Our problems remain epistemological.

Monday, August 16, 2021

The Natural Born Citizen Clause as a Limited Policy Response to International Dangers and American Weakness

Consider the following hypotheticals. Imagine a long-enduing rivalry between two world-wide empires: Empire A and Empire B. Each has its capital in Europe. The two empires go to war against one another from time to time. There is no long-term optimism for world peace. The consequences of such wars are devastating. The United States tries to stay neutral, but U.S. merchant ships are attacked. The United States offers to mediate. 

The President will choose one of two senior State Department candidates to act as chief mediator. Both candidates are U.S. citizens; both are equally loyal to the United States; and both are equally good choices in terms of traditional “merits” or “qualifications.” 

One candidate was born in the United States, and he is able to trace his American heritage back six generations through both his father and mother. His ancestors served in the active U.S. military during the American Civil War and both world wars. 

By contrast, the other candidate was born in Empire A, grew up in Empire A until the age of 16, was educated there, which is where his extended family remains, and then, at the age of 16, immigrated to the United States with his immediate family after they and he had been bombed by Empire B’s military (in a prior conflict). The second candidate subsequently became a naturalized U.S. citizen, albeit, he has never formally given up his Empire-A citizenship. Arguably, he is a dual national. Culturally, he retains some “connections” with Empire A. 

If you were the President, which candidate would you choose? 

Which candidate is more likely to mediate the dispute successfully? 

If you think it reasonably clear that the second candidate would be the lesser choice—despite that candidate’s loyalty, allegiance, and trustworthiness, then you are admitting that reasonable judgments relating to “merits” and “qualifications” are not entirely co-extensive with traditional prudential judgments involving the candidate’s policy approach, education, skills, and experience. The candidate’s actual merits do not relate in toto either to the individual candidate’s abstract qualifications or to intramural (American-focused) distributional consequences among competing (American) pools of candidates in connection with their group status, ethnicity, national origin, etc. Instead, the better choice is connected with the function of the position and the candidate’s likelihood of success in that position. The latter might turn on how foreigners react to the American candidate. How the foreigners react to the American candidate for chief mediator might be rooted in their own reasonable prudential judgments, or it might arise in consequence of bigotry, prejudice, and other irrational preconceptions. In any event, the foreigners’ reaction(s) might define the possibility for a successful mediation, where the stakes are large. The President’s choosing a chief mediator based upon what he believes will be Empire B’s reaction might work an unfairness vis-à-vis the individual candidate. In some instances, that unfairness might be so great that the United States might (and should) walk away from the process or simply tell Empire B that the United States chooses its functionaries as it sees fit. But the President might not take that approach. The President might tell the second candidate.

You hold and have held high positions of trust in the State, and will hold others in the future. The success of this diplomatic mission will raise all boats—the prestige of the United States and my administration, the condition of the people in the warring states and neutrals, and the safety of all our people living abroad, along with the commercial interests of our people engaged in foreign trade. It might be unfair to you individually, but the stakes are too large for me to allow that admitted, individualized unfairness to determine my choice.

Contra Professor Kennedy (characterizing the Natural Born Citizen Clause as an “unjustified inequality”),[1] Professor Post (characterizing the Natural Born Citizen Clause as a “vestigial excrescence” and an “instance of rank superstition”),[2] and Professor Tribe (characterizing the Natural Born Citizen Clause as “offensively discriminatory, nativist, and xenophobic”),[3] is not the president’s approach in this hypothetical a reasonably fair or good one—at least in some circumstances? 

Now take a step back. Assume there is no Natural Born Citizen Clause. Here, the hypothetical is not that the President is choosing between two candidates for chief mediator. Instead, you, the voter, are choosing between two otherwise similarly placed presidential candidates—one foreign born (but now a naturalized citizen) and one native born. It is understood that the President will personally attend and chair the peace conference at the head of the American diplomatic delegation. Would it be entirely wrong for a voter to vote for the native-born presidential candidate, and against the foreign born one based on their different life stories? In such circumstances, the former candidate benefits from the fortuity of birth, blood, time, and place. If your answer is yes—that a voter could reasonably cast his vote on such a basis, then one might argue that the Natural Born Citizen Clause is but one short step removed from that choice. The Natural Born Citizen Clause constitutionalizes the choice of the hypothetical president (appointing the chief mediator) and the hypothetical voter (electing a President), discussed above. 

Now consider a second hypothetical. Assume, again, there is no Natural Born Citizen Clause. Empire A and Empire B are at war. The United States is holding a presidential election. The two candidates for President of the United States have similar party manifestos, etc. But their vitas are those of the two hypothetical chief mediators described above. If you were a citizen of Empire B and an advisor to its government, how (if at all) would you advise your government to react to this situation? Would you do nothing at all? Would your citizens (and posterity) think such conduct responsible? What would your citizens think if you chose not to respond or interfere in the U.S. election? Is it obvious what counts as lawful speech or unlawful interference—under the standards of public international law and domestic U.S. law? Would not your advice, given during the exigencies of war-time, and with less than perfect information, depend on many contingencies and imponderables relating to military developments and the likelihood of your successfully affecting the outcome of the U.S. election? 

Now consider a third hypothetical. You are now a delegate to your country’s constitutional convention. Your independent country is relatively new, not particularly wealthy, and not especially powerful. But you know there will be wars, and the great powers have an interest, if not in moving your nation onto “their” side, at least in keeping your nation from allying with the “other” side. Naturally, you fear such entanglements, and you fear interference by these foreign nations in your decision-making. You fear such interference because if it is successful, it means you will not be the master in your own home. You fear it because the actions of one foreign power might lead to counter-efforts by their foreign opponents. And you fear it because the result may not just be loss of control in elections, but domestic disputes about fair-play during contested elections which could lead to civil strife and, perhaps, to civil war amongst rival domestic personalities and factions. You have no clear idea how far the great powers will go to keep your country from upsetting their plans. 

In these circumstances, one way to think about the Natural Born Citizen Clause is that it was an effort by the Constitution’s Framers to pacify the United States’ relationship with foreign powers. It was a unilateral effort to indicate that the new nation wanted peace with the world’s great powers—its cost was that it bound the hands of the public when choosing some of their future leaders. It was an attempt to take the circumstances of all the hypotheticals posed above off the policy-making table by assuring foreign powers that the new and relatively weak American Republic intended to stay out of Europe’s wars. Thus, it is really no surprise that the Constitution’s “natural born citizen” language was promoted by John Jay—Jay was the nation’s Secretary of Foreign Affairs, as opposed to a cabinet member having purely domestic responsibilities. The Natural Born Citizen Clause was never about us (Americans)—native born or foreign born; it was always about them (foreign powers). 

The efforts of the modern commentators to explain the Natural Born Citizen Clause as one rooted in bigotry and prejudice directed at naturalized citizens is the product of an intellectual milieu of large, powerful countries, where there is no memory of bombs falling on the nation’s core territory or any existential fear of conquest by foreign powers. The concern of these authors is merely the fair, intramural distribution of society’s benefits and opportunities, between citizens and immigrants, and between native-born and foreign-born citizens. The “other,” to the extent he exists at all, is just a person who has not yet become or who has not yet been allowed to become an American. 

Modern theories of separation of powers and constitutional design have little or nothing to do with the Framers’ and Founders’ world of revolutions and imperial wars—where oceans and frontiers pose dangers—as you yourself pose dangers to others—where others may burn down your capital as you may burn down theirs. The Natural Born Citizen Clause was the limited policy response of a People who believed that beyond one’s national frontier was a dangerous world. That the clause’s purpose is no longer widely understood indicates that much has changed since 1787. 


[1] Randall Kennedy, A Natural Aristocracy? (1995) 12 Constitutional Commentary 175.

[2] Robert Post, What is the Constitution’s Worst Provision? (1995) 12 Constitutional Commentary 191.

[3] Laurence H. Tribe, “Natural Born Citizen” as Illuminated by the Cruz Candidacy (2017) 161(2) Proceedings of the American Philosophical Society 111; Laurence H. Tribe, Reflections on the “Natural Born Citizen” Clause as Illuminated by the Cruz Candidacy, Harvard Civil Rights-Civil Liberties Law Review Blog (15 September 2016), <https://tinyurl.com/h5mevuzc>. 

Seth Barrett Tillman, The Natural Born Citizen Clause as a Limited Policy Response to International Dangers and American Weakness, New Reform Club (Aug. 16, 2021, 12:37 PM), <https://reformclub.blogspot.com/2021/08/the-natural-born-citizen-clause-as.html>; 


Michael Edwards said...

I was not happy with the last one I commented on. This one is one I fully agree. Complex, must read all through, but your arguments are very good.

Unknown said...

"But one short step removed"
Well, Seth, if that step takes away the choice from the American voters, implicitly distrusting the wisdom of said voters, that is, in my humble opinion, a rather big step.