Re: SF Gate: Outsiders agog at pick of voters/Utah senator wants amendment to let foreign-born be president

[Robert Sheridan]

Title: Message

And now the $64,000 question:   Suppose that discrimination on the basis of alien birth against foreign-born citizens seeking to hold other federal public office to which they'd been elected is held a violation of equal protection as interpreted authoritatively by the SC.  Assume that either the Speaker of the House or the Vice President is foreign born and circumstances occur in which such person is called upon to assume the office of President of the U.S.  Assume there is great public pressure to allow this person to serve.   Could the SC, on the basis of constitutional doctrine established by it, declare the plain text of the 'natural born' portion of the Constitution, unconstitutional?   Didn't the Court disregard the plain text of the Eleventh Amendment in Hans v. Louisiana by holding that even though the text prohibits only out-of-staters and foreigners from suing a state, the doctrine of sovereign immunity is really broader than the amendment and thus protects the states from suit by one of its own citizens?  Don't the conservative justices hold to this view today?  See Clarence Thomas's opinion in Federal Maritime Com'n v. S. Carolina Port Authority, 2002.   Why couldn't the Court hold that the 'natural persons' text has been superceded by other constitutional law that is in fact much broader and more powerful than that historical anachronism, judging by today's standards?   Thus, is it absolutely essential that we have an amendment?  [I agree, it would be preferable to have such an amendment and would support an appropriate one for many reasons, including the one Prof. Sisk so nicely put forth.]   rs sfls   -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Sisk, Gregory C. Sent: Thursday, October 09, 2003 1:34 PM To: [EMAIL PROTECTED] Subject: Re: SF Gate: Outsiders agog at pick of voters/Utah senator wants amendment to let foreign-born be president   A few weeks ago, my eight-year-old daughter Katie invited one of her closest friends to stay overnight, you know, a typical second-grade sleep-over.  As we were talking before bed, my daughter and I were bantering about how I’ve often said that I expect her to grow up and become President, perhaps the first woman President (if, as I think doubtful, that day still has yet to arrive in another 30 years).  Her friend immediately interjected that Katie simply couldn’t be the first woman President because she (the friend) intended to be the first woman President.  And then they playfully argued about which was entitled to that honor.  Because it would have been cruel to intercede as these two children argued about priority for the Presidency, I didn’t explain that, in fact, her friend could *not* become President because the friend was born in Colombia to Colombian parents, and she thus was precluded under the Constitution from serving in the office (even though she has lived in the United States since infancy).   But the episode did serve to pointedly remind me that this constitutional prohibition does have the effect of labeling an entire segment of loyal citizens as unfit to serve in the nation’s highest office and that it does have a negative symbolic effect.  Had I told Katie’s friend that she, as an immigrant, could never be President, I have no doubt that it would have hurt her feelings and made her feel like, yes, a second-class citizen.  While I don’t suggest that adult naturalized citizens would react the same as an eight-year-old, I would imagine that those negative feelings are felt by many and quite rightly.  Moreover, the restriction reduces the pool of talent for the highest office (and by this I don’t mean to invite discussion of whether Arnold Schwarzenegger or any other particular person is one of those missed talents).   To be sure, the national community has good reason to expect that those seeking election to the highest office have become a full member of the community, in terms of citizenship, substantial involvement in the public life of their country of birth or adoption, and understanding of the expectations and culture of democratic governance in the uniquely American style.  Thus, a requirement that a naturalized citizen desiring to seek the Presidency have been a citizen for a certain period of time, 15 or 25 years (reasonable people obviously can disagree on the appropriate time period), is not only reasonable but eminently well-justified.  But an outright prohibition on immigrants seeking the Presidency is a crude means of achieving the end of ensuring the person has become fully engaged in American public life and community.  And, of course, there remains the ultimate check of democratic election, as the public is unlikely to elect someone who has not become a fully engaged member of the polity or remains alienated from the American democratic process.   Gregory Sisk Professor of Law University of St. Thomas School of Law (Minneapolis) MSL 400, 1000 LaSalle Avenue Minneapolis, MN  55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html