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Article Excerpt
Article II, Section 1, clause 5 of the U.S. Constitution states, "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." Recently, interest has grown in amending this provision to widen presidential eligibility to include naturalized citizens. Members of Congress have introduced amendments in both the House and Senate and held hearings on them, some academic books on constitutional reform have advocated the revision, media outlets such as the Los Angeles Times and The Economist have editorialized in favor of it, and a Web site was created and spot ads run on television in California during 2004 to increase backing for it. At the first Republican presidential debate in May 2007, moderator Chris Mathews asked the candidates whether they would support amending the Constitution to allow naturalized citizens such as Florida senator Mel Martinez or California governor Arnold Schwarzenegger to run for president. While hardly representing a groundswell of support, the proposal sustained enough interest to start creeping closer to the political agenda in 2004, but since that time, it appears to have lost much of its political momentum.
The Context: A Formally Inflexible Constitution
In his comparative study of democracy, Arend Lijphart (1999, 187) finds that federal states, besides dividing powers between the levels of government and often employing strong bicameralism in which one legislative chamber represents the subnational units, usually have difficult constitutional amendment procedures. This constitutional inflexibility helps protect the subnational units by giving them something close to a minority veto against fundamental changes in the political order. Article V of the U.S. Constitution reflects that intention, especially when, after describing the regular amendment procedure, it guarantees that "no state, without its consent, shall be deprived of its equal suffrage in the Senate." To alter the Senate, which overrepresents small states and must approve amendments, thus requires unanimity. Among other federal states, the German constitution requires a two-thirds majority of both legislative chambers, one of which overrepresents the smaller lander, to vote for constitutional amendments. In Canada, though the two legislative chambers pass constitutional amendments by a simple majority vote, two-thirds of Canada's provinces must ratify them, with the ratifying provinces representing at least 50% of the total population of Canada.
The U.S. amendment procedure outdoes that of other federal states such as Germany or Canada by first requiring two-thirds of each chamber of Congress (or two-thirds of the states requesting a convention to amend the constitution) to approve an amendment, and then requiring three-quarters of the state legislatures (or three-quarters of the special state ratifying conventions) to ratify the amendment. This formula makes the U.S. Constitution the world's most difficult to amend, now that the more rigid constitution of Yugoslavia has disappeared (Levinson 2006, 204). All amendments except the Twenty-first Amendment have utilized the two-thirds of Congress and three-quarters of the state legislatures formula. With one party rarely enjoying a two-thirds majority in both the House and Senate, and party discipline often imperfect, the two-thirds requirement effectively screens most potential amendments from passage. James Sundquist notes that because every state except Nebraska has a bicameral legislature, the ratification formula actually enables 13 of the 99 state legislative chambers to block an amendment, which increases the ratification threshold from 75% to 88%. He concludes that the extraordinary majorities necessary to enact a constitutional amendment gives "any significant political bloc ... an effective veto" (Sundquist 1992, 17). Yet almost any amendment that involves a nontrivial change will strike some group or set of states as disadvantageous and likely engender their opposition. Larry Sabato cites a 2004 CQ Weekly study indicating that in the previous 40 years, of the more than 3,000 amendments proposed in Congress, only six emerged for the states to ratify, and none has made it to the states since 1978 (Sabato 2007, 8). The failure of the District of Columbia Voting Rights and Equal Rights amendments to reach the necessary threshold of 38 states in the 1970s and 1980s reflects the obstacles that remain even after an amendment emerges from Congress.
Besides reflecting a desire to protect or reassure the subnational units in a federal system, James Madison explained in Federalist No. 49 that the framers designed the difficult amendment procedure to increase the Constitution's legitimacy and to help stabilize politics. While in that essay, Madison criticized Jefferson's proposal for a commission on constitutional revision that two of the three branches could convene to maintain the proper separation of powers, his arguments apply more generally to a defense of a difficult amendment procedure. Madison wrote that "as every appeal to the people would carry the implication of some defect in the government, frequent appeals would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability" (Hamilton, Madison, and Jay 1961, 311). Even if the benefits outweigh the costs of a particular constitutional reform, Madison suggested that too many changes might carry a hidden cost in lessening people's attachment to the regime. Further, Madison worried that frequent constitutional debates would produce very contentious politics. Because a constitution embodies the fundamental rules of the political game, constitutional politics can have very high stakes--witness Canada's attempts at constitutional revision in the 1980s to accommodate Quebec separatism. Madison feared that popular passions rather than reason would dominate such debates. Better to leave the rules of the game largely unchanged, and contest policy choices within those rules, than to regularly dispute the basic framework of politics.
Madison's prediction that, over time, a rarely amended constitution would gain support and even veneration that would help legitimate the government and stabilize U.S. politics seems at least partly borne out. Though it did not prevent secession and civil war, the Constitution has achieved semisacred status in American political culture, with a museum devoted to it in Philadelphia and an original copy at the National Archives in Washington, D.C., a major tourist attraction. When the Committee on the Constitutional System met in the 1980s in anticipation of the Constitution's bicentennial and developed a set of constitutional reform proposals to address the problem of government inefficiency, their recommendations to adopt a more parliamentary-style system received little response. With its 200-plus years in operation without even 20 separate formal changes (the first 10 amendments came as a package, and the Twenty-First canceled the Eighteenth), it is hard to overcome the "if it ain't broke, don't fix it" mentality. Even the election of a president who lost the popular vote in 2000 did not lead to a viable constitutional amendment to abolish the Electoral College. (1)
Regarding Madison's concern about exciting political passions and delegitimating government through constitutional change, allowing naturalized citizens to run for president would not alter any of the basic structures of government. All the powers of the president would remain exactly the same, and in that sense, this proposal would have less political impact than changes such as the Twenty-second Amendment, which limited the president to two terms. It would echo several amendments that broadened suffrage, in this case removing a qualification for officeholding rather than voting. It also would potentially broaden voters' choices for the presidency. Americans already elect naturalized citizens to offices such as governor or Congress, and presidents appoint them to cabinet and executive office positions (e.g., Madeleine Albright, Henry Kissinger, Elaine Chao, Zbigniew Brzezinski), where they stand in the line of succession to the presidency. Even though this would seem to be a relatively minor change, consonant with the general democratizing trend of American political culture over two centuries, such a constitutional revision proposal likely would generate...
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