It’s Time To Eliminate The Presidency’s ‘Natural Born Citizen’ Requirement
The requirement that the President be a "natural born citizen" is a historical anachronism that has outlived its usefulness or necessity.
Last week, The Volokh Conspiracy published a series of pieces arguing in favor of the idea of amending the Constitution to eliminate the requirement that the President by a “natural born citizen” of the United States. The arguments are all fairly detailed and not really capable of being fairly summarized here, so I’ll just commend them to your attention. The thread consists primarily of posts from University of Richmond Law School Professor Kevin Walsh which can be read here, here, here, and here as well as commentary from Ilya Somin and Eugene Volokh. Each of the posts makes the case for eliminating the requirement that the President be a “natural born citizen,” a requirement that has existed since the Constitution was drafted, and which differs significantly from the requirements necessary to serve in any other branch of government at the Federal or state level. It is, as I argue herein, a rather compelling argument that seems on its face hard to refute.
When the Constitution was drafted, the concern was that men with allegiances to foreign princes, most of whom led nations far more powerful than the newly formed United States of America, would attain positions of power. Because of that, the Constitution required that a member of the House of Representative have been a citizen of the United States for at least seven years, and that a Senator have been a citizen for at least nine years. In the case of the Presidency, only someone actually born in the United States would be considered eligible for the office.
Times have changed significantly since 1789, and the dangers to the United States of a naturalized citizen who could possibly attain the Presidency but for the “natural born citizen” provision are much less than they used to be. Occasionally there have been discussions about the fact that certain candidates who would be ineligible to run for the White House because of this restriction, most recently Arnold Schwarzenegger, although his ultimately failure as Governor of California certainly makes it far less likely that he’d have any future success in politics in California. At this point, a President who was not born in the United States is not a serious threat to the Republic.
In his initial post, Walsh proposes that the relevant provision of Article II that sets forth the necessary qualifications for President be amended as follows:
This coming Friday May 18 marks the 150th anniversary of the first introduction in Congress of a proposed amendment to the Constitution that would excise the “natural born Citizen” presidential eligibility requirement. This 1868 proposal, introduced by Irish-born Congressman William Erigena Robinson (D-NY), provided that Article II, Section 1, Clause 5 be amended so as to read:
“No person except a Citizen of the United States shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.”
In strikethrough form:
“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; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.”
Walsh links to a law review article in which he advocates in favor of resurrecting and ratifying this proposed amendment.
As a general idea, it strikes me that Walsh’s proposal is one that makes sense. As I noted above, the “natural born citizen” clause was placed in the Constitution primarily to ensure that someone who may have allegiance to another nation did not rise to become the most powerful individual in the American government. At the time it was drafted, there was a good reason to believe that this was a concern considering the relative weakness of the new nation and the rather obvious interest that the nations of Europe had at the time in the natural resources of the New World. Additionally, the Constitution was drafted at a time before the United States became a nation of immigrants not only from the British Isles but also from mainland Europe, Latin America, and Asia. Over the past two centuries, we’ve seen how immigration has helped to change and strengthen the nation and the eagerness with which immigrants who have become citizens have embraced their new status as Americans. In addition to being unnecessary, the requirement that only someone who was actually born in the United States, or who had at least one parent who was an American citizen at the time that they were born, should be permitted to become President seems unfair and unnecessary. This is especially true considering that such persons are already eligible to become Congressman, Senators, and Federal Judges as well as to serve in various positions in the state and local government. After nearly 230 years, it seems long past time to change the Constitution to allow these people to serve in the highest office in the land if they can manage to win an election.
One could argue, I suppose, that we ought to be careful about opening the Presidency to anyone who is a citizen without regard to how recently they may have acheived that status via naturalization. To address that issue, it might be advisable to be slightly more conservative in how we change the elig
At the same time, though, it seems unwise to open the Presidency to just anyone who happens to have become a naturalized citizen. Rather than eliminating the requirement, it would be better to change it to be more in line with the citizenship rules for Congress, like this perhaps:
No person except one who has been a citizen of the United States for at least twenty years shall be eligible to the office of President of the United States or Vice-President of the United States; neither shall any person be eligible to either of these Offices who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.
In strikethrough form:
No person except
a natural born Citizenone who has been a citizen of the United States for at least twenty years, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; the office of President of the United States or Vice-President of the United States; neither shall any Person be eligible to that Officeeither of these Offices who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
As with the amendment that Walsh proposes, this proposal would eliminate both the “natural born citizen” requirement and the language about persons who were citizens at the time of the adoption of the Constitution, which is an anachronism since the Constitution has been in effect since 1789. Unlike Walsh’s proposed Amendment, this proposal would provide that only someone who has been a citizen for an extended period of time shall be eligible to serve as President. The added language would extent these same requirements to the office of Vice-President, although that is arguably already the case given the fact that the final sentence of the 12th Amendment provides that “ no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” These revisions to the appropriate section of Article II, though, would make that requirement clearer.
The twenty year citizenship requirement is just a proposal, of course, and one could make the case for a somewhat shorter period of time. As noted above, the Constitution presently requires that a Member of Congress have been a citizen for at least seven years, and that a Senator have been a citizen be a citizen for at least nine years. Given that Congressmen and Senators tend to be younger than Presidents at least in their first terms in office, the shorter requirement for citizenship makes sense. For a President, the requirement should be a bit longer. If not twenty years, then perhaps something slightly shorter such as fifteen years, but in any case the change is one that would open the door to the Presidency to a class of people who have been excluded for too long and without good reason.
Realistically speaking, of course, it’s unlikely that a contemporary effort to pass an Amendment such as this would be any more successful that the effort in 1868 was. Given the current antipathy toward immigration among Republicans especially, making the case that non-native Americans should be eligible to be President at some point isn’t one that’s likely to resonate and certainly it’s unlikely to get the support of two-thirds of the members of both houses of Congress. For similar reasons, it seems unlikely at the current time that one could put together a coalition of three-quarters of the states to ratify such an Amendment should it get through Congress. Notwithstanding those difficulties, though, it strikes me that this is an idea that ought to be seriously considered and debated. For the most part, the “natural born citizen” clause has become something of an anachronism. It’s time we got rid of it.