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The Pernicious "Natural Born" Clause of the Constitution:
Why Immigrants Like Governors Schwarzenegger and Granholm Ought to be Able to Become Presidents


Friday, Oct. 08, 2004

Michigan's Democratic Governor Jennifer Granholm was born in British Columbia, Vancouver, Canada, and thus is also ineligible.

Governor Granholm has eloquently explained the unfairness of the situation she, Arnold, and countless other could-be/would-be presidents face: "You can't choose where you are born, but you can choose where you live and where you swear your allegiance."

She, for example, graduated from University of California and Harvard Law, and has worked as an assistant U.S. Attorney and Michigan's Attorney General before becoming the state's chief executive. Yet for all her years here, and all her service to the United States, and the State of Michigan, when it comes to the Presidency, she is still deemed a foreigner.

Granholm is as American as apple pie. And Arnold is -- well, he's Arnold, Mr. Universe turned Mr. Hollywood, the embodiment of the American dream. Suffice it to say that these are two of the brightest stars in the contemporary political firmament, and it is a lowdown dirty shame that both are constitutionally precluded from seeking the American presidency.

The culprit is the natural born citizenship requirement of Article II, Section 1, clause 5. Appropriately, this has been described as the worst provision in the post-Civil War Constitution.

The "natural born" clause is an inappropriate boundary on a nation built by immigrants, a purposeless limit on the American dream. And in today's world, it is totally unnecessary, antiquated and arcane --an obsolescent constitutional feature whose main effect is to waste political talent and rule out some of the candidates with the very dedication that this nation most needs.

These are not accidental Americans; rather, they are people who have chosen this country and it system because they love it and want to be part of it. Foreign-born Americans are often better citizens than those who take it all for granted, and they bring to the body politic the diversity that is our strength.

The History Of The "Natural Born" Clause: Jay Convinces Washington

No one knows exactly what the nation's Founders had in mind when they wrote that "No person except a natural born Citizen … shall be eligible to the Office of President." (Emphasis added.)

However, the "natural born" Clause's origins have been traced to a July 25, 1787 letter from John Jay to the presiding officer of the Constitutional Convention, George Washington. Jay wrote, "Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen."

The hint clearly made sense to General Washington. While there was no debate, this presidential qualification was soon introduced by the drafting Committee of Eleven, and then adopted without any discussion by the Constitutional Convention.

Article II has a number of absolute qualifications: It also requires that presidents be at least thirty-five years of age and a United States resident for fourteen years. Accordingly, the natural born citizenship requirement has been treated as a similar absolute. And this requirement has remained the law of the land, notwithstanding the fact that the Founders' fear of undue foreign influence soon proved itself baseless.

A Requirement That Is Less Than Clear: Who Qualifies, Exactly?

It appears that this "natural born" qualification clause has resulted in every American president having been born within the territory of the United States. But often, particular candidates' "natural born" status has been debatable.

In 1968, when Michigan Governor George Romney was running for the presidency, it was not absolutely clear if he qualified. He was born to American parents, in 1907, but they were living in Mexico at the time. His grandparents had left the United States in the late Nineteenth Century. In 1912, when Romney was five years old, his parents returned to the USA. As Romney's candidacy faded, so did the issue.

Again in 2000, when Senator John McCain was seeking the presidency, the issue arose. McCain was born in the Panama Canal Zone to American parents (his father was an admiral). That fact sent a few scholars digging into musty, and less than clear, U.S. Supreme Court rulings. None, however, are truly on point.

In fact, there are conflicting holdings that only further compound the problem of understanding this clause. United States v. Wong Kim Ark(1898) indicates that foreign born children of Americans are not natural born. But in contrast, Weedin v. Chin Bow (1927) holds that "at common law the children of our citizen born abroad were always natural born citizen from the standpoint of this government."

It is the consensus of scholars, however, that foreign born children of Americans are natural born citizens. And that would mean that Romney and McCain would certainly qualify.

There is also general agreement that no foreign-born person who becomes a "naturalized" citizen can become president under Article II, unless it is amended. This consensus means that Schwarzenegger and Granholm are out.

When it comes to "naturalized" citizens, the only continuing debate is whether such a person can serve as "acting president" under the presidential succession statute.

The Acting President Problem: Far More Than a Hypothetical

There is nothing hypothetical about this question: It has come up repeatedly during the last half century.

The succession statute, first adopted in 1947, turns first to the Speaker of the House, and then the President Pro Tempore of the Senate, in the event of a vacancy of both offices of the president and vice president. Only after this, does it turn to turning to the president's cabinet - with the Secretary of State topping the list. That is known to raise some fundamental constitutional questions - for a member of Congress is not an "officer" under the Constitution.

FindLaw columnists Akhil Reed Amar and Vikram David Amar have addressed the many problems of the succession law in a prior column. (For more detail, readers should also consult their 1995 Stanford Law Journal article, which is cited and available as a pdf file inside the column.)

But one less-remarked problem with the succession statute is that several times, Secretaries of State have turned out to be foreign-born. President Eisenhower's Secretary of State Christian Herter was born in Paris; his parents were Americans, however. Given Eisenhower's bad heart, many "what ifs" were raised and examined about Secretary Herter's status to sever as acting president, if necessary. However, as noted above, given Herter's American parents, contemporary consensus would hold that someone in his position could indeed be President, acting or otherwise.

President Ford's Secretary of State, Henry Kissinger, was born in Germany, and he came to this country in 1938 at age 15. Similarly, President Clinton's Secretary of State, Madeline Albright, was born in Prague, Czechoslovakia, arriving in the United States in 1948 at age 11. Both are naturalized citizens - ineligible to be President, but would they be eligible to be acting President under the succession statute? That is the interesting question.

Fortunately, none of these Secretaries of State was ever called upon to serve as "acting president." Thus, the question of their authority to serve, under the succession statute, was never tested.

Presidential succession questions only intensify in importance in an era of terrorism - when an attack on both the President and Vice-President becomes all the more possible. One benefit of amending the Constitution to allow naturalized citizens to become President, is that it will resolve this tricky succession statute question as well. The last thing we need after a devastating terrorist attack would be constitutional ambiguity.

It's High Time to Amend The Natural Born Clause

The fact that public servants like Henry Kissinger, and Madeline Albright can serve as Secretary of State, but not President of the United States, is inane. And the fact that Governors like Arnold Schwarzenegger and Jennifer Granholm can't run for president is outrageous.

It will never be known how many potentially great presidents have never even aspired to the office because of the constitutional prohibition. Show me a person who believes that the natural born qualification clause should remain in the Constitution, and I will show you a bigot, pure and simple.

What is most remarkable about this provision is that it has taken so long to remove it. There is hope, however.

This week the Senate Judiciary Committee held hearings on a constitutional amendment that would remove the naturalborn qualification. On July 10, 2003, Senator Orrin Hatch (R. UT) introduced the proposed amendment as Senate Joint Resolution 15.

His proposal did get a day of hearings (which are available online at the Judiciary Committee's site, and include a statement by FindLaw columnist Akhil Reed Amar). It is not clear how seriously this matter - which has been raised in a rump session - is being taken. But even having the amendment considered is encouraging.

The Hatch proposal is very simple:

SECTION 1. A person who is a citizen of the United States, who has been for 20 years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States.

SECTION 2. This article shall not take effect unless it has been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States not later than 7 years from the date of its submission to the States by the Congress.

There is no real opposition to this proposed constitutional amendment. Still, it will be very difficult to get it adopted. There is a reason our constitution has only been amended twenty-seven times.

But suppose a team like Schwarzenegger, Granholm, Kissinger and Albright joined forces -- not for themselves but for others that will follow - in lobbying for this much-needed Amendment. If so, the attention and action necessary to change the law might be mustered.

It is certainly long past time to remove the "natural born" clause from our Constitution. As long as it persists, our Constitution conflicts with our own Statute of Liberty - which welcomes immigrants wholly, while the Constitution shuns them for our highest office in the land.

Author's Note: In gathering these thoughts I am indebted to the scholarship of Christina S. Lohman, "Presidential Eligibility: the Meaning of the Natural-Born Citizen Cause," in the Gonzaga Law Review (2000/2001), and James C. Ho, "Unnatural Born Citizens and Acting Presidents," in Constitutional Commentary (Winter 2000).

John W. Dean, a FindLaw columnist, is a former counsel to the president

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