Now that the nation appears to be turning the page on Donald Trump, this might be a good time to revisit the issue that gave him a political soapbox in the first place — his “birther” accusation against President Barack Obama.
In the years before his own presidential campaign, Trump tweeted that because Obama had been born in Kenya, his presidency was invalid according to the Constitution. Even after an exasperated Obama produced a birth certificate from Hawaii, Trump kept it up.
Trump has often been known to offer his own unique interpretation of the Constitution (a U.S. president cannot simply wave his hand and make a constitutional amendment go away, for example), but he outdid himself here. Even if Obama had been born in Kenya, it wouldn’t have mattered because his mother was an American citizen at the time of his birth.
Here is what the Constitution actually says: “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.”
This isn’t just about Obama — it has come up three other times in recent years involving presidential candidates who were born in other countries — John McCain (The Panama Canal Zone), Mitt Romney (Mexico), and Ted Cruz (Canada). In each case, the fact that one or both of their parents were American citizens got them off the hook. The phrase “natural born” it was decided, is not the same as “native-born,” which would require that someone be born within the borders of the United States. Even someone born in the U.S. to non-citizen parents (as in the case of Kamala Harris) would also qualify as a legal presidential candidate.
In the meantime, we can obviously put away the “citizen at the time of the adoption of the Constitution” requirement since such a candidate would now be more than 250 years old.
What is comes down to, then, is that the constitutional clause dealing with presidential candidacy only excludes individuals who were born outside the U.S. to parents who were not American citizens.
But why? This antiquated requirement would seem to fly in the face of America’s image as a “melting pot” where immigrants are welcomed and appreciated. It’s not who we are, or at least not who we claim to be.
Randall Kennedy and Ilya Somin wrote in a USA Today editorial back in September: “Barring naturalized citizens from eligibility for the presidency is little different from discrimination based on race, ethnicity or gender. Such unchosen circumstances of birth say nothing about a person’s competence or moral fitness for office. Our legal system rejects the natural-born requirement elsewhere. It does not apply to governors, members of Congress, justices of the Supreme Court, cabinet officers, or the Chair of the Joint Chiefs of Staff. It should be removed as a condition for eligibility for the presidency. ”
Like a number of other provisions in the Constitution, the “birther” clause was born into a very different world, at a time when the lingering aftertaste of the conflict with England fed into a “circle the wagons” mentality.
It was John Jay — who wasn’t even a delegate to the Constitutional convention — who suggested in a letter to George Washington in 1787 that the founders “provide a strong check to the admission of Foreigners into the administration of our national government, and to declare expressly that the Commander in chief of the American army shall not be given to, nor devolved on, any but a natural born Citizen.”
According to Noah Feldman of the Bloomberg News: “Notably, Jay was focused on the commander in chief, not the president — and he did not know that the two jobs would be fused into one. Most likely, Washington took Jay’s worry about the commander in chief to heart, and when the president was also made the commander in chief, the natural-born requirement came along with it.”
Some historians see Jay’s letter, and the ease with which it was incorporated into the larger constitutional document, as a move to block any possibility that the Marquis de Lafayette might wind up commanding American troops. Today, the “birther” clause has been appropriated by anti-immigration politicians who know that even if a person actually qualifies for the office of president because of the factors mentioned above, raising the question of his or her legitimacy might be all it takes to plant a doubt in voters’ minds.
Since Lafayette is long-dead and England has given up on the idea of taking America back by force, however, why is this even an issue? Instead of protecting us from some mythical Trojan horse, it has devolved into a “go-to” rhetorical tool for nativists and racists.
Suppose someone was born overseas to parents who were not American citizens at the time, then brought here at the age of two. Eventually naturalized, this individual attended American schools, became a community leader, taught political science at a prestigious university, became the governor of a state, and was eventually elected to Congress. Wouldn’t we be missing out by excluding such a person from the presidency on a technicality?
Of course, changing or eliminating any aspect of the Constitution is never easy. Because it usually takes a new amendment to trump an old one, such a process must slowly grind its way through a majority of states. In this case, perhaps one of these frustrated souls barred from the White House based on 18th-century fears might file a federal lawsuit to get the revisionist ball rolling.
I tend to agree with this assessment from Terry Moe and Wiliam G. Howell of the Hoover Institution: “We can’t blame the founders for the bind we are in today. They had no idea what a modern society would look like. They designed a government for a tiny agrarian nation—and they assumed that, as society changed, future generations would change the Constitution to meet new and evolving needs. But future generations didn’t do that. Instead, they put it on a pedestal to be worshipped. What we need now is a healthier, more objective understanding of how the Constitution actually affects our lives. Modern America bears almost no resemblance to the America of 1789. It is up to us to fashion political institutions that allow for effective government in our own times. The founders cannot save us. We must save ourselves.”