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The Presidency and the Meaning of Citizenshipâ· BYU Law Review Volume 2005 Issue 4 Article 2 11-1-2005 The Presidency and the Meaning of Citizenship· Malinda L. Seymore Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the American Politics Commons, Election Law Commons, and the President/Executive Department Commons Recommended Citation Malinda L. Seymore, The Presidency and the Meaning of Citizenship·, 2005 BYU L. Rev. 927 (2005). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2005/iss4/2 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 2SEYMORE.FIN 11/18/2005 1:36 PM The Presidency and the Meaning of Citizenship Malinda L. Seymore∗ No Person except a natural born Citizen . of the United States . shall be eligible to the Office of President. U.S. Constitution1 Who is the “us” in the U.S.? Leti Volpp 2 The fundamental political relation of citizenship . [is] a relation of citizens within the basic structure of society, a structure we enter only by birth and exit only by death. 3 John Rawls I. INTRODUCTION In “Only in America,” songwriters Leiber and Stoller extolled the rags-to-riches American myth: Only in America Can a guy from anywhere Go to sleep a pauper and wake up a millionaire. Only in America Can a kid without a cent Get a break and maybe grow up to be President.4 ∗ Professor of Law, Texas Wesleyan University School of Law. This Article is dedicated to my mother and daughters, United States citizens who cannot be President. I offer thanks to Stephen Alton, Susan Ayres, and Cynthia Fountaine for valuable comments on earlier drafts; to Dianna Zuniga for invaluable research assistance; and to Texas Wesleyan University School of Law for generous financial support of my research. This Article was not written to advance the political candidacy of anyone currently on the political scene. 1. U.S. CONST. art. II, § 1, cl. 4. 2. Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575, 1598–99 (2002). 3. JOHN RAWLS, POLITICAL LIBERALISM xlv (1993). 4. JERRY LIEBER, MIKE STOLLER, BARRY MANN & CYNTHIA WEIL, Only in America (Colgems EMI Music, Inc.). Lieber and Stoller certainly got it right—a “guy from anywhere” might become a millionaire, but he will not become President of the United States (though a 927 2SEYMORE.FIN 11/18/2005 1:36 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2005 Every American child has heard the stories: Abraham Lincoln was raised in a log cabin without the benefit of electricity and became the sixteenth President of the United States.5 Harry S. Truman was a failed shopkeeper and became President of the United States.6 William Jefferson Clinton was born fatherless in Hope, Arkansas and became President of the United States.7 We are told, as an expression of the openness of opportunity before us, the myth8 that every American child can grow up to be President.9 But my daughters are not part of the “every American child(ren)” who can become President. My daughters were born in China, adopted by an American citizen, and became American citizens on October 17, 2001 and March 24, 2005, respectively—the dates they landed on native-born “kid without a cent” might). Inclusion of these lyrics is not to suggest that it is “only in America” where limitations of the presidency to natives exist. See, e.g., ALB. CONST. art. 86, cl. 2 (1999) (“[o]nly an Albanian citizen by birth”); BRAZ. CONST. art. 12, § 3 (2004) (“restricted to native-born Brazilians”); FIN. CONST. § 54, cl. 1 (2000) (“The President shall be a native-born Finnish citizen.”); MACED. CONST. art. 80, cl. 3 (1993) (“shall be a citizen”); MEX. CONST. art. 82(I) (2004) (“In order to be president it is required . [t]o be a Mexican citizen by birth.”); MONG. CONST. art. 30, cl. 2 (2003) (“[a] citizen born a Mongol”); SLOVK. CONST. art. 103, cl. 1 (2001) (“[a]ny citizen [who has the right to vote]”); id. art. 74, cl. 2; UKR. CONST. art. 103, cl. 2 (1997) (“[a] citizen of Ukraine who has the right to vote and has command of the state language”). Indeed, one author has traced the preference for natural-born citizen rulers to Biblical times: “Since Biblical times, it has been common practice to preclude foreigners from serving as political leaders. The Old Testament dictates, ‘Thou shalt in any wise set him king over thee, whom the LORD thy God shall choose one from among thy brethren shalt thou set king over thee: thou mayest not set a stranger over thee, which is not thy brother.’” Alon Harel, Economic Culturalism: A Comment on Dennis Mueller, Defining Citizenship, 3 THEORETICAL INQUIRIES L. 167, 173 (2002) (quoting Deuteronomy 17:15). 5. DAVID HERBERT DONALD, LINCOLN: HOW PRESIDENT LINCOLN BECAME FATHER TO AN ARMY AND A GENERATION 22 (1996). 6. DAVID MCCULLOUGH, TRUMAN 151 (1993). 7. DAVID MARANISS, FIRST IN HIS CLASS: A BIOGRAPHY OF BILL CLINTON 3 (1996). 8. I use “myth” as described by Michael Ignatieff in the noble sense (“the word myth refers to some ancient story which, in allegorical form, tells us a truth about the universe and how we are in it”) and in the ironical sense (“the word [myth] as a synonym for everything that is fanciful, dubious, inflated, and untrue. In this sense we think of myths as an inheritance from the past that deserves a dip in the acid bath of our skepticism”). Michael Ignatieff, The Myth of Citizenship, in THEORIZING CITIZENSHIP 53, 53 (Ronald Beiner ed., 1995). 9. See DAN GUTMAN, THE KID WHO RAN FOR PRESIDENT 5 (1996). When 12-year- old Lane tries to convince 12-year-old Moon to run for president, his pitch goes like this: “‘The point is, this is America, Moon,’ he said excitedly. ‘The land of opportunity. You know what they say—this is the country where any kid can grow up to be President. Moon, that kid could be you.’” Id. 928 2SEYMORE.FIN 11/18/2005 1:36 PM 927] The Presidency and the Meaning of Citizenship American soil.10 They cannot grow up to be President of the United States because Article II, Section 1, Clause 4 of the Constitution reads, “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.”11 My daughters are not alone in being unable to attain the office of Commander-in-Chief. Thousands of children born abroad and subsequently adopted by American citizens are barred from the presidency, despite their “automatic” citizenship by virtue of the Child Citizenship Act of 2000.12 Nor can naturalized citizens—like Henry Kissinger,13 Madeleine Albright,14 Arnold Schwarzenegger,15 10. The Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (codified in scattered sections of 8 U.S.C. (2000)), provides for derivative citizenship of foreign-born orphans adopted by American citizens. 11. U.S. CONST. art. II, § 1, cl. 4. As Mark Brandon notes, the clause has the effect of “making the office [of the President] an inchoate but hereditary privilege of the native population.” Mark E. Brandon, Family at the Birth of American Constitutional Order, 77 TEX. L. REV. 1195, 1224 (1999) (arguing that the natural-born citizen requirement and the institution of slavery were two exceptions to the Constitution’s “explicit and implicit bans on inherited status.”). The restriction affects the vice-presidential candidate as well. 12. 114 Stat. 1631. 13. As Randall Kennedy puts it, “There are many reasons why Henry Kissinger should not have become President, but his having been born in Germany is certainly not one of them.” Randall Kennedy, A Natural Aristocracy?, 12 CONST. COMMENT. 175, 176 (1995). See infra text accompanying notes 122–29 (discussing Kissinger’s ineligibility for the presidency). 14. Secretary of State Albright, who served during the Clinton administration, was born in Prague, Czechoslovakia. MADELEINE ALBRIGHT, MADAME SECRETARY 4 (2003). Mark Tushnet creates a hypothetical exploring an Albright candidacy for President: Imagine that voters scattered throughout the country have become dissatisfied with the leading candidates for the presidency in 2000. They organize a grassroots movement to nominate the person they believe most qualified for the presidency— Secretary of State Madeleine Albright. Imagine as well that her supporters are concentrated in the twelve largest states, where polls indicate she could beat the Republican and Democratic nominees. Elsewhere in the country, though, Albright has some support, but not enough to win any other state’s electoral votes. Still, winning in the twelve largest states would give Albright 283 votes in the electoral college, enough to make her our next president. But she can’t be. She was born in what was then Czechoslovakia, and the Constitution says, “No person except a natural born Citizen . shall be eligible to the Office of President.” Mark Tushnet, Resolving the Paradox of Democratic Constitutionalism?, 3 GREEN BAG 2d 225, 225 (2000) (reviewing FRANK I. MICHELMAN, BRENNAN AND DEMOCRACY (1999), and pointing out the paradox that “[d]emocracy means self-government; constitutionalism limits self-government. How can a people be self-governing when their constitution bars them from adopting the policies they think will enhance their ability to govern themselves?”). 929 2SEYMORE.FIN 11/18/2005 1:36 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2005 and Jennifer Granholm16—become President.
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