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The contemporary presidency: constitutional reform and the presidency: the recent effort to repeal the natural-born citizen requirement.

Article II, Section 1, clause 5 of the U.S. Constitution states, "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." Recently, interest has grown in amending this provision to widen presidential eligibility to include naturalized citizens. Members of Congress have introduced amendments in both the House and Senate and held hearings on them, some academic books on constitutional reform have advocated the revision, media outlets such as the Los Angeles Times and The Economist have editorialized in favor of it, and a Web site was created and spot ads run on television in California during 2004 to increase backing for it. At the first Republican presidential debate in May 2007, moderator Chris Mathews asked the candidates whether they would support amending the Constitution to allow naturalized citizens such as Florida senator Mel Martinez or California governor Arnold Schwarzenegger to run for president. While hardly representing a groundswell of support, the proposal sustained enough interest to start creeping closer to the political agenda in 2004, but since that time, it appears to have lost much of its political momentum.

The Context: A Formally Inflexible Constitution

In his comparative study of democracy, Arend Lijphart (1999, 187) finds that federal states, besides dividing powers between the levels of government and often employing strong bicameralism in which one legislative chamber represents the subnational units, usually have difficult constitutional amendment procedures. This constitutional inflexibility helps protect the subnational units by giving them something close to a minority veto against fundamental changes in the political order. Article V of the U.S. Constitution reflects that intention, especially when, after describing the regular amendment procedure, it guarantees that "no state, without its consent, shall be deprived of its equal suffrage in the Senate." To alter the Senate, which overrepresents small states and must approve amendments, thus requires unanimity. Among other federal states, the German constitution requires a two-thirds majority of both legislative chambers, one of which overrepresents the smaller lander, to vote for constitutional amendments. In Canada, though the two legislative chambers pass constitutional amendments by a simple majority vote, two-thirds of Canada's provinces must ratify them, with the ratifying provinces representing at least 50% of the total population of Canada.

The U.S. amendment procedure outdoes that of other federal states such as Germany or Canada by first requiring two-thirds of each chamber of Congress (or two-thirds of the states requesting a convention to amend the constitution) to approve an amendment, and then requiring three-quarters of the state legislatures (or three-quarters of the special state ratifying conventions) to ratify the amendment. This formula makes the U.S. Constitution the world's most difficult to amend, now that the more rigid constitution of Yugoslavia has disappeared (Levinson 2006, 204). All amendments except the Twenty-first Amendment have utilized the two-thirds of Congress and three-quarters of the state legislatures formula. With one party rarely enjoying a two-thirds majority in both the House and Senate, and party discipline often imperfect, the two-thirds requirement effectively screens most potential amendments from passage. James Sundquist notes that because every state except Nebraska has a bicameral legislature, the ratification formula actually enables 13 of the 99 state legislative chambers to block an amendment, which increases the ratification threshold from 75% to 88%. He concludes that the extraordinary majorities necessary to enact a constitutional amendment gives "any significant political bloc ... an effective veto" (Sundquist 1992, 17). Yet almost any amendment that involves a nontrivial change will strike some group or set of states as disadvantageous and likely engender their opposition. Larry Sabato cites a 2004 CQ Weekly study indicating that in the previous 40 years, of the more than 3,000 amendments proposed in Congress, only six emerged for the states to ratify, and none has made it to the states since 1978 (Sabato 2007, 8). The failure of the District of Columbia Voting Rights and Equal Rights amendments to reach the necessary threshold of 38 states in the 1970s and 1980s reflects the obstacles that remain even after an amendment emerges from Congress.

Besides reflecting a desire to protect or reassure the subnational units in a federal system, James Madison explained in Federalist No. 49 that the framers designed the difficult amendment procedure to increase the Constitution's legitimacy and to help stabilize politics. While in that essay, Madison criticized Jefferson's proposal for a commission on constitutional revision that two of the three branches could convene to maintain the proper separation of powers, his arguments apply more generally to a defense of a difficult amendment procedure. Madison wrote that "as every appeal to the people would carry the implication of some defect in the government, frequent appeals would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability" (Hamilton, Madison, and Jay 1961, 311). Even if the benefits outweigh the costs of a particular constitutional reform, Madison suggested that too many changes might carry a hidden cost in lessening people's attachment to the regime. Further, Madison worried that frequent constitutional debates would produce very contentious politics. Because a constitution embodies the fundamental rules of the political game, constitutional politics can have very high stakes--witness Canada's attempts at constitutional revision in the 1980s to accommodate Quebec separatism. Madison feared that popular passions rather than reason would dominate such debates. Better to leave the rules of the game largely unchanged, and contest policy choices within those rules, than to regularly dispute the basic framework of politics.

Madison's prediction that, over time, a rarely amended constitution would gain support and even veneration that would help legitimate the government and stabilize U.S. politics seems at least partly borne out. Though it did not prevent secession and civil war, the Constitution has achieved semisacred status in American political culture, with a museum devoted to it in Philadelphia and an original copy at the National Archives in Washington, D.C., a major tourist attraction. When the Committee on the Constitutional System met in the 1980s in anticipation of the Constitution's bicentennial and developed a set of constitutional reform proposals to address the problem of government inefficiency, their recommendations to adopt a more parliamentary-style system received little response. With its 200-plus years in operation without even 20 separate formal changes (the first 10 amendments came as a package, and the Twenty-First canceled the Eighteenth), it is hard to overcome the "if it ain't broke, don't fix it" mentality. Even the election of a president who lost the popular vote in 2000 did not lead to a viable constitutional amendment to abolish the Electoral College. (1)

Regarding Madison's concern about exciting political passions and delegitimating government through constitutional change, allowing naturalized citizens to run for president would not alter any of the basic structures of government. All the powers of the president would remain exactly the same, and in that sense, this proposal would have less political impact than changes such as the Twenty-second Amendment, which limited the president to two terms. It would echo several amendments that broadened suffrage, in this case removing a qualification for officeholding rather than voting. It also would potentially broaden voters' choices for the presidency. Americans already elect naturalized citizens to offices such as governor or Congress, and presidents appoint them to cabinet and executive office positions (e.g., Madeleine Albright, Henry Kissinger, Elaine Chao, Zbigniew Brzezinski), where they stand in the line of succession to the presidency. Even though this would seem to be a relatively minor change, consonant with the general democratizing trend of American political culture over two centuries, such a constitutional revision proposal likely would generate some of the passionate conflict that Madison warned against. Certainly Schwarzenegger's surprise election in 2003 and his high initial approval ratings in California in 2003 and 2004 created interest in constitutional reform, as many people became intrigued by the possibility he might become president. Schwarzenegger addressed the Republican National Convention in 2004 with a well-received speech, and some felt his campaigning for George W. Bush in Ohio in 2004 helped Bush carry that key swing state. Senator Orrin Hatch, a friend of Schwarzenegger's and chair of the Senate Judiciary Committee, which held hearings in 2004 on a constitutional amendment to allow naturalized citizens to run for president, denied that the proposal targeted any one individual, but few believed him. In response to analogous speculation in 1974 that his proposed amendment to allow naturalized citizens to run for president reflected the popularity of one of that era's political celebrities, Representative Jonathan Bingham stated, "My proposed amendment does not amount to an endorsement of Henry Kissinger for the Presidency ... but I must say in all candor that his achievements as Secretary of State have highlighted the problem. Why should a citizen of Kissinger's talents be barred from the Presidency?" (Krebs 1974). The activist behind the recent electronic and grassroots effort to amend the Constitution readily admitted to a journalist that meeting and listening to Schwarzenegger at a campaign event prior to his announcement of running for governor so impressed her that she decided to start a constitutional revision campaign so that he eventually could run for president (Cohen 2005). Madison, in Federalist No. 10, listed "an attachment to different leaders ambitiously contending for pre-eminence and power" (Hamilton, Madison, and Jay 1961, 73) as one of the causes of faction, and had this constitutional reform proposal gone further in 2004, it would have animated Schwarzenegger's partisans even more, probably increasing the difficulty of dispassionately debating the proposal.

The reform proposal also would have ignited political passions among those opposed to such an amendment. In assessing Sabato's recent proposals for constitutional revision, including removing the natural-born citizen requirement, Phyllis Schlafly (2007), in one of her syndicated columns, wrote that this proposal "will bring cheers from the open-borders crowd eager to build a majority of diverse people unfamiliar with American rule of law." She stigmatized the proposal by associating it with the emotional illegal immigration issue, and she implied that it represented part of a plan to allow "diverse people" to incompetently dominate American society and institutions. Elsewhere in the essay, she called Sabato's and others' plans to change the Constitution "wild and devious" and suggested that his rhetoric might be on steroids. No stranger to battles over constitutional revision since Schlafly organized the opposition to the Equal Rights Amendment in the 1970s, one can imagine that in an era of high immigration that has stirred anxiety among many Americans, trying to remove the natural-born citizen provision from the Constitution might provoke a passionate response. People might interpret it as a symbol of "them" taking over, and respond that "we" need to reserve at least this last bastion for the "real" Americans. But would such emotions threaten the stability of the political order, or distract government from tackling more substantive issues? More than two centuries after Madison wrote Federalist No. 49, it would seem the U.S. political regime has enough legitimacy to withstand whatever drama would ensue from pursuing this constitutional change.

Factors Favoring Constitutional Reform

Since the 1870s, there have been numerous attempts to repeal the natural-born citizen requirement, including the recent introduction of amendments in Congress in 1983, 1987, 1989, 1991, 2000, and 2001 (see Vile 2003, 1427, 1614, 1627, 1668, 1697, 1701). However, these proposed amendments made little progress, and only in 2004 did considerable momentum build for the idea. Several factors accounted for its greater potency that year, including the sudden political emergence of Arnold Schwarzenegger, continued high levels of immigration into the United States, and the smaller-scale phenomenon of international adoptions.

Above all, the "Arnold effect" helped drive this constitutional reform. Schwarzenegger, one of Hollywood's best-known movie stars, was elected California's governor upon Gray Davis's recall in 2003, and then reelected in 2006 by a margin of 17% in a predominantly Democratic state. A popular governor of the largest state in the country, if a natural-born citizen, automatically would draw attention as a possible presidential candidate. In recent history, former governors from both large states (George H. W. Bush and Ronald Reagan) and small states (Jimmy Carter and Bill Clinton) have captured the presidency. When successful political leaders such as Schwarzenegger enter into popular consciousness, people naturally wonder about the wisdom of excluding them from the highest political office--or at least their admirers do. Of course, the Arnold effect cuts both ways: Not only does Schwarzenegger's charisma bring attention to the idea of amending the Constitution, but all the people who shudder at the prospect of the Terminator becoming president have reason to oppose the constitutional revision. (2) Any amendment would need a two-thirds majority to pass the Senate, and with a fair number of senators harboring presidential ambitions, some of them might not want to invite a potentially formidable rival candidate to enter the race. One might expect reluctance from congressional Democrats to empower a partisan adversary. Schwarzenegger himself, who has publicly acknowledged his presidential ambitions and has stated his support for repealing the natural-born citizen requirement on several occasions, recognized the problem his fame posed for any potential amendment. On Larry King Live in 2004, he stated, "I think it is a good idea to open it up and to let foreign-born people also participate in that process or to run if they're long enough here ... But I think it's important to leave me out of that discussion because otherwise it becomes a political discussion" (Wildermuth 2004). The Twenty-second Amendment limiting presidential succession includes a statement that the limitation does not apply to the president holding office when the amendment takes effect, thus eliminating opposition based on the amendment's impact on the immediate occupant of the office, and so perhaps some clause stating that the repeal of the natural-born citizen requirement would not take effect for another 10 or 15 years would allow people to look at the merits of the proposal without a possible Schwarzenegger presidency clouding their judgment. The original constitutional language of the natural-born citizen clause contains an exception to allow naturalized citizens at the time of the Constitution's ratification to become president, which effectively delayed the clause's implementation for a generation; perhaps similar language in an amendment repealing the provision could solve this problem.

If Schwarzenegger's prominence piqued popular interest in this constitutional reform, then two longer-term trends underlay its growing appeal. A second factor increasing support for the reform derives from the displeasure of immigrants at their formal exclusion from the presidency. Raimundo Delgado, a naturalized citizen and the constituent on whose behalf Congressman Barney Frank introduced a constitutional amendment in 2000, explained at House hearings on the proposed amendment that "the integrity of any American born abroad must not be questioned a priori" (U.S. House 2000, 14). He claimed that place of birth does not accurately indicate people's patriotism or civic knowledge. Because immigrants become Americans "by choice" (14), they may have as much if not greater commitment to American values than many native born citizens. He argued that the Constitution unjustly discriminates against naturalized citizens. Frank told a journalist that the Constitution "tells immigrants they are somehow flawed" (Davies 2004) by disqualifying them from seeking the highest political office. The title of John Yinger's prepared statement at the 2000 congressional hearings, "No Americans Should Be Second-Class Citizens," summarizes this perspective. Yinger acknowledged that the right to run for president lacks the importance of other rights such as free speech or voting, but that it has "enormous" symbolic power and therefore matters even to people who never intend to run for president. (3) He explained that "regardless of income or ethnicity, parents of a natural-born citizen can tell their child that he or she could grow up to be President" (U.S. House 2000, 26). Eligibility for the presidency

embodies the ideal of equality of opportunity--that someone of humble origins can aspire to the nation's top job. But the Constitution excludes naturalized citizens from that opportunity. With approximately 12% of the current U.S. population born abroad, and projections showing that by 2025, the foreign-born segment will rise to 15% of the population, eclipsing the previous high percentage of the late nineteenth century (Roberts 2008), a very substantial number of voters might resent the natural-born requirement.

Congressman Dana Rohrabacher, who cosponsored an amendment to repeal the natural-born requirement, argued in Senate hearings that the amendment would "send a message" to legal immigrants, particularly those who have become citizens, that they have the same rights as all Americans (U.S. Senate 2004, 11). Especially for someone representing a district in Southern California such as Rohrabacher, and who supported California's Proposition 187 and opposed George W. Bush's immigration plan as too lenient, sponsoring such an amendment might signal to a growing Latino constituency that he is not anti-immigrant. Even Congressman John Conyers, author of an earlier constitutional amendment to repeal the natural-born citizenship requirement, said in his Senate testimony that he never realized until after sponsoring the amendment that so many naturalized citizens resided in Oakland County, Michigan, next to his home county of Wayne (U.S. Senate 2004, 6). If nothing else, most politicians know how to count votes.

A third factor driving interest in this constitutional reform involves the growing number of international adoptions. The U.S. State Department tracks immigrant visas issued to orphans coming to the United States. Those figures show 7,093 visas issued in 1990, rising to more than 10,000 in 1996, and to more than 20,000 in 2002. Since then, the number has remained in the low 20,000 range (U.S. Department of State 2008). To facilitate international adoptions, in 2000, Congress passed the Child Citizenship Act, which automatically grants U.S. citizenship to foreign adopted children when they arrive in the United States, instead of making them go through the regular naturalization process. While not a huge annual influx, the cumulative numbers represent a significant group of children, all of whom have parents and relatives, some of them sensitive to any real or perceived slight of their adopted children.

A surprising number of personal anecdotes about foreign adoptees were told at the 2004 Senate hearings on the repeal of the natural-born requirement. Yinger told a story about his son, Jonah, who had been adopted from a foreign country at a young age. In the second grade, during a lesson about elections and who is eligible to become president, his teacher noticed that Jonah migrated to the periphery of the group when he usually sat front and center, and that he seemed unhappy. Jonah volunteered the information about the natural-born citizen requirement that disqualified him from running for president (shades here of the argument by the Supreme Court in Brown v. Board that segregation led African American students to internalize a feeling of inferiority that psychologically harmed them). Yinger concluded the story about his son by stating, "No American second-grader should have to feel this way. No American citizens should have to feel this way" (U.S. Senate 2004, 23).

During his testimony, Representative Vic Snyder showed a photograph of his niece, whom his relatives had adopted from abroad at the age of 10 months. He claimed that his niece made him recognize the need for this constitutional reform. He also showed photographs sent to him by some of his constituents of their children adopted from other countries, and he quoted one mother's accompanying lines: "How can you look at these boys and not want them to be President? It is the dream of a parent in America" (U.S. Senate 2004, 7). Representative Darrell Issa stated, "Certainly, like each of the previous speakers, I have a member of my staff who was adopted from Korea at age 2, and 27 years later he knows no other country but America. And yet he is not eligible to be President" (U.S. Senate 2004, 13). Senator Don Nickles noted that over the years, he had received many letters from foreign adopted children and their families requesting a change in the eligibility requirements for president (U.S. Senate 2004, 48). As a result, he cosponsored the Natural Born Citizen Act in 2004 to broaden the meaning of the phrase "natural born" in the Constitution to include children born abroad to U.S. citizens, as well as children born abroad and adopted by U.S. citizens.

While Nickles's bill would not cover immigrants such as Michigan governor Jennifer Granholm, who moved with her family from Canada to the United States at age four and later became a naturalized citizen, it would address the exclusion of foreign-born adoptees. Of course, that assumes that if the bill became law and someone challenged its constitutionality, the courts would accept Congress's expanded definition of "natural born." In City of Boerne v. Flores, (4) the Supreme Court asserted its authority to interpret the meaning of the Constitution and held that Congress cannot impose a particular interpretation of the constitutional text (in that case, the free exercise clause of the First Amendment) on the Court. After Congress gave the president line-item veto authority by statute in 1996, the Court overturned the law and instructed Congress that it needed to amend the procedure for how a bill becomes law in Article I, Section 7; Nickles's Natural Born Citizen Act could meet the same fate.

Elements of a Constitutional Reform Effort

Because of the difficulty of amending the Constitution, efforts at constitutional reform generally need multiple sources of support. Repealing the natural-born requirement for presidential eligibility has found favor among academics, a number of media outlets, a grassroots political organization, and among several members of Congress willing to advance the cause. While receiving distinct sources of support certainly doesn't guarantee passage of an amendment, it perhaps explains why this particular reform proposal gained momentum in the first decade of the twenty-first century.

Academics, particularly some well-known constitutional law professors, have endorsed the reform proposal. Sanford Levinson and William Eskridge asked a number of noted constitutional law scholars to write short essays on the stupidest extant provision in the Constitution (their criteria thus excluded things such as slavery and the three-fifths compromise). The essays initially appeared in the legal journal Constitutional Commentary, and many of them were later included in a book collection. Two contributors to the symposium independently selected the natural-born citizen requirement for presidential eligibility as the stupidest provision. Berkeley law professor Robert Post concluded his essay with a dramatic flourish, arguing that the natural-born requirement "gropes for security among ties of blood and contingencies of birth. In a world of ethnic cleansing, where affirmations of allegiance are drowned in attributes of states, this constitutional provision is a chilling reminder of a path not taken ... It is a vestigial excrescence on the face of our Constitution" (1995, 192). Harvard law professor Randall Kennedy argued that the provision imposes a totally unjustified inequality by embodying a presumption that "some citizens of the United States are a bit more authentic, a bit more trustworthy, a bit more American than other citizens of the United States, namely those who are naturalized" (1998, 55). Levinson, in his own book advocating constitutional changes to fix the document's flaws, included a section on repeal of the natural-born requirement in his chapter titled "The Constitution as Creator of Second-Class Citizens" (Levinson 2006, 150-152). Several recent law review articles have attacked the natural-born provision (e.g., Duggin and Collins 2005; Herlihy 2006; Ho 2000; Seymore 2005). Yale law professor Akhil Reed Amar testified at Senate hearings in favor a constitutional amendment that he believed would "honor the Framers' egalitarian vision by repealing the specific rule that has outlived its original purposes" (U.S. Senate 2004, 17). Political scientist Larry Sabato also argued for repealing this "stain upon our democracy" (2006, 106) in his book containing 23 proposals to revitalize the Constitution. He observed that if potential plots by more powerful European countries to corrupt the Electoral College to produce a president loyal to them worried the framers of the Constitution, then the more open contemporary process of primary elections, followed by a general election in which the news media scrutinizes the presidential candidates over a prolonged period of time, after which voters can decide to exclude foreign-born candidates for insufficient patriotism, adequately ensures against the election of a foreign-born president devoted to foreign rather than U.S. interests. He concluded that "should there be any reasonable question of a candidate's loyalty to the nation, the voters will sort it out at the polls" (106).

An egalitarian ethos characterizes much of the support for repealing the natural-born provision voiced by academics. Alexis de Tocqueville long ago observed that democratic countries always look favorably on the ideal of equality, and that at times, they exhibit passionate enthusiasm for it. This perhaps accounts for the strong language used by some scholars to describe the natural-born provision as a "stain" or "excrescence." Newspapers that have editorialized in favor of repeal share the egalitarian perspective of the academic commentators, with the Los Angeles Times (2006) calling the provision "arcane discrimination" and the Grand Rapids Press (2004) calling it "demeaning to immigrants." According to the Cleveland Plain Dealer (2005), the framers' fears about European conspiracies to exert control over the United States by having a foreigner loyal to their interests installed in the presidency, if once relevant, now seem "almost ludicrous," and in any case, Americans long have elected foreign-born citizens to Congress and state offices, where they could endanger national security. Or, as The Economist observed in 2004, foreign-born citizens already have directed U.S. foreign policy (Madeleine Albright and Henry Kissinger) and the military (John Shalikashvili) without any treasonous effects. The Economist editorial also had a classically liberal flavor in that it criticized barriers to the free flow of talent around the world for restricting potentially outstanding candidates from running for president.

While academic articles and books can help intellectually legitimize an idea, and newspaper editorials can help publicize an idea and bring it on to--or closer to--the political agenda, enacting something as difficult as a constitutional amendment probably also requires an actively committed constituency pressuring for the change. At the grassroots level, a retired mutual fund trader and Republican fund-raiser named Lissa Morganthaler-Jones spearheaded a campaign to pressure Congress to repeal the natural-born requirement. In 2004, she launched the Web site "Amend for Arnold" to promote the change and raised enough money to begin airing ads for a week in San Francisco, San Jose, Sacramento, Stockton, and Los Angeles. In the ad, Morganthaler-Jones stated, "You cannot choose the land of your birth. You can choose the land that you love," and the ad emphasized the basic fairness of allowing the 12 million Americans who have become naturalized citizens to run for any political office, concluding with the line, "Help us amend for Arnold and 12 million other Americans" (Wildermuth 2004). She hoped to use the Web site to build a national organization and to raise money through online contributions and sales of "Amend for Arnold" r-shirts, bumper stickers, and coffee mugs to finance the airing of television advertisements nationwide. Eventually, she intended the virtual and television campaign to lead to marches on all the state capitols in support of constitutional change. To try to introduce a bipartisan element to the drive, the Web site eventually carried a banner, "Amend for Arnold and Jen" (referring to Jennifer Granholm), but clearly it relied on Schwarzenegger's star power to attract attention and donations. At the peak of Schwarzenegger's popularity in the fall of 2004, Morganthaler-Jones claimed her site had received 4 million hits, telling a journalist, "They're coming from freaking everywhere" (Wildermuth 2004). In addition, organizers targeted body-building conventions and expos, presumably because attendees might favor a proposal associated with a famous body-builder such as Schwarzenegger (Cohen 2005).

At the launch of the campaign, Morganthaler-Jones appeared on a number of network morning shows and cable news channels spreading her message. Though she had some success in recruiting volunteers across the country, she faced solid majorities against the idea. A Gallup Poll taken in November 2004 showed that 67% of Americans opposed changing the Constitution to allow naturalized citizens to run for president. While Democrats expressed slightly more sympathy (64% against, 34% in favor) than Republicans (69% against, 30% in favor), neither group showed anything approaching majority support for change. When Gallup added the information that the constitutional change would permit Schwarzenegger to run for president, support rose to 39% in favor and 59% opposed, suggesting that an educational campaign might help convert some members of a basically hostile public (Reddy 2005). But the relatively small movement upward in support from 31% to 39% at the mention of the poster child for the amendment also suggests the difficulty of gaining the widespread acceptance that a constitutional amendment would need in order to surmount the threshold of a two-thirds vote in both chambers of Congress. Even in California, a 2004 Field Poll found that only 36% of the state's registered voters supported expanding presidential eligibility to naturalized citizens (Wildermuth 2004). Not surprisingly, the "Amend for Arnold" Web site eventually went "on hiatus" and cannot be accessed. As Schwarzenegger's approval ratings declined from their 2004 levels, and he lost all four ballot initiatives he had endorsed in a November 2005 special election, the attraction of a constitutional reform movement tied to him naturally diminished, too.

Finally, the idea of broadening presidential eligibility through constitutional amendment has won some followers in Congress, enough to generate hearings on formally introduced amendments in the House of Representatives in 2000 and in the Senate in 2004. The tone of the two hearings differed noticeably. In the House, one of the most liberal Democrats, Barney Frank, introduced the constitutional amendment and requested the hearing on it in a subcommittee and chamber controlled by conservative Republicans. To open the hearings, subcommittee chair Charles Canady presented the arguments for and against the amendment proposal equally, without revealing whether he personally supported the change. After Frank spoke on behalf of the amendment, Republican Spencer Bachus voiced his opposition, stating that foreign-born citizens would inevitably feel some attachment to their country of origin and might have difficulty as president dealing with their home country solely from the perspective of U.S. national interests. Even if they could successfully do that, many Americans might harbor suspicions of presidential favoritism toward the president's country of origin. He also did not see any popular outcry for constitutional change, did not consider the native born presidential talent pool inadequate, and, in the absence of compelling reasons for change, felt it best to leave the Constitution alone (U.S. House 2000, 11-12).

Democrat Mel Watt followed by briefly stating that he generally did not favor amending the Constitution, but he would listen to the testimony of the witnesses with an open mind (U.S. House 2000, 12-13). Of the four witnesses, two spoke in favor of the amendment and two spoke against it. Balint Vazsonyi, director of the Center for the American Founding, part of the conservative Potomac Foundation, provided the perspective of a Hungarian immigrant who had arrived in the United States in 1959 and opposed expanding presidential eligibility to naturalized citizens. He argued that Americans differed fundamentally from other people, and even after 41 years among them, he still strained to understand the culture, and that it takes a full generation to become fully assimilated. He also claimed that he personally, if president, would struggle to treat fairly those peoples whom Hungarians traditionally dislike, so the natural-born provision still serves a useful purpose (U.S. House 2000, 18-21).

Although no delegates recorded any debate about the provision at the Constitutional Convention, and none of the essays in the Federalist Papers address it, at the House hearings, historian Forrest McDonald offered one interpretation for the inclusion of the natural-born requirement in Article II. In 1772, the secret services of Austria, Prussia, and Russia had helped get their own candidate elected king of Poland, with the later result of the partitioning of Poland between those three powers, and that incident stoked already existing fears in America about European meddling. John Jay, not present at the Constitutional Convention, wrote George Washington a letter urging the framers to limit command of the U.S. military to a natural-born citizen. In addition, delegates at the convention, from which they had excluded journalists, had to combat a rumor circulating that they intended to invite a distant relative of George III to become king. In response to such fears, rumors, and urgings, they included the natural-born provision as part of the plan developed toward the end of the convention to create an Electoral College to select the president (U.S. House 2000, 43-44). McDonald argued for the continuing relevance of these considerations, as foreign governments might spend large sums of money to get someone born in their country elected president, or espionage agencies might employ an agent in "deep cover" for many years and not activate the agent until he or she won a high political office such as the presidency (usually termed the "Manchurian Candidate scenario" in debates about the natural-born requirement).

After all four witnesses spoke, most of the remainder of the hearing consisted of Frank arguing with Vazsonyi and McDonald, until Canady concluded it by summarizing some of the strengths and weaknesses of the proposal and stating that although it deserved consideration, he did not feel its advocates had presented a compelling enough case for amending the Constitution, a remedy properly reserved only for extreme situations.

By contrast, the Senate hearings four years later proceeded much less contentiously. Presided over by Republican Judiciary Committee chair Orrin Hatch, Hatch himself had introduced the constitutional amendment to expand presidential eligibility to naturalized citizens under the committee's consideration. The title of the Senate hearings, "Maximizing Voter Choice: Opening the Presidency to Naturalized Americans," sounded a more positive note than the neutrally titled House hearings, "Constitutional Amendment to Allow Foreign-Born Citizens to Be President." Hatch opened the hearings with a strong defense of the amendment. Four House members testified in favor of the amendment, and with three of them Democrats, this lent the hearing a bipartisan atmosphere. Barney Frank returned to testify at the Senate hearings, perhaps making this one of the few proposals that two politicians as different ideologically as Frank and Hatch both supported strongly. Two of the three witnesses, law professor Akhil Reed Amar, and John Yinger, an academic who had testified at the House hearings four years prior, strongly favored the amendment. The third witness, Mathew Spalding from the Heritage Foundation, while not opposing the amendment, argued that the concerns about the allegiance of the president remained valid even if the threat of foreign takeover now seemed far-fetched. In conjunction with the amendment, he suggested adding a fairly long residency requirement for naturalized citizens to become president, addressing the issue of presidential eligibility for dual citizens, delaying the amendment's activation date until some of its potential political beneficiaries passed from the scene, and considering whether Congress could accomplish its goal legislatively without a constitutional amendment. To demonstrate his support for the basic idea of Hatch's amendment, he ended his testimony by referring to the two very young Russian orphans he and his wife had adopted, and that even though his children would grow up American, they couldn't run for president under the current Constitution (U.S. Senate 2004, 19-20).

Most of the questioning at the Senate hearing centered on matters of detail such as the appropriate length for the residency requirement or how to deal with presidential candidates possessing dual citizenship, with support of the amendment assumed. Only Democratic senator Dianne Feinstein expressed opposition. She somewhat defensively stated that her mother had come from Russia and her father's parents had come from Poland and Lithuania to eschew any hint that her reservations reflected hostility toward immigrants. She expressed some general concern about national unity in an era of high immigration and argued that waiting a generation to ensure adequate assimilation made sense as a qualification for the presidency (U.S. Senate 2004, 29-30). She then listened to the three witnesses argue in favor of the proposed change without further questions or debate. She perhaps sensed that majority sentiment in the committee, and certainly the committee chair, favored the amendment and therefore she didn't actively oppose it at the hearing.

Following the 2004 election, the chair of the Senate Judiciary Committee passed from Hatch to Arlen Specter, and then after the 2006 election, to Democrat Patrick Leahy. Thus, a patron of the constitutional reform proposal lost the position of influence to possibly move it forward. At the 2004 hearings, Leahy submitted a written statement that accused the committee of ignoring the more pressing issue of voter access in the upcoming presidential election. He also noted that holding hearings in October of an election year, with Congress close to the end of its term, meant that a constitutional amendment only then coming up for discussion and debate had no chance of passage (U.S. Senate 2004, 45). And, in fact, the proposed amendment did not receive a floor vote.

Conclusions

In his review of the history of constitutional reform proposals, Sundquist finds that some proposals such as abolishing the Electoral College in favor of direct popular election have periodically surfaced since Andrew Jackson first pushed the idea in response to the "corrupt bargain" between John Quincy Adams and Henry Clay in the 1824 presidential election, and that they reappear when something similar goes wrong, or appears ready to go wrong, with institutions such as the Electoral College. Then proposals get made, hearings are held, and floor votes occasionally are taken, but after the Electoral College reflects the popular vote and functions tolerably well in the following election, the momentum for constitutional reform dissipates, and the constitutional reform proposal recedes from view without having cleared the hurdle for passage (Sundquist 1992, 54-58). It appears that the possibility of repealing the exclusion of naturalized citizens from presidential eligibility probably peaked around 2004 or 2005 and has since declined. The excitement generated by Schwarzenegger's dramatic election victory in 2003 led to the beginnings of a grassroots movement for constitutional reform, and favorable Senate hearings on an amendment in 2004 probably further fueled public interest and excitement among activists. Schwarzenegger embodied (for some at least) the traditional and positive image of the immigrant, someone who had come from Europe and, through hard work, persistence, and some luck, had earned both fame and fortune, themes that Schwarzenegger emphasized in his speech at the 2004 Republican convention. Just comparing the spirit of the congressional hearings in 2000 and 2004 would seem to indicate increasing momentum for constitutional change. However, since then, an intense fight over how to handle illegal immigration, which culminated in conservative House Republicans helping to defeat President Bush's immigration proposal in 2006, has revealed much more mixed feelings toward immigrants. Some conservative radio talk show hosts and populists such as Lou Dobbs have focused so much angry attention on the problem of illegal immigration that some people (and legislators) might not distinguish between legal and illegal immigrants and therefore reject a proposal dealing only with legal immigrants who have become citizens. In the 10-year period between 1991 and 2001, 15 constitutional amendments were introduced in Congress attempting to restrict birth citizenship to children with legal resident immigrant parents (Vile 2003, 1704). Though none of them passed, the frequency of their introduction reflects anxiety about the rising numbers of illegal immigrants. When Chris Mathews asked the question about changing the Constitution to allow naturalized citizens to run for president at the first Republican debate in 2007, most of the candidates joked about gaining Schwarzenegger's backing or fearing his physical strength, but none seriously endorsed it. John McCain's support for President Bush's immigration plan hurt him with conservative voters in the Republican primaries and caucuses. The 2008 presidential election campaign offered mixed signals on people's feelings about the appropriate broadness of presidential eligibility. While in some ways, people indicated their receptiveness to a wider range of candidates, including serious campaigns by Latino, African American, and female candidates, in other ways, the response to Mitt Romney's candidacy and his affiliation with the Church of Latter-Day Saints suggests that segments of the electorate still draw some boundaries on presidential eligibility. Romney ultimately had to give a speech directly explaining his religious beliefs and their impact on his political views. And to block a constitutional amendment only requires the opposition of a significant minority.

The legislative approach of defining "natural born" to include anyone born to American parents abroad or adopted by American citizens from abroad would hold more promise than a constitutional amendment, even though it would not address the problem of excluding naturalized citizens. The issue gained attention recently because of Senator John McCain's birth in a U.S. military hospital in the Panama Canal Zone. Thus far, all presidents have been born in the 50 United States, so no court cases have tested whether someone born to American parents on an overseas American military installation is a "natural-born" citizen) McCain proclaimed confidently that he was a natural-born citizen, but he also commissioned a legal study of the issue by former solicitor general Theodore Olson and Harvard law professor Laurence Tribe (Hulse 2008).

In response, Claire McCaskill, Democratic senator from Missouri, introduced a nonbinding resolution to try to resolve this ambiguity by declaring that children born abroad to citizens serving in the military would meet the natural-born requirement for presidential eligibility. McCaskill's resolution narrowly aimed to fix McCain's potential problem because it did not include the children born abroad of any other U.S. government personnel, such as those in the diplomatic service, much less the category of children adopted from abroad by U.S. citizens included in Nickles's 2004 bill that failed to pass Congress. Supported by Republicans who presumably would want to avoid a court challenge to the eligibility of their presidential nominee, the resolution passed the Senate unanimously, with Senator Barack Obama included as one of the bill's cosponsors. Of course, a lawsuit would not preclude the courts from taking the case and asserting their own power to interpret the meaning of the constitutional text "natural born" aside from the Senate's pronouncement. (6) If nothing else, the need for such a bill might have alerted legislators to the existence of the natural-born provision of the Constitution and to some of its drawbacks.

However, what Sanford Levinson has called "the iron cage" of Article V (2006, 165) appears to preclude solving this problem through constitutional amendment. Barring a major catastrophe such as the Civil War to spur constitutional reform, or the violation of an unwritten norm such as not serving more than two presidential terms, or the obvious problem of Lyndon B. Johnson having no vice president while he completed John F. Kennedy's first term, the requirements for passing a constitutional amendment seem too hard to meet. Perhaps only if McCain were elected president and a court invalidated his eligibility would the natural-born citizen requirement get revised. Clever legislative end runs, such as Maryland's and New Jersey's approval of state laws giving all their electoral votes to the winner of the presidential popular election once a majority of states do the same, seem a more realistic way to change constitutional institutions such as the Electoral College. Stuck with a rigid constitution approved in 1789, Americans can watch as Canadian citizens born in England such as John Turner become prime minister, or Canadian citizens born in Hong Kong and Haiti such as Adrienne Clarkson and Michaelle Jean, respectively, get appointed governor-general (Canada's head of state), or French citizens born in Turkey such as Edouard Balladur become prime minister and nearly get elected president, but remain unable to vote for naturalized citizens for the U.S. presidency. (7)

Because of the near impossibility of passage, the politics surrounding constitutional amendments deal largely with symbolism. They become ways to signal solidarity with certain groups or principles and, perhaps if they get to a floor vote, a way to get on record (or get one's opponents on record) about a proposal that won't pass but can aid in fund-raising and perhaps provide a favorable issue for the next campaign. Supporters of repealing the natural-born provision for presidential eligibility sometimes admit that given how very few people ever run seriously for president, their desire to repeal it derives more from their concerns about the implied message that it sends to naturalized citizens and people adopted from abroad than from any actual harmful political impact that it has. The amendment allows politicians to communicate their respect for naturalized citizens and academics to demonstrate their commitment to equality. Should the amendment ever receive serious consideration, opposition to it probably also would involve symbolic concerns about the role of immigration in American life. The congressional hearings on the proposed amendments, therefore, seem more like exercises in political ritual or spectacle than serious legislative efforts, and the "Amend for Arnold" Web site more a vehicle to bolster one politician's approval ratings and power than a genuine movement for constitutional reform. Though it makes eminent sense to amend the Constitution to allow naturalized citizens to run for president, Senator Leahy's admonition to focus on more immediate problems such as ballot access for minorities that Congress can address with only a majority vote seems like good advice.

References

Cleveland Plain Dealer. 2005. Time for a change? Should concerns rooted firmly in the 18th century still disqualify immigrants from serving as president? Editorial, January 10.

Cohen, Alex. 2005. Amend for Arnold. Voice of America News, March 28.

Davies, Frank. 2004. Drive to allow foreign-born presidents gains spotlight. Miami Herald, December 13.

Dobbs, Michael. 2008. McCain's birth abroad stirs legal debate; His eligibility for presidency is questioned. Washington Post, May 2.

Duggin, Sarah Helene, and Mary Beth Collins. 2005. Natural born in the USA: The striking unfairness and dangerous ambiguity of the Constitution's presidential qualifications clause and why we need to fix it. Boston University Law Review 53: 53-154. The Economist. 2004. Let Arnold fun. Editorial, December 18.

Gordon, Charles. 1968. Who can be president of the United States: The unresolved enigma. Maryland Law Review 28: 1-32.

Grand Rapids Press. 2004. A foreign-born president; Constitution should be amended to drop "natural born" requirement. Editorial, December 13.

Hamilton, Alexander, James Madison, and John Jay. [1788] 1961. The federalist papers, edited by Clinton Rossiter. New York: Penguin.

Herlihy, Sarah. 2006. Amending the natural born citizen requirement: Globalization as the impetus and the obstacle. Chicago-Kent Law Review 81: 275-300.

Ho, James. 2000. Unnatural born citizens and acting presidents. Constitutional Commentary 17:575-86.

Hulse, Carl. 2008. Bill would remove doubt on presidential eligibility. New York Times, February 29.

Kennedy, Randall. 1998. A natural aristocracy? In Constitutional stupidities, constitutional tragedies, edited by William Eskridge and Sanford Levinson. New York: New York University Press, 54-56.

Krebs, Alvin. 1974. Notes on people. New York Times, January 30, p. 21.

Levinson, Sanford. 2006. Our undemocratic Constitution: Where the Constitution goes wrong (and how we the people can correct it). New York: Oxford University Press.

Lijphart, Arend. 1999. Patterns of democracy: Government forms and performance in thirty-six countries. New Haven, CT: Yale University Press.

Los Angeles Times. 2006. Let naturalized Americans run for president. Editorial, November 12.

Medina, J. Michael. 1987. The presidential qualification clause in this bicentennial year: The need to eliminate the natural born citizen requirement. Oklahoma City University Law Review 12: 253-78.

Post, Robert. 1995. What Is the Constitution's worst provision? Constitutional Commentary 12: 191-93.

Reddy, Patrick. 2005. President Schwarzenegger; should the Constitution be amended for Arnold? Buffalo News, January 30.

Roberts, Sam. 2008. Study foresees the fall of an immigration record that has lasted a century. New York Times, February 12.

Sabato, Larry. 2007. A more perfect Constitution: 23 proposals to revitalize our Constitution and make America a fairer country. New York: Walker.

Schlafly, Phyllis. 2007. Quit tinkering with Constitution. Chattanooga Times Free Press, November 20.

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sundquist, James L. 1992. Constitutional reform and effective government. Washington, DC: Brookings Institution.

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U.S. Congress. Senate. Committee on the Judiciary. 2004. Maximizing woter choice: Opening the presidency to naturalized Americans. 108th Cong., 2nd sess., October 5.

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Wildermuth, John. 2004. "Amend for Arnold" campaign launched; Web site, TV spot promote change to Constitution. San Francisco Chronicle, November 18.

(1.) Interestingly, on the back cover of Sabato's book, in which he advocates extensive constitutional revisions, instead of the usual blurbs praising the book, a series of quotations by Thomas Jefferson, James Madison, George Washington, and George Mason appear stating the necessity and legitimacy of periodic constitutional revision, as if the only way to fight the reverence that people have for the document the framers produced is to quote the framers themselves endorsing constitutional reform.

(2.) Historian Forrest McDonald opened his testimony to the House Judiciary Subcommittee on the Constitution by joking, "I could give what I consider the definitive argument against the proposed amendment in two words: Arnold Schwarzenegger, but I have been allotted five minutes, so I will take five" (U.S. House 2000, 23).

(3.) The excitement generated by the 2008 Democratic nominating contest arose partly from the realization that the nominee of a major party would come from one of two large groups of people whom traditional prejudices and demographics had informally excluded from the presidency, which had great symbolic significance for many women and African Americans.

(4.) 521 U.S. 507 (1997).

(5.) Barry Goldwater was born in the territory of Arizona before it became a state, but the only lawsuit that contested his status as a "natural-born" citizen was dismissed in state court (Duggin and Collins 2003, 58). Michigan governor George Romney was an early leading contender for the Republican presidential nomination in 1968, and his birth in Mexico to American citizens living in a Mormon colony in Chihuahua might have opened his candidacy to a court challenge, but his withdrawal from the contest forestalled any such lawsuit (Gordon 1968, 1). Romney had moved to the United States with his parents at age five.

(6.) A New Hampshire resident named Fred Hollander filed a lawsuit in U.S. district court claiming that McCain is not a natural-born citizen and therefore ineligible to become president (Dobbs 2008).

(7.) However, a number of nations other than the United States reserve their political executive for natural-born citizens. They include, among others, Argentina, Bolivia, Chile, Colombia, Indonesia, Mexico, Nigeria, and Venezuela (Medina 1987, 255-256).

MICHAEL TAGER

Marietta College

Michael Tager is associate professor of political science at Marietta College. His research interests are in constitutional law and comparative politics.
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Date:Mar 1, 2009
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