Testimony, July 24, 2000, before the Subcommittee on the Constitution

Committee on the Judiciary

U.S. House of Representatives

By Forrest McDonald

Distinguished University Research Professor of History at the University of Alabama

To appreciate the significance of the Constitution's restriction of presidential eligibility to natural born citizens, it is useful to place the requirement in historical perspective. Americans of the founding generation were extremely distrustful of executive authority because experience with colonial governors had convinced them that executive power was inherently inimical to liberty, because they felt betrayed by George III, and because they considered a strong executive to be incompatible with the republicanism they embraced when they declared their independence in 1776. As a consequence, their revolutionary state constitutions provided minimal executive branches, and the first national constitution, the Articles of Confederation, established no executive arm.

By the time the Constitutional Convention met in Philadelphia in 1787, difficulties undergone during and after the war for independence had convinced most public spirited men that an energetic national executive was necessary, but they approached the problem cautiously, and at least a third of the delegates to the Convention favored a plural executive in the interest of safety. The others endorsed a single executive, not least because all understood that George Washington, whom everybody trusted, would be the first occupant of the office.

But Washington could not serve forever, and the delegates groped almost desperately to devise a suitable way of choosing his successors. The search took up more of the debates than any other subject the Convention faced. Most delegates favored having Congress elect the president, but that would make the executive department dependent upon the legislative unless the president were ineligible for reelection, but ineligibility would necessitate a dangerously long term--six or seven years being the common suggestion.

The greatest fear was of corrupt influences upon the election, particularly from abroad. Since the time of Louis XIV in France, every major European power had developed what was called a "secret service" along the lines of the current CIA and the former Soviet KGB. The damage that such agencies could do was vivid in the American imagination, and it was far from imaginary. The delegates repeatedly cited as a horrible example the recent demise of Poland. Poland had an elective monarch, the electorate consisting of a corrupt nobility, and only fifteen years before the American Constitutional Convention, the secret services of Austria, Prussia, and Russia had connived to engineer the election of their own choice for king, whereupon the entirety of Poland was partitioned and divided among those three powers. As Charles Pinckney, a delegate from South Carolina, put it, the danger was that "we shall soon have the scenes of the Polish Diets and elections re-acted here, and in not many years the fate of Poland may be that of United America."

Fear of foreign influence was pandemic. Elbridge Gerry of Massachusetts wanted to go so far as to prevent foreigners from becoming citizens, taking the position that naturalized citizens would always have divided loyalties. On much the same ground, John Jay, then Superintendent of Foreign Affairs--the predecessor of the office of Secretary of State--wrote to Washington, as president of the Convention, urging that it would be "wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen." Meanwhile, a rumor floated in the summer of 1787 that the Convention intended to invite the Bishop of Osnaburgh, a distant relative of George III, to assume the American crown--a rumor that delegates publicly denied despite the mantle of secrecy cloaking all other deliberations. Such nervous talk emphasized to the Convention that it must come up with something that in no way resembled a monarchy nor could be converted into a monarchy (which would be possible if naturalized citizens should be eligible to head the executive branch).

Debates concerning the mode of electing the president raged until early September, less than two weeks before the Convention adjourned. The Pierce Butler, an Irish-born delegate from South Carolina, came up with a cumbersome plan that overcame all objections that had been raised against earlier proposals. This was the electoral college system: the state legislatures (or, if the legislatures so chose, the voting public) would select a number of electors equal to the states' Senators and Representatives combined; the electors would vote in their home states for two candidates, one of whom must be an inhabitant of another state. Whoever got the most votes, if a majority, became president, and the runner-up became vice president. If no candidate polled a majority, the House would choose the president, each state delegation having one vote. The president would serve a four-year term and could be re-elected any number of times.

The system was so diffuse--cockamamie is not too strong a word--that it would be virtually impossible, given the primitive communication facilities then available, for foreign agents to corrupt it. But for good measure, considering the doubts about divided loyalties expressed by Gerry, Jay, and others, as well as the fear of conspirators who might in future invite foreign royalty to assume the presidency, Butler's proposal included the restrictive language that found its way into Article II, section I, of the Constitution: "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."

That language was adopted without a single dissenting voice. Nor did anyone speak in its support: its meaning and its rationale went without saying. As an aside, the wisdom of the restriction and of the larger electoral system of which it was a part was soon borne out. In the presidential elections of 1796 and 1800 agents of Revolutionary France attempted by both overt and covert means to determine the outcome.

Now, the question before the subcommittee is not the original purpose or understanding of the clause, but whether it has outlived its usefulness. The circumstances both at home and internationally that prevailed at the time of the founding have long since vanished, so perhaps a rethinking is in order. And yet, it seems to me on balance that conditions today and in the foreseeable future warrant a continuation of the caution shown by the framers. Take the matter of possible corruption in the electoral process. The system is structurally as diffuse as it was in the eighteenth century, but in practice it might as well be totally centralized, given modern techniques of communication and the instantaneous portability of money. Presidential candidates spend scores of millions of dollars; just consider the prospective influence of a few billion-a sum well within the means of a large number of countries any one of which, while unwilling to risk such a sum on a natural born American, might be eager to support a favorite son candidate, that is one who had been born and raised in their country.

The original Constitution contemplated a relatively weak presidency, but the office has become the most powerful in the world, and safeguards surrounding it are therefore more indispensable than ever. The one area of presidential authority that is virtually unchecked and uncheckable (despite the War Powers Act and similar efforts) is the president's power as commander in chief. Can that power be safely entrusted to a foreign-born citizen? John Jay didn't think so; nor do I; nor I suspect do the vast majority of Americans.

Let us consider a few scenarios. Start with an extreme example. The espionage agencies of a number of countries, doubtless including the United States, have sometimes employed what in the spy novel is called an agent under deep cover. A young person is thoroughly trained and indoctrinated before being sent to an enemy country, where he or she becomes a citizen and an exemplar of respectable behavior. This goes on for years, even decades, until the parent agency determines that it is time to activate the agent. It is not difficult to imagine such a person obtaining an office of great trust. But a Senator is one of 100, and a Representative is one of 435. What check is there on the president who is one of one, except for the constitutional restriction?

Should that seem too remote a possibility, consider a more likely case. A person comes to America from country "X" as a young man, takes out citizenship, become thoroughly Americanized, and is as loyal to his adopted country as can be. Nonetheless, in dealing with his original country he is bound to be influenced by his nativity, whether in the form of hostility or favoritism. Even should he prove able to rise above his prejudices and deal with the old country objectively, he would still be widely regarded as prejudiced, and the media would fan such suspicions. As commander in chief, it is not enough to be above reproach, one must be above the suspicion of reproach.

Let me cite a more tangible example, one closer to recent experience. We all know a number of Cuban-Americans. They are loyal to our country, now their country too. They are pillars of their communities and are more fiercely patriotic than most natural born Americans. And yet, as the recent to-do over Elian Gonzalez demonstrated, few of them are able to regard Cuba dispassionately or treat relations with Castro's Cuba with equanimity. Suppose we had had a Cuban-born president in the White House at the time of the Gonzalez controversy. Would that president have been able to retain objectivity and, as importantly, any shred of credibility under the circumstances?

In conclusion let me say that on this as on other constitutional questions, we are best guided by the wisdom and prudence of the Founding Fathers. The amendment process is not to be taken lightly, nor should it be used for political or electioneering purposes. The structure created by the Constitution has stood the test of time and continues to stand as the truest foundation for our freedom.

I am involved with no federal grants, contracts, or subcontracts.