As Barack Obama prepares for his second swearing-in as America’s chief executive, it’s worth considering how little is legally required to apply for the job. According to Article II, Section 1 of the Constitution, you need to be at least 35 years old, a resident of the United States for at least 14 years, and a “natural born” citizen. That’s it—no degree, no managerial experience, no strategic vision is explicitly required. You don’t even need to be born in the U.S.
Come again? For the 36 percent of Americans (including 63 percent of Republicans, according to a study (PDF) released on Jan. 17 by researchers at Farleigh Dickinson University) who believe Obama was born outside the U.S. and thus should be disqualified from the presidency, the preceding statement will no doubt elicit howls of protest. But the “natural born” citizen qualification is widely misunderstood, even by political junkies, to mean that you must have been born in the United States to be eligible to become president. You do need to have been American at birth—as opposed to a naturalized citizen —but both English common law (the lingua franca of the Founding Fathers) and subsequent U.S. statutory law make clear that you can be born a citizen to an American parent who happens to be overseas.
This often-overlooked distinction explains why George Romney, Mitt’s father and former governor of Michigan, was a viable candidate for President in 1968, despite his having been born in Mexico to American parents. So was John McCain, who was born on a military base in the Panama Canal Zone. The next great hope for “natural born” Americans born abroad may be Tea Party favorite Ted Cruz, the newly elected Republican senator from Texas, who was born in Canada to a Cuban father and an American mother. Should Cruz someday launch a Presidential run, he could help to clear up this widespread misunderstanding about the eligibility requirements for our highest office. (He would also turn ardent liberals into crazed birthers and cause the right-wing fringe to go all cosmopolitan on us.)
The lingering confusion over the “natural born” clause is largely due to two factors. First, the Constitution does not define the term “natural born.” What’s clear is that the authors of the Constitution wanted to bar foreign royalty from taking over their republican experiment by imposing a naturalized American as head of state. The “natural born” qualifier did the trick, even if it extended to those born to Americans outside the country. Both Black’s Legal Commentaries of 1765 (akin to a dictionary for those penning the Constitution) and the Naturalization Act passed later by Congress in 1790 made clear that “natural born” effectively included those born abroad to a U.S. citizen. In other words, citizenship could be conferred at birth by the law of the soil (jus soli) or by law of descent (jus sanguinis).
The second source of public confusion stems from the issue of slavery. The Fourteenth Amendment, passed in the wake of the Civil War, makes crystal clear that anyone born on U.S. soil is a citizen (something today’s anti-immigration zealots, incensed by what they call “anchor babies,” want to revisit). Since then, people tend to assume that this is the sole means of being a “natural born” citizen. But in plenty of contexts, the courts have recognized that you can still be American at birth if born outside the country.
All this legalistic hair-splitting is nonsensical. We’re drawing the most arbitrary lines to define what it means to be a “natural born” American so as to keep a Hapsburg or a Windsor from sweeping in from across the Atlantic to install himself or herself in the White House. Notwithstanding our current obsession with Downton Abbey, we can safely cross “having our democracy subverted by seductive foreign aristocrats” off our list of pressing national worries in the 21st century.
What’s even more nonsensical than the arbitrary definition of a “natural born” American is the very desire to differentiate between Americans at birth and naturalized Americans —those who become citizens after birth. Only on this matter of presidential eligibility do we distinguish between the two, insisting on two classes of citizenship. Naturalized Americans are the absolute equals of their fellow “natural born” citizens in every other regard.
Most countries require that their head of state be a citizen, but plenty of democracies we don’t usually think of as being especially inviting to immigrants—Italy, France, and Germany, for example—do not bar naturalized citizens from holding the top job. The current prime minister of Australia was born in Wales and became an Australian citizen at age 13. It seems especially perverse for the United States, a nation rightfully proud of its immigrant heritage and for being the land of equal opportunity, to exclude naturalized citizens from the highest office.
The symbolic harm that comes from clinging to the “natural born” qualification is considerable. You could adopt a 3-month-old baby in China or Guatemala and raise her in Des Moines, Iowa, telling her she can grow up to be anything she wants to be. Except you’d be lying. That girl could be the most appreciative member of her community and valedictorian in school, join the military and win every conceivable medal of valor in combat, ace law school, and become senator and governor, and she still wouldn’t be eligible to be president—even if tens of millions of Americans desperately wanted to vote for her after the grueling vetting process of a presidential campaign.
Had Arnold Schwarzenegger (born in Austria) or Jennifer Granholm (Canada) proven wildly successful governors of their states, Americans should have had the right to consider them for the highest office of the land, despite their being naturalized citizens. And what if Americans had wanted to promote Henry Kissinger or Madeleine Albright to the White House? In my experience, naturalized Americans are often more intensely American than those who didn’t affirmatively choose this country. The point is this is a case they ought to be allowed to make, and one that American voters ought to be able to consider.
Our nation’s anachronistic attachment to a protectionist measure aimed at keeping foreign royals out of power is also a shortsighted means of limiting the talent pool available for one of the world’s toughest jobs.
In this day, it might even make sense for American voters to have the freedom to hire a foreign chief executive if they’d like, the way such iconic U.S. companies as Alcoa (AA), Ford (F), Hewlett-Packard (HPQ), and Coca-Cola (KO) have turned to foreign chief executive officers in recent years. Why not make it a global talent search?
Politics, I suppose. So for now my hope is that we all understand the current eligibility requirements for the presidency, without adding imaginary ones. Then, as a nod to our core values and aspirations as a society, I’d propose we take the next natural step: making all Americans eligible for the highest office in the land.