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For the archives

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The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution:

Why Did the Founding Fathers Want the President To Be a “Natural Born Citizen”

and

What Does this Clause Mean for Foreign-Born Adoptees?

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

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Excerpt:
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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 expressly 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 Governmt a man attached to their respective politics and interests.

No pains, nor perhaps experience, will be spared to gain from the Legislature an appointmt 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 Natl Legislature.”

(10) According to Madison, Hugh Williamson “was sensible that strong objections lay agst 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 Governmt 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 amendmt 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 wd 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 agst 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 Massts reasoned in the same manner.(22)

Rest continues here, with footnotes (which footnote #’s of mine above are in the wrong spots .. ;)

http://faculty.maxwell.syr.edu/jyinger/Citizenship/history.htm