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.
In an increasingly globalized age of international adoptions, the restriction sends an ugly, discouraging message to these children, and other naturalized citizens, that they are less than fully American. It is the kind of discriminatory treatment that would be deemed unconstitutional were the rule not embedded in the Constitution itself.
And it yields results that are both bizarre and self-defeating. The child born to Chinese graduate students studying in the United States but raised mostly in China would be eligible to run for president as long as she met the 14-year U.S. residency requirement. Yet the Chinese-born adopted daughter of U.S. citizens who spent her entire life in the United States would be barred.
It excludes otherwise qualified candidates — former governors such as Jennifer Granholm (born in Canada) and Arnold Schwarzenegger (born in Austria) — and interferes with the ordinary rules of presidential succession by disqualifying secretaries of state such as Henry Kissinger (born in Germany) and Madeleine Albright (born in the former Czechoslovakia).
And to what end? At the time of its adoption, the requirement made sense for a shaky new experiment in democracy. It arose in a 1787 letter from John Jay, later to be the first chief justice of the Supreme Court, to George Washington, in which Jay questioned “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 point of the presidential eligibility rule, Supreme Court Justice Joseph Story explained in 1833, was that “it cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections.”
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.”
If there is fear of a Manchurian candidate president with dubious loyalty to the United States, that concern could be addressed by imposing a requirement that a person be a U.S. citizen for a certain number of years before becoming eligible for the presidency. Hatch’s proposed amendment would have required a period of 20 years; others have suggested 35 years.
But the fate of Hatch’s proposal — the Senate Judiciary Committee held a hearing, and that was it — suggests the unlikelihood of any successful effort to amend the Constitution. When the question was posed to Republican candidates during a 2007 primary debate, only three of the 10 said they would consider it.
Indeed, opening the debate in today’s poisonous political climate would probably risk opening the question of birthright citizenship under the 14th Amendment, which extends citizenship to “all persons born or naturalized in the United States.”
To recognize this reality is not to feel good about it. So when you hear arguments over whether Cruz can be president, don’t worry about the senator from Texas. Think instead about the little girl adopted from China, learning about civics in her second-grade classroom and being told that she can never become president of the only country she has known.