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96–813 PDF 2004

S. HRG. 108–694

MAXIMIZING VOTER CHOICE: OPENING THE

PRESIDENCY TO NATURALIZED AMERICANS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

OCTOBER 5, 2004

Serial No. J–108–98

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 25

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 29

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 42

Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 45

WITNESSES 

Amar, Akhil Reed, Southmayd Professor of Law and Political Science, Yale 

Law School, New Haven, Connecticut ................................................................ 16

Conyers, Hon. John, a Representative in Congress from the State of Michigan ......................................................................................................................... 5

Frank, Hon. Barney, a Representative in Congress from the State of Massachusetts ................................................................................................................. 8

Issa, Hon. Darrell, a Representative in Congress from the State of California . 13

Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma ......................... 4

Rohrabacher, Hon. Dana, a Representative in Congress from the State of 

California .............................................................................................................. 10

Snyder, Hon. Vic, a Representative in Congress from the State of Arkansas .... 6

Spalding, Matthew, Director, B. Kenneth Simon Center of American Studies, 

The Heritage Foundation, Washington, D.C. .................................................... 18

Yinger, John, Trustee Professor of Public Administration and Economics, 

Maxwell School of Citizenship and Public Affairs, Syracuse University, 

Syracuse, New York ............................................................................................. 20

SUBMISSIONS FOR THE RECORD 

Amar, Akhil Reed, Southmayd Professor of Law and Political Science, Yale 

Law School, New Haven, Connecticut ................................................................ 36

Conyers, Hon. John, a Representative in Congress from the State of Michigan ......................................................................................................................... 40

Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma ......................... 48

Rohrabacher, Hon. Dana, a Representative in Congress from the State of 

California .............................................................................................................. 78

People For the American Way Foundation, Washington, D.C., report ............... 51

Spalding, Matthew, Director, B. Kenneth Simon Center of American Studies, 

The Heritage Foundation, Washington, D.C. .................................................... 86

Yinger, John, Trustee Professor of Public Administration and Economics, 

Maxwell School of Citizenship and Public Affairs, Syracuse University, 

Syracuse, New York ............................................................................................. 92

(1)

MAXIMIZING VOTER CHOICE: OPENING THE 

PRESIDENCY TO NATURALIZED AMERICANS 

TUESDAY, OCTOBER 5, 2004

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 10:08 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Craig, Feinstein, and Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. We are happy to welcome you to this hearing. 

We are grateful to have all four of you here, and we hope the others will be here as soon as they can. Here comes John. 

Good morning and welcome to the Judiciary Committee’s hearing 

entitled ‘‘Maximizing Voter Choice: Opening the Presidency to Naturalized Citizens.’’

A few days ago, we celebrated Citizenship Day. The purpose of 

this holiday is to honor those people who have become United 

States citizens. 

Citizenship, whether by birth or naturalization, is the cornerstone of this Nation’s values and ideals. Each year, hundreds of 

thousands of immigrants complete the naturalization application 

process to become citizens. In 1996 alone, there were over one million new citizens naturalized in America. And according to the Department of Homeland Security, approximately 20 million individuals have become naturalized citizens of this country since 1907. 

The United States is known as the land of opportunity, but there 

is one opportunity that these American citizens will never be able 

to attain under our current law. They can never hold the office of 

the President. Article II, Section 1, Clause 5 of our Constitution, 

which sets forth the eligibility criteria for the Office of the President requires the President to be a natural born citizen. 

What is a natural born citizen? Clearly, someone born within the 

United States or one of its territories is a natural born citizen. But 

a child who is adopted from a foreign country to American parents 

in the United States is not eligible for the Presidency. Now, that 

does not seem fair or right to me. 

Similarly, it is unclear whether a child born to a U.S. serviceman 

overseas would be eligible. Most academics believe that these individuals would be eligible for the Presidency, but I note that some 

academic scholars disagree. A recent article in Green Bag, a jourVerDate 0ct 09 2002 13:15 Nov 19, 2004 Jkt 096683 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96813.TXT SJUD4 PsN: CMORC
2

nal that specializes in constitutional law, quotes an 1898 Supreme 

Court case that the natural born citizen clause ‘‘was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred 

citizenship to the place of birth.’’

Now, I have proposed—and Congressman Rohrabacher and others, we have proposed a constitutional amendment, S.J. Res. 15, to 

address this issue. The Equal Opportunity to Govern Amendment 

would amend the Constitution to permit any person who has been 

a United States citizen for at least 20 years to be eligible for the 

Presidency. 

As Boise State University Professor John Freemuth explained, 

the natural born citizenship requirement is something of an artifact from another time. It is time for us—the elected representatives of this Nation of immigrants, by the way—to begin the process that can result in removing this artificial, outdated, unnecessary, and unfair barrier. While there was scant debate on this provision during the Constitutional Convention, it is apparent that the 

decision to include the natural born citizen requirement in our 

Constitution was driven largely by the concern over 200 years ago 

that a European monarch might be imported to rule the United 

States. And I do believe that some of them wanted to keep Alexander Hamilton from being President as well. 

Now, this restriction has become an anachronism that is decidedly un--American. Consistent with our democratic form of government, our citizens should have every opportunity to choose their 

leaders free of unreasonablelimitations. Indeed, no similar restriction bars any other critical members of the government from holding office, including the Senate, the House of Representatives, the 

United States Supreme Court, or the President’s most trusted Cabinet officials. 

The history of the United States is replete with scores of great 

and patriotic Americans whose dedication to this country is beyond 

reproach, but who happen to have been born outside of our borders. 

Just some that we could talk about include former Secretaries of 

State Henry Kissinger and Madeleine Albright, the current Secretary of Labor Elaine L. Chao, and former Secretary of Housing 

and Urban Development Mel Martinez, who is now running for the 

Senate seat in Florida. As our Constitution reads today, none of 

these well-qualified, patriotic United States citizens could be lawful 

candidates for President. 

As Congressman David Dreier has stated, the Constitution limits 

us from having the opportunity of choosing someone who is a bold, 

dynamic, dedicated leader for our country. 

Michigan Governor Jennifer Granholm, who was born in Canada, 

also supports this amendment. She explained: You cannot choose 

where you are born, but you can choose where you live and where 

you swear your allegiance. And I think if she has 20 years of living 

in this country, she ought to have the privilege of running for 

President if she so chooses. 

This is also true for the more than 700 immigrant recipients of 

the Congressional Medal of Honor—our Nation’s highest decoration 

for valor—who risked their lives defending the freedoms and liberties of this Nation, many of whom gave their lives. But no matter 

3

how great their sacrifice, leadership, or love for our country, they 

remain ineligible to be a candidate for President. Now, this amendment would remove this unfounded inequity. 

Any proposal to amend the Constitution cannot be taken lightly. 

But I believe that amending the Constitution in this instance 

would facilitate the democratic process by giving the American voters more choice in determining who should be elected President of 

the United States. As Professor John Yoo, from Boalt Hall at the 

University of California at Berkeley, told the Los Angeles Times, 

making naturalized citizens eligible to become President would fall 

within the tradition of amending the Constitution to expand democracy, whether it be expanding the franchise or making elected representatives more directly elected. 

Now, our proposal is already garnering bipartisan support. Several Senators have publicly expressed support for a constitutional 

amendment in statements made to the media over the last several 

months. In addition, we were fortunate to have with us today a 

panel of six very distinguished Members of Congress to discuss various proposals in the Senate and the House that would maximize 

voter choice for the Presidency. I certainly look forward to hearing 

from them and from our academic experts on panel two. 

Let me just say this as someone who got in very late and ran 

for President for a very short period of time, and learned a lot of 

lessons in the process. I have to say that that is not an easy thing 

to do. You have to really, really have an endurance and an ability 

to motivate people to even have a chance. So we are not turning 

over here and saying that we want to make it easy for anybody to 

become President. But we certainly ought to facilitate the opportunity for people who have proven themselves to be good citizens 

to have this opportunity. 

Now, let me just say I am really honored to have all six of you 

here today. You are six very important people who I happen to respect, each and every one of you. We are honored to have before 

us today several distinguished Members of Congress who have introduced legislation on this issue. 

Let me begin by introducing Senator Don Nickles from Oklahoma. He is an original cosponsor with Senators Landrieu and 

Inhofe of S. 2128, the Natural Born Citizen Act. As I am sure he 

will explain in more detail, the bill defines ‘‘natural born citizens’’ 

as including children of U.S. servicemen and adoptees. 

My friend John Conyers, the Ranking Member on the House Judiciary Committee, a friend for a long time, is from Michigan and 

has introduced H.J. Res. 67, which, like S.J. Res. 15, would amend 

the Constitution to permit naturalized citizens of 20 years to hold 

the Presidency. 

Congressman Dana Rohrabacher from California has introduced 

H.J. Res. 104, which is also consistent with the bills introduced by 

Congressman Conyers and myself. 

Congressmen Vic Snyder, Darrell Issa, and Barney Frank have 

introduced H.J. Res. 59, which would amend the Constitution to 

permit naturalized citizens of 35 years to hold the Presidency. 

I welcome each of you here. I really appreciate your willingness 

to consider these issues and to help us articulate why they are important. I understand from the Washington Times yesterday that 

4

House Minority Leader Nancy Pelosi has come out in favor of your 

proposal, and I look forward to hearing these statements and learning more about all of your proposed legislation or amendments to 

the Constitution. 

Let me just again welcome you all, tell you how much I respect 

each and every one of you, and I look forward to hearing you. 

Would there be any objection if we just go from Don Nickles right 

across—is that okay?—rather than worry about anything else? 

Don, we will turn to you then. Senator Nickles. 

STATEMENT OF HON. DON NICKLES, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator NICKLES. Mr.Chairman one, thank you for having this 

hearing and, for my colleagues, it is a pleasure to join with you on 

this very important issue. As you mentioned, I have introduced a 

bill along with Senator Landrieu and Senator Inhofe—a statute, 

not a constitutional amendment, but I compliment those of you 

that have proposed the constitutional amendment. I happen to 

think that we can get the statute passed rather quickly and that 

it will help resolve this issue for many. 

As you know, our Constitution states that ‘‘no person except a 

natural born citizen’’ shall be eligible to seek the Office of President. For many years, legal scholars have debated what the Founders meant by that term, ‘‘natural born citizen.’’ Does it mean only 

children born within the boundaries of the United States? Does it 

include within its scope children born abroad to a U.S. citizen? If 

so, does it include only children born abroad to a U.S. citizen who 

is serving in the military or employed by our Government overseas? Or does it also include a child born abroad to a U.S. citizen 

simply living or working abroad? Could it include a child born 

abroad but adopted by a U.S. citizen? Mr. Chairman, I think it is 

time that we put an end to these speculations. 

I introduced this bill. This defines the term of ‘‘natural born citizen’’ as used in the Constitution as a child born in the United 

States, a child born abroad to a U.S. citizen, and a child born 

abroad and adopted by a U.S. citizen. If passed, this bill would put 

an end to the speculation and clarify who is eligible to run for 

President of our great country. 

It does not go as far as the constitutional proposal, and I am not 

against that. I just think that this is something we can get done 

and that would help solve the problem. It accomplishes it basically 

by defining by statute the term ‘‘natural born.’’

It is clear that a child born within the physical borders of the 

United States and subject to the jurisdiction of the United States 

is eligible to run for President. However, many Americans would 

probably be surprised to learn that a constitutional question remains as to whether a child born abroad to a U.S. citizen serving 

in the military or serving at a Government post are not clearly, indisputably eligible to seek the highest office in our land. Nor is it 

clear whether a child born overseas to a citizen traveling or working abroad is eligible to run for President. There are strong legal 

arguments that say these children are eligible, but it certainly is 

not an inarguable point. The Natural Born Citizen Act will make 

5

it clear that these children would be considered natural born citizens within the meaning of the Constitution. 

In addition to these children of American citizens being able to 

run for President, this bill, my bill, would also define ‘‘natural 

born’’ to include children born abroad and adopted by a U.S. citizen. Such a child would have to be adopted by the age of 18, by 

a U.S. citizen who is otherwise eligible to transmit citizenship to 

a biological child pursuant to an Act of Congress. In other words, 

some citizens are ineligible to transmit citizenship to a biological 

child born abroad because of a failure to meet certain statutory criteria such as having lived in the United States for 5 years, 2 of 

which had to be after the age of 14. We do not want to give any 

special treatment to adopted children over biological children born 

abroad. We just seek to treat biological and adopted children of 

American citizens equally. 

As many of you may recall, we passed the Child Citizenship Act 

of 2000, which provided automatic U.S. citizenship to foreign adopted children. Under this Act, which was signed into law on October 

20, 2000, the minute these children arrive in the United States, 

citizenship attaches automatically. There is no naturalization process that these foreign adopted children have to go through. Once 

they are fully and finally adopted and enter the United States with 

their parents, they are deemed by law to be U.S. citizens. They 

should also be able to be President of the United States. This bill 

would enable us to do that. 

Mr. Chairman, I just ask that the balance of my statement be 

entered into the record. I appreciate your consideration of this legislation. I would hope that at a minimum we could pass this bill 

and open the opportunity for hundreds of thousands of young people, whether they are born abroad and adopted or born abroad to 

U.S. citizens, that they would clearly know that, yes, they too could 

be eligible to be considered and have the opportunity to achieve a 

the highest office in the land. 

I thank you very much for your leadership on this important 

issue, and I thank my colleagues for their patience. 

Chairman HATCH. Thank you, Senator. Your full statement will 

be placed in the record. I understand you have to leave, and we appreciate you coming very much. Thank you. 

[The prepared statement of Senator Nickles appears as a submission for the record.] 

Chairman HATCH. Representative Conyers, welcome over here. 

We have enjoyed a long relationship. 

STATEMENT OF HON. JOHN CONYERS, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF MICHIGAN 

Representative CONYERS. Chairman Hatch, I am honored to be 

with you and my colleagues and the distinguished gentleman from 

Oklahoma. 

I just want to tell you how I came about this. I started attending 

the swearing-in ceremonies of naturalized citizens in the courthouse in Detroit, downtown Detroit. And the enthusiasm and the 

families and the children, they were outside, there were voter registration booths where they could register to become voters right 

after they raised their right hand and were sworn in as naturalized 

6

citizens. And there was a young lady there named Ms. Muntaz Haq 

from India who herself was a naturalized citizen, that got me going 

around the country in these sort of things. 

And then there was another factor that impressed me. It was the 

tremendous Governor of the State of Michigan, who I did not know 

until after she had become Governor that she was actually born in 

Canada. 

And so without too much consultation with all of the distinguished Congressmen at this table, I said this ought to be changed. 

And I think you gave some good reasons why in 1789 they thought 

that this might be preferable, and I do not disagree with that decision in 1789. But, you know, to make a person almost a full citizen 

except for one little tiny thing, and that is, you can never be President. And I presume that means you cannot be Vice President either. 

So I thought that we ought to do something about it, and so I 

wrote this amendment, and without any consultation, I began to 

find that 10 percent of the citizens in Oakland County, right next 

to my own county of Wayne, are people who are naturalized citizens because of the engineering requirements of many of the automobile plants. And so I came over here today to join—I had no idea 

that this was growing as fast as it is, and I think we are onto 

something good. 

Finally, I wanted to point out that we have 30,000 members of 

the armed forces who are naturalized citizens. And so for you and 

our colleague, Senator Craig, I want to thank you for holding this 

hearing. I also wanted to get a picture of you and me at your last 

hearing as Chairman so that it will be celebrated in two different 

ways by different people in Detroit, depending on how they feel 

about it. 

Chairman HATCH. I fully understand. 

Representative CONYERS. But I want them to know that you and 

I have worked together on more issues on the Judiciary Committee 

than most people realize. And I appreciate that so much, and I 

want to thank you for your tenure here as Chairman. 

Chairman HATCH. Well, thank you, Congressman Conyers. I certainly appreciate our relationship. I respect you greatly, admire 

you, and we have worked on a lot of issues together over the years. 

So I appreciate those kind remarks. 

[The prepared statement of Representative Conyers appears as a 

submission for the record.] 

Chairman HATCH. Representative Snyder, we will turn to you. 

We appreciate having you here. 

STATEMENT OF HON. VIC SNYDER, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF ARKANSAS 

Representative SNYDER. Thank you, Senator Hatch, and thank 

you for the invitation to be with you today. I was in church this 

past Sunday, the church at which my wife is the senior pastor, and 

I was approached by a woman in the stairway. She said, ‘‘I want 

to tell you a story about my son, Alexander.’’ This is her son, Alexander Clurgett. He was adopted a few years ago from Russia. And 

the story she told me is that just recently she had overheard Alexander talking with one of his friends from his school in Arkansas. 

7

And Alexander asked him, ‘‘Where were you born?’’ And he said, 

‘‘I was born in Little Rock.’’ And Alexander came back and said, 

‘‘That means you can run for President.’’

These kids are aware of the differences between them and other 

kids, and I think it is very important that the work you are doing 

here today, Senator, calls attention to this very important issue. 

I assume that I was invited here today because our bill has a little different perspective than yours does, Senator. It has a 35-year 

requirement for citizenship, and yours has a 20-year requirement. 

Let me just run through quickly three reasons why, when I had the 

bill drafted, I ended on the 35 years. 

First, it is just this, I guess, legal philosophy of the smallest 

change necessary to the Constitution to effect the change. The constitutional requirement is that a person be 35 years old to be President, I suspect because of the age, maturity, the life experience of 

a 35-year-old as opposed to a 21- or a 26-year-old. And so I chose 

35 years. If someone like Alexander is adopted when he is 3 years 

old, then that would mean that he would have to be 38. Or if someone is adopted when they are 1 month old, then they would have 

to be 35 years and 1 month. But 35 years of citizenship. 

Second is what I call the Manchurian candidate argument. My 

guess is that you have heard this one, too, Senator, that somehow 

someone is going to at age 40 become a U.S. citizen, they are going 

to come over here committed to becoming President of the United 

States, and then somehow unleash the forces of our military 

against us. I have heard people come to me personally and espouse 

those arguments. Well, by having the length of time be 35 years, 

obviously what we are focusing on is youngsters, is kids at a young 

age. 

And, third, to me this is about children. A few years ago, I was 

doing some legal research on a law review article I wrote on the 

congressional oath of office. It was probably read by tens of people 

throughout the country, but, anyway—

Chairman HATCH. I understand that. [Laughter.] 

Representative SNYDER. I ran into some discussion about this 

amendment. I have some other pictures I want to show you. This 

is my niece, Sara Doty, at age 10 months. She has a pretty impressive hairdo at age 10 months. 

Chairman HATCH. She is beautiful. 

Representative SNYDER. She was adopted at around age 10 

months. This is her much more recent photo. We think her hair is 

lovely in both photos. But it brought home to me, the reading that 

I did, that my niece, who has been raised here—the only life she 

knows is as an American—is not eligible to be President. 

Some of these other children, this is Luke and Adam who were 

adopted from China. Their parents are Lisa Farrell and Jimmy 

Jackson back home. And as Lisa said to us in an e-mail, she said, 

‘‘How can you not look at these boys and not want them to be 

President? It is the dream of a parent in America.’’

And then the last one is a young girl, Miriam. Her parents are 

Cynthia Ross and Dr. Martin Howard Jensen back home in Little 

Rock, and just riding a merry-go-round. 

Well, to me this amendment and what you are trying to do and 

what we are trying to do is to talk about the dreams of kids. And 

8

so to me it comes down to two reasons. You very appropriately 

identified this hearing today as maximizing voter choice, and so it 

increases the pool of prospective candidates. But it also maximizes 

the dreams for all Americans, including these children. And I think 

that is very, very important. 

Just a couple of detail points. First, Senator Nickles was talking 

about the clarification of ‘‘natural born.’’ One specific issue that I 

think would come from getting this resolved, when a Presidential 

nominee selects their Vice President, it is perceived as being their 

first big decision and they are judged on it. And I fear that if we 

have children who perhaps, asSenator Nickles was talking about, 

are born to, say, missionaries overseas, or Congresswoman Diana 

DeGette, born on a military base to U.S. citizens, my guess is there 

would be no question about her. But you could foresee a scenario 

in which a nominee would say, ‘‘I cannot have my first big decision, 

selecting my Vice Presidential nominee, being judged as, well, 

maybe they are not quite legally eligible.’’ And as you know, a 

whole lot of our Vice Presidents have gone on to become President. 

Finally, with regard to the 20 versus 35 years, I certainly will 

be supportive of a 20-year amendment if that is what comes to the 

floor of the House and what comes out of this Congress. There are 

some issues. Does that get into discussion about personalities? I 

personally think both Governor Granholm and Governor 

Schwarzenegger ought to be eligible to be President. Some people 

may decide that it would be better to have a longer period of time 

so we eliminate individuals. But I applaud you for your efforts here 

today, and I appreciate the opportunity to testify. 

Chairman HATCH. Well, thank you, Vic. We appreciate you coming over here. Of course, if you have to leave, any of you, we fully 

understand. 

You know, I guess the President could pick a non-native born citizen for Vice President. And what happens if that President passes 

on for some reason or other? See, these are problems that we really 

do need to solve. 

Representative SNYDER. That is right. And you may recall from 

our young days, there were previous discussions about—and both 

of them were resolved—you know, Senator Goldwater was born in 

Arizona at the time it was still a territory. Governor Romney had 

been born in Mexico to U.S. citizens, and that was becoming an 

issue. But then he decided not to run. 

So these things do flare up. The point I was making about the 

Vice President is that it may well be if there was someone like 

that, you know, the advisers would say, you know, this is your first 

big decision, we do not need that to be the story for the next 2 or 

3 weeks. Thank you. 

Chairman HATCH. Thank you. I sure appreciate having you here. 

Representative Frank, we are honored to have you here, and we 

look forward to hearing your always lucid comments. 

STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF MASSACHUSETTS 

Representative FRANK. Thank you, Senator. I appreciate the way 

you framed this as increasing the choice for voters. Obviously, 

there is an element here of fairness to individuals. My colleague 

9

from Arkansas has pointed that out. And I was first asked to do 

this—I did this a few years ago. I filed one version. I actually had 

a hearing when Representative Kennedy from Florida was the 

Chair of the Constitutional Rights Subcommittee. Four or five 

years ago we had a hearing. And it was brought to my attention 

by an immigrant, who is an American citizen, who has been active 

in politics in the city of New Bedford, Massachusetts, and he was 

troubled, as I was, by the invidious discrimination of it. It basically 

says to people who have chosen to come to America in many cases, 

or who have been brought here, who have gone through the process 

of citizenship, have been very loyal, very law-abiding citizens, that 

they are somehow flawed. 

The notion that people who come here and become naturalized 

are any less entitled to be here and to exercise privileges and 

rights and responsibilities than anybody else is offensive. And for 

that reason alone, we ought to get rid of it. 

Beyond that, though, there is a fundamental principle here, and 

it is the one you touch on with your phrasing of this. I believe in 

the right of the people to choose as they wish. 

Now, people say, well, you are amending the Constitution. The 

fact is that in 1789, the notion of direct democracy was not the one 

that governed. Clearly, in terms of world history, the people who 

came to the American Constitutional Convention, they went for the 

first time to self-governance, but they did not go all the way. They 

had a Senate which was indirectly elected, a House directly elected, 

a President that was not supposed to be even indirectly elected. Remember, the original notion of the Electoral College was they 

would vote for a lot of smart guys, and the smart guys would sit 

around and decide who should be President. Remember, in the 

Electoral College, you did not pick President or Vice President. You 

just voted for President, and whoever got the most votes was the 

President, and whoever got the second most votes was the Vice 

President. 

We have evolved substantially since that time, I think in a good 

direction. Unfortunately, the evolution has not yet reached a point 

where we got rid of that foolish Electoral College, but that is something for a later day. But we do have now this major obstacle in 

the way of the voters, and we say to them: We don’t trust you. You 

could get fooled. I mean, they might—some foreign country might 

sucker you by getting some slick person mole him into the United 

States, or her, and get that person citizenship, and then years later 

have that person get elected President, and you will be too dumb 

to notice. I don’t think that is accurate, and I don’t think that 

ought to be the governing principle. I really believe that the people 

of the United States ought to have the right to elect as President 

of the United States someone they wish. 

I understand the prudential argument about some time limitation. I originally said 20 years. Mr. Snyder said 35. The fewer the 

better, as far as I am concerned. I will be honest with you. If you 

look at the principle of it, in my view an hour and a half is probably about enough time, because I trust the voters. This is up to 

them. Obviously, for practical reasons it will have to be a little bit 

longer. 

10

But that is the issue. Should we tell the American people that 

we do not trust them to decide that someone—and, remember, nobody parachutes into the Presidency. 

Chairman HATCH. That is a tough process. 

Representative FRANK. Yes, it is hard work, as we have learned. 

I understand that. I heard that last week, that it is very hard work 

to be President. 

[Laughter.] 

Representative FRANK. In fact, I understand they do not play 

‘‘Hail to the Chief’’ anymore at the White House. They play ‘‘A 

Hard Day’s Night.’’ But nobody comes in without being subject to 

a lot of scrutiny. Presidential candidates are people who the public 

has a chance to see. They have been in lower offices. They have 

been in the private sector. They have been prominent. And I don’t 

think we should say that the American people don’t have the mental acuity and political judgment to look at someone who has been 

around for a while and who has achieved the kind of prominence 

that you have to achieve to be a Presidential candidate, but we 

cannot trust them to pick someone who happened to have been 

born in another country because of some flaw on their part. 

So I think this is really a further step in bringing democracy as 

it should truly be understood to the electoral process, and I am for 

it, and it would also have, I think, a very useful time. You know, 

this is a world in which our country has been, I think, unfairly accused of a lot of things, misinterpreted. I think for this country at 

this point to take a step towards enhancing the rights of immigrants, even in this particular way would be—this is a good time 

to do it. 

Chairman HATCH. Well, thank you. There is no question that you 

have made a lot of good points there, some of which have been too 

humorous, I think. 

[Laughter.] 

Chairman HATCH. Congressman Rohrabacher? 

STATEMENT OF HON. DANA ROHRABACHER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Representative ROHRABACHER. Thank you very much. Thank 

you, Senator, and it is a great opportunity to testify before you because your Senate Joint Resolution 15 is exactly as my House Joint 

Resolution104. 

Chairman HATCH. There is some genius in there for sure. 

Representative ROHRABACHER. We mirror each other on this subject. And many of the arguments have already been presented, but 

let me just note that the reasons our Founding Fathers added a 

natural born citizen requirement to the Constitution’s qualification 

for being President, those reasons may have seemed like they were 

real back then, but they are archaic, and technologically they have 

been dealt with in the meantime. The main rationale seems to be 

that our Founding Fathers had was to protect future generations 

from undue foreign influence which would happen through the election of a foreign-born leader to the Executive office. 

This mind-set prevailed among our Founding Fathers because, of 

course, they had just freed themselves from foreign domination. 

And that may have made a lot of sense back then. 

11

Interestingly enough—and I will call this the Hamilton loophole 

because I believe that your analysis is incorrect about Hamilton not 

being eligible. They exempted their own generation from the burden of the natural born citizenship requirement. Seven of the 39 

signers of the Constitution in Philadelphia in 1787 were foreign 

born as well as eight of America’s original 81 Senators and Representatives. Three out of our first ten Supreme Court Justices and 

four of our first six Secretaries of the Treasury and one of our first 

Secretaries of War were all foreign born. Most, if not all, of these 

immigrants were eligible to serve as President since the Constitution exempted all those who were citizens at the time of its adoption from the natural born citizen requirement. 

Today, of course, the office of President and Vice President are 

the only offices where a person who is not born in the United 

States is disqualified from serving. Is this still appropriate when 

we have seen great leaders after a lifetime of service thus be ineligible to represent this country as President? 

Today we have many significant political leaders who cannot be 

President or Vice President simply because they were not born 

here. And, of course, this hearing would certainly not be complete 

unless the name of Governor Arnold Schwarzenegger was not mentioned at least once. But, of course, he is just one famous example 

that has been pointed out here today. We have the Governor of 

Michigan, of course, who came from Canada at age 4. Pete Hoekstra came to this country when he was 3 years old from the Netherlands and has now been given the responsibility as being Chairman of the House Permanent Select Committee on Intelligence. So 

Congressman Hoekstra oversees the Intelligence Committee in a 

post-9/11 America yet, regardless of his lifetime of service, is disqualified from serving in the highest office. 

There are many others who are similarly unfairly excluded or 

whose eligibility is in doubt. For the record, I am attaching to my 

written testimony a list of Americans who have spent a career of 

service to this country who are now ineligible for President because 

they are not U.S. citizens of birth, along with a list of those who 

are U.S. citizens from birth, but whose eligibility to be President 

has been questioned because they were born outside the borders of 

the United States. 

So I appreciate your leadership, Mr. Hatch, and I would ask my 

colleagues to join me in this very important step, which sends a 

message to the legal immigrants in the United States today and 

the legal immigrants who have become citizens in particular. And 

I agree with Mr. Frank that this is a very important time to send 

such a message. 

While we may have major disagreements on what to do and what 

positions we should take about illegal immigration and about what 

to do with illegal immigrants who are in the United States, it behooves all of us to underscore that we are not talking about those 

who legally come to our country, and especially those who are now 

naturalized citizens. Naturalized citizens and legal immigrants 

should have the rights of all Americans, and I think that this small 

change in our Constitution underscores that commitment among all 

of us here in elected office. 

12

So I thank you very much for your leadership, and I hope to 

work with my colleagues, and Representative Conyers I know has 

already endorsed my bill, and I hope that we could put this 

through. 

Thank you very much. 

[The prepared statement of Representative Rohrabacher appears 

as a submission for the record.] 

Chairman HATCH. It would be great if we could, and you are 

right about that on Alexander Hamilton. Some did not want him 

to be President, but they did make that exception. But if they made 

it then, why can’t we do it today, and especially after better than 

200 years of this process, and especially when we have a time limitation in there that should satisfy those who—

Representative ROHRABACHER. Senator, there is one aspect of 

this as well, that when our Founding Fathers put this into the 

Constitution, it was impossible for people who were voting for a 

Presidential candidate to actually try to get to know that Presidential candidate. I mean, they read about him in a newspaper, 

maybe. I don’t even think you could put photographs in newspapers 

in those days. 

Today, when you are voting for a President of the United States, 

you—

Chairman HATCH. You are going to know a lot more than you 

even want to know. 

[Laughter.] 

Representative ROHRABACHER. That is correct. 

Representative FRANK. Would the gentleman yield for a second? 

Representative ROHRABACHER. Television has brought that, has 

brought us into a personal relationship, and one other note. Naturalized citizens and people who immigrate here legally to the 

United States and become part of our society, I find them to be 

generally more patriotic rather than Manchurian candidates. They 

are more patriotic than even most of our fellow Americans who 

take their freedom and liberty for granted. 

Chairman HATCH. That is a good point. 

Representative Issa? 

Representative ROHRABACHER. I would be happy to yield to Barney. 

Representative FRANK. Just to make the point that, given the 

Electoral College, in fact—and this was certainly the intention—

you did not even vote for a candidate. You voted for wise men who 

were going to pick the candidate. Now, the public soon demanded 

the right to do that, but in the original conception—and the theory 

that, you know, a small band of people, the electors, might have 

been unduly influence had at least some plausibility. But the point 

was that you were not in the original Constitution envisioning a 

public vote directly for President. It was for electors who were envisioned as having the ultimate choice. 

Chairman HATCH. Barney, for what it is worth, I led the fight 

against the so-called direct election of the President. It was one of 

the few times in my whole time of 28 years in the Senate where 

I think the debate was won on the floor, where people really paid 

attention to it, because it is not just a bunch of—I do not want to 

get into a debate on that today, but the fact of the matter is that 

13

we have basically a direct election by 50 States. And it is a very 

interesting process, and it is one that has served this country well. 

I think I could rebut every—

Representative FRANK. Well, Senator, I don’t mean to—you 

know, I don’t want to introduce undue elements of controversy 

here, but I am still addicted to the view that the person who gets 

more votes than the other guy ought to be the winner. 

Chairman HATCH. Well, and as a general rule, that has always 

worked that way. And in the cases where it has not, there have 

been real questions of fraud and other problems. 

Representative FRANK. Not last year. There was no question of 

fraud in the overall total. 

Chairman HATCH. Only in six States, Barney. 

Representative Issa? There were six States that—

Senator CRAIG. Could we have order, please? 

Chairman HATCH. I would be happy to debate that in the future. 

I would be more than happy. 

Representative Issa? 

STATEMENT OF HON. DARRELL ISSA, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA 

Representative ISSA. Thank you. I was wondering when Mr. 

Rohrabacher was going to reclaim his time. 

Senator CRAIG. I am reclaiming it for him. 

Representative ISSA. Thank you, Senator. Thank you for holding 

this hearing, Senator, and all of the Senators here. Obviously, our 

senior Senator from California, I really appreciate your being here. 

Often in these hearings when you are the last person, everything 

that can be said has been said, and I think that is not the case 

here, but I will dispense with my prepared comments so that I can 

go only to those areas that perhaps have been touched on lightly 

or not at all. 

Certainly, like each of the previous speakers, I have a member 

of my staff who was adopted from Korea at age 2, and 27 years 

later he knows no other country but America. And yet he is not eligible to be President. 

In California, we are often faced with the interesting anomaly 

that people who come to our State illegally and have a child, perhaps even come legally and have a child during a short visa stay, 

that child is eligible to be President. And yet somebody who waits 

in line and perhaps does not arrive in America until their child is 

2 or 3 years old, that child is ineligible. So we penalize those who 

wait, who wait in line. And I think that goes to my first and most 

important point. 

This piece of constitutional amendment—and unlike the Senator 

I very much believe that we have to have a constitutional amendment—is about fairness. The Framers of the Constitution were fair 

to the people of their time. At that time they felt it was fair to 

grant Native Americans less than full citizenship. They felt a compromise that granted African Americans less than full citizenship, 

in fact, less than freedom, was acceptable. They felt that granting 

men full freedom and rights but women less than full freedom was 

acceptable. 

14

That does not make those people bad men. It makes them men 

and leaders of their time. But we are the men and women that are 

the leaders of our time. And just as the Native Americans now 

enjoy full rights, including Presidency, including the right to vote, 

including the right to be counted in a census fully, as do African 

Americans, as do women, we have one group that has been left out. 

And I think that is where fairness is the most important part of 

your proposal for this constitutional amendment, Senator. 

However, to Senator Nickles, in contrasting the two major differences between his legislation and your constitutional legislation, 

I disagree with the Senator’s theory that we can take care of this 

by legislation. We live in an era—it was mentioned perhaps slightly a minute ago—in which anything can be challenged and taken 

to nine men and women on the Supreme Court. Any law that we 

pass here is open to challenge at the Supreme Court. So we could 

pass a law today allowing someone to be President that previously 

was in doubt. That would include, obviously, those born abroad of 

U.S. citizens, such as Senator McCain, who was born in an area 

that is no longer the United States. It was the United States when 

he was born, the Panama Canal District; today it is not. 

That doubt certainly could be challenged after an election, challenged to the U.S. Supreme Court. And the U.S. Supreme Court 

would not have the ability to say: Do we go with the will of the 

people? They would have to say: What is the Constitution and what 

does it say? 

So I think that as much as we could envelop for feel-good purposes more and more people into the system of being defined as 

natural born, I do not believe that it would exempt a Presidential 

candidate, if elected, from being open to that challenge. And the 

possibility certainly exists that someone could be elected President 

and their Vice President could be sworn in because the men and 

women of the Supreme Court would have to interpret the Constitution as unamended rather than amended by simple legislation or 

statute. And I think that is the most important reason that this 

constitutional amendment is necessary. 

Each and every one of the points brought to us here today of uncertainty—uncertainty, even the question of Hamilton’s exemption, 

certainly no longer germane today. But Senator McCain, who is to 

say that Senator McCain, if he had been the Republican nominee 

for President in 2000, if he had won by a narrow margin in so few 

States with hundreds or a few thousand votes, who is to say that 

the Supreme Court would not have been faced with two questions—one question about whether or not he won the election, and 

a second one about whether he was eligible to be President. 

Certainly in this day and age, anyone can bring a case, and the 

Supreme Court would have an obligation to hear it. 

So since that has not been previously decided, each and every 

one of the people that we want to include has not been decided, I 

believe that we should decide it in clear and definitive language 

that will be unambiguous for the future for all those we want to 

be eligible. 

Lastly, because people have talked about the period of time, I am 

a cosponsor of both pieces of legislation in the House. I will add 

that if I were going to pick times—and since Congressman Frank 

15

said an hour and a half might be too short—I would only say that 

as this legislation goes through the House and the Senate, the 

truth of the matter is, the simple statement is we needed a President by the Founding Fathers to be 14 years a resident. And if I 

were going to pick a single date, 35 years old should stand, but 

also, realistically, with all due respect, Senator, I might suggest 

that even 14 years a citizen and a resident would be a fairly understandable requirement, because we are going to let stand the fact 

that you have to not just be a citizen but that you cannot have essentially left the country for years and then be—what do they 

say?—parachuted back in. 

So whether you use an hour and a half, 14 years, 20 years, or 

35 years I think is less important than the two guiding principles—

one of fairness, the other of clarity—and your legislation brings 

both. So I want to thank you, and thank you for holding this hearing. 

Representative FRANK. We have 10 minutes to vote. 

Chairman HATCH. We are grateful that all of you would come. 

We are grateful to have your testimony, and we appreciate it, and 

it has been very enlightening. Thanks so much. We will excuse you 

at this time. Thank you. 

Chairman HATCH. Let me introduce our distinguish witnesses for 

panel two. 

Professor Akhil Reed Amar is the Southmayd Professor of Law 

at Yale Law School. He has also received his undergraduate degree 

from Yale, where he graduated with a perfect grade point average 

and his law degree. He has been teaching at Yale for almost 20 

years, so we welcome you, Professor. We are very happy to have 

you with us once again. 

Dr. Matthew Spalding is an expert on American political history, 

constitutionalism, religious liberty, and civic renewal. He is also 

the director of the B. Kenneth Simon Center of American Studies 

at the Heritage Foundation. An adjunct fellow with the Claremont 

Institute, Dr. Spalding is the author of ‘‘A Sacred Union of Citizens: George Washington’s Farewell Address and the American 

Character,’’ and the editor of the Founders’ Almanac. He also holds 

a Ph.D. in government from Claremont Graduate School, so we 

welcome you as well, Dr. Spalding. Good to see you again. 

Next we have Professor John Yinger, who is Trustee Professor of 

Public Administration and Economics for the Maxwell School at 

Syracuse University. He has also taught at the Harvard JFK 

School of Government, Princeton University, the University of 

Michigan, and the University of Wisconsin. So we are very grateful 

to have you here as well. 

Now, I have to explain. I am on the conference committee that 

is meeting over in the House on the FSC/ETI bill, and so I have 

asked Senator Craig if he would finish this hearing. But I will read 

everything that you folks say, and I have read a number of things 

anyway, and I will pay very strict attention to what you have to 

say. We appreciate your being here. 

Senator DURBIN. Mr. Chairman? 

Chairman HATCH. Yes, Senator? 

Senator DURBIN. May I ask unanimous consent that a statement 

by Senator Leahy be entered into the record? 

16

Chairman HATCH. Without objection, we will put that at the beginning of the hearing immediately following my own statement. 

So if we can, we will turn to you, Professor Amar first, then Dr. 

Spalding, then Professor Yinger. 

STATEMENT OF AKHIL REED AMAR, SOUTHMAYD PROFESSOR 

OF LAW AND POLITICAL SCIENCE, YALE LAW SCHOOL, NEW 

HAVEN, CONNECTICUT 

Mr. AMAR. Thank you, Mr. Chair. My name is Akhil Reed Amar. 

I am the Southmayd Professor of Law and Political Science at Yale 

University. As my formal testimony draws upon a soon-to-be published book that I have written on the history of the Constitution, 

I respectfully request that the relevant pages of that book, which 

I have attached as an appendix to my testimony, be made part of 

the record. 

In a land of immigrants committed to the dream of equality, the 

Constitution’s natural born clause seems, well, un-American. Why 

shouldn’t we open our highest office to those who have adopted this 

country as their own and have proved their patriotism through decades of devoted citizenship? 

Legal traditionalists will doubtless, and with good reason, counsel us to think twice before altering the Founders’ system. But the 

Framers themselves created an amendment process as part of their 

legacy to us. A close look at why they added the natural born citizen clause can help us decide whether their reasons still make 

sense today. 

As I have documented in greater detail in ‘‘America’s Constitution: A Guided Tour,’’ the 1787 Constitution was, by the standards 

of its time, hugely pro-immigrant. Under the famous English Act 

of Settlement of 1701—and this is what you need to understand is 

the baseline against which they are acting—no naturalized subject 

in England could ever serve in the House of Commons, or Lords, 

or the Privy Counsel, or in a wide range of other offices. The Constitution repudiated this tradition across the board, opening the 

House, the Senate, the Cabinet, and the Federal judiciary to naturalized and native alike. 

As you have just heard, seven of the 39 signers of the Constitution at Philadelphia were foreign-born, as were countless thousands of the voters who helped ratify the Constitution and made 

it the supreme law of the law. Immigrant Americans accounted for 

eight of America’s first 81 Congressmen—actually, nine of the first 

91, if you count the later ones in the first 2 years—three of our 

first ten Supreme Court Justices, four of the first six Secretaries 

of the Treasury, one of the first three Secretaries of War. 

Only the Presidency and the Vice Presidency were reserved for 

birth-citizens, and even this reservation was softened to recognize 

the eligibility of all immigrants who were already American citizens in 1787—men, like Hamilton, who had proved their loyalty by 

coming to or remaining in America during the Revolution. 

Why, then, did generally pro-immigrant Founders exclude later 

immigrants from the Presidency? If we imagine a poor boy coming 

to America and rising through the political system by dint of his 

own sweat and virtue only to find himself barred at the top, the 

rule surely looks anti-egalitarian. But in 1787, the more salient 

17

scenario involved the possibility that a foreign earl or duke might 

cross the Atlantic with immense wealth and a vast retinue, and 

then use his European riches to buy friends on a scale that virtually no homegrown citizen could match. There were no campaign 

finance rules in place then. 

[Laughter.] 

Mr. AMAR. No such grandees had yet come to our shores. Thus, 

it made good republican sense to extend eligibility to existing foreign-born Americans, yet it also made sense to anticipate all the 

ways that European aristocracy might one day try to pervert American democracy. 

Several months before the Constitution was drafted, one prominent American politician had apparently written to Prince Henry 

of Prussia, brother of Frederick the Great, to inquire whether the 

prince might consider coming to the New World to serve as a constitutional monarch. Though few in 1787 knew of this feeler, the 

summer-long secret constitutional drafting sessions in Philadelphia 

did fuel widespread speculation that the delegates were working to 

fasten a monarchy upon America. One leading rumor was that the 

Bishop of Osnaburgh, the second son of George III, would be invited to become America’s king. The natural-born clause gave the 

lie to such rumors and thereby eased anxieties about foreign nobility. 

These anxieties had also been fed by England’s 1701 Act, which 

inclined the Founders to associate the very idea of a foreign-born 

head of state with the larger issue of monarchical government. 

Though England banned foreigners from all other posts, it imposed 

no natural-born requirement on the head of state himself. In fact, 

the 1701 Act explicitly contemplated foreign-born future monarchs—the German House of Hanover, in particular. By 1787, this 

continental royal family had produced three English Kings named 

George, only the third of whom had been born in England itself. 

Thus, in repudiating foreign-born heads of state, the Framers 

meant to reject all vestiges of monarchy. Theirs was ultimately an 

egalitarian idea. Their general goal was to create an egalitarian republic. 

In light of this history, the case for a constitutional amendment 

today would appear to be a strong one, and we can best honor the 

Framers’ egalitarian vision by repealing the specific rule that has 

outlived its original purposes. 

Now would this be the first time we have tweaked the Founders’ 

rules of Presidential eligibility. The Constitution says ‘‘he’’ and 

‘‘his,’’ when it comes to the President, and they were thinking 

about kings, not queens. They never talked about—and they knew 

about queens. Virginia was named after one, William and Mary another. 

So a plausible argument could be made that the original Constitution envisioned only men would be eligible. But after the 19th 

Amendment, it is clear that women have a right not just to vote 

but to be voted for, to hold office. So we have already in effect 

changed the rules of Presidential eligibility. ‘‘He’’ now means ‘‘he 

or she.’’ What the suffragist movement did for women, America 

should now do for naturalized citizens. America should be more 

than a land where every boy or girl can grow up to be...Governor. 

18

Thank you. 

[The prepared statement of Mr. Amar appears as a submission 

for the record.] 

Senator CRAIG. Thank you very much. 

Dr. Spalding, please proceed. 

STATEMENT OF MATTHEW SPALDING, DIRECTOR, B. KENNETH 

SIMON CENTER FOR AMERICAN STUDIES, THE HERITAGE 

FOUNDATION 

Mr. SPALDING. Thank you, Senator. More than any other nation 

in history, this country and its system of equal justice and economic freedom beckons not only the downtrodden and the persecuted, but those who seek opportunity and a better future for 

themselves and their posterity. 

By the very nature of the principles upon which it is established, 

the United States encourages immigration and promotes the transformation of those immigrants into Americans. 

‘‘The bosom of America is open to receive not only the opulent 

and respectable stranger,’’ George Washington wrote, ‘‘but the oppressed and persecuted of all Nations and Religions; whom we 

shall welcome to a participation of all our rights and privileges if, 

by decency and propriety of conduct, they appear to merit the enjoyment.’’

Yet there is one legal limitation of those potential rights: only 

those who are native born can become President of the United 

States. Why the exception? In addition to what Professor Amar has 

already pointed out, I would add one: Poland, where in 1772, as 

Forrest McDonald has pointed out and argued, ‘‘the secret services 

of Austria, Prussia and Russia had connived to engineer the election of their own choice for king’’ and then divided the country. 

Perhaps with this in mind, John Jay wrote George Washington 

at the Convention, urging that the Commander-in-Chief be only 

given to or devolve on a natural born citizen. Thus, the phrase, as 

Justice Joseph Story later explained, ‘‘cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office.’’

But there is something more going on here, I believe, that points 

to the general views of the Founders about immigration. The immediate fear was a foreign takeover, but the larger fear was the influence of foreign ideas. 

At the Constitutional Convention, there was a lively and illuminating debate about the eligibility of foreign immigrants for Federal office. Some wanted to restrict membership to those born in 

the United States. Other more numerous delegates vigorously criticized this position. James Madison wanted to invite ‘‘foreigners of 

American republican principles among us,’’ and West Indies-born 

Alexander Hamilton spoke of attracting immigrants who would ‘‘be 

on a level with the First Citizens.’’

These views prevailed and the Constitution required relatively 

modest residency periods for immigrant citizens who aspired to office. This was long enough, Madison later wrong in the Federalist 

Papers, to assure that legislators are ‘‘thoroughly weaned from the 

prepossessions and habits incident to foreign birth and education.’’

So why the nature born citizenship requirement for the Presidency? With a single executive, at the end of the day there are no 

19

checks, no multiplicity of interests that would override the possibility of foreign intrigue or influence, or mitigate any lingering favoritism—or hatred—for another homeland. 

The attachment of the President must be absolute, and absolute 

attachment comes most often from being born and raised in—and 

educated and formed by—this country, unalloyed by other native 

allegiances. The natural born citizen requirement for the Presidency seeks to guarantee, as much as possible, this outcome where 

it matters most. 

While the practical circumstances have changed—there is no 

threat of a foreign takeover—the underlying concerns about attachment and allegiance still make sense. The question is whether you 

can expand the eligibility to non-native-born citizens without undermining the wisdom and caution inherent in the Framers’ design. 

One proxy would be a significant citizenship requirement, along 

with a significantly increased residency requirement. How much? 

The question is enough to approximate the attachment that comes 

with having lived in America for almost all of one’s life, thus fundamentally shaped by this regime, its history, institutions, and way 

of life. The average of 20th century Presidents is 54. A 35-year citizenship requirement, combined with a residency requirement increase, would assure that most would-be Presidents are citizens before they are 18 years old and residents for much of the time thereafter. 

Four very brief caveats: 

One, opening the question of the Presidency to naturalized citizens raises the issue of dual citizenship. This is a significant issue 

that must be addressed and could be a particularly thorny problem. 

Secondly, in order to have the intended effect, this effort must be 

part of a renewed effort, a deliberate and self-confident policy to assimilate and Americanize immigrants and teach them about the 

country’s political principles and civic traditions. 

Thirdly, I am concerned about the politics of this question. It 

should not be resolved based on immediate calculations to advance 

or hinder the political aspirations of any particular individual or 

party. I am tempted to suggest that any amendment should include 

language that it would not take effect for 10 years or so, when the 

current candidates are not on the scene. 

And, fourth, I must say that the more I have looked at it, the 

more I am intrigued by the legislative approach. Recognizing the 

difficulty of amending the Constitution, the possibility of closing 

key loopholes by legislation is attractive. Looking at the legislation 

of the 1st Congress, the Naturalization Act of 1790, it seems that 

Congress does have authority in this matter. I won’t speculate 

what the court would say, but these questions seem to accord well 

with court precedents and court’s deference to allow Congress latitude in exercising its plenary powers over naturalization. 

Let me end very briefly on a personal note. Last year, my wife 

and I adopted two Russian orphans, age 3-1/2 and 1. They both 

hold birth certificates in our name and are American citizens. Joseph knew some broken Russian, but one of the first English 

phrases he learned as ‘‘God bless America.’’ He actually knows that 

George Washington is the Father of his Country. Yet he cannot 

grow up to be President of the United States. What is worse, in 

20

reading stories of our Nation’s heroes and in emulating their patriotism, he cannot dream, as little boys do, of serving his country in 

its highest office, ‘‘one a level with the First Citizens.’’

Nevertheless, these children—our children—will be as natural 

born citizens, not because of where they were born, but because 

they will be raised and educated to know, as Lincoln said of those 

who did not themselves descend from the Founders but came to understand the truths of the American creed, that they are ‘‘blood of 

the blood, and flesh of the flesh, of those who made the Revolution.’’

Thank you. 

[The prepared statement of Mr. Spalding appears as a submission for the record.] 

Senator CRAIG. Doctor, thank you. 

Professor, please proceed. 

STATEMENT OF JOHN YINGER, TRUSTEE PROFESSOR OF PUBLIC ADMINISTRATION AND ECONOMICS, THE MAXWELL 

SCHOOL OF CITIZENSHIP AND PUBLIC AFFAIRS, SYRACUSE 

UNIVERSITY, SYRACUSE, NEW YORK 

Mr. YINGER. Good morning, Senator Craig, and other distinguished members of this Committee. I would like to thank you very 

much for inviting me to testify today. 

I am a professor of public administration and economics at the 

Maxwell School of Citizenship and Public Affairs at Syracuse University. The topic of this hearing, the clause limiting Presidential 

eligibility to natural born citizens, is of great interest to me both 

professionally and personally, and I have been studying it for the 

past several years. 

My research on civil rights and the nature of our Federal system 

helped to spur my interest in this clause. In addition, I am the 

proud father of two adopted children, one of whom—my son, 

Jonah—will not be eligible to run for President when he grows because he was born in another country. Two of my nieces, Sara and 

Julia Grace, also are not eligible to run for President. 

The principle that all citizens should have equal rights is one of 

the cornerstones of American democracy. The U.S. Constitution 

made historic contributions, of course, to the establishment of this 

principle, but the Founding Fathers did not fully implement it, and 

the Nation has struggled ever since to try to complete the task. 

The Constitution’s most important limitations on this score obviously were that it allowed the States to disenfranchise people on 

the basis of sex and race. The 14th, 15th, and 19th Amendments 

to the Constitution, along with extensive civil rights legislation, 

have been passed to remove these limitations. 

This hearing is about the next step on the path toward equal 

rights, which is to ensure that naturalized American citizens have 

exactly the same rights as natural born citizens. The constitutional 

provision prohibiting naturalized citizens from running for President violates the equal rights principle and serves no useful purpose. It should be removed from the Constitution. 

At the Constitutional Convention in 1787, the final Presidential 

eligibility clause with the natural born citizen requirement in it 

was accepted unanimously with no record of debate. But earlier 

21

versions of the clause did mention nativity, and the Founders provided at least three types of evidence that they had serious doubts 

about the natural born citizen requirement. 

The first source of evidence is the Presidential eligibility clause 

itself, which grants eligibility to any citizen of the United States 

at the time of the adoption of this Constitution. This grandfather 

clause gave Presidential eligibility to roughly 60,000 naturalized 

citizens in the elections of 1796 and 1800. By including this clause, 

the Founders rejected the view that naturalized citizens are inherently more likely than natural born citizens to be subject to foreign 

influence. 

Second, extensive evidence comes from the debates concerning 

the time of citizenship requirements for the Senate and the House 

of Representatives. The key issue in these debates was whether to 

set long time-of-citizenship requirements and thereby to place an 

extra burden on naturalized citizens. 

Numerous delegates spoke out against such requirements and, 

thus, against even stronger restrictions, such as making naturalized citizens ineligible altogether. James Madison declared that a 

severe restriction on the rights of naturalized citizens would be 

‘‘improper: because it will give a tincture of illiberality to the Constitution.’’ He was seconded by Benjamin Franklin ‘‘who should be 

very sorry to see any thing like illiberality inserted in the Constitution.’’ The word ‘‘illiberal’’ was their way of saying that such a restriction would violate the equal rights principle. 

Madison also said he ‘‘wished to maintain the character of liberality which had been professed in all the Constitutions and publications of America.’’ This position was seconded by several other delegates. Madison is referring to the Constitutions passed by virtually 

all the States at the time of Independence, not one of which restricted the rights of naturalized citizens. 

Madison reiterated his view several years later when he said, 

‘‘Equal laws, protecting equal rights, are found, as they ought to be 

presumed, the best guarantee of loyalty and love of country.’’

Third, in 1798, the U.S. Senate, composed of men who had participated in the founding of the United States, demonstrated its 

ambivalence toward the natural born citizen requirement by electing a naturalized citizen, John Laurance of New York, to be President Pro Tempore of the Senate. 

This action is significant because Laurance was eligible to be 

President, thanks to the grandfather clause, and because at that 

time the President Pro Tempore was second in the line of succession. Despite fears of foreign intrigue, therefore, a naturalized citizen briefly stood only behind Vice President Thomas Jefferson in 

the sequence of succession. 

With the Founders’ doubts in mind, consider the relevance of this 

issue today. The natural born citizen requirement is the only provision in the Constitution that explicitly denies rights to an American citizen based on one of that citizen’s indelible characteristics. 

By embracing one exception to the equal rights principle, we leave 

open the door to other exceptions. We can strengthen our democracy and our reputation around the world by closing this door. 

The 14th Amendment, which is one of the crowning achievements in this Nation’s struggle to promote equal rights, says, in 

22

part, ‘‘All persons born or naturalized in the United States...are 

citizens of the United States and of the State wherein they reside. 

No State shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States.’’

This amendment prohibits the States from treating naturalized 

citizens any differently from natural born citizens. The Federal 

Government should face the same prohibition. As the U.S. Supreme 

Court said in another context, ‘‘it would be unthinkable that the 

same Constitution would impose a lesser duty on the Federal Government.’’

Despite all the protections built into our constitutional system, 

some people insist that the natural born citizen requirement makes 

us safer. If naturalized citizens were allowed to run for President, 

these people argue, foreign powers might scheme to have their citizens elected here. This Manchurian candidate imagery has two 

major flaws. The first was articulated by Benjamin Franklin. He 

‘‘reminded the Convention that it did not follow from an omission 

to insert the restriction...in the Constitution that the persons in 

question would actually be chosen into the Legislature.’’ This fits, 

of course, with earlier comments that it is very difficult to run for 

President. 

Moreover, any naturalized citizen running for President would 

have a hard time convincing a majority of the American people that 

he or she is the best candidate for President. This point was made 

by Madison. ‘‘For the same reason that [men with foreign predilections] would be attached to their native Country, our own people 

would prefer natives of this Country to them.’’

The second flaw was also exposed by Madison. He said, ‘‘If bribery was to be practised by foreign powers,’’ it would be attempted 

‘‘among natives having full confidence of the people not among 

strangers who would be regarded with a jealous eye.’’

Restricting the rights of all naturalized citizens out of the fear 

that one of them might try to undermine our Government by running for President is an extreme form of profiling with no basic in 

logic or history. Does it make sense to discriminate against 12.8 

million naturalized citizens, including 250,000 foreign-born 

adoptees, because one of them with disloyal thoughts might decide 

to run for President? Of course not. It makes no sense at all. The 

natural born citizen requirement adds nothing of substance to the 

extensive protection provided by our constitutional election procedures and the judgment of the American people. 

Most people never run for President, but the right to run for 

President has enormous symbolic importance. The power of this 

symbolism was brought home to me just a few days ago. On September 22nd, the Syracuse Post-Standard wrote an editorial in support of the amendments introduced by Senator Hatch and Representative Rohrabacher. This editorial quoted me and mentioned 

my son, Jonah. The next day I received a letter from Ms. Cathy 

Fedrizzi, one of Jonah’s second-grade teachers, which said, ‘‘Dear 

Dr. Yinger, As I read this morning’s editorial about Jonah, I had 

a feeling this would be a hard. I was scheduled to visit Jonah’s 

class to teach about the upcoming election. Part of my lesson involves teaching about who is eligible to become President...’’

23

‘‘...As we worked our way through the lesson, I noticed Jonah sitting on the edge of the group. That’s unusual for Jonah...whenever 

I’ve taught guest lessons before, he’s been front and center, so I 

had a feeling he wasn’t happy. Before I got to the rules for becoming President, he told me the rule about being born a citizen. I explained that some laws are made a long time ago and seem like 

a good idea at the time, but I didn’t like the law the way it was 

either. He didn’t seem satisfied with my answer, and neither was 

I.’’

‘‘I feel sad every time this situation occurs...I hope that some day, 

before I stop teaching, I can tell eight year old students that anyone sitting on the floor at my feet could one day be President of 

the United States.’’

My son should not have to feel this way. No American second 

grader should have to feel this way. No American citizens should 

have to feel this way. I urge the members of this Committee, and 

indeed all Members of Congress, to support Senator Hatch’s Equal 

Opportunity to Govern Amendment or one of the comparable 

amendments introduced in the House. Let us renew our commitment to the equal rights principle by giving naturalized citizens the 

right to run for President. 

Thank you very much. 

[The prepared statement of Mr. Yinger appears as a submission 

for the record.] 

Senator CRAIG. Well, gentlemen, thank you all very much for 

very valuable and well-done testimony. I am one who has not yet 

decided on a course of action that we should take, but one who is 

an activist in the area of adoption and believe I have helped bring 

literally thousands of children into a permanent loving environment, both domestic and foreign, struggle with many of your arguments. Last year, this Nation’s parents adopted 25,000 foreign-born 

young people, many of them babes in arms. And to suggest that 

once they have lived here for a period of time, educated here, become Americans, without question every bit the American that I 

am, that they would be denied this right is a tough one. And it is 

one that the Congress is obviously struggling with. 

Let me ask a couple of questions and then turn to my colleagues, 

and I am going to ask questions that all three of you might choose 

to respond to. Senator Hatch’s amendment and other amendments 

choose a time of so many years having been a naturalized citizen 

before one could serve as or be eligible to seek the office of the 

Presidency. Is there a magic time in years? 

Mr. AMAR. The 35-year-old clause has been used as a springboard to say, well, maybe it should be 35 years after one becomes 

a citizen. There is a sort of plausibility to that. It does not quite 

achieve equality for babes in arms. If a kid comes here at age 3, 

he or she would only then be eligible at 38 where his classmates 

are at 35. But that may be a small thing. 

My thought is that actually the 35-year-old clause had a rather 

different purpose, and it was actually an anti-dynastic, anti-monarchical purpose. The concern was who would have name recognition 

to be elected President at 30 or 33, and it is the son of a famous 

father. And they were reacting against dynasty, and so they wanted to make sure that lower-born people would have a chance to 

24

show their stuff and well-born people would have a chance to make 

their own mistakes and achieve their own successes. And I am not 

sure that that reasoning—so John Quincy Adams does become 

President, but not before he got a track record of his own. I am not 

sure that that actually is the same cluster of reasons that would 

be sensible. 

But 14 years of continuous residence was suggested, and that 

has a certain naturalness. It borrows directly from the eligibility 

clause itself. Twenty is a kind of intermediate compromise. Fourteen actually builds on the Constitution itself. 

Senator CRAIG. Mr. Spalding? 

Mr. SPALDING. In my testimony, I actually mentioned this question. I think it is important that you look at this and judge it according to the right standards. The issue here does not seem to be 

paralleling existing numbers in the Constitution. The question you 

need to address is what level of citizenship and residency in your 

mind is required for the unique office of the Presidency. In amending the Constitution, you are open to amend it as you choose. The 

reason I came up with the 35 number is actually it is in the Constitution, but more importantly, if you look at the average age of 

current Presidents, all Presidents, especially in the 20th century, 

minus 35, that gets you down to the possibility of making sure that 

someone emigrates here when they are still at an age where they 

will be formed in their character and ideas by this country. And 

that is what we need to assure. The question here is about the 

unique nature of the Presidency, not about—comparisons are very 

important, but there is something—all these comparisons are very 

important, but there is something different about the Presidency 

that I think you have an obligation to think through very seriously. 

It is very clear. A child, a babe, can clearly become attached to this 

country and has no obligations or connections. The flip side is that 

someone who comes over here that is 40 or 50, that might present 

some sort of problems. They have clear allegiances to another country. Where do you draw the line? 

The issue, I think, is attachment, and that is what you have to 

think through. 

Senator CRAIG. Mr. Yinger? 

Mr. YINGER. I would only add that I think that the key issue 

here is the one of eliminating a situation in which someone is 

disenfranchised because of an indelible characteristic in some important way. And I do not think that you need to have in this 

clause any guarantee of particular characteristics of an individual. 

That is what voting procedures are for. That is what the judgment 

of the American people is for. 

So I think that there needs to be a debate and people need to 

decide what they are comfortable with. I think anything in the 14- 

to 35-year range would be reasonable. 

Senator CRAIG. Well, I think, Dr. Spalding, you have mentioned 

something that is important in the numbers determination, and 

that is, a period of time long enough for that individual to become 

imbued with the general beliefs, appreciation for this country, its 

constitutional system, and all of that. 

At the same time, I will tell you that, like Congressman Conyers, 

I have attended a good many naturalization ceremonies, and I find 

25

naturalized citizens sometimes having studied us better than our 

own native born citizens, knowing more about us, being more excited about this country, and more fervently American in many instances. So it is an energy and a chemistry that I think those who 

come here seeking citizenship, wanting to become one of us, if you 

will, that in itself is a phenomenal challenge and in itself is a 

qualifier. 

Mr. SPALDING. If I could make just one brief comment, I completely agree with you. That is why I am so interested in this question. 

But you have to remember that in making a change to the U.S. 

Constitution, you are making a rule not an exception. The rule you 

make has to last for the foreseeable future in a Constitution that 

lasts forever. 

And, secondly, remember, this is the Presidency. The key question you have to concern yourself with is: At the end of the day, 

when the President, a single executive, makes a key decision, they 

must be absolutely loyal to this country and not either hesitate perhaps in a military decision or a security decision, they cannot hesitate in making a decision which favors this country and is not 

shaped by allegiances or hatred of other countries. That was a key 

concern of the Founders, and especially Washington’s Farewell Address. 

Senator CRAIG. You and I have no dispute there whatsoever. I 

think that is part of an important consideration in choosing to 

change our Constitution. 

Now, I will say in conclusion, because I am also very intrigued—

and I will come back to ask a question of you about Senator Nickles’ approach. I am one who has attempted to convince the American people to pass a constitutional amendment. I have traveled to 

40 States with a single amendment in mind and visited with those 

legislatures. It is a near impossible task. It is a hurdle so high that 

it is near impossible. And it must be an issue that is overwhelmingly popular and obvious on its face to the American people, or it 

will not happen. 

So I am going to come back to you. My time is up. So think 

about, if you would, Senator Nickles’ amendment that deals with 

the definition of and what is believed to be a responsibility that 

could be assumed here in making that adjustment. 

Let me turn to Senator Durbin—I believe you were here next—

for any questions you might have. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you, Mr. Chairman, and thank you to 

the witnesses. 

When it comes to amending the Constitution, I am a skeptic, a 

proud skeptic. In 22 years on Capitol Hill, I have seen more attempts, scores if not hundreds of attempts, to amend this Constitution. Some of them are offered in good faith, and some just reflect 

the politics du jour. If someone burns a flag at a political convention in Texas, another person says, ‘‘Let’s amend the Bill of Rights 

for the first time in our history.’’ I think that shows a readiness 

26

to change a document that we should be very reluctant to ever 

change. 

I am prepared to make an exception because I think this is a 

good change, for two reasons: 

First, I don’t think there is any other way to achieve this. I may 

disagree with Dr. Spalding on this. I don’t think you can do this 

legislatively. I think the Constitution is very explicit, and our 

change should be explicit within the Constitution. 

And, second, I believe it corrects an anachronism, and there are 

anachronisms in that Constitution. Witness Article I, Section 2, 

where we count those who are not free persons as three-fifths of 

a citizen for the purpose of apportionment in Congress. What was 

that all about? We did not view African Americans as real, whole 

Americans. They were only counted as three-fifths of a citizen. 

Well, thank God we came to the realization that was wrong, as we 

came to the realization it was wrong to deny women or those who 

did not have property an opportunity to vote. So some change is 

necessary. The Founding Fathers got most of it right, but not everything. 

There are two observations I would make, one leading to a question. And the first is consider what is driving this debate: the fundamental inequity and unfairness of the way we are treating naturalized citizens in America. 30,000 naturalized citizens are today 

risking their lives, putting their lives on the line for America, as 

members of the armed forces, We cannot ask anything more of a 

person than to give their lives for this country. 

Now we are talking about the same naturalized citizens being 

recognized as having an opportunity to run for the highest office 

of the land. I think that is a question of equity and fairness. But 

I will say to my colleagues on the Judiciary Committee, many of 

whom are not here today, the immigration laws of this country are 

rife with inequity and unfairness. We see it every day in our offices. We are focusing on the Presidency. We should be focusing on 

the body of laws and how we treat immigrants who come to this 

country. We have not done because it is politically volatile. 

The second issue is one that has been historic, and that is the 

question of dual loyalties. I am Catholic. There was a time in the 

19th century when being Catholic virtually disqualified you from 

being seriously considered for the highest office in the land. Why? 

Because they believed these papists would listen to advice from the 

Vatican before the American people. Well, thank goodness that 

came to an end in 1960 with the election of President Kennedy. It 

appears not to be an issue—and perhaps it will not be—on November 2nd. But the point is that is no longer a debate topic. 

Some raise the question about dual loyalty of Jewish-Americans. 

Can they be loyal to America and to Israel? Now we come into another aspect of this dual loyalty question, which we have talked 

about in general terms, but Dr. Spalding has raised in specific 

terms. And this is where I come to my question. A friend of mine 

by the name of Val Adamkus was born in Lithuania. He as a young 

boy fought the Nazis when they occupied Lithuania, then fought 

the Soviets when they occupied Lithuania, and left that country to 

come to the United States to become a naturalized citizen. He received the highest award in civil service in America for his service 

27

to our Government. And then after his retirement from our Federal 

Government and after the liberation of Lithuania from the Soviet 

Union, he returned to Lithuania and was elected President of that 

country. An amazing story. 

But there is one footnote most people don’t realize. In the closing 

moments before he was sworn in as President of Lithuania, he surrendered his American citizenship. He didn’t feel that he could 

serve the people of Lithuania if there was ever any question about 

his loyalty. 

Dr. Spalding, you raised that point. We live in a world where 

people can be dual citizens. Is that an important part of this discussion? Should we in some way or another make it clear that you 

have to renounce other citizenships to be considered as President, 

even as a naturalized citizen? Or should we trust the crucible of 

the campaign, let the people decide as to whether a person’s first 

loyalty will be America? 

Mr. SPALDING. It is a very good question. Just a very brief clarification so that we do not confuse my earlier point. When I said I 

was interested in the legislative approach, I was—I am fascinated 

by what his legislation proposes to do, namely, to correct some specific things. One thing that is clear is that natural born does not 

equal naturalized. That would require an amendment. So I am not 

saying you can solve that problem through legislation. 

I think the question I have raised and you alluded to is extremely important. My children have dual passports, dual citizenship. They hold Russian passports and have U.S. passports. Holding dual passports is not the issue. There are many people that 

have dual connections to countries. What I am concerned about is, 

at the end of the day, where their number one allegiance is. And 

I think that is a legitimate question. And I think the example you 

gave is a very good example of precisely that. 

Now, having said that, there is only so much you can do in an 

amendment like this or in law, but you have an obligation to do 

what you can to try to clarify that. And as I understand it, the law 

currently is very ambiguous on this question. 

There will be a lot of cases here and there that are either problematic or not problematic, but the law cannot be silent on it. And 

to the extent that you cannot solve every question, I think you are 

absolutely correct—and I agree with the example you gave about 

John F. Kennedy—that at the end of day, let’s let the big questions 

be solved in the political realm. But what I think you cannot do 

is just leave it unsaid because it is a thorny issue there, and it has 

to be thought through. And there is a connection with this issue 

that points to larger questions of immigration reform. And I agree 

with you there, too. That should be part of a larger set of things 

that we do. 

Senator DURBIN. I would invite the other two witnesses, if there 

is time, to respond to my question. Professor Amar? Professor 

Yinger? You have to turn your microphone on. 

Mr. YINGER. First of all, I think Dr. Spalding and I have a fundamental disagreement. To me, it is an illusion to think that you can 

protect this country by the way you define these eligibility rules. 

Again, we have 12.8 million naturalized citizens, and most of them 

will never want to run for President. If they were allowed to run 

28

for President and did, most of them would never get anywhere. 

And the idea that we can protect ourselves by keeping this barrier 

there or by manipulating it in some way I think is an illusion. 

Mr. SPALDING. That is not my position. 

Mr. YINGER. It is just as likely that somebody who was a natural 

born citizen could cause us trouble, and we have to have a system 

that is good enough to protect this country from candidates who 

will not serve us well, regardless of where they come from. So to 

me, the key principle here is that we should have—once somebody 

becomes a citizen, they should be treated like every other citizen. 

And it just doesn’t make any sense to me to make a distinction. 

Senator DURBIN. What about dual citizenship? 

Mr. YINGER. Well, I think if somebody is a dual citizen, they 

would have a very tough time running for President. I do not see 

any reason to make that—

Senator DURBIN. You would trust the campaign, let the voters 

decide? 

Mr. YINGER. Absolutely, I would. 

Senator DURBIN. Professor—

Mr. YINGER. Also, just one other point to make. I think questions 

of immigration are obviously extremely important for this country. 

It is an enormous issue. But I think it is a totally separate issue. 

I think the issue here is we will have a debate about what rules 

are required for somebody to immigrate and to become a citizen, 

and that is a very important debate. But once we allow somebody 

to become a citizen, then we should treat them exactly equally with 

other citizens. 

Senator DURBIN. Could Professor Amar response? 

Senator CRAIG. Please. 

Mr. AMAR. On the dual citizenship point, of course, that could be 

true even if someone was born in the United States who, because 

of his or her parents, is eligible for dual citizenship, just as someone born in the United States could move at a very early age, be 

educated abroad, not quite socialized into the American way of life, 

but under the existing rules be eligible so long as he or she then 

had 14 years continuous residence thereafter. So, one, the idea of 

14 is it really achieves a certain kind of fundamental equality between naturalized and native born, and the dual citizenship, you 

see, can arise whether one is naturalized or native born. 

Here is a great test, I think, because I share your general anxiety about just amending the Constitution willy-nilly. The more I 

study it and teach it, the more I respect it, even as I acknowledge 

and see its flaws. 

There is a grand constitutional tradition that we are part of 

today, and it is best seen by seeing what the rules were before. The 

Constitution is a tremendous liberalization of what the immigration rules and the naturalization rules were before. Then we added 

a Bill of Rights. We freed the slaves and then made people equal 

citizens by birth, and then enfranchised black men and women and 

got rid of poll taxes and extended the franchise. So you would be, 

I think, with this amendment part of a grand—to use Madison’s 

phrase—‘‘liberalizing tradition,’’ moving us toward greater freedom 

and equality in a way that some of these other proposals you see 

I think are actually counter to that extraordinary tradition. 

29

Here is one other feature of the rules of eligibility. So 35 wasn’t 

illiberal. It was actually about a quality and anti-dynasty. And look 

at what is not there. There is no religious qualification, since you 

mentioned the cap. At the time of the Constitution, 12 States have 

religious qualifications for office-holding. Twelve of the State constitutions have religious qualifications. 

Senator DURBIN. It is an express prohibition against a religious 

rest. 

Mr. AMAR. And no State constitution has that. That is a new 

idea, an amazing idea that is going to grow with the Establishment 

Clause and thereafter. Two of the guys up there on Mount Rushmore, two of the four, are members of no formal religious denomination, in a very religious country. 

So this idea of general openness—that was actually really their 

idea and the natural-born thing was a particular concern about European monarchy and aristocracy, but theirs was an egalitarian republic. 

Senator DURBIN. Thank you. 

Senator CRAIG. Thank you very much. 

Now, let us turn to the Senator from California, Senator Feinstein. 

STATEMENT OF DIANNE FEINSTEIN, A U.S. SENATOR FROM 

THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, and I want to thank 

that came to testify. I appreciate it very much. I am one that approaches this issue very reluctantly, and I want to spell it out, like 

Dr. Spalding to some extent. My mother was born in Russia. My 

father’s parents were born in Poland and Lithuania, respectively. 

So I have the seeds of immigrants in my blood and in my being. 

Essentially, what the Constitution means today is that my mother could not have run for President, but as improbable as it may 

seem, I can. So it essentially means that you skip a generation for 

an immigrant. 

A while ago, I read a treatise by James Schlesinger entitled ‘‘The 

Disuniting of America,’’ and from that I came to believe that there 

is this basic reserved right of birth as a major qualification for the 

presidency. It may not be a bad thing; it may be a strengthening 

thing. Dr. Spalding, I think in your paper you quote Alexander 

Hamilton, who makes that argument under the moniker of the 

safety of a republic, and he goes on to say that it depends essentially on the energy of a common national settlement, on a uniformity of principles and habits, on the exemption of the citizens 

from foreign bias and prejudice, and on the love of country, which 

will almost invariably be found to be closely connected with birth, 

education and family. To a great extent, I agree with that. 

I think this amendment, if it receives two-thirds, will have a very 

hard time being adopted by three-quarters of the legislatures of the 

States. The Constitution here is very dispositive. Despite the arguments about concern at the time of a takeover by a foreign power, 

or that a member of the clergy be designated to come here and be, 

quote, ‘‘a king,’’ end quote, they wrote the Constitution in a very 

specific way: ‘‘No person, except a natural-born citizen or a citizen 

of the United States, at the time of the adoption of this ConstituVerDate 0ct 09 2002 13:15 Nov 19, 2004 Jkt 096683 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96813.TXT SJUD4 PsN: CMORC
30

tion shall be eligible to the office of President. Neither shall any 

person be eligible to that office who shall not have attained the age 

of 35 years and been 14 years a resident within the United States.’’ 

Senator Craig and I go back and forth about the interpretation 

of the Second Amendment to the Constitution as it affects guns, 

and it has produced a lot of debate as to what it means. Here, in 

the text of the Constitution, there is no doubt about what it means. 

Now, the question is does the fact that this is today a much more 

diverse country mean that we should remove that reserved right of 

birth to aspire to the presidency, a right of which very few people 

take hold. A minuscule number of people really want to aspire to 

the presidency. Does the right really serve some basic confirmation 

of American leadership as being related in the highest office to 

birth? I think those are worthy questions and I think we should not 

move precipitously. 

Interestingly enough, coming from the State of the person that 

is now governor who is generally at least accorded the popularity 

of this, I have never had anybody approach me and say, oh, you 

must do this, you know, it is so important. 

So I have read your papers and I have read your examples and 

I appreciate it. I am just reluctant. I suppose I am reluctant because I am not sure it is damaging to go through that first generation of missing that right of aspiration to the highest office of the 

land, to which so few really aspire, and that in terms of the common good of the general electorate, that right doesn’t create a burden which is a healthy burden because it connotes with it a deeper 

responsibility. 

The diaspora of immigrants is a very broad one now, as you 

know. In my State, we have a lot of immigrants and many do not 

aspire to learn English; many do not aspire to want to be anything 

other than what they are, which is fine. They can do that. But in 

the event of the presidency, that reserved right in the Constitution 

of birth I don’t think we can easily dispense with because it is so 

dispositively written in the Constitution. 

So I would like you to come back at me with arguments, and let’s 

begin with Dr. Amar.

Mr. AMAR. Thank you very much, Senator. I grew up in Walnut 

Creek and remember well from the very beginning admiring your 

courage and leadership on so many issues. 

Senator FEINSTEIN. Thank you. 

Mr. AMAR. I think that Professor Yinger put his finger on a very 

interesting word in the Constitution that isn’t much emphasized in 

the amendments. It is in the 14th Amendment, it is the first sentence, and it is that all persons born or naturalized in the United 

States are citizens. 

So there is this deep idea—we tend to focus on later words in the 

14th Amendment about equal protection, but even before we get to 

those later words, there is a very powerful idea of birthright equality in the document. And for me, that idea of everyone born is born 

equally helps explain why the 14th Amendment isn’t just about 

race. It is about people, male and female, being born equal, and 

rich and poor being born equal, and Jew, Gentile and Catholic and 

everything else being born equal. 

31

So I think there is a certain kind of unenlightenment aspect to 

assigning people a fixed status by dint of their birth; you can’t do 

it just by the conditions of your birth. And the 14th Amendment 

which Professor Yinger invoked-I think that word ‘‘born’’ is underattended to. I want to emphasize it because I explain to my students it helps show why the 14th Amendment way before the 19th 

was all about women’s equality. 

Way before the Supreme Court had begun to talk about equal 

protection applying to women, which wasn’t until I graduated from 

high school that the Supreme Court started to talk that way, that 

word ‘‘born’’ actually suggests that it is more than just about race. 

It is about a much bigger idea. 

The only other thing I might mention is, as Congressman Frank, 

I think, mentioned in his remarks, we might not want to think 

about not just the aspirations and the interests and the inclinations of a few people who might run or even what kids think about 

on the playground and how they understand themselves, but the 

rights of the voters themselves to make ultimately the decision. 

Congressman Frank said why don’t we trust the voters to weigh 

that birth situation along with many other factors in making a decision about who we trust most. 

Senator FEINSTEIN. Thank you. 

Anybody else want to take a crack at it? Dr. Spalding. 

Mr. SPALDING. Yes, thank you, Senator. I am actually from the 

Central Valley of California, so I am actually very interested in experience with these issues. 

Senator FEINSTEIN. Two out of three. That is pretty good. 

Mr. SPALDING. This question is an anomaly. Just read the Declaration of Independence: ‘‘All men are created equal.’’ This idea of 

a starting point of equality, I think, is extremely important, but I 

want to emphasize that if you decide to pursue this change, which 

is extremely difficult, I believe it is necessary to at least consider 

and replicate what is a legitimate concern that the Founders talked 

about, which is that it is not the physical notion of being born here, 

but it is the idea that you are attached from birth, you know no 

other allegiance, that has a natural effect. 

An immigrant comes here. This means, obviously, no disrespect, 

and there are cases where this is not the case, but the presidency, 

I think—I want to say this differently. It wasn’t just about monarchy; it was about this attachment issue. 

Lastly, I think in the earlier panel this clause was referred to as 

invidious discrimination. That is not the case. They had a very reasonable and rational reason for thinking this through, and you 

have got an obligation to do that now. This is not an easy question, 

but again I think that the presidency—in this day and age, given 

the power and the authority especially in security affairs, you have 

got to think this through. 

When it comes down to it, when that decision has to be made, 

you have got to have that confidence in the person. The natural 

sense of elections can play a lot of this out. I am very confident in 

that, but if you take this notion of equality too far, then you have 

got to get rid of age requirements. What about some guy who is 35 

who is really sharp? What about this, what about that? 

32

Your job as legislators is to make reasonable rules of a framework that allows republican government to flourish. That is what 

this is about. You are defining the standard, the bar, if you will, 

and you have got a responsibility to make sure that bar is set correctly. 

Senator FEINSTEIN. Thank you. 

Mr. YINGER. I, too, am someone who is a fervent admirer of our 

Constitution and does not believe in amending it lightly. I would 

like to point out several things about this case. 

The first one is that the historical record on this particular 

clause is incredibly thin. There is not a word in the records of the 

Constitutional Convention about why they added the natural-born 

citizen clause. In fact, there is a lot of evidence, as I have in my 

longer testimony, that they were very nervous about that kind of 

restriction. And it is true that skilled historians, including other 

people on this panel, can explain that there are themes floating 

around that this is very consistent with and that it makes sense 

that this was linked to that. 

But the Founders did not have a clear argument that this provision does ‘‘x’’ for us. From my reading of the records of the Constitutional Convention, it seems much more likely that it was a 

last-minute compromise and a whole series of compromises that 

was designed to assuage some of the people who had the strongest 

fears about foreign influence. But there is certainly nothing in the 

historical record that makes a clear argument, here is what this 

provision does. 

The second point I would make is, again, I think it is not really 

the case that we can protect ourselves through provisions like this. 

There are all kinds of ways that Presidents might not serve the interests of this country, and most of the ways don’t have anything 

to do with where they are born. We have to have a very strong system, which the Founders gave us and has been improved over time, 

a very strong system for trying to identify people who will act in 

the Nation’s best interest. 

The idea that somehow we can take one subset of them and come 

up with a criteria for eliminating people who would be disloyal, I 

think, is really an illusion. Again, there are 12.8 million naturalized citizens, and the idea that some rule or other to identify which 

ones of those might be loyal and which not is, I think, just not 

going to work. 

To me, I think a much clearer way to think about it is to say we 

have been struggling to get a principle of equal rights for our citizens. Here is an example where, for complicated and hard-to-pindown historical reasons we have an exception. We can’t find any 

reason to support the exception today. It doesn’t serve any purpose, 

it doesn’t give us any protection. It may make us feel good, but it 

doesn’t really give us any substantive protection, and let’s just get 

rid of it. It is a very small change in the Constitution. It makes 

the Constitution consistent. 

The 14th Amendment doesn’t just say ‘‘born’’; it says ‘‘burn and 

naturalized in the United States.’’ It says very clearly we should 

not treat people who are naturalized any differently. It is right in 

the Constitution. It contradicts this provision, and yet we allow the 

Federal Government to maintain this one discrimination against 

33

naturalized citizens when we have rejected it for the States and we 

reject it in every other case. It is much more consistent to just get 

rid of it. 

Senator FEINSTEIN. Thank you, all of you. Thank you very much. 

Senator CRAIG. Thank you. 

I have one last question to ask of you, and I think it is appropriate to say for those of us who have attempted to be students of 

the Constitution and the period of time in which it was created, it 

has grown to be viewed as a very principled document with contradictions. But at the time, it was also a very political document; 

it had to be to be ratified. Oftentimes, we forget the politics that 

spiraled around it during its time of creation and ratification. 

My good friend from Oklahoma, Don Nickles, has suggested an 

alternative approach to this issue. As you know, Senator Nickles 

has offered legislation that would statutorily define ‘‘native-born 

citizen’’ to include anyone who receives citizenship or birth by virtue of their parents’ citizenship or was adopted by the age of 18 

by American parents who are otherwise able to transmit citizenship. 

So my question to all of you would be what is your view of this 

approach? Do you believe it is constitutionally sound? Is there any 

reason not to pursue both approaches, both statutorily to resolve or 

to define, and then constitutionally to take the ultimate question 

away that is so clearly put within the Constitution? 

Gentlemen? 

Mr. AMAR. It is an extraordinarily generous provision. One side 

might call it a liberal provision,another side might call it a compassionate provision, but it is an idea with a very big heart. There are 

some real questions about whether it might ever get litigated or it 

might be non-justiciable, and if it were litigated, the argument 

would be you are reading out of the Constitution the word ‘‘born.’’ 

You are supposed to be born a citizen and some people aren’t on 

the day of their birth citizens, and this creates sort of a retroactive 

citizenship. 

The counter would be that, yes, it is a kind of a legal fiction to 

treat adopted kids as legally identical to natural-born, to biological 

offspring, but we do it in other parts of the law. We try to treat 

them equally. And it is a legal fiction again that is motivated by 

a spirit of generosity, and courts should accord some deference to 

Congress when it is defining ambiguous provisions. 

If I were trying to defend it in court, one could even make a formalistic argument that, well, perhaps actually the statute confers 

on everyone in the world an imperfect or inchoate American citizenship at the time of their birth that is only perfected if and when 

they happen to be adopted. 

So I can imagine clever lawyerly arguments, and I might feel 

comfortable making some of those because I think it is such a generous provision. But who knows what some future five out of nine 

Justices would do with it? You could have both approaches, though, 

going together, and one idea might be that the statute helps create 

a public face, a reason for generosity that people see and that 

might actually also help them see how the statute doesn’t fully fix 

the problem. It is a partial fix only for certain adopted kids, so 

maybe we need the constitutional amendment to fully fix it. 

34

But the two might actually synergistically go together to help because the Constitution is so difficult to amend, give it a public and 

innocent, rather than, oh, this is to help some existing politician 

right now who wants to be President or something. 

Senator CRAIG. Comments, Dr. Spalding? 

Mr. SPALDING. I agree with everything Professor Amar said. Two 

things I would add to that. One is I would go back and look at the 

Naturalization Act of 1790 that included the Framers. They passed 

legislation there that said children of citizens of the United States 

beyond the sea. They seemed to think that this was within their 

powers in Congress and this was needed to be addressed. So there 

clearly is something there, and I don’t think it has been fully 

fleshed out yet and I think that that is something that ought to be 

done. 

Secondly, I think there is this notion coming out of the Child 

Citizenship Act of 2000 about adoptees. The law already does that. 

I think if you want to address these problems, one thing you do is 

to see whether it can be done legislatively, and given the difficulty 

of amending the Constitution, you should go down that avenue. 

These things aren’t contradictory. You could do both. A legislative 

approach would help the constitutional approach. 

One thing I would add is I am a general proponent of Congress 

asserting its authority to the court; that is to say that the one way 

you will not have any authority in this matter is if you do nothing. 

The one way you might have authority is if you assert it, and there 

is a precedent, I think, to look at the court giving deference to Congress. Congress has plenary authority over naturalization and 

there is something called Chevron deference by which the court 

gives deference to the body that clearly has authority, and I think 

it could be applied in this case. 

Senator CRAIG. Thank you. 

Mr. YINGER. I would like to second the remarks of the other people on the panel. I would just like to add, when I started this I was 

motivated in part because of my personal interest and I thought 

that trying to fix the situation—

Senator CRAIG. There is nothing wrong with that passion. 

Mr. YINGER. Well, that is an important part of many public policy debates, I know. 

I was at first concerned with adopted orphans, particularly, but 

I have come to believe that the issue is a broader one, and so I 

think that this is an issue where many approaches should be tried. 

Because of the difficulty with a constitutional amendment, I think 

the legislative approach is a very good one to try. But I also believe 

that it is only a partial fix to the broader problem of equal rights. 

Senator CRAIG. Well, gentlemen, we thank you very much for 

your participation and your contribution to what is a fascinating 

debate and a very poignant issue that I think future Congresses 

are going to ultimately want to address for many of the reasons 

you have spoken to. 

I would like to submit for the record an article referenced in Senator Hatch’s opening statement, as well as some additional articles 

on this topic. We will keep the record open for a week for any written questions or additional information. 

With that, the Committee will stand adjourned. 

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[Whereupon, at 11:58 a.m., the Committee was adjourned.] 

[Submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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