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?Natural-Born? Killer? Mulling a Constitutional Amendment

By Ashby Jones

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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

U.S. Constitution, Article II, Sec. 1

The above portion of the great document has gotten a lot of airplay in recent months and weeks, what with the 1) speculation from some that President Obama is not a “natural born citizen” and 2) the countermovement against that speculation, which led to the invention of the derisive “birthers” neologism about three weeks ago.

Rather than delve into the heart of the controversy, we’d prefer to ask a broader question: has the “natural born Citizen” requirement for president outlived its usefulness? Should it be repealed?

A law professor at Temple, Peter Spiro, argues in the Philadelphia Inquirer on Thursday that the answer should be yes.

For starters, writes Spiro, the requirement is outdated:

The natural-born provision is an artifact of a time when one’s birthplace was fraught with consequences. In the feudal conception of natural law, one was born into the protection of a territory’s sovereign, for which one was thought to owe an indissoluble duty of allegiance. . . .

Today, birthplace is hardly so meaningful. Many more individuals are being born outside the United States to U.S. citizen parents (often with dual citizenship), and others are naturalizing at an early age and maturing as Americans in every sense. Notions of perpetual allegiance dissipated long ago.

Furthermore, writes Spiro, the requirement draws distinctions that are largely arbitrary:

Foreign-born adopted children are extended citizenship automatically upon admission into the United States with their new parents. Can any of the thousands who have moved here as infants from China, Korea, Guatemala, or Romania grow up to be president? . . .

And then there are the more than 15 million naturalized Americans who more clearly fall short of being natural-born citizens - among whom Obama might have been counted if the details of his mother’s life were a little different. For them, the presidential eligibility clause represents sanctified discrimination, a kind of asterisk next to the principle that they enjoy equality with other citizens.

Constitutional amendments ain’t easy to pass. But, writes Spiro, a natural-born killer movement would be likely to garner at least some bi-partisan support. After all, efforts to repeal the requirement were earlier this decade initiated by Republicans enticed by the prospect of an Arnold Schwarzenegger presidency. Utah Republican Orrin Hatch introduced the “Equal Opportunity to Govern Amendment” in 2003, and it enjoyed bipartisan support, including that of Michigan’s Canadian-born Democratic governor, Jennifer Granholm.

LB Readers, let’s hear your thoughts on this.

Full post as published by Law Blog - WSJ.com on July 30, 2009 (boomark / email).