H
ERLIHY AUTHOR APPROVED EDITS
11-23-05
(H)(P).
DOC
2/22/2006
4:49:09
PM
275
AMENDING THE NATURAL BORN CITIZEN REQUIREMENT:GLOBALIZATION AS THE IMPETUS AND THE OBSTACLES
ARAH
P.
H
ERLIHY
∗
I
NTRODUCTION
The natural born citizen requirement in Article II of the United StatesConstitution has been called the “stupidest provision” in the Constitution,
1
“undecidedly un-American,”
2
“blatantly discriminatory,”
3
and the “Consti-tution’s worst provision.”
4
Since Arnold Schwarzenegger’s victory in theCalifornia gubernatorial recall election of 2003, commentators and policy-makers have once again started to discuss whether Article II of the UnitedStates Constitution should be amended to render naturalized citizens eligi-ble for the presidency.
5
Article II, Section 1, Clause 5 of the Constitutiondefines the eligibility requirements for an individual to become president.Article II provides:
No Person except a natural born Citizen, or a Citizen of the UnitedStates, at the time of the Adoption of this Constitution, shall be eligibleto the Office of President; neither shall any Person be eligible to that Of-fice who shall not have attained to the Age of thirty five Years, and beenfourteen Years a Resident within the United States.
6
Although these sixty-two words are far from extraordinary, the naturalborn citizen provision is controversial because it prevents over 12.8 millionAmericans from being eligible for the presidency.
7
In addition to Governor
∗
J.D. Chicago-Kent College of Law, 2005. The author would like to thank Professor GraemeDinwoodie, and the 2004–2005 Globalization and Its Effect on Domestic Law Seminar Class for theirvaluable comments and insights on this Note.1. When asked to identify the stupidest provision in the Constitution for a symposium issue of Constitutional Commentaries, two separate constitutional scholars independently chose the natural borncitizen clause. Robert Post,
What is the Constitution’s Worst Provision?
, 12 C
ONST
.
C
OMMENT
. 191,192 (1995); Randall Kennedy,
A Natural Aristocracy?
, 12 C
ONST
.
C
OMMENT
. 175, 175 (1995).2
.
Editorial,
Don’t Rush to Change Constitution
, G
REEN
B
AY
P
RESS
-G
AZETTE
, Jan. 4, 2005, atA5.3. William Safire, Essay,
The Constitution’s Flaw
, N.Y.T
IMES
, Sept. 6, 1987, at E15.4. Post,
supra
note 1, at 191.5
. See
Martin Kasindorf,
Should the Constitution be Amended for Arnold?
, USA
T
ODAY
, Dec. 3,2004, at 1A.6. U.S. C
ONST
. art. II, § 1, cl. 5.7
.
Editorial,
Time for a Change?: Should Concerns Rooted Firmly in the 18th Century Still Disqualify Immigrants from Serving as President?
, C
LEVELAND
P
LAIN
D
EALER
, Jan. 10, 2005, at B6.
H
ERLIHY AUTHOR APPROVED EDITS
11-23-05
(H)(P).
DOC
2/22/2006
4:49:09
PM
276
CHICAGO-KENT LAW REVIEW
[Vol 81:275
Schwarzenegger, the natural born citizen clause prohibits many otherprominent Americans from becoming president, including Michigan Gov-ernor Jennifer Granholm,
8
former Secretaries of State Madeleine Albrightand Henry Kissinger, Labor Secretary Elaine Chao,
9
and over 700 Medal of Honor Winners.
10
Even though many of these individuals have served inhigh political positions or fought in a war on behalf of America, they arenot able to become president simply because they were not born in theUnited States.
11
The natural born citizen clause of the United States Constitutionshould be repealed for numerous reasons. Limiting presidential eligibilityto natural born citizens discriminates against naturalized citizens, is out-dated and undemocratic, and incorrectly assumes that birthplace is a proxyfor loyalty. The increased globalization of the world continues to makeeach of these reasons more persuasive. As the world becomes smaller andcultures become more similar through globalization, the natural born citi-zen clause has increasingly become out of place in the American legal sys-tem. However, even though globalization strengthens the case for aConstitutional amendment, many Americans argue against abolishing therequirement. In a recent USA Today/CNN/Gallup Poll taken November19–21, 2004, only 31% of the respondents favored a constitutional amend-ment to abolish the natural born citizen requirement while 67% opposedsuch an amendment.
12
Although some of the reasons for maintaining thenatural born citizen requirement are rational, many of the reasons are basedprimarily on emotion. Therefore, although globalization is one impetus thatshould drive Americans to rely on reason and amend the Constitution, thispaper argues that common perceptions about globalization ironically willconvince Americans to rely on emotion and oppose a Constitutionalamendment.Part one of this paper provides a brief history and overview of thenatural born citizen requirement. Part two discusses the rational reasons for
8. Jennifer Granholm was born in Canada and moved with her family to the U.S. when she wasfour years old. Myriam Marquez, Editorial,
No Terminating Inevitable Tugs of the Heart
, O
RLANDO
S
ENTINEL
, Oct. 24, 2004, at G3.9. Kasindorf,
supra
note 5, at 2A (noting that Madeleine Albright was born in Czechoslovakiaand Henry Kissinger was born in Germany);
Time for a Change?: Should Concerns Rooted Firmly inthe 18th Century Still Disqualify Immigrants from Serving as President?
,
supra
note 7, at B6 (notingthat Elaine Chao was born in Taiwan).
10. Vicki Haddock,
President Schwarzenegger?: Some Think It’s Time to Stop Excluding For-eign-Born Citizens from Serving in the Oval Office
, S.
F.
C
HRON
., Nov. 2, 2003, at D1.11
. A Constitutional Anachronism
, Editorial, N.Y.
T
IMES
, Sept. 6, 2003, at A10. The UnitedStates Code clarifies some of the ambiguities regarding who is and who is not considered a natural borncitizen.
See
8 U.S.C. §§ 1401–1408 (2000).12. Kasindorf,
supra
note 5, at 2A.
H
ERLIHY AUTHOR APPROVED EDITS
11-23-05
(H)(P).
DOC
2/22/2006
4:49:09
PM
2006]
AMENDING THE NATURAL BORN CITIZEN REQUIREMENT
277
abolishing this requirement and describes why the increase in globalizationmakes abolishing the natural born citizen requirement more necessary thanever. Part three presents the arguments against allowing naturalized citizensto be eligible for the presidency and identifies common beliefs about glob-alization that will cause Americans to rely on emotion and oppose a Consti-tutional amendment.I. H
ISTORY AND
B
ACKGROUND OF THE
N
ATURAL
B
ORN
C
ITIZEN
R
EQUIREMENT
For a provision that excludes millions of Americans from having theopportunity to become the next American president, the natural born citizenrequirement was added to the Constitution with surprisingly little fanfare.Unlike many other Constitutional provisions that were debated during theConstitutional Convention or analyzed in the Federalist Papers, very littlewritten evidence exists regarding the addition of the natural born citizenrequirement to the presidential eligibility clause.
13
Despite the lack of clearevidence, many commentators trace the origin of the provision to a letterwritten by John Jay, the future first Chief Justice of the U.S. SupremeCourt, to George Washington during the Constitutional Convention in1787.
14
The letter recommended that the drafters provide a strong check against the admission of foreigners into the government and expressly re-quire that the commander-in-chief be a natural born citizen.
15
Specifically,Jay wrote:
Permit me to hint, whether it would be wise and seasonable to provide astrong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command inChief of the American army shall not be given to nor devolve on, any buta natural born Citizen.
16
Many commentators believe that Jay wrote this letter to respond to arumor that the Convention was secretly designing a monarchy to be ruledby a foreign power.
17
Regardless of whether this letter prompted the inclu-sion of the natural born citizen requirement, many believe that, at the timeof the drafting of the Constitution, Americans had a general fear of foreigninfluence after witnessing “how Austria, Prussia, and Russia infiltrated
13
. Time for a Change?: Should Concerns Rooted Firmly in the 18th Century Still Disqualify Immigrants from Serving as President?
,
supra
note 7, at B6.14. Charles Gordon,
Who Can Be President of the United States: The Unresolved Enigma
, 28 M
D
.
L.
R
EV
. 1, 5 (1968).15
. Id.
16
. Id.
17
. Id.
Search History:
Result 00 of 00
00 results for result for
p.
AMENDING THE NATURAL BORN CITIZEN REQUIREMENT: GLOBALIZATION AS THE IMPETUS AND THE OBSTACLE at Vol. 81: 275 by Sarah P. Herlihy, Esq.
This documents is loaded for reference in conjunction with the First Amended Complaint in Strunk v. NYS BOE et al. NYS County of Kings Index 29642-08
At page 16 paragraph 55.
At page 16 paragraph 55.
1.1K
Reads
1
Readcasts
0
Embed Views
More From This User
Notes
Load more
