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Who's really eligible to be president?

By Gabriel "Jack" Chin, Special to CNN
  • Gabriel "Jack" Chin: Constitution is vague on meaning of eligibility for president
  • Chin says "natural born" citizen hasn't been defined by Supreme Court or Congress
  • If a child is born to a U.S. citizen, that person should be eligible to run, he says
  • Experts have called "natural born" requirement the "stupidest" clause in Constitution, he says

Editor's note: Gabriel J. Chin is the Chester H. Smith Professor of Law at the University of Arizona's Rogers College of Law. A graduate of Wesleyan University and the Michigan and Yale law schools, he has written extensively about immigration, citizenship and race and law.

Tucson, Arizona (CNN) -- The Constitution provides that only "natural born citizens" can be president. Never has this obscure restriction been more controversial; in spite of conclusive evidence that President Barack Obama was born in Hawaii, "birthers" insist that he is ineligible because, they claim, he was really born in Kenya or Indonesia.

Meanwhile, because his opponent in the 2008 election, Sen. John McCain, was born in the Panama Canal Zone, some believe that he was ineligible to run.

Unfortunately, the text of the Constitution does not define natural born citizenship, and neither the Supreme Court nor Congress has weighed in on the question. This much is clear. The term "natural born citizen" was borrowed from the English concept of "natural born subject," which came from Calvin's Case, a 1608 decision.

Natural born subjects were those who owed allegiance to the king at birth under the "law of nature." The court concluded that under natural law, certain people owed duties to the king, and were entitled to his protection, even in the absence of a law passed by Parliament.

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Natural born subjects included people born in the sovereign's territory with two exceptions. First, children born to foreign diplomats were not subjects at birth; because they were protected by diplomatic immunity; they were legally outside the sovereign's control. In addition, children of foreign soldiers were not subjects; they were practically outside of the control of the king. All others born in the kingdom were natural born subjects.

The Supreme Court held that the 14th Amendment's citizenship clause, recognizing the citizenship of persons "born in the United States and subject to the jurisdiction thereof," embodied the rule of Calvin's Case. In addition, given that there were U.S. citizens before 1868, when the 14th Amendment was passed, the Supreme Court held that the amendment was "declaratory" of unwritten law in force even before the amendment was passed.

Accordingly, there is agreement that "natural born citizens" include those made citizens by birth under the 14th Amendment. This means that, for example, although there have been proposals for change, the children of undocumented noncitizens born in the United States are both citizens at birth and natural born.

Also clear is that people who are not U.S. citizens at birth are not natural born, and cannot be made such after the fact. For example, Arnold Schwarzenegger is a citizen, but a naturalized citizen, not natural born, so he can never be president.

Even if President Obama had been born overseas, he is still a natural born citizen. ...
--Gabriel "Jack" Chin

The real controversy is whether people who are U.S. citizens at birth, but only by act of Congress rather than under the Constitution itself, are eligible to become president. One reading of Calvin's Case would mean that those born overseas are not natural born because they are not citizens by "natural law"; they are citizens only by virtue of compliance with a statute. On this view, the only natural law governing citizenship is now in the 14th Amendment, therefore, only 14th Amendment citizens are natural born.

Most scholars, including me, believe that natural born citizenship extends further, to all of those who obtain citizenship at birth by law. Calvin's Case was about subjectship, duties owed by subjects to a monarch who claimed to rule by the grace of God. U.S. citizenship, by contrast, involves membership in a political community based on democratic principles. Those born overseas are natural born citizens not because of natural law, but because Congress determined that they are naturally part of the political community.

If this argument is right, then even if Obama had been born overseas, he is still a natural born citizen, because he obtained citizenship at birth through his mother who unquestionably was a U.S. citizen.

If the current controversies about the natural born citizenship clause amount to a tempest in a teapot, that does not mean the clause is wise, or that it might not create a genuine problem in the future. For all of the Framers' wisdom, they erred in the Constitution in denying citizenship and political rights to women, African-Americans and others, and the natural born citizen clause's suspicion of naturalized citizens seems to reflect the same kind of bias.

In a symposium of distinguished constitutional scholars, the combination of unintelligibility, interference with democratic choice and suspicion of naturalized citizens made Harvard Law Professor Randall Kennedy and Yale Law School Dean Robert Post nominate the clause as the "stupidest" in the Constitution. They may be right; it may be that We, the People of the United States, are perfectly capable of sensibly choosing presidents. Unless there are some justifications for it that make sense in a modern, free society, it may be time to consider getting rid of the clause.

The opinions expressed in this commentary are solely those of Gabriel "Jack" Chin.

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