A natural aristocracy?

• Author: Kennedy, Randall L.
• Position: Constitutional Stupidities: A Symposium

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been Fourteen Years a Resident within the United States.(1)

One concrete way of measuring the extent to which people affiliated with different social groups are full and equal members of this nation is to ask whether a person associated with that group could plausibly be elevated to the highest office in the land. The added difficulties, solely on the basis of race or gender, that an African-American or female presidential candidate faces, regardless of that person's talents, are a testament to the extent to which this society is still marked by racism and sexism. One might take some minimal comfort, though, in recognizing that their difficulties are the consequence of social biases rather than formal legal barriers, for the very point of the passage quoted above from Article II of the Constitution is to declare in effect that any native-born American over thirty five years of age who has resided in the United States for fourteen years is eligible to serve as President.(2) It thus exemplifies--by being inclusive--what is among the best aspects of the American political tradition.

Yet the clause also illustrates one of the least admirable parts of that tradition.(3) The reason, therefore, that I choose this provision as my least favorite part of the Constitution is that, with one now-meaningless exception--persons who were citizens of the United States at the time the Constitution was adopted--it wholly excludes from eligibility for the Presidency all persons who are not native born.

Formally barred from the Presidency, then, are people who may have invested their all, even risked their lives, on behalf of the nation, some of them even before becoming citizens, many others afterward.(4) This idolatry of mere place of birth seems to me an instance of rank superstition. Place of birth indicates nothing about a person's willed attachment to a country, a polity, a way of life. It only describes an accident of fate over which an individual had no control. It is a truly "immutable" aspect of one's biography, in today's world more so even than ethnicity or gender.

All citizens of the United States should have an equal legal right to vie for the nation's highest...