Natural born citizen

Question

From what I understand, the so-called "birther movement" in the US asserts that Barack Obama is not eligible to be president of the USA because he allegedly wasn't born in the US and therefore is not a "natural-born" citizen as required in the constitution.

But I also just learned that Mitt Romney's father ran for president in 1968 even though he was born in Mexico.

I am interested in the the history of the interpretations of the "natural-born" requirement. My question is: when exactly was it defined that natural born required a person to be born within the USA?

From what I understand, the constitution itself does not define the term. The Naturalization Act of 1790 states that "the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens". So at some point the this would have changed.

Answer 1

You essentially have it correct. 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.

As you mention, the Naturalization Act of 1790 did attempt to define the term "natural born Citizen". That act was replaced by the Naturalization Act of 1795, which did not include this language (which was itself replaced in 1798, which ended up just being repealed). So at the moment this term is not legally defined. However, courts do seem fairly happy with the 1790 definition. Of course, by this definition, it didn't really matter where Obama was born. His mom was a US citizen, so he is.

The Wikipedia page linked above has a lot of good info on the history of opinions on its meaning. Lynch v. Clarke is apparently the most cited court opinion, which at least establishes that the term includes those born in the USA (even if both parents are foriegn nationals).

The Congressional Research Service was asked to look into the matter, and delivered a report to Congress in 2009. The report stated that:

Considering the history of the constitutional qualifications provision, the common use and meaning of the phrase "natural-born subject" in England and in the Colonies in the 1700s, the clause's apparent intent, the subsequent action of the first Congress in enacting the Naturalization Act of 1790 (expressly defining the term "natural born citizen" to include a person born abroad to parents who are United States citizens), as well as subsequent Supreme Court dicta, it appears that the most logical inferences would indicate that the phrase "natural born Citizen" would mean a person who is entitled to U.S. citizenship "at birth" or "by birth".

The report also stated that this seemed to be the majority legal opinion. However, majority doesn't mean universal.

Note that "birtherisim" isn't limited to Obama. In fact, his opponent in the 2008 election John McCain, was not born in the United States (although the Canal Zone is a bit a of special case). There were Democratic "birthers" who tried to claim that made him ineligable. The same happened with Barry Goldwater (who was born in Arizona before it was a state), and several others.

In George Romney's case, he was born indisputably in another country, but to US citizen parents. He never held citizenship in any country other than the USA. It was an issue when he tried to run for POTUS.

Answer 2

From the Congressional Research Service:

"Considering the history of the constitutional qualifications provision, the common use and meaning of the phrase "natural-born subject" in England and in the Colonies in the 1700s, the clause's apparent intent....would mean a person who is entitled to U.S. citizenship "at birth" or "by birth".

I think that they came to an incorrect conclusion. The common meaning of "natural born subject" in England in the 1700's did not mean "subject at birth" or "subject by birth". It simply meant a subject of the crown, as opposed to a foreigner.

From "The London magazine; or, Gentleman's monthly intelligencer, Volume 32 (1763) Google Books link

...all such foreign protestants as well officers as soldiers who have served or shall hereafter serve in the royal American regiment or as engineers in America for the space of two years and shall take and subscribe the oaths &c shall be deemed his majesty's natural born subjects of this kingdom, to all intents and purposes ..."(Page 239)

...That no person who shall become a natural born subject of this kingdom by virtue of this act shall be thereby enabled to be of the privy council or a member of either houle of parliament, or capable of taking or enjoying any office or place of trust within the kingdoms of Great Britain or Ireland either civil or military or any grant from the crown to himself or to any other in trust for him of any land tenements or hereditaments within the said kingdoms. (Page 240)

...but it is certain that by this act a foreigner may in two years become a natural born subject of this kingdom whereas by the said act of 13 Gco 2 a foreigner must live seven years in America without having ever been absent from thence above two months at a time before he can become a natural born subject of this kingdom.(Pg 241)

Note that a "natural born subject" could be someone who was naturalized by statute or could be a person born in the country. The new United States of America did not use the English Common Law definition of "Natural Born."

In addition, there is the Civil Rights Act of 1866

1866 CRA link 1866 Civil Rights Act

14 Stat. 27-30, April 9, 1866 A.D.

CHAP. XXXI. –- An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;

A child born to a foreign parent in the United States was subject to a foreign power by virtue of the inherited citizenship from that foreign parent, and was not considered a citizen of the United States.

Leaving statutes behind us, we now come to the United States Supreme Court.

SUPREME COURT OF THE UNITED STATES Minor v. Happersett Decided: March 29, 1875 (Can be found on Justia.com)

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.

Some lower courts granted citizenship to the children of foreigners born on US soil, and some did not. There were doubts as to whether or not those children were citizens of the US. There were no doubts about the citizenship of children born in the US to US citizen parents because they were "natural born citizens" i.e. children born in a country of parents who were its citizens.

Rogers v. Bellei - 401 U.S. 815 (1971) (Can be found on Justia.com)

Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.

1 Stat. 103, 104. This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a "Rule of Naturalization" shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization.

All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. Citizenship acquired by being born in the United States to two US citizen parents does not depend upon a Congressional enactment.

The 14th Amendment states that persons born or naturalized in the United States are citizens. It does not state that persons born in the United States are "natural born citizens", it only says that they are "citizens".

In my opinion, a "natural born citizen" is a person born in the United States to two United States citizen parents. It doesn't matter if the parents are natural born citizens themselves or are naturalized citizens. If they are US citizens at the time their child is born in the US, that child is a constitutional natural born citizen.

Answer 3

The most on point case for what it means to be a natural born citizen is U.S. v. Wong Kim Ark (full opinion found at Justia). The opinion itself is a great read on the issue, and one that covers the development of the theory in considerable depth.

Discussed in the opinion are the facts that the US recognizes natural born citizens to be both jus soli (right of the soil), and jus sanguinis (right of blood).

The Congressional Research Service put it best in 2011:

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.”

People born in this country, not to foreign diplomats, etc., are natural born citizens.

If you are born abroad the US State Department lists four different scenarios which may qualify a person as a natural born citizen:

Birth Abroad to Two U.S. Citizen Parents in Wedlock

A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA) provided that one of the parents had a residence in the United States or one of its outlying possessions prior to the child’s birth. The child is considered to be born in wedlock if the child is the genetic issue of the married couple.

Birth Abroad to One Citizen and One Alien Parent in Wedlock

A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “New” Section 309(a)

A person born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) of the INA, as made applicable by the “new” Section 309(a) of the INA provided:

A blood relationship between the person and the father is established by clear and convincing evidence; The father had the nationality of the United States at the time of the person’s birth; The father was physically present in the United States or its outlying possessions prior to the child’s birth for five years, at least two of which were after reaching the age of 14. The father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and While the person is under the age of 18 years -- the person is legitimated under the law of his/her residence or domicile, the father acknowledges paternity of the person in writing under oath, or the paternity of the person is established by adjudication of a competent court. Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “Old” Section 309(a) of the INA- A child born out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under the former Section 301(a)(7) of the INA as made applicable by the “old” Section 309(a) of the INA if the U.S. citizen father, prior to the child’s birth, had been physically present in the United States or one of its outlying possessions for ten years, five of which were after the age of 14, and if the paternity of the child had been established by legitimation prior to the child reaching the age of 21. The “old” Section 309(a) of the INA is applicable to individuals who were 18 on November 14, 1986 and to individuals whose paternity had been established by legitimation prior to that date. Individuals who were at least 15 on November 14, 1986, but under the age of 18, could opt to have their claim determined in accordance with the provisions of either the “old” or the “new” Section 309(a).

Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother:

A person born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 309(c) of the INA if the mother was a U.S. citizen at the time of the person’s birth and if the mother was physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the person’s birth. The mother must be genetically related to the person in order to transmit U.S. citizenship.

Source: Acquisition of U.S. Citizenship by a Child Born Abroad