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.
Article II, Section 1
In the mid-1990s, a couple of hot-shot legal academics were walking back to their hotel after taking part in a constitutional law conference at Tulane University when they started talking about what they thought was the “stupidest” part of the Constitution. Since these guys are law professors, it should be no surprise that they quickly decided to turn their “joking conversation” into an eighty-five-page academic symposium. They called up a bunch of their top-notch law professor friends around the country and asked them what they thought was the stupidest part of the Constitution. By “stupidest,” the study’s designers meant (we learn in the symposium’s first footnote) “a provision that strikes one as wrongheaded under today’s circumstances, and harmful to the polity as well.” In other words, to be stupid, a provision had to cause problems in 1995, regardless of what it might have done back in 1787 or 1791 or whenever it was first ratified. As one symposium participant put it, the chosen phrase or clause or section “should be something you think has significance for current governance; you get no points by condemning the fugitive slave clause.” Contributors were encouraged not to talk to other participants about their choices, so that each could select his or her favorite “constitutional stupidity” without being subject to undue influence from external forces.
Although some of the participants responded with typical academic tomfoolery like refusing to answer the question directly or attacking the question itself (note, e.g., the response of one professor, who called the enterprise “the most vapid essay contest to come along since MTV listeners were asked to suggest names for a new litter of puppies owned by a heavy metal performer”), for the most part the study turned out to be enlightening. Which parts of the Constitution were the biggest losers? One was the provision in Article III that gives federal judges life tenure. As one critic observed: “Life tenure . . . creates the real possibility of imitating a society like China, where power is wielded by the oldest among it.” The electoral college earned a couple of votes for making it possible for someone like George W. Bush to become president despite getting five hundred thousand fewer popular votes than his opponent. And lots of scorn was heaped atop the provision in Article I that gives each state two votes in the Senate, regardless of whether the state has the eighth-largest economy in the world (like California) or can fit in the palm of a toddler’s hand (like Rhode Island).
Getting at least as many votes as any other clause was the clause in Article II that prohibits anyone who is not a “natural born citizen” from becoming the president. In this chapter, I will talk about where this clause came from, what it means, and why one participant in the stupidity symposium called it “a vestigial excrescence on the face of our Constitution.”
As I mentioned in chapter 3, the Constitution sets out detailed rules about how officers of the United States are to be appointed to their positions. The Constitution, however, generally does not create these offices itself; most offices are created by statute. In a few important cases, though, the Constitution does actually create offices. For these offices—the president, the vice president, senators, and members of the House of Representatives—the Constitution not only establishes the position and provides the method for filling it (by election), but it also sets forth specific qualifications that anyone occupying the position has to have.
What is most notable about these prerequisites is just how few of them there actually are. They are also pretty minor. Most are simple age and residency requirements: you need to be at least thirty-five years old and have lived in the country for fourteen years to be president or vice president, thirty years old with nine years in the country to be a senator, and only twenty-five with seven years of residency to be in the House. The Constitution does not require that officers have to come from a certain lineage or have achieved a certain level of education or belong to any particular religious faith. Indeed, the “religious test clause” of Article VI flatly prohibits the government from requiring any religious test for any “Office or public Trust under the United States.”
It was no accident that the framers insisted on only the most minimal qualifications for high public office. Keeping these prerequisites to a minimum furthered two values that the framers believed were vitally important. The first was equality—the notion that anyone (well, any white man, that is) could aspire to elected office, even someone with no land, the measliest education, and the weirdest religious views. As James Madison said in The Federalist Papers, No. 52: “The door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.” The second value was representativeness—the idea that when people go to the polls, they should be able to elect whomever they want to represent them. These two values were so strongly championed by the nation’s founders that when the Supreme Court in 1995 considered the constitutionality of state-imposed term limits for US representatives, the Court pointed to them when finding that the short list of qualifications contained in the Constitution were intended to be exclusive. Since that list contains no limits on the amount of time a Representative can serve, the Court struck down an Arkansas law banning ballot access to anyone who had previously served three terms in the House.
What about the qualifications that are constitutionally required? The age requirements seem very straightforward. Justice Felix Frankfurter once called the thirty-five-year minimum age requirement for president one of the most “explicit and specific” provisions in the whole document, astutely observing that it “draws on arithmetic.” The supposed clarity of these provisions, however, has made them a favorite topic among people who like to argue about how the Constitution ought to be interpreted. One of the big issues in constitutional interpretation is whether the words of the text have a clear and fixed meaning that judges should mechanically apply or whether at least some parts of the document are ultimately indeterminate and therefore require judicial creativity (i.e., judgment) to apply. Most of this indeterminacy debate centers around the at least relatively loosey-goosey language of the Constitution’s lions, tigers, and bears—the First Amendment, for example, which prohibits laws “respecting an establishment of religion,” or the Eighth Amendment, which bars the infliction of “cruel and unusual punishments.”
In these debates over interpretation, the age provisions are often held up as examples that, at least some of the time, the framers knew how to create very clear rules. How much clearer can it get, it’s suggested, than saying that the president has to be at least thirty-five years old? For some of your more ardent supporters of constitutional indeterminacy, though, the age provisions have simply provided a spirited challenge. After all, if it is possible to show that even the “you have to be thirty-five to be president” clause is not entirely clear, then it is a good bet that phrases like “establishment of religion” or “cruel and unusual punishments” are clam chowdery as well. If that’s true, then judges might be more comfortable applying these phrases to stop the government, for instance, from leading Christian prayers or electrocuting prisoners or engaging in other nauseating practices that the Constitution does not expressly prohibit.
Given the prominence of these debates, it shouldn’t be surprising to learn that legal scholars have come up with all kinds of theories about why “thirty-five” might not really mean “thirty-five.” One typical argument goes something like this. When the framers said “thirty-five,” what they meant was that to be president a candidate must possess a “certain level of maturity” or a “minimum level of maturity and experience.” The arbitrary choice of “thirty-five” was simply intended as a shorthand for this more general principle. Thus, perhaps a particularly mature and experienced thirty-four-year-old could ascend to the presidency. A slightly different version of the argument extends the point, suggesting that we need to translate the principle from its eighteenth-century context to contemporary times, in which children arguably mature at a very different rate from earlier days. This leads to its own problems. Do children mature more quickly than they used to, or less? Does better access to education and information mean that people are ready to take on the presidency earlier than before (say, when they’re thirty) or does the relatively late assumption these days of adult obligations like employment, marriage, and parenthood argue in favor of raising the minimum age to something more like forty (or eighty)?
Okay, fine, you might say—perhaps it’s not entirely ridiculous to suggest that an experienced thirty-four-year-old should be able to become president. But certainly the Constitution prohibits someone who is, say, eighteen, from becoming president, right? Aha, say the constitutional-indeterminacy people, this is only because the facts of the world as we know them right now make it absurd to contemplate an eighteen-year-old president. What if these facts changed dramatically, though? Would you still be so confident in refusing to extend the language of the Constitution to allow an eighteen-year-old into office if, as one legal scholar posits, “an unstoppable virus causes the death of all persons over twenty-years old”? Or what if, as one of the nation’s most prominent legal academics has suggested, a teenage guru appears whose “supporters sincerely claim that their religion includes among its tenets a belief in reincarnation”? I mean, the guru says he’s forty-two-thousand years old, and you’re going to claim he can’t be president? Does it matter that the First Amendment prohibits discrimination on the basis of religion? Does it matter that the equal-protection clause of the Fourteenth Amendment arguably prohibits discrimination on the basis of age? Does it matter that both of these amendments postdate the main body of the Constitution, where the “thirty-five” clause is found?
Constitutional interpretation is a can of worms.
Among the constitutional provisions that create officer qualifications, the one proverbial turd in the punchbowl is the natural-born citizen clause of Article II: 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. The clause, described by critics as “highly objectionable,” “inane,” “blatantly discriminatory,” “morally dubious,” and a “lowdown dirty shame,” is the only place in the Constitution—indeed, perhaps, in all of American law—where a distinction is drawn between naturalized citizens and those born in the United States.
As is often the case, the framers didn’t say much about why they put the natural-born citizen clause into the Constitution. The source of the restriction, though, is generally traced back to a letter that John Jay, who would become the nation’s first chief justice, sent to George Washington in 1787. Jay wrote: “Permit me to hint whether it would be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government and to declare expressly that the commander in chief of the American army shall not be given to, nor devolve on, any but a natural born citizen.” It’s been said that Jay was responding to rumors that a foreign prince, such as Baron Von Steuben, the Prussian aristocrat who helped train the Revolutionary army, would be asked to serve as president. As the great nineteenth-century scholar and Supreme Court justice Joseph Story put it, the clause was intended to cut off “all chances for ambitious foreigners, who might otherwise be intriguing for the office.”
The clause is flawed for a whole of bunch of different reasons. For one, it’s hypocritical. Notice how the clause makes an exception for non-natural-born citizens at the time the Constitution was adopted; the United States didn’t have a natural-born citizen president until Martin Van Buren took office in 1836. The clause also doesn’t solve the problem it supposedly identifies. If someone who isn’t a natural-born citizen can’t be president, why can one of these untrustworthy scoundrels serve as secretary of state or chief justice of the Supreme Court or chairman of the Joint Chiefs of Staff or ambassador to the United Nations?
It is the principle of the thing, though, that’s really bad. The fact that just about anybody growing up within the country’s borders can aspire to someday hold the nation’s highest position is one of the most admirable features of our constitutional system. But then there’s this crazy provision that makes an exception for one group, and only one group, and says to members of that group: No, not you, you cannot become president, you are not equal members of this community. And why? Because people who become citizens are less likely to feel allegiance to the country than those who were citizens by birth? What a bizarre and unjustified assumption. What about those naturalized citizens who have lived in the United States practically their whole lives? What about those who have served in the government? In the military? As the guy who called the clause a vestigial excrescence on the face of our Constitution eloquently (if perhaps a bit melodramatically) put it:
[A]t the very heart of the constitutional order, in the Office of the President, the Constitution abandons its brave experiment of forging a new society based upon principles of voluntary commitment; it instead 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 status, this constitutional vision is a chilling reminder of a path not taken, of a fate we have struggled to avoid.
Then, of course, there’s the practical problem that we’ve been excluding some truly excellent potential candidates from running for president. Take, for instance, Bob Hope, who was ridiculously popular during the middle part of the twentieth century among US troops and just about everyone else but who was born in England to English parents and so could never become president. More seriously, consider whether it makes any sense at all to exclude governors Jennifer Granholm or Arnold Schwarzenegger or former secretaries of state Madeleine Albright or Henry Kissinger from seeking the presidency. As another symposium participant wrote, “There are many reasons why Henry Kissinger should not have become President, but his having been born in Germany is certainly not one of them.”
One person who has definitely never been barred from becoming president by the natural-born citizen clause is Barack Obama. Born in Hawaii in 1961, two years after it became a state, the nation’s forty-fourth president is undoubtedly a natural-born citizen. Ask some large percentage of the American public, however—some polls have it higher than 20 percent—and you’ll get a different opinion. The members of the so-called birther movement have all sorts of theories about why Obama is not a natural-born citizen. Some say he was born in Kenya. Or England. Or Indonesia. Or Russia. Some say he was smuggled into the United States as a baby. Some concede he was born in Hawaii but say it doesn’t matter because his father was born in England, thus making Obama a dual citizen of the United States and England (which is irrelevant anyway, but never mind). Some say his real father was a communist poet, which has nothing to do with the natural-born-citizen controversy except that it purportedly explains why Obama has not released his Hawaiian birth certificate.
Except that Obama has released his birth certificate. Twice! First, he put a copy online during the 2008 presidential campaign. The birthers didn’t believe it was real. Hawaii’s health director and registrar of vital statistics confirmed both that the birth certificate was real and that it said what Obama said it said. The birthers didn’t believe them. An independent organization called FactCheck.org, working out of the University of Pennsylvania, claimed to have seen, felt, and sniffed the actual birth certificate. The organization said it was real. The birthers weren’t convinced. In April 2011, Obama finally released his actual birth certificate, bowing to pressure from a man with bad hair. Still, though, lots of people somehow continue to insist that Obama was born overseas.
Birthers have filed a series of lawsuits challenging Obama’s presidency. So far, they’ve lost every one. Judges have tended to dismiss these lawsuits with great zeal. A federal district judge in Washington, DC, for instance, wrote of one challenge: “This case, if it were allowed to proceed, would deserve mention in one of those books that seek to prove that the law is foolish or that America has too many lawyers with not enough to do.” Of a prominent birther attorney, a federal judge in California said: “Plaintiff’s counsel has favored rhetoric seeking to arouse the emotions and prejudices of her followers rather than the language of a lawyer seeking to present arguments through cogent legal reasoning.” This same lawyer was fined $20,000 by a judge in Georgia for abusing the judicial system. Apparently Judge Clay Land was not persuaded by the attorney’s motions that “describe the President as a ‘prevaricator,’ allege that the President’s father was ‘disloyal and possibly treacherous’ to the ‘British Crown,’ accuse the undersigned of treason, and suggest that the United States District Courts in this Circuit are ‘subservient’ to the ‘illegitimate’ ‘de facto President.’ ” Citing “Yankee’s baseball legend and philosopher Yogi Berra” for the proposition that “it was déjà vu all over again,” and for using the term “frivolous” nine times in a seven-page order, Judge Land concluded, “Although the First Amendment may allow Plaintiff’s counsel to make these wild accusations on her blog or in her press conferences, the federal courts are reserved for hearing genuine legal disputes and not as a platform for political rhetoric that is disconnected from any legitimate legal cause of action.”
Personally, I have mixed feelings about the whole birther-movement thing. I mean, on the one hand, of course it’s wasteful and disgusting and probably racist, but on the other, it does serve to make conservatives look silly, which has got to be worth something, right? Even some more or less mainstream conservatives realize how ludicrous these birthers are. As right-wing talk show host Michael Medved put it, the movement’s leaders are “crazy, nutburger, demagogue, money-hungry, exploitative, irresponsible, filthy conservative imposters” who make people like him seem “sick, troubled, and not suitable for civilized company.” Nutburger! Plus, some of these birthers’ arguments are priceless. Here’s one of my favorites, in which a “dualist” (someone who thinks Obama has dual citizenship and is thus ineligible for the presidency) explains to a “twit” from the Huffington Post the basics of the dualist position on Obama’s legitimacy:
Imagine a cat sneaks into the dog pound, and has a litter of kittens, Obama can issue orders not [to] offend the kittens by calling them kittens, [Arianna Huffington] and the rest of the MSM [“mainstream media”] can write op-eds decrying the injustice of forcing them to be kittens and not puppies, George Soros can buy scientists to say kittens are mammals just like puppies are mammals to influence a congressional votes [sic] to make them dogs, but nature and natures [sic] God is going to make them scratch the couch, cough up fur balls and meow all day long. They are 100$ kittens, and more importantly they are 100$ kittens by nature. Obama by nature is not 100$ American and that is what this is all about.
You can’t make this stuff up.
Unlike Barack Obama, Republican senator John McCain was not born in the United States. He was born in the Panama Canal Zone in 1936 to parents who were both US citizens. Is McCain a natural-born citizen? If he had chosen a legitimate running mate and won the 2008 presidential election, could he have become president?
The question turns out to be tricky. The problem is that nobody knows exactly what it means to be a “natural-born citizen.” Indeed, the most obvious reading of the phrase would suggest that only people who are born vaginally can ascend to the presidency. Nobody takes this view, of course, but apart from people who are actually born in one of the fifty states, it’s not always clear who counts as a natural-born citizen (actually, even within the fifty states, things can get fuzzy—what about children of foreign ambassadors or enemy combatants?) For example, what about children of Native Americans born on reservations that are not subject to federal jurisdiction? What about children born in Guam or Puerto Rico? What about children whose nationality is unknown? What about children born on US military bases overseas? What about children—like John McCain—born outside the United States to parents who are both US citizens? As to all these questions, the answer is basically who knows? US immigration and citizenship law is notoriously confusing, and the Supreme Court has never provided any concrete guidance on these thorny issues.
The question of whether someone who is born outside the United States to citizen parents can become president has come up several times. For some reason, 1968 was a big year for natural-born-citizen controversies. Both Barry Goldwater, who was born in Arizona before it became a state, and George Romney (father of Mitt), who was born in Mexico to Mormon missionaries, ran for president in 1968. Some observers were worried about whether these guys could have become president, but since neither of them won, the question never got resolved. The issue was raised during the 2008 election as well, and the McCain team even asked a couple of super-prominent lawyers to provide their legal opinion on the matter. When Laurence Tribe (on the left) and Theodore Olson (on the right) submitted their joint memorandum arguing that McCain was a natural-born citizen, the Senate soon thereafter passed a resolution concurring with their conclusion.
The Tribe-Olson legal opinion advanced two main arguments for why McCain is a natural-born citizen. Both arguments are plausible, but they are by no means free from doubt. First, the memo argues that McCain is a natural-born citizen because the United States exercised sovereignty over the Panama Canal Zone, and therefore McCain was born within the United States for purposes of the natural-born citizen clause. The potential problem with this theory is a series of cases decided by the Supreme Court in the early twentieth century called the Insular Cases, in which the Court held that the Constitution does not apply in full to unincorporated territories (those not destined to become states) like the Panama Canal Zone or Guam or (at the time) the Philippines. The legal opinion doesn’t address the Insular Cases, and as University of Arizona law professor and main McCain-isn’t-a-natural-born-citizen-arguer Gabriel Chin suggests, if McCain is a natural-born citizen simply because the Panama Canal Zone was under the sovereignty of the United States in 1936, then millions of people born in the Philippines before 1946 and the Panama Canal Zone before 1979—as well as perhaps their children and grandchildren—would be US citizens, which is something nobody ever figured was the case.
Second, Tribe and Olson argue that the framers of the Constitution understood the phrase “natural born citizen” to include children of US citizens born abroad. Because the framers didn’t explicitly address the question anywhere in the document itself or in its drafting history, though, the argument is based on inferences about what the state of the law was in England and the Colonies in 1787 regarding English citizenship, how much the framers knew about this law, and whether the framers (if they did know about it) intended to incorporate that law in the Constitution. These issues, it turns out, are hairy indeed. Legal scholars who have dived into the historical materials have surfaced with very different answers. It is true that the phrase “natural born citizen” echoes the phrase “natural born subjects” in English law at the time and that some laws of Parliament had extended the traditional notion of English citizenship (those born within the king’s geographical realm) to children born outside the king’s realm to parents who were subjects. On the other hand, as some have argued, it is far from clear that the American legal thinkers, founders, and colonial leaders at the time intended to import into the new nation English law created by Parliament in addition to the law handed down by English courts. And while it is true that a 1790 US statute provided that children born abroad to US citizens would themselves be considered natural-born citizens, this law could just as easily have represented a conscious change in how these children would be treated as it could have represented a confirmation of contemporary understandings (which is what the Tribe-Olson memo suggests).
This 1790 statute provides a third independent argument in favor of McCain’s natural-born citizenship. The law, as it was amended in 1795 and read in 1936, granted US citizenship to any child “hereafter born out of the limits and jurisdiction of the United States” if at least one of the child’s parents was a US citizen. Assuming that a statute like this can suffice to make someone a natural-born citizen under the Constitution (not altogether clear), whether it covers McCain turns on whether the Panama Canal Zone existed “out of the limits and jurisdiction of the United States” at the time of McCain’s birth in 1936. Scholars disagree about this. In his article “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship,” the aforementioned University of Arizona professor Gabriel Chin argues that the statute did not cover McCain because the Panama Canal Zone, while outside the limits of the United States, was not outside the jurisdiction of the United States. In response, a young scholar named Stephen Sachs has argued that the statute did cover McCain, suggesting among other things that the phrase “limits and jurisdiction” is a so-called legal “doublet,” two words linked together that are not intended to have independent meanings, like “cease and desist” or “aid and abet” or “fair and balanced.” In reply, Chin asks why, if people like McCain were covered by the 1795 law, Congress felt it necessary to pass a law in 1937 specifically providing that people born in the Panama Canal Zone to US citizen parents would thereafter be considered US citizens. It’s a good question, particularly since it seems clear that members of Congress who advocated for the 1937 law believed that the Panama Canal Zone was, in the words of one member of the House of Representatives, “a no man’s land”—not fully inside of the United States but not fully outside of it either.
So, is McCain a natural-born citizen, or not? If you ask me, I would say yes. That’s because I believe that judges should interpret the Constitution pragmatically, looking to whether any particular interpretation makes sense in light of all the relevant circumstances, including not only the text of the document but also, in appropriate cases, to considerations of what is best for society. Because the language of the Constitution is ambiguous, and because it makes no sense to exclude people like McCain from the presidency, I would choose to interpret the natural-born citizen clause in a way that allows more people to become president rather than fewer people. Then again, however, McCain repeatedly stressed during the 2008 campaign that he prefers judges, like Justices Scalia and Thomas, who “strictly construe” the Constitution. So if McCain had won the election, and the Supreme Court had subsequently happened to use McCain’s own preferred method of constitutional interpretation to bar him from the presidency, I wouldn’t have shed any tears about it.
Could someone who is clearly not a natural-born citizen ever carry out the duties of the president under our current Constitution? Surprisingly, perhaps, the answer may be yes, although getting there is a bit of a puzzle and would require Congress to pass one small statutory amendment, which it should proceed to do immediately. To figure this puzzle out, we have to look closely at the parts of the Constitution dealing with presidential succession.
Article II, Section 1, of the Constitution says that if the president dies, resigns, or becomes incapacitated, then the “Powers and Duties” of the presidency “shall devolve on the Vice President.” This language was modified in 1967 by the Twenty-fifth Amendment, which says that, “In case of the removal of the President from Office or his death or resignation, the Vice President shall become President.” Put these two provisions together, and you’ll see that if the president dies or resigns, the vice president becomes the president, but if the president is merely incapacitated, the president remains the president, and his duties devolve on the vice president. In the language of other parts of the Constitution (the Twentieth, Twenty-second, and later sections of the Twenty-fifth amendments, for instance), this means that if the president is incapacitated, the vice president becomes the “acting” president rather than the actual president. Incidentally, one of the Constitution’s super-odd provisions—Section 4 of the Twenty-fifth Amendment—provides that if the president and vice president disagree about whether the president is incapacitated, Congress gets to decide who will run the country (seriously, check it out).
What happens if both the president and the vice president die, resign, or become incapacitated? Anyone who is old enough to remember the 1981 assassination attempt on President Reagan will likely recall how Secretary of State Al Haig crazily wrongly announced that he was “in control” of the government pending the vice president’s return to the White House. In fact, Haig was fourth in the line of succession, behind not only Vice President George H. W. Bush but also Speaker of the House Tip O’Neill and the president pro tempore of the Senate, Strom Thurmond. That’s because under Article II, Section 1, of the Constitution, Congress “may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President.” The statute passed by Congress under this section provides that if neither the president nor the vice president can discharge the president’s duties, then the following officers, in this order, shall “act” as president:
Speaker of the House, President pro tempore of the Senate, Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, and Secretary of Homeland Security.
The natural-born citizen clause applies only to becoming the president, not to acting as president. The clause says that only a natural-born citizen is “eligible to the office” of president; presumably, then, someone who holds a different office (say, the secretary of state) while carrying out the duties of the president, does not have to be a natural-born citizen. Would it be okay for a vice president who is not a natural-born citizen to serve as an acting president in case the real president was incapacitated? Unfortunately, the Twelfth Amendment says that the vice president must also be a natural-born citizen (specifically, it says that “no person constitutionally ineligible to the office of President shall be eligible” to be the vice president), so this could never happen. But what about the other people on Congress’s list? The Speaker of the House, for instance, or the secretary of veterans affairs?
Nothing in the Constitution prohibits any of these people from acting as president even if he or she is not a natural-born citizen. The problem, though, is that in the succession statute, Congress has provided that only officers who would be “eligible to the office of President under the Constitution” are authorized to act as president. In other words, if the president, vice president, Speaker of the House, president pro tempore of the Senate, and secretary of state were all dead, and the secretary of the treasury was not a natural-born citizen, then the secretary of defense would become the acting president rather than the secretary of the treasury. Here, it is Congress, rather than the Constitution, that has placed a disability on those citizens who were born outside the country.
In an ingenious article entitled “Unnatural Born Citizens and Acting Presidents” (to which I am much indebted for the above discussion), then law-firm lawyer and now (at this writing, anyway) the solicitor general of Texas, James C. Ho, argues that Congress should amend the succession statute to allow non-natural-born citizens to act as president in case both the president and vice president become unable to carry out the president’s duties. As Ho, who himself is not a natural-born citizen, writes:
Even such an incremental step . . . would at least allow the members of a previously excluded class of individuals some opportunity to prove that loyalty to the United States, the Constitution, and our founding principles of freedom and democracy is not the exclusive province of the native-born, by devolving presidential power to foreign-born citizens under relatively controlled conditions. . . .
Ho recognizes that this amendment would be a “very small step,” but he also realizes the symbolic importance of the step—a step, as he says, that “would extend to millions of current and future mothers and fathers the distinctively American dream that their children might someday grow up to be (acting) President.”
It’s a brilliant suggestion. Congress should take Ho’s advice, and pronto.
If the Fourteenth Amendment is a constitutional lion, and the incompatibility clause is a constitutional prairie dog, then the natural-born citizen clause is a constitutional Asian tiger mosquito, nutria rat, or zebra mussel. In other words, it is a pest. Pests need to be controlled. Ho’s congressional solution is one small way to control it; judicial interpretation that limits the clause’s scope is another way. But neither is sufficient. Even if judges limit the scope of what it means to be a “natural-born citizen” to those people clearly born outside US territory to parents who are not themselves US citizens, this still leaves many completely legitimate and highly qualified naturalized citizens forever excluded from seeking the presidency, and it still sends a symbolic message to these citizens that they are somehow second-class members of society.
For real constitutional pests like the natural-born citizen clause, nothing short of extinction through constitutional amendment will suffice. But getting rid of the clause will be about as easy as ridding the Great Lakes of zebra mussels. The framers purposely made it very difficult to amend our founding document; Article V provides that, among other things, three-fourths of the states have to ratify an amendment before it becomes part of the Constitution. As a result of this high bar for amendment, the Constitution has been amended only twenty-seven times in US history and only seventeen times since 1791. Still, though, it’s probably worth a try. If it’s good enough for the Sylvester Stallone–Sandra Bullock futuristic movie Demolition Man, in which it’s revealed that Arnold Schwarzenegger became president as a result of the no-more-natural-born-citizen-requirement Sixty-first Amendment, then it should be good enough for real life too.