The Presidential Eligibility Clause

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.

—Scott A. Keller & Jeremy Evan Maltz

Introduction

The Constitution imposes three eligibility requirements on the Presidency. First, the President must be at least thirty-five years old. By contrast, Senators and Representatives must be at least thirty and twenty-five, respectively. Justice Joseph Story wrote that the “character and talents” of a man in the middle age of life are “fully developed” and that the President would have had the opportunity “for public service and for experience in the public councils.”¹ Second, the President must have been a “Resident” of the United States for fourteen years. Senators and Representatives, on the other hand, must only be “Inhabitant[s]” of their states “when elected.” Third, the President must be a “natural born Citizen.” Yet Senators and Representatives must be citizens for at least nine and seven years, respectively. The Twelfth Amendment imposes the same qualifications for the Vice President.² The Framers established these qualifications to increase the chances of electing a person characterized by patriotism, judgment, and civic virtue.

Among these three qualifications, the “natural born Citizen” requirement has inspired the most debate. The English common-law conception of “natural born” subjects appears generally to have included only persons born within sovereign territory (other than children of enemy aliens or foreign diplomats). By the time of the Founding, however, Acts of Parliament recognized a broader definition of “natural born.” This category included all persons obtaining subjecthood on the basis that they were born to English subjects—regardless of whether they were born within sovereign territory.

The First Congress, tracking these Acts of Parliament, deemed a child born to American citizens abroad to be a “natural born” citizen. These laws provide strong originalist evidence that the Constitution’s use of “natural born Citizen” adopted the then-prevailing, broader conception: Citizenship was granted at birth if a person was born to American citizens, regardless of where he was born. Controversies about presidential candidates Senators John McCain and Ted Cruz, both of whom were born abroad, have been resolved in a manner supporting this broader definition of “natural born Citizen.”

History Before 1787

The term “natural born” has its roots in the British tradition of conferring subjecthood. Under the British common law, persons born within the sovereign’s territory were “natural born” subjects. William Blackstone observed that the “children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”³ These “[n]atural-born subjects . . . are born within the dominions of the crown of England” with “allegiance of the king.”⁴ In addition, “the children of the king’s embassadors born abroad were always held to be natural subjects.”⁵ But children of enemy aliens or foreign diplomats born in the sovereign’s territory were not “natural born” subjects.

By 1787, various Acts of Parliament had expanded “natural born” subjecthood beyond that common-law conception. Blackstone described how, “by several more modern statutes,” Parliament had declared that “all children, born out of the king’s [allegiance], whose fathers were natural-born subjects, are now natural-born subjects themselves.”⁶ In other words, children born to British citizens outside of British sovereign territory would be “natural born” subjects.

The Constitutional Convention

The qualifications for members of the national legislature were addressed at the outset of the Convention in the Virginia Plan,⁷ but presidential qualifications were not established until fairly late in the Convention. John Jay of New York, who was not at the Convention, wrote a letter on July 25, 1787, to Convention President George Washington. Jay argued that the Constitution should “declare expressly that the Command[er] in chief of the american army shall not be given to nor devolve on, any but a natural born Citizen.”⁸

On August 22, John Rutledge of South Carolina proposed 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.”⁹ At that juncture, the text did not yet impose a natural-born citizenship requirement. On September 2, Washington thanked Jay “for the hints contained in [his] letter.”¹⁰

Only two days later, on September 4, 1787, the Committee of Eleven delivered a report that added the third qualification for the presidency: the natural-born citizen requirement. It provided that only “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.”¹¹ The proposal did not define what “natural born citizen” meant, but the textual dichotomy between “natural born citizen” and “Citizen of the United States at the time of the adoption” of the Constitution suggests that Americans born before the Framing could not be “natural born citizens” of the United States. As a result, those who were citizens when the Constitution was adopted would be grandfathered into presidential eligibility. The report further provided, “nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the United States.”¹² This qualification would apply when the President is elected, and thus before the time he would hold the office. The inhabitancy qualifications in Article I for Representatives and Senators also applied when members were “elected.”¹³ Three days later, this proposal was agreed to unanimously without any debate.¹⁴

The Committee of Style made two subtle but important changes. First, it modified the inhabitancy requirement. The prior version required that the person must have “been in the whole, at least fourteen years a resident,” which suggests a cumulative residency requirement.¹⁵ The Committee now required a person to have “been fourteen years a resident,” which suggests a consecutive residency requirement.¹⁶ This revision therefore arguably made it harder for a person to meet the eligibility standards.

Second, the Committee removed the requirement that the age and residency requirements must apply when “elected to that office.”¹⁷ Instead, a person would only need to meet the age and residency requirements to be “eligible to the office of president.”¹⁸ As Professors Josh Blackman and Seth Barrett Tillman have observed, “[e]ligible could mean either ‘eligible to hold office’ . . . or ‘eligible to be elected to office.’”¹⁹ Under the former reading, the qualification could apply as late as Inauguration Day. As a result, a candidate who was not yet thirty-five years old on Election Day but who turned thirty-five before Inauguration Day could be eligible for the presidency. It is unclear why the Committee made these two revisions.

The Convention adopted the text as revised by the Committee of Style: “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.”

Early Practice

The First Congress adopted a definition of “natural born” that included children of U.S. citizens born outside U.S. territory: “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.”²⁰ This statute tracked the Acts of Parliament discussed above. The First Congress included eight members of the eleven-member committee that proposed the “natural born Citizen” requirement. Thus, its actions provide substantial originalist support for the idea that the Framers understood “natural born” citizenship to include children of U.S. citizens regardless of their birthplace. At a minimum, “natural born” citizens included persons declared to be citizens at birth by federal statute.²¹

However, some scholars posit that the First Congress’s law demonstrates a break from the British common-law tradition that does not lend meaning to the Constitution’s requirement. Mary Brigid McManamon, for example, has argued:

[T]he very existence of this provision demonstrates that the early American notion of “natural born citizen” adopted the English common law only and did not include the eighteenth-century statutes. If it had been otherwise, there would have been no need for the 1790 statute because the children covered would have been natural born under then-current English law.²²

In 1795, Congress removed the “natural born citizen” language from the citizenship statute. The statute then provided, in part, that “the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.”²³

Presidential Eligibility

During the 2008 and 2016 campaigns, two leading presidential candidates were born outside of the United States, and questions about their eligibility were answered in their favor. Senator John McCain was born on a military base in the Panama Canal Zone to American parents.²⁴ In 2008, McCain was the Republican nominee. The U.S. Senate unanimously approved a resolution deeming McCain eligible for the presidency. The resolution stated that other “previous presidential candidates were born outside of the United States of America” to American parents but were still “understood to be eligible to be President.”²⁵ The resolution also added that any other view would be “inconsistent with the purpose and intent of the ‘natural born Citizen’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘natural born Citizen.’”²⁶ Many courts suggested that they agreed with the Senate, although they ultimately did not reach McCain’s eligibility on the merits.²⁷ Some scholars, however, have argued that Senator McCain was not eligible.²⁸

In 2016, Senator Ted Cruz was a leading candidate for the Republican presidential nomination. Cruz was born in Canada, and his mother was a U.S. citizen. Under the naturalization laws in effect at the time, Cruz obtained U.S. citizenship at birth. Was Cruz a natural born citizen? The state courts and tribunals that considered this question on the merits concluded that Senator Cruz was a natural born citizen because he was a citizen at birth under federal law.²⁹ Former Solicitors General Paul Clement and Neal Katyal contended that Cruz was eligible.³⁰ Other law professors, including Einer Elhauge and Mary Brigid McManamon, contended that Cruz might not be eligible.³¹

The candidacies of Senators McCain and Cruz illustrate the importance of Congress’s role in presidential eligibility. Congress cannot unilaterally define what “natural born” means under the Constitution,³² but it does define the statutory parameters for U.S. citizenship eligibility at birth. These rules, in turn, may inform who satisfies the Constitution’s “natural born” requirement.

Open Questions

• During and after World War I, Herbert Hoover lived in Western Europe. He did not return to the U.S. until 1917, which was less than fourteen years before his election in 1928.³³ Does the fourteen-year residency requirement apply to the fourteen years before the President takes office, or can it be satisfied cumulatively over the President’s life?
• Assume that a presidential candidate is thirty-four years old on Election Day but will turn thirty-five before Inauguration Day. Is the candidate constitutionally eligible?
• The Twentieth Amendment provides that “[i]f a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” Assume that a presidential candidate will turn thirty-five at some point after Inauguration Day but during the four-year term. Will that candidate have “failed to qualify”? Can the Vice President serve as Acting President under the Twentieth Amendment until the President reaches the age of thirty-five?
• Do Article II’s qualifications for Presidents apply to acting Presidents under the Twenty-Fifth Amendment?³⁴

1. 3 Story’s Commentaries § 1472. ↩︎
2. Amend. XII. ↩︎
3. 3 Blackstone 373. ↩︎
4. 1 Blackstone 365–66. ↩︎
5. 1 Blackstone 373. ↩︎
6. Id. (emphasis added). ↩︎
7. 1 Farrand’s 20. ↩︎
8. 3 Farrand’s 61. ↩︎
9. 2 Farrand’s 367. ↩︎
10. Letter from George Washington to John Jay (Sept. 2, 1787), https://perma.cc/JC3S-H3YS. ↩︎
11. 2 Farrand’s 498. ↩︎
12. Id. ↩︎
13. Art. I, § 2, cl. 2; Art. I, § 3, cl. 3. ↩︎
14. 2 Farrand’s 536. ↩︎
15. 2 Farrand’s 498 (emphasis added). ↩︎
16. Id. at 598. ↩︎
17. Id. at 498 (emphasis added). ↩︎
18. Id. at 598. ↩︎
19. Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 460–61 (2024). ↩︎
20. 1 Stat. 103, 104 (1790). ↩︎
21. Michael D. Ramsey, The Original Meaning of “Natural Born,” 20 U. Pa. J. Const. L. 199, 213–24, 230–34 (2017); James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 367, 370–72 (2006). ↩︎
22. Mary Brigid McManamon, The Natural Born Citizen Clause as Originally Understood, 64 Cath. U.L. Rev. 317, 332, 336 (2015). ↩︎
23. 1 Stat. 414, 415 (1795). ↩︎
24. Paul Clement & Neal Katyal, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. F. 161, 164 (2015). ↩︎
25. S. Res. 511, 110th Cong. (2008). ↩︎
26. Id. ↩︎
27. Robinson v. Bowen, 567 F. Supp. 2d 1144, 1146 (N.D. Cal. 2008); Hollander v. McCain, 566 F. Supp. 2d 63, 66 & n.3 (D.N.H. 2008); Ankeny v. Governor of State of Ind., 916 N.E.2d 678, 685 n.10 (Ind. Ct. App. 2009). ↩︎
28. Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 Mich. L. Rev. First Impressions 1 (2008). ↩︎
29. Elliott v. Cruz, 137 A.3d 646 (Pa. Commw. Ct. 2016), summarily aff’d, 635 Pa. 212, 134 A.3d 51 (2016); Williams v. Cruz, No. OAL DKT. STE 5016-16, 2016 WL 1554252, at *17 (N.J. Adm. Apr. 12, 2016). ↩︎
30. Clement & Katyal, supra at 163–64. ↩︎
31. Brief Amicus Curiae of Professor Einer Elhauge on the Justiciability and Meaning of the Natural Born Citizen Requirement at 12, Elliott v. Cruz, 134 A.3d 51 (Pa. 2016) (No. 29 MAP 2016), 2016 WL 2732221; Mary Brigid McManamon, Ted Cruz Is Not Eligible to be President, Wash. Post (Jan. 12, 2016), https://perma.cc/Y5HQ-FXVA. ↩︎
32. City of Boerne v. Flores, 521 U.S. 507, 519 (1997). ↩︎
33. James Hart, Mr. Hoover’s Eligibility for the Presidency, 15 Va. L. Rev. 476 (1929). ↩︎
34. James C. Ho, Unnatural Born Citizens and Acting Presidents, 17 Const. Comment. 575 (2000). ↩︎