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by
Dan Miller

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June 7, 2011 - 6:53 am

To permit those who fully disclose their status to be elected and to assume the office?

This article is a trial balloon to offer a new twist on something only occasionally discussed — perhaps for good reasons. There may be objections that make even its suggestion absurd; perhaps people such as George Soros or Arnold Schwarzenegger might get elected. Among the silliest reasons I have read is this:

The actual effects of the natural-born clause are not as important as its symbolism. Barring immigrant citizens from the White House is a pointless insult. Such nativism is weirdly out of place in the charter of a multicultural nation where immigrants run our largest businesses, command our armies, and preside over our courts. The natural-born clause elevates the accident of birth over the accomplishments of the individual. It compromises the American faith that social mobility and openness foster national strength.

Nevertheless, it may make enough sense to warrant more extensive exploration. How about an amendment to Article II, Section 1 of the Constitution to provide,

No Person except a natural born Citizen of the United States shall be eligible to the Office of President; provided, however, that this provision shall not limit the eligibility of any Citizen who accurately, openly, and publicly discloses that he is not a natural born Citizen of the United States by declaring the country and date of his birth, and the date of his immigration to the United States, and the date of his naturalization as a Citizen of the United States, in all campaign advertisements, literature and other campaign materials disseminated at his direction as well as all disseminated under the direction of those subject to his direction, at least one hundred and eighty days prior to the date fixed for the national popular election in which he seeks the Presidency and also thereafter in all such materials so disseminated preceding the date of such election.

No person shall be eligible to the Office of President who shall not have attained to the Age of thirty five Years, and been at least fourteen Years a Citizen of and Resident within the United States.

Since the Twelfth Amendment provides that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States,” amendment of Article II, Section 1 as above would probably make amendment of the Twelfth Amendment redundant; any vice presidential candidate not a natural born citizen would be well advised to make the disclosures required in the amended Article II, Section 1. Were he to fail to do so, the natural-born requirement would remain in effect for him — just as it would for any non natural born presidential candidate who failed to abide by its requirements.

Such an Article II, Section 1 amendment would allow the voters to decide, based on adequate information, whether they desire a citizen at least thirty-five years old and a resident within the country for the prescribed number of years, although not “natural born,” to become their president. It would require disclosure and should promote exploration of the subject, something remarkably absent during the 2008 campaign and still a matter of dispute. The provision — a type of amnesty based on disclosure — would also provide substantial incentives for a non natural born candidate who wanted to conceal his ineligibility status nevertheless to reveal it. If the majority of voters did not want someone born in Somalia, for example, to become the President, he could not; if they did, he could.

Article II, Section 1 of the United States Constitution now provides,

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.

Legitimate or not, the many questions surrounding President Obama’s constitutional qualification as a “natural born citizen” arising under this Article have done little more than stimulate litigation and serve as distractions from his motivations and lack of both competence and accomplishment. It is likely that he has manipulated the dispute over “birther” questions to that end, successfully, and that he will continue to do so during the 2012 campaign, in conjunction with more of the unfounded allegations as made in the past of racism on the part of all who assert that his presidency has been a disaster for the country. As questioned here,

Is this issue so crucial to the future of the country that it should trump the matter of Obama’s consistency with the Constitution in all of its manifold aspects? Or the harm President Obama has done, and is likely to continue to do, regardless of his constitutional qualifications? If I had the misfortune to be President Obama, having finally released my “long form” birth certificate, I would continue to prance away from substance and pump the “natural born citizen” issue for all it’s worth. I might as well say, “if those right-wing nuts aren’t satisfied with the tardy release of my real birth certificate, they are really beneath contempt.” And many would accept this. It can be a great decoy to divert attention from all else — and push him over the top in 2012. As suggested here:

It’s tempting to speculate that Obama used today’s release to make the birth certificate a bigger story, to distract from the story that the press has spent 39% of its time covering: Namely, the economy.

In any event, were the status of someone not constitutionally qualified to be concealed, were he to be elected and become the President and were successful challenges to be made – something very difficult to do — there would be a constitutional crisis of the first magnitude. Impeachment might not work. President, then Congressman, Ford noted on the floor of the House during debate over whether Mr. Justice Douglas should be impeached that “impeachable offense” means whatever a majority of the members of the House and two-thirds of the members of the Senate say it means at any given time. He was, for practical purposes, correct. Still, and regardless of impeachment, any binding determination that the President had not been constitutionally qualified when he assumed office would throw all of the legislation he had signed as President into substantial doubt. That could, but probably wouldn’t, happen and an amendment such as here suggested would make that possibility even more remote.

The natural born citizen requirement made a great deal of good sense when the Constitution was new. True, all of the early presidents had been born in and were longtime residents of what became the United States. However, Article II, Section 1 did not, then, prevent a person not born in the country from becoming the President if he had been a citizen at the time of the adoption of the Constitution; the provisions of Article II would not in the early years of the country have prevented an immigrant, a long time resident but who had become a citizen only shortly before the Constitution was adopted, from becoming the President. The country is now much older and there is (obviously) no one now living who was a citizen at the time of the adoption of the Constitution. Yet those provisions would now prevent even a long time citizen, resident and otherwise highly qualified person from becoming the President — perhaps an immigrant years ago from a Communist or Socialist country who well knows from personal experience what those system do, despises them and the useful idiots who want them and, throughout his time in elective office, had demonstrated his dedication to preventing them in the United States.

Would there be any potential loss of significant benefits — seemingly dubious at best now and in any event not recently experienced — that the absolute “natural born citizen” requirement has conferred? Is the elimination of all conceivable potential for such loss a fair trade for the potential benefits of a modification of the requirement? How would someone of the stature of Israeli Prime Minister Netanyahu, Winston Churchill or Margaret Thatcher stack up against the current crop of candidates and potential candidates? Character, experience and dedication to the basic foundations of the United States are very important and someone who has suffered from the results of their absence might serve us well. It seems imprudent, automatically and absolutely, to eliminate otherwise solid candidates from consideration if they meet not only the other constitutional requirements but those imposed by good sense and decency as well.

The framers of the Constitution wisely provided for its amendment, knowing that modification might be needed better to serve future generations. They purposely made the amendment process difficult, cumbersome and time consuming and that’s a good thing; an amendment such as here offered for discussion should not be lightly considered. Nor should it be lightly adopted or rejected.

The suggested amendment or one substantially the same effect might involve potential risks. However, there would be ample opportunity during the national debate on the amendment for them to be fully ventilated and weighed against potential benefits.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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