Thursday, July 29, 2010

The Constitutional Requirement that a President be a “Natural Born” Citizen

This summer I have been fortunate to get to do some traveling. Our family has put a lot of miles on our car as we trekked across several states in the Southwest. We have had fun spending time together as we soak up a lot of the beautiful scenery in this amazing country of ours. Being in the car a lot more than usual, I have had the opportunity to read a lot more bumper stickers than I typically do. Some are more interesting than others. We weren’t traveling in New York, Vermont or Hawaii, so it was not uncommon to see some bumper stickers expressing hostility towards President Obama. One that comes to mind stated: “God and Obama have one thing in common: no birth certificate.”

I have to admit when I see things like that or hear equivalent comments on talk radio, I tend to roll my eyes and think, “Really?!!? Is that the best use of the finite time you have on this Earth?” Personally, I just cannot believe some folks are still talking about that non-issue.

Earlier this year, an article of mine appeared in the Chicana/o-Latina/o Law Review, which is published by UCLA. The article involved the constitutional requirement that a president be a “natural born” citizen. The article is titled “Empowering Our Children to Dream Without Limitations: A Call to Revisit the ‘Natural Born Citizen’ Requirement in the Obama Era.” Despite the title, the article actually had very little to do with Barack Obama, but grew out of my love for children and my interest in the effects of various laws on their well-being. This particular article was inspired by certain personal experiences I have had as a mom, an aunt, and a former grade school teacher. If you are interested, you can access the entire paper (or just an abstract) at the site below:

The topic of the paper is very different from my typical scholarship. As a result, I learned a lot about the “natural born” citizen requirement in the course of doing the research for this paper. For example, the “natural born” requirement has been panned by many constitutional law experts and lay people for a very long time. The requirement has been criticized as unnecessary and un-American. In the modern era, the requirement has even been characterized as racist because most immigrants these days come from Asia and Latin America.

In researching the article, I also learned that this hostility towards the “natural born” requirement is decidedly non-partisan. For years, people on both the right and the left have advocated that we eliminate it from the U.S. Constitution. Indeed in recent years, the governorship of Arnold Schwarzenegger seemed to spark a particular flurry of articles on the subject from Republican (or Republican leaning) persons.

I wrote my article after Barack Obama was elected president, around the time of his inauguration. In the paper, I noted that during the election season questions had been raised about both of the major party candidates’ ability to satisfy the “natural born” citizen requirement. In my research, it seemed that the questions about Barack Obama’s qualifications were pretty far fetched or were just wrong from a legal perspective. Some focused on the Kenyan citizenship of Obama’s father, but ignored the fact that his birth on U.S. soil (i.e., in Hawaii) is what is key to the “natural born” requirement. There have also been silly rumors that Barack Obama’s Hawaiian birth certificate was a forgery and he was born in Kenya. There was also an assertion that he was adopted in Indonesia. (Perhaps if Bill Clinton had spent any time outside the U.S. as a child, folks might have attacked his qualifications as a “natural born” citizen, but I suppose Clinton’s sexual escapades provided sufficient fodder for his opponents.)

Interestingly, in researching my paper I learned that more serious legal questions were actually raised about John McCain’s qualifications. As a result, the senator’s presidential campaign requested an opinion on the subject from two legal heavy-weights: Professor Laurence H. Tribe of Harvard and former Solicitor General Theodore B. Olson. The two learned men concluded that Senator McCain did satisfy the “natural born” citizen requirement. Nonetheless, the opinion of Professor Tribe and Mr. Olson has not been accepted by all experts. Several articles have been written refuting or expressing doubt about the conclusion of Professor Tribe and Mr. Olson. See e.g. Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 Mich. L. Rev. First Impressions 1 (2008); Lawrence B. Solum, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008).

I personally reserve judgment, I have not investigated that particular legal issue in enough depth. But I raise these doubts simply to flag that even if Barack Obama had not won the presidential election, it is quite possible that some folks would be questioning the legitimacy of the current presidency. (I would not be among them, but others might have.)

Nonetheless, when I wrote my article in early 2009, it frankly never occurred to me that after Barack Obama took the oath of office some bitter folks would devote so much time and effort to continue to harp on the “natural born” question though there is just no legal issue. The current state of affairs is really tragic. Our country has a lot of other pressing issues we ought to all be trying to solve instead of fighting each other over baseless fantasies to overturn the election results.

Moreover, the point of my article was that the “natural born” citizenship requirement ought to be eliminated in order to give all American children confidence that there are no limits to what they can achieve in this country if they work hard. In the article, I advocated a grassroots movement to eliminate the “natural born” citizen requirement from the U.S. Constitution. But in the current political climate, that will never happen. I’m an optimist, but I’m also a realist. Even if a grassroots movement arose, in the current climate, President Obama’s adversaries would simply charge that such efforts were a personal attempt to legitimize an illegitimate Commander-in-Chief. So, as far as I see, we are stuck with this ridiculous requirement for a long time to come.

Hebrews 11:8-16

By faith Abraham obeyed when he was called to set out for a place that he was to receive as an inheritance; and he set out, not knowing where he was going. By faith he stayed for a time in the land he had been promised, as in a foreign land, living in tents as did Isaac and Jacob, who were heirs with him of the same promise. For he looked forward to the city that has foundations, whose architect and builder is God. By faith he received power of procreation, even though he was too old—and Sarah herself was barren—because he considered him faithful who had promised. Therefore from one person, and this one as good as dead, descendants were born, “as many as the stars of heaven and as the innumerable grains of sand by the seashore.” All of these died in faith without having received the promises, but from a distance they saw and greeted them. They confessed that they were strangers and foreigners on the earth, for people who speak in this way make it clear that they are seeking a homeland. If they had been thinking of the land that they had left behind, they would have had opportunity to return. But as it is, they desire a better country, that is, a heavenly one. Therefore God is not ashamed to be called their God; indeed, he has prepared a city for them.

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