The Odd Clauses (12 page)

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.