(Bloomberg View) -- Conservative law professor Kevin Walsh, in an intriguing new article, makes the case for repealing the “natural born” citizenship requirement for the presidency. Next month it will be 150 years since such a proposal for a constitutional amendment was first put before Congress. Today it really makes no sense to discriminate against naturalized citizens when it comes to the presidency, assuming it ever did in the first place.
I can think of three further reasons that the timing is right. For one, between election cycles, it isn’t about possible candidates who were born abroad: Arnold Schwarzenegger or Jennifer Granholm or Ted Cruz (who probably isn’t barred anyway). It’s about the principle on its own.
For another, repealing the natural born requirement would free us once and for all of the ridiculous “birther” debate, which would be in effect repudiated as racist and xenophobic.
Above all, changing the Constitution to allow immigrants to become president would send a profoundly resonant pro-immigration image at a moment when it is desperately needed. Presumably, President Donald Trump would (or at least should) have a hard time opposing an amendment that would allow his wife, Melania, to run for president without anyone questioning her loyalty.
Article II Section 1 of the Constitution says that “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.”
There are competing views of what exactly the words “natural born citizen” meant to the founders. The conventional view is that it means anyone born in the U.S. or considered a citizen by birth under the naturalization laws that existed at the moment of his or her birth. That would cover Cruz, born in Canada to a father who was born in Cuba and an American mother.
Others think the term included only U.S.-born children plus children of U.S. officials born abroad. The legal historian Tom Lee argues compellingly that British law at the time gave the term a slightly broader meaning, including also children of U.S. businessmen born abroad on temporary sojourns.
The original purpose of the provision is also a bit obscure. On July 25, 1787, while the Philadelphia constitutional convention was in session, John Jay, who was not a delegate, wrote George Washington a letter offering the “hint” that the drafters “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.” Lee astutely suggests this was a reference to blocking the Marquis de Lafayette from becoming commander in chief.
Notably, Jay was focused on the commander in chief, not the president -- and he did not know that the two jobs would be fused into one. Most likely, Washington took Jay’s worry about the commander in chief to heart, and when the president was also made the commander in chief, the natural born requirement came along with it.
However created, the natural born requirement now deserves to go. Loyalty can be established by citizenship and residency. Adding birth is archaic at best, and flat-out discriminatory at worst.
It will necessarily be hard to make the change when one or the other party has a good potential presidential candidate born outside the U.S. and naturalized later. Politics will motivate the other party to drag its feet. Much better to act now, when no obvious naturalized candidate is in play.
The clause hasn’t done us any identifiable good in U.S. history. No dangerous potential candidate has been headed off by being born abroad.
But it has done a lot of harm -- in the form of the birther conspiracy about Barack Obama to which Donald Trump gave life, and which hasn’t disappeared. The whole premise of the theory was that Obama wasn’t qualified to be president because he was born abroad.
The falsehood of the charge notwithstanding, things would have been far better had there been no way to say Obama was barred from the presidency by foreign birth. The principle should be clear: All citizens are equal in the eyes of the law when it comes to the presidency.
Trump supporters might see a proposed amendment as a great opportunity to push a xenophobic, nativist agenda. But the national Republican Party could not afford to allow itself to be seen as so overtly anti-immigrant.
In any case, Democrats should push the issue -- now. It’s the right thing to do. And we might even improve the quality of our presidents over the long run.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
Constitutional historian Akhil Amar maintains that the framers were worried about a “foreign earl or duke” being brought to the U.S. and imposed as president by rich associates. But the worry was pretty fringe at the time. And in any case a U.S. residency requirement of years, contained in the very same sentence of the Constitution, would have taken care of that risk.
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