Introducing the "Irish Born" One American Citizenship Amendment

|The Volokh Conspiracy |

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.

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NEXT: Prof. Kevin Walsh Guest-Blogging on the Proposed Amendment to Repeal the Natural-Born Citizen Requirement

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  1. How about “been 35 years a citizen of the United States, whether they’re a natural born citizen or not”?

      1. Why not just sell the Presidency to whichever foreign entity writes the largest check to the Clinton Foundation?

        1. People who argue for ’35 years of age, and not a Clinton’ are truly showing their faith in our republic.

        2. How do you have time to worry about the Clinton Foundation?

          Aren’t there some Russian oligarch funds that require laundering through condos and taxi medallions, some black votes that need to be suppressed, a health care clinic that isn’t being adequately micromanaged by government, or a woman in danger of making it into a clinic without being harassed by boors?

      2. Simplifies things tremendously.

      3. I thought the target here was the natural-born citizen requirement.

        Other requirements are the age requirement – which would be addressed by requiring citizenship for 35 years, which you can’t attain if you’re under 35 – and the requirement of being a citizen for a long enough time – which isn’t an issue so long as it’s natural-born only, because they would have acquired 35 years worth of citizenship by their 35th birthday.

      4. I thought the target here was the natural-born citizen requirement.

        Other requirements are the age requirement – which would be addressed by requiring citizenship for 35 years, which you can’t attain if you’re under 35 – and the requirement of being a citizen for a long enough time – which isn’t an issue so long as it’s natural-born only, because they would have acquired 35 years worth of citizenship by their 35th birthday.

      5. I thought the target here was the natural-born citizen requirement.

        Other requirements are the age requirement – which would be addressed by requiring citizenship for 35 years, which you can’t attain if you’re under 35 – and the requirement of being a citizen for a long enough time – which isn’t an issue so long as it’s natural-born only, because they would have acquired 35 years worth of citizenship by their 35th birthday.

      6. I thought the target here was the natural-born citizen requirement.

        Other requirements are the age requirement – which would be addressed by requiring citizenship for 35 years, which you can’t attain if you’re under 35 – and the requirement of being a citizen for a long enough time – which isn’t an issue so long as it’s natural-born only, because they would have acquired 35 years worth of citizenship by their 35th birthday.

  2. ” It is un-American to discriminate against naturalized Americans the way the Natural Born Citizen Clause does.”

    No, it is completely and perfectly American to discriminate in favor of natural born American citizens for the highest federal office, as opposed to foreign-born latecomers, whose dual loyalties may be reasonably questioned. Case in point:the Muslim-raised Barrack Hussein Obama, the most notoriously anti-American president ever foisted on the American public. And yes, his phony Hawaiian birth certificate copy was signed by “Ukulele.”

    What is un-American is to argue that the hurt feelings of unqualified foreigners of questionable loyalties overrides the political safety of the American people and their Constitution.

    1. What does “Muslim-raised” have to do with a discussion about citizenship?

      I mean other than to confirm you’re a bigot.

    2. foreign-born latecomers
      dual loyalties
      Muslim-raised Barrack Hussein Obamanotoriously anti-American
      unqualified foreigners of questionable loyalties
      political safety of the American people and their Constitution

      Golly!

    3. “No, it is completely and perfectly American to discriminate in favor of natural born American citizens for the highest federal office, as opposed to foreign-born latecomers, whose dual loyalties may be reasonably questioned.”

      The problem with this, is that such dual loyalties are not limited to naturalized citizens. It is entirely possible for natural born US citizens to have dual citizenship.

      1. The problem with this, is that such dual loyalties are not limited to naturalized citizens. It is entirely possible for natural born US citizens to have dual citizenship.

        This same reasoning (such as it is) was used against Catholics running for office.

      2. “It is entirely possible for natural born US citizens to have dual citizenship.”

        Well, it shouldn’t be.

        One person, one citizenship.

        1. “One person, one citizenship.”

          In point of fact, the only way to achieve US/other dual citizenship is by having US citizenship by birthright and typically requires that both citizenships be by birthright.

          Your one person one citizenship would be unenforceable against natural born US citizens, because it would entangle US law on citizenship with the citizenship laws of every other nation. US courts would be required to adjudicate citizenship claims predicated in the law of foreign nations.

          We can (and do) make naturalized citizens renounce their foreign citizenship before granting them US citizenship, but that is impossible in the case of dual citizenship by birthright.

          1. SCOTUS long ago held you cannot be stripped of your US (natural born or naturalized) citizenship just because you are a citizen of another country.

          2. The naturalization oath does contain the words

            I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen

            but it is entirely up to the foreign government whether they consider that to be effective, and the Immigration Service does not require proof that the other country recognizes the renunciation.

            In practice the foreign citizenship is lost if the foreign country does not recognize dual citizenship and revokes the other citizenship. This may happen, for example, under Singaporean law, but even there it is not automatic, and it is a consequence of gaining a new nationality rather than making that oath.

          3. “Your one person one citizenship would be unenforceable against natural born US citizens, ”

            When they apply for a passport as an adult, have them renounce any other citizen-ships.

            Then having a US passport is conclusive evidence that you are only a US citizen.

            1. Since there is no requirement to apply for a passport upon adulthood (nor a requirement to hold a passport in order to be President), this rule would seem to fail to solve the problem.

            2. I’ll be 49 this year. I do not have and never have had a passport.

            3. I’ll be 49 this year. I do not have and never have had a passport.

    4. Bernie Sanders was eligible so obviously the current language is insufficient with respect to this issue.

      In 1968 an important Reagan backer that was a newspaper publisher simply refused to cover George Romney’s campaign because he believed him ineligible so there is a role for other citizens to play with respect to eligibility.

    5. Considering the damage done by natural born Presidents alone, and disregarding that done by so many natural born politicians, your example is pretty weak tea. Even weaker coffee, if you want.

    6. Case in point:the Muslim-raised Barrack Hussein Obama, the most notoriously anti-American president ever foisted on the American public. And yes, his phony Hawaiian birth certificate copy was signed by “Ukulele.”

      The Volokh Conspiracy was more fun before the birthers went into the closet.

  3. How will you deal with the competing loyalties to the former country of citizenship? Don’t try and argue immigrants gave up all feelings of loyalty to their prior country, it’s been demonstrated that that’s patently untrue over the years (Irish & German immigrants for example). Only having someone whose loyalty has only ever been to the US eliminated that issue.

    1. The concept of dual loyalties has not proven to be much of an issue other than in people’s heads, has it?

      Was there a rash of Irish and German traitors I missed hearing about or something?

      1. Irish-American funding of the IRA and very outspoken German-American objections to going into WW2 against Germany are what come to mind. So while not “traitors” definetly divided loyalties.

        1. Is that a divided loyalty, though? Can one not have a loyalty to one nation and a point of view about another?

        2. Objections to entering WW2 were common among both german-americans and all-other-ethnicities-americans. Your claim does not prove your point.

          More, there is no evidence of statistical difference in objections between german citizens resident in the US from natural citizens of german ethnic heritage. Both populations had constituencies that supported and constituencies that opposed entry into the war.

        3. So do those who opposed the Iraq war have divided loyalties?

          Suppose a war is already going on between say, Freedonia and Lower Slobbovia. Does any position other than neutrality imply divided loyalties?

      2. People are screaming Trump has some kind of tit for tat with Russia to ease sanctions on the elite in exchange for something.

        Don’t think Russia or China could play the long game here? Do we really need a proven instance? Consider what that implies will have happened.

        I’m sympathetic, but any yahoo with a gift of gab who might make a realistic stab at it?

        It is the desire and motivation and ability from such an import that is rejectable on the surface of it.

        No, thanks.

        1. Fair enough – I’m enough of an elitist to at least understand not giving carte blanche to the mob. Except being born here versus not is a pretty awful proxy for loyalty or any other merit.

          1. I agree. This argument is that the risk of subversion outweighs the rare benefit of a quality foreign-born president.

            It is a bit disturbing the author pushing this is trumpeting the loyalty issue, as with super-patriotic pride. That scares me as to real motivation.

      3. Japanese Americans in Hawaii did offer aid and comfort to Japanese fighters during WWII, so it’s not like it’s never happened.

        1. Have you a source on this? That’s interesting to hear.

          It’s also collective guilt, but I’m into the history at least.

          1. The Niihau Incident I’d heard about that at one time, but forgotten it until gormadoc mentioned it.

            1. An interesting bit of historical nuance there, no doubt.

    2. “How will you deal with the competing loyalties to the former country of citizenship?”

      How do we deal with the competing loyalties of natural born US citizens with active dual citizen ship in a foreign nation? Yes, this not only exists, it’s not nearly as rare as most people think. There have been past Presidential candidates with active dual citizenship. Having birthright US citizenship is the only way you can have active dual US/foreign citizenship as becoming a naturalized citizen requires renouncing your foreign citizenship.

      Can you really argue that the “competing loyalties” are stronger in someone who has renounced foreign citizenship to become a naturalized citizen than they are in someone with active dual citizenship?

      1. Good point.

        Cruz apparently had Canadian citizenship and Obama was at least eligible for Kenyan citizenship. The NFL player that was an Army Ranger that made news is the son of a Spanish Army officer that acquired US citizenship by being born in Mississippi while his parents were stationed there with NATO. So had his father been an ambassador he doesn’t get citizenship but an Army officer’s child does get citizenship?!?

      2. I’d like to know why Dual Citizenship is allowed (at least for over-18) in the first place. So I’ve got concerns on that already.

        1. Because citizenship is not actually a proxy for loyalty.

          1. Strange…becuase its been used as such throughout recorded history.

            1. Sure, and race has been used as a proxy for all sorts of stuff throughout history as well.

              The empirical evidence is not strong.

              1. Maybe I live on a different planet, but history shows racial loyalty, like its overlapping cousin, religious and sectarian loyalty, is incredibly dominant and effective.

                Perhaps you mean it should be disallowed as a guiding principle for government legislation.

                1. Yeah, and America was founded on the principal that such an idea was outmoded. Nation of immigrants, etc. etc.

                  Race was used as a proxy for intelligence for a long time as well. Historical practice is not a great pillar to rely on.

          2. It is not a perfect proxy for loyalty.

            It is, however, by far the best one that exists.

            1. You’re assuming facts not in evidence.

        2. Because US Law can only control US citizenship. IF US parents have a child in Canada, or Canadian parents have a child in the US, that child has both US and Canadian citizenship by birthright. However, the Canadian citizenship is entirely a product of Canadian law.

        3. Another point: US citizen parents have a son born in Canada. That son has US citizenship by birthright under US law and Canadian citizenship by birthright under Canadian law.

          The parents bring the child back to the US and he grows up here.

          You come along on his 18th birthday and demand that he renounce his Canadian citizenship.

          What do you do if he refuses?

          There are no provisions in US law allowing the revocation of citizenship obtained by birthright, so you can’t revoke his US citizenship, and you can’t revoke his Canadian citizenship by action in the US courts. This makes the legality of deporting him to Canada extremely dubious.

        4. Folks are giving you some legal reasons, but the real reason is that the US has the unique system of global taxation: high-earning US citizens living and working in other countries, even as citizens, still have to pay taxes if they would owe more than they paid to the country they reside in.

          We even publish a yearly book of shame of defectors in order to nudge people into not giving up their citizenship to avoid said taxation.

          1. I understand it is not unique. I believe Eritrea also taxes citizens living abroad.

    3. “Don’t try and argue immigrants gave up all feelings of loyalty to their prior country, it’s been demonstrated that that’s patently untrue over the years (Irish & German immigrants for example).”

      Well then how is it the dual citizens receive Top Secrets security clearances?

      1. I’d like to know why Dual Citizenship is allowed (at least for over-18) in the first place. So I’ve got concerns on that already. If you have any information on dual citizens with clearances, I’d like to know it. To my knowlege, there are no dual citizens with TS.

        1. (spaces added)

          https://careers.state.gov/ wp-content/uploads/2016/02/ Dual-Citizenship.pdf

          https://news.clearancejobs.com/ 2010/09/29/dual-citizenship- and-security-clearances/

    4. it’s been demonstrated that that’s patently untrue over the years (Irish & German immigrants for example)

      My family originated from Ireland and would find this comment insulting. As do most who come to the United States. Fun fact: my ancestors ended up in the midwest due to anti-immigrant violence on the east coast where they originally tried to settle. Bigot’s existed then. And your example proves they exist now.

      1. You can feel insulted all you want, historical facts are historical facts. Here’s another fun fact for you, I’m both Irish and German. Deal with it. I’m not coming up with this out of the blue. I’m basing it on actual history. So far, calling me a biggot is evidence you can’t actually put up a valid argument against mine and are trying to shut down any debate.

        1. What are you talking about?

          There were Irish riots based on taking old grudges over here, but I don’t recall hearing about disloyalty at all. Certainly not in the modern day.

          Assuming Japanese citizens were disloyal was not a time of American glory.

          1. IRA Support #1
            IRA Support #2
            Organized Support for Nazi Germany and there was plenty of unorganized support as well.

            Certainly not in the modern day.

            Please clarify modern day and why we should be limited to it? I’m merely looking at the past 100 years…. if you think human nature has changed substantially at some point in that time, I’d like to discuss it. I’m merely looking to history for what has happened and expecting similar items to occur again.

          2. Side note, if you want to only limit it to more recent events, here’s an easy list in chronological order.

            1. Did you read the details of the cases on that list?

              You should. Some of them are nothingburgers, and some have to do with industrial espionage.

              Of course, no native-born American would ever spy for China, except for the handful on your list who did.

  4. I would support this amendment. While we’re at it, we should also eliminate the age requirement. Let the voters decide if a candidate is not mature enough to hold the office.

  5. I agree?the fact Obama and Cruz are eligible while a person with a very similar history Granholm is ineligible is arbitrary and capricious.

    1. So it is claimed. But do you really wanna roll the dice on something this important?

      Do you really need an instance of conflicted loyalties…right now when people are claiming so with Trump?

    2. Are you a birther? Why shouldn’t Obama have been eligible?

  6. Great stuff! Now, what about dual citizenship……

  7. Basically this is in the constitution as one of many attempts to ensure that, say, a German that becomes a citizen doesn’t need to consider going to war with Germany. This seems pretty rational, even if it is in question how effective it actually is.

    In our more modern trans-global world this doesn’t make as much sense, but it’s still very possible that a President with divided loyalties to their home nation could supersede those of an American citizen to the detriment of those they serve.

    While you can certainly make the argument that this isn’t an effective limit, getting rid of it wouldn’t be any more effective at any competing goal to make it worthwhile either.

    Final point, this is something that would need the American people to agree and given how many people seemed to think that Obama’s time abroad should have disqualified him I can at least say there is some amount of domestic support for leaving those requirements in place regardless of how effective they actually are. As such, they should probably stay in place unless you’re looking to foment citizen action in less legal avenues of redress.

    On top of that, just consider how many on the left are against Donald Trump for his ties to Russia. They, too, would appear to be in favor of this type of amendment even if it’s only when the opposition is in charge.

  8. Oddly, if it only amended the qualifications for the presidency, it would leave the qualifications for election to Congress more onerous than those for the presidency, since they require a minimum length or naturalization.

    A reasonable amendment would also delete those requirements for election to Congress as well.

  9. As angles for a Supreme Court appointment by a President Cruz or President Schwarzenegger go, this ‘eliminate the native born requirement’ push seems solid.

    Is it true that a bunch of once-brave Americans who signed a “originalists against Trump” letter are now scrambling to cover their tracks — not because they believe Trump has become competent or decent but rather because they fear Trump will discriminate against them in what might be the only chance for right-wingers to make the Court for 20 years or so?

  10. We should strengthen the requirement by defining “natural born citizen” as (1) born in the USA as a citizen, (2) not also a citizen of anywhere else, and (3) born to married parents who were also citizens of the USA exclusively their entire lives.

    As we have seen, Barack Obama was not really loyal to the USA the way Donald Trump is.

    1. As we have seen, Barack Obama was not really loyal to the USA the way Donald Trump is.

      Haha – I like the use of we.
      Sounds like what you really want is to ban all Democrats from being President.

    2. So exclude American children born to US military and diplomats overseas?

    3. Barack Obama was not really loyal to the USA the way Donald Trump is.

      You know, this is just a reprehensible comment. It’s utter BS, no matter what some guy on talk radio said.

    4. No-one has any control over their parentage or their place of birth, so it cannot possibly be evidence of any divided loyalty. People do, of course, have control over whom they marry. It would be more rational to exclude someone – such as Donald Trump – who chose to marry someone who was not a citizen. Not very rational, but it does at least meet the minimal standard of being more rational than your proposal.

  11. If you pay attention to the commas, we haven’t had a legitimate President since Zachary Taylor.

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