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]