Rethinking Presidential Eligibility


Throughout American history, several aspiring presidents have had their candidacies challenged for failing to meet the Constitution’s eligibility requirements. These challenges began in the 1880s with the dispute over Chester A. Arthur's eligibility, and they continued into the twentieth century. Recently, presidential eligibility challenges have become much more prominent. In addition to being contested in the court of public opinion, these challenges have recently been contested in the courts of law as well. Although none of these challenges have ever been successful, they have worked to sap presidential campaigns of valuable resources and have threatened the campaigns of several ambitious men. This Essay examines several famous presidential eligibility challenges. It looks at the historic challenges confronted by Chester A. Arthur, Charles Evans Hughes, Barry Goldwater, George Romney, Christian Herter, and Lowell Weicker, and at the more modern challenges faced by John McCain, Barack Obama, and Ted Cruz. The literature on presidential eligibility traditionally has focused on discerning the meaning of the Constitution's Eligibility Clause, which enumerates the age, residency, and citizenship requirements that a U.S. president must satisfy before taking office. By contrast, very little of it examines how a challenge to a candidate's eligibility impacts a presidential campaign. Nor does the literature offer many solutions for what Congress can do to respond to these challenges. This Essay seeks to fill this gap. It also offers a modest proposal. It calls on Congress to pass legislation defining exactly who qualifies to be a natural born citizen or, in the alternative, to implement procedural rules that would expedite presidential eligibility challenges for review to the U.S. Supreme Court.