Citizenship

Why We Should Abolish the Requirement that the President Must be a "Natural Born Citizen" [Updated]

The ridiculous controversy over Kamala Harris' eligibility to be Vice President reinforces the point.

|The Volokh Conspiracy |

Senator Kamala Harris.

 

In almost every recent election, some prominent candidate's eligibility for the presidency or vice presidency has been questioned on the theory that they do not meet the requirements of the Natural Born Citizen Clause of the Constitution. In 2016, the target was Ted Cruz. In 2008 and 2012, it was Barack Obama, who was assailed by "birtherists" who falsely claimed he was born outside the United States. Obama's 2008 GOP opponent, John McCain, also came under attack because he was born in what was then the Canal Zone.

The latest Natural Born Citizen-controversy focuses on Democratic vice presidential nominee Kamala Harris, thanks to a Newsweek article by conservative legal scholar John Eastman, claiming that she isn't eligible despite being born in the United States, due to the possibility that her parents were not yet US citizens at the time she was born. Eastman's argument has, predictably been taken up by Donald Trump, just as Trump previously claimed Ted Cruz was ineligible in 2016, and promoted "birtherist" attacks on Obama.

Eastman's argument is weak, and has already drawn strong rebuttals by co-blogger Eugene Volokh, and others. I would add that much of Eastman's analysis rests on his extremely narrow interpretation of the Birthright Citizenship Clause of the Fourteenth Amendment, which I criticized here. For  what it is worth, I also defended Cruz's eligibility in 2016. While I am no great fan of either Cruz or Harris, neither is ineligible to be president.

But the most objectionable aspect of this situation is that the Natural Born Citizenship Clause exists at all, thereby barring virtually all immigrants from holding the highest office in the land, and opening the door to ridiculous attacks on the eligibility even of people who have been US citizens all their lives, such as Cruz, Obama, and Harris. Instead of focusing on the candidates' policies, competence, and character, we instead spend valuable time and effort debating such irrelevancies as where they were born and the exact legal status of their parents at the time.

Back in 2016, at the time of the Cruz controversy, I made the case for abolishing the natural born citizen requirement. It remains just as relevant today:

In recent weeks, much time and effort has been devoted to debating whether Ted Cruz is a "natural born citizen" eligible for the presidency. Whichever way you come down on this question of constitutional interpretation, the real lesson of this debate should be the absurdity of excluding naturalized citizens from the presidency in the first place. Categorically excluding immigrants from the presidency is a form of arbitrary discrimination based on place of birth (or, in a few cases, parentage), which is ultimately little different from discrimination on the basis of race or ethnicity. Both ethnicity and place of birth are morally arbitrary characteristics which do not, in themselves, determine a person's competence or moral fitness for high political office.

The "natural born" citizen requirement was originally inserted into the Constitution because some of the Founders feared that European royalty or nobles might move to the United States, get elected to the presidency, and then use the office to advance the interests of their houses. Whatever the merits of this concern back in the 1780s, it is hardly a plausible scenario today.

One can argue that immigrants have less knowledge of the country and its customs, and might make worse presidents for that reason. But that problem is surely addressed by the constitutional requirement that a candidate for president must have been resident in the United States for at least fourteen years. As a practical matter, anyone who attains the political connections and public recognition needed to make a serious run for the presidency is likely to have at least as much knowledge of the US and American politics as most serious native-born candidates do.

Perhaps the most obvious objection to letting immigrants ascend to the presidency is the fear that they might be less loyal than native-born citizens are. But there is no good reason to think that people who became Americans by choice are less likely to be loyal than those did so merely by accident of birth. Indeed, the reverse conjecture is at least equally plausible. Even if some immigrant groups might, on average, be less loyal than natives, the same conjecture can be made about members of some ethnic or racial groups, as compared to others. Such statistical correlations – even if valid – would not justify categorically excluding members of those groups from the presidency, and the same point applies to immigrants.

The significance of this issue should not be overstated…. Exclusion from the presidency has little or no practical impact on the lives of the overwhelming majority of naturalized citizens. Nonetheless, categorical exclusion from eligibility for the nation's highest office is an important symbolic affront to immigrants, even those who have no desire to run for the presidency themselves. Consider, for example, how blacks, Hispanics, or Irish-Americans might feel if their group was similarly excluded….

Abraham Lincoln once said that "[w]hen [immigrants] look through that old Declaration of Independence, they find that those old men say that 'We hold these truths to be self-evident, that all men are created equal'; and then they feel that that moral sentiment, taught in that day, evidences their relation to those men… and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration; and so they are." That principle will only be fully realized when we abolish the discriminatory exclusion of immigrants from the nation's highest political office.

To the points made in my earlier piece, I would add that another reason for abolishing the Natural Born Citizen Clause is to take away the opportunity it creates for unscrupulous politicians to raise bogus eligibility issues against their opponents. Even if these claims lack legal merit, they  poison the political atmosphere and divert scarce public attention away from real issues.

I am not optimistic that a constitutional amendment abolishing this requirement can be passed anytime soon. The anti-immigrant attitudes of much of the GOP base precluded it, at this time. In addition, any amendment is extremely difficult to pass, given the requirement of securing two-thirds majorities in both houses of Congress, and then winning the support of three-fourths of state legislatures.

But things might well change as the passions of the current political moment pass, xenophobic sentiment recedes (polls consistently show younger voters are much more supportive immigration than older ones), and more people come to realize that the Natural Born Citizen Clause is at best stupid, and at worst an example of outright bigotry. At the very least, people may get tired of having to hear about this kind of claptrap every four years.

UPDATE: As before, I should acknowledge Harvard Law Professor Randall Kennedy's longstanding advocacy of getting rid of this clause, which has influenced my own views.

UPDATE #2: Since the initial version of this post was put up, Trump has said he "will not be pursuing" the issue of Kamala Harris' eligibility. If so, that makes it unlikely the question will end up in Court, as happened with the issue of Ted Cruz's eligibility in 2016 (courts—correctly in my view—ruled in Cruz's favor). Of course, Trump might still return to the issue if he finds it politically advantageous to do so.

Meanwhile, the Natural Born Citizen Clause may already have had an impact on the 2020 election even aside from the controversy over Harris.  A story in the New York Times suggests Joe Biden rejected Sen. Tammy Duckworth as a potential running mate in large part because of concerns that there might be litigation over her eligibility under the Clause. Duckworth was born in Thailand to an American-citizen father and a Thai mother.

There is plenty of room for reasonable disagreement over whether Duckworth would make a better vice president (and potential president) than Harris. But it's a shame that the issue had to be decided on a basis so completely irrelevant to her competence to do those jobs.

It's also worth noting that the incident illustrates how even a small risk of disqualification under the Clause can influence candidates' calculations. Had the issue gone to court, it would likely have resulted in a ruling in Duckworth's favor, as happened in the very similar case of Ted Cruz (who was also born abroad to American-citizen parents). But Biden and his advisers evidently concluded that the risk was still too great to countenance.

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  1. I think the byline says it all….

    1. ‘Oh, Christ, not another libertarian comment’

  2. “Whatever the merits of this concern back in the 1780s, it is hardly a plausible scenario today.”

    I suggest you review the finances of the Clinton dynasty – – – – – – – – – – – –

    1. I suggest you either tell us what you’re talking about, and provide evidence of what the claim is, or shut up.

    2. The Clintons were both born in the U.S. and are “natural born citizens.” One was elected president twice, the other came close to being elected president.

      So whatever you think of their chicanery, that Constitutional provision does nothing to prevent people like the Clintons from being elected.

  3. It would have been good to do this back when most of the discussion would have revolved around Arnold Schwarzenegger, since it probably could have attracted a reasonable amount of GOP support at the time (although therefore would probably have faced knee-jerk opposition from the Democrats). As it stands, I agree there’s basically no chance of a Constitutional Amendment like this passing.

    As an alternative, it does feel like it would actually be useful to have a Supreme Court ruling on the topic to create some clarity, but since I think all of the lawsuits I’ve seen on the topic get dismissed over standing, I’m not sure how we’d ever get to a decision on the merits.

    1. Schwarzenegger was the opportunity. Does anyone believe he would have been disloyal to the US and loyal to Austria? The entire theory behind requiring a natural born citizen is stupid.

      1. I agree that it probably won’t happen until there is another major Republican political figure who’s not a natural born citizen. Too bad.
        It makes absolutely no sense that my daughter, whom we adopted from China at the age of 11 months, is constitutionally barred from running for President. (Not that she ever would want to run, but nevertheless . . .)

    2. How to get it into court? Get one of the several states to deny Harris’s inclusion on the ballot based on the Eastman theory and then have Harris sue. Or get some Trump Sucker to sue a State in state court and get a state court to declare Harris ineligible. You could probably do that in Texas. Wouldn’t that get it into federal court?

      Interestingly, the most closely related case, Wong Kim Ark, was a test case pursued to get this very issue before the SC, as I understand it.

    3. Jennifer Granholm’s status came up at the same time as Arnold’s.

  4. Didn’t we just spend three years worrying about the Russians influencing our elections? And now we want to make it legal for a Russian to just run for President?

    1. Did you read this part?

      that problem is surely addressed by the constitutional requirement that a candidate for president must have been resident in the United States for at least fourteen years. As a practical matter, anyone who attains the political connections and public recognition needed to make a serious run for the presidency is likely to have at least as much knowledge of the US and American politics as most serious native-born candidates do.

      Not just a random Russian.

      1. “have at least as much knowledge of the US and American politics as most serious native-born candidates”

        It’s not their KNOWLEDGE I’m worried about. I’m well aware that there are a number of Russians who have far greater knowledge about US and American politics than most Americans.

        It’s their LOYALTY I’m worried about.

        1. The loyalty of any candidate is meaningless. What counts is the loyalty of the voters.

          Are you really so paranoid that you think an out-and-out Russian-who-hates-America has any chance of being elected?

          1. “….who-hates-America has any chance of being elected?”

            have you been paying attention the last 16 years, especially the most recent 6 months?

            1. Were you trying to respond to my question with a non-sequitur?

            2. I’ve been paying attention over the last four years, and counting, and I’ve been appalled that someone with no appreciation, and probably hatred, for American political traditions, or laws, or norms has been a serious candidate for the presidency. And then, such a person has been elected.

              Time is running short.

      2. Like the Russians can’t plant someone who just sits as a sleeper for 14 years…

        1. Sits as a sleeper? And does what for 14 years? Gets active in politics, runs for office, etc., with no suspicions whatsoever?

          And why can’t the omnipotent KGB just put a natural-born citizen on its payroll?

          Or blackmail someone?

          Or maybe identify a potential candidate they like, who has some financial difficulties, and offer generous assistance?

          All those seem to be easier and less likely to be discovered than planting a sleeper.

          1. Jimmy lives in a political thriller. novel.

          2. “And why can’t the omnipotent KGB just put a natural-born citizen on its payroll?

            Or blackmail someone?

            Or maybe identify a potential candidate they like, who has some financial difficulties, and offer generous assistance?”

            Indeed

          3. That there are other methods for a foreign power to subvert our system does not affect the viability of this one…

          4. Given that 100,000 in Facebook ad buys was enough to overcome BILLIONS spent in 2016, you, of all people, should appreciate the near-omniscience of Russia.

        2. Like the Russians can’t plant someone who just sits as a sleeper for 14 years…

          Yes, that was a good TV show.

          But if they’re a sleeper, nobody is going to know that they aren’t eligible, so I’m not sure what that argument does for you.

    2. THANK YOU. I wonder how many of these people also believe in Russian “collusion” and other such questions. It must be difficult to be a living pretzel. Somehow I find it amazing that a candidate can rise through the ranks and there is no question about their citizenship.

  5. Why not just remove the citizenship requirement or resident of the US

    Why not a resident alien
    or a non resident alien.

    1. Because citizenship implies loyalty to the country, which, by the way, naturalized citizens, unlike the native-born, have sworn voluntarily.

      1. I don’t agree with you often, but yeah, this.

        In religious circles it has been said that few are as righteous as a recent convert.

        I think an argument can be made that in general, a naturalized citizen is likely to be MORE loyal to the US.

  6. Who should not be eligible to run for president? Who should not be enfranchised?

    1. “Anyone who is capable of getting themselves made President should on no account be allowed to do the job.”

      1. Can’t remember the name but there was a Heinlein novel about a small space colony. After removing ineligible persons they held a lottery and the winner had to serve as chief executive. Ineligible persons included mental defectives and anyone who actually wanted the job…

    2. Anyone who wants to be president should be disqualified.

  7. I don’t see anything wrong with it. It’s fine. I agree Harris is eligible.

  8. My father in law could not have run for president. His kids, grandkids, and great-grandkids all can. Ain’t America wonderful?

    1. Maybe they can. Have to get the Eastman approval first.

  9. Yep, no reason for a president to be an American, or for that matter speak English, come to think about it the Americans are so evil they ought not be allowed to have a home country.

    1. No one here is talking about dropping citizenship as a requirement, chief.

      1. No, just dropping citizenship as having any measurable meaning other than “I’m a member of the club on this particular day.”

        Chief.

        1. If you aren’t born into it, it takes years to get US citizenship.

          It also takes years to give it up.

          So I’m not sure it’s as trivial and frivolous as you think.

          1. “If you aren’t born into it, it takes years to get US citizenship.”

            He wants to change that, too, doesn’t he? Along with any requirement that you have the government’s permission to enter before applying for citizenship.

            You take all his proposals, and put them together, and they amount to abolishing the country.

          2. It also takes years to give it up.

            On paper, or in your mind?

        2. ‘other than “I’m a member of the club on this particular day.”’

          Ok, how do you do it? How do we objectively evaluate the citizenship of various citizens and determine the hierarchy. Perhaps Jordan Peterson, if he has regained sentience, can enlighten us.

          1. If, of course, Jordan Peterson happened to be an American as opposed to a man of the snow and socialism (though not post-modern).

      2. They weren’t talking about taking our guns either, until they were.
        Even though many of us knew taking our guns was exactly what they were talking about all along.

        Slippery slopes are a thing. Especially when you can see someone pouring the lube on them.

    2. 1. The constitution doesn’t require the president to be able to speak English.

      2. In spite of that, I think that a candidate who did not speak English would have a very difficult time getting elected. Which is sort of the point.

      1. Oh, Oh, Oh, can I answer this again?

        What language is it that Trump speaks? I’ve been a native English speaker for over 65 years and I don’t understand it.

        1. You need to get out and travel America more. Trump speaks English, if you cannot understand him it is your limitations. The US is a large country with many regional differences (accents, idioms and dialects). I would guess 99.9% of the population can understand Trump, even those that hate him.

          1. Jeeze. Just when you think you’ve encountered about all the stupid in the world some gormless gobshite turns up to prove you wrong.

  10. No we should keep the rule and enforce it properly. Its clear Harris is not eligible. She was not under there complete jurisdiction of the US. Let’s stop playing games.

    1. Consider your claim in consideration of the decision in Wong Kim Ark. Exactly how was the jurisdiction of the United States over Harris when she was born different from the jurisdiction of the United States over Wong Kim Ark when he was born?

      Show your work.

    2. If Senator Harris were to be prosecuted for a crime, could she defend on the basis that she is not subject to the jurisdiction of the United States? Let´s not be ridiculous.

  11. “The ridiculous controvery over Kamala Harris’ eligibility to be Vice President…”

    Is it ridiculous? Maybe her mom was one of the 47% of people who don’t pay taxes.

    1. Your point?

    2. bernard’s observation is apt. I’d also like to point out that if objective financial and moral requirements of ancestors were important, the current occupant of the White House, whose father was a Klansm and grandfather a pimp, would have problems. Personal problems about finances though, apparently, raciism and whoremastery were not financial impediments to his ancestors.

    3. As almost every wanker (but not all wankers) can attest: the ability, or even willingness, of one’s ancestors to pay taxes is no determinant or citizenship rights and privileges.

    4. 47% Don’t pay taxes? Really? Are there no sales taxes?

  12. “In addition, any amendment is extremely difficult to pass, given the requirement of securing two-thirds majorities in both houses of Congress, and then winning the support of three-fourths of state legislatures.”

    You’re overlooking the simplest approach, which the democrats learned in 1973 and have perfected into a violent art since then – you only need 5 votes to amend the constitution.

    1. An observation ratified by Heller.

      1. Aside from the fact that the 2nd amendment has been there in the Constitution saying the same thing for a couple centuries, sure.

        1. You don’t think that the Heller decision made new constitutional law?

          1. Nope, I think it just finally upheld some of what had been there since the 2nd amendment was ratified.

            This wasn’t any “new” meaning for the 2nd amendment. It’s perfectly consistent with what people were saying about it at the time of ratification. (Well, actually Scalia’s version is a bit watered down from that perspective.) I would venture to say that there wasn’t any time in the last 200 years when the average person didn’t understand the 2nd amendment to guarantee an individual right.

            That a fad to the contrary overtook part of the legal community for a few decades hardly changes that.

  13. “5 votes to amend the constitution.”

    Well said!

    Thank you!

    1. Five through February or so.

      Seven in March.

      Start crying now, clingers.

      1. Why not 55?

        Pack the Court more tightly than a sardine tin!

        1. Court enlargement has occurred a number of times. The rules expressly authorize it.

          Quit whining and focus on getting stomped in the culture war with some level of dignity.

          1. You enjoy the thrill of feeling on the winning side, don’t you? And you enjoy, at least vicariously, the thrill of seeing people stomped. This being so, there must have been a lot in recent events which you found pleasing.

            1. Why don’t you become a European soccer fan, you’d get the same emotional benefits.

              1. Especially if you root for Bayern Munich!

              2. Or become a Trump fan. What’s the difference between a Trump fan and a punter?

                1. Oh, I know the answer to this:

                  Viagra

                  1. What’s the difference between Stella and a rock?

                    About 3 IQ points.

          2. Court enlargement occurred a couple of times, and court shrinking happened once, in the 19th Century.

            When FDR, who had a level of popularity that Joe Biden will never even hope to have, tried to do it in the 20th Century, he was shot down, because it turns out liberals who think they can screw with the Supreme Court are delusional and the general public doesn’t buy that.

            I have seen nothing in my lifetime that has changed that. There will be no successful court packing scheme.

            1. Dunno; if the last 4 years have taught us anything, it’s that partisan loyalty can completely trump (pun semi-intended) ideology, institutional loyalty, and patriotism. This is not the U.S. of the 1930s — or even 1980s — with ideologically diverse parties and members of Congress who were concerned about the prerogatives of Congress.

              1. Tell me more about how partisan loyalty trumps all other things as a new thing. Then remind me of how we got involved in Libya. I don’t remember any Congressional approval of it…

        2. I very much doubt that the court will be enlarged, but wasn’t it Trump and the Republicans that were talking about expanding the federal courts not all that long ago?

          1. They were talking about expanding the judiciary as a whole. Not the Supreme court.

            There are good arguments for gradually expanding the number of judges, and splitting up the 9th circuit. But “gradually” is the key word.

      2. We don’t need to pack the court, we’ve Roberts on our side.

      3. So long as RBG survives until then, we’ll be OK without packing the court. After all, Roberts is in our pocket lest we reveal that his adoptions are suspect. Once it becomes common knowledge, his tenure is over.

        Oh, oh!

  14. I’ve got some questions.

    I was onboard USS Midway for the April 75 evacuation of Saigon. Memory says we had something like 3000 refugees for the short trip to the refugee camps in the Philippines.

    If any of the South Vietnamese had given birth on the ship, would they be US citizens? Warships presumably have some sort of territorial status.

    And if not, would they be stateless, what with South Vietnam no longer being a country? If the Philippines (or the US?) had wanted to deport any, would they have sent them back to Vietnam?

    1. An interesting question that I have not found an exact answer for. However, is a warship that much different than a “military installation”? I don’t know thr answer.

      “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth;”
      https://fam.state.gov/fam/08fam/08fam030101.html

  15. The stealth Volokh-Somin 2024 campaign proceeds apace.

  16. The bible teaches it is a curse to be ruled by foreigners, it is a punishment for a disobedient and rebellious nation. Birthright citizenship is just that, an inheritance. Unless your parents were citizens of this country, this country is not your birthright. I’m an immigrant here, and I do not believe naturalized immigrants should even have the vote, or the right to serve on a jury and convict an American citizen. What sane country would allow such a travesty?

    1. Why can’t I buy a Canadian?

      1. Why would you want to?

    2. Birthright citizenship, like any birthright, is illiberal and wrong. I never really liked Hamlet because its about fighting over a kingship that was not earned. If it was about avenging the killing of a father then maybe it would have made more sense.

      1. Yes, we could do it like the Germany of Trump’s grandfather. If you don’t obey the national service requirement, out you go. Go to America and be a pimp there, but we don’t want you.

    3. Good thing we have a First Amendment then. You can believe your nonsense, and I can ignore you.

      1. Yeah, until Trump’s lackies gut the first amendment.

        1. One side is all about “hate speech isn’t free speech”. It isn’t the conservatives.

          One side is all about cancelling people’s lives because of something they said long ago. It isn’t the conservatives.

  17. I suspect that the country would buy an amendment that if you’ve been naturalized for 35 years, you’re equivalent to a natural born citizen and can run for Pres and VP.

    35 of course being the age a natural-born citizen has to have to be President.

    So a rule that whether naturalized or natural-born, you need to have been an American for 35 years, would be a good one.

    A shorter waiting period might provoke backlash, and maybe ought to do so.

    And we can’t rule out the possibility that some people will vote against such an amendment as a form of protest against current immigration policy.

    1. That wouldn’t be a horrible compromise, but I simply don’t see why it’s necessary in the first place.

  18. A strong argument for raising the citizenship requirements for all.

    1. Yeah, that sounds super liberal.

  19. Can they at least be a citizen? Or is that too burdensome?

    1. I wouldn’t exactly say burdensome, but I’m not sure the citizenship requirement is doing us any favors. Does anyone doubt Angela Merkel could do the job better than Trump or Biden?

      1. And observe that Merkal did not grow up in the country she leads.

      2. The list of people who could do the job better than Trump is roughly 7 billion, so…

        1. That’s why I narrowed it by adding Biden.

      3. Merkel? Yes, I doubt she can properly manage a bowel movement. Germany hasn’t collapsed in spite of her, not because of her.

        1. Yeah, I’ll bet Germans wish they had Trump running their COVID response. Just look at all the corpses piling up in hearses because their morgues are full. Oh wait….

  20. Has any would-be presidential candidate been disqualified as a result of spending a brief period, during the preceding 14 years, living outside the United States?

    1. Oh man don’t get them started on that.

  21. If I understand Eastman’s position correctly, it’s that Harris is not only not a natural-born citizen, but that she’s not a US citizen at all. So while I think this amendment would be a good one, I’m not sure that it would defuse the present “controversy”.

    1. A controversy only if you believe that Eastman presents a controversy with respect to Harris’s citizenship.

      Clue: doubting Harris’s citizenship is obvious crackpottery. Doubting how Harris obtained that status is obvious crackpottery.

      It is my opinion that doubting whether Harris’s citizenship is within the constitutional requirement for the presidency is wrong, but the world’s greatest legal expert (self described) , Richard Epstein seems to disagree. He also seems to disagree with actual scientists about the nature of pandemics, in general, and the covid19 pandemic specifically. I guess that since the passing of Professor Irwin Corey (DDS) that Epstein may be the World’s Greatest Expert, self described

  22. In almost every recent election, some prominent candidate’s eligibility for the presidency or vice presidency has been questioned on the theory that they do not meet the requirements of the Natural Born Citizen Clause of the Constitution.

    Nice use of the passive voice.

    I think what you meant to say was “racist Republicans have been real assholes on this topic for the past decade and change.”

    If you can’t admit the problem, you can’t expect your solution to get any traction.

    1. And of course the best way to get an amendment passed, which needs a supermajority which one party will almost never get, is to alienate one party?

    2. Also, why are you complaining? He did call out Republicans specifically.

      >The anti-immigrant attitudes of much of the GOP base precluded it, at this time.

    3. John McCain, who was an asshole, was also hit with this nonsense. And, again, Hillary’s campaign started Obama birtherism. But, continue being you.

  23. The natural born citizen requirement would almost certainly be unconstitutional had it not been written into the text of the Constitution itself. But then, so would the electoral college.

    1. I don’t disagree with your observation. I will note, however, that the natural born citizen requirement has had, and likely will have, no significant impact. By that I mean that, for example, preventing The Arnold from being eligible doesn’t have an important impact. We can find perfectly qualified candidates, Harris, for example, who qualify. As for the electoral college, that’s important. Prior to Bush, ” I am not a Junior” Bush Jr.’s election, it was my belief that an election which was decided by the electoral college in spite of the popular vote would result in an amendment overturning the electoral college. Boy, was I wrong. I voted for Bush, Jr., by the way, and would do so again considering the idiot (or moron or imbecile) he was running against.

      1. Stella, I took constitutional law in the 1980s and my professor then said the same thing, that if the electoral college ever decided an election contrary to the popular vote it would promptly be abolished. I think a lot of people assumed that.

        But if you want an interesting back story, during the Nixon administration (I think 1970 but am not certain of the year) the US House actually passed a constitutional amendment to abolish the electoral college but it failed by three votes in the US Senate. Senators James Allen of Alabama and Sam Ervin of North Carolina (you remember Sam Ervin) argued that the result of abolishing the electoral college would be to deprive the South of one of its last defenses against Northern aggression and destroy the Southern way of life. So there you have it.

        1. WHAT?

          Segregationist Sam Ervin was a Democrat AFTER “The parties switched” (per liberal theory)? I was told that such a thing just did not happen.

  24. The Angevin kings had their shortcomings, but I doubt being born in France had anything to do with it.

  25. When you look at the list of things that need to be fixed in the United States, I’m not sure this is in the top 1,000.

  26. Eastman’s argument is weak? Yours is non-existent: “I don’t like the clause so let’s get it removed.”

    1. You’re confused. Eastman is making a legal argument. Prof. Somin is making a normative one. The former requires support; the latter does not.

  27. Some good points but I would think long and hard before doing away with the requirement. Let’s be honest, our electorate is incredibly stupid and I wouldn’t put it past them to elect either Greta Thunberg or Putin should they decide to waltz in and throw their hats in the ring.

    1. There are plenty of really stupid choices who are natural-born citizens.

      I bet you could get a lot of agreement that two of the last four choices were terrible.

    2. They elected Donald effing Trump. It doesn’t get any worse than that on several grounds, including loyalty to America’s interests.

      1. Well, there was Obama, who was worse than Trump in every possible manner.

        Note: Trump hasn’t murdered Americans nor justified killing anybody over 18 anywhere in the world…

        1. To Trump’s cult of 35% or so, your argument is neither necessary nor sufficient. They already know he’s better than not just Obama, but every president in history, except maybe (but probably not) Lincoln. By the way, did you hear Lincoln was a Republican. Nobody ever talks about that.

  28. “and opening the door to ridiculous attacks on the eligibility even of people who have been US citizens all their lives”

    I don’t see why we need to worry about ridiculous attacks that don’t work, to the point of passing a constitutional amendment. Obama was, in fact, elected. And there’s no shortage of ridiculous attacks that can be made; it’s not like we get rid of this and suddenly the conspiracy theorists are focusing on the issues instead of conspiracy theories.

  29. ridiculous controvery

    Any time a left-winger tells you something is “ridiculous” you know there’s at least a hint of truth there.

    Even so, the citizenship requirement is essentially a constitutional nullity. There is no procedural requirement to present a valid birth certificate or evidence of birth in the US to run for election as President. And as we saw with the various challenges to President Obama’s citizenship, no one has standing to challenge a President’s eligibility.

    1. No; randos who get their ideas from Alex Jones’ program don’t have standing. That doesn’t mean nobody does. His opponent might. And of course if a state refused to put Obama’s name on the ballot, then Obama would be forced to sue to get his name on there, and the issue would arise.

  30. ” a Newsweek article by conservative legal scholar John Eastman, claiming that she isn’t eligible despite being born in the United States, due to the possibility that her parents were not yet US citizens at the time she was born.”

    Was she born before the 14th amendment? Because if not, just being born in the United states confers citizenship.

  31. So I guess it is little different having a Russian billionaire being President rather than a person who owed millions to Russian billionaires

  32. No, not only should it be retained it should be expanded to include all federal elected offices.

    1. And federal appointed positions, and all state and local government as well.

        1. Seriously? Generally speaking, I believe the US is better being governed by people who are natural born citizens, naturalized citizens have a lot of cultural and philosophical ties to their home country. And I say that as a son of immigrant parents.

  33. I would rather have a reasonable restriction that sometimes must be clarified to properly address borderline cases, than no rule at all.

    This is a great example of why nobody takes libertarians seriously–on so many matters you guys cannot distinguish the baby from the bathwater and just want to throw them both away.

  34. It should be fair to note that in 2008, it was the Senate Judiciary committee that asked the citizen ship question first of John McCain (Senate Resolution 511). The Judiciary Committee at the time consisted of several senators, including Senator Obama and Clinton.

  35. I would suggest as a compromise that any natural born citizen (born in US or on US territories) or any citizen naturalized before the age of 18 be permitted to run for and serve as President. This would guarantee at least 18 years of citizenship before running.

  36. Never mind the fact that due to the birthright (jus soli) citizenship rule there are tens (perhaps hundreds?) of thousands of persons born in the US who have lived their entire adult lives in the country of their parents origin … all of whom are automatically eligible for the US Presidency.

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