Who May Be President? Constitutional Reinterpretation of Article II's 'Natural Born' Presidential Eligibility Clause

Abstract

Although facially clear, the natural-born citizen provision of Article II's presidential eligibility clause has never been definitively interpreted by the courts. This paper considers whether the concept of natural-born is a self-defining concept, or whether instead it is a concept that is subject to a variety of interpretive theories. It does so by examining the traditional interpretive approach adopted by Constitutional scholars for examining the intended meaning of Article II's presidential eligibility requirements. Such an analysis finds that the traditional approach is inadequate, particularly in light of neglected aspects of English common law, the lack of congruency of the English legacy with the American political experiment, the passage of the Fourteenth Amendment, and the history of congressional regulation in this area. The paper responds to these problems within existing traditions of natural born interpretation by proposing a new approach that includes a recognition of Congress's constitutional power to extend natural born citizenship to classes of citizens beyond those born within the territorial boundaries of the United States. Discussion concludes with an examination of how application of the new interpretative approach would expand the number of American citizens who may be considered natural born for purposes of presidential eligibility; how Congress might operationalize these new understandings; and why reconceptualization of the meaning of the citizenship clause is preferable to previous interpretations of Article II.