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VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Advocating for the Trump/Chao/Volokh Amendment is fun and satisfying

"Good luck with that," he said. "It'll never happen," he probably meant. Such was the response I received recently when I told a fellow member of the legal profession how attending a naturalization ceremony at the federal courthouse—hearing the gratitude in the presiding judge's speech and seeing the patriotic pride of the new American citizens—has been one of my inspirations for proposing a constitutional amendment to repeal the Natural Born Citizen Clause.

Others have been more blunt: "You're wasting your time." "Don't bother." "You really should find something better to do." "Is everything okay?"

I get it. Any amendment attempt is something of a long shot at the beginning. But these objections also miss the joy in the journey.

It just plain feels good to advocate for a constitutional amendment that affirms the equal citizenship of all American citizens. I've experienced and observed that engaging in this kind of advocacy makes people feel better about America and their fellow citizens.

Nor is this just about good feelings. Making the case for this proposed amendment can also cause people to think more highly of their fellow citizens. There turn out to be more "persuadables" on the Natural Born Citizen Clause than many people initially suppose. It's satisfying to try to get people to stop a moment and think about this constitutional provision because many people tend to end up agreeing it should be repealed.

There are hard-core nativists, too, of course. But not many. There are many more who can't be bothered one way or the other. And many also just haven't noticed how anomalous the Natural Born Citizen Clause is in the U.S. Constitution. They have no problem with our system in which naturalized citizens can serve on the Supreme Court, in the Senate and House of Representatives, on the Joint Chiefs of Staff, and so on. And they are usually interested to learn that hundreds of naturalized citizens have been awarded the Congressional Medal of Honor.

The best argument for repeal is not that anybody excluded by it now "deserves" to run for President. (The process seems somewhat dehumanizing, actually.) A better way of looking at it is that it makes little sense to treat a whole category of American citizens as undeserving of the opportunity to even put themselves out there to be considered for President by their fellow Americans.

As for the nativists, what would be more satisfying than taking this fight to them, and winning … with President Trump fighting on the same side as us? Melania Trump, the First Lady of the United States, is a naturalized citizen. She represents the United States of America at home and abroad. Good luck questioning her patriotism.

In thinking about Republican support for the equal American citizenship of naturalized Americans more generally, consider Secretary Elaine Chao. Her status as a naturalized citizen did not prevent President Trump from appointing her to head the Department of Transportation. Nor did it hold her back in the prior Republican Administration when President George W. Bush appointed Chao to head the Department of Labor.

Secretary Chao's husband is the Senate Majority Leader, Mitch McConnell. Once this amendment process really gets rolling, it will be interesting to see which Republican senators choose to advance the argument that naturalized citizens should remain categorically ineligible for President. How did things work out for nativist Don Blankenship in his West Virginia Republican Senate primary? And speaking of West Virginia, here's what President Trump said in a video address to newly naturalized citizens there last fall: "No matter where you came from, what faith you practice, this is now your country. There is no higher honor, no greater responsibility. All Americans are now your brothers and sisters. You share one American heart, one American destiny."

When people generalize about the questionable allegiance of naturalized citizens in connection with proposed repeal of the Natural Born Citizen Clause, it's helpful to turn their attention to naturalized citizens they know. I've seen a lot in the comments section of The Volokh Conspiracy over the years, for example, but not much in the way of questioning the constitutional bona fides of Eugene Volokh. When it comes to votes for President, too, any loyalty concerns will always be about the loyalty of particular individuals. And this is something voters should be able to assess for themselves.

To come back to where this post began, experience with naturalization ceremonies is also a good starting point in seeking support from elected officials. On their way to being elected or after, many officeholders have spoken at naturalization ceremonies. And whatever their stance on other immigration-related issues may be, they uniformly praise the newly naturalized for their allegiance to America. In asking our elected officials to support this proposed amendment, then, we are often simply asking them to show that they still stand behind something they have already said (and meant). In so doing, we are offering an easy way for these officials to feel good about themselves and the job they are doing. And that's a refreshing stance for us all to adopt from time to time.

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  • TwelveInchPianist||

    Meh. I grade this work a C-.

  • Eidde||

    I see what you did there.

  • gormadoc||

    So in ten years we'll get the amendment?

  • TwelveInchPianist||

    Hope so.

  • colorblindkid||

    I think we should still have a requirement that they must be a citizen before age 18, if not younger...

  • Sarcastr0||

    Because that makes them more patriotic?

  • Malvolio||

    I think the idea is that makes them less likely to be Fifth Columnists, or some nonsense like that.

  • Krayt||

    I'll risk missing out on a quality president to forgo some long game by a foreign power.

    Whining about loyalty is a rhetorical flourish that doesn't address the issue. You won't detect the problem until too late, if even then.

    Native presidents who may be improperly entangled with enemies are bad enough as it is.

    Isn't it?

  • BadLib||

    I think it's reasonable to require a period since citizenship was granted and a period of continuous residency in the United States (not necessarily completely overlapping) as it gives a candidate time to have reflected on their citizenship and understand and experience first hand the unique legal system and culture of America.

    Of course, a period of continuous residency would be a new requirement even for natural born citizens so it might meet resistance unless only applied to those who are not natural born citizens.

    Perhaps 20 years of citizenship and 20 years of continuous residence in the US would be appropriate.

    However, I don't see why someone who became a citizen at 18 (even though they may have legally lived in the US almost their entire lives) should be barred forever from the office of President.

  • MightyMouse||

    The post is a refreshing affirmation of American values.

    It is so alienating when the latent honor culture of this country rears its ugly head. God bless cultural/religious pride, but my god the horror.

  • ||

    Please don't call it the Congressional Medal of Honor, Congress has nothing to do with it. It is just the Medal of Honor.

  • Rossami||

    While you are correct that the official name is just the "Medal of Honor", the medal is presented "in the name of Congress". It is referred to by the informal name the Congressional Medal of Honor even in the US Code (see for example 18 U.S.C. § 704).

  • Bob from Ohio||

    "hard-core nativists, too"

    Calling your opposition bigots is a great way to get started.

  • Eidde||

    A nativist is literally someone who would give preference to native-born citizens.

  • JonFrum||

    From the Atlantic: "There's a reason the word "nativism" appears regularly in the U.S. media and not elsewhere: According to Mudde, a professor at the University of Georgia, nativism is an almost exclusively American concept that is rarely discussed in Western Europe. The term's origins lie with mid-19th century political movements in the United States—most famously the Know Nothing party—that portrayed Catholic immigration from countries such as Germany and Ireland as a grave threat to native-born Protestant Americans. (Never mind that the Protestant "natives" were themselves migrants relative to another native population.) Nativism arose in a natural place: a nation constructed through waves of migration and backlashes to migration, where the meaning of "native" is always evolving.

    Europeans tend to talk about "ultra-nationalism" or "xenophobia" or "racism" rather than nativism, said Mudde, who is Dutch ..."

    And: "Nativism, Mudde told me, is "xenophobic nationalism."

    This is what the commenter was referring to, no doubt. Your definition does not hold water.

  • Malvolio||

    I will only support this amendment if we name it the Schwarzenegger Amendment, as promised the visionary masterpiece "Demolition Man".

  • darkknight9||

    I am darkknight9 and I approve this movie reference.

  • Eidde||

    Excellent idea, it probably needs some political powerhouse guy to get it moving - McConnell?

  • Eidde||

    I mean, have you even found a sponsor?

  • bernard11||

    OT, but I am having a problem with the site. Quite often the panel on the right, which promotes Reason in various ways, starts jumping and flashing. This happens in both Safari and Chrome on my iMAc.

    Is anyone else experiencing this? Who do I notify?

  • M.L.||

    Same here, Chrome on windows. It's seizure-inducing.

  • tkamenick||

    Happens to me too, esp. when my window is not full screen.

  • bernard11||

    OT, but I am having a problem with the site. Quite often the panel on the right, which promotes Reason in various ways, starts jumping and flashing. This happens in both Safari and Chrome on my iMAc.

    Is anyone else experiencing this? Who do I notify?

  • bernard11||

    OT, but I am having a problem with the site. Quite often the panel on the right, which promotes Reason in various ways, starts jumping and flashing. This happens in both Safari and Chrome on my iMAc.

    Is anyone else experiencing this? Who do I notify?

  • bernard11||

    OT, but I am having a problem with the site. Quite often the panel on the right, which promotes Reason in various ways, starts jumping and flashing. This happens in both Safari and Chrome on my iMAc.

    Is anyone else experiencing this? Who do I notify?

  • bernard11||

    OT, but I am having a problem with the site. Quite often the panel on the right, which promotes Reason in various ways, starts jumping and flashing. This happens in both Safari and Chrome on my iMAc.

    Is anyone else experiencing this? Who do I notify?

  • bernard11||

    OT, but I am having a problem with the site. Quite often the panel on the right, which promotes Reason in various ways, starts jumping and flashing. This happens in both Safari and Chrome on my iMAc.

    Is anyone else experiencing this? Who do I notify?

  • bernard11||

    It's also posting my comments multiple times. Not my fault, I swear.

  • gormadoc||

    Comment system's been buggy for a couple days now. I think you got the worst of it, though.

  • Eidde||

    Right now it's caught in a Catch-22: The natural-born clause gets discussed if some naturalized citizen is developing a following, but then the opponents of that person become suspicious that the amendment would simply be a vehicle for that person's ambitions.

    How to break out of that cycle - it's either ignored as irrelevant, or opposed as promoting the candidacy of someone controversial.

  • MightyMouse||

    Suspicion doesn't stand to reason. Irrational suspicion didn't stop Obama, but almost.

    Your catch 22 idea doesn't make sense to me, given how (unfairly) decisive public perception is on race and national origin.

  • Eidde||

    It's my hypothesis to explain why this perfectly good idea hasn't gone anywhere to date.

  • mad_kalak||

    "It just plain feels good to advocate for a constitutional amendment that affirms the equal citizenship of all American citizens."

    But dint of foreign birth, some citizens are not equal, and never will be. Therefore, you want an amendment that WOULD create equal citizenship, not affirm it.

  • Sarcastr0||

    Legal is not the same as societal.

  • mad_kalak||

    Yea, I know, I need to be taller if I am ever to play for the Knicks and it's just not fair. No, I am being serious though, before the 19th amendment not all citizens were equal. The same for various property requirements for voting if you go back further into history. Right now, the only unequal status about citizenship is the various age and residency requirements for office holding (that nobody seems up in arms about much) and the natural born citizen requirement.

    So, citizens are not equal, and never will be, because we will always have the age requirements and residency requirements. I mean, seriously, I live 100 yards from a state line, why can't I run for senate in the state next to me, rather than in the state I live in? There is no substantive difference, just like a baby born in China but adopted by parents and brought to the US at 2 months old might as well be a natural born citizen.

    All this feel good thing amendment would do is make a certain subclass of citizens equal to another subclass of citizens, meanwhile not all citizens are equal due to age and residency requirements, and again, never will be.

  • mad_kalak||

    Oh, and I forgot the draft. Men are unequal to women because they have to be expected to serve and if necessary die, while women get to skate.

  • phattyboombatty||

    Is there a concern by legislators that even if they agree with a proposed Constitutional amendment, they do not want to approve the amendment because it opens the process to the introduction of other amendments that they do not favor? So much of legislation is simply horse trading, and if there is a fear that allowing one amendment will lead to a vote on another amendment, the end result is that no amendments are allowed to be considered and voted on.

  • MightyMouse||

    Is their a concern by legislators that doing something, or anything, productive might not be worth the effort?

  • Eidde||

    Too much like work.

  • JonFrum||

    Yes. Your point is exactly what the problem is. In today's atmosphere, both sides of the ideological divide are scared shitless of what the other may come up with. Like an abortion ban, an effective elimination of the 2nd amendment, etc.

  • jrd_2||

    Is there any argument that the Equal Protection Clause tacitly repealed (or rendered unenforceable) the Natural Born Citizen Clause? National origin is a suspect classification, correct? It's hard to think of the compelling interest that the NBCC serves. Why not recruit a plaintiff to litigate this?

  • M.L.||

    That's a wonderful quote from our President, isn't it? I am sure the effusive media praise will start any day now, 24/7 Obama-style. :)

    Meanwhile, here's a few more that don't see the light of day.

    When you open your heart to patriotism, there is no room for prejudice.
    We must love each other, show affection for each other, and unite together in condemnation of hatred, bigotry and violence. We must rediscover the bonds of love and loyalty that bring us together as Americans.
    Racism is evil. And those who cause violence in its name are criminals and thugs, including the KKK, neo Nazis, white supremacists and other hate groups that are repugnant to everything we hold dear as Americans. We are a nation founded on the truth that all of us are created equal. We are equal in the eyes of our Creator. We are equal under the law. And we are equal under our Constitution. Those who spread violence in the name of bigotry strike at the very core of America.
    Our two great republics are linked together by the timeless bonds of history, culture and destiny. We are people who cherish our values, protect our civilization and recognize the image of God in every human soul.
  • M.L.||

    The United States is a compassionate nation. We are proud that we do more than any other country to help the needy, the struggling, and the underprivileged all over the world. But as President of the United States, my highest loyalty, my greatest compassion, and my constant concern is for America's children, America's struggling workers, and America's forgotten communities. I want our youth to grow up to achieve great things. I want our poor to have their chance to rise.

    So tonight, I am extending an open hand to work with members of both parties — Democrats and Republicans — to protect our citizens of every background, color, religion, and creed. My duty, and the sacred duty of every elected official in this chamber, is to defend Americans — to protect their safety, their families, their communities, and their right to the American Dream. Because Americans are dreamers too.
  • Toranth||

    It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.
    There is no good government but what is republican. That the only valuable part of the British constitution is so; for the true idea of a republic is "an empire of laws, and not of men." That,as a republic is the best of governments, so that particular arrangement of the powers of society, or in other words, that form of government which is best contrived to secure an impartial and exact execution of the law, is the best of republics.
    If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws - the first growing out of the last. . . . A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government.
  • Brett Bellmore||

    Not my idea of the most needed amendment, but not really objectionable, either.

    I would make two suggestions:

    1. The best way to reassure people that the amendment is not intended to clear the path for some specific candidate, and thus excite partisan opposition, is delayed effect.

    2. Combine the age and residency requirements. Rather than, "who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.'", try, "who shall have been thirty five years resident within the United States, and fourteen years a citizen." We don't really want a President who, though a citizen at birth, has spent very little time actually living in in the U.S.. Nor do we want a President who has lived here for decades, but never bothered to obtain citizenship until the Presidency beckoned.

  • Eidde||

    Why not fourteen years of both residence and citizenship? Plus a 35 year old age minimum.

  • Eidde||

    Imagine someone who spends a lot of their life abroad at, say, various military installations and battle-fronts.

  • Brett Bellmore||

    It's a judgement call, but I really think a President should be, culturally, American. Not just American by citizenship. And that requires spending a lot of time, ideally your formative years, in America.

  • Sarcastr0||

    'Culturally American'

    Which is gotten by growing up in America.

    Have you ever met newly minted citizens? It's anecdotal, but the one's I've met are quite a bit more American than some of the natives I know.

  • Brett Bellmore||

    I'm married to a newly minted citizen. Yes, in some ways, no in others.

  • Sarcastr0||

    The question is whether the others such that they should be cut off from running for the Presidency, with the associated stigma that comes from such unequal protection.

  • Brett Bellmore||

    I've never seen it as much of a stigma. It's not like it's a moral failing, not meeting a formal requirement for a particular office.

  • William_Zanzinger||

    Is there any evidence that Melania Trump was not recruited and trained as a Soviet spy in the 1980s?

  • Brett Bellmore||

    Is there any evidence that TDS sufferers still comprehend that the burden of proof is on them to demonstrate guilt, not on the Trumps to demonstrate innocence?

  • Rip Murdock||

    Melania Trump, doing a job no American would want to.

  • Eidde||

    Look at this, Martin Van Buren, born 1782, and Zachary Taylor, born in 1784, were each doubly qualified to be President - natural born citizens *and* citizens at the time the Constitution was adopted a few years after their respective births.

    If a natural-born citizen is like a 100% American, they were 200% Americans.

  • Eidde||

    I found this article about some pre-WWII propaganda broadcasts featuring famous naturalized Americans. Check out the people interviewed and recall that they were all subject to lifetime bans against serving as President (or Vice-President).

    An updated version of this might help launch a campaign for your amendment, professor.

  • Eidde||

    I can only think of four living natural-born citizens who are under a lifetime ban from being elected President:

    Thomas Porteous, former federal district court judge. Impeached, convicted in the Senate, and banned for life from holding federal office.

    Bill Clinton, former two-term President, barred by the 22nd Amendment.

    George W. Bush, former two-term President, barred by the 22nd Amendment.

    Barack Obama, former two-term President, barred by the 22nd Amendment

  • Rip Murdock||

    Add Walter Nixon. Impeached and convicted in 1989 for committing perjury before a grand jury.

    Nixon appealed his impeachment and removal to the United States Supreme Court. In Nixon v. United States, handed down in 1993, the Court rejected his appeal as a nonjusticiable political question.

  • Eidde||

    I don't think Nixon was disqualified from federal office...

    (checks Wikipedia)

    ...it says he was barred from the federal judiciary, but doesn't mention a ban from federal office.

  • Purple Martin||

    You can append Jonathan Bernstein at Bloomberg to your Trump/Chao/Volokh list---he's been advocating for that Amendment for years (also, for extending the franchise to 16-year-olds, though that wouldn't need an Amendment).

  • JonFrum||

    Of all possible amendments, I'd put this well down the list. Not a terrible idea, but not something I'd donate a bag of donuts for.

  • Brett Bellmore||

    Yes, I've not noticed an abundance of naturalized Americans who the nation desperately needs as President. Theoretically a problem, but it's like getting your car detailed during the zombie apocalypse; Haven't you got more important things on your plate?

  • prsmith||

    Sure, why not? You yahoos ignore or twist the Constitution anyway - might as well trash it.

  • Alpheus W Drinkwater||

    If a naturalized citizen ran for President, and was placed on the ballot in various states, would anyone have standing to challenge it in federal court? Reminiscent of the Ted Cruz discussions in 2016.

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