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Introduction
The U.S.
Constitution declares that only "natural born" citizens are eligible to be
President. Because this provision denies naturalized citizens an important civil
right, namely, the right to run for President, it turns them into second-class
citizens. The constitutional amendment proposed in H. J. Res. 88 would extend
presidential eligibility to naturalized citizens and would thereby ensure that
all American citizens have exactly the same rights. This amendment therefore
represents another important step in America's longstanding quest to guarantee
equal rights for all its citizens.
The right to
run for President is obviously not as important for a person's daily life as the
right to free speech, the right to worship as one chooses, and the right to
vote, among others. Nevertheless, this right has enormous symbolic power.
Indeed, one could say that running for President is the ultimate symbol of equal
opportunity. Regardless of income or ethnicity, parents of a natural born
citizen can tell their child that he or she could grow up to be President. This
is part of what makes the United States such a great country: You do not have to
be born into wealth or social position to aspire to or even to attain the
nation's most powerful and prestigious job.
Because of
its symbolic power, the right to run for President is important even for people
who have no intention to run themselves. Imagine a high school civics class
conducting a mock presidential election. Should the teacher tell naturalized
citizens in the class that they are not allowed to run for president, just as
they could not run in a real election? Or should the teacher simply point out
that their candidacy in class would not carry over if the election were real?
Either way, this situation undermines the standing of some citizens and is
therefore an assault on the principle of equal rights.
Since the
U.S. Constitution was passed, this nation has steadily expanded the coverage of
constitutional rights and added new ones. The Bill of Rights and many other
amendments to the Constitution provide examples of this process. So do the civil
rights laws of the last few decades. Thus, eliminating the second-class
citizenship of naturalized citizens would simply add another chapter to this
long and honorable tradition. Indeed, given the symbolic importance of the
Presidency, this step would make an abiding contribution to the equal-rights
principle that is at the heart of the American democracy.
In the rest
of this statement, I will bolster this argument by examining the origins of the
presidential eligibility clause in the Constitution and by asking whether
presidential eligibility is a suitable subject for a constitutional amendment.
The Origins of the Presidential
Eligibility Clause in the U.S. Constitution
The
historical record does not provide a full explanation for the origins of the
requirement that the President be a "natural born" citizen. Nevertheless, some
evidence about the origins of this requirement can be found in the records of
the Constitutional Convention and elsewhere. In this section I summarize this
evidence and discuss the implications of the historical record for H. J. Res.
88.(2)
Evidence from the Constitutional
Convention
The clause
restricting presidential eligibility to natural born citizens appeared in
constitutional drafts near the end of the Constitutional Convention in 1787. The
records of the Convention and other related material provide some evidence
concerning the origins of this clause.
James
Madison's detailed notes on the proceedings of the Constitutional Convention
reveal that the delegates were deeply concerned about foreign influence on the
national government, and in particular on the President. At the beginning of the
debate, they wanted the legislature to select the President, and they tried to
limit foreign influence on the President by devising time-of-citizenship and
other requirements for members of the legislature. Presidential qualifications
as such were mentioned, but they received little attention at this stage in the
debate. Ultimately, however, the delegates decided that a president elected by
the legislature could not be insulated from foreign influence, no matter what
eligibility requirements were placed on legislators, and they turned, instead,
to the Electoral College.
The first
draft of the Constitution that contained the Electoral College also was also the
one that first contained the clause restricting presidential eligibility to
natural born citizens.(3)
This joint appearance of the Electoral College and the denial of presidential
eligibility for naturalized citizens is somewhat ironic. After all, the switch
to the Electoral College lowered the need for explicit presidential
qualifications because it minimized the line of potential foreign influence
running to the President through the Legislature. However, the long debate about
eligibility requirements for legislators apparently left the Founders
uncomfortable with prospect of eliminating all eligibility requirements in the
process of presidential selection. As a result, they added the natural born
citizen requirement even though it was no longer needed.
This addition
may have been controversial. In fact, two of the most influential Founding
Fathers, Alexander Hamilton and James Madison, argued against it, at least
implicitly, earlier in the Convention by warning against any provision that
created second-class citizens. Hamilton pointed out the "advantage of
encouraging foreigners" to come to the United States. Then he said: "Persons in
Europe of moderate fortune will be fond of coming here when they will be on a
level with the first citizens."(4)
Madison agreed with Hamilton. "He wished to invite foreigners of merit &
republican principles among us."(5)
The records
of the Convention do not contain any explanation for the restriction of
presidential eligibility to natural born citizens, but this restriction might
have been viewed as additional insurance against foreign influence. This
interpretation is supported by a letter that John Jay wrote to George
Washington, who was president of the Convention.(6)
In this letter, dated July 25, 1787, Jay wrote:
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 expresly that the Command in chief of the american army shall not be
given to, nor devolve on, any but a natural born Citizen (emphasis in
the original).(7)
The meaning
of this letter is not entirely clear. According to one historian, the first part
of this letter was primarily directed at members of the legislative branch.(8)
Moreover, the second part of the letter, where the expression "natural born"
appears, probably was also not directed at the President; at that point Jay had
no way of knowing that the Convention would ultimately make the President the
commander-in-chief. Nevertheless, this letter may have had an impact on the
delegates when the decision to merge these two positions was made. When Jay's
letter arrived, probably sometime before August 13, the Convention was not ready
to deal with it.(9)
But several weeks later, the idea of the Electoral College appeared and the
President was made the commander-in-chief of the armed forces. In this new
context, the seed that Jay had planted appears to have born fruit.
Other Evidence
Evidence from
the period right after the Constitutional Convention supports the view that the
Electoral College was seen as the principal means of protecting the President
from foreign and other undesirable influences, and that the presidential
eligibility clause was, at most, a supplement to this objective. Two pieces of
evidence are particularly instructive.
First, the
issue of foreign influence is a key theme of the famous Federalist Papers,
which were written by Alexander Hamilton, John Jay, and James Madison between
October 1787 and May 1788.(10)
The role of the presidential selection mechanism in limiting foreign influence
is explicitly discussed by Hamilton in essay number 68.
Nothing was
more to be desired than that every practicable obstacle should be opposed to
cabal, intrigue, and corruption. These most deadly adversaries of republican
government might naturally have been expected to make their approaches from more
than one quarter, but chiefly from the desire in foreign powers to gain an
improper ascendant in our councils. How could they better gratify this, than by
raising a creature of their own to the chief magistracy of the Union? But the
convention have guarded against all danger of this sort, with the most provident
and judicious attention. They have not made the appointment of the President to
depend on any preexisting bodies of men, who might be tampered with beforehand
to prostitute their votes; but they have referred it in the first instance to an
immediate act of the people of America, to be exerted in the choice of persons
for the temporary and sole purpose of making the appointment. And they have
excluded from eligibility to this trust, all those who from situation might be
suspected of too great devotion to the President in office. No senator,
representative, or other person holding a place of trust or profit under the
United States, can be of the numbers of the electors.
Second, these
issues were directly addressed in a statement by Charles Pinckney in the U.S.
Senate in 1800. Pinckney had been a delegate to the Constitutional Convention
and, on July 26, 1787, had been the first delegate to raise the issue of
presidential qualifications in the debate. On March 25, 1800, Pinckney gave a
detailed explanation for the Electoral College, emphasizing that the rules
governing the Electoral College were designed so "as to make it impossible ...
for improper domestic, or, what is of much more consequence, foreign influence
and gold to interfere." The Founders "knew well," he said
that to give
to the members of Congress a right to give votes in this election, or to decide
upon them when given, was to destroy the independence of the Executive, and make
him the creature of the Legislature. This therefore they have guarded against,
and to insure experience and attachment to the country, they have determined
that no man who is not a natural born citizen, or citizen at the adoption of the
Constitution, of fourteen years residence, and thirty-five years of age, shall
be eligible....(11)
Thus, in
Hamilton's view, the problem of foreign influence was solved by the Electoral
College. He does not even mention the presidential eligibility clause. In
contrast, Pinckney sees a role for the eligibility clause, but this role is
clearly a secondary one. In particular, this clause promotes "attachment to the
country" but is not needed to guard against "foreign influence and gold."
Implications for H. J. Res. 88
A central
example of the genius of the founding fathers was their creation of a process
for electing the President that was insulated from, to use Hamilton's words,
"cabal, intrigue, and corruption," foreign or otherwise. In this context, the
restriction of presidential eligibility to natural born citizens appears to be a
carryover from the debate, early in the Convention, about qualifications for
legislators. Indeed, the Founder's substantive arguments about the strengths of
their constitutional protections against foreign influence all refer to the
Electoral College, not to presidential eligibility. Pinckney asserts that
limiting presidential eligibility to natural born citizens is a way to ensure
"attachment to the country," but he does not provide any justification for this
conclusion. Moreover, Hamilton does not feel the need to mention the
presidential eligibility clause at all in the Federalist Papers, and his most
relevant comment on the issue in the Constitutional Convention was to warn
against the creation of second-class citizens.
Two further
points about this debate are particularly important. First, the potential for
"cabal, intrigue, and corruption" is not just about foreign influence.
This point is made very clearly in the above statements by Hamilton and
Pinckney. The presidential election process has served this nation so well
because it minimizes the role of these factors from whatever source. This
process allows the American people, and the people they elect to the Electoral
College, to select a President who will serve the nation's interests. There is
nothing special about the potential for foreign influence in this process and no
need for a special provision to deal with foreign influence.
To put it
another way, no Presidential candidate will be successful unless he (or she) can
convince a majority of the American people that, among other things, he is
"attached to the country," not subject to foreign influence, not subject to
subversive domestic influence, and not corrupt. Some presidential candidates
face an extra burden to prove that they meet these conditions because of events
in their past that make voters suspicious. Similarly, presidential candidates
who are naturalized citizens would have to overcome suspicions associated with
the circumstances of their birth and with their life before they became
citizens. The clause limiting presidential eligibility to natural born citizens
adds nothing of substance to this process.
Second, the
distinction between natural born and naturalized citizens has no power
whatsoever to identify people who might be subject to foreign influence, or any
other kind of undesirable influence for that matter. To put it another way,
being natural born is neither necessary nor sufficient for "attachment to the
country." Millions of naturalized citizens have served this country with honor
and distinction in the government, in the military, and indeed in all walks of
American life. Moreover, it is my impression that most of the cases of treason
or governmental corruption that are discussed in newspapers or history books
involve natural born Americans who turned against their country. It is simply
preposterous to think that this nation can rule out or indeed even minimize the
possibility of undesirable presidential candidates, regardless of how
"undesirable" is defined, by limiting presidential eligibility to natural born
citizens.
In short,
there is no evidence that the clause limiting presidential eligibility to
natural born citizens played an important role in the Founders' scheme to
protect the presidential selection process from foreign influence. Instead, this
protection is provided by the Electoral College, and restricting eligibility to
natural born citizens does not, and indeed logically cannot, provide any
additional protection. This nation would do well to heed the warning against
second-class citizens that was voiced by Hamilton and seconded by Madison. The
presidential eligibility clause is an entirely pointless assault on the rights
of naturalized citizens. It is time to stand up for the fundamental principle of
equal rights for all citizens by eliminating this anachronistic provision.
Is Presidential Eligibility an
Appropriate Subject for a Constitutional Amendment?
Another
important issue is whether the denial of presidential eligibility to naturalized
citizens is an appropriate subject for a constitutional amendment. Recently, a
group called Citizens for the Constitution released a set of guidelines for
constitutional amendments. According to its website, this group "is an
action-oriented public education effort that is led by a non-partisan,
blue-ribbon committee of former public officials, scholars, journalists, and
other prominent Americans."(12)
Five of its guidelines refer to the substance of amendments; three others refer
to the process by which amendments should be enacted. This section asks whether
the amendment in H.J. Res. 88 fits the five substantive guidelines.
Guideline 1: Constitutional amendments should
address matters of more than immediate concern that are likely to be recognized
as of abiding importance by subsequent generations.
The principal
of equal rights for all Americans is at the heart of our democracy. The
Constitution and the Bill of Rights outline many rights that belong to all
Americans. The Fourteenth Amendment ensures that no state can restrict the
constitutional rights of any citizen. Overall, as pointed out by Citizens for
the Constitution, seventeen of the twenty-seven amendments to the Constitution
"either protect the rights of vulnerable individuals or extend the franchise to
new groups." By making all citizens eligible to be President, the amendment in
H. J. Res. 88 would be another step down this long and honorable path toward
equal rights for all.
As discussed
earlier, the right to run for President is not the most important right a person
can have, but it is a right of enormous symbolic importance. An amendment
declaring that all citizens can run for President (after reaching a certain age
and spending a certain amount of time in the country) would forcefully declare
this nation's commitment to equal rights and equal opportunity, and would
therefore be recognized "as of abiding importance by subsequent generations."
Over 30 years
ago a legal scholar, Charles Gordon, addressed the question of whether people
born overseas to United States citizens could be called "natural born" citizens
and hence be eligible to be President. After reviewing the legal history of the
clause and subsequent legislation, Gordon answers this question in the
affirmative. However, he also points out that the Supreme Court has never ruled
on the issue and that "that the picture is clouded by elements of doubt." This
analysis leads him to the following conclusion:
It is
unfortunate that doubts remain on an issue of such vital importance to many
Americans. We live in a fluid and ever diminishing world. The interests of our
nation and its people are constantly expanding and millions of Americans reside
for short or long periods in foreign countries. They are there in pursuit of
inspiration, enlightenment, profit, pleasure, repose or escape. All of these
have a right to retain their status as American citizens while they live abroad.
One can perceive no sound reason for shutting off aspiration to the Presidency
for the children born to them while they are temporarily sojourning in foreign
countries.(13)
With some
editing, this eloquent statement can be expanded to include the case of all
naturalized citizens.
We live in a
fluid and ever diminishing world. The interests of our nation and its people are
constantly expanding. Millions of Americans reside for short or long periods in
foreign countries, where their children may be born, or build their families by
adopting orphans born in a foreign country. Millions of other people come to the
United States from other nations and become productive, loyal citizens. All of
these people and their children should have full rights as American citizens.
One can perceive no sound reason for shutting off aspiration to the Presidency
for any American citizens, regardless of the path by which their citizenship was
obtained.
Guideline 2: Constitutional amendments should not
make our system less politically responsive except to the extent necessary to
protect individual rights.
An amendment
to ensure full American citizenship for naturalized citizens is a fortuitous
case that both expands individual rights and makes our system more politically
responsive by expanding the pool of people who can run for President. It does
not limit any policy choices or create barriers to political debate.
Guideline 3:
Constitutional amendments should be utilized only when there are significant
practical or legal obstacles to the achievement of the same objectives by other
means.
In many
cases, a problem of unequal rights can be addressed through administrative
procedures or legislation. This is not one of those cases. The exact distinction
between "natural born" and "naturalized" citizens is not entirely clear.(14)
However, it is clear that the Constitution makes many American citizens
ineligible to be President. A person who was born overseas to citizens of
another country, moves to the United States, and then becomes an American
citizen is clearly included in this category. Administrative procedures and
legislation cannot overrule a constitutional provision, so the only way to
change this situation is with a constitutional amendment. To put it another way,
the only way to ensure that all American citizens are eligible to be President
is through a constitutional amendment, such as the one in H.J. Res 88.
Guideline 4:
Constitutional amendments should not be adopted when they
would damage the cohesiveness of constitutional doctrine as a whole.
As pointed
out earlier, an amendment to make naturalized citizens eligible to be President
is very much in keeping with the equal rights tradition in the U.S. Constitution
and its amendments. This amendment would contribute to one key constitutional
doctrine -- equal rights for all citizens -- and damage none.
Guideline 5: Constitutional amendments should
embody enforceable, and not purely aspirational, guidelines.
In this case,
the enforcement issue is straightforward; after all, the amendment in H. J. Res.
88 simply eliminates a restriction on the rights of one group of citizens. All
that needs to be done to enforce it is to allow any naturalized citizen who
meets the age and residency requirements to run for President (and to assume the
office if he or she wins the election!).
Conclusion
Overall,
therefore, the amendment in H. J. Res. 88 clearly meets all five of these
guidelines. It addresses a matter of abiding importance, it makes our system of
government more politically responsive, it does not have an administrative or
legislative alternative, it reinforces the cohesiveness of constitutional
doctrine as a whole, and it is easy to enforce.
Summary and Conclusion
The principle
of equal rights for all citizens is one of the central themes of our democracy.
The constitutional provision that limits presidential eligibility to natural
born citizens is a direct assault on this principle, and it should be amended to
make all citizens eligible to be President. The amendment in H. J. Res. 88
accomplishes this objective and indeed would significantly expand the rights of
millions of Americans.
This
limitation on presidential eligibility was of secondary concern to the Founders,
who relied on presidential elections and on the Electoral College to limit
foreign and other undesirable influence. Today, this limitation is simply an
anachronism that undermines the principle of equal rights while serving no
useful purpose.
The amendment
in H. J. Res. 88 also unambiguously meets the thoughtful guidelines for
constitutional amendments laid out by Citizens for the Constitution. Most
importantly, this amendment would make an abiding contribution to the principle
of equal rights.
All it takes
to support H. J. Res. 88 is a belief in the principle of equal rights for all
Americans. I hope everyone at this hearing joins me in supporting this vital
principle. I hope you will all join me in supporting H. J. Res. 88.
1. John Yinger is a scholar who specializes in civil rights,
particularly discrimination in housing, and in American federalism, particularly
education finance. He is also the proud father of two adoptive children, one of
whom, even when old enough, will not be eligible to be President, at least not
under current law.
2. For a detailed discussion of this evidence, see John
Yinger, "The Origins and Interpretation of the Presidential Eligibility Clause
in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be
a 'Natural Born Citizen' and What Does this Clause Mean for Foreign-Born
Adoptees?", http://www.maxwell.syr.edu/~jyinger/facfa.html.
3. The Founding Fathers did not rule out foreigners as such.
In particular, they made anyone who was a citizen "at the time of the Adoption
of this Constitution" eligible to be President. This phrase applied to thousands
of foreign born citizens, including seven signers of the Constitution.
4. James Madison, Notes of Debates in the Federal
Convention of 1878 Reported by James Madison (Athens, OH: Ohio University
Press, 1966), p. 438.
5. Madison, op,. cit., p. 438.
6. John Jay was not a delegate to the Convention, but he was
a well-known figure who had been President of the Continental Congress.
Moreover, he would become an author, along with Alexander Hamilton and James
Madison, of some of the famous Federalist Papers, and he would later be
appointed as the first Chief Justice of the U.S. Supreme Court. It seems
reasonable to suppose that his letter carried some weight. See Richard B.
Morris, Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution
(New York: Holt, Tinehart, and Winston, 1985).
7. Max Ferrand, editor, The Records of the Federal
Convention of 1787, Revised Edition, Volume III (New Haven: Yale University
Press, 1937), p. 61. This letter can be found at the Library of Congress web
site: http://thomas.loc.gov. According to Charles Gordon, "Who Can Be President
of the United States: The Unresolved Enigma," Maryland Law Review, Vol.
28, No. 1 (Winter 1968), p. 5, this letter was sent to Washington and "probably
to other delegates."
8. Morris, op. cit., p. 191.
9. Actually, one delegate, Elbridge Gerry, was ready. On
August 13, Gerrry argued that eligibility for the legislature should be
"confined to Natives." Morris (op. cit, p. 191) believes that Gerry's concerns
were stimulated by Jay's letter. However, Gerry's position did not catch on with
the other delegates.
10. The Federalist Papers can be found on Library
of Congress web site: http://lcweb2.loc.gov/const/fed/fedpapers.html.
11. "The Records of the Federal Convention of 1787" (Ferrand's
Records), CCLXXXVIII, Charles Pinckney in the United States Senate, March 28,
1800, p. 386-7, available at: http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:10:./temp/~ammem_jwJ2::.
12. This site is: http://www.citcon.org.
13. Gordon, op. cit., p. 32.
14. See Gordon, op. cit.