Clause 5. 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.
All Presidents from Martin Van Buren on were born in the United States subsequent to the Declaration of Independence. The principal issue with regard to the qualifications set out in this clause is whether a child born abroad of American parents is “a natural born citizen” in the sense of the clause. Such a child is a citizen as a consequence of statute.121 Whatever the term “natural born” means, it no doubt does not include a person who is “naturalized.” Thus, the answer to the question might be seen to turn on the interpretation of the first sentence of the first section of the Fourteenth Amendment, providing that “[a]ll persons born or naturalized in the United States” are citizens.122 Significantly, however, Congress, in which a number of Framers sat, provided in the Naturalization act of 1790 that “the children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens . . . .”123 This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural-born subjects of the crown.124 There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens.125 Whether the Supreme Court would decide the issue should it ever arise in a “case or controversy”—as well as how it might decide it—can only be speculated about.
121 8 U.S.C. § 1401.
122 Reliance on the provision of an Amendment adopted subsequent to the constitutional provision being interpreted is not precluded by but is strongly militated against by the language in Freytag v. Commissioner, 501 U.S. 868, 886–87 (1991), in which the Court declined to be bound by the language of the 25th Amendment in determining the meaning of “Heads of Departments” in the Appointments Clause. See also id. at 917 (Justice Scalia concurring). If the Fourteenth Amendment is relevant and the language is exclusive, that is, if it describes the only means by which persons can become citizens, then, anyone born outside the United States would have to be considered naturalized in order to be a citizen, and a child born abroad of American parents is to be considered “naturalized” by being statutorily made a citizen at birth. Although dictum in certain cases supports this exclusive interpretation of the Fourteenth Amendment, United States v. Wong Kim Ark, 169 U.S. 649, 702–03 (1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), the most recent case in its holding and language rejects it. Rogers v. Bellei, 401 U.S. 815 (1971).
123 Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied). See Weedin v. Chin Bow, 274 U.S. 657, 661–666 (1927); United States v. Wong Kim Ark, 169 U.S. 649, 672–675 (1898). With minor variations, this language remained law in subsequent reenactments until an 1802 Act, which omitted the italicized words for reasons not discernable. See Act of Feb. 10, 1855, 10 Stat. 604 (enacting same provision, for offspring of American-citizen fathers, but omitting the italicized phrase).
124 25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, § 3 (1709); 4 Geo. 2, ch. 21 (1731).
125 See, e.g., Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968).