1800. "http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:2:./temp/~ammem_Jnew::."

55. "The Records of the Federal Convention of 1787" (Farrand's Records), CCLXXXVIII, Charles Pinckney in the United States Senate, March 28, 1800, p. 387. "http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:10:./temp/~ammem_jwJ2::."

56. "The Records of the Federal Convention of 1787," op. cit., p. 386.

57. This quotations is taken from the Library of Congress web site on the Federalist Papers, namely, "http://lcweb2.loc.gov/const/fed/abt_fedpapers.html." This site also points out that "because Hamilton and Madison were each members of the Constitutional Convention, the Federalist Papers are often used today to help interpret the intentions of those drafting the Constitution." Access to the Federalist Papers themselves can be found at
"http://lcweb2.loc.gov/const/fed/fedpapers.html."

58. St. George Tucker, Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of The Commonwealth of Virginia. Philadelphia: William Young Birch and Abraham Small, 1803. Available on the internet at http://www.constitution.org/tb/t1d14000.htm.

59. Story, op. cit., par. 1479. Note that Story draws on the examples of Germany and Poland, which are both mentioned by Madison in his statement at the Constitutional Convention on July 25.

60. This information comes from a brief biography found at "http://www.history.org/people/bios/biotuck.htm."

61. Foreign-born adoptees who become citizens as children receive a "certificate of citizenship" not a "certificate of naturalization." However, this distinction is intended to differentiate between people who become naturalized at the instigation of their parents and those who become naturalized by their own choice -- not to differentiate between naturalization and some other process. In fact, neither Congress nor its creation, the Immigration and Naturalization Service, is empowered to confer citizenship through any process other than "naturalization."

62. Gordon, op. cit., p. 32 concludes his detailed analysis of this question by saying that "the picture is clouded by elements of doubt" and that "it may eventually be necessary to amend the Constitution in order to remove this ambiguity." For an analysis of the need for a constitutional amendment to make foreign-born adoptees eligible to be President, see John Yinger, "Is The Right of Foreign-born Adoptees to be President an Appropriate Subject for a Constitutional Amendment?," "http://faculty.maxwell.syr.edu/jyinger/facfa2.html."