So now we need to get rid of the "natural born citizen" test?

As with every election cycle, suggestions about amending the Constitution are all the rage these days. Whether you’re looking for a full blown Constitutional Convention or some individual tweaks like the balanced budget amendment, there are plenty of folks who are eager to take the founding documents out for a spin and bring them more in line with the 21st century. But recent national discussions over the qualifications of candidates ranging from Barack Obama to Ted Cruz to John McCain have WaPo writer Ruth Marcus up in arms and she thinks it’s time to remove one of the only two qualifications to be President.

Donald Trump has us all spun up in a bogus debate over the meaning of what constitutes a “natural born” citizen and whether Canadian-born Ted Cruz is thereby ineligible for the presidency. The conversation we should be having is about how stupid and cruel the requirement is in the first place, and how the Constitution should be changed to abolish what is arguably its worst remaining provision.

Our founding document contains many clauses that may be archaic and irrelevant but are nonetheless inoffensive. The problem with the natural-born-citizen test is that it is both unnecessary and harmful — not just a relic but an insult to the nearly 20 million Americans who are citizens by virtue of naturalization.

“This restriction has become an anachronism that is decidedly un-American,” Sen. Orrin Hatch (R-Utah), said in offering a constitutional amendment to repeal it more than a decade ago.

I’m not immediately opposed to the idea of amending the Constitution. After all, the Founders put in provisions to do precisely that with an eye toward the possibility that they may have missed something or that conditions in the future might require adjustments. But they also made it a time consuming, difficult process which would require a clear, sustained mandate from most of the nation. It should be hard to amend the Constitution, and we should have a very clear and pressing reason before attempting to do so. Does removing the requirement for presidential aspirants to be a natural born citizen qualify?

Looked at in a vacuum, I’ll freely admit that the author’s argument has some populist appeal. After all, don’t we already give naturalized citizens all of the rights, responsibilities and benefits which come hand in hand with being born and raised in the country? I’m hard pressed to think of any area where restrictions are placed on the naturalized except for the ability to run for President. But that’s really the point here. With that one, single exception, the naturalized aren’t really a “second tier” of citizens. There’s only that single job which they can’t aspire to, and in practice that’s true of pretty much everyone else in the country as well.

More to the point, the Founders had a reason for putting the requirement in there. Being President isn’t just another job. It’s the person who will take the helm and lead the nation, as well as our military. The authors of the Constitution didn’t want to risk someone who might harbor a deep seated loyalty to another nation landing in a position of such power. But Marcus argues that any such danger has long since passed.

That risk, Sarah Helene Duggin and Mary Beth Collins explained in a 2005 article in the Boston University Law Review, is no longer present. “Any historically legitimate justification for the proviso faded away long ago,” they wrote. “Fortunately, our independence from England is now secure, and the United States has grown from a fledgling former colony into the most powerful nation in the world.”

Maybe. Then again, maybe not. Is that a chance we really want to take? If the vast majority of Americans agree then we could surely make such a change, but I’m content to leave it to the wisdom of the Founders and keep the status quo. But that doesn’t mean that some work couldn’t be done in this area. For one thing, as I’ve argued here before, it would be nice to have the Supreme Court take a look at our federal naturalization laws, specifically at the definitions of who qualifies for citizenship at birth, and give us some definitive clarification.

Over the holiday break I was sent a link to an article from the Harvard Law Review which attempts to claim that everything is already clearly defined.

The Constitution directly addresses the minimum qualifications necessary to serve as President. In addition to requiring thirty-five years of age and fourteen years of residency, the Constitution limits the presidency to “a natural born Citizen.”1×1. U.S. Const. art. II, § 1, cl. 5. All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.2×

While it may sound a bit wonky, take a moment to read through that article if you find the subject of interest. In one key area I agree with the authors: there is clearly a difference between a natural born citizen and a naturalized one and the Constitution is clear as to which can or cannot run for the presidency. But where I think the authors go for a bit of a reach is in switching from what the Founder wrote to what, “Congress has made equally clear…”

Those are two different things. Congress has made any number of things clear over the past couple of centuries and they have, on occasion, gotten it wrong and had to be corrected by the Supreme Court. That’s never happened on this question. Some aspects our current laws regulating this matter seem obvious. If both parents of a child are citizens who are serving (or even just traveling) abroad when mom goes into labor and have every intention to return home, few would question that the child is a citizen and the Founders would, I think, heartily agree. But what about when only one is a citizen? More to the point, how is it that fourteen years of presence in the country is good enough, but thirteen is not? Is that what the Founders meant? (I’m not saying it’s not… just that they weren’t very clear on that point.) And how about if the citizen parent has “taken an oath” to another country when becoming a citizen there? Is their US citizenship revoked automatically as implied in current law?

The point is, there are obviously some questions out there on the table. It would be nice to get a full SCOTUS review and nail all of this down once and for all. Otherwise this is going to keep coming up over and over again.


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David Strom 5:21 PM on June 02, 2023