Balkinization: The Constitution, second-class citizenship, and the 2008 election

The Constitution, second-class citizenship, and the 2008 election

Sandy Levinson

Loyal readers know of some of my various discontents with the Constitution. I have, for obvious reasons, dwelt on what I think are the most important deficiencies, including our feeling stuck with a manifestly incompetent and dangerous president for another 742 days. But let me change that broken record and point to another problematic feature of the Constitution that may turn out to have significant consequences for the upcoming election: This is the limitation of eligitibility for the presidency to "natural born" citizens. Harvard's Randall Kennedy and Robert Post, now at Yale, each selected this clause as the "stupidest" provision of the Constitution in 1998 (citations on request). Among other things, it stands for the proposition that we differentiate between "first-class" citizens, i.e., those eligible to serve as President, and "second-class" ones. In my book, I discuss other "second-class citizenship" clauses, including age limitations service in the House, Senate, and White House, and, more importantly, practically speaking, durational requirements that one be a citizen for seven and nine years before being eligible to serve in the House or Senate, respectively. This means, obviously, that a newly naturalized citizen is estopped from running for national office for quite a few years.

A truly liberal society ought not tolerate such distinctions except where absolutely necessary, as is the case, e.g., with regard to having some floor with regard to voting (no one advocates that six-year-olds be entitled to vote or serve in public office). Most repugnant is the natural-born citizenship clause. This makes such luminaries as Henry Kissinger, Madeline Albright, Ted Koppel, Jerry Springer, and millions of others ineligible to aspire to the White House. It's simply not true that "every boy and girl in America can dream of growing up to be President" if he or she was born abroad to non-American parents. I would obviously be more supportive of some of these examples than others, but the point is that we should be able to choose ourselves instead of having the choice made by the 1787 Framers. There may (or may not) have been a good reason for the restrictions in 1787; there is no good reason to maintain them today.

That's the abstract, normative argument. Getting down to practicalities, there is Arnold Schwarzenegger. He, too, is not a favorite of mine, but it seems obvious that he would be a serious candidate for the White House were it not for our undemocratic Constitution. By any account, he has proven a competent and provocative governor of our nation's largest state. He is, I gather, about to propose sweeping changes in the funding of medical care in California in the face of the inability by the national government to confront such challenges. I don't know if he could get the Republican nomination--he may be much too liberal, socially--but he is ideally poised to run as an independent candidate appealing to frustrated Repubicans who despair about the capture of their party by the religious right and those Democrats who believe that the Party leaders have drifted too far to the left (a view that I certainly don't share, but that's irrelevant). Utah Sen. Orrin Hatch several years ago proposed a constitutional amendment repealing the constitutional bar, but it didn't go anywhere, not least because brain-dead Democrats didn't pick it up and insist on its passage. Why, besides the simple fact that it would have been the little-d democratic thing to do, should Democrats have rallied around Hatch? Becuase Michigan Gov. Jennifer Granholm, born in Canada before she came to the US at the age of 3, would be an attractive possibility as VP on the Democratic ticket in 2008 (especially if Hillary Clinton is not the candidate). Both, of course, are ruled out, to the detriment of our polity and our claim to treat all citizens equally.

Posted 5:42 PM by Sandy Levinson [link]

Comments:

Here, here. The provision implies that Americans are too stupid to decide whether or not they want a foreign born a their next president.

# posted by

Anne : 6:27 PM

Don't push for this, Sandy. That's going too far. If they do this, I'll have no excuse any more, and I might have to cut my hair and buy a suit and actually do sump'tin to help this country out....

Cheers,

# posted by

Anonymous : 7:47 PM

Arne for Prez. Just so I can call him preznit or whatever his favorite term is.

# posted by

humblelawstudent : 8:02 PM

@hls: As a matter of Purity of Essence, I am genuinely impressed by the Professor's willingness to put forth ideas which clearly work against his ostensible party affiliations. Indeed this thread is gravy to the Republicans who would like to use AS the way they used Reagan...especially as AS has vastly more star power and name recognition than Bonzo's buddy ever did. People will know AS for his films long after the so-called "Reagan Revolution" is long forgotten.

# posted by

Robert Link : 8:10 PM

It is a sad day when Schwarzenegger script reading Republican is type cast on the marquee as 'liberal'. He was in the news around his innaugural as planning to cancel COLA increases to welfare recipients, as well as remove benefits for families of parttime workers.

The day after his publicity stunt about desiring to end greenhouse gas emissions, instead he began cheerleading for the global pollutions credits option; in otherwords, keep adding the greenhouse gases, just NIMBY; trouble is: when it comes to global climate change, Everywhere is in the same back yard; one more specious ploy from Schwarzenegger.

I like the full lifetime requirement for citizenship of the highest office holder in the US.

If we want to explore a tangent about US xenophobism, how about the ageold discussion Sam Hayakawa sponsored, that famed semanticist, regarding English as the only language. Having background in many branches of linguistics, I appreciate the merits of that as a core US value, too.

The labels 'liberal' and conservative are, perhaps worn.

Irrespective my customary dissent, though, I like SLevinson's energetic pursuit of new ways to interpret who we are and what kept us in our channels to arrive to this juncture.

Count me among those who think Truman much worse a president than Bush-2. However, if we were to look at how 2 recent US presidents, including the current one, have implemented the vice presidency as a kind of CEO of POTUS, maybe Prof. Levinson and I might have more grounds on which to agree.

# posted by

JohnLopresti : 8:12 PM

"I like the full lifetime requirement for citizenship of the highest office holder in the US."

Any reasons why? Or just, because?

# posted by

Anne : 8:15 PM

humblelawstudent:

Arne for Prez. Just so I can call him preznit or whatever his favorite term is.

First things first, there: Amend the constitution. If it pleases you, you can simultaneously also change the official title to "preznit" and then I'll have to find another term for the likes od Dubya and his ilk....

Cheers,

# posted by

Anonymous : 8:27 PM

Robert Link:

Indeed this thread is gravy to the Republicans who would like to use AS the way they used Reagan...especially as AS has vastly more star power and name recognition than Bonzo's buddy ever did....

Well ... the United States isn't California, so I'm not quite sure that the Red State Republicans would vote in the first Preznit to have his schlong plastered all over the Internets for all (who actually care to) to see....

Cheers,

# posted by

Anonymous : 8:30 PM

But let me change that broken record and point to another problematic feature of the Constitution that may turn out to have significant consequences for the upcoming election: This is the limitation of eligitibility for the presidency to "natural born" citizens...This makes such luminaries (sic) as Henry Kissinger, Madeline Albright, Ted Koppel, Jerry Springer, [Arnold Schwarzenegger, and Jennifer Granholm] ineligible to aspire to the White House.

This lineup of potential presidential candidates is perhaps the best argument you could have made in favor this otherwise uselessly xenophobic constitutional provision.

Jerry Springer, for Heaven's sake?

# posted by

Bart DePalma : 8:38 PM

By almost all accounts, Springer is in fact a smart person (who happens to be a political liberal). A former mayor of
Cincinatti, he apparently gave serious thought to running for governor of Ohio. To be sure, I do not think this qualifies him to be a serious candidate for the presidency, but that judgment should be independent of the fact that he was, I believe, born in London (as was Ted Koppel).

# posted by

Sandy Levinson : 10:16 PM

"Bart" DePalma sez:

Jerry Springer, for Heaven's sake?

At least he's a lawyer. What did you folks put up (and whose butt do you keep kissing)? Dubya. 'Nuff said if we're talking object lessons.....

Cheers,

# posted by

Anonymous : 10:19 PM

I like the provision. Allowing foreigners to assimilate is one thing, but you are not truly American unless you are born and bred here. I do not want Jacques Chirac acquiring American citizenship and running for President here. Only that broad class of citizens likelier to be socialized and educated here should be able to run for President.

# posted by

Mortimer Brezny : 5:09 AM

Professor Levinson: By almost all accounts, Springer is in fact a smart person...

Please, Sir, don't take this troll's bait. The issue isn't your opinion or my opinion or anyone else's opinion of Springer's politics, intelligence, moral standing. The issue is the principle of one class of citizenship for all. You raise an interesting point, any person of principle must give it serious thought. Vandals cannot be expected to do so.

# posted by

Robert Link : 5:36 PM

Mortimer Brezny:

I like the provision. Allowing foreigners to assimilate is one thing, but you are not truly American unless you are born and bred here. I do not want Jacques Chirac acquiring American citizenship and running for President here.

That's a curious argument. Why would you postulate that is is a good thing for an across-the-board restriction because it would bar a single individual (who apparently doesn't meet with your favour) from running for president? Is there a reasonable argument for such (outside of your personal preferences, that is)? Why not stipulate that "only people that agree with me should be eligible to be president"? Or "Only people that share my outlook on life..."?

On a more general note, perhaps you could describe what you find so attractive in such a "cursed by birth" policy?

Cheers,

# posted by

Anonymous : 6:23 PM