Sat. Jan 16th, 2021

Senator Kamala Harris.

Almost all recent elections have questioned the suitability of a prominent candidate for the presidency or vice-presidency for failing to meet the requirements of the natural born citizen clause of the constitution. In 2016 the target was Ted Cruz. In 2008 and 2012, it was Barack Obama who was attacked by "obstetricians" who falsely claimed he was born outside the United States. Obama's 2008 GOP opponent John McCain was also attacked for being born in what was then the Canal Zone.

The recent Natural Born Citizen controversy has centered on Democratic Vice-Presidential candidate Kamala Harris, thanks to a Newsweek article by conservative legal scholar John Eastman claiming that despite her birth in the United States, due to the possibility that her parents were born, At the time of their birth, no US citizens were eligible. Eastman's argument was predictably taken up by Donald Trump, just as Trump previously claimed Ted Cruz was ineligible in 2016 and encouraged "birtherist" attacks on Obama.

Eastman's argument is weak and has already sparked strong rebuttals from co-blogger Eugene Volokh and others. I would add that much of Eastman's analysis is based on his very narrow interpretation of the birthright citizenship clause of the fourteenth amendment, which I have criticized here. For what it's worth, I also defended Cruz's eligibility in 2016. While I'm not a huge Cruz or Harris fan, I am also not eligible to be president.

The most reprehensible aspect of this situation, however, is that the Natural Born Citizenship clause even exists, preventing virtually all immigrants from holding the highest office in the country and opening the door to ridiculous attacks on the eligibility of even people who Americans were citizens all their lives, like Cruz, Obama, and Harris. Rather than focusing on the candidates' guidelines, competencies, and characters, we spend valuable time and effort discussing irrelevancies such as their place of birth and the exact legal status of their parents.

In 2016, at the time of the Cruz controversy, I spoke out in favor of abolishing the requirements of the naturally born citizen. It remains just as relevant today:

Much time and effort has been spent in recent weeks debating whether Ted Cruz is a "naturally born citizen" eligible for the presidency. However you approach this question of the interpretation of the Constitution, the real lesson of this debate should be the absurdity of excluding naturalized citizens from the presidency at all. The categorical exclusion of immigrants from the presidency is a form of arbitrary discrimination based on place of birth (or in some cases ancestry) that, ultimately, is little different from discrimination based on race or ethnicity. Both ethnicity and place of birth are morally arbitrary features that do not in themselves determine a person's competence or moral aptitude for high political office.

It can be argued that immigrants know less about the country and its customs and could therefore make worse presidents. However, this problem is certainly addressed by the constitutional requirement that a presidential candidate must have lived in the United States for at least fourteen years. In practice, anyone who achieves the political connections and public recognition necessary to seriously run for the presidency is likely to have at least as much knowledge of US and US politics as the most serious native-born candidates were.

Perhaps the most obvious objection to the rise of immigrants to the presidency is a fear that they will be less loyal than native-born citizens. However, there is no good reason to believe that people who voluntarily became Americans are less loyal than those who just happened to do so. In fact, the converse assumption is at least as plausible. Even if some immigrant groups are on average less loyal than natives, the same assumption can be made about members of some ethnic or racial group as compared to others. Such statistical correlations, even if they are valid, would not justify categorically excluding members of these groups from the presidency, and the same point applies to immigrants.

The importance of this topic should not be overstated. Exclusion from the presidency has little or no practical impact on the lives of the vast majority of naturalized citizens. Nonetheless, the categorical exclusion from eligibility for the highest office in the country is an important symbolic affront to immigrants, even to those who do not wish to run for the presidency themselves. For example, imagine how blacks, Hispanics, or Irish-Americans might feel if their group were similarly excluded.

Abraham Lincoln once said that "(w) when (immigrants) look through this old Declaration of Independence, they find these old men saying," We take these truths for granted that all human beings are created equal "; and then you have that Feel that this moral feeling taught that day proves their relationship with these men … and that they have the right to claim it as if they were the blood of blood and flesh of flesh of the men who wrote this statement and so they are. ‚ÄĚThis principle will only be fully realized if we abolish the discriminatory exclusion of immigrants from the highest political office in the country.

On the points raised in my previous article, I would like to add that another reason for the abolition of the Natural Born Citizen clause is to prevent unscrupulous politicians from bringing up bogus licensing issues against their opponents. Even if these claims are legally unfounded, they poison the political atmosphere and divert scant public attention from real issues.

I am not optimistic that a constitutional amendment to abolish this requirement can be passed anytime soon. The anti-immigrant stance of much of the GOP grassroots ruled this out at the time. In addition, it is extremely difficult to pass an amendment, as two thirds of the majorities must be secured in both chambers of Congress and then the support of three quarters of the state legislatures must be won.

But things could change as the passions of the current political moment pass, the xenophobic sentiment subsides (polls consistently show that younger voters are much more supportive of immigration than older ones), and more people realize that the Natural Born Citizen clause is at best is stupid and in the worst case an example of downright bigotry. At the very least, people might get tired of hearing about this type of gossip trap every four years.

UPDATE: I should continue to acknowledge Harvard Law Professor Randall Kennedy's longstanding advocacy of getting rid of this clause which has influenced my own views.

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