Eliminate Article II's Anomalous Birth Requirement, so "Made in America" Citizens May Run, With Gratitude, for President

|The Volokh Conspiracy |

Thank you to readers and commenters here this week. Your thoughtful consideration has improved my proposed amendment to render eligible for President all American citizens who meet the age and duration requirements of Article II. You have persuaded me to make two changes: (1) substitution of new 14-year length-of-citizenship requirement to replace current 14-year length-of-residency requirement; (2) addition of 6-year lag between ratification and effective date. You have also provided a sense of the strengths and weaknesses of various arguments for ratification. I am grateful. Now all that remains is to get the amendment ratified.

I modeled my proposal on one introduced in Congress May 18, 1868 by an Irish-born congressman from New York. Today, exactly 150 years later, I'm delighted to report that this proposed amendment has picked up senatorial support from an important committee chair. The Volokh Conspiracy gets results!

A few final thoughts.

  1. Anomalous Article II: If you were running a public company in the United States today, would you limit the CEO position to natural-born citizens? Be honest. Consider, too, whether POTUS is so distinct as to merit different treatment not only from how an American public company would define CEO eligibility but also from how the U.S. Constitution defines eligibility to be a federal lawmaker or life-tenured federal judge.
  1. Buy American: Federal law renders people eligible to become citizens after satisfying residency, knowledge, language, and good moral character requirements. Naturalized citizens who satisfy these requirements are Made in America. If the process is good enough to turn someone into an American citizen with all the other rights and responsibilities of citizenship, does it really make sense to withhold presidential eligibility alone? And whatever reason you might have for thinking it does make sense to withhold presidential eligibility alone, would it still make sense after also requiring fourteen years in America as an American citizen?
  1. Gratitude: Great Americans are grateful Americans. Deep gratitude for the gifts of earned American citizenship will distinguish any naturalized citizen who puts himself or herself forward to run for President of the United States. We need every little bit of this patriotic gratitude we can get in our public life. Naturalized American citizens should have the same right to run as their natural-born compatriots.

Let's shake off our civic sloth and undertake the ultimate exercise in American self-government; let's do our part to secure the blessings of liberty for ourselves and our posterity; let's amend the Constitution of the United States of America.

[UPDATE, from Eugene Volokh: Sorry, accidentally labeled this originally as my post; it's guest-blogger Kevin Walsh's.]

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  1. I’d certainly limit the CEO position to someone who has a big stake in the company (probably defined by personally owning a large block of stock, and being banned from selling it until a year or more after he leaves the job of CEO). That way if he screws up he gets to suffer a big chunk of the consequences himself.

    How, other than citizenship, does someone get a big stake in a country?

    I suppose having a country sell shares and be run as a company is not that far-fetched an idea. It would reduce corruption. And there are already some countries in the Middle and Far East that are, functionally, closely-held family businesses.

    1. “How, other than citizenship, does someone get a big stake in a country?”

      By being elected to national office (and doing the things that are necessary to get elected) and thereby publicly affiliating themselves with the country and putting their reputations on the line.

      I mean it seems to me simply being elected president gives one more of a stake in the country than anything merely being granted citizenship could do.

      1. “I mean it seems to me simply being elected president gives one more of a stake in the country than anything merely being granted citizenship could do.”

        I think a review of world leaders (including our own) might reveal some who were elected, but put someone else’s interests before the general population’s on a regular basis. I mean, most of ours at least put a fig leaf on it, though some had some fairly clear implications of conflict-of-interest.

        1. And there are plenty of citizens who emmigrate, commit treason or generally put some other interest before their country’s. I didn’t claim that becoming president was a perfect fix only that it outperformed merely being a citizen.

    2. How, other than citizenship, does someone get a big stake in a country?

      I’d call being a citizen for at least fourteen years a reasonably big stake.

      1. I’d say that serving in the military would be a pretty big stake too. Might as well throw in a stint in the Peace Corps, VISTA, Americorps and the like.

        Not a Heinlein fan so no need to consider military service as a prerequisite to full citizenship.

        1. Heinlein, at least in “Starship Troopers”, didn’t require military service specifically, just voluntary Federal service for a term of a couple of years to vote, or a career of 20 years to hold elective office. As he noted, the Federal service was to required to take anyone 18 or older who volunteered and could understand the oath, even a blind quadriplegic, who might be assigned to measure fuzz on a caterpillar by touch.

      2. True, but it is wholly insufficient to separate the immigrant from the stake in the nation he’s left.

      3. And paying taxes.

        1. Paying taxes? For how many years? Do carry-forward loses resulting in no net taxes due for some particular year or years negate eligibility?

          At least candidates would have to release their tax returns or have them reviewed by the FEC, so that’s something.

    3. Exactly. You wouldn’t require citizenship to be CEO of a company, but you would very likely require something analogous.

      1. Are you sure?

        I don’t think it’s common practice to only hire those who hold large blocks of company stock as CEO’s.

        Once hired, of course, CEO’s are generally given incentives based on future performance of the company, but holding a stake before being hired is not generally a requirement.

        So the analogy kind of stinks.

        1. Not only that, it would be both hard to find qualified people *and get rid of them if they didn’t perform*.

    4. Exactly. You wouldn’t require citizenship to be CEO of a company, but you would very likely require something analogous.

    5. FX options? Might be helpful in a country like Venezuela.

      1. The problem with that is that devaluing the currency can actually be a good thing (as seen in China’s case where it’s an intentional economic policy to encourage foreign purchase of Chinese goods)

        1. Which isn’t ‘a good thing’ except to a small percentage of the Chinese – specifically the owners of companies and the government apparatchiks they are bribing.

          The rest of the Chinese are getting screwed.

    6. How, other than citizenship, does someone get a big stake in a country?

      Who is arguing that citizenship should not be a requirement?

      No one that I have noticed.

    7. I’d certainly limit the CEO position to someone who has a big stake in the company

      You mean you wouldn’t hire a CEO who didn’t already have a large stake?

      I don’t think that is a popular, or sensible, policy.

  2. Anomalous:

    “If you were running a public company in the United States today, would you limit the CEO position to natural-born citizens? Be honest.”

    Of course not but can anyone honestly say that the CEOs of large US based multinationals put the best interests of the US ahead of their more mundane profit motives? Ask Apple and other major US multinationals about tax havens in Ireland and Switzerland.

    “Consider, too, whether POTUS is so distinct as to merit different treatment not only from how an American public company would define CEO eligibility but also from how the U.S. Constitution defines eligibility to be a federal lawmaker or life-tenured federal judge.”

    Yes, it is. POTUS is – amongst not just CEOs but also federal judges and lawmakers – uniquely positioned to unilaterally take such seriously consequential actions so as to fundamentally and perhaps irrevocably impact the nation. Military action w/o an AUMF, deferring implementation of laws, ignoring laws thru signing statements and all the other machinations of a “Unitary Executive” make the POTUS-CEO comparison a false equivalency; the office of POTUS is so qualitatively different from the others for the comparison to be meaningful.

    1. “can anyone honestly say that the CEOs of large US based multinationals put the best interests of the US ahead of their more mundane profit motives?”

      Corporate management owes fiduciary duty to the stockholders. They can be sued if they don’t put the shareholders’ interests first, and there is no shortage of lawyers willing to take the case.

      1. Yes, a fiduciary duty and not a patriotic one, and only to shareholders not to the public at large. And the risks they face for violating even this lower standard of duty is minimal, just ask the CEOs of the major banks and financial institutions that caused the market meltdown of 2008-9. How many are living in poverty now or have served prison sentences?

        CEOs of multinationals have no duty to advance the interests of the general public or to uphold the Constitution; they work to advance their own interests and those of their major, mostly institutional investors. Hmm, maybe in actuality they’re not so different from [certain] politicians after all!

      2. This points up why the CEO analogy is lousy.

        The CEO owes a fiduciary duty to all shareholders — he can’t favor US shareholders

    2. Ask Apple and other major US multinationals about tax havens in Ireland and Switzerland.

      The value a company provides comes from the goods and services it sells – not the amount of tax it pays.

  3. One argument I haven’t seen you make is that restricting the office of president infringes the democratic rights of the populace to elect who they choose. Now constitutions can restrict such considerations for good reasons but this doesn’t seem like one of them so i personally would prefer no requirement of any number of years they must have been a citizen.

  4. Arguments against the natural born citizen clause break down into three main reasons. Fairness, practical benefit, and why not?

    Only the first one might have merit IMO. The value of practical fairness gained is academic given the inaccessibility of the office to most. So mostly you’re left with the value of symbolic fairness.

    For the second reason, we already have a big enough pool of scumbags and more than enough eminently qualified people who are ignored. I am sceptical that opening the door for an even bigger pool of scumbags will be of any benefit, especially when you see the quality of leadership of outside world.

    For the third, there are symbolic and practical reasons to be for the clause. For one, its kinda a zero sum game. You enlarge the pool one thing that will happen for sure is you just diluted the chances of everybody already in it. Maybe there is some factor that makes a natural born less susceptible on average to foreign influence. Maybe you agree with the Framers. Its an extra check…just to be sure against foreign influence. It might be excessive, it might not even work everytime but this is the highest office. You might as well complain about all the other kinds of protection the President is given that haven’t been vetted to all individually increase his safety at least 40% and inconvenience a guy in Michigan .0089 x10^-178% more than a guy in California.

    Theres plenty of other reasons. Does the symbolic value of fairness outweigh these all?

    1. We probably won’t know what we’re missing because naturalized citizens know not to run for Pres – except Arnold and he didn’t get anywhere in amending the constitution.

      So how would we know whether there are naturalized citizens out there – now or in the future, who would make the Presidency worse or better?

      We know that this is an arbitrary criterion.

      1. No, we do not know this….

        I agree with Amos. This is fairness for fairness sake to benefit the cause of the few and invariably already powerful. It removes a protection against having someone with dual national loyalties from officiating the Executive branch.

      2. “So how would we know whether there are naturalized citizens out there – now or in the future, who would make the Presidency worse or better?”

        With the choices we make now, from the list of people already eligible, there’s nothing that indicates that qualification for the job has anything to do with getting the job. Is there some hardworking McDonald’s manager out there who could run the Executive branch? Yeah. The truth is, the bureaucracy pretty much runs itself, whether the President thinks he is the dealmaker-in-chief or spends 5 afternoons a week on a golf course.

  5. There is no doubt that several provisions in the Constitution are outdated like this one and the Electoral College but I agree the political will is weak to amend the Constitution. Both the Electoral College and the NBC clause made perfect sense in 1788 but make no sense today. Heck a European royal attempted to take over Mexico but now royals aren’t that important. My one caveat is that if the aliens come and try to take over our world I will follow Prince Harry as my warrior king…the guy is a badass!

    1. I disagree, the Electoral College is in fact working as intended.

      1. Not only is it working as intended – to require the President to have support that is wide (across many States) and deep (lotsa people) – it also works as a preventative for present day worries – the cheatin’, rigging, hacking of elections.

        Experience indicates that cheatin’, rigging, hacking of elections is never successfully achieved by outsiders, it is done by those in power. To cheat, rig, hack a Presidential election you need to cheat, rig or hack the Presidential election in anything up to a dozen different states, with different systems and different officials with their hands on the levers of power. Note that Hillary even with all that money, all those pollsters and all those experts, had no clue which State was going to be the tipping point.

        Under a national popular vote system, you only need to get the Californian authorities onside. Which they already are. It’s way harder to cheat, rig or hack an election for President than for Senator. Let’s keep it that way.

        1. “Under a national popular vote system, you only need to get the Californian authorities onside.”

          Under the present system, GWB only needed Florida’s.
          Also under the present system, at least a third of voters are wasting their time voting for President. A California Republican? Your state’s votes are going to the Democrat. A South Carolina Democrat? Your vote also will not count. And going with divisions smaller than states (say, Congressional districts) doesn’t help because Gerrymandering.

          You want a fair system? Require both popular win in total votes, and popular win in majority of states to win Presidential election, or supermajority. (And also stop interfering with the franchise… adult citizens get to vote, period, should be a goal.)

          1. Under the present system, GWB only needed Florida’s

            Nope. You’re focussed on Florida because you now know that that was the tipping point, and that it was very close to tipping. But you wouldn’t have known that before the event.

            But there were four or five other states within half a percent, and seven or eight more within 5%. So if you want to rig an election beforehand you need to rig a dozen states. Simply rigging one state is a very poor bet.

            1. You take a significant risk of being caught.
            2. Your guy or gal might win anyway, so your chances of flipping the result to your guy are down to 50% anyway
            3. But your rig might prove to be too small. Your rig will only work if the result is close enough to tip in the first place. So your 50% falls to say 20% right off the bat
            3. But if you only rig one state, you’ve got a 90% chance of rigging one that isn’t critical. Which brings your odds down to – taking the risk of being caught election rigging in return for a 2.5% chance
            4. If you up your chances of making a difference by rigging multiple states, you greatly increase your chances of being caught

            So in the current situation (with the EC) you only benefit from rigging a state if you do it after the election, when you already know you’re in the tipping point state and it’s close enough to tip. Hence all the chads and lawyering.

        2. Washington, Jefferson, Madison, Monroe were all from the largest and most powerful state!! Why didn’t the Framers fix it?

        3. Clinton didn’t lose because she didn’t have support that was wide. She lost because the close states mostly went for Trump. Was the intent to award the Presidency in a close election to the candidate that won the close states?

          1. Well Clinton only won 20 states + DC. She lost 30. And one state provided 150% of her popular vote margin. So yeah, her support was wider than Gary Johnson’s or Jill Stein’s. But losing 30 states is not indicative of particularly wide support across the states.

            Moreover of the 8 states that had a margin of under 3%, she won 4 and Trump won 4.

            A quick back of the envelope calculation from the votes is that you could give Trump enough extra votes to win 16 more states, without exhausting Clinton’s popular vote margin. In other words she could have won on a national popular vote basis carrying just 5 states.

            1. The fallacy in your reasoning is counting a close defeat in a state as so totally lacking in support that it doesn’t count towards how wide that support is. Certainly, that is what the winner-take-all system combined with the electoral college does. But that just demonstrates that winning the close states is what you need when the overall election is close.

              Trump won the more populous close states, beating Clinton 76-23 in the electoral vote in the eight closest states even though Trump won the popular vote in those states 47.7% to 47.4%.

            2. “In other words she could have won on a national popular vote basis carrying just 5 states.”

              ~Exactly~ why the EC is so critical.

              1. It strikes me as very wrong to say that a candidate that wins 5 states, loses 15 states by a single vote, and loses another 6 states by less than 4%-points each is illegitimately elected if they assume office because they won the national popular vote. In order for the election to be illegitimate you have to necessarily conclude both that 1) every person who cast a vote for the candidate in a state she lost counts for nothing, and 2) each state speaks with a single unanimous voice, even when there is a one vote difference between the candidates.

                1. Of course it’s wrong.

                  Consider Pennsylvania. Trump won by about 44,000 votes out of almost 6 million cast, or roughly three-quarters of one percent.

                  How does that mean Clinton didn’t have support in PA? Of course she had support there, virtually as much as Trump.

                  The “wide support” argument makes no sense. Would you say Trump had no support in CA, where he got almost 4 million votes?

                  You can’t measure the “width” of support by the states carried.

              2. Furthermore the only states that really have some notion of national sovereignty are the original 13 colonies and maybe 2 or 3 others like Texas. The reality is the feds controlled all of the other land at one time or another and states were admitted to further the goals of the party in control of the federal government. So the reason we have two Dakotas isn’t because those are two “free polities” it’s because Republicans wanted to keep their boot on the South’s neck! So the Senate and EC were tools used by the party in power to perpetuate their power.

              3. Exactly why it’s silly.

          2. She also lost because of our current system’s structural amplification of goober voices, and because our nation’s vestigial ignorance and intolerance desired to flash one last middle finger at all of this damned tolerance, reason, science, education, and progress.

            She lost fair and square, because disaffected bigots and superstitious goobers have rights, too.

            1. Hillary lost because she is horrible and everyone knows it, even Democrats. They just wanted her to win over Trump.

        4. I don’t see the relevance of having it “work as intended” if the intent was wrong-headed, or appropriate for the time, but not eternally.

          Nor do I see why wide geographic support ought to outweigh a popular majority. Do you really believe a vote in Wyoming ought to count more than one in California, because that’s the logical consequence of your comment.

          It seems insane to me.

        5. Lee,

          Not only is it working as intended – to require the President to have support that is wide (across many States) and deep (lotsa people)

          There are lots of ways to look at width of support, and the state by state version is far from the best. What about urban-rural, ethnic, economic class, etc.? Those are much more meaningful measures, it seems to me, especially you can’t just say a candidate lacked support in a state because he failed to carry it. Forty-nine percent is a big chunk of support.

      2. So does the NBC Clause, but neither make sense in 2018.

        1. The Constitution is fine. Everything works great.

          The very fact that so many in the minority want to change it means that its working as designed.

          1. Art. V isn’t working as designed – the amendment procedure has fallen into disuse.

            The original constitution’s provisions regarding the Presidency have been repeatedly modified or clarified by amendments (12th, 20th, 22nd, 25th).

            1. (that was back when people used the amendment procedure)

            2. Amendments have moved from Art V to Art III

              1. Good one.

  6. Apparently, there needs to be something to get people interested in an amendment like this.

    And a political movement around a naturalized citizen probably won’t do it, because it will prompt a counter-movement against changing the constitution for that person’s benefit – which is how the amendment will come to be seen.

    So the time to push for an amendment is before some naturalized citizen gets a political movement behind him or her or xir.

    But what’s the incentive to even be interested in an amendment in that situation?

    Something (short of a political campaign) will need to remind the people of the value of naturalized citizens.

    Bear in mind that the Founders’ decisions on the Presidency have often been second-guessed – see the 12th, 20th, 22nd and 25th Amendments.

  7. And bear in mind that the Founding generation grandfathered themselves in, so that anyone who was a U. S. citizen at the time the Constitution was adopted could be President.

    That grandfathering was necessary because all the potential Presidents then had been born under a foreign ruler, usually the King of Great Britain, and there was no U. S. to be a natural-born citizen of.

    But even if being born in North America under British rule is “close enough for government work” when it comes to being the equivalent of a natural-born citizen, what about Alexander Hamilton, born in the Caribbean (although under the British flag). Or Albert Gallatin, born in Switzerland. They could have been elected President, they just weren’t. They made it to America in time for the Constitution to be ratified.

  8. There actually IS a way to make amendments like this, that might have a large base of mostly apathetic support, enacted:

    Hold a constitutional convention.

    Once you’ve got a convention, the only business of the convention is considering potential amendments. You’ve overcome most of the hurdle to originating ANY potentially popular amendment.

    So, you really want this, support a Con Con. You’re not getting it otherwise.

    1. They don’t have the support and they know it.

      More pipe dreams from the minority who want to destroy the Constitutional protections.

      1. True about not having the support, likely true about knowing it. But if they did think they had the support, a convention would be the only plausible route to getting their amendment.

        1. The lefties are going to be schooled in how an Article V Constitutional Convention is done soon.

          Republicans almost have enough state Legislatures to convene one.

          1. And Congress has no motive at all to ever admit that enough states have called for one. Congress is perfectly capable of originating any amendments they really want, the point of a Convention is to originate amendments Congress DOESN’T want.

            That’s the impending constitutional crisis: When enough states have called for a convention, and Congress ignores the call.

            1. Is there some part of “shall…call a convention” that allows Congress to thwart the will of 3/4 of the states to call a convention?”

    2. Last time we had a constitutional convention, “potential amendments” wasn’t the only thing that they did.

      They wrote a new constitution. Many conservatives feared that sort of thing then. But, like “libertarian,” that term does come in various shades.

      As to what will happen, lots of things happened over the years. Some rather surprising.

  9. Only if the stockholders (taxpayers) can withhold financial support of stupid CEO ideas. What will be the equivalent of selling short?

    1. Any amendment ought to include a requirement that the right to vote and / or run for office be restricted be restricted to net tax producers, i.e., tax payers rather than net tax consumers.

      1. Consider that the federal government now spends in excess of $12K per person. Per taxpayer, more like $25K.

        If limited to direct benefits, your proposal is feasible. If the government were to attribute to each person a proportional share of all spending, (National defense, for instance.) only the wealthy would get to vote.

        1. That is, of course, the whole point of the proposal.

  10. ” If you were running a public company in the United States today, would you limit the CEO position to natural-born citizens?”

    Seeing as this is a violation of law, no. The federal government reserves to itself the power to discriminate based on national origin.

  11. The problem, as it was with Obama and his obvious lack of American cultural values and loyalties, is that you don’t want someone superficially concerned with America but actually devoted to serving another society.

    Honestly, that sort of issue is only resolved by growing up American, in America. The whole “citizen of the world” bullshit is an automatic disqualifier for any national office.

    1. John Quincy Adams spent many years abroad as a diplomat.

      1. Born and raised here.

    2. So, one cannot have allegiance to one political entity and also to the wider entity.

      That said, am I a citizen of Tennessee or the United States? Should bullshit like considering myself a US citizen prohibit me from holding state office?

      1. “The whole “citizen of the world” bullshit is an automatic disqualifier for any national office.” Nailed it.

    3. Who’s talking about “citizens of the world?” Do you even understand the idea here?

      Given your comment about Obama, I guess you don’t.

  12. I would suggest an additional modifier. In order to run for POTUS or VPOTUS, a naturalized, or for that matter a natural-born, citizen should be required to formally renounce any and all foreign allegiances.

    Now the US Citizenship oath contains a pro forma renunciation, but not all naturalized citizens have to take that oath. I had to take that oath when I because a US Citizen, however my daughter because a US Citizen by operation of law when I took that oath, and she is not required to take any such oath herself. Additionally, neither of my other countries of citizenship recognize the oath I took as renouncing my citizenship in those countries. In order to do so, I would need to take more formal steps, including a formal renunciation before a consular officer at an embassy or consulate.

    I don’t think it is unreasonable that someone seeking the role of Chief Executive be free of all foreign allegiances.

    1. Congress could say it’s a crime – subject to indictment and impeachment – for any American citizen to exercise any right, receive any benefit, or exercise any duty premised on having citizenship in some other country.

      (Assuming they don’t have such a law already)

      1. That would be a problem for any countries that have laws similar to the United States.

        For example, I must use my US passport anytime I enter the United States from abroad. How would that work if the Canada had a similar law (ie. as Canadian born, I must use a Canadian passport for entry), yet the US would make it a crime for me to have a Canadian passport? I would, effectively, be prohibited from visiting family.

        That said, that rule exists now for anyone holding a security clearance. You will lose your clearance if you exercise any foreign citizenship such as applying for or using a foreign passport.

    2. Practically there is no reason to bother. I mean is it really even plausible that someone could get elected president who wouldn’t swear such an oath?

      Also I worry it would be misinterpreted as barring Catholics (they recognize the pope, a foreign head of state, as their spiritual leader) as similar words have been in the past.

  13. As a Green Card holder on the path to Citizenship, I feel that It is entirely inappropriate to ever run for Federal office. Non-lawful residents can’t work, non-citizens can’t vote, and the foreign-born can’t lead. Those are the rules I agreed to when I immigrated, and they are good and wise rules for any national ethos.

    I think however the case can fairly be made to extend electoral participation to local city and county elections, based on tax-paying and residency requirements, rather than citizenship. It’s good that I can’t vote on foreign or military policy, but I should be able to vote on local schools and roads.

    I would probably also add long delays before anyone, US Citizen or otherwise, could vote in state elections after relocating within the country. 10-15 years sounds about right for a new resident to vote in state elections. It would be up to your previous state if they would allow you to vote as an absent resident during the waiting period.

    1. Huh, you agreed to no rules about not holding federal office once you become a citizen. Naturalized citizens are perfectly eligible for pretty much every office but that of president. Also, you did (or will) agree to a rule describing how the existing rules can be changed.

      As far as state voting that seems like a really bad rule because, given the way the economy now works, that would effectively leave the elderly as the only real electoral force in state elections.

      I mean once you consider the fraction of people who go to college in a different state or end up moving to a different state for a period of at least a year for job related reasons you’d probably cut the number of voters from the 20-50 age group in half or in quarter. That would leave lots of people with no representation for no good reason.

      1. I know that there is no law that would prevent me from running for Federal office, once I become a citizen. It would still be entirely inappropriate for me to inject my foreign views into US electoral politics to the extent of running for office, just as I wouldn’t tolerate Americans imposing their views on my old country.

        Under the scenario I outlined, everyone would still have a Federal vote, and a state and local vote in the region they were born and raised in. Only moving states would require a waiting period. When you move to a new region, you should assimilate, rather than trying to bring your old baggage with you.

        1. It is counterintuitive but the more difficult registration should be for local elections. Think about it?do you really want a college student that will move away in a few years imposing a tax on the residants that will continue living in the city? So that is why I would like voter registration for presidential elections to be tied to Selective Service and to repeal the Electoral College and move to a national popular vote. Most likely the president will be more liberal but Congress and local government will be more conservative.

        2. It would still be entirely inappropriate for me to inject my foreign views into US electoral politics to the extent of running for office, just as I wouldn’t tolerate Americans imposing their views on my old country.

          Are you serious?

          If so, I don’t think you understand elections. Or free political discourse. It is perfectly appropriate for you to inject your views, be they “foreign” or native-born, into US electoral politics, either by expressing them, basing your vote on them, or running for office on them.

          Why not? Surely you don’t think all good ideas originate in the US. Besides, you don’t get to “impose” your views unless you actually win the election, which means that the voters like those views.

  14. Ok I’m in. While we’re at it, can we get rid of the anchor baby thing? 🙂 I’ll have a few more ideas too.

    1. Sure, open borders should do the trick. No immigration restrictions no incentive to get a kid born on US soil.

      1. Only libertarians and liberals would go for that, and the bigoted, authoritarian conservatives would kick and scream forever.

  15. Given that this country is overflowing with natural citizens who hate it with a burning hate, it’s hard to get worked up about this suggestion.

  16. Given that this country is overflowing with natural citizens who hate it with a burning hate, it’s hard to get worked up about this suggestion.

  17. Volokh for president!

    1. Exactly!!

      Gotta be the main impetus for the suggestions. And ya know–I think he’d be a pretty good president. Helluva good one, actually.

  18. Mistake in the byline? The byline names the author as Eugene Volokh, but I think the piece was written by Kevin C. Walsh.

    1. Anon,

      Thanks, I thought Professor Volokh was way off base. The article is better understood as a product its actual author.
      .

    2. Precisely. Prof. Volokh is too smart to make this argument for himself rather than employing a stooge.

    3. “Kevin C. Walsh”? Or is it “John Barron”?

  19. I think we should retain both a length of residency requirement and a length of citizenship requirement. There are many American citizens who are raised outside the country either because they have an American parent or were born here to a foreign parent who returned to their home country as children.

    We are soon likely to have members of the British Royal Family who are dual citizens of the UK and the US. Other Royal examples include Queen Knoor, and Princess Grace’s children, although I don’t know if their children have claimed American Citizenship. Even their grandchildren could be US Citizens if a residency requirement, which could be satisfied by attending college in the US, is met. Some of their children may have done so, having attended schools in the US

    Although practically it is hard to seriously imagine such a circumstance actually occurring.

  20. I support this amendment and look forward to voting for President Volokh. However, we need to get moving, the professor isn’t getting any younger and there’s that pesky 6-year lag provision.

    (Okay, just kidding — having once met him, I’m pretty sure Professor Volokh is _way_ too smart and insufficiently egotistical to want the horrible job of President.)

  21. EV: Gratitude: Great Americans are grateful Americans. Deep gratitude for the gifts of earned American citizenship will distinguish any naturalized citizen who puts himself or herself forward to run for President of the United States. We need every little bit of this patriotic gratitude we can get in our public life.

    Ben Franklin’s famous remark, “A republic, if you can keep it.” Somehow, that sounds to me like wisdom, and a caution against going overboard on patriotic gratitude.

    If naturalized presidential candidates were indeed such incautious types as Volokh describes, then that provides an excellent ground for excluding them.

    1. I don’t see the inconsistency – Ben Franklin didn’t want immigrants to be grateful?

      1. My problem with putting the gushing grateful in high office is twofold. First, if they are preoccupied with gratitude, they will probably neglect to look around to find stuff that nobody should be grateful for, or see what can be fixed. Second, I don’t like to hear exhortations touting gratitude coming down from on high, and landing on people who have a lot less to be grateful for.

        Just in general, I don’t think a mind suffused with gratitude is the right mental frame for high level executive function. Gratitude in some folks can be an indication of humility. In others, it’s more like a close cousin of complacency.

        1. Certainly, it could be like that in some cases.

          Ideally, gratitude for one’s benefits should be an inspiration to do one’s best and to help out fellow citizens so they’ll be grateful too.

          But as you say, I suppose there can be a dark side – maybe an “I’ve got mine” attitude and a callousness toward others who might have less to be grateful for.

          I would hope the first kind of gratitude would be what naturalized citizens feel, not the self-absorbed kind.

  22. One reason I’d like naturalized citizens to be eligible is that I’d like to be able to vote against Arnold for president on his own (de)merits, not have that option denied me because he’s naturalized (according to Wikipedia he’s been a citizen for 35 years, meaning people who were born in the USA when he was naturalized have just become eligible to the Presidency, or will soon become eligible).

    1. Hue’

      Thanks, good read!

      As pointed out above it is very doubtful Prof. Volokh is the author of the article.

    2. Excellent commentary. Worth the time to read.

  23. “If you were running a public company in the United States today, would you limit the CEO position to natural-born citizens?”

    No, but that makes no sense – loyalty to the US has nothing to do with loyalty to my company. And obviously I couldn’t limit it to people born in the company. I *might*, however, consider limiting the position to people already within the company, especially if I knew that several rival companies weren’t above trying to plant one of their guys as our CEO.

    “Deep gratitude for the gifts of earned American citizenship will distinguish any naturalized citizen who puts himself or herself forward to run for President of the United States.”

    Many immigrants have deep gratitude, yes. But “any”? Don’t pretend that every naturalized citizen is someone who only has our best interests at heart. Looking at Wikipedia’s “List of denaturalized former citizens of the United States” it seems that many of the people listed still had heavy loyalty to their old country. And many listed were Nazi concentration camp guards – so much for the process ensuring “good moral character”. (The list doesn’t say when they were naturalized, but some of them were citizens for more than 14 years before they were denaturalized.)

    The 6 year delay is a good idea, by the way, to prevent this from becoming “Person X should be president, so let’s change the Constitution.” I’d probably make it 8.

    1. You’re right, the arguments for this proposed amendment make no sense.

      If you were on the hiring committee for a Coca-cola CEO, and you found someone who drinks Pepsi all the time and owns a bunch of Pepsi stock, would you hire him? I doubt it.

      The real question is — why would you want a foreigner to be running your country?

      Please don’t tell me that Henry Kissinger would have been a good President.

      1. Please don’t tell me Kissinger could have been elected if eligible.

  24. Orinn Hatch proposed an amendment to deal with this issue fifteen years ago and it’s pretty good. No need to go back to the 19th Century.

    “Now all that remains is to get the amendment ratified.”

    Easy peasy. What you need to do is run someone whose natural born citizenship status is controversial enough that it stops a very promising candidate. So, there needs to be some wiggle room. McCain was too safe there. Ted Cruz too and besides he was a lost cause in the end anyway. After the inferior option wins (or loses the general), maybe there will be a big push. Or, if a young promising candidate is blocked and an amendment would later allow them to run.

    The two term limit and eighteen year old vote amendments are but two that was pushed along by events. Maybe, this one will too.

  25. If nothing else the proposed amendment will bring out the Red Meat Rabid Republicans [tm pending] in the 2020 elections. Let’s hope the Progressive-Libertarian axis doesn’t take the bait and support it. 😉

  26. A far better use of time and effort would be to push for an amendment which would require states to allocate their EC votes proportionate to the popular vote. Smaller states would still get the benefit of the 2 “extra” votes while still maintaining the concept of 1 person, 1.0x votes.

  27. Let’s look at it this way – if we’re not plugging some particular person’s candidacy (and I don’t think we should), then we’re not going to know the results of broadening the eligibility pool.

    But to me, the absolute ban on naturalized citizens is like a clause declaring that Methodists can’t be President. Of course we can say there’s plenty of qualified people left, but the exclusion is so arbitrary and offensive, and the potential objection to Methodists is so contingent and applicable to other religions, that we ought on a principled basis to get rid of the exclusion.

    Just as we can always think of scenarios where Methodists may be bad Presidents, we can think of such scenarios for naturalized citizens. H. L. Mencken would be able to go on at length about the insidious dangers of joy-killing prohibitionist Methodism, just as someone could discuss scenarios of naturalized citizens who retain their former allegiances despite their solemn disavowals.

    1. But when we consider the vice-crusading tendencies of natural born citizens from other religions – like the drug crusaders – then that puts the fears of Methodists in perspective. Similarly, when we think of native born disloyalists like Alger Hiss and Ezra Pound, that puts in perspective the fears of naturalized disloyalists.

      And there’s always the possibility that there’s a good methodist, or naturalized citizen, out there somewhere. Or if not, that the voters will be able to see through them and reject them without the aid of a proscriptive, discriminatory clause in the Constitution.

      That gets us to focus on the arbitrary nature of the exclusion. The arbitrariness of a flat ban on Methodists is bad enough that it needs to be ended. A categorical ban on naturalized citizens – no matter how long they’ve been citizens – is arbitrary and needs to be ended.

      1. Why limit the Presidency to citizens, why not allow long term permanent residents to run too? Excluding PRs is arbitrary.

        Why not allow the President and VP to reside in the same state? Maybe 12A made sense in the very early 19th century – and even then it’s not clear that it did – but today? Isn’t that just another arbitrary restriction?

        Voting age 18? Arbitrary. Made some sense when we had a military draft (males only) but today? Why not restore it to 21 or even 35? In fact why should the President need to be 35?

        Lots of things in the Constitution are arbitrary but there is a risk in “cheapening” the Constitution by tweaking everything that’s currently considered arbitrary or anachronistic. Amendments should, IMHO, be crafted to address serious national concerns and redress serious wrongs, not frivolous annoyances.

        1. The fact is that the constitution keeps getting amended one way or another, and right now the fashionable method is “amendment by usurpation” against which Washington warned.

          Using the Amendment process to update the Constitution, as we used to do on the specific subject of the Presidency (see the 12th, 20th, 22nd and 25 amendments) exercises the constitutional muscles and accustoms the people to the fact that *they* are the ones in control of the Constitution, not a clerisy of “interpreters.”

          If a subject, however humble, can only be handled by an amendment, then by all means use the amendment procedure. The only thing that will get cheapened is the idea of amendment by usurpation, which will be discredited as the people give evidence of their ability to change the Constitution themselves.

          Sure, why not update the 12th Amendment so the electors in a given state can vote for a President and Vice President from their own state?

          As for the voting age, the arbitrariness there is necessary because there has to be a minimum age, or else do expensive hearings for every voter to see if they’re mature enough, and experience argues against that sort of arbitrariness.

          The 35 year age is something to which any healthy person can aspire, and it doesn’t arbitrarily restrict their ability to offer themselves as a candidate for the Presidency if they just wait a bit. It doesn’t categorically exclude anyone except those who die early.

          1. The process used to amend the Constitution isn’t the question.

            The Constitution will *always* be subject to a “clerisy of interpreters,” they’re called the judiciary. They’re also the ones who can overturn an attempted usurpation. Nothing about this proposed amendment will change that.

            The ability to amend the Constitution has existed since its inception. If the people think that they are being empowered – truly empowered – by added frivolous amendments then maybe they should just put down the crack pipe. In a subsequent post to this thread I’ve mentioned a few other amendments which would actually affect material change; I’d rather see the people put effort into any of those than twiddle about the edges of relevancy with the NBC clause.

            1. There is no need for an either/or about this: As the people get used to using their Article V powers to effect even “minor” reforms it will embolden them to amend more things

              (And I’m not sure how minor it actually is to remove a categorical ban on naturalized citizens.)

              I put “interpreters” in quotes because they’re really amending under the guise of interpretation. This is the method the powers that be have settled on to effect what they consider to be needed change.

              And as for the Electoral College, that system at least preserved us from a candidate who was even worse than the President we have now, and who wouldn’t have had a skeptical media dogging her every step like this President.

              1. And it seems that neither the House nor the Senate has a committee focused *solely* on constitutional amendments. They pile in constitutional amendments with civil rights, federalism, etc.

                If they had subcommittees – or committees – responsible *only* for proposed amendments, they’d be able to sort through lots of proposals, sift out the useful ones from the dumb ones, and report the ones they think are worthy of moving on to the states.

                1. This isn’t going to happen, because they learned back during the FDR administration that the easiest route to constitutional ‘amendment’ is suborning the judiciary. It’s now a high art, and it has all sorts of advantages for Congress over actual amendments, starting with the fact that the states aren’t allowed to reject judicial amendments.

                  And a successful actual amendment would undercut their best argument for judicial ‘amendments’, that the formal amendment process is infeasibly hard, and has to be circumvented.

                  So, don’t expect Congress to originate any amendments. Ever again.

    2. Bad analogies make worthless arguments

  28. A partial list, in no particular order, of amendments that just might be more worthy of consideration before taking up the question of NBCs:

    EC reform – Each state shall have the same number of EC votes as it does House representatives plus Senators. EC votes allocated according to House representation shall be allocated proportionately to the popular vote and each Senator shall vote as they see fit. In the case of Senate vacancies those votes shall be cast by the state’s governor or other such duly appointed official as the state may designate, provided that no one person shall cast more than one vote and that the designated office be filled through a direct, statewide popular vote.

    [continued in reply]

    1. ERA – Haven’t looked at this in a long time but there are plenty of ideas.

      War Powers – The President shall not commit or allow the operation of US military forces without a Congressional Declaration of War or AUMF except in the case of imminent threat against the United States, its lawfully deployed forces or those of its allies (see WPR 1973). The President shall not have unitary authority to the first use of nuclear weapons, such authority shall reside with an appropriately constituted “Nuclear Utilization and Threat Secretariat” (MAD through NUTS). [Actual composition of the “Strangelove Committee” is left as an exercise to the reader]. And before people get all hot and bothered, the US nuclear posture has always been built around the ability to fully absorb a Soviet/Russian first strike and retain sufficient retaliatory capability to dissuade such aggression.

      Privacy in the Electronic Age – Lots already written on this. Miller, Katz, Carpenter, border searches of phones, forced disclosure of passwords, forced implementation of backdoors, etc, etc, etc.

      …Off to dinner

      _____
      My comments on this thread are just meant in good fun, I have no particular opinion on whether the NBC clause makes for either good or bad public policy. It’s just an inkblot on the Constitution, like 2A.

  29. “[UPDATE, from Eugene Volokh: Sorry, accidentally labeled this originally as my post; it’s guest-blogger Kevin Walsh’s.]”

  30. What is the problem you are trying to solve? And what is the downside of not solving it?

    And I can’t help but think of someone like Arnold Schwarzenegger running for President…he was a great disappointment as Governor of California.

    1. What problem was solved by repealing the Test Act? Or by saying that there will be no religious test for public office?

      If nativist discrimination is a comparable evil to religious discrimination, you have your answer, or so I’d hope.

      1. Like I said, I’d love to have the opportunity to vote *against* Arnold, not to have that opportunity arbitrarily taken away from me.

  31. Before proposing a solution, it would be polite to define a problem.

    Do we really have so few candidates to choose from?

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