July 28, 2009 | The presidential election of 2009 is the first in American history in which questions about the citizenship of both major party candidates were raised. Article II of the Constitution says that "No person except a natural-born citizen ... shall be eligible to the office of president." During the campaign, some argued that this disqualified John McCain, because he was born in the Panama Canal Zone where his father, a naval officer, was stationed. Also during the campaign, some conservatives raised questions about whether Obama was born on U.S. soil. Since Obama's election as president, those critics have spawned an entire movement of "birthers" who have displaced "tea-baggers" on the wingnut right.
But it doesn't really matter where McCain or Obama was born. In the first Naturalization Act of 1790, Congress, which included many leaders who had drafted the federal Constitution in Philadelphia, defined "natural-born" to include the children of American citizens born outside the United States. And Supreme Court interpretations of the 14th Amendment have established that children of foreign nationals born on U.S. soil are citizens of the United States. It is doubtful that the drafters of the 14th Amendment, which was designed to give U.S. citizenship to ex-slaves after the Civil War, intended to bestow citizenship on the children of foreign nationals in the U.S., but mistaken or not this interpretation has become settled law. There are, in short, three ways to become a U.S. citizen -- to be born on U.S. soil, to U.S. citizens or foreign nationals; to be born to one or more U.S. citizen parents abroad; and to be born a foreign national, but to become a citizen of the U.S. by immigration to the U.S. and naturalization according to U.S. law.
The Constitution excludes the third category of American citizens -- naturalized immigrants -- from ever being eligible to become president of the United States (or vice-president, inasmuch as the vice-president, who might inherit the office, must meet all of the qualifications of a president). Absent an amendment to the Constitution, Jennifer Granholm, the Democratic governor of Michigan who was born in Canada, can never become president of the United States, and the Austrian-born governor of California, Arnold Schwarzenegger, can never become terminator in chief.
How did this discriminatory clause get incorporated in the Constitution? During the Constitutional Convention in Philadelphia during the summer of 1787, John Jay, who would go on to co-author the Federalist Papers with Alexander Hamilton and James Madison and to serve as chief justice of the Supreme Court, wrote a note to George Washington, who was presiding over the convention: "Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare especially that the command in chief of the American Army shall not be given to nor devolve on, any but a natural-born citizen." Washington agreed, writing: "I thank you for the hints contained in your letter." The convention passed the "natural-born citizen" requirement for presidential eligibility unanimously and without debate.
http://www.salon.com/opinion/feature/2009/07/28/immigrant_president/index.html
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