The Constitution provides: "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."

During the last presidential election, some people suggested that John McCain was not eligible for the presidency, because he was born in the Canal Zone. Radio Free Europe (Russian language station) interviewed me about the controversy last year. NY Times story here. The issue got serious enough so that Congress passed a resolution saying

I remember that during the 1968 presidential election, there was controversy about the eligibility of Michigan Governor George Romney, who was the GOP frontrunner for a while. Romney (father of the current GOP frontrunner) had been born in Mexico to U.S. citizens who were living in a LDS colony there.

A 1988 Note in the Yale Law Journal about the NBC clause states: "This constitutional uncertainty persists despite the fact that the issue has arisen frequently over the past twenty years in discussions over the potential candidacies of foreign-born politicians such as Barry Goldwater, Lowell Weicker, George Romney, Christian D. Herter, and Franklin D. Roosevelt, Jr. Goldwater was born in the territory of Arizona before it became a state; Weicker, in Paris of an American father and British mother; Romney, of American parents in Mexico; Herter, of Americans in France; Roosevelt, in Canada." Note, Jill A. Pryor, "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty," 97 Yale Law Journal 881 (1988).

Can commenters provide other examples of previous presidents or presidential aspirants regarding whom the "natural born Citizen" clause was raised? My guess is that the current crowd of Obama birthers may be part of a broader tradition in American history than is currently recognized. If you are really diligent, see footnote 2 of the Yale note for some citations to older law review articles (not available on Westlaw) which may have some more examples.

If we look back further into our Anglo-American history, in the Glorious Revolution of 1688, when William & Mary drove out the wicked James Stuart, we find that when William of Orange set sail for England, "William made no claim on his own behalf, but called only for a free Parliament and a study of whether James II's new son really was a son or had been smuggled into the birthing room in a warming pan." Kopel, "It Isn't About Duck Hunting: The British Origins of the Right to Keep and Bear Arms." Review of Joyce Malcolm's book To Keep and Bear Arms: The Origins of an Anglo-American Right. 96 Michigan Law Review 1333 (1995).

The historical cases are interesting to consider because they provide some perspective on the current claims that the birthers are active only because Obama is biracial. Historically, one can find some analogues; I saw enough anti-LDS prejudice during Mitt Romney's 2007-08 presidential campaign to indicate that religious bigotry might have played a role in George Romney birtherism. Unquestionably the concern of the James II birthers was not worry that the James Stuart (who was Catholic) had a low sperm count, but fear of his efforts to replace Protestant England's mixed form of government with absolutism modeled on Catholic, hyper-centralized France. However, for many of the other instances of birtherism (McCain, Weicker, Goldwater, Roosevelt, etc.), it is hard to see any angle involving racial or religious prejudice.

Thanks to some comments in my previous post on presidential aspirants and citizenship, I found some interesting facts about Chester Alan Arthur, who served as President in 1881-85, succeeding to the office after the assassination of James Garfield.

Arthur's father was an Irishman who moved to Canada. There, he eloped with an American woman from Vermont. Canada and Ireland were, at the time, under the government of the United Kingdom. The couple had several children, including Chester. The father did not become a naturalized American citizen until long after Chester's birth.

During the 1880 presidential campaign, Democrats hired Wall Street lawyer Arthur P. Hinman to investigate Arthur's background. Hinman released his findings to the Brooklyn Eagle newspaper during the campaign, and later wrote a book, How a British subject became president of the United States (1884).

Hinman contended that Arthur had been born in Canada, and was thus constitutionally ineligible to be Vice-President or President. (The Natural Born Citizen clause, however, applies only to who "shall be eligible to the Office of President." It does not, on its face, apply to the Vice Presidency. The clause of course reflects the original system of presidential elections, by which the electors cast two ballots, and whoever came in second became Vice President. The 12th Amendment changed that system, but did not revise the NBC clause accordingly.)

Arthur specifically denied the claim, and said that he had been born in Vermont. There was apparently no birth certificate, since such certificates were not used in many areas at the time that Arthur was born.

Later biographers have concluded that Arthur lied about his own age, and perhaps about various aspects of his father's life. The American people obviously made a political judgement, in electing Garfield-Arthur, that they either did not believe the charge of Canadian birth, or did not care about it.

Personally, I probably would have voted for the Democratic nominee, Winfield Scott Hancock, a man of impeccable integrity and great regard for constitutional rights. He lost the popular vote to Garfield by few than 10,000 votes. In 1881, Hancock became President of the National Rifle Association. (Following in the footsteps of Ulysses Grant, who served as NRA President after serving two terms as United States President.)

In any case, the existence of the Arthur controversy is an example of political opponents raising questions about whether a president was really a natural born citizen, and raising such questions for reasons other than racism.