Natural Born Killjoy By Akhil Reed Amar
Pirates of the Potomac By Doron Ben-Atar
The Eichmann Precedent By Leora Bilsky
Natural Born Killjoy
Why the Constitution won't let immigrants run for president, and why that should change.
GOVERNOR JENNIFER GRANHOLM of Michigan is a rising star in the Democratic Partythe kind of leader who might shine as the party's nominee for the vice presidency this year or who might plausibly contend for the top spot in a future presidential election.
At the age of 45, she has already become the chief executive of a populous state, a traditional presidential launching pad. George W. Bush came to the Oval Office by way of a big-state governorship, as did two of his four most recent predecessors and, before that, 7 of the 18 other men elected president since the Civil War.
Granholm, a Harvard Law School graduate and once an aspiring Hollywood actress, is also brilliant and telegenic. She's a principled civil libertarianat Harvard, she was editor-in-chief of the prestigious Civil Rights-Civil Liberties Law Reviewwith nicely counterbalancing law enforcement credentials, having served as a federal prosecutor and then as Michigan's attorney general. The first person in her family to attend college, Granholm is also, of course, a woman, whose ascent to the White House would redeem America's image as a land of genuine equal opportunity.
There's only one problem. Though Granholm has lived in this country since she was 4 years old, she is not a "natural born" United States citizen and is thus constitutionally ineligible to be either president or vice president. So much, it seems, for equal opportunity.
And then of course there's the recently elected governor of California, Republican Arnold Schwarzenegger, who, like Granholm, is a longtime American citizen, but who is likewise ineligible for the presidency because he too was born under the wrong flag. (Granholm was a Canadian at birth; Schwarzenegger, an Austrian.)
In a land of immigrants committed to the dream of equality, the Constitution's natural-born clause seems, well, un-American. Why shouldn't we open our highest office to those who have adopted this country as their own and have proved their patriotism through decades of devoted citizenship?
THIS IS HARDLY JUST AN ACADEMIC QUESTION. Last July, Utah senator Orrin Hatch, the powerful chairman of the Senate Judiciary Committee, unveiled a proposed constitutional amendment that would extend presidential eligibility to those who have been naturalized citizens for 20 years. In electing Schwarzenegger, Californians added several million new reasons to take the Hatch proposal seriously.
Legal traditionalists will doubtless, and with good reason, counsel their fellow citizens to think twice before altering the founders' system. But the framers themselves created an amendment process as part of their legacy to us. A close look at why they inserted the natural-born clause can help us decide whether its original justification still makes sense today.
In general, the U.S. Constitution was, by the standards of its time, hugely pro-immigrant. Under the English Act of Settlement, which lasted from 1701 to 1870, no naturalized subject in England could ever serve in the House of Commons, the House of Lords, the Privy Council, or a wide range of other offices. The Constitution repudiated this tradition across the board, opening the House, the Senate, the cabinet, and the federal judiciary to naturalized and native citizens alike.
Seven of the 39 signers of the Constitution in Philadelphia in 1787 were foreign born, as were thousands of the voters who helped ratify the Constitution. Immigrant Americans accounted for 8 of America's first 81 congressmen, 3 of our first 10 Supreme Court justices, 4 of our first 6 secretaries of the treasury, and 1 of our first 3 secretaries of war.
Only the presidency and vice presidency were reserved for citizens by birth, and even this restriction was softened to recognize the eligibility of all immigrants who were already American citizens in 1787. They had proved their loyalty by coming to or remaining in America during the Revolution.
Why, then, did the generally pro-immigrant founders include a provision in the Constitution that would exclude immigrants from the presidency? The rule seems anti-egalitarian if one imagines a poor boy coming to America and rising through the political system by dint of his own sweat and virtue only to find himself barred at the top. But in 1787, the more plausible scenario was that a foreign earl or duke would cross the Atlantic with immense wealth and a vast retinue and use his European riches to buy friends and power on a scale that virtually no American could match. No such grandees had yet come to our shores, but it made sense to anticipate all the ways that European aristocracy might one day try to pervert American democracy.
Several months before the Constitution was drafted, one prominent American politician, Confederation Congress president Nathaniel Gorham, had apparently written to Prince Henry of Prussia, a brother of Frederick the Great, to inquire whether the prince might consider coming to the New World to serve as a constitutional monarch. Though few in 1787 knew about this feeler, the summer-long secret constitutional drafting sessions in Philadelphia did fuel widespread speculation that the delegates were working to fasten a monarchy upon America. One leading rumor was that the bishop of Osnaburgh, the second son of George III, would be invited to become America's king.
The natural-born clause clearly gave the lie to such rumors and thereby eased anxieties about foreign nobility. The founders also added a line stating that any presidential candidate must also have lived in this country for 14 years, but that alone wouldn't have been enough to quiet people's fears.
These anxieties had also been fed by England's 1701 Act, which, though it banned foreigners from all other posts, imposed no native-birth requirement on the head of state himself. In fact the 1701 Act explicitly contemplated foreign-born future monarchsfrom the German House of Hanover, in particular. By 1787, this continental royal family had produced three English kings named George, only the third of whom had actually been born in England.
In repudiating foreign-born heads of state, the framers meant to reject all vestiges of monarchy. Their general goal was to create an egalitarian republic.
EVEN FOR A LEGAL TRADITIONALIST, then, the case for the Hatch Amendment would appear strong. Americans today can best honor the founders' generally egalitarian vision by repealing the specific natural-born rule that has outlived its original purpose.
Nor would the Hatch Amendment, if successful, be the first time that Americans have tweaked the founders' rules of presidential eligibility. Though the Constitution never specifically said that only men could be president, and it never specifically banned women from running the way it banned those under 35, it did consistently use the words "he" and "his" and never "she" or "her"to describe the president. The framing generation debated at length whether presidents might come to resemble English kings, but said nary a word about queens. (The framers of course were intimately familiar with queensVirginia was named after one, and let's not forget the College of William and Mary.)
A plausible argument might have been made in the 1800s that only men were eligible for the presidency. But surely the 19th Amendment, ratified in 1920, ended all debate on that issue by granting women the explicit right to vote and the implicit corresponding right to be voted for. In effect, that amendment required that the word "he" in the original constitutional clauses dealing with the president would henceforth be read to mean "he or she."
Of course, had the original Constitution explicitly barred female presidents, equally explicit repealing words would probably have been necessary. The 1971 amendment giving 18-year-olds the vote left intact explicit rules requiring congressmen and presidents to meet higher age thresholds. Still, what the suffragist movement did for prospective female officeholders, Orrin Hatch is now proposing to do for naturalized citizens.
It's still too early to tell whether Hatch's amendment will go anywhere. Amending the Constitution is notoriously difficult and requires either calling a new constitutional convention, which has never been done, or passing a bill that earns at least a two-thirds majority through both the House and the Senate and then is approved by three-fourths of all the states. Since 1805, the nation has added a new amendment less than once a decade, on average.
But with Granholm and Schwarzenegger presiding over their respective big-state capitals, both political parties have strong incentives to support the Hatch Amendmentnot only to boost the prospects of their leading political lights, but also to burnish the nation's general commitment to equality and the American dream. America should be more than a land where everyone can grow up to be governor.