Born in the U.S.A., But Not Natural Born: How Congressional Territorial Policy Bars Native-Born Puerto Ricans from the Presidence

COMMENTS BORN IN THE U.S.A., BUT NOT NATURAL BORN: HOW CONGRESSIONAL TERRITORIAL POLICY BARS NATIVE-BORN PUERTO RICANS FROM THE PRESIDENCY * John R. Hein “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United 1 States.” One of the “best aspects of the American political tradition” is the notion that every American child—regardless of race, creed, gender, 2 or social status—can grow up to become President. On first glance, the language of Article II, Section 1, clause 5 of the United States Constitution enshrines this notion into the highest law of the land— the only permanent discriminatory bar to the American presidency is 3 that candidates be “natural born” citizens. Incorporation of the Twelfth Amendment places the same limitation on eligibility for the 4 vice-presidency. 5 But the meaning of this “natural born” proviso long has been the subject of controversy because it is not defined anywhere in the Con6 stitution. The Supreme Court has ruled without doubt that United States citizens born to parents who are subject to United States juris- * 1 2 3 4 5 6 J.D. Candidate, University of Pennsylvania Law School, 2009; B.A., Harvard College, 2006. U.S. CONST. art. II, § 1, cl. 5. See Randall Kennedy, A Natural Aristocracy?, 12 CONST. COMMENT. 175, 175–176 (1995) (arguing for the importance of the formal proposition that every native-born American child could conceivably grow up to become President). U.S. CONST. art. II, § 1, cl. 5. The age and residency requirements can be viewed as temporary bars in that anyone who has reached the age of thirty-five and has resided in the United States for at least fourteen years becomes eligible for the presidency. U.S. CONST. amend. XII (“But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”). U.S. CONST. art. II, § 1, cl. 5. See Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1874) (“The Constitution does not, in words, say who shall be natural-born citizens.”). 423 424 JOURNAL OF CONSTITUTIONAL LAW [Vol. 11:2 diction in one of the fifty states are unquestionably natural born citi7 zens and therefore eligible for the presidency and vice-presidency. But immigrants who become United States citizens through a naturalization process are not eligible for either office because the Supreme Court has ruled that these citizens clearly do not qualify as 8 natural born under Article II. Critics of the clause have described it 9 as “opaque” for its ambiguity of language and “an instance of rank 10 superstition” for its role in distinguishing between the rights of citizens based on their place of birth. Some have gone so far as to 11 charge that the Natural Born Clause is “un-American.” This latter charge is most often leveled by critics advocating that foreign-born 12 citizens should also be eligible for the office of the presidency. The impact of the Natural Born Clause does not stop at foreignborn naturalized citizens, however. The language of Article II casts a shadow of doubt over the status of Native Americans who are mem13 bers of tribes recognized by the United States government, children 7 8 9 10 11 12 13 See Sarah Helene Duggin & Mary Beth Collins, ‘Natural Born’ in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need to Fix It, 85 B.U. L. REV. 53, 90–91 (2005). See also Perkins v. Elg, 307 U.S. 325, 328 (1939) (holding that a person born in New York City did not lose citizenship by virtue of moving to Sweden and becoming a Swedish citizen); Morrison v. California, 291 U.S. 82, 85 (1934) (holding that a person born abroad is a United States citizen if his or her father was a citizen and the father was at some time a resident of the United States); United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898) (noting Congress’s authority to confer citizenship on children born abroad to United States citizens). See Schneider v. Rusk, 377 U.S. 163, 165 (1964) (“[T]he rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.”); Luria v. United States, 231 U.S. 9, 22 (1913) (“[A] naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.”). See Duggin & Collins, supra note 7, at 55 (2005) (“While the language of this portion of Article II may appear clear on its face, few constitutional provisions are actually so opaque.”). See Kennedy, supra note 2, at 176 (describing the natural born requirement as nothing but “idolatry of mere place of birth”). Akhil Reed Amar, Natural Born Killjoy, LEGAL AFF., Apr./Mar. 2004, at 16. See also Kennedy, supra note 2, at 176 (arguing that the natural-born citizen requirement presumes that some citizens are “a bit more American” than other citizens); Robert Post, What Is the Constitution’s Worst Provision?, 12 CONST. COMMENT. 191, 193 (1995) (criticizing the validity of birthplace as a “proxy for allegiance”). See Duggin & Collins, supra note 7, at 136–37 (reasoning that the natural born distinction is based on faulty presumptions); Kennedy, supra note 2, at 176 (arguing that all citizens should be eligible to seek the nation’s highest office). See Elk v. Wilkins, 112 U.S. 94, 109 (1884) (holding that a member of an Indian tribe recognized by the United States was not a citizen of the United States pursuant to the Fourteenth Amendment because he was not born “subject to the jurisdiction” of the United Jan. 2009] BORN IN THE USA 425 14 born to U.S. citizens living abroad, and those born in U.S. embassies, on military bases, and in other areas within the jurisdiction of 15 the United States. From this last group emerges the interesting case of citizens born in United States territories, such as Puerto Rico. Such citizens clearly are not foreign born, but are these citizens natural born for purposes of Article II and, in turn, eligible to run for the presidency? The answers to these questions have an obvious impact on the pool of potential presidential candidates in future elections, though the issue has arisen in the past. Barry Goldwater, the Republican senator and presidential candidate in the 1964 election, was born in the Arizona territory in 1909—three years prior to Arizona state16 hood. His eligibility for the presidency, however, was never ques17 tioned at the time, so the issue was neither raised nor resolved. Four years later, the eligibility of another Republican presidential candidate—George Romney, th (...truncated)