The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This coming Friday May 18 marks the 150th anniversary of the first introduction in Congress of a proposed amendment to the Constitution that would excise the "natural born Citizen" presidential eligibility requirement. This 1868 proposal, introduced by Irish-born Congressman William Erigena Robinson (D-NY), provided that Article II, Section 1, Clause 5 be amended so as to read:
"No person except a Citizen of the United States 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."
In strikethrough form:
"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."
The immediate political context in 1868 was second-class citizenship abroad for Irish-born Americans in trouble with British authorities for their promotion of Irish republicanism (also known as Fenianism). Relying on the doctrine of perpetual or indefeasible allegiance (roughly "once a subject, always a subject"), the British had imprisoned and punished as traitors suspected Fenians, including Union veterans who were naturalized American citizens. Neither United States law nor the law of nations at this time had settled the clashing right of a nation to protect its naturalized citizens abroad as against the right of a nation that claimed authority over the same individuals under the doctrine of perpetual allegiance.
The equal rights of naturalized citizens at home in the United States was settled as a matter of domestic law with ratification of the Fourteenth Amendment in July 1868. The first sentence of Section 1 provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The next sentence of Section 1 first prohibits States from abridging "the privileges or immunities of citizens of the United States," and then extends to "any person" the protections of the more familiar Due Process and Equal Protection Clauses.
It is a "privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government." (This quotation is of an uncontroversial sentence in the still-controversial-today decision in The Slaughter-House Cases.) Congress put teeth into this privilege of citizenship for foreign-born naturalized Americans traveling abroad with The Expatriation Act of 1868.
Enacted on July 27, 1868, just one day before Secretary of State Seward proclaimed the adoption of the Fourteenth Amendment, the Expatriation Act declared the right of expatriation to be "a natural and inherent right of all people." As Christian Samito explains in his book, Becoming American Under Fire: Irish Americans, African Americans, and the Politics of Citizenship During the Civil War Era, the Expatriation Act and the Fourteenth Amendment together had profound consequences for the nation and for citizenship:
The Act of July 27, 1868, still in force today, explicitly linked expatriation rights to those listed in the Declaration of Independence, and in conjunction with the Fourteenth Amendment, it affirmed that naturalization placed foreign-born citizens on the same footing as those born on U.S. soil. Moreover, the Act of July 27, 1868, made citizenship consensual and voluntary, by affirming one's right to opt out of birthright citizenship and choose a new allegiance. As nation-building measures, moreover, both the amendment and the act affirmed the power of the government of the United States to define its citizenry as well as protect it. (p. 212)
The champion of the Expatriation Act of 1868 in Congress (and out) was the same William E. Robinson who earlier that year had introduced the amendment to repeal the Natural Born Citizen Clause. If successful, Robinson's repeal amendment would have eliminated the only remaining legal distinction between naturalized and natural-born citizens.
There were other things going on Congress in May 1868, such as the impeachment trial of President Johnson in the Senate. And Robinson's amendment was more symbolic than anything else, as there was no particular candidate he intended to promote. But symbols matter, especially in the life of a nation and its citizens. While most of us do not want to be President of the United States, it is degrading to be ineligible because of the circumstances of one's birth. As foreign-born American founder James Wilson noted in the 1787 constitutional convention (in connection with a different debate over a length-of-citizenship requirement for Congress), "To be appointed to a place may be a matter of indifference. To be incapable of being appointed is a circumstances grating, and mortifying."
Robinson's proposed amendment died in committee, as have other similar amendment proposals over the last century and a half. Since 1960, there have been over two dozen proposals introduced in Congress to eliminate the Natural Born Citizen Clause. The number and persistence of these proposals is unsurprising. It is un-American to discriminate against naturalized Americans the way the Natural Born Citizen Clause does.
One hundred fifty years later, it is time to resurrect and ratify Robinson's amendment. In future posts, I'll address some of the political, practical, and legal considerations that bear on ratification. The most important thing right now is simply to believe that it can be done. In America, we do not have two classes of citizenship, just one. "We the People" should act to amend our Constitution by eliminating the Natural Born Citizen Clause.