[Senate Hearing 108-694] [From the U.S. Government Publishing Office] 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 U.S. GOVERNMENT PRINTING OFFICE 96-813 WASHINGTON : 2004 ____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001 COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas JOHN EDWARDS, North Carolina Bruce Artim, Chief Counsel and Staff Director Bruce A. Cohen, Democratic Chief Counsel and Staff Director 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 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 journal 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 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 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 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 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. 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 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 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. 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. 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. 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 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. 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 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? 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 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. 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 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 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 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 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...'' ``...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 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 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 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 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 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. 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 Constitution 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. 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 under-attended 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? 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-pin-down 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 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. 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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