Is the Right of Foreign-born Adoptees to be President an Appropriate
Subject for a Constitutional Amendment?

by John Yinger⁽¹⁾
Revised Version, August 13, 1999

Introduction

According to the United States Constitution, only “native born citizens” are eligible to be President. This clause implies that people who are born in another country and adopted by Americans as babies or small children cannot run for President — even in their dreams. The most obvious, and perhaps the only way to eliminate this unequal treatment of foreign-born adoptees is to amend the Constitution. Is this 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.”⁽²⁾ Five of its guidelines refer to the substance of amendments; three others refer to the process by which amendments should be enacted. This commentary applies each of the five guidelines on substance to an amendment that allows foreign-born adoptees to be President.

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.

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 abridge the rights of any citizen. Indeed, 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.” A similar expansion of rights has appeared in legislation, such as the civil rights acts of the 1960s. An amendment to provide full American citizenship for foreign-born adoptees would be another step down this long and honorable path toward equal rights for all.

The right to run for President is obviously not as important to a person’s daily life as the right to free speech, the right to worship as one chooses, the right to vote, the right to use public accommodations, or the right to be treated equally in the labor and housing markets. Nevertheless, this right has enormous symbolic power and could significantly affect the lives of people who have no interest in running for President.

One could say that running for President is the ultimate symbol of equal opportunity. Regardless of their 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 most powerful and prestigious job in the country. Unfortunately, however, this equal-opportunity principle does not apply to foreign-born adoptees. The language in the Constitution was not intended to differentiate between children who grow up going to the same American schools, but that is exactly what it does. Parents of foreign-born adoptees cannot tell their children that they could grow up to be President.⁽³⁾

Precisely because the right to run for President is such a powerful symbol, the denial of this right could have a significant impact on foreign-born adoptees. Imagine a high school civics class that is conducting a mock presidential election. Should the teacher tell foreign-born adoptees in the class that they are not allowed to participate in the mock election as they could not participate in a real one? Or should the teacher simply point out that their participation in class would not carry over if the election were real? Can there be any doubt that this situation will make foreign-born adoptees feel like second-class citizens? Denying foreign-born adoptees the right to run for President is a clear assault on the principle of equal opportunity. Eliminating this unequal treatment is thus an abiding contribution to a principle that is at the heart of the American democracy.

The need to establish equal rights for all citizens, including the right to run for office, was recognized by the Founding Fathers. During a debate on citizenship requirements at the Constitutional Convention, Alexander 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.”⁽⁴⁾ James Madison agreed with Hamilton. “He wished to invite foreigners of merit & republican principles among us.”⁽⁵⁾

During the last decade, about 100,000 foreign-born children have been adopted by American citizens. Because the United States is so wealthy by world standards and because adoption is now such an accepted way of building a family, this country will undoubtedly continue to become the home for many children who are born overseas. As a result, providing full American citizenship for foreign-born adoptees will expand the rights of hundreds of thousands, and eventually perhaps even millions, of people — and make a profound contribution to the principle of equal opportunity. This amendment is not a response to a current political problem, but an attempt to provide equal rights to a large — and growing — segment of the U.S. population.

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.⁽⁶⁾ 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.⁽⁷⁾

With some editing, this eloquent statement can be expanded to include the case of foreign-born adoptees.

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, where their children may be born, or build their families by adopting orphans born in a foreign country. All of these people should retain their full rights as American citizens, along with the full rights of their children. One can perceive no sound reason for shutting off aspiration to the Presidency for American children born overseas, whether born to or adopted by United States citizens.

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 foreign-born adoptees 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. Is this one of those cases?

Some people have argued that foreign-born adoptees are already “natural born citizens” because they receive a “certificate of citizenship” instead of the standard “certificate of naturalization.” Others might think that the Immigration and Naturalization Service could simply declare foreign-born adoptees to be “natural born citizens.” In fact, however, the distinction between these two certificates is intended to differentiate between people who become naturalized at the instigation of their parents and those who become naturalized by their own choice — not to differentiate between naturalization and some other process. In fact, the Immigration and Naturalization Service, a creation of Congress, is not empowered to confer citizenship through any process other than “naturalization,” and it certainly does not have the authority to interpret the “natural born citizen” expression in the Constitution.

Still others have argued that Congress has the right to define “natural born citizen” any way it wants, so this problem of unequal rights could be solved through legislation, instead of through the more drastic route of a constitutional amendment. Indeed, on August 4, 1999, “Adopted Orphans Citizenship Act” was introduced in the U.S. Senate, sponsored by eighteen Senators.⁽⁸⁾ This bill can be seen as an effort to make foreign-born adoptees “natural born citizens.” The bill would work by making U.S. citizenship automatic upon the finalization of adoption. Some people, presumably including its sponsors, interpret this legislation as a way to give foreign-born adoptees full American citizenship, that is, to make them “natural born citizens” who are eligible to be President.

This legislation is undoubtedly a big step in the right direction, and I strongly support its passage. However, the argument that this legislation would eliminate the second-class citizenship of foreign-born adoptees encounters some serious obstacles. Perhaps the most important obstacle is that the text of the bill neither contains the expression “natural born” nor mentions presidential eligibility. Instead, the idea is that a bureaucratic procedure to make citizenship status automatic is somehow equivalent to “having a specified status or character by birth,” which is the dictionary definition of “natural-born.”⁽⁹⁾ However, regardless of whether the procedure is automatic or not, it is the procedure, not the child’s circumstances at birth that determine his or her citizenship!

Suppose, however, that this legislation is passed, hopefully with the addition of an explicit reference to “natural born” citizen status. Would it be upheld by the U.S. Supreme Court as a way to make foreign-born adoptees eligible to be President? Of course, no one except the Supreme Court can provide a definitive answer to this question, but the Supreme Court would not weigh in until the law were challenged. In the meantime, the available evidence suggests that the Supreme Court could uphold this law, but might not.

It seems to me that the Supreme Court could uphold this law through one of two routes.⁽¹⁰⁾ The first route is to simply accept the assertion that a person with “automatic” citizenship meets the Constitutional definition of a “natural born” citizen. This type of constitutional interpretation normally would follow some evidence concerning the intentions of the Founders. Such an approach is not feasible in this case, however, because the category of people involved, namely foreign-born adoptees, was unheard of in the Founders’ day. Thus, the Supreme Court would have to find that bringing foreign-born adoptees under the “natural born citizen” umbrella was somehow in the spirit of Founders’ intentions, even if this step was literally beyond their wildest imagination.

According to Charles Gordon, there is some reason to believe that this approach might work for another category of citizens, namely people born overseas to American parents.⁽¹¹⁾ In particular, the term “natural born citizen” in the Constitution draws on a long history in British common law. For example, a law passed in Britain in 1677 law says that “natural born” citizens include people born overseas to British citizens.⁽¹²⁾ This usage was undoubtedly known to John Jay, who apparently suggested the “natural born citizen” wording⁽¹³⁾ and who was the father of children born overseas while he was serving as a diplomat.⁽¹⁴⁾ This wording also appears in the Naturalization Act of 1790, which was passed by the first Congress, a Congress dominated by the Founding Fathers. This act declared that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens; Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident of the United States.”⁽¹⁵⁾ This usage suggests that the Founding Fathers used the expression “natural born” so that children born overseas to American citizens would not have to be naturalized.⁽¹⁶⁾ This interpretation was clearly restated by a Cabinet Committee in 1940, which declared that “persons who acquired United States citizenship at birth abroad had never been regarded as naturalized.”⁽¹⁷⁾

Unfortunately, however, none of these legal precedents have anything to do with foreign-born adoptees. Thus, there might be one category of people not born in the United States that the Supreme Court would accept as “natural born citizens,” namely people born overseas to American parents, but there is no legal precedent, and obviously nothing in the Founding Father’s deliberations, to suggest that the Supreme Court would accept any other category, let alone foreign-born adoptees. The best hint I have found on this point comes from a statement made in the U.S. Senate in 1800 by Charles Pinckney, who was the first delegate at the Constitutional Convention to raise the issue of presidential qualifications. In this statement, Pinckney says that the “natural born citizen clause” was designed “to insure … attachment to the country.”⁽¹⁸⁾ Foreign-born adoptees, who grow up surrounded by and participating in American institutions surely meet this criterion. If the Supreme Court accepts this statement as evidence of the Founding Fathers’ intention, it might agree that foreign-born adoptees can be “natural born.”

Further support for this possibility can be found in an article written almost 100 years ago by Alexander Porter Morse.⁽¹⁹⁾ He says that by drawing on the “natural born” term so well known from English law, the Founders were recognizing “the law of hereditary, rather than territorial allegiance.”⁽²⁰⁾ In other words, they were drawing on the English legal tradition, which protected allegiance to the king by conferring citizenship on all children “whose fathers were natural-born subjects,” regardless of where the children were born.⁽²¹⁾ Thus, according to Morse, “the framers thought it wise, in view of the probable influx of European immigration, to provide that the President should at least be the child of citizens owing allegiance to the United States at the time of his birth.”⁽²²⁾ He goes on to say that both the Founders and the first Congress, which passed the 1790 naturalization act, defined a “natural born” citizen as one “whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.”⁽²³⁾ This line of argument, which is perfectly consistent with the statement made in 1800 by Charles Pinckney, obviously brings foreign-born adoptees under the “natural born” citizen umbrella; after all, they clearly are the children of people who owe their allegiance to the United States.

The second route by which the Supreme Court could uphold this legislation is to say (1) that Congress has the power to define “natural born” based on the provision in Article I, Section 8 of the Constitution that enables Congress “To establish an uniform Rule of Naturalization”⁽²⁴⁾ and (2) that defining foreign-born adoptees as “natural born citizens” is a legitimate application of this power. This route also is problematical.

First, in common usage, a person who is a “natural born” citizen would appear to be someone who does not have to be naturalized; indeed, the dictionary definition of “natural-born” is, as noted earlier, “having a specified status or character by birth.” In addition, the dictionary definition of “naturalize” is to “admit (an alien) to the rights and status of citizenship.” These definitions appear to rule out the possibility of overlap between the categories “natural born” and “naturalized.” Moreover, as noted earlier, the Naturalization Act of 1790 draws on British common law, which treats people born overseas to British parents as “natural born” British citizens, and therefore reinforces the view that, from the Founder’s point of view, “natural born” and “naturalized” are mutually exclusive.

In the 1790 Act, however, Congress also appears to use its power to regulate naturalization as a way to clarify the “natural born” citizen category. In fact, the caption of the 1790 Act, “to establish a uniform rule of naturalization,” is taken straight from the naturalization clause of the Constitution. Thus, a literal interpretation of this action by the first Congress is that the Founding Fathers, who dominated this Congress, believed that the right to define “natural born” was conferred by the “naturalization” clause. This interpretation is entirely consistent with a statement made to the Constitutional Convention by Alexander Hamilton on August 13, 1787. “He moved that the section [on eligibility for Congress] be altered so as to require merely citizenship & inhabitancy. The right of determining the rule of naturalization will then leave a discretion to the Legislature on this subject which will answer every purpose.”⁽²⁵⁾ Unfortunately, however, the term “natural born” does not appear in any naturalization legislation passed since 1790.⁽²⁶⁾

Ultimately, the problem is that the Constitution does not indicate whether people can be declared “natural born” through the naturalization process. The result, according to one scholar, is that “there may still be room for qualification as a natural born citizen even thought the process of acquisition at birth abroad was characterized as naturalization.”⁽²⁷⁾

A strict, some might say strained, reading of the dictionary definitions provides some support for this interpretation. The dictionary defines “native-born” as “belonging to or associated with a particular place (as a country) by birth therein” and an alternative phrasing of the definition of “naturalize” is “to confer the rights and privileges of a native subject or citizen” (emphasis added). According to these definitions, “natural-born” is a broader category than “native-born,” and people who are not “native-born,” including people born overseas to American parents, must be “naturalized.”

Although the U.S. Supreme court has never ruled directly on the “natural born citizen” clause, it has issued several opinions in naturalization cases that refer to it. The language in these cases always comes down on the side of the view that “natural born” and “naturalized” are mutually exclusive categories. The clearest language comes from Luria v. United States. “Under our Constitution,” the Supreme Court declared, “a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.”⁽²⁸⁾ As a result, the Supreme Court would have to amend its own language to find that “naturalized” citizens can be declared “natural born.”

As noted earlier, a finding that Congress has to power to declare that some categories of “naturalized” citizens are also “natural born” would be only the first step in providing full citizenship for foreign-born adoptees. The required second step is a finding that foreign-born adoptees are one of the categories to which this power applies. On this point there is very little to go on. After all, it is inconceivable that the Founding Fathers had foreign-born adoptees in mind when they wrote the “natural born citizen” clause. Moreover, the only category of citizens that might be declared both “naturalized” and “natural born” under existing precedents consists of people born overseas to American citizens. Even in this case, however, the precedents are unclear, and the Supreme Court might find that people in this category are “natural born” and not “naturalized.” As pointed out earlier, this is the opinion expressed by a Cabinet Committee in 1940. If so, then foreign-born adoptees would be the only category claiming to be both “naturalized” and “natural born.”

An illustration of the uncertainty surrounding the “natural born citizen” clause can be found in the debate about whether it covers people born overseas to American parents. After his detailed review of this question, Gordon strongly endorses the interpretation that a person born abroad to U.S. citizens is “natural born,” but adds:

I must concede that the picture is clouded by elements of doubt. These doubts will unquestionably persist until they are eliminated by a constitutional amendment, a definitive judicial decision, or the election and accession of a President who was ‘natural-born’ outside of the United States…. [I]t may eventually be necessary to amend the Constitution in order to remove the ambiguity.⁽²⁹⁾

The existence of this much ambiguity concerning a question that has explicitly appeared in British law since 1677 and in American law since 1790, certainly raises questions about the possibility of a legislative solution to a related but intrinsically more difficult question that has never been addressed by law before.

Despite all this uncertainty, two additional points suggest that the Supreme Court might uphold legislation that extends presidential eligibility to foreign-born adoptees. First, on the basis of the naturalization clause in the Constitution, the Supreme Court has traditionally given Congress considerable leeway on naturalization issues.⁽³⁰⁾ Second, precisely because the adoption of foreign-born orphans was unheard of in the Founders’ day, the Supreme Court might give Congress considerable leeway in accounting for this new phenomenon.

A final practical argument for turning to a constitutional amendment is that any legislative attempt to solve the problem would not be resolved by the Supreme Court at least until a foreign-born adoptee actually decided to run for President. At this point, the principle involved, equal rights for foreign-born adoptees, would be tangled with the personality and politics of the person whose right to run for President was being challenged.⁽³¹⁾ For example, a Congress dominated by one political party might decide to eliminate the candidacy of a foreign-born adoptee of the other party by rescinding presidential eligibility for this class — a move that could be challenged by the candidate.⁽³²⁾ The best way to avoid this type of entanglement and to highlight the fundamental principle involved, namely the right of foreign-born adoptees to have full citizenship rights, is to resolve this issue now through a constitutional amendment.

Overall, therefore, legislation to give presidential eligibility to foreign-born adoptees might eventually be upheld by the Supreme Court, but such a decision is not guaranteed and it might be a long time in coming. Thus, the only way to ensure that foreign-born adoptees have full citizenship rights is to amend the Constitution.

Guideline 4:

Constitutional amendments should not be adopted when they would damage the cohesiveness of constitutional doctrine as a whole.

As I pointed out earlier, an amendment to make foreign-born adoptees 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 contributed to one key constitutional doctrine — and damage none.

Moreover, such an amendment would be perfectly consistent with the Founding Fathers’ objectives in writing the presidential eligibility clause. The available evidence indicates that the Founder’s main objective was to prevent pernicious foreign influence on the President.⁽³³⁾ On July 25, 1787, early in the debate that would lead up to this clause, James Madison argued that “it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governm^t a man attached to their respective politics and interests.⁽³⁴⁾ A few days later, on August 13, Elbridge Gerry “wished that in future the eligibility might be confined to Natives. Foreign powers would intermeddle in our affairs, and spare no expense to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils in order to be made instruments for their purposes.⁽³⁵⁾

Presidential eligibility for foreign-born adoptees is perfectly consistent with this objective. No one could argue that a foreign-born adoptee, who after all grows up surrounded by American institutions and guided by American citizens, threatens the United States with foreign influence. Indeed, the idea that innocent orphans represent the foreign “instrument” in Gerry’s August 13 statement to the Convention is ludicrous on its face.

The Founding Fathers also may have included the “natural born citizen” expression to grant full citizenship to people born overseas to American citizens. This possibility is consistent with the notion that American parents build families under many different circumstances and that these circumstances should not influence whether their children are eligible to be President. Although the Founding Fathers did not contemplate the possibility of adopting foreign orphans, their apparent desire to confer full American citizenship, including presidential eligibility, on the children of American parents who give birth overseas is entirely consistent with a desire to confer full American citizenship on the children of American parents who turn to the adoption of foreign orphan as a way to build their family.

Guideline 5:

Constitutional amendments should embody enforceable, and not purely aspirational, guidelines.

In this case, the enforcement issue is straightforward; after all, the amendment 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 foreign-born adoptee who meets the age and residency requirements and who wants to run for President to do so!

Conclusion

Overall, therefore, an amendment to provide full American citizenship to foreign-born adoptees clearly meets all five of these guidelines. It addresses a matter of abiding importance, it makes our system of government more politically responsive, it overcomes severe practical obstacles to a legislative solution, it reinforces the cohesiveness of constitutional doctrine as a whole, and it is easy to enforce. Because a legislative solution to this problem cannot be ruled out, the case for a constitutional amendment is probably weakest on the third guideline. Even in this case, however, the uncertainty surrounding a legislative approach is so great that a constitutional amendment is clearly a preferable approach.

A sixth guideline proposed by Citizens for the Constitution, while procedural, is also worth mentioning.⁽³⁶⁾ This guideline says that “Proponents of constitutional amendments should attempt to think through and articulate the consequences of their proposals, including the ways in which the amendments would interact with other constitution provisions and principles.” In effect, this commentary is designed to follow this guideline. I have shown that an amendment to allow foreign-born adoptees to run for President, would extend the principle of equal rights that is so central to the Constitution, the Bill of Rights, and the Fourteenth Amendment and would eliminate the possibility that foreign-born adoptees can be considered, or consider themselves to be, second-class citizens.
___________________________

1. John Yinger is Professor of Economics and Public Administration at the Maxwell School of Citizenship and Public Affairs, Syracuse University, and the father of two adoptive children, one of whom, even when old enough, will not be eligible to be President.
2. “http://www.citcon.org.”
3. For a detailed analysis of the origins and interpretation this language, see John Yinger “The Origins and Interpretation of the Presidential Eligibility Clause: Why Did the Founding Fathers Want the President To Be a ‘Natural Born’ Citizen and What Does this Mean for Foreign-born Adoptees?,” “http://faculty.maxwell.syr.edu/jyinger/facfa.html.”
4. James Madison, Notes of Debates in the Federal Convention of 1878 Reported by James Madison (Athens, OH: Ohio University Press, 1966), p. 438.
5. Madison, op,. cit., p. 438.
6. This issue was particularly compelling at the time because a candidate for the Republican nomination for President, George Romney, was born overseas to American parents.
7. Charles Gordon, “Who Can Be President of the United States: The Unresolved Enigma,” Maryland Law Review, Vol. 28, No. 1 (Winter 1968), p. 32.
8. The text can be found on the Library of Congress web site at “http://thomas.loc.gov/cgi-bin/query/D?r106:1:./temp/~r106CCcpV9:e70333:”.
9. This definition, and others in this commentary, are from Webster’s Third New International Dictionary of the American Language, unabridged edition (Springfield, MA: Merriam-Webster, Inc, 1981). Note that the dictionary uses a hyphen in the adjective “natural-born,” whereas the Constitution does not.
10. I am not a lawyer or a Constitutional scholar, but so far nobody with those credentials has weighed in on these issues. I am grateful to Professor William Banks of the Syracuse University Law School, who does have these credentials, for comments on an earlier draft, but he should not be held responsible for any errors in my legal analysis.
11. See Gordon, op. cit.
12. Gordon, op. cit., p. 7.
13. For a discussion of the origins of this wording, see Gordon, op. cit., or Yinger, op. cit.
14. Gordon, op. cit., p. 8.
15. Gordon, op. cit., pp. 8-9.
16. For a more complete discussion of this issue, including reference to people who dispute this interpretation, see Gordon, op. cit.
17. Gordon, op. cit, p. 15.
18. The Records of the Federal Convention of 1787 (Farrand’s Records), CCLXXXVIII, Charles Pinckney in the United States Senate, March 28, 1800, p. 387. “http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:10:./temp/~ammem_jwJ2”
19. Alexander Porter Morse, “Natural-Born-Citizen of the United States: Eligibility for the Office of President,” Albany Law Journal, vol.66 (1904), pp. 99-100.
20. Morse, op. cit, p. 99. Emphasis in the original.
21. Morse, op. cit., p. 99.
22. Morse, op.cit., p. 99. Gordon, op. cit, p. 9 writes that Morse makes this claim “without any supporting citation.” I think this is a bit harsh. Morse does not cite a statement by one of the Founders, of course, but he does (as does Gordon himself) cite evidence from English law and from the Naturalization Act of 1790.
23. Morse, op. cit., p. 99.
24. If the sponsors of the Adopted Orphans Citizenship Act are counting on this argument to convince the Supreme Court, one would think that this legislation would state explicitly that people with citizenship retroactive to birth are to be considered “natural born citizens”!
25. Madison, op. cit., p. 438.
26. Further discussion of this issue can be found in Gordon, op. cit., p. 9 According to Gordon, “It is possible that a person who was regarded in 1790 as a naturalized citizen could also be deemed natural born, if he acquired his United States citizenship at birth. Under the direct mandate of the 1790 act, such a person was given the rights of a natural born citizen, whether or not one believes that his citizenship resulted from naturalization. However, such an hypothesis might still leave open the question of whether or not Congress can enlarge or modify the categories of eligible citizens encompassed within the presidential qualification clause.”
27. Gordon, op. cit., p. 15.
28. Luria v. United States 231 U.S. 9, 22 (1913). “The naturalized citizen’s ineligibility for the Presidency is [also] mentioned in Schneider v. Rush, 377 U.S. 163, 165, 177 (1914); Knauer v. United States, 328 U.S. 654, 658 (1946); [and] Baumgartner v. United States, 372 U.S. 655, 673 (1944).” Gorden, op. cit., p. 1, footnote 1.
29. Gordon, op. cit., p. 32.
30. See Gordon, op. cit.
31. India provides an illustration of the difficulties that can arise in this type of situation. The Indian constitution does not require the Prime Minister to be a natural-born citizen, and a foreign-born person, Sonia Gandhi, is running for prime minister. Because they do not like Ms. Gandhi’s personality or politics, many people in India are now calling for a constitutional amendment that would eligibility to the office of Prime Minister to people born outside of India. This is obviously the wrong reason for amending a constitution. See Celia W. Dugger, “Gandhi’s Choices: Be Indian and Lead Party,” The New York Times, May 25, 1999, and Celia W. Dugger, “Sonia Gandhi Reclaims Party and Its Members’ Devotion,” The New York Times, May 26, 1999.
32. A law granting presidential eligibility to foreign-born adoptees might also be challenged in court. However, it is not clear who would have standing to challenge this law, which after all does not personally injure anyone. Even if it were never challenged, the uncertainty surrounding it might undermine the effectiveness of a President elected under its umbrella.
33. For a detailed analysis of the Founders’ intentions in writing this clause, see Yinger, op. cit.
34. James Madison, Notes of Debates in the Federal Convention of 1878 Reported by James Madison (Athens, OH: Ohio University Press, 1966), p. 364. Many other editions of these notes are available; they can be cross-referenced with this edition by date.
35. Madison, op. cit., p. 437.
36. The seventh and eighth guidelines involve procedures to ensure full and fair debate and to implement a nonextendable deadline for ratification. Neither of these guidelines has any link to the substance of an amendment.