SPEAKERS CONTENTS INSERTS
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67–306
2000
CONSTITUTIONAL AMENDMENT TO ALLOW FOREIGN-BORN CITIZENS TO BE PRESIDENT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.J.Res. 88
JULY 24, 2000
Serial No. 108
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
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CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
July 24, 2000
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TEXT OF BILL
H.J.Res. 88
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress From the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Delgado, Raimundo, teacher, Ashland Middle School, Ashland, MA
McDonald, Forrest, historian and professor of history, University of Alabama
Vazsonyi, Balint, director, Center for the American Founding
Yinger, John M., professor of economics and public administration, Center for Policy Research, Syracuse University
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Delgado, Raimundo, teacher, Ashland Middle School, Ashland, MA: Prepared statement
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McDonald, Forrest, historian and professor of history, University of Alabama: Prepared statement
Vazsonyi, Balint, director, Center for the American Founding: Prepared statement
Yinger, John M., professor of economics and public administration, Center for Policy Research, Syracuse University: Prepared statement
CONSTITUTIONAL AMENDMENT TO ALLOW FOREIGN-BORN CITIZENS TO BE PRESIDENT
MONDAY, JULY 24, 2000
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 4:45 p.m., in Room 2141, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.
Present: Representatives Charles T. Canady, Spencer Bachus, Bob Barr, Melvin L. Watt and Barney Frank.
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Staff present: Cathleen Cleaver, chief counsel; Jonathan A. Vogel, counsel; Paul B. Taylor, counsel; Susana Gutierrez, clerk; and Anthony Foxx, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order. The subcommittee meets now to conduct a hearing on H.J.Res. 88, which proposes an amendment to the Constitution of the United States to make eligible for the office of the President a person who has been the United States citizen for 20 years. This amendment, which was introduced by the gentleman from Massachusetts Mr. Frank would change the portion of the Presidential qualifications clause in article II, section 1, clause 5 of the United States Constitution that limits eligibility for the Presidency of the United States to natural-born citizens.
[H.J.Res. 88 follows:]
106TH CONGRESS
2D SESSION
H. J. RES. 88
Proposing an amendment to the Constitution of the United States to make eligible for the Office of President a person who has been a United States citizen for twenty years.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 29, 2000
Mr. FRANK of Massachusetts introduced the following joint resolution; which was referred to the Committee on the Judiciary
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JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States to make eligible for the Office of President a person who has been a United States citizen for twenty years.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
''Article —
''A person who is a citizen of the United States, who has been for twenty years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States.''
Mr. CANADY. As we will hear in today's testimony, the drafters of the Constitution left little written record of the purpose of the natural-born citizen requirement. Historians trace the origin of the phrase to a letter written by John Jay to George Washington during the Convention's deliberations in 1787. Jay, who would become an author the Federalist Papers and would later be appointed the first Chief Justice of the United States, recommended that the drafters provide, and I quote, a strong check, closed quote, against the admission of foreigners into the Government and expressly require that the Commander in Chief be a natural-born citizen.
Some sources suggest that Jay was responding to a rumor that the Convention was secretly designing a monarchy to be ruled by a foreign monarch, but Jay's warning can also be seen simply as a reflection of the widely held fear of foreign influence in this new country's elections and of a general distrust of executive power at that time.
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Many view these considerations as equally relevant today. The natural-born citizen qualification continues to provide to the political system of the United States a certain level of protection against the influence of foreign nations. In addition to this safeguard, the requirement also secures the ability of the President to make decisions involving domestic and foreign policy that are in the best interests of the United States without an inherent emotional or familial attachment to another nation.
Supporters of the measure, however, argue that the limitation is no longer warranted. They assert that distinguishing natural-born from naturalized citizens has no relevance in determining who might be subject to actual foreign influence. Unlike natural-born citizens, naturalized citizens have made an express commitment to embrace this Nation's principles. The many naturalized citizens have indeed served this country with great honor and distinction.
Moreover, supporters of the amendment regard eligibility for the Presidency as a civil right with strong symbolic importance and assert that the principle of equality is not served unless every citizen has the opportunity to reach the Nation's highest office.
I want to thank the witnesses for being with us here to discuss this matter. I look forward to their testimony.
Now I will recognize the author of this proposed Constitutional amendment Mr. Frank.
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Mr. FRANK. Thank you, Mr. Chairman. Thank you for giving us this hearing. The gentleman who suggested the amendment to me, Mr. Raimundo Delgado, is here and will be testifying. I bring it forward for a very simple reason: It does not seem to me that there ought to be as a general principle any barriers to treating people who choose to come here and become Americans differently than people who were born here. I am also am a great believer in democracy virtually untrammeled.
Now, on the first point, we have had in recent years some legislation which seems to me unfortunately to reflect some animus toward immigrants. I think the reaction to that nationally has been a good one, and we are in the process of unwinding some of that. But the essential premise of this constitutional provision is that there is some reason to distrust the complete patriotism of people who were born elsewhere, and I have not found that to be the case as a general rule.
Secondly, I support this for the same reason that I oppose term limits and other restrictions on people's ability to choose. Obviously we do not directly elect the President of the United States, and I notice Professor McDonald in his defense of the existing system cites our system for selecting a President as, to use a technical historic term, cockamamie. I think it is wise to remember that it was, in fact, the result of one of those political compromises that we always find useful. And one of the interesting things about political compromises is that contemporaneously they are always condemned as sellouts. Historically they often take on the patent of wisdom. I think that is the more accurate view; that is, political compromise is a very honorable part of a system of democracy.
But whatever the rules are by which we elect people, I do not favor putting obstacles on the ability of the people to choose who they wish under those rules. I think the American public is perfectly capable of making those decisions, and for both those reasons I think the amendment is a good idea. And I particularly think it is a good idea for us to begin to discuss this, which obviously is what we are doing, since I have advised people that the likelihood that we are going to pass the constitutional amendment along to the States in the remaining few weeks of the legislative session is highly unlikely since we aren't going to do very much either. People who are in favor of the amendment should not feel discriminated against on that ground.
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Thank you, Mr. Chairman.
Mr. CANADY. Thank you. Mr. Bachus.
Mr. BACHUS. Thank you, Mr. Chairman.
Mr. Chairman, reluctantly I would have to say that I am opposed to this amendment. This is not about patriotism, because I believe that people that come to our country and are naturalized are among the most patriotic in the world, patriotic Americans. But I do believe that it is very hard for them to not have feelings about their home country, good feelings about the people there. And I believe that as the Presidency has grown, if anything, it has grown to be a more powerful body than it was at the time our forefathers drafted the Constitution. And it is our President who is both the Commander in Chief and who negotiates with foreign countries.
While it may be possible for some naturalized citizen to be totally fair when dealing with his home country, I am not sure he could ever escape at least the questions of the American people and their suspicions on whether or not he was being fair.
I think we are still concerned as our forefathers were about our domestic policy and about foreign influence on that policy. And I think you resolve these issues—if there is any doubt, you resolve them in favor of the Constitution, which, as Professor McDonald from the University of Alabama said, you resolve them in favor of the Constitution which has stood the test of time.
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And there is nothing about this provision, I think, which can be demonstrated to have worked against the United States or its best interests since it was first crafted. There are sometimes needs to change the Constitutions because there is sometimes an outcry from the general public. Sometimes there are grassroots movements which bring things to our attention, but I see none of this in this case.
I think only the sponsor of this amendment knows why at this time he feels a compelling need to bring this proposal. It comes in the election season when we pretty much selected our Presidential candidates, and I see no reason to believe that the talent pool is insufficient among native-born Americans for any need to expand the requirement.
Mr. FRANK. Would the gentleman yield? I would just say why I don't myself share the view. This is probably that point in the American political cycle when the general public most laments the fact that they didn't have broader choices. So I think if there was an ever a time that—when you could talk about broadening the choices, it is generally just before they have to make it.
Mr. CANADY. The gentleman from North Carolina is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman and in the interest of time, I certainly won't take 5 minutes, just want to express my thanks to the Chair of the subcommittee for scheduling this matter for a hearing.
One of the important purposes of having hearings on proposed legislation or constitutional amendments is that we get an opportunity to hear people from outside our own ranks tell us about the pros and cons of proposals, what historical bases for what we currently have as opposed to the rationales for what we are trying—what is being proposed that we move to.
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And while I have historically been one that has not been enamored with the concept of amending the Constitution, I approach this hearing with a complete open mind and look forward to hearing the witnesses and thank them for coming and participating in our process to enlighten us about the pros and cons about the proposal. And I thank the chairman for being open to having this kind of input.
I yield back.
Mr. CANADY. Thank you. The gentleman from Georgia.
Mr. BARR. I would just like to say it should be a very interesting hearing. I appreciate the panelists being here. I would like to especially welcome my good friend Dr. Vazsonyi, who I know very well through his constitutional studies, writings and speeches, and it is an honor to have the gentleman here.
Mr. CANADY. We will now proceed with introducing our panel of witnesses. Our first witness this afternoon is Mr. Raimundo Delgado. Mr. Delgado is a teacher at Ashland Middle School in New Bedford, Massachusetts.
Next, we will hear from Dr. Balint Vazsonyi, who is director of the Center for the American Founding. Dr. Vazsonyi holds a Ph.D. In history and joined the Potomac Foundation as a senior fellow in 1993.
Following him will be Professor John M. Yinger of Syracuse University. Professor Yinger teaches economics and public administration and is the associate director of the Center for Policy Research at the Maxwell School at Syracuse University.
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Our final witness this afternoon is Forest McDonald, historian and distinguished university research professor at the University of Alabama. Professor McDonald is the author of numerous books on the Constitution and the Presidency, and I will note has previously testified before this subcommittee in connection with the recent unpleasantness that the subcommittee dealt with.
I want to thank all of you for being with us here this afternoon. I would ask that you please try your best to summarize your testimony in 5 minutes or less. Without objection, your written statements will be made a part of the permanent hearing record.
Mr. Delgado.
STATEMENT OF RAIMUNDO DELGADO, TEACHER, ASHLAND MIDDLE SCHOOL, ASHLAND, MA
Mr. DELGADO. Thank you, Mr. Chairman, ladies and gentlemen.
Mr. Chairman, ladies and gentlemen, the Constitution of the United States of America needs to be amended. There are millions of naturalized Americans who cannot aspire to be President of this Nation. In order to qualify to be a candidate for the highest office in this land, one has to be 35 years old and be born in this country.
Those who obtain the American citizenship through the naturalization process do not qualify. This is a blatant injustice that needs to be addressed by our Congress, the Senate, the President of the United States, and the States throughout our Nation. The integrity of any American born abroad must not be questioned a priori.
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The American citizenship should be equal for all Americans. The reasons that led our Founding Fathers to exclude those born abroad from running for President of the country no longer exist. Fifty years ago this idea would not be accepted. We are now living in a safer world.
Let's begin the debate today. Does every American born abroad have the same rights and privileges as an American born in this country?
There are millions of Americans who become Americans by choice and are a credit to this Nation. They work hard, pay taxes, run for local, State, and Federal office, but not President. Their aspiration stops short of 1600 Pennsylvania Avenue, Washington, DC.
The natural-born citizenship requirement is unjust and discriminatory. It is inevitable that one day soon a candidate will rise in America who was not born in this country that the American people would like to be President of the United States. Let's amend the Constitution now so that all children who grow up in America can dream of one day becoming President. Let's bring hope of equality in citizenship to all the children who are raised in America.
I hope the American people will support this amendment to the Constitution so that all Americans can aspire to the highest office in this land. Otherwise millions of naturalized Americans will continue to be victims of discrimination. All naturalized Americans should have full civil rights under the law. This proposed amendment will bring a lot of debate to our children in schools across America.
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I congratulate this congressional Subcommittee on the Constitution for holding this hearing. Millions of immigrants who obtain their American citizenship through the naturalization process can now begin to dream that their American citizenship is equal to their children born in America.
Mr. CANADY. Thank you, Mr. Delgado.
[The prepared statement of Mr. Delgado follows:]
PREPARED STATEMENT OF RAIMUNDO DELGADO, TEACHER, ASHLAND MIDDLE SCHOOL, ASHLAND, MA
ALLOW EVERY CITIZEN TO RUN FOR PRESIDENT
The Constitution of the United States of America needs to be amended. There are millions of naturalized Americans who cannot aspire to be president of this nation. In order to qualify to be a candidate for the highest office in this land, one has to be 35 years old and be born in this country. Those who obtain their American citizenship through the naturalization process do not qualify. This is a blatant injustice that needs to be addressed by our Congress, the Senate and the president of the United States. The integrity of any American born abroad must not be questioned a priori.
American citizenship should be equal for all Americans. The reasons that led our Founding Fathers to exclude those born abroad from running for president of this country no longer exist. Fifty years ago this idea would not be accepted. We are now living in a safer world. Let's begin the debate today. Does every American born abroad have the same rights and privileges as an American in this country?
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There are millions of Americans who become Americans by choice and are a credit to this nation. They work hard, pay taxes, run for local, state and federal office, but not president. Their aspiration stops short of 1600 Pennsylvania Avenue, Washington, D.C.
The natural-born citizenship requirement is unjust and discriminatory. It is inevitable that one day soon a candidate will rise in America who was not born in our country that the American people would like to be president of the United States. Let's amend the constitution now so that all children who grow up in America can dream of one day becoming president. Let's bring hope of equality in citizenship to all the children who are raised in America.
I hope the American people will support this amendment to the Constitution so that all Americans can aspire to the highest office in this land. Otherwise, millions of naturalized Americans will continue to be victims of discrimination. All naturalized Americans should have full civil rights under the law. This proposed amendment will bring a lot of debate to our children in schools across America.
I congratulate this congressional Subcommittee on the Constitution for holding this hearing. Millions of immigrants who obtained their American citizenship through the naturalization process can now begin to dream that their American citizenship is equal to their children born in America.
Mr. CANADY. Dr. Vazsonyi.
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STATEMENT OF BALINT VAZSONYI, DIRECTOR, CENTER FOR THE AMERICAN FOUNDING
Mr. VAZSONYI. Good afternoon. Thank you, distinguished members of the committee. Thank you for giving me this opportunity.
Perhaps I will be forgiven if I start with a musical analogy, since I am a musician by profession. The Constitution of the United States, indeed the entire founding of the United States of America, is one of those solitary miracles of human history, not unlike the operas of Mozart or the symphonies of Beethoven. Thousands of volumes have been written trying to understand how such a thing can happen. Nobody has even come close. There is no way to explain how a group of men can sit down and do something no human beings had ever done before them, and certainly none have since.
The Constitution, which created a country unlike any other, also brought forth a Nation populated by people who are unlike any other. It is as if an umbrella had been erected over this country inviting all the people of the world to come here and become something else than they were in the moment of arrival.
Indeed, Americans are different. I noticed this soon after I had arrived in this country 41 years ago. I daresay, I have spent a great deal of my life trying to understand, first of all, in what way Americans are different and why, but the fact remains that they are.
So when the framers of the Constitution made this provision, perhaps they were already aware of the fact, as indeed perhaps instinctively or through inspiration they were aware of so many other things, that already then Americans were different because they did something nobody else had done before them.
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If we look at their reasoning, which we can only guess at, because, as you mentioned, Mr. Chairman, there is insufficient evidence, we really do not know what was on their minds, but I think the reading of the Constitution certainly offers us some very good reasons.
Our Government consists of three independent branches. In the legislative branch with its two Chambers, one of them has hundreds of Members, so a few foreigners among them really do not make that much difference. The Senate only consists of 100 Members, so 1 or 2 out of 100 again is something else. Even the Supreme Court has nine members.
Alone, the executive branch of this Government is vested in a single person. I don't think that it is an excessive requirement of the office for that person to have grown from the American soil.
I come back to my statement, which is not particularly palatable in today's political climate, that Americans are different. We like to believe that all people are the same. In my experience, they are not.
One of the best examples of that is precisely Congressman Frank's resolution. It is unthinkable, ladies and gentlemen, that a legislator in another land would actually spend time proposing that some foreigner could become the first citizen of that land. So, Congressman Frank, you are as good an example as I have met to show that Americans pour their hearts out and want to share everything, even the Presidency.
I would say respectfully that describing this provision of the Constitution, as I said, and I will say once again, one of the solitary miracles of human history, as victimizing immigrants or being unjust—to be able to run for President is not a right. It is very important not to confuse the system of government with rights. Where would such a right come from? It is a well-thought-out provision of our Constitution.
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I am here to tell you, after 41 years of making the most strenuous efforts of becoming American, not just legally but in every sense of the word, and having spent 40 of those 41 years living with a native-born American, that I still have not been able to even approach the temperament, the natural tolerance, the unfailing good will toward the world that Americans are famous for.
Foreigners come here and have to learn it. It is a miracle that within one generation they can do so. I think it would be expecting something even more than the impossible that they can do it within the same lifetime, and that they can forget everything they had grown up with.
I would like to spend just a moment on the proposition that I believe will be brought before you of adopted children having the same right. The question is, at what age? How do you write a law that is going to be applicable and fair, to use that term?
The question of foreign influence has already been discussed. I would just like to add that having grown up in Hungary, I would find it very difficult to make decisions—not so much affecting Hungarians, but those toward whom Hungarians hold an animus. What if somebody of a certain birth would have to just express an opinion about immigration quotas from a country with which the native land had been at odds? This is just a tiny example. Of course, the matter of being Commander in Chief of the Armed Forces is much more important.
To say that the world is a more peaceful place today is a very temporary condition. It can turn into something else tomorrow or the day after. The constitutional provisions are not there to serve this week or next week. They have served this country for over 200 years, and I hope and we all hope that they will continue to do so.
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So I would like to conclude with a general comment on constitutional amendments. I believe they are rarely necessary, hardly ever justified, and perhaps entirely untimely right now, when Americans seem to be considering even the very nature of this country, whether it is a Republic or a democracy. Therefore, with due respect to the proposal, I would like to cast a vote for rejecting it.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Dr. Vazsonyi.
[The prepared statement of Mr. Vazsonyi follows:]
PREPARED STATEMENT OF BALINT VAZSONYI, DIRECTOR, CENTER FOR THE AMERICAN FOUNDING
The question before you is whether the Constitution of the United States of America shall be amended as follows: ''A person who is a citizen of the United States, who has been for twenty years a citizen of the United States, and who is otherwise eligible for the Office of President, is not ineligible to that office by reason of not being a native born citizen of the United States.''
I.
I shall take the liberty of commenting on the matter of constitutional amendments in general.
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The Founding of the United States of America was one of those remarkable events of history for which no explanation is entirely sufficient. By this, I refer to the emergence and convergence of exceptional men and extraordinary ideas that, together, created a living memorial to goodwill, prudence, and wisdom; it is called, simply, America.
At the heart of this singular occurrence, we behold the Constitution of the United States. Agreed to as a result of the most thoughtful deliberations, and consideration of the human condition as far as the eye can see, the creativity evidenced in the system of government provided therein is matched by the document's conciseness.
The opportunity to introduce change through the orderly amendment process has contributed significantly to the advantage America enjoys over most other nations: the peaceful transition of power. Precisely because of the enhanced liberty it guarantees to future generations, it needs to be applied with great economy and circumspection at the best of times. At the time of these hearings, Americans do not appear to be in agreement about the nature of the Republic. In other words, Benjamin Franklin's admonition about ''hanging together'' has fallen out of favor.
For all these reasons, I respectfully submit that the times may not be conducive for a constitutional amendment of any kind.
II.
''. . . it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States''—thus writes Alexander Hamilton in Federalist No.68. Indeed, the ''chief magistrate'' who is also Commander-in-Chief has to grow from the soil.
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I came to this Country in 1959, and became a citizen in 1964. During my formative years in Hungary, I read as much American literature as American students might have in the high schools of yore. In my second year of residence, I married a native-born American, and henceforth spoke English exclusively in my home. Before and after taking the oath of citizenship, I have made continuous and extensive efforts to become American, not only in the administrative sense of the word. In the course of my life, spent mostly as a performing artist and academic, I had the opportunity to start a small corporation and run for elective office—both of which are indispensable for the comprehension of America.
My interest in, and commitment to, the principles upon which this Nation was founded prompted me to establish a small Think Tank—called Center for the American Founding—that connects today's issues with those principles. I write a regular column, and have published a book about American political philosophy. My fellow Americans honor me frequently in word and deed very much as one of their own.
Yet, Mr. Chairman, I wish to state unequivocally that, despite all of the above, I would not consider myself eligible to the office of president of the United States.
The people of this land are possessed of a unique brand of tolerance, a balanced temperament, and a natural goodwill toward the world. While such persons may be found everywhere, they constitute an overwhelming majority among Americans. One of the inexplicable miracles of America is the transformation that occurs within one generation, no matter how different the customs and mores of the new arrivals.
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But it does require a generation.
One might point to ''frivolous'' differences, such as foreign and indigenous sports. We hear a great deal about Soccer Moms, but soccer is still alien to Americans, whereas the debate as to whether baseball or football is America's true national sport remains a debate immigrants are more likely to watch than to join. However, there is a far more serious matter to consider.
Article II of the U.S. Constitution requires the President to ''take Care that the Laws be faithfully executed.'' Mr. Chairman, it is an incontrovertible fact that the inhabitants of most countries are not only unfamiliar with what we call the Rule of Law, but find the concept virtually incomprehensible. Again, it is a miracle that so many immigrants are able to operate within the American system of laws, contracts, and agreements on a handshake. On the other hand, to expect that someone who did not grow up with any of that could be the guardian of our legal system is unrealistic.
In addition, liberty is not simply a blessing guaranteed by the Constitution, but an inner state of being, again separating Americans from most others. An overwhelming majority of immigrants arrive on these shores looking, as they had always done, to government as a source of benefits, and an authority to obey.
III.
The reasoning in the previous sections would have been similar in times past. It is considerably more urgent today. The expectation that immigrants adopt American standards with the same enthusiasm as Americans offer to adopt them has been displaced by the proliferation of the hyphen. Equally of concern is the new appetite for, and silent acceptance of, dual citizenship. It would be naive at best to believe that neither has any bearing on what used to be unconditional loyalty and commitment to America.
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It is well known that the Founding Fathers were mindful in the extreme of foreign influences, and the dangers therefrom to the Republic. While experience has shown that a native-born Chief Executive is not necessarily immune to foreign influence, the odds are certainly more favorable if the president is an American plain and simple, who has never been, and is not at the time of taking office, anything else.
Those who favor the proposed amendment will no doubt point to exceptional persons of their acquaintance who, in their view, would fulfill any and all expectations with regard to the office of president, though being of foreign birth. Yet the laws of this country never have been written with the exceptions in mind. Among other things, the Framers of the Constitution distinguished themselves by writing few laws, and employing language at once broad and concise, so as to be applicable to all circumstances at all times.
In considering your Subcommittee's position, I implore you, Mr. Chairman, to weigh the consequences of the proposed amendment under circumstances least favorable for the future of the United States of America and reject House Joint Resolution 88.
Mr. CANADY. Professor Yinger.
STATEMENT OF JOHN M. YINGER, PROFESSOR OF ECONOMICS AND PUBLIC ADMINISTRATION, CENTER FOR POLICY RESEARCH, SYRACUSE UNIVERSITY
Mr. YINGER. Thank you very much. Good afternoon, Mr. Chairman and members of the committee. I would like to thank you very much for this opportunity to present my views on the important civil rights issue addressed by House Joint Resolution 88.
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My professional interest in this topic grows primarily out of my research in civil rights. I have published dozens of articles in scholarly journals on this topic. My 1995 book, Closed Doors, Opportunities Lost, won the Gustav Meyers Center Award for the Study of Human Rights in North America.
As noted in the statement I submitted, I also have a personal interest in this topic. I am the proud father of two adopted children. One of them, my son Jonah, was born in another country. Under current law, Jonah will not be eligible to be President even when he is old enough. The amendment in House Joint Resolution 88 would make him eligible. This amendment would also apply to two of my nieces.
The issue before you today is simple: The U.S. Constitution declares that only natural-born citizens are eligible to be President. Because this provision denies naturalized citizens an important civil right, namely, the right to run for President, it turns them into second-class citizens.
The constitutional amendment proposed in House Joint Resolution 88 would extend Presidential eligibility to naturalized citizens and would thereby ensure that all Americans have this important right.
The right to run for President has enormous symbolic power. Indeed, running for President is really the ultimate symbol of equal opportunity. Regardless of income or ethnicity, parents of a natural-born citizen can tell their child that he or she could grow up to be President. I think this is part of what makes the United States such a great country. One does not have to be born into wealth or social position to aspire to or even to attain the Nation's most powerful and prestigious job.
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Since the U.S. Constitution was passed, the Nation has steadily expanded the coverage of constitutional rights. The Bill of Rights and many other amendments to the Constitution provide examples of this. Eliminating the second-class citizenship of naturalized citizens would add another chapter to this long and honorable tradition. Indeed, given the symbolic importance of the Presidency, this step would make an abiding contribution to the equal rights principle that, in my view, is at the heart of the American democracy.
The Founding Fathers were concerned about foreign influence on the President, and the limitation on Presidential eligibility grew out of this concern. However, this limitation was a secondary issue for the Founders, who relied on Presidential elections and on the electoral college to restrict foreign influence.
Indeed, this limitation may have been controversial. Both Alexander Hamilton and James Madison, among others, warned against any provision that created second-class citizens. As Hamilton put it, ''Persons in Europe of moderate fortune will be fond of coming here when they will be on a level with the first citizens.''
The Founders also made it clear that they were not concerned just about foreign influence, but also about subversive domestic influence. The Presidential election process they devised has served this Nation so well because it minimizes the role of subversive factors from whatever source. No Presidential candidate will be successful without convincing a majority of the American people that, among other things, he is not subject to foreign influence or subversive domestic influence.
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Some candidates face an extra burden of proof that they meet these conditions because of events in their past that would make voters suspicious. Similarly, candidates who are naturalized would have to overcome suspicions associated with their life before they became citizens. If voters were nervous about a candidate's ability to be fair in dealing with the country in which he was born, they would not elect him.
The clause limiting Presidential eligibility to natural-born citizens adds nothing of substance to this process. In fact, as other people have pointed out, being natural-born is neither necessary nor sufficient for loyalty to this country. Millions of naturalized citizens have served this country with honor and distinction in the government, in the military, and, indeed, in all walks of American life. Moreover, we all know of cases of treason that involved natural-born Americans who turned against their country.
Overall it is simply preposterous to think that limiting Presidential eligibility to natural-born citizens somehow helps the Nation's voters to select a better, more loyal President.
Recently a nonpartisan group of distinguished Americans called Citizens for the Constitution released a set of guidelines for constitutional amendments. This is a very stringent set of guidelines. They say, and I certainly agree, that you should not have constitutional amendments unless they are important and suitable for that form. As I have shown in detail in my prepared statement, the amendment in House Joint Resolution 88 clearly meets all of the substantive guidelines that this group proposed. Most importantly, this amendment addresses a matter of abiding national importance, and it reinforces the cohesiveness of constitutional doctrine as a whole.
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The principle of equal rights for all citizens is one of the shining lights of the American democracy. The constitutional provision that limits Presidential eligibility to natural-born citizens is a direct assault on this principle, and therefore, it hurts all of us. It should be revoked. The amendment in House Joint Resolution 88 accomplishes this objective and would significantly expand the rights of millions of American citizens.
All it takes to support this amendment is a belief in the principle of equal rights for all Americans. I hope everyone at this hearing joins me in supporting this vital principle, and I hope they will all join me in supporting House Joint Resolution 88. Thank you very much.
Mr. CANADY. Thank you, Professor Yinger.
[The prepared statement of Mr. Yinger follows:]
PREPARED STATEMENT OF JOHN M. YINGER,(see footnote 1) professor of economics and public administration, Center for Policy Research, Syracuse University
NO AMERICANS SHOULD BE SECOND-CLASS CITIZENS
Introduction
The U.S. Constitution declares that only ''natural born'' citizens are eligible to be President. Because this provision denies naturalized citizens an important civil right, namely, the right to run for President, it turns them into second-class citizens. The constitutional amendment proposed in H. J. Res. 88 would extend presidential eligibility to naturalized citizens and would thereby ensure that all American citizens have exactly the same rights. This amendment therefore represents another important step in America's longstanding quest to guarantee equal rights for all its citizens.
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The right to run for President is obviously not as important for a person's daily life as the right to free speech, the right to worship as one chooses, and the right to vote, among others. Nevertheless, this right has enormous symbolic power. Indeed, one could say that running for President is the ultimate symbol of equal opportunity. Regardless of income or ethnicity, parents of a natural born citizen can tell their child that he or she could grow up to be President. This is part of what makes the United States such a great country: You do not have to be born into wealth or social position to aspire to or even to attain the nation's most powerful and prestigious job.
Because of its symbolic power, the right to run for President is important even for people who have no intention to run themselves. Imagine a high school civics class conducting a mock presidential election. Should the teacher tell naturalized citizens in the class that they are not allowed to run for president, just as they could not run in a real election? Or should the teacher simply point out that their candidacy in class would not carry over if the election were real? Either way, this situation undermines the standing of some citizens and is therefore an assault on the principle of equal rights.
Since the U.S. Constitution was passed, this nation has steadily expanded the coverage of constitutional rights and added new ones. The Bill of Rights and many other amendments to the Constitution provide examples of this process. So do the civil rights laws of the last few decades. Thus, eliminating the second-class citizenship of naturalized citizens would simply add another chapter to this long and honorable tradition. Indeed, given the symbolic importance of the Presidency, this step would make an abiding contribution to the equal-rights principle that is at the heart of the American democracy.
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In the rest of this statement, I will bolster this argument by examining the origins of the presidential eligibility clause in the Constitution and by asking whether presidential eligibility is a suitable subject for a constitutional amendment.
The Origins of the Presidential Eligibility Clause in the U.S. Constitution
The historical record does not provide a full explanation for the origins of the requirement that the President be a ''natural born'' citizen. Nevertheless, some evidence about the origins of this requirement can be found in the records of the Constitutional Convention and elsewhere. In this section I summarize this evidence and discuss the implications of the historical record for H. J. Res. 88.(see footnote 2)
Evidence from the Constitutional Convention
The clause restricting presidential eligibility to natural born citizens appeared in constitutional drafts near the end of the Constitutional Convention in 1787. The records of the Convention and other related material provide some evidence concerning the origins of this clause.
James Madison's detailed notes on the proceedings of the Constitutional Convention reveal that the delegates were deeply concerned about foreign influence on the national government, and in particular on the President. At the beginning of the debate, they wanted the legislature to select the President, and they tried to limit foreign influence on the President by devising time-of-citizenship and other requirements for members of the legislature. Presidential qualifications as such were mentioned, but they received little attention at this stage in the debate. Ultimately, however, the delegates decided that a president elected by the legislature could not be insulated from foreign influence, no matter what eligibility requirements were placed on legislators, and they turned, instead, to the Electoral College.
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The first draft of the Constitution that contained the Electoral College also was also the one that first contained the clause restricting presidential eligibility to natural born citizens.(see footnote 3) This joint appearance of the Electoral College and the denial of presidential eligibility for naturalized citizens is somewhat ironic. After all, the switch to the Electoral College lowered the need for explicit presidential qualifications because it minimized the line of potential foreign influence running to the President through the Legislature. However, the long debate about eligibility requirements for legislators apparently left the Founders uncomfortable with prospect of eliminating all eligibility requirements in the process of presidential selection. As a result, they added the natural born citizen requirement even though it was no longer needed.
This addition may have been controversial. In fact, two of the most influential Founding Fathers, Alexander Hamilton and James Madison, argued against it, at least implicitly, earlier in the Convention by warning against any provision that created second-class citizens. Hamilton pointed out the ''advantage of encouraging foreigners'' to come to the United States. Then he said: ''Persons in Europe of moderate fortune will be fond of coming here when they will be on a level with the first citizens.''(see footnote 4) Madison agreed with Hamilton. ''He wished to invite foreigners of merit & republican principles among us.''(see footnote 5)
The records of the Convention do not contain any explanation for the restriction of presidential eligibility to natural born citizens, but this restriction might have been viewed as additional insurance against foreign influence. This interpretation is supported by a letter that John Jay wrote to George Washington, who was president of the Convention.(see footnote 6) In this letter, dated July 25, 1787, Jay wrote:
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Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen (emphasis in the original).(see footnote 7)
The meaning of this letter is not entirely clear. According to one historian, the first part of this letter was primarily directed at members of the legislative branch.(see footnote 8) Moreover, the second part of the letter, where the expression ''natural born'' appears, probably was also not directed at the President; at that point Jay had no way of knowing that the Convention would ultimately make the President the commander-in-chief. Nevertheless, this letter may have had an impact on the delegates when the decision to merge these two positions was made. When Jay's letter arrived, probably sometime before August 13, the Convention was not ready to deal with it.(see footnote 9) But several weeks later, the idea of the Electoral College appeared and the President was made the commander-in-chief of the armed forces. In this new context, the seed that Jay had planted appears to have born fruit.
Other Evidence
Evidence from the period right after the Constitutional Convention supports the view that the Electoral College was seen as the principal means of protecting the President from foreign and other undesirable influences, and that the presidential eligibility clause was, at most, a supplement to this objective. Two pieces of evidence are particularly instructive.
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First, the issue of foreign influence is a key theme of the famous Federalist Papers, which were written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788.(see footnote 10) The role of the presidential selection mechanism in limiting foreign influence is explicitly discussed by Hamilton in essay number 68.
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.
Second, these issues were directly addressed in a statement by Charles Pinckney in the U.S. Senate in 1800. Pinckney had been a delegate to the Constitutional Convention and, on July 26, 1787, had been the first delegate to raise the issue of presidential qualifications in the debate. On March 25, 1800, Pinckney gave a detailed explanation for the Electoral College, emphasizing that the rules governing the Electoral College were designed so ''as to make it impossible . . . for improper domestic, or, what is of much more consequence, foreign influence and gold to interfere.'' The Founders ''knew well,'' he said
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that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible. . . .(see footnote 11)
Thus, in Hamilton's view, the problem of foreign influence was solved by the Electoral College. He does not even mention the presidential eligibility clause. In contrast, Pinckney sees a role for the eligibility clause, but this role is clearly a secondary one. In particular, this clause promotes ''attachment to the country'' but is not needed to guard against ''foreign influence and gold.''
Implications for H. J. Res. 88
A central example of the genius of the founding fathers was their creation of a process for electing the President that was insulated from, to use Hamilton's words, ''cabal, intrigue, and corruption,'' foreign or otherwise. In this context, the restriction of presidential eligibility to natural born citizens appears to be a carryover from the debate, early in the Convention, about qualifications for legislators. Indeed, the Founder's substantive arguments about the strengths of their constitutional protections against foreign influence all refer to the Electoral College, not to presidential eligibility. Pinckney asserts that limiting presidential eligibility to natural born citizens is a way to ensure ''attachment to the country,'' but he does not provide any justification for this conclusion. Moreover, Hamilton does not feel the need to mention the presidential eligibility clause at all in the Federalist Papers, and his most relevant comment on the issue in the Constitutional Convention was to warn against the creation of second-class citizens.
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Two further points about this debate are particularly important. First, the potential for ''cabal, intrigue, and corruption'' is not just about foreign influence. This point is made very clearly in the above statements by Hamilton and Pinckney. The presidential election process has served this nation so well because it minimizes the role of these factors from whatever source. This process allows the American people, and the people they elect to the Electoral College, to select a President who will serve the nation's interests. There is nothing special about the potential for foreign influence in this process and no need for a special provision to deal with foreign influence.
To put it another way, no Presidential candidate will be successful unless he (or she) can convince a majority of the American people that, among other things, he is ''attached to the country,'' not subject to foreign influence, not subject to subversive domestic influence, and not corrupt. Some presidential candidates face an extra burden to prove that they meet these conditions because of events in their past that make voters suspicious. Similarly, presidential candidates who are naturalized citizens would have to overcome suspicions associated with the circumstances of their birth and with their life before they became citizens. The clause limiting presidential eligibility to natural born citizens adds nothing of substance to this process.
Second, the distinction between natural born and naturalized citizens has no power whatsoever to identify people who might be subject to foreign influence, or any other kind of undesirable influence for that matter. To put it another way, being natural born is neither necessary nor sufficient for ''attachment to the country.'' Millions of naturalized citizens have served this country with honor and distinction in the government, in the military, and indeed in all walks of American life. Moreover, it is my impression that most of the cases of treason or governmental corruption that are discussed in newspapers or history books involve natural born Americans who turned against their country. It is simply preposterous to think that this nation can rule out or indeed even minimize the possibility of undesirable presidential candidates, regardless of how ''undesirable'' is defined, by limiting presidential eligibility to natural born citizens.
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In short, there is no evidence that the clause limiting presidential eligibility to natural born citizens played an important role in the Founders' scheme to protect the presidential selection process from foreign influence. Instead, this protection is provided by the Electoral College, and restricting eligibility to natural born citizens does not, and indeed logically cannot, provide any additional protection. This nation would do well to heed the warning against second-class citizens that was voiced by Hamilton and seconded by Madison. The presidential eligibility clause is an entirely pointless assault on the rights of naturalized citizens. It is time to stand up for the fundamental principle of equal rights for all citizens by eliminating this anachronistic provision.
Is Presidential Eligibility an Appropriate Subject for a Constitutional Amendment?
Another important issue is whether the denial of presidential eligibility to naturalized citizens is an appropriate subject for a constitutional amendment. Recently, a group called Citizens for the Constitution released a set of guidelines for constitutional amendments. According to its website, this group ''is an action-oriented public education effort that is led by a non-partisan, blue-ribbon committee of former public officials, scholars, journalists, and other prominent Americans.''(see footnote 12) Five of its guidelines refer to the substance of amendments; three others refer to the process by which amendments should be enacted. This section asks whether the amendment in H.J. Res. 88 fits the five substantive guidelines.
Guideline 1: Constitutional amendments should address matters of more than immediate concern that are likely to be recognized as of abiding importance by subsequent generations.
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The principal of equal rights for all Americans is at the heart of our democracy. The Constitution and the Bill of Rights outline many rights that belong to all Americans. The Fourteenth Amendment ensures that no state can restrict the constitutional rights of any citizen. Overall, as pointed out by Citizens for the Constitution, seventeen of the twenty-seven amendments to the Constitution ''either protect the rights of vulnerable individuals or extend the franchise to new groups.'' By making all citizens eligible to be President, the amendment in H. J. Res. 88 would be another step down this long and honorable path toward equal rights for all.
As discussed earlier, the right to run for President is not the most important right a person can have, but it is a right of enormous symbolic importance. An amendment declaring that all citizens can run for President (after reaching a certain age and spending a certain amount of time in the country) would forcefully declare this nation's commitment to equal rights and equal opportunity, and would therefore be recognized ''as of abiding importance by subsequent generations.''
Over 30 years ago a legal scholar, Charles Gordon, addressed the question of whether people born overseas to United States citizens could be called ''natural born'' citizens and hence be eligible to be President. After reviewing the legal history of the clause and subsequent legislation, Gordon answers this question in the affirmative. However, he also points out that the Supreme Court has never ruled on the issue and that ''that the picture is clouded by elements of doubt.'' This analysis leads him to the following conclusion:
It is unfortunate that doubts remain on an issue of such vital importance to many Americans. We live in a fluid and ever diminishing world. The interests of our nation and its people are constantly expanding and millions of Americans reside for short or long periods in foreign countries. They are there in pursuit of inspiration, enlightenment, profit, pleasure, repose or escape. All of these have a right to retain their status as American citizens while they live abroad. One can perceive no sound reason for shutting off aspiration to the Presidency for the children born to them while they are temporarily sojourning in foreign countries.(see footnote 13)
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With some editing, this eloquent statement can be expanded to include the case of all naturalized citizens.
We live in a fluid and ever diminishing world. The interests of our nation and its people are constantly expanding. Millions of Americans reside for short or long periods in foreign countries, where their children may be born, or build their families by adopting orphans born in a foreign country. Millions of other people come to the United States from other nations and become productive, loyal citizens. All of these people and their children should have full rights as American citizens. One can perceive no sound reason for shutting off aspiration to the Presidency for any American citizens, regardless of the path by which their citizenship was obtained.
Guideline 2: Constitutional amendments should not make our system less politically responsive except to the extent necessary to protect individual rights.
An amendment to ensure full American citizenship for naturalized citizens is a fortuitous case that both expands individual rights and makes our system more politically responsive by expanding the pool of people who can run for President. It does not limit any policy choices or create barriers to political debate.
Guideline 3: Constitutional amendments should be utilized only when there are significant practical or legal obstacles to the achievement of the same objectives by other means.
In many cases, a problem of unequal rights can be addressed through administrative procedures or legislation. This is not one of those cases. The exact distinction between ''natural born'' and ''naturalized'' citizens is not entirely clear.(see footnote 14) However, it is clear that the Constitution makes many American citizens ineligible to be President. A person who was born overseas to citizens of another country, moves to the United States, and then becomes an American citizen is clearly included in this category. Administrative procedures and legislation cannot overrule a constitutional provision, so the only way to change this situation is with a constitutional amendment. To put it another way, the only way to ensure that all American citizens are eligible to be President is through a constitutional amendment, such as the one in H.J. Res 88.
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Guideline 4: Constitutional amendments should not be adopted when they would damage the cohesiveness of constitutional doctrine as a whole.
As pointed out earlier, an amendment to make naturalized citizens eligible to be President is very much in keeping with the equal rights tradition in the U.S. Constitution and its amendments. This amendment would contribute to one key constitutional doctrine—equal rights for all citizens—and damage none.
Guideline 5: Constitutional amendments should embody enforceable, and not purely aspirational, guidelines.
In this case, the enforcement issue is straightforward; after all, the amendment in H. J. Res. 88 simply eliminates a restriction on the rights of one group of citizens. All that needs to be done to enforce it is to allow any naturalized citizen who meets the age and residency requirements to run for President (and to assume the office if he or she wins the election!).
Conclusion
Overall, therefore, the amendment in H. J. Res. 88 clearly meets all five of these guidelines. It addresses a matter of abiding importance, it makes our system of government more politically responsive, it does not have an administrative or legislative alternative, it reinforces the cohesiveness of constitutional doctrine as a whole, and it is easy to enforce.
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Summary and Conclusion
The principle of equal rights for all citizens is one of the central themes of our democracy. The constitutional provision that limits presidential eligibility to natural born citizens is a direct assault on this principle, and it should be amended to make all citizens eligible to be President. The amendment in H. J. Res. 88 accomplishes this objective and indeed would significantly expand the rights of millions of Americans.
This limitation on presidential eligibility was of secondary concern to the Founders, who relied on presidential elections and on the Electoral College to limit foreign and other undesirable influence. Today, this limitation is simply an anachronism that undermines the principle of equal rights while serving no useful purpose.
The amendment in H. J. Res. 88 also unambiguously meets the thoughtful guidelines for constitutional amendments laid out by Citizens for the Constitution. Most importantly, this amendment would make an abiding contribution to the principle of equal rights.
All it takes to support H. J. Res. 88 is a belief in the principle of equal rights for all Americans. I hope everyone at this hearing joins me in supporting this vital principle. I hope you will all join me in supporting H. J. Res. 88.
Mr. CANADY. Professor McDonald.
STATEMENT OF FORREST McDONALD, HISTORIAN AND PROFESSOR OF HISTORY, UNIVERSITY OF ALABAMA
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Mr. MCDONALD. I want to thank you in particular, Mr. Canady, for putting me on the extreme right of this panel. I am always more comfortable there.
Mr. Chairman, I could give what I regard as a definitive argument.
Mr. CANADY. Professor, from my perspective, you are on the extreme left.
Mr. MCDONALD. All right. I could give what I consider the definitive argument against the proposed amendment in two words: Arnold Schwarzenegger, but I have been allotted 5 minutes, so I will take the 5. I will explain the reference, if it does not follow.
Americans of the founding generation were extremely distrustful of executive authority. By the time of the Constitutional Convention, however, difficulties undergone during and after the War for Independence had convinced public-spirited men that a national executive was necessary, but they approached the problem cautiously.
At least one-third of the delegates favored a plural executive in the interests of safety. The others endorsed a single executive, but only because George Washington would obviously be the first President. But Washington could not serve forever, and the delegates groped almost desperately to devise a means of choosing his successors. The search took up more time, more of the debates, than any other subject.
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The greatest fear was of corrupt influences upon the election, particularly from abroad. Since the time of Louis XIV, every major European power had developed a secret service. The damage that such agencies could do was vivid in the American imagination, and it was not imaginary.
The horrible example of Poland was commonly cited. Poland had an elected monarch, and only 15 years earlier, in 1772, the secret services of Austria, Prussia and Russia had rigged the election of their own candidate, whereupon Poland was partitioned and divided among those three powers.
As Charles Pinckney, a delegate from South Carolina, put it, the danger was that ''we shall soon have the scenes of Polish Diets and elections re-acted here, and in not many years, the fate of Poland may be that of United America.''
Fear of foreign influence was pandemic. Elbridge Gerry of Massachusetts even wanted to prevent foreigners from becoming citizens, taking the position that naturalized citizens would always have divided loyalties.
On much the same ground, John Jay, then Superintendent of Foreign Affairs, wrote to Washington, as Mr. Canady said, as president of the Convention, urging that the Constitution ''declare expressly that the command in chief of the American Army shall not be given to nor devolved on any but a natural-born citizen.''
Meanwhile, as Mr. Canady also pointed out, a rumor was circulating that the Convention intended to invite a distant relative of George III to assume the American crown, a rumor that delegates publicly denied, despite the mantle of secrecy cloaking all those deliberations. Such nervous talk emphasized that the Convention must come up with something that in no way resembled or could be converted into a monarchy.
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Debates about electing the President raged until early September, less than 2 weeks before the Convention adjourned. Then Pierce Butler, an Irish-born delegate, came up with a cumbersome plan that overcame the objections to all earlier proposals. This was the electoral college system. The system was so diffuse that it would be virtually impossible, given the primitive communications then available, for foreign agents to corrupt it. But for good measure Butler's proposal included the restrictive language, ''no person except a natural-born citizen.''
That language was adopted without a single dissenting voice, nor did anyone speak in its support. Its meaning and rationale went without saying. As Joseph Storey later explained in his famous commentaries, the phraseology ''cuts off all chances for ambitious foreigners who might otherwise be intriguing for the office and interposes a barrier against . . . corrupt interferences of foreign governments.''
Now, the question before the subcommittee is not the original purpose of the clause, but whether it has outlived its usefulness. The circumstances that prevailed at the time of the founding have changed. Yet it seems to me on balance that conditions in the foreseeable future warrant a continuation of the caution shown by the framers.
Take the matter of the possible corruption in the electoral process. The system is still structurally diffuse, but in practice it might as well be centralized, given modern techniques of communication and the instant portability of money, the most potent corrupting influence. Presidential candidates spend scores of millions of dollars. Just consider the prospective influence of a few billion dollars, a sum well within the means of a number of countries, any one of which, while unwilling to risk such a sum on a natural-born American, might be eager to support a candidate who had been born and raised in their country.
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The original Constitution contemplated a relatively weak Presidency, but the office has become the most powerful in the world, and safeguards surrounding it are therefore more indispensable than ever. The one area of Presidential authority that is virtually unchecked and uncheckable is the President's power as Commander in Chief. Can that power be safely entrusted to a foreign-born citizen?
Let us consider a few scenarios, starting with an extreme example. The espionage agencies of some countries have occasionally employed agents under deep cover who might not be activated for decades. It is not difficult to imagine such an agent being elected to an office of trust, but a Senator is 1 of 100, and a Representative is 1 of 435. What check is there on a President who is 1 of 1, except for the constitutional restriction?
Or consider a more likely case. A person from country X becomes a citizen and lives his life as a loyal American. Nevertheless, in dealing with his original country, he is bound to be influenced by his nativity, whether in the form of hostility or favoritism. Even should he prove able to deal with the old country objectively, he would still be widely regarded as prejudiced, and the media would fan such suspicions.
In the role of Commander in Chief, it is not enough to be above reproach. One must be above the suspicion of reproach. For example, given the emotionalism shown during the Elian Gonzalez case, would a Cuban-born President be perceived as objective in handling a military conflict with Cuba?
In short, on constitutional questions, we are still best guided by the wisdom and prudence of the Founders. The structure they have created has stood the test of time and continues to stand as the truest foundation for our freedom.
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Mr. CANADY. Thank you, Professor McDonald.
[The prepared statement of Mr. McDonald follows:]
PREPARED STATEMENT OF FORREST MCDONALD, HISTORIAN AND PROFESSOR OF HISTORY, UNIVERSITY OF ALABAMA
To appreciate the significance of the Constitution's restriction of presidential eligibility to natural born citizens, it is useful to place the requirement in historical perspective. Americans of the founding generation were extremely distrustful of executive authority because experience with colonial governors had convinced them that executive power was inherently inimical to liberty, because they felt betrayed by George III, and because they considered a strong executive to be incompatible with the republicanism they embraced when they declared their independence in 1776. As a consequence, their revolutionary state constitutions provided minimal executive branches, and the first national constitution, the Articles of Confederation, established no executive arm.
By the time the Constitutional Convention met in Philadelphia in 1787, difficulties undergone during and after the war for independence had convinced most public spirited men that an energetic national executive was necessary, but they approached the problem cautiously, and at least a third of the delegates to the Convention favored a plural executive in the interest of safety. The others endorsed a single executive, not least because all understood that George Washington, whom everybody trusted, would be the first occupant of the office.
But Washington could not serve forever, and the delegates groped almost desperately to devise a suitable way of choosing his successors. The search took up more of the debates than any other subject the Convention faced. Most delegates favored having Congress elect the president, but that would make the executive department dependent upon the legislative unless the president were ineligible for reelection, but ineligibility would necessitate a dangerously long term—six or seven years being the common suggestion.
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The greatest fear was of corrupt influences upon the election, particularly from abroad. Since the time of Louis XIV in France, every major European power had developed what was called a ''secret service'' along the lines of the current CIA and the former Soviet KGB. The damage that such agencies could do was vivid in the American imagination, and it was far from imaginary. The delegates repeatedly cited as a horrible example the recent demise of Poland. Poland had an elective monarch, the electorate consisting of a corrupt nobility, and only fifteen years before the American Constitutional Convention, the secret services of Austria, Prussia, and Russia had connived to engineer the election of their own choice for king, whereupon the entirety of Poland was partitioned and divided among those three powers. As Charles Pinckney, a delegate from South Carolina, put it, the danger was that ''we shall soon have the scenes of the Polish Diets and elections re-acted here, and in not many years the fate of Poland may be that of United America.''
Fear of foreign influence was pandemic. Elbridge Gerry of Massachusetts wanted to go so far as to prevent foreigners from becoming citizens, taking the position that naturalized citizens would always have divided loyalties. On much the same ground, John Jay, then Superintendent of Foreign Affairs—the predecessor of the office of Secretary of State—wrote to Washington, as president of the Convention, urging that it would be ''wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.'' Meanwhile, a rumor floated in the summer of 1787 that the Convention intended to invite the Bishop of Osnaburgh, a distant relative of George III, to assume the American crown—a rumor that delegates publicly denied despite the mantle of secrecy cloaking all other deliberations. Such nervous talk emphasized to the Convention that it must come up with something that in no way resembled a monarchy nor could be converted into a monarchy (which would be possible if naturalized citizens should be eligible to head the executive branch).
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Debates concerning the mode of electing the president raged until early September, less than two weeks before the Convention adjourned. The Pierce Butler, an Irish-born delegate from South Carolina, came up with a cumbersome plan that overcame all objections that had been raised against earlier proposals. This was the electoral college system: the state legislatures (or, if the legislatures so chose, the voting public) would select a number of electors equal to the states' Senators and Representatives combined; the electors would vote in their home states for two candidates, one of whom must be an inhabitant of another state. Whoever got the most votes, if a majority, became president, and the runner-up became vice president. If no candidate polled a majority, the House would choose the president, each state delegation having one vote. The president would serve a four-year term and could be re-elected any number of times.
The system was so diffuse—cockamamie is not too strong a word—that it would be virtually impossible, given the primitive communication facilities then available, for foreign agents to corrupt it. But for good measure, considering the doubts about divided loyalties expressed by Gerry, Jay, and others, as well as the fear of conspirators who might in future invite foreign royalty to assume the presidency, Butler's proposal included the restrictive language that found its way into Article II, section I, of the Constitution: ''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.''
That language was adopted without a single dissenting voice. Nor did anyone speak in its support: its meaning and its rationale went without saying. As an aside, the wisdom of the restriction and of the larger electoral system of which it was a part was soon borne out. In the presidential elections of 1796 and 1800 agents of Revolutionary France attempted by both overt and covert means to determine the outcome.
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Now, the question before the subcommittee is not the original purpose or understanding of the clause, but whether it has outlived its usefulness. The circumstances both at home and internationally that prevailed at the time of the founding have long since vanished, so perhaps a rethinking is in order. And yet, it seems to me on balance that conditions today and in the foreseeable future warrant a continuation of the caution shown by the framers. Take the matter of possible corruption in the electoral process. The system is structurally as diffuse as it was in the eighteenth century, but in practice it might as well be totally centralized, given modern techniques of communication and the instantaneous portability of money. Presidential candidates spend scores of millions of dollars; just consider the prospective influence of a few billion—a sum well within the means of a large number of countries any one of which, while unwilling to risk such a sum on a natural born American, might be eager to support a favorite son candidate, that is one who had been born and raised in their country.
The original Constitution contemplated a relatively weak presidency, but the office has become the most powerful in the world, and safeguards surrounding it are therefore more indispensable than ever. The one area of presidential authority that is virtually unchecked and uncheckable (despite the War Powers Act and similar efforts) is the president's power as commander in chief. Can that power be safely entrusted to a foreign-born citizen? John Jay didn't think so; nor do I; nor I suspect do the vast majority of Americans.
Let us consider a few scenarios. Start with an extreme example. The espionage agencies of a number of countries, doubtless including the United States, have sometimes employed what in the spy novel is called an agent under deep cover. A young person is thoroughly trained and indoctrinated before being sent to an enemy country, where he or she becomes a citizen and an exemplar of respectable behavior. This goes on for years, even decades, until the parent agency determines that it is time to activate the agent. It is not difficult to imagine such a person obtaining an office of great trust. But a Senator is one of 100, and a Representative is one of 435. What check is there on the president who is one of one, except for the constitutional restriction?
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Should that seem too remote a possibility, consider a more likely case. A person comes to America from country ''X'' as a young man, takes out citizenship, become thoroughly Americanized, and is as loyal to his adopted country as can be. Nonetheless, in dealing with his original country he is bound to be influenced by his nativity, whether in the form of hostility or favoritism. Even should he prove able to rise above his prejudices and deal with the old country objectively, he would still be widely regarded as prejudiced, and the media would fan such suspicions. As commander in chief, it is not enough to be above reproach, one must be above the suspicion of reproach.
Let me cite a more tangible example, one closer to recent experience. We all know a number of Cuban-Americans. They are loyal to our country, now their country too. They are pillars of their communities and are more fiercely patriotic than most natural born Americans. And yet, as the recent to-do over Elian Gonzalez demonstrated, few of them are able to regard Cuba dispassionately or treat relations with Castro's Cuba with equanimity. Suppose we had had a Cuban-born president in the White House at the time of the Gonzalez controversy. Would that president have been able to retain objectivity and, as importantly, any shred of credibility under the circumstances?
In conclusion let me say that on this as on other constitutional questions, we are best guided by the wisdom and prudence of the Founding Fathers. The amendment process is not to be taken lightly, nor should it be used for political or electioneering purposes. The structure created by the Constitution has stood the test of time and continues to stand as the truest foundation for our freedom.
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Mr. CANADY. I yield 5 minutes to the gentleman from Massachusetts, Mr. Frank.
Mr. FRANK. Thank you.
First, I would ask, Professor McDonald, I assume the reference to Arnold Schwarzenegger was to hold out the terrible prospect that he might get elected President.
Mr. MCDONALD. Yes.
Mr. FRANK. I think what I find is that that shows—the assumption is that there is no great discretion on the part of the public.
Mr. MCDONALD. They have elected a number of actors before to high office.
Mr. FRANK. Yes, they have, and I think they did a reasonable job, given their values. And I think that I am glad you brought it up, because it seems to me what we have here is, in the guise of a defense of the American citizens, a denigration of them; the notion that they somehow cannot be trusted to make these decisions.
Dr. Vazsonyi, you seem to acknowledge that as to someone who came here at 2 or 3, that would not be problem, but you said, how do they differentiate? In our system, the public does. Wasn't it, Professor McDonald—who was it that said, ''Here, sir, the people who decide?'' I know some historical figure said it, and I can't remember who.
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I think what we are talking about is broadening the choices to the public. Do you think the American voter, Dr. Vazsonyi, would not be able to distinguish between someone who came here at the age of 2 or 3, was adopted by Professor Yinger, say, and then having grown up virtually all of his or her conscious life here, ran for President, or someone who came over here at 32 to star in the movies and lift weights? Is that not a distinction we could leave up to the voters?
Mr. VAZSONYI. If I may respond in reverse order, Congressman, as far as the specific age is concerned, it seems to me, after a great deal of consideration, Congress and the States and the people of the country would settle on, say, age 2 as a desirable point. It would only signal——
Mr. FRANK. No, you missed my point entirely. I do not think there should be a cut-off point. I think the voters can decide. I think they could differentiate in an election between someone who came here at the age of 2 and decide that that was irrelevant, and someone who came here much later and might be subject to some of the concerns you have.
In other words, my point is that under our system, we should leave it to the voters.
Mr. VAZSONYI. I would not only agree in general, I would also cite a letter written by Thomas Jefferson, I believe, in 1820, in which he says very clearly that all confidence must be in the American people, who are the only repositories of a safe future.
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But I also believe that political events can be influenced, and it is not unthinkable for a foreign power, especially for a foreign power, perhaps I am going to cite China, a country with an extremely long-term view of history, to arrange things perhaps on a 50-year plan to install someone on American soil and really hope to be able to run for that office and put the necessary strength behind it.
In other words, I think there is a fundamental question here of rights.
Mr. FRANK. I am sorry, that is a different issue. I only have 5 minutes.
The problem I have with that Manchurian Candidate scenario of yours is that precisely the Manchurian Candidate was an American. The fact was that if we have this really omniscient foreign power—and I think I should say that in our entire history we have apparently had no examples of an elected official being planted from overseas, we have had no examples of a foreign country doing that, because as you have said, we have the House and the Senate, we have the Supreme Court, and there are other important positions. And I am not aware that anybody has ever succeeded in planting that mole here and have him or her grow into prominence and then be an elected official.
But if you were going to do that, there would be no need to do it with one of your own nationals. As a matter of fact, it would be far cleverer to pick an American. There are Americans of a wide range of loyalties and ideologies. In fact, many of the most prominent spies have been native-born Americans.
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So if, in fact, you have that scenario, if the Chinese were to pull this off, of which I must say I am very skeptical, they do not have to do it with someone born in China, they could do it with someone, maybe a first-generation-born American of their ethnicity, or, in fact, someone from another ethnicity.
If you really think that is the problem, I don't think you have solved it.
Mr. Delgado?
Mr. DELGADO. What concerns me here, Congressman Frank, is that xenophobia is rather prevalent in our country. The immigrants, millions of immigrants, who are in our shores and live here still have not achieved the civil rights movement like the blacks have in the 1960's. Until such time as the immigrants do, the Americans that become Americans through the naturalization process, until that time, there will not be equality in this country.
Mr. FRANK. If I could ask for 1 1/2 more minutes?
Mr. CANADY. Without objection, the gentleman can have 5 additional minutes.
Mr. FRANK. Thank you, Mr. Chairman.
One thing, and I think Professor McDonald raised what seemed to me to be the significant issue here, which is either the fact or perception that someone who may have spent the first 20 or 30 years in a country might have feelings toward that country, and we all know this, it is very hard, once you have been emotionally involved, to abstract yourself from that emotional involvement. That is why up I am talking about a 2-year-old rather than someone later. That is a significant issue. I believe that it would be an electoral issue.
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What concerns me, Dr. Vazsonyi, is your assertion that if you were not born here, you can never fully assimilate American ideals and never fully understand the rule of law and liberty. I was somewhat surprised to hear you say that. I must say I have served with Members of this Congress, members in the State legislature, from the region from which Mr. Delgado comes, who came here at various ages and seem to me every bit as much understanding of democracy and liberty and the rule of law as anyone else.
It seems to me there was a note in your testimony that jarred me, that if you were not born here, that somehow you could never fully assimilate. You said it would take more than one generation. I just want to tell you how much that troubles me. I would give you a chance to respond.
But the notion that only Americans fully understand the rule of law and liberty, and that if you were not born here, you never fully understand it in one generation certainly does not conform to my experience.
Mr. VAZSONYI. I would like to clarify this. Thank you, Congressman, for giving me that opportunity.
I'm not trying to suggest that immigrants are incapable of understanding American principles, and goodness knows, I have just about changed professions to do this full time. I have been fortunate to have all sorts of opportunities to speak and write about these principles.
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But we are all somewhat prisoners of our own selves. I know, because I live among Americans and see every day, as I said in my remarks, the very special kind of natural tolerance and good will and temperament. I know that I am not capable of it, as much as I try every day. I know thousands of fellow immigrants who love this country dearly, who serve this country honorably, who are in the same situation.
I am not suggesting that——
Mr. FRANK. I don't know how much you have traveled. We have been working toward tolerance, yes. We have a long history of intolerance. I don't think 50 years ago I would have talked about tolerance on the racial issue as one of our strong points.
You really find Americans qualitatively superior to Norwegians, Swedes, and Dutch people in regard to their acceptance of difference and their tolerance? Has that always been the case? American racial history certainly is not what I would point to as the exemplar of tolerance. We are getting much better, but if there is something in the soil or in the air that makes us tolerant, it apparently was very late developing.
Mr. VAZSONYI. I have traveled a great deal as a consequence of literally having given concerts around the world all my life. I will not say that Americans are superior. I might think that, but I won't say it. What I will say is that they are different.
I don't know what the reason is except, as I tried to say, that there is something in the Constitution and this umbrella erected over the country that makes people who come from lands where people are not able to live and work with each other in peace, where they do terrible things to each other as a matter of habit, they come here, and within one generation they become people who can live and work with one another.
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I think the miracle is that they can do this in one generation. I think it is too much to expect that——
Mr. FRANK. Do you think that describes America's racial history over the full course of the country's history?
Mr. VAZSONYI. I will claim an immigrant's privilege here, Congressman, and say that I believe that bringing up the racial issue in whatever we discuss may really guide us in the wrong direction. There are many other issues in the world.
Mr. FRANK. Yes. Now I am disturbed. You are talking about tolerance, and I am talking about a demonstrable terribly intolerant strain in American, which I am very proud we are trying to undo, but if there is something inherent in America going back to the Constitution, how can it be a diversion to talk about this issue when we are talking about tolerance?
Mr. VAZSONYI. I don't think there is anyone in this country today who would not like to imagine that it might have happened differently, and slavery would never have occurred in this country. Nevertheless, it is also a fact that what Americans have accomplished in the way of different people and peoples living together is without precedent.
This country has been bending over backwards, especially in the last 50 years, as you say, Congressman. But I think what we now regard as racial intolerance, discrimination, all these things, is also at the same time the very real thing of people of tremendously different mores and backgrounds and habits and histories will not find it easy to live together. So the racial problems in this country were at least partly due to that.
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As I say, the country has made a tremendous effort. I first arrived here, and there was segregation in the South. I raised my voice against it the moment I could speak a few words of English. I know what you are talking about, Congressman. But I also think that even if in this particular realm America had a lot to change, that does not necessarily cancel out what I speak about regarding tolerance.
Mr. FRANK. I am struck that, as an immigrant, you were deeply offended by the legal racism embodied in the United States, and you as an immigrant were presumably arguing with a lot of people who were born in this country about the racism that you found when you got here. I am glad you were.
Mr. VAZSONYI. Well, it was in the Southern States where I happened to spend my first year. As you know, it was only in a certain number of States where segregation was the law. I could not believe that it truly existed. And as you say, I was offended by it, tremendously.
But I think when we are regarding and considering the entire history of the country and the future of the country, there are simply many other considerations.
Mr. MCDONALD. Can I add a footnote? On this question of tolerance——
Mr. CANADY. I recognize myself, and I recognize Professor McDonald to make whatever comment he wants to make.
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Mr. MCDONALD. Thank you.
Surely there are ugly chapters in the history of our racial relations, but if you look at the history of every other country on the planet, or very nearly every other country on the planet, it is much worse.
My God, look at South America, look at Africa, look at Asia. The discrimination by race and ethnic groups is absolutely fantastic. We do not go around butchering each other like a bunch of Watusis and Hutus. We have never done that.
Mr. FRANK. First, I was not suggesting that Americans were worse. I was dealing with the notion that we were uniquely qualitatively better on the question of tolerance.
Secondly, I don't think that in some of the countries, the Europeans, the Scandinavians, in the Netherlands, that the notion of massacres quite holds up.
Mr. MCDONALD. You don't get racism unless you have two races in the same territory. You don't have that in Norway or Sweden.
Mr. FRANK. No. But in the Netherlands you have some genuine integration. Portugal, in fact, with regard to some of the colonies, has shown some. So the notion that America is unique or better than everybody else on race relations—and it is more than just a few ugly chapters. We are talking about racism—remember, in 1954 when the Supreme Court ruled that segregation was unconstitutional, they did not just strike down the laws of 17 States, they struck down a national law which segregated the schools of the city in which we now sit, the Capital of the United States. So I don't think we should be minimizing it.
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I do think that there are other countries that have dealt with this at least as well as us. That is my argument, not that we are worse, but that there is not evidence when you factor in race that we are somehow immune from the human condition here.
Mr. CANADY. I will stipulate that we have had significant problems and tragic problems in our history as Americans, but I think a point that can be made is that somehow this Constitution that the Founders established has had the ability to work us through those problems, with some amendments, admittedly necessary amendments, I believe, the amendments in the aftermath of the Civil War. But the Founders did put in place the mechanisms that made those amendments possible.
But that is really related, it is not the fundamental issue here before us today; that is, whether we should change the Constitution of the United States to eliminate this requirement.
I will candidly say I am ambivalent on the subject. I think the Republic probably will survive if we do not change it, and I also think the Republic would survive if we did change it. I think the concerns that this could lead to some sort of undue foreign influence over the executive branch are different today than they might have been in the days of the Founders. Quite frankly, I think the Founders probably would look at this issue somewhat differently today.
Of course, I cannot know that. I don't think any of us can know that. But the circumstances are different. I think Mr. Frank makes a valid point that if a foreign power had a desire to influence the political system of the United States by installing someone in the Presidency who would be sympathetic to that foreign power, there are ways to accomplish that other than by using a foreign-born American citizen.
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But as I say, I am ambivalent, because I come to this with a presumption against a constitutional amendment unless a compelling case can be made for it. But I am sensitive to the point that Mr. Delgado and Professor Yinger make about the fact that—the statement this makes to many thousands of Americans who are probably among the most patriotic Americans in this country. It is not a matter that they would have a right to be President, I think we would all understand that being President is not a right, but that the system excludes that opportunity for them is something that I think should give us pause.
Does that mean we should change the Constitution to change it? I have not reached that conclusion. But I think it is an issue that is worthy of consideration, and that is why we have had this hearing today.
I want to thank Mr. Frank for pursuing this and bringing it to the subcommittee's attention.
Mr. FRANK. I want to thank the Chair for both having the hearing and for his statement. We do get embattled on a lot of important issues, and this is part of our job, but this also is part of our job; namely, to take issues that people may not have thought about in great detail, that they may not have locked in on on one side or the other.
So I appreciate the witnesses sharing this with us. Thank you very much. We will obviously return to this subject next year.
Mr. CANADY. I won't, because I won't be here.
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Mr. FRANK. You can testify.
Mr. CANADY. I will be an interested observer if there are further proceedings on this.
I do want to thank all of the witnesses. I think each of you gave a perspective on this issue that is very valuable to the subcommittee and will be valuable to the subcommittee and the full committee and the Congress if there is further action on this in a subsequent Congress. Thank you.
The subcommittee now stands adjourned.
[Whereupon, at 5:45 p.m., the subcommittee was adjourned.]
(Footnote 1 return)
John Yinger is a scholar who specializes in civil rights, particularly discrimination in housing, and in American federalism, particularly education finance. He is also the proud father of two adoptive children, one of whom, even when old enough, will not be eligible to be President, at least not under current law.
(Footnote 2 return)
For a detailed discussion of this evidence, see John Yinger, ''The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be a 'Natural Born Citizen' and What Does this Clause Mean for Foreign-Born Adoptees?'', http://www.maxwell.syr.edu/ jyinger/facfa.html.
(Footnote 3 return)
The Founding Fathers did not rule out foreigners as such. In particular, they made anyone who was a citizen ''at the time of the Adoption of this Constitution'' eligible to be President. This phrase applied to thousands of foreign born citizens, including seven signers of the Constitution.
(Footnote 4 return)
James Madison, Notes of Debates in the Federal Convention of 1878 Reported by James Madison (Athens, OH: Ohio University Press, 1966), p. 438.
(Footnote 5 return)
Madison, op,. cit., p. 438.
(Footnote 6 return)
John Jay was not a delegate to the Convention, but he was a well-known figure who had been President of the Continental Congress. Moreover, he would become an author, along with Alexander Hamilton and James Madison, of some of the famous Federalist Papers, and he would later be appointed as the first Chief Justice of the U.S. Supreme Court. It seems reasonable to suppose that his letter carried some weight. See Richard B. Morris, Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution (New York: Holt, Tinehart, and Winston, 1985).
(Footnote 7 return)
Max Ferrand, editor, The Records of the Federal Convention of 1787, Revised Edition, Volume III (New Haven: Yale University Press, 1937), p. 61. This letter can be found at the Library of Congress web site: http://thomas.loc.gov. According to Charles Gordon, ''Who Can Be President of the United States: The Unresolved Enigma,'' Maryland Law Review, Vol. 28, No. 1 (Winter 1968), p. 5, this letter was sent to Washington and ''probably to other delegates.''
(Footnote 8 return)
Morris, op. cit., p. 191.
(Footnote 9 return)
Actually, one delegate, Elbridge Gerry, was ready. On August 13, Gerrry argued that eligibility for the legislature should be ''confined to Natives.'' Morris (op. cit, p. 191) believes that Gerry's concerns were stimulated by Jay's letter. However, Gerry's position did not catch on with the other delegates.
(Footnote 10 return)
The Federalist Papers can be found on Library of Congress web site: http://lcweb2.loc.gov/const/fed/fedpapers.html.
(Footnote 11 return)
''The Records of the Federal Convention of 1787'' (Farrand's Records), CCLXXXVIII, Charles Pinckney in the United States Senate, March 28, 1800, p. 386–7, available at: http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:10:./temp/ ammem—jwJ2::.
(Footnote 12 return)
This site is: http://www.citcon.org.
(Footnote 13 return)
Gordon, op. cit., p. 32.
(Footnote 14 return)
See Gordon, op. cit.