by Jay Wexler
The original-jurisdiction clause, then, is one of a number of crucial constitutional provisions meant to secure peace among the several states. Of course, the United States was almost torn apart irrevocably in the 1860s by the Civil War, and so we can’t say that the original-jurisdiction clause has fully prevented interstate conflict. It is, however, hard to imagine that anything could have prevented the Civil War, and apart from that war, and putting aside the governor of New Hampshire’s melodramatic proclamation about Maine’s assault on his state’s lobstermen, the United States has remained remarkably free from real interstate conflict. Part of the reason surely lies in the original-jurisdiction clause, which lets aggrieved states take their cases directly to the highest court in the land, an objective court with no direct connection to any particular state. Most people in the United States probably don’t even know about the original-jurisdiction clause, but that doesn’t mean it’s not important. On the contrary, the clause’s inconspicuousness is evidence of how well it works. The original-jurisdiction clause is one of those parts of the Constitution that goes about its business quietly—oddly and quietly—performing a critical function for our nation.
CHAPTER 5
The Natural-Born Citizen Clause
Elected Office for (Almost) Anyone!
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.”
