A Right of All Citizens

The controversy over President Barack Obama’s birth certificate reveals that more is wrong with the United States than the presence of demagogues, bigots, and cranks. After all, the foundation of the birthers’ allegation was the Constitution of the United States, specifically Article II, which declares that “[n]o person except a natural born Citizen of the United States, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” That provision invidiously discriminates against the many Americans (nearly 17 million in 2009) who were born abroad and have become naturalized citizens. Few people have realistic prospects of winning the country’s top elective office whatever their background. But excluding certain citizens from consideration based merely on nativity is unjust and self-destructive. It makes second-class citizens of naturalized citizens by suggesting that they are somehow not as American and not as trustworthy as “real” Americans who are native-born. It also deprives the United States of putting to use at the apex of government the manifold talents of all American citizens.

The natural-born citizen requirement received little attention at the constitutional convention of 1787. Historians trace it to a recommendation made to George Washington by John Jay, who later became the first chief justice of the Supreme Court. “Permit me to hint,” Jay remarked in a letter, “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 Command in Chief of the American army shall not be given to nor evolve on, any but a natural-born Citizen.” In other words, some in the founding generation feared that the foreign-born might retain a secret or latent loyalty to their land of birth. Another fear was that European powers might insinuate within the new republic agents who would rise to power, subvert the young democracy, and reimpose monarchy. The “general propriety of the exclusion of foreigners … will scarcely be doubted by any sound statesmen,” Justice Joseph Story declared in his Commentaries on the Constitution of the United States. “It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office.”

Whether or not this absolute bar based on nativity made sense at the founding, it is now dangerously unfair and unwise. It stigmatizes all immigrants, expressing in the fundamental law of the United States a judgment that they are irremediably flawed, forever cast under a pall of increased suspicion, perpetually labeled as less fully American than fellow citizens who happen to have been native-born. Idolatry of place of birth is a rank superstition. Nativity indicates nothing about a person’s willed attachment to a nation, a polity, or a way of life. Nativity denotes an accident of fate over which an individual has no control.

Many continue to believe that, at least with respect to the presidency, being born abroad, no matter what one’s contribution to the country, raises a sufficient question to warrant ineligibility. “I don’t think it is unfair to say the president of the United States should be a native-born citizen,” Senator Dianne Feinstein declared several years ago at a hearing of the Senate Judiciary Committee devoted to considering a proposal to amend the natural-born citizen exclusion. “Your allegiance is driven by your birth.”

Feinstein’s intuition is wrong. On the one hand, there are the numerous examples of immigrants who, having chosen to become citizens, have poured their all into the development and defense of this country—including about 700 persons, born abroad, who have been awarded the nation’s highest military award for bravery, the Medal of Honor. On the other hand, there are native-born Americans who have disgraced themselves and endangered their neighbors by despicable acts of betrayal. One thinks here of Robert Hanssen, the CIA double-agent; Timothy McVeigh, the Oklahoma City bomber; and John Walker Lindh, the American Taliban soldier. Defenders of the exclusion of foreign-born citizens sometimes express fear of a “Manchurian Candidate,” alluding to the novel by Richard Condon and two spinoff films that portray the danger posed by brainwashed officials who rise to high positions. But the exclusionists seem to forget that the fictional characters to whom they refer were American-born.

The natural-born exclusion fetishizes nativity. When it comes to assessing loyalty, what should matter is indicia of demonstrated allegiance. But, even if one attaches significance to the socialization that a person experiences growing up, a focus on mere nativity is misleading. As noted by Sarah Helene Duggin and Mary Beth Collins in their excellent 2005 Boston University Law Review article, “Natural Born’ in the USA,” under our current rule, “An infant born in one of the fifty states but raised in a foreign country by non-United States citizens could serve as President, while a foreign born child adopted by United States citizens at two months of age and raised in the United states would not be eligible to become President.”

The Constitution’s invidious discrimination against immigrants is constantly overlooked. In 2004, at the Republican National Convention, the governor of California, Arnold Schwarzenegger, proclaimed that, in America, “it doesn’t make any difference where you were born.” Obviously, though, that was and is erroneous. Because of the natural-born exclusion, Schwarzenegger could never hope to be president since he was born in Austria. Other prominent Americans who have similarly been disqualified from the presidency include John Shalikashvili, former chairman of the Joint Chiefs of Staff; Madeleine Albright, former Secretary of State; and Lowell Weicker, former United States Senator. There are many good reasons why former Secretary of State Henry Kissinger should never have been considered for the presidency; that he was born in Germany should not have been one of them.

In 2008, in a speech entitled “The America We Love,” then-Senator Barack Obama asserted that an “essential American idea” is the belief that “we are not constrained by the accident of birth but can make of our lives what we will.” What he stated should be an essential idea and practice. If it was, we would have been spared the depressing furor over his birth certificate because where he was born would be irrelevant to assessing his fitness for the presidency.

Writing in the Constitution’s bicentennial year, William Safire declared that the “blatantly discriminatory eligibility clause is a blot on the national escutcheon and an anachronistic offense to conscience.” Why, he asked, “do we allow Jay’s outmoded suspicion to dry up our talent pool and insult our most valuable imports?” Why, indeed? We ought to amend the Constitution by removing the natural-born citizenship requirement. We ought to free the American people to decide whom they want as their president. Place of birth should pose no bar.

Randall Kennedy is the Michael R. Klein Professor of Law at Harvard University and the author of The Persistent Color Line: Racial Politics and the Obama Presidency (Pantheon Books, August 2011). 

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