Despite his racism, his incompetence, his soliciting of foreign intelligence to boost his presidential bids, what may be multiple attempts at obstructing justice, and his undermining of American democracy, Donald Trump is still eligible to serve as president of the United States. And that’s because, like his running mate and their Democratic opponents in the race for the White House, he meets the two main constitutional requirements to serve as commander-in-chief: He’s over 35 and a natural-born citizen.
While setting a minimum age for the president seems somewhat arbitrary, the requirement to be a natural-born citizen is rooted in a xenophobic fear of recent immigrants as potentially disloyal Americans who might be foreign agents. It creates a tiered citizenship both legally and psychologically: Through the “natural-born” clause, the Constitution grants more rights to those who are Americans by birth than those who are Americans by choice. As a result, naturalized citizens are made to feel — whether consciously or not — that they are not actually every bit as American as their natural-born counterparts, despite what they’re told when they swear their allegiance to the United States.
“We’re told various stories about our democracy,” Randall Kennedy, a professor at Harvard Law School, said in an interview. “We’re told all citizens are the same. Well, all citizens are not the same because the United States Constitution makes a distinction.” That’s why, as Kennedy has argued, the Constitution should be amended to allow naturalized citizens to serve as president.
The origins of the “natural-born” clause can be traced back to a letter that John Jay, who would later serve as the first chief justice of the Supreme Court, sent to George Washington. “Permit me to hint,” Jay wrote, “whether it would not 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 devolved on, any but a natural born citizen.” Jay feared that naturalized citizens might serve foreign interests in their pursuit of the presidency. (Incidentally, that’s the charge that the bipartisan, Republican-led Senate Intelligence Committee recently made against the Trump campaign.)
“What matters to me is that we’re not in the 18th century,” Kennedy said. “We’re in the 21st century and there are millions and millions of people who were born abroad, who have become American citizens, and are willing to give their all to the betterment of this country.” Indeed, foreign-born Americans have served their country in all the ways they can: as activists and service members; as governors; as members of Congress; as Supreme Court justices; and as secretaries of state, or America’s ‘chief ambassadors.’”
In recent years, the “natural-born” clause has been used as a weapon to advance white supremacy. Trump’s ramp-up to his presidential run was the racist birther conspiracy, where he peddled a lie that Barack Obama, the nation’s first Black president, was not actually born in the United States. But despite the fact that Obama was born in Hawaii, the conspiracy gained traction, and not only because people were so willing to believe a racist myth, but because it was empowered by the Constitution. But for the “natural-born” clause, an accusation that an American citizen is foreign-born when they’re not should be met with nothing more than a shrug.
Birtherism was so successful and damaging that, according to The New York Times, during Joe Biden’s search for a running mate, Senator Tammy Duckworth was dismissed in part because the campaign’s legal advisers worried that her birth overseas would cause some to doubt her eligibility to serve, even though her father was a US citizen — making her a natural-born citizen. “While Mr. Biden’s team believed Ms. Duckworth was eligible for national office, campaign lawyers feared that it would take just one partisan judge in one swing state to throw the whole Democratic ticket off the ballot,” the Times wrote.
When the Constitution makes a distinction — big or small — between its natural-born and naturalized citizens, it emboldens xenophobes and racists. During World War II, General John L. DeWitt recommended to President Franklin D. Roosevelt that the US government intern Japanese-Americans because he believed they were conspiring with Japanese nationals to sabotage the United States. A few years later, in a testimony to the House Naval Affairs Committee, DeWitt was asked about Japanese-Americans who were serving in the military. He responded with a racist remark, stating that a Japanese American is still Japanese. “It makes no difference whether he is an American citizen or not,” he said.
DeWitt may have been talking about both naturalized and natural-born Japanese Americans. But that’s why the consequences of the “natural-born” clause have a heavier burden on people of color. White Americans are seldom asked where they’re really from, while brown Americans are often assumed to be recent immigrants and are therefore likelier to be charged with dual loyalty, whether they were born on US soil or not.
Both Republicans and Democrats have shown support for a constitutional amendment to remove the “natural-born” clause and its insinuation that recent immigrants are inherently untrustworthy. They must muster the political will to do it, no matter how tall a task it is. The prospect of a foreign-born president is not a danger to American democracy; right now, that threat comes from a white billionaire born in Queens.