All men are created equal — except for women, slaves, and immigrants.
– “Equal rights” when the Constitution first took effect (1789)
For all their wisdom and virtue, the Founding Fathers disenfranchised a large segment of our country when they drafted the Constitution. While we have made much progress, the Constitution still bans immigrants from running for President.
So who can’t run for the White House? Let’s see: Gov. Arnold Schwarzenegger (born in Austria), Gov. Jennifer Granholm (born in Canada), two-thirds of Asian Americans, 40 percent of Latinos — and maybe even John McCain.
Last week, law professor Gabriel Chin published a paper with a politically charged thesis: John McCain is ineligible to run for the White House.
How did Chin reach this explosive conclusion? He started with two inconvenient facts:
1. The Constitution only allows “natural born citizens” to run for President (art. II, sec. 1).
2. Although his parents were both US citizens, John McCain might not be a “natural born citizen” because he was born in the Panama Canal Zone.
McCain was born in the Panama Canal Zone in 1936, when it was an unincorporated US territory. At the time, it was at best unclear whether anyone born in the Panama Canal Zone was a “natural born citizen” — that is, a citizen at birth. (Earlier, the Supreme Court had decided that residents of unincorporated US territories were not guaranteed full citizenship rights.)
To fill in this gap, Congress passed a law making everyone born in the Panama Canal Zone a citizen. But here’s the catch: that law was passed in 1937 — the year after McCain was born. Therefore, Chin concludes, McCain was not a US citizen on the day he was born.
For better or worse, no court will touch this issue before the election. In New Hampshire, a voter has brought a lawsuit challenging McCain’s eligibility. That case will probably be tossed on a technicality (i.e., the voter cannot sue because he hasn’t been “harmed”).
Something is terribly wrong when American citizens — including most Asian Americans and many Latinos — cannot run for a land’s highest office. The Constitution must be amended so that all naturalized citizens (including McCain) can also seek the White House.
This should not be a partisan or ideological issue. In fact, uberliberal Sen. Ted Kennedy and archconservative Sen. Orrin Hatch both support such an amendment.
To be sure, some oppose allowing naturalized citizens to become President for one main reason: the spectre of the so-called Manchurian candidate (here’s nativist Wes Clark on the topic). Basically, they fear that immigrants can betray their adopted land.
But there’s no reason to be afraid. Currently, if someone moves to the US just one day after being born, he or she cannot run for President. Does that make any sense? Is it fair?
What is more, there is a way to ensure that an immigrant has built enough ties to this country. Just require all naturalized Presidential candidates to have been US citizens for at least 20 years (that’s what Hatch has proposed).
Finally, there’s political reality: immigrants usually have a tougher time running for any political office. Although Obama was born in the US, some voters still question his American identity — but give McCain a free pass. Why? Because as a child, Obama lived in a country where Christianity isn’t the majority religion.
We are a nation of immigrants. Let’s make it possible for everyone to dream about becoming President.
– Gautam Dutta
Update (July 16): Check out former Supreme Court law clerk James Ho’s excellent piece on this topic.
Here’s a related piece by James Ho:
7 Green Bag 2d 105 (2004)
Ex Ante
President Schwarzenegger – Or At Least Hughes?
Over 35 million Californians are now governed by the Terminator – yet 250 million other Americans will never have that pleasure. Presidential aspirations are similarly dashed for Michigan Governor but Canadian-born Jennifer Granholm, Labor Secretary Elaine Chao, two former secretaries of state, and about ten million other Americans. That’s because Article II of the U.S. Constitution provides that “[n]o Person except a natural born Citizen … shall be eligible to the Office of President.”
The conventional argument for repealing the natural born citizen requirement is straightforward: It’s unfair, even un-American, to create a second class of citizens who are ineligible to serve as President. Throughout history, there have been numerous efforts to repeal the requirement – including one as early as 1868 and two in the current Congress (H. Res. 269, 40th Cong.; S. 284, 41st Cong.; H. Res. 52, 42nd Cong.; H.J. Res. 259, 80th Cong.; H.J. Res. 28, 81st Cong.; H.J. Res. 795, 90th Cong.; S.J. Res. 161, 92nd Cong.; S.J. Res. 72, 98th Cong.; H.J. Res. 229, 100th Cong.; H.J. Res. 450, 101st Cong.; H.J. Res. 88, 106th Cong.; H.J. Res. 47, 107th Cong.; H.J. Res. 59, 108th Cong.; S.J. Res. 15, 108th Cong.).
The Founders, however, were concerned about national security. In a July 25, 1787 letter to George Washington, who was then serving as President of the Constitutional Convention, John Jay wrote: “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.”
The Founders’ concerns may seem obsolete to some today. And why shouldn’t the American people have the option to elect a governor born in Austria or Canada as President? On the other hand, it was precisely the fear of Austria (and Prussia and Russia, too) that motivated the Founders. Those powers had just rigged the election of their own candidate as the new monarch of Poland, in order to divide that nation’s territory among themselves.
There’s an even stronger argument, however, for amending the natural born citizen requirement: At a minimum, anyone who has been an American throughout his entire life should be eligible to become President. Yet the Constitution arguably excludes from Presidential eligibility persons born to U.S. citizens, and thus born as Americans, but born abroad.
Many academics, to be sure, argue that such persons are eligible. Nevertheless, these two million Americans fall under a substantial legal cloud. In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court explained that the natural born citizen clause “was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth” (quoting Justice Curtis’s dissent in Dred Scott). See also United States ex rel. Guest v. Perkins, 17 F. Supp. 177 (D.D.C. 1936).
Eight proposals have been introduced to extend eligibility to lifelong Americans born abroad to U.S. citizens – and in particular, to U.S. servicemen (H.J. Res. 645, 84th Cong.; H.J. Res. 80, 85th Cong.; H.J. Res. 612, 85th Cong.; H.J. Res. 205, 86th Cong.; H.J. Res. 214, 86th Cong.; H.J. Res. 517, 86th Cong.; H.J. Res. 571, 87th Cong.; H.J. Res. 397, 88th Cong.). Surely, the sons and daughters of our soldiers should be able to run for President. As First Lady Laura Bush recently pointed out in support of repeal, “even Karen Hughes [daughter of a U.S. serviceman] was born in Paris. Karen Hughes for President.”
– James C. Ho
Left by gautam on July 16th, 2008