Wednesday, November 12, 2003

“Only those born in the U.S.A. may apply.” That, in effect, is what the Constitution says to naturalized citizens who might think about running for president. They may not do so. “No Person,” states Article II, Section 1, “except a natural born Citizen … shall be eligible to the Office of President.”

The natural-born citizen requirement is one of those parts of the Constitution that has operated silently over the years, without litigation. But now comes Sen. Orrin Hatch, Utah Republican, to say we should amend the Constitution to take down that “do not apply” sign.

Mr. Hatch acknowledges what most scholars regard as the reason the Framers denied eligibility to naturalized citizens: concern that a foreign power might place someone inside the young and fragile nation and contrive to have that person elected president.

But that concern, says Mr. Hatch, is hardly so compelling today. And so, he argues, the natural-born requirement shouldn’t be allowed to stand, especially not since it works in what the senator calls a “decidedly un-American” manner. By which he means that it’s unfair to naturalized citizens, because they are denied an “equal opportunity” to run for president; and unfair to us voters, because we are denied “every opportunity to choose” our leaders. Not surprisingly, Mr. Hatch calls his proposal the “Equal Opportunity to Govern” amendment.

Because Mr. Hatch and Austrian-born Arnold Schwarzenegger, the soon-to-be California governor, are said to be close friends, the senator’s measure has been skeptically dubbed the Schwarzenegger amendment. But the amendment is no respecter of political parties. It would equally affect the career options of Jennifer Granholm, the Canadian-born Democratic governor of Michigan. Moreover, the interest in making foreign-born citizens eligible for the presidency is bipartisan. In the House, Arkansas Democratic Rep. Vic Snyder has proposed an amendment similar to Mr. Hatch’s.

The natural-born citizen requirement is conspicuous on account of the fact that nowhere else in our law is there a distinction drawn between those who are citizens at birth and those who become citizens via naturalization. Yet this seeming anomaly has an interesting and not irrelevant history.

In his forthcoming book, “America’s Constitution: A Guided Tour,” Akhil Amar of the Yale Law School points out that the Constitution’s approach to eligibility for office actually “represented a considerable liberalization of 18th-century English practice.” As he explains, under England’s 1701 Act of Settlement, naturalized foreigners were prohibited from serving in the Privy Council or Parliament, and from holding any office or place of trust, whether civil or military. “By contrast, the Constitution opened virtually all federal positions — the Congress, the judiciary, the Cabinet and the military — to naturalized citizens.”

Notably, even as they reserved the presidency for naturalized citizens, the Framers refused to make that reservation absolute, since they made eligible for the office immigrants who were already American citizens in 1787.

Mr. Amar credits the Framers with operating according to a general rule of openness to immigrant Americans. They departed from that rule in writing the natural-born citizen requirement because of their worry a foreign duke might come to America “with immense wealth and a vast retinue and then use his European riches to buy friends on a scale that virtually no homegrown citizen could match.” Here, too, observes Mr. Amar, America differed from England since the 1701 Act imposed no natural-born requirement on the head of state and in fact contemplated the foreign-born monarchs that soon would rule.

The chances that Mr. Hatch’s amendment might be added to the Constitution are, it must be said, very slight. Since the Founding, members of Congress have suggested thousands of amendments, but Congress has actually proposed only 33, and of those just 27 have been ratified. So far, no groups have organized on behalf of Mr. Hatch’s amendment. Nor does anyone really believe the country has a problem supplying itself with qualified presidential candidates.

Ultimately, what’s most striking about the Hatch and Snyder proposals is that under both there would still be a distinction between immigrant and natural-born citizens. Which is to say, there would not be complete equality. A foreign-born American must be a U.S. citizen for 20 years before gaining eligibility under Mr. Hatch’s amendment, and 35 years under Mr. Snyder’s.

Those waiting periods evince a concern that foreign-born citizens who aspire to the presidency must be essentially American. Were they living today, the Framers would understand that concern, just as they would also understand the desire to liberalize requirements for holding office, even the nation’s highest.

Terry Eastland is publisher of the Weekly Standard.

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