Natural-Born Citizenship: An Unfair Requirement for the Presidency

By Habib Olapade
Habib Olapade is a first-year law student at Yale University.
 
One way to measure whether an individual is an equal community member is to ask whether that person is eligible to serve in the community’s highest office. The gratuitous burdens that non-white and female presidential candidates must endure regardless of their talent is a testament to our society’s continuing struggle with racism and sexism. [1] Our unconscious prejudice, however, is not a formal legal barrier to the presidency because “there is no superior, dominant, or ruling class” in this country. [2] Indeed, any thirty-five year old who has lived in the United States for fourteen years can technically run for the highest office in the land. [3] And it is a fundamental proposition of American life that every child can conceivably grow up to be our commander-in-chief.
    
But, is this narrative flawless? Not exactly. Article II § 1 of the U.S. Constitution states that “no person except a natural-born citizen…shall be eligible to the Office of President.” [3] The Framers were not trying to fence out babies born through Caesarian sections. Instead, this provision targets infants who were born to non-citizen couples outside American territory. [4] The natural-born citizen requirement is an exclusive outlier in an otherwise inclusive document, because it assumes that some citizens are more authentic and trustworthy than others. Nearly twenty-six million U.S. residents, some of whom have invested their all in, and risked everything for, this nation, can never lead the country because they were born abroad to non-naturalized parents.

This mass disqualification is illogical. One’s place of birth has absolutely no bearing on their commitment to a nation and its values. Loyalty and desire to work for the state’s welfare are individual, not group, characteristics. [5] Some of America’s greatest statesmen and stateswomen, such as Henry Kissinger, Madeleine Albright, Samantha Power, Zbigniew Brzezinski, and John Sununu, were born abroad. The native product requirement also stigmatizes naturalized citizens. Consider that under the current system, some natural-born convicted felons are eligible to run for President but Jennifer Granholm and Arnold Schwarzenegger are not. There are countless reasons why Schwarzenegger should never be in the Oval Office but, the fact that he was born in Austria is not one of them. Exclusion sends a clear message to naturalized citizens: you can move here, live here, and work here, but you will never be good enough to lead us.
 
How do we fix this problem? America’s foolhardy Constitutional venerance makes a formal amendment unlikely. [6] Hope endures, though, because Congress can do something. The Constitution requires both the President and Vice President to be natural-born citizens. [7] If both officials are unable to exercise their duties, however, federal law dictates who will temporarily act as president. [8] The acting president is not constitutionally required to be a natural born citizen but, the current succession statute provides that naturalized citizens may not act as president. [8] It follows that Congress only has to pass a statute to allow a foreign born individual to serve as acting president. This solution is not a panacea for our problems but, it is a step in the right direction. Some might acknowledge the natural citizen clause’s injustice but throw up their hands because this issue is not high on anyone’s agenda. This much is true. But, injustice anywhere is a threat to justice everywhere. Our lives end when we silently consent to prejudice.
 
       
[1] james gregory, tom bradley, the impossible dream: a biography 243-288 (1986).
[2] Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
[3] U.S. Const. art. II, § 1, cl. 5.
[4] United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898). Weedin v. Chin Bow, 274 U.S. 657, 670 (1927).
[5] Oyama v. California, 332 U.S. 633, 666 (1948)(Murphy, J., concurring).
[6] See generally, sanford levinson, constitutional faith (1988).
[7] U.S. Const. amend. XII.
[8] 3 U.S.C. §19(c).
 Photo Credit: PRO The White House

 
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