The Contemporary Presidency: Constitutional Reform and the Presidency: The Recent Effort to Repeal the Natural‐Born Citizen Requirement

Article II, Section 1, clause 5 of the U.S. Constitution states, "No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President." Recently, interest has grown in amending this provision to widen presidential eligibility to include naturalized citizens. Members of Congress have introduced amendments in both the House and Senate and held hearings on them, some academic books on constitutional reform have advocated the revision, media outlets such as the Los Angeles Times and The Economist have editorialized in favor of it, and a Web site was created and spot ads run on television in California during 2004 to increase backing for it. At the first Republican presidential debate in May 2007, moderator Chris Mathews asked the candidates whether they would support amending the Constitution to allow naturalized citizens such as Florida senator Mel Martinez or California governor Arnold Schwarzenegger to run for president. While hardly representing a groundswell of support, the proposal sustained enough interest to start creeping closer to the political agenda in 2004, but since that time, it appears to have lost much of its political momentum. The Context: A Formally Inflexible Constitution In his comparative study of democracy, Arend Lijphart (1999, 187) finds that federal states, besides dividing powers between the levels of government and often employing strong bicameralism in which one legislative chamber represents the subnational units, usually have difficult constitutional amendment procedures. This constitutional inflexibility helps protect the subnational units by giving them something close to a minority veto against fundamental changes in the political order. Article V of the U.S. Constitution reflects that intention, especially when, after describing the regular amendment procedure, it guarantees that "no state, without its consent, shall be deprived of its equal suffrage in the Senate." To alter the Senate, which overrepresents small states and must approve amendments, thus requires unanimity. Among other federal states, the German constitution requires a two-thirds majority of both legislative chambers, one of which overrepresents the smaller lander, to vote for constitutional amendments. In Canada, though the two legislative chambers pass constitutional amendments by a simple majority vote, two-thirds of Canada's provinces must ratify them, with the ratifying provinces representing at least 50% of the total population of Canada. The U.S. amendment procedure outdoes that of other federal states such as Germany or Canada by first requiring two-thirds of each chamber of Congress (or two-thirds of the states requesting a convention to amend the constitution) to approve an amendment, and then requiring three-quarters of the state legislatures (or three-quarters of the special state ratifying conventions) to ratify the amendment. This formula makes the U.S. Constitution the world's most difficult to amend, now that the more rigid constitution of Yugoslavia has disappeared (Levinson 2006, 204). All amendments except the Twenty-first Amendment have utilized the two-thirds of Congress and three-quarters of the state legislatures formula. With one party rarely enjoying a two-thirds majority in both the House and Senate, and party discipline often imperfect, the two-thirds requirement effectively screens most potential amendments from passage. James Sundquist notes that because every state except Nebraska has a bicameral legislature, the ratification formula actually enables 13 of the 99 state legislative chambers to block an amendment, which increases the ratification threshold from 75% to 88%. He concludes that the extraordinary majorities necessary to enact a constitutional amendment gives "any significant political bloc ... an effective veto" (Sundquist 1992, 17). Yet almost any amendment that involves a nontrivial change will strike some group or set of states as disadvantageous and likely engender their opposition. …