"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."
ARTICLE II, SECTION 1, CLAUSE 5
The Constitution imposes three eligibility requirements on the
Presidency—based on the officeholder's age, residency, and
citizenship—that must be satisfied at the time of taking office. By
virtue of the Twelfth Amendment, the qualifications for Vice President
are the same. The Framers established these qualifications in order to
increase the chances of electing a person of patriotism, judgment, and
civic virtue.
First, Presidents must be thirty-five years of age or older. In
contrast, Senators must be at least thirty years old, and
Representatives no less than twenty-five years old. As Justice Joseph
Story has noted, the "character and talent" of a man in the middle age
of life is "fully developed," and he has had the opportunity "for
public service and for experience in the public councils."
Second, the President must have been a "Resident" of the United States
for fourteen years. By contrast, to be a Member of Congress, one must
be an "Inhabitant" of the State one is representing. During the
Constitutional Convention, James Madison contended that "both [terms]
were vague, but the latter [‘Inhabitant'] least so in common
acceptation, and would not exclude persons absent occasionally for a
considerable time on public or private business." Then as now,
inhabitant meant being a legal domiciliary, but resident could mean
either a domiciliary or a physical presence. Perhaps the Framers
desired a person as President who had actually been present in the
United States for the required period and had developed an attachment
to and understanding of the country, rather than one who was legally
an inhabitant, but who may have lived abroad for most of his life. On
the other hand, the distinction may have been one of style rather than
substance. As Justice Story later noted, "by ‘residence,' in the
constitution, is to be understood, not an absolute inhabitancy within
the United States during the whole period; but such an inhabitancy, as
includes a permanent domicil in the United States."
There is some evidence that the Framers believed the fourteen-year
residency requirement could be satisfied cumulatively, rather than
consecutively. An earlier version of the clause excluded individuals
who have "not been in the whole, at least fourteen years a resident
within the U.S." (emphasis added), and historical evidence suggests
that deletion of the phrase "in the whole" was not intended to alter
the provision's meaning. This might explain the election of Herbert
Hoover, whose successful 1928 campaign for President came less than
fourteen years after his return to the United States in 1917. Others
may argue that Hoover had simply maintained a United States domicile
throughout his tenure abroad.
The third qualification to be President is that one must be a "natural
born Citizen" (or a citizen at the time of the adoption of the
Constitution). Although any citizen may become a Member of Congress so
long as he has held citizenship for the requisite time period, to be
President, one must be "a natural born Citizen." Undivided loyalty to
the United States was a prime concern. During the Constitutional
Convention, John Jay wrote to George Washington, urging "a strong
check to the admission of Foreigners into the administration of our
national Government; and to declare expressly that the Commander in
Chief of the American army shall not be given to nor devolve on, any
but a natural born Citizen." Justice Story later noted that the
natural-born–citizenship requirement "cuts off all chances for
ambitious foreigners, who might otherwise be intriguing for the
office."
Under the longstanding English common-law principle of jus soli,
persons born within the territory of the sovereign (other than
children of enemy aliens or foreign diplomats) are citizens from
birth. Thus, those persons born within the United States are "natural
born citizens" and eligible to be President. Much less certain,
however, is whether children born abroad of United States citizens are
"natural born citizens" eligible to serve as President. As early as
1350, the British Parliament approved statutes recognizing the rule of
jus sanguinis, under which citizens may pass their citizenship by
descent to their children at birth, regardless of place. Similarly, in
its first naturalization statute, Congress declared that "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." 1 Stat. 104 (1790). The "natural born" terminology was
dropped shortly thereafter. See, e.g., 8 U.S.C. § 1401(c). But the
question remains whether the term "natural born Citizen" used in
Article II includes the parliamentary rule of jus sanguinis in
addition to the common law principle of jus soli. In United States v.
Wong Kim Ark (1898), the Supreme Court relied on English common law
regarding jus soli to inform the meaning of "citizen" in the
Fourteenth Amendment as well as the natural-born–citizenship
requirement of Article II, and noted that any right to citizenship
though jus sanguinis was available only by statute, and not through
the Constitution. Notwithstanding the Supreme Court's discussion in
Wong Kim Ark, a majority of commentators today argue that the
Presidential Eligibility Clause incorporates both the common-law and
English statutory principles, and that therefore, Michigan Governor
George Romney, who was born to American parents outside of the United
States, was eligible to seek the Presidency in 1968.
The Presidential Eligibility Clause does not explicitly cover those
who serve merely as Acting President, a constitutionally distinct
office. Although Congress has imposed by statute, 3 U.S.C. § 19(e),
the same eligibility requirements for service as Acting President,
that provision may not be required as a constitutional matter.
James C. Ho
