This summer, Mei Magazine asked me to contribute a short piece on the Natural Born Citizen Clause of the U.S. Constitution -- the constitutional provision that prevents our foreign-born children from being President of the United States. Mei Magazine, for children age 7 and up adopted from China, was responding to a reader letter for a girl who didn't think it fair that she couldn't be president.
Here's what I wrote:
It’s in the U.S. Constitution: “No Person except a natural born Citizen . . . shall be eligible to the Office of President.”
This law that says only natural-born citizens can be president makes me mad, too. I learned about it when I was a kid and thought it was pretty dumb, because it meant that my mom couldn’t be president since she was born in France. And I still think it’s pretty dumb, since it means my kids, born in China, can’t be president, either.
Of course, most kids in America don’t grow up to be president. We’ve only had 43 presidents, after all. But I don’t like the idea of a rule in our Constitution that treats people differently just because of where they were born. It’s a way of saying that naturalized citizens are really second-class citizens, that they aren’t as loyal as birth-right citizens, that they are always a little bit foreign no matter how long they’ve been Americans. I’ve seen people treat my mom that way, getting mad at her for things the country of France is doing even though she’s been an American citizen longer than she was a French citizen. I worry that the same thing will happen to my kids.
Now I’m a law professor, and part of my job is researching the law. I decided to research the natural-born citizen clause to try to understand what it was all about. And while I was working on it, I came up with an idea for why that rule has already been changed!
The rule became the law when the country approved of the U.S. Constitution in 1789. But in 1865, after the Civil War, we amended the Constitution to add the Fourteenth Amendment, which includes the equal protection clause. It says, “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This was added to the Constitution so that the newly-freed slaves would be treated fairly under the law. But since the amendment talks about “any person,” courts have said that the equal protection clause means that we have to treat everyone fairly, regardless of race, sex, or national origin. So the equal protection clause says you can’t discriminate against someone because they were born in China.
I think that we erased the natural born citizen clause from the Constitution when we passed the equal protection clause. After all, the natural born citizen clause discriminates against people based on where they were born, and that’s the very thing the equal protection clause says we can’t do!
When there are two laws that talk about the same thing, and they are completely contradictory – like complete opposites – we say that the two laws can’t both be right. We say that the law passed more recently has repealed, or erased, the earlier law. That’s why I think we’ve already repealed the natural born citizen clause. The equal protection clause has erased it!
The only way to find out if my argument is right is for someone who is not a natural born citizen to run for President. Then they can ask the U.S. Supreme Court if the natural born citizen clause is still good law. Maybe one of the readers of Mei Magazine will decide to run for President, and prove to everyone that the natural born citizen clause has no place in modern America!
(If you'd like to read more (lots more!), you can read (or not!) my lengthy scholarly article on the subject: The Presidency and the Meaning of Citizenship.)