The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I look forward to Prof. Kevin Walsh's guest-blogging on his case for abolishing the constitutional requirement that the president must be a "natural born" citizen. Back in 2016, I wrote a post advocating much the same idea. The post was inspired in part by the then-ongoing controversy over whether Senator Ted Cruz (at the time a candidate for the GOP nomination) qualifies as a natural born citizen. Here is an excerpt:
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. Only a few immigrants (myself definitely not included) have a serious desire to become president, and fewer still would have any real chance of winning. 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.
Because of the inherent difficulty of passing any constitutional amendment and strong anti-immigration sentiment within the Republican Party, I am not optimistic that an amendment repealing the Natural Born Citizen Clause will pass anytime soon. But I hope and expect that support for this idea will grow over time.