by Bob Quasius – The web site Mediaite is reporting that Arnold Schwarzenegger is considering a run for president, and may challenge the constitutional requirement that presidents be natural born citizens. Quoting an unnamed source:
“Schwarzenegger has been talking openly about working on getting the constitutional rules changed so he can run for president in 2016. He is ready to file legal paperwork to challenge the rules.”
Is Arnold Schwarzenegger Even Eligible?
In a word, no!
When our constitution was adopted, the framers included a requirement that our president be a “natural born citizen.” No definition was provided, strong evidence the term “natural born” was widely understood at the time and the framers believed an explicit definition wasn’t needed. U.S. Constitution Article II Section 1 states:
“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 to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”
The term “natural born citizen” derives from “natural born subject” from English common law. When we won our independence from Britain, all 13 states embraced English common law, except where it conflicted with their new state constitutions.
Obviously any aspect of the monarchy was not included in the new American common law, but other prevailing law, such as tort law and birthright citizenship remained. Not a single state adopted any other definition of ”natural born.” Some states continued to use the term “subject” and “citizen” interchangeably for a years.
Under the articles of confederation, the new United States of America had a weak central government, and strong state government. Immigration, citizenship, etc. were state matters.
So just what did English Common law say about natural born citizenship when the constitution was adopted? The most authoritative text “An Analysis of the Laws of England” by William Blackstone, first published in 1765, and reprinted in 1770, 1773, 1774, 1775, 1778 and 1783. An updated version of Blackstone’s authoritative text was published by Henry John Stephen in 1841, and reprinted often until after World War II.
Blackstone defined “natural born subjects” as those born within the dominions of England. In a monarchy, citizens are called “subjects” while in a Republic, “subjects” are called “citizens.” Americans stopped calling themselves “subjects” and began calling themselves “citizens”, consistent with the change in form of government from monarchy to republic, though for some years both terms were used. From William Blackstone (1765), Commentaries 1:354, 357–58, 361–62
The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.
Additionally, a 2011 report prepared by the Congressional Research Office concludes:
The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.
Arnold Schwarzenegger was not born a U.S. Citizen, and so under our present constitution he clearly is not eligible to become president.
Can the Courts or Congress Authorize Arnold Schwarzenegger to Run?
Courts don’t have the authority to rewrite the U.S. constitution, though sometimes they may stretch it (i.e. Roe v. Wade), so any legal challenge in the courts has slim chance of success.
There have been two legislative attempts to expand eligibility to run for president. In 2004, Sen. Don Nickles introduced the Natural Born Citizen Act to define the term, natural-born citizen, to include people who derived citizenship at birth from a U.S. citizen parent and to children under 18 who were adopted by U.S. citizens.
Derivative citizens are born outside the U.S. to citizen parent(s). They are U.S. citizens at birth and thus natural born citizens, though they are not birthright citizens. Derivative citizenship existed in the U.S. prior to independence, and the Naturalization Act of 1790 continued the practice:
” And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
However, it’s quite clear that children born as foreign citizens who later acquire U.S. citizenship by adoption were not born as U.S. citizens, and are not natural born citizens. Has the Natural Born Citizen Act become law this section of the law likely would have been struck down by the courts.
Should Arnold Schwartzenegger Be Allowed to Run?
Arnold Schwarzenegger should be allowed to run, but only if our constitution is amended. No end runs around our constitution. We have enough of that already with Obama!
Our constitution’s framers were concerned that a European noble could be granted U.S. citizenship and then made president, effectively returning America to rule by monarchy. This concern was well founded at the time, as most nations were governed by monarchies, and democracy was very uncommon, though not a new concept since the ancient Greeks had invented democracy. Requiring that a president be a natural born citizen precluded that possibility, since a president would have been born in America, or overseas to two U.S. Citizen parents who had resided in the U.S.
However, the days of monarchy have long been gone. Most of the few remaining monarchies are constitutional monarchies. The possibility of an American monarch are nil in the present era, and so eliminating the natural born citizen requirement and permitting long-term naturalized citizens to serve as president is not without merit.
Our constitution provides a mechanism for amending itself. U.S. Senator Orrin Hatch in 2003 proposed the Equal Opportunity to Govern Amendment:
`SECTION 1. A person who is a citizen of the United States, who has been for 20 years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States.
`SECTION 2. This article shall not take effect unless it has been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States not later than 7 years from the date of its submission to the States by the Congress.’.
Should Arnold Schwarzenegger Run for President?
I”m not a huge fan of Arnold Schwarzenegger, though I admire his immigrant success story. He is unquestionably patriotic and loyal to America, and does have considerable support. In my opinion he has too much personal baggage, and didn’t leave California’s government with a solid financial foundation, though it’s fair to say Arnold didn’t inherit a good situation, and California’s Democrats have long held a stranglehold on the legislature!
Still, I don’t think as a nation we should limit ourselves to natural born citizens for president. Arnold Schwarzenegger became a U.S. citizen in 1983, 30 years ago. Someone who has been a naturalized citizen for 20 years or more should have a shot at the presidency.
However, if Arnold Schwarzenegger is seriously planning a legal challenge rather than constitutional amendment, then we cannot help but wonder if he respects our constitution! There’s a proscribed method for changing our constitution, and a court challenge isn’t one of them! Our current president doesn’t respect our constitution, and we certainly want our next president to respect our constitution!
Bob Quasius is the founder and president of Cafe Con Leche Republicans