The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In this post, I reply to many of the posted comments on my proposed amendment to repeal the Natural Born Citizen Clause. To keep it simple and to move things along, I've paraphrased and combined or divided the comments in various ways. Hopefully I have hit the substance even if my altered phrasing has dissipated some of the energy in the original comments.
Has anyone in Congress sponsored this proposed amendment yet? No, not yet. Please pass along any leads. If the amendment starts out as a proposal from Democrats, it's unlikely to garner Republican support. But this effect is not symmetrical. To succeed, we should probably be looking to start with Republican lawmakers.
What about Senator Mitch McConnell as a lead sponsor? Bad idea because Secretary Elaine Chao is a naturalized citizen. If the proposal could plausibly be characterized as designed to advance the candidacy of any particular person, it will be tainted as partisan and will not garner the requisite ? support to get out of Congress. One reason something like this failed the last time around is that it was viewed as the Arnold Amendment. (Among Senate Republicans now, best lead sponsor would probably be Senator John Cornyn or Senator Mike Lee.)
To combat the worry about advancing a particular candidate, why not include a lag period after ratification before the amendment becomes effective as law? Great idea. In addition to a provision stating that the proposed amendment must be ratified within a certain period of time before it expires as a proposal, Congress should also include an effective date that says this amendment shall not become effective until X years after it is ratified. (X should probably be somewhere between 5 and 7, so … 6.)
Given how little so many people care about this amendment already, won't the addition of a lag period make them care even less? No. People who don't care about the amendment won't care about its effective date.
Isn't it a problem that so few people care about this amendment? Not a problem that would prevent ratification. The Twenty-Seventh Amendment—our most recent—didn't inspire strong sentiments. And yet there it is in the Constitution.
If very few people care much about this amendment, why would anyone sponsor it? Putting aside the fact that it is good for America generally, uses include: (1) deflection of false "anti-immigrant" accusations based on a lawmaker's stance against illegal immigration; (2) attraction of votes from naturalized citizens and their friends; (3) rejection of "blood and soil" nationalism.
Is there a risk that ratifying this amendment would open things up in a way that could result in other amendments being proposed and ratified? Sure, but that's a good thing. Most of our constitutional change these days takes the form of judicial updating. It would be nice if we instead stepped up and took responsibility for our deferred constitutional maintenance ourselves. One reason to start with something like this amendment is to show that we shouldn't be scared of what others will do with constitutional amendments. The threshold for ratification is so high that something truly bad for America is very unlikely to make it through.
Have you considered whether the Fourteenth Amendment implicitly repeals the Natural Born Citizen Clause? I have, and it doesn't. On a legal blog like this, an adequate explanation for my answer to this question calls for a separate post. Please check in later this week.
Shouldn't there be a length-of-citizenship requirement for President like there is for Congress? Maybe so. I'm inclined to think that fourteen years of residency is enough, as Article II already requires. But if you prefer length-of-citizenship over length-of-residency, that is easy enough to accomplish in this amendment.
Why not just change the eligibility requirements to require 35 years of citizenship? There is a certain attraction to this proposal, which has been introduced previously. It's not my leading proposal because the birth, age, and length-of-residence requirements currently in Article II are in there for different reasons, and I have no objection to either the age or length-of-residence requirements. It might be simplistic, but the basic idea is simply to take out language that serves no good purpose well.
What about competing loyalties to country of birth for a candidate who is a naturalized citizen? Let's remember we're only talking about eligibility. Presumably voters can decide about allegiance. And there's no good reason to treat circumstances of birth as a reliable proxy. (The Manchurian Candidate was born in the United States.) With respect to competing loyalties more generally, the naturalization process requires a choice and newly naturalized Americans are akin to converts.