I don't care if Ted Cruz is a natural-born citizen, and neither should you.
Nor, more pertinently, should Nancy Pelosi, Josh Earnest, John McCain, Donald Trump, or any number of other public figures who've decided to make an issue out of the fact that Ted Cruz — the son of an American citizen and as such almost certainly a natural-born citizen — was born in Canada. They all have their own motivations. For Democrats like Pelosi and Earnest, it's a chance for revenge after years of birtherism targeting Barack Obama. For McCain, it's a chance to elbow a super-annoying Senate colleague, and for Trump it's just brilliant campaigning.
But birtherism conversations usually leave unquestioned the premise that not being a natural-born citizen should disqualify someone from the presidency. Sure, it's a constitutional requirement. But the Constitution is a decrepit 229-year-old political compromise that can and should be changed, and the natural-born citizen requirement is among its stupider provisions.
It's time for Congress to pass, and for states to ratify, the Equal Opportunity to Govern Amendment, and finally give naturalized American citizens the chance to become president.
The origins of the natural-born citizen clause
The natural-born citizen clause of the Constitution reads, in full:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
So unless you were an American citizen in 1787 (as was the case for the first nine presidents, from George Washington through William Henry Harrison), you were eligible to become president, even if you were a British subject at birth (as were all the first nine presidents save Martin Van Buren). After that point, you generally have to be a citizen at birth to become president, by being born either in the US or to American citizens abroad.
It appears the provision wasn't debated at all during the Constitutional Convention. "Hardly any discussion on the Clause took place at Philadelphia," William Han writes in a 2010 law review article. "The Committee on Detail initially submitted without comment a recommendation that the President be a citizen and be a resident for twenty-one years. The Committee of Eleven changed the wording to 'natural born citizen' without explanation, and the Convention ultimately adopted the modified provision without debate."
The term "natural-born" appears to come from a letter John Jay (co-author of the Federalist Papers and the first Supreme Court chief justice) sent to George Washington during the convention. Jay wrote, "Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the command in chief of the American Army shall not be given to nor devolve on, any but a natural-born citizen."
Washington replied simply, "I thank you for the hints contained in your letter," and the proposal was adopted unanimously without debate two days later.
As Jay's letter suggests, the overriding reason for the clause was a concern that some European aristocrat would come over, use his massive wealth to get elected, and then sabotage the country from within. Yale law professor Akhil Reed Amar explained the concern in a 2004 Legal Affairs article:
The rule seems anti-egalitarian if one imagines a poor boy coming to America and rising through the political system by dint of his own sweat and virtue only to find himself barred at the top. But in 1787, the more plausible scenario was that a foreign earl or duke would cross the Atlantic with immense wealth and a vast retinue and use his European riches to buy friends and power on a scale that virtually no American could match. No such grandees had yet come to our shores, but it made sense to anticipate all the ways that European aristocracy might one day try to pervert American democracy.
Several months before the Constitution was drafted, one prominent American politician, Confederation Congress president Nathaniel Gorham, had apparently written to Prince Henry of Prussia, a brother of Frederick the Great, to inquire whether the prince might consider coming to the New World to serve as a constitutional monarch. Though few in 1787 knew about this feeler, the summer-long secret constitutional drafting sessions in Philadelphia did fuel widespread speculation that the delegates were working to fasten a monarchy upon America. One leading rumor was that the bishop of Osnaburgh, the second son of George III, would be invited to become America's king.
The natural-born clause clearly gave the lie to such rumors and thereby eased anxieties about foreign nobility. The founders also added a line stating that any presidential candidate must also have lived in this country for 14 years, but that alone wouldn't have been enough to quiet people's fears.
This was a dumb rationale, given that constitutional monarchies are great. But the fear is sensible enough given the desire of the Founders to settle for the inferior governance of a presidential republic.
All the same, as Amar notes, simply setting a time requirement might have sufficed to deal with the actual concern. The Committee on Detail, recall, merely wanted to require presidents to have been citizens for 21 years, meaning that Prince Henry of Prussia and his buddies would have to be really committed to pulling a long con to become president and overthrow the system from within. But because of Americans' paranoia, a far more sweeping provision was included.
There is absolutely no good reason to keep the natural-born citizenship clause
Even scholars who concede the clause made sense in 1787, like Amar, now oppose it as an outdated relic. "Americans today can best honor the founders' generally egalitarian vision by repealing the specific natural-born rule that has outlived its original purpose," Amar writes.
In fact, the provision is something of a laughingstock among legal academics. In 1995, UT Austin's Sandy Levinson and the journal Constitutional Commentary asked a number of constitutional law experts to name the "worst provision" in the Constitution. Both Robert Post — now dean of Yale Law School — and Harvard Law's Randall Kennedy named the natural-born citizenship clause as the worst.
Post's denunciation is particularly stirring:
[A]t the very heart of the constitutional order, in the Office of the President, the Constitution abandons its brave experiment of forging a new society based upon principles of voluntary commitment; it instead gropes for security among ties of blood and contingencies of birth. In a world of ethnic cleansing, where affirmations of allegiance are drowned in attributes of status, this constitutional provision is a chilling reminder of a path not taken, of a fate we have struggled to avoid. It is a vestigial excrescence on the face of our Constitution.
The clause has real political implications as well. For one thing, it creates pointless controversies in the cases of natural-born citizens born abroad, such as Cruz or 1968 candidate George Romney; those born in US territories, such as John McCain (who was born in the Panama Canal Zone); and even those born in the US who are not Caucasian and thus deemed suspect, such as Barack Obama.
These blow-ups distract from substantive policy differences between the candidates, and encourage voters to weigh completely irrelevant biographical factoids when deciding who to support.
The clause also cuts off completely qualified candidates from running at all. In 2007, Arnold Schwarzenegger was a quite popular Republican governor of America's largest state — where Republicans often struggle to win — and had just been reelected by a wide margin. Yet he was completely excluded from running for president. The point isn't that he would've won — he was probably too moderate for the GOP primary — or even that he would've been a good leader. It's that the governor of America's largest state should in principle be able to run for president.
Jennifer Granholm, the Democratic governor of Michigan from 2003 to 2011, was similarly barred from consideration as a presidential or vice presidential candidate because she was born in Vancouver — even though she moved to the US when she was 4 and was raised in California. Does that really make any sense?
Orrin Hatch, spurred by Schwarzenegger's bid for governor, introduced the Equal Opportunity to Govern Amendment in 2003 and explained the problem well:
This restriction has become an anachronism that is decidedly un-American. Consistent with our democratic form of government, our citizens should have every opportunity to choose their leaders free of unreasonable limitations … Perhaps most disturbing is that the scores of foreign-born men and women who have risked their lives defending the freedoms and liberties of this great nation remain ineligible for the Office of President. More than 700 recipients of the Congressional Medal of Honor — our Nation's highest decoration for valor — have been immigrants. But no matter how great their sacrifice, leadership, or love for this country, they remain ineligible to be a candidate for President. This amendment would remove this unfounded inequity.
It's rather difficult to find a rational argument for keeping the natural-born citizenship requirement, as Sarah Herlihy found in a 2005 article surveying the debate. Maybe it still keeps out potential saboteurs? Sen. Dianne Feinstein, among the US politicians most eager to sacrifice liberty for security, implied as much in 2004, saying, "I don't think it is unfair to say the president of the United States should be a native-born citizen. Your allegiance is driven by your birth."
This is bananas. I know of no empirical evidence that foreign-born Americans, who went out of their way to adopt this country and went to great lengths to become naturalized, are any more likely to want to undermine it from within. And even if that weren't a ridiculously blunt and useless heuristic, this argument ignores that there's another way to root out saboteurs: Americans can just not vote for them. This argument only works if you assume voters are catastrophically stupid.
Maybe, as the Chicago Tribune's editorial page suggested in 2003, it's just not an important enough issue to warrant a constitutional amendment? Well, given that the last ratified amendment slightly changed payment processing for members of Congress and was ratified more or less because a dude in Texas thought it'd be fun, I'm not sure the bar is quite that high.
Moreover, the Constitution has all manner of problems: The Electoral College still exists, the Supreme Court doesn't have fixed terms, the Equal Rights Amendment still isn't ratified, there isn't a constitutional right to vote, DC isn't a state, midterm elections still exist, etc. We should be more willing to amend it, not less.
That's also why the Pittsburgh Post-Gazette's argument positing, "It is a brave person who contradicts the wisdom of the Founding Fathers," fails. The Founding Fathers were wrong about all kinds of things. Most of them thought it was acceptable to kidnap people on another continent, ship them across an ocean on boats with outrageously high mortality rates, and then compel them through torture and beatings to perform agricultural labor.
It should not surprise us that people who got that wrong also were wrong about the dangers wily foreigners posed to America decades onward — if, indeed, the Founders even thought the provision deserved to last that long.
The natural-born citizen clause may have served some purpose in 1787. Now it only serves to exclude qualified candidates. It needs to be abandoned, and the Equal Opportunity to Govern Amendment needs to be passed and ratified.