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Losing our fear of the presidency, with Gordon Lloyd (San Francisco Chronicle) March 8, 2005

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

It turns out that high-school students are not the only ones who don’t know American history and fail to understand key provisions of the U.S. Constitution. From both the left and the right, we hear a lot of nonsense in support of amending the Constitution to eliminate the requirement that the president be a natural-born citizen. One liberal intellectual calls the requirement an insult to foreign-born citizens and a “small-minded nativist” prejudice unsuitable for modern America. Rep. Barney Franks, D-Mass., says the natural-born clause “tells immigrants they are somehow flawed,” and Rep. John Conyers, D-Mich., believes the provision is left over from a mean-spirited and bigoted time and is “un-American.”

The right, stirred by the star power of California Gov. Arnold Schwarzenegger, adds its share of overheated rhetoric. Lissa Morgenthaler-Jones, who launched the “Amend for Arnold” campaign, claims the natural-born citizen requirement for president is “unnecessary, antiquated, arcane,” and, oh yes, “a tiny bit xenophobic.” Rep. Dana Rohrbacher, R-Huntington Beach, says Schwarzenegger “shouldn’t be cut off simply because he was born somewhere else.”

Pardon us for busting everyone’s favorite myths about the Founders, but the evidence for the supposedly nativist motives behind this clause of the Constitution hangs on one very thin thread: a letter from John Jay of New York, who was not at the Constitutional Convention and not privy to the debates, to George Washington. The record indicates a far more complicated story.

The creation of the presidency was one of the most divisive battles of the Constitutional Convention. Even without the king, there was a widespread suspicion that the danger to liberty at home and peace abroad was an uncontrollable executive. The new state legislatures elected governors who usually held office for one year, and only one governor was given a veto power. Accordingly, the structure and powers of the presidency were contentious issues that were not settled until two weeks before the signing of the Constitution.

Several questions naturally arose: Should he hold office for life or for a short term? Should he be a subject to term limits? Most important, how do we ensure that the president does not become a monarch, an institution that is foreign born and unnatural to the genius of the American republic?

The result was a variety of special constitutional provisions regarding the president: higher age and citizenship requirements, and distinctive oath and impeachment provisions. It is as part of this overall discussion that the natural-born language made its appearance. This requirement lessened the electorate’s fear of the power of the presidency and removed a vital source of potential suspicion in the exercise of presidential war powers.

The debate over the natural-born requirement, then, should not be cast in terms of prejudice against immigrants or equal treatment and protection for all citizens. Rather the debate should be about the more vital issue of the potential abuse of power by the president. The evidence of the last 50 years does not suggest that Americans have become less concerned about the institutional and personal checks on the president. In fact, the record indicates we have even less trust of our own natural-born presidents.

Since World War II, we have amended the Constitution to limit the president to two terms and also to provide for an orderly line of succession in the event of an emergency. We have voted articles of impeachment against two presidents and both the left and the right have expressed concerns about an “imperial presidency.”

So let’s review the requirement that the president be a natural-born citizen, but not in the frame of whether we are biased against immigrants or whether we like Gov. Schwarzenegger. Let’s amend, if we do, because we no longer fear the powers of the presidency as our ancestors did. On that basis, we feel safe in predicting Americans want more checks and balances, not fewer.

This op/ed appeared on Page B-7.

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