Constitutional Contradiction

Immigration and the position of immigrants in American society has been an issue of significance since this country's founding. California's Proposition 187 and the proposal of legislation in local governments recognizing English as the "official" language of the United States have prompted Americans who are themselves the descendants of immigrants to reconsider their accommodation of the more recent immigrants to our shores.

I take issue with the peculiar legal limbo in which naturalized immigrants find themselves. As a naturalized American citizen, I am bothered by clauses in our Constitution which preclude foreign-born citizens from running for president. It occurs to me that this precondition begs a seemingly self-evident, if seldom-posed question: Why not?

There seems to be a consensus in America that legal immigration, at the very least, has a benign effect upon our society. At best, the innovative ideas and new frames of reference which legal immigrants bring with them serve as a virtual blood transfusion for the American political, economic and social systems. Despite the fact that the virtues of legal immigration are widely extolled, immigrants are still denied the right to run for president of their country.

We would expect native-born Americans to look upon foreign-born American citizens as their equals in all respects. And yet curiously, the Constitution does not do so. By denying foreign-born citizens the opportunity to run for president, the Constitution sends the implicit message that naturalized immigrants are second-class citizens. If these immigrants are unequal in but one respect, how can they be considered equals in the eye of the law in any other?

That immigrants have served in honorable posts as senators and representatives, and that the positions of secretary of state and chief justice of the Supreme Court do not require citizens to be born within the boundaries of the United States only corroborates the view that there is no legitimate basis for discriminating against naturalized citizens merely because they have foreign roots. Presidential candidates are required to have been "fourteen Years a Resident within the United States." Why should legal immigrants not be held to the same fourteen-year standard?

A potential presidential candidate, one of Franklin Roosevelt's children, was born on Campobelo Island, situated just outside the United States' legal boundary. Should he have been prevented from pursuing the Presidency because of his birth on Campobelo? Was there valid cause to doubt his loyalty to the country his father served?

Theoretically, one might even argue that the citizens of the territories which later became states in the Union were born in an earlier "Campobelo." These citizens failed the Article I, Section 8 eligibility test on two grounds: 1) they were not "natural born citizens" in the strict sense and 2) they were not "Citizen[s] of the United States, at the time of the Adoption of this Constitution." Yet these "naturalized" Americans citizens were not denied the right to run for President.

To stretch an admittedly imperfect analogy, a parallel can be drawn between the addition of these states to the Union (the "naturalization" of these states, so to speak) and the naturalization of immigrants.

We do not question the legitimacy of the 37 states that did not enter into the Union at the same time as the original 13. We should, likewise, not question the loyalty of legal citizens who were not born in this country at the time of the founding fathers.

Harvard's own Henry J. Friendly Professor of Law Paul C. Weiler reveals the injustice of the status quo through another qualification conundrum: Under current law, a child born in a foreign country who immigrated to the U.S. with parents soon after birth and then became a U.S. citizen could not run for President.

But on the other hand, Weiler notes, American-born children of illegal immigrant parents are entitled to run for President, even if the child and parents were to leave the country soon after their immigration.

One of the more compelling arguments to be made for amending the Constitution to allow for immigrant presidents rests on the tension that exists between requiring that presidential candidates be born in the United States and the Constitution's Article IV, Section 2 claims that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Though they be foreign-born, are they not citizens all the same? And as citizens, are they not entitled to the privileges and immunities of naturally-born citizens?

Indeed, "naturalizing" a citizen is a way of honoring his or her efforts to become an American. Even though we acknowledge that the place and timing of birth is beyond each of our control, the process of naturalization recognizes that the American spirit of immigrants is born in the United States even if physically they were not.

In denying legal immigrants this right, we are making a mockery of our Constitutional commitment to regard all citizens as equals in every way. The result of our Constitution's archaic stipulation has been the creation of a second class of citizens. While this second citizen must pay taxes like any other and is charged with the same responsibilities of naturally-born Americans, our Constitution reminds them that in only one respect they are not just judged by a different set of criteria, but are in fact not entitled to be judged at all.

The argument is sometimes made that perhaps the framers had objections to the allegiances of foreign-born candidates. It is, however, the purpose of the naturalization process to determine the loyalty of prospective citizens. If they have passed this test, it is no longer reasonable to assume them to be disloyal.

"We need to get over the piety and pomposity that tends to fog proposals to change the Constitution," says Professor of Law Richard D. Parker. Parker calls the the qualifications excluding immigrants from running for president "utterly anachronistic provision[s] of the Constitution, premised on some idea that it takes a number of decades of citizenship to be a fully loyal and or informed official."

My own naturalization experience was an occasion my family and I will always look back upon proudly. The respect commanded by the imposing figure of the black-cloaked judge who swore us in seemed to be justice personified. Nothing could have been a more credible symbol of equality than the man who called upon us to renounce all allegiances to the country of our birth. I was proud to be held accountable, for the first time, to all of the responsibilities demanded of naturally-born citizens.

The presidency itself is not the American immigrant's final frontier. It is simply the right to seek that office and then, possibly, to fail in that attempt, which stands out as the holy grail in the immigrant's quest for equal status. Until the time when that right is granted, the antiquarian presidential qualification will continue to gnaw and prod at the effort to end immigrants' second-class-citizen status.

I recently had the honor of asking Supreme Court Justice Stephen Breyer what he thought about the idea of such a modernizing Constitutional amendment. The Justice shared my frustration as well as the popular view that no amendment would likely be made. No matter. I am content with the Justice's acknowledgment of injustice.

Justin C. Danilewitz '99, a Crimson editor, lives in Currier House.