A Fresh, Powerful Case for Amending the U.S. Constitution to Remove the "Natural Born" Qualification For the Presidency

By JOHN W. DEAN
Friday, Mar. 11, 2005

The February 2005 issue of the Boston University Law Review includes a terrific article by Sarah Helene Duggin and Mary Beth Collins, entitled "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."

Duggin is an assistant professor at Columbus School of Law at Catholic University; Collins is a law clerk for a judge on the Circuit Court for Allegheny County Maryland (and a recent graduate of the Columbus School of Law). Their article takes aim at the antiquated requirement, contained in Article II of the Constitution, that "[n]o person except a natural born Citizen" can be President of the United States. They lay out in detail the complexity of this simple-seeming clause, and make a compelling case that the Constitution ought to be immediately amended to remove it.

I've written on this subject before, but after reading this article I wanted to tip my hat to the authors' excellent scholarship. It's hard to do this lengthy article justice, so interested readers ought to go on to read it in full. (Duggin and Collins also go into matters - including questions of who might have standing to sue to clarify the meaning of the "natural born" clause -- that are beyond this column's scope.) Suffice it to say that their work is deeply insightful, and well worth reading.

Who Is A "Natural Born" Citizen? And Who Is "Born in the United States"?

The authors incisively examine the "natural born" clause in the broader - and perhaps even more confounding -- context of the Twelfth, Fourteenth, Twentieth, and Twenty-Fifth Amendments.

Congress has never defined the meaning of the Constitution's phrase "natural born"; instead, by 1795, its members had simply stopped using the term. Thus, it is hopeless to look to usage for any guide to the phrase's meaning.

Nor will other provisions of the Constitution illuminate its meaning - as Duggin and Collins explain. The Fourteenth Amendment, for instance, seems as if it might be helpful - but turns out not to be.

Adopted in 1868, the Fourteenth Amendment stipulates that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…." This language raises a number of questions. One is what the relationship - if any - of "natural born" to "born or naturalized in the United States, and subject to the jurisdiction thereof" may be. Another is just what "born…in the United States" and "subject to the jurisdiction" of the United States might mean.

Senator Barry Goldwater, who ran for president in 1964, was born in the Arizona Territory in 1909, before statehood. Was he "born in the United States"? The authors believe that under early American common law, and given the Congressional intent underlying the Fourteenth Amendment, that "Senator Goldwater was probably safe in seeking the presidency." (Emphasis added). So too, they conclude, for anyone born in Alaska before January 3, 1959 or Hawaii before August 21, 1959 - their dates of statehood, respectively.

What about those born in areas that remain unincorporated territories: Puerto Rico, Guam, the Virgin Islands, the Northern Marana Islands, American Samoa, and the Swains Islands? Duggin and Collins conclude that they "are not citizens at birth" so it is "unlikely" any could be considered a "natural born citizen" under Article II. Thus, when it comes to running for president, these Americans might as well have been born in an Al Qaeda tent in Afghanistan.

What about those born in the nation's capital -- the District of Columbia? Duggin and Collins believe they are probably "natural born" citizens as Article II requires, but note that "a modicum of uncertainty remains." D.C., of course, never became a state; as a result, residents have only token representation in Congress, and the Constitution had to be amended so they could vote in presidential elections.

And what about the children of native Americans? Duggin and Collins conclude that it is "unlikely that a federal court would ever hold a putative President ineligible for office solely on grounds of membership in a Native American Tribe" - but note, also, that the Constitution's requirements might cast "a shadow over" such a candidacy.

Who Is "Born Subject To American Jurisdiction"?

The Fourteenth Amendment, as noted above, stipulates that one must also be "subject to the jurisdiction of" the United States. That leads to an odd anomaly: Typically, one born in the U.S. is subject to its laws - but not always. The children of foreign diplomats have diplomatic immunity, so for Fourteenth Amendment purposes, they are not American citizens.

As the authors note, the U.S. State Department monthly "Blue List" includes all diplomats and their families entitled to full immunity. But there is also a White List - which sets forth those who have partial immunity. Are they citizens, if born in the United States? Or, put another way, is having partial immunity enough to count as being "subject to the jurisdiction of" the United States? The answer is not clear.

The status of foundlings - children found in the U.S. whose birthplace is unknown - is also hazy. Duggin and Collins note that it is not clear "whether a person whose place of birth is never discovered would be eligible for the Presidency. Some risk would always remain that a foreign birthplace would be subsequently discovered."

The "Natural Born" Clause Has Outlived Any Purpose It Ever Served

To the traditional case against the "natural born" citizenship requirement for the presidency, which I set out in my prior column, Duggin and Collins offer some extra ammunition.

Of course, being "natural born" is not a reliable proxy for a citizen's loyalty; nor is being born abroad somehow an index of disloyalty. And even if it were, Duggin and Collins point out, rough proxies or indexes for loyalty are far less necessary nowadays, for loyalty can be judged quite well directly. They point out, for instance, that the "communications revolution, the consequent explosion of publicly available information the increased regulation of election campaigns, and the expansion of the electorate combine to make the modern campaign serve as a reliable screen for presidential candidates' loyalty."

In short, the concerns of the Eighteenth and Nineteenth Centuries have little meaning in the Twenty-first Century: There is no need, if there ever was (and that is doubtful), to make rash generalizations about loyalty based on place of birth - which, of course, is the choice not of oneself, but of one's parents - usually!

Duggin and Collins quote Randall Kennedy, who is especially eloquent on this point. Kennedy notes, "This idolatry of mere place of birth seems … an instance of rank superstition. Place of birth indicates nothing about a person's willed attachment to a country, a polity, a way of life. It only describes an accident of fate over which an individual has no control."

Succession Statute Concerns Are Especially Acute

In their article, Duggin and Collins also examine the interplay between the "natural born" clause, the presidential succession statute - which explains what will occur in the event of the death or disability of the President, the Vice President, and so on -- and other federal statutes.

In particular, the authors cite the May 2003 report of the Continuity of Government Commission -- sponsored by the American Enterprise Institute, and chaired by Lloyd Cutler and Alan Simpson (with honorary co-chairs Jimmy Carter and Gerald Ford) - to show how bad the state of the succession statute already is. They note the confusion that would result, according to the report, in the event of an apocalyptic act of terrorism in Washington - one in which all present in the Capitol and the White House were killed, and the government thus decapitated. As Duggin and Collins explain, the "natural born" clause would only worsen the confusion, if some in the chain of succession happened not to have been born in the United States.

The succession laws are a disaster waiting to happen, and their relationship with the "natural born" clause is doubly unfortunate. If there has been more irresponsible -- even shameful, given the stakes -- stalling and inaction by official Washington on a more important topic, it is not clear what it might be.

Both Leaders and the Public Must Get Behind an Amendment

Duggin and Collins, after their scholarly study, concluded a constitutional amendment is essential. Even under the best of circumstances, an amendment takes several years. Now is the time - indeed, it is already late in the day - to begin pushing for one.

It is appalling that such proposals as a constitutional amendment to ban gay marriages are being pushed so strongly, while the "natural born" and succession statute issues languish. This nation would be much safer if we focused on key security concerns, first and foremost.

Whatever one's position on gay marriage is, it's simply impossible, especially after September 11, to argue that federal resolution of this issue is somehow more important than resolving ambiguities presidential succession in the case of a terrorist attack.

Sadly, though, there is little public support for either clarifying the succession statute, or ridding ourselves of the "natural born" clause. That is because there is little public understanding of the problems.

Disappointingly, in a November 19-21 2004 USA TODAY/CNN/Gallup Poll, only 31% favored an amendment abolishing the "natural born" clause, and 67% opposed it. Opposition dropped slightly, to 58%, when Arnold Schwarzenegger's name was included in the question - Schwarzenegger, of course, is not a "natural born" citizen of the U.S.

This poll is evidence of staggering public ignorance about the problem. Those who are knowledgeable about the "natural born" issue virtually all come to the same conclusion that Duggin and Collins have reached: There is no modern purpose for the clause, and in a nation of immigrants, it's downright offensive, even un-American.

Political leaders and the mainstream media owe it to all of us - and in particular, to their immigrant constituents -- to take on the "natural born" issue. It ought to be true that every American can grow up to president - regardless of on what soil he or she happened originally to be born.


John W. Dean, a FindLaw columnist, is a former counsel to the President. He expresses his thanks to Sarah Helene Duggin and Mary Beth Collins for their excellent work, cited above.

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