The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I saw over the weekend that some people argue that Kamala Harris is ineligible to be Vice-President: apparently her parents weren't citizens when she was born, so the argument goes that she is thus not a natural-born citizen. (Under article II of the Constitution, only a "natural-born citizen" can be President, and the Twelfth Amendment provides that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.")
But "natural-born citizen" appears to have been the Framers' adaptation of the familiar English term "natural-born subject" (though with the "subject" of a monarch being changed to the "citizen" of a republic). And Sir William Blackstone, who immensely influenced the Framers' understanding of the law, expressly explained that
Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king…. The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, … if a child be born of foreign parents, it is an alien.
The test was place of birth, not the citizenship of parents.
It's possible that this has since been broadened to include children of U.S. citizens born overseas (a 1790 Act of Congress specified that, "The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States"). But it hasn't been narrowed, and in U.S. v. Wong Kim Ark (1898), the Court reaffirmed that people born in the U.S. are indeed American citizens, regardless of their parents' citizenship (with narrow exceptions for "children of members of the Indian tribes," who were at the time not citizens, and "children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State").
Now the 1797 edition of the English translation of Emer Vattel's treatise on The Law of Nations (a book that had some influence on the Framers), did say that, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." But that was describing the European civil law rule, not the British common law rule; and in any event, the earlier editions appear to use the word "indigenes" (borrowed directly from the French original "Les Naturels, ou Indigènes") instead of "natural-born citizens."
Presumably the 1797 editor at least viewed the terms as roughly interchangeable. Still, I expect that the Framers, when they were writing the Constitution, mentally linked the "natural-born citizens" phrase more to the "natural-born subject" in Blackstone's very familiar explanation of the common law, rather than to "natives, or indigenes" in Vattel's somewhat less familiar discussion of the civil law.
I have seen some point to this 1787 John Jay letter to George Washington:
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 devolved on, any but a natural born Citizen.
But while this shows that Jay supported the natural-born citizen requirement, and saw it as a means of staving off undue foreign influence, it doesn't tell us how he understood who qualifies as a "natural born Citizen."
Finally, I've seen some suggest that being born to noncitizen parents may lead to divided loyalties, and that this should preclude the person from being elected President (or Vice-President). But while concern about divided loyalties may be the reason for the provision, the provision itself doesn't ask about divided loyalties.
I can't be elected President even if I satisfy everyone that I have no loyalty to the USSR, where I lived until I was seven, or to the nation of the Ukraine, which didn't exist as a country when I was born there. Conversely, someone born in the U.S. (and thus the American equivalent of Blackstone's "natural-born subject") is a natural-born citizen regardless of whether we think there's reason to doubt their undivided loyalty—say, the parents' foreign citizenship at the time of birth (a pretty weak reason for such doubts, I think), the citizenship of the candidate's spouse or children, blood relation between the candidate and some foreign potentate, or whatever else.
The voters can certainly consider any claims of dual loyalty. But the minimum criteria set forth by the Constitution are solely that the person be "a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution," "have attained to the Age of thirty five Years," and have "been fourteen Years a Resident within the United States."
I wouldn't vote for Kamala Harris for Vice-President (or for President); but she is indubitably constitutionally eligible to the office.
UPDATE: Just to illustrate the gradual shift from "natural-born subject" to "natural-born citizen," with no indication that Revolutionary sentiment treated the two as radically different, see the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777:
Every foreigner of good character who comes to settle in this state, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land or other real estate; and after one year's residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years residence.