The Constitution’s “natural-born” defect

Previous essays in this series have addressed fundamental flaws in the Constitution: the ill-defined nature of presidential powers, the malapportionment of the Senate, the Electoral College. But I wish to draw my readers’ attention to a less central, but still important defect: the requirement, stated in Article II, Section 2, that presidents be “natural-born” citizens.

While it may appear to be a minor issue, this qualification relies on an ill-defined term that leaves some Americans in doubt regarding their eligibility to serve as president. It also bestows a mark of shame on millions of loyal Americans and deprives all of us of the potential service that would be given by otherwise able and qualified.

The “natural-born” clause was added to the Constitution during the closing weeks of the Convention, after the other qualifications had already been approved. There was no debate on this provision, forcing future scholars to guess at the delegates’ intent. The most common explanation has been that they feared that a foreign nation might send an agent to insinuate his way into American politics.

In July 1787, John Jay (then secretary of foreign affairs under the Articles of Confederation) wrote to George Washington that only a “natural born” citizen should be allowed to become president, arguing that this requirement would provide a check on the ability of foreigners to influence the young republic.

There is no direct evidence that Jay’s letter influenced the writing of the Constitution, but scholars have tended to see it as the most likely means by which the “natural born” phrase entered the convention’s deliberation. (Alexander Hamilton also proposed a draft plan for the Constitution that included language declaring that only those born as citizens could serve as president but did not use the phrase “natural born.”)

Both Hamilton’s draft and the Constitution included language declaring that anyone who was an American citizen at the time of the Constitution’s adoption would automatically be eligible to serve as president, regardless of place of birth.

Fear of a foreign president

The delegates had some historical grounds for fearing that foreign powers might try to influence American politics. During the waning years of the Kingdom of Poland, which had an elective monarchy, outside powers (particularly Russia) intrigued in the selection of the king. Those same powers would soon gobble up Poland. There were various rumors circulated in the colonies that this or that European aristocrat might be plotting to gain power in the United States.

The term “natural born” had its roots in English common law. Those born on English soil were considered automatically English subjects, even if their parents were foreigners. But there was also centuries of precedent and law supporting the “natural born” status of those born outside England to English-subject parents. This doctrine was confirmed in the Naturalization Act of 1790, which declared the foreign-born children of US citizens to be “natural born” citizens. But subsequent laws altered this principle just enough to confuse.

“Birthright citizenship” was confirmed in a series of court cases in the nineteenth century and was explicitly stated in the Citizenship Clause of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (This overturned Dred Scott’s ruling that African Americans were not citizens).

In US v. Wong Kim Ark (1898), the Supreme Court declared that Wong Kim Ark, the US-born son of Chinese-citizen parents, was a “natural born” citizen despite his parents’ inability to become citizens under the shameful law then in effect.

Naturally born eligible?

The “natural-born” clause has had a troubled history. Most notably, there have been several “gray areas” of eligibility. These have included:

· US citizens’ children who were born abroad

· US citizens born in unincorporated territories such as Puerto Rico

· Native Americans born on reservations

· Foreign-born children adopted by US parents

It is worth noting that two categories of US citizens have not faced serious dispute in terms of their eligibility to serve as president. Under common law, the 14th Amendment, and Wong Kim Ark, those born in the United States to noncitizen parents are considered natural-born citizens. And naturalized citizens have never been deemed natural-born.

Over the years, several (announced or potential) presidential candidates have been accused of not being natural-born:

· President Chester Alan Arthur’s father was born a British subject in Ireland, later moved to Canada, and finally came to the United States. His mother was a US citizen, although she lived in Canada for a time. Arthur’s political opponents claimed variously that Arthur was born in Ireland or in Canada. Arthur’s father did not become a naturalized citizen until Arthur was fifteen years old. Had Arthur been born outside the United States, under the law in effect at his birth, he would not be considered a “natural born” citizen, given that his father was not a US citizen. Arthur always asserted that he was born in Vermont and no one was able to prove otherwise.

· Charles Evans Hughes’s father was also born a British subject; he never became a US citizen. When he became the Republican presidential nominee in 1916, a prominent Democrat alleged that Hughes was not a natural-born citizen, despite being born in the United States.

· Christian Herter, a onetime governor of Massachusetts and later secretary of state under Eisenhower, was discussed as a potential running mate for Ike in 1956 (to replace Nixon) and as a possible Republican presidential candidate in 1960. Herter was born in Paris to expatriate American parents. (The same was true for Sen. Lowell Weicker, who toyed with a run in 1980).

· Barry Goldwater, the 1964 Republican presidential nominee, was born in Arizona Territory three years before it became a state.

· Michigan Gov. George Romney was born in Mexico to US citizen parents who had left the country to escape a federal prohibition on polygamy. He sought the Republican presidential nomination in 1968 but withdrew long before the convention.

· John McCain was born in the Panama Canal Zone to US citizen parents. In 2008, the US Senate passed a nonbinding resolution declaring him to be a natural-born citizen.

· Barack Obama was born in the United States to a British-subject father and a US-citizen mother. While his natural-born status was never actually in dispute, that did not prevent the growth of a vast conspiracy-theory industry.

· Ted Cruz was born in Canada to a US citizen mother and a Cuban refugee father (who was also a legal resident of the United States). His parents were living in Canada temporarily. Cruz was considered a dual US-Canadian citizen at birth; he later disavowed his Canadian citizenship. Nonetheless, he also was subjected to charges that he was ineligible to serve as president.

The courts have never actually ruled on the eligibility of a presidential candidate based on citizenship status. Most of these challenges now appear silly or dishonest (although people at the time seemed to have taken the doubts about Romney’s “natural born” status seriously). But the possibility that the courts might rule on the eligibility of a presidential candidate to serve remains.

There is also the concern of a constitutionally ineligible or “gray area” person serving in the presidential line of succession: While the 12th Amendment specifically requires vice presidents to be constitutionally eligible to serve as president, there is no such requirement for members of the Cabinet. Indeed, several have either been naturalized or otherwise born abroad.

Let Americans choose

There are about 20 million naturalized citizens in the United States. Americans are denied the ability to judge qualifications of these fellow citizens to serve in the nation’s two highest offices. While the number of naturalized citizens who have served in other top political positions is not large, it is not trivial. They include Secretaries of State Henry Kissinger and Madeleine Albright, former California Gov. Arnold Schwarzenegger, and former Michigan Gov. Jennifer Granholm.

The “natural born” clause is different from the other qualifications for office. After all, most people who are not yet 35 years old will someday turn 35. If someone has not resided in the United States for 14 years, they can always stay a little longer. But naturalized citizens cannot become “natural born,” no matter how they seek to prove their loyalty.

Indeed, citizenship status seems a most imperfect proxy for loyalty to country, given that hundreds of naturalized citizens have won the Medal of Honor, while spies Robert Hanssen, Aldrich Ames, and Alger Hiss were all “natural born.” The president most suspected of ties to a foreign power is indisputably “natural born,” but he rose to power based on promotion of a conspiracy theory that claimed his predecessor was not. Why not let the American people judge?

How we can remedy this situation? Periodically, statutes have been proposed to rectify some of the “gray areas;” most often, to declare explicitly that the foreign-born children of US citizen parents are “natural born” citizens. But the clause’s most serious defect is the prohibition on naturalized citizens serving as president. That probably can only be fixed with a constitutional amendment.