[Senate Hearing 108-694]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-694

    MAXIMIZING VOTER CHOICE: OPENING THE PRESIDENCY TO NATURALIZED 
                               AMERICANS

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                            OCTOBER 5, 2004

                               __________

                          Serial No. J-108-98

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    25
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    29
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................    42
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    45

                               WITNESSES

Amar, Akhil Reed, Southmayd Professor of Law and Political 
  Science, Yale Law School, New Haven, Connecticut...............    16
Conyers, Hon. John, a Representative in Congress from the State 
  of Michigan....................................................     5
Frank, Hon. Barney, a Representative in Congress from the State 
  of Massachusetts...............................................     8
Issa, Hon. Darrell, a Representative in Congress from the State 
  of California..................................................    13
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma.....     4
Rohrabacher, Hon. Dana, a Representative in Congress from the 
  State of California............................................    10
Snyder, Hon. Vic, a Representative in Congress from the State of 
  Arkansas.......................................................     6
Spalding, Matthew, Director, B. Kenneth Simon Center of American 
  Studies, The Heritage Foundation, Washington, D.C..............    18
Yinger, John, Trustee Professor of Public Administration and 
  Economics, Maxwell School of Citizenship and Public Affairs, 
  Syracuse University, Syracuse, New York........................    20

                       SUBMISSIONS FOR THE RECORD

Amar, Akhil Reed, Southmayd Professor of Law and Political 
  Science, Yale Law School, New Haven, Connecticut...............    36
Conyers, Hon. John, a Representative in Congress from the State 
  of Michigan....................................................    40
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma.....    48
Rohrabacher, Hon. Dana, a Representative in Congress from the 
  State of California............................................    78
People For the American Way Foundation, Washington, D.C., report.    51
Spalding, Matthew, Director, B. Kenneth Simon Center of American 
  Studies, The Heritage Foundation, Washington, D.C..............    86
Yinger, John, Trustee Professor of Public Administration and 
  Economics, Maxwell School of Citizenship and Public Affairs, 
  Syracuse University, Syracuse, New York........................    92

 
    MAXIMIZING VOTER CHOICE: OPENING THE PRESIDENCY TO NATURALIZED 
                               AMERICANS

                              ----------                              


                        TUESDAY, OCTOBER 5, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:08 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Craig, Feinstein, and Durbin.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. We are happy to welcome you to this 
hearing. We are grateful to have all four of you here, and we 
hope the others will be here as soon as they can. Here comes 
John.
    Good morning and welcome to the Judiciary Committee's 
hearing entitled ``Maximizing Voter Choice: Opening the 
Presidency to Naturalized Citizens.''
    A few days ago, we celebrated Citizenship Day. The purpose 
of this holiday is to honor those people who have become United 
States citizens.
    Citizenship, whether by birth or naturalization, is the 
cornerstone of this Nation's values and ideals. Each year, 
hundreds of thousands of immigrants complete the naturalization 
application process to become citizens. In 1996 alone, there 
were over one million new citizens naturalized in America. And 
according to the Department of Homeland Security, approximately 
20 million individuals have become naturalized citizens of this 
country since 1907.
    The United States is known as the land of opportunity, but 
there is one opportunity that these American citizens will 
never be able to attain under our current law. They can never 
hold the office of the President. Article II, Section 1, Clause 
5 of our Constitution, which sets forth the eligibility 
criteria for the Office of the President requires the President 
to be a natural born citizen.
    What is a natural born citizen? Clearly, someone born 
within the United States or one of its territories is a natural 
born citizen. But a child who is adopted from a foreign country 
to American parents in the United States is not eligible for 
the Presidency. Now, that does not seem fair or right to me.
    Similarly, it is unclear whether a child born to a U.S. 
serviceman overseas would be eligible. Most academics believe 
that these individuals would be eligible for the Presidency, 
but I note that some academic scholars disagree. A recent 
article in Green Bag, a journal that specializes in 
constitutional law, quotes an 1898 Supreme Court case that the 
natural born citizen clause ``was used in reference to that 
principle of public law, well understood in this country at the 
time of the adoption of the Constitution, which referred 
citizenship to the place of birth.''
    Now, I have proposed--and Congressman Rohrabacher and 
others, we have proposed a constitutional amendment, S.J. Res. 
15, to address this issue. The Equal Opportunity to Govern 
Amendment would amend the Constitution to permit any person who 
has been a United States citizen for at least 20 years to be 
eligible for the Presidency.
    As Boise State University Professor John Freemuth 
explained, the natural born citizenship requirement is 
something of an artifact from another time. It is time for us--
the elected representatives of this Nation of immigrants, by 
the way--to begin the process that can result in removing this 
artificial, outdated, unnecessary, and unfair barrier. While 
there was scant debate on this provision during the 
Constitutional Convention, it is apparent that the decision to 
include the natural born citizen requirement in our 
Constitution was driven largely by the concern over 200 years 
ago that a European monarch might be imported to rule the 
United States. And I do believe that some of them wanted to 
keep Alexander Hamilton from being President as well.
    Now, this restriction has become an anachronism that is 
decidedly un--American. Consistent with our democratic form of 
government, our citizens should have every opportunity to 
choose their leaders free of unreasonablelimitations. Indeed, 
no similar restriction bars any other critical members of the 
government from holding office, including the Senate, the House 
of Representatives, the United States Supreme Court, or the 
President's most trusted Cabinet officials.
    The history of the United States is replete with scores of 
great and patriotic Americans whose dedication to this country 
is beyond reproach, but who happen to have been born outside of 
our borders. Just some that we could talk about include former 
Secretaries of State Henry Kissinger and Madeleine Albright, 
the current Secretary of Labor Elaine L. Chao, and former 
Secretary of Housing and Urban Development Mel Martinez, who is 
now running for the Senate seat in Florida. As our Constitution 
reads today, none of these well-qualified, patriotic United 
States citizens could be lawful candidates for President.
    As Congressman David Dreier has stated, the Constitution 
limits us from having the opportunity of choosing someone who 
is a bold, dynamic, dedicated leader for our country.
    Michigan Governor Jennifer Granholm, who was born in 
Canada, also supports this amendment. She explained: You cannot 
choose where you are born, but you can choose where you live 
and where you swear your allegiance. And I think if she has 20 
years of living in this country, she ought to have the 
privilege of running for President if she so chooses.
    This is also true for the more than 700 immigrant 
recipients of the Congressional Medal of Honor--our Nation's 
highest decoration for valor--who risked their lives defending 
the freedoms and liberties of this Nation, many of whom gave 
their lives. But no matter how great their sacrifice, 
leadership, or love for our country, they remain ineligible to 
be a candidate for President. Now, this amendment would remove 
this unfounded inequity.
    Any proposal to amend the Constitution cannot be taken 
lightly. But I believe that amending the Constitution in this 
instance would facilitate the democratic process by giving the 
American voters more choice in determining who should be 
elected President of the United States. As Professor John Yoo, 
from Boalt Hall at the University of California at Berkeley, 
told the Los Angeles Times, making naturalized citizens 
eligible to become President would fall within the tradition of 
amending the Constitution to expand democracy, whether it be 
expanding the franchise or making elected representatives more 
directly elected.
    Now, our proposal is already garnering bipartisan support. 
Several Senators have publicly expressed support for a 
constitutional amendment in statements made to the media over 
the last several months. In addition, we were fortunate to have 
with us today a panel of six very distinguished Members of 
Congress to discuss various proposals in the Senate and the 
House that would maximize voter choice for the Presidency. I 
certainly look forward to hearing from them and from our 
academic experts on panel two.
    Let me just say this as someone who got in very late and 
ran for President for a very short period of time, and learned 
a lot of lessons in the process. I have to say that that is not 
an easy thing to do. You have to really, really have an 
endurance and an ability to motivate people to even have a 
chance. So we are not turning over here and saying that we want 
to make it easy for anybody to become President. But we 
certainly ought to facilitate the opportunity for people who 
have proven themselves to be good citizens to have this 
opportunity.
    Now, let me just say I am really honored to have all six of 
you here today. You are six very important people who I happen 
to respect, each and every one of you. We are honored to have 
before us today several distinguished Members of Congress who 
have introduced legislation on this issue.
    Let me begin by introducing Senator Don Nickles from 
Oklahoma. He is an original cosponsor with Senators Landrieu 
and Inhofe of S. 2128, the Natural Born Citizen Act. As I am 
sure he will explain in more detail, the bill defines ``natural 
born citizens'' as including children of U.S. servicemen and 
adoptees.
    My friend John Conyers, the Ranking Member on the House 
Judiciary Committee, a friend for a long time, is from Michigan 
and has introduced H.J. Res. 67, which, like S.J. Res. 15, 
would amend the Constitution to permit naturalized citizens of 
20 years to hold the Presidency.
    Congressman Dana Rohrabacher from California has introduced 
H.J. Res. 104, which is also consistent with the bills 
introduced by Congressman Conyers and myself.
    Congressmen Vic Snyder, Darrell Issa, and Barney Frank have 
introduced H.J. Res. 59, which would amend the Constitution to 
permit naturalized citizens of 35 years to hold the Presidency.
    I welcome each of you here. I really appreciate your 
willingness to consider these issues and to help us articulate 
why they are important. I understand from the Washington Times 
yesterday that House Minority Leader Nancy Pelosi has come out 
in favor of your proposal, and I look forward to hearing these 
statements and learning more about all of your proposed 
legislation or amendments to the Constitution.
    Let me just again welcome you all, tell you how much I 
respect each and every one of you, and I look forward to 
hearing you. Would there be any objection if we just go from 
Don Nickles right across--is that okay?--rather than worry 
about anything else?
    Don, we will turn to you then. Senator Nickles.

STATEMENT OF HON. DON NICKLES, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Nickles. Mr.Chairman one, thank you for having this 
hearing and, for my colleagues, it is a pleasure to join with 
you on this very important issue. As you mentioned, I have 
introduced a bill along with Senator Landrieu and Senator 
Inhofe--a statute, not a constitutional amendment, but I 
compliment those of you that have proposed the constitutional 
amendment. I happen to think that we can get the statute passed 
rather quickly and that it will help resolve this issue for 
many.
    As you know, our Constitution states that ``no person 
except a natural born citizen'' shall be eligible to seek the 
Office of President. For many years, legal scholars have 
debated what the Founders meant by that term, ``natural born 
citizen.'' Does it mean only children born within the 
boundaries of the United States? Does it include within its 
scope children born abroad to a U.S. citizen? If so, does it 
include only children born abroad to a U.S. citizen who is 
serving in the military or employed by our Government overseas? 
Or does it also include a child born abroad to a U.S. citizen 
simply living or working abroad? Could it include a child born 
abroad but adopted by a U.S. citizen? Mr. Chairman, I think it 
is time that we put an end to these speculations.
    I introduced this bill. This defines the term of ``natural 
born citizen'' as used in the Constitution as a child born in 
the United States, a child born abroad to a U.S. citizen, and a 
child born abroad and adopted by a U.S. citizen. If passed, 
this bill would put an end to the speculation and clarify who 
is eligible to run for President of our great country.
    It does not go as far as the constitutional proposal, and I 
am not against that. I just think that this is something we can 
get done and that would help solve the problem. It accomplishes 
it basically by defining by statute the term ``natural born.''
    It is clear that a child born within the physical borders 
of the United States and subject to the jurisdiction of the 
United States is eligible to run for President. However, many 
Americans would probably be surprised to learn that a 
constitutional question remains as to whether a child born 
abroad to a U.S. citizen serving in the military or serving at 
a Government post are not clearly, indisputably eligible to 
seek the highest office in our land. Nor is it clear whether a 
child born overseas to a citizen traveling or working abroad is 
eligible to run for President. There are strong legal arguments 
that say these children are eligible, but it certainly is not 
an inarguable point. The Natural Born Citizen Act will make it 
clear that these children would be considered natural born 
citizens within the meaning of the Constitution.
    In addition to these children of American citizens being 
able to run for President, this bill, my bill, would also 
define ``natural born'' to include children born abroad and 
adopted by a U.S. citizen. Such a child would have to be 
adopted by the age of 18, by a U.S. citizen who is otherwise 
eligible to transmit citizenship to a biological child pursuant 
to an Act of Congress. In other words, some citizens are 
ineligible to transmit citizenship to a biological child born 
abroad because of a failure to meet certain statutory criteria 
such as having lived in the United States for 5 years, 2 of 
which had to be after the age of 14. We do not want to give any 
special treatment to adopted children over biological children 
born abroad. We just seek to treat biological and adopted 
children of American citizens equally.
    As many of you may recall, we passed the Child Citizenship 
Act of 2000, which provided automatic U.S. citizenship to 
foreign adopted children. Under this Act, which was signed into 
law on October 20, 2000, the minute these children arrive in 
the United States, citizenship attaches automatically. There is 
no naturalization process that these foreign adopted children 
have to go through. Once they are fully and finally adopted and 
enter the United States with their parents, they are deemed by 
law to be U.S. citizens. They should also be able to be 
President of the United States. This bill would enable us to do 
that.
    Mr. Chairman, I just ask that the balance of my statement 
be entered into the record. I appreciate your consideration of 
this legislation. I would hope that at a minimum we could pass 
this bill and open the opportunity for hundreds of thousands of 
young people, whether they are born abroad and adopted or born 
abroad to U.S. citizens, that they would clearly know that, 
yes, they too could be eligible to be considered and have the 
opportunity to achieve a the highest office in the land.
    I thank you very much for your leadership on this important 
issue, and I thank my colleagues for their patience.
    Chairman Hatch. Thank you, Senator. Your full statement 
will be placed in the record. I understand you have to leave, 
and we appreciate you coming very much. Thank you.
    [The prepared statement of Senator Nickles appears as a 
submission for the record.]
    Chairman Hatch. Representative Conyers, welcome over here. 
We have enjoyed a long relationship.

 STATEMENT OF HON. JOHN CONYERS, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF MICHIGAN

    Representative Conyers. Chairman Hatch, I am honored to be 
with you and my colleagues and the distinguished gentleman from 
Oklahoma.
    I just want to tell you how I came about this. I started 
attending the swearing-in ceremonies of naturalized citizens in 
the courthouse in Detroit, downtown Detroit. And the enthusiasm 
and the families and the children, they were outside, there 
were voter registration booths where they could register to 
become voters right after they raised their right hand and were 
sworn in as naturalized citizens. And there was a young lady 
there named Ms. Muntaz Haq from India who herself was a 
naturalized citizen, that got me going around the country in 
these sort of things.
    And then there was another factor that impressed me. It was 
the tremendous Governor of the State of Michigan, who I did not 
know until after she had become Governor that she was actually 
born in Canada.
    And so without too much consultation with all of the 
distinguished Congressmen at this table, I said this ought to 
be changed. And I think you gave some good reasons why in 1789 
they thought that this might be preferable, and I do not 
disagree with that decision in 1789. But, you know, to make a 
person almost a full citizen except for one little tiny thing, 
and that is, you can never be President. And I presume that 
means you cannot be Vice President either.
    So I thought that we ought to do something about it, and so 
I wrote this amendment, and without any consultation, I began 
to find that 10 percent of the citizens in Oakland County, 
right next to my own county of Wayne, are people who are 
naturalized citizens because of the engineering requirements of 
many of the automobile plants. And so I came over here today to 
join--I had no idea that this was growing as fast as it is, and 
I think we are onto something good.
    Finally, I wanted to point out that we have 30,000 members 
of the armed forces who are naturalized citizens. And so for 
you and our colleague, Senator Craig, I want to thank you for 
holding this hearing. I also wanted to get a picture of you and 
me at your last hearing as Chairman so that it will be 
celebrated in two different ways by different people in 
Detroit, depending on how they feel about it.
    Chairman Hatch. I fully understand.
    Representative Conyers. But I want them to know that you 
and I have worked together on more issues on the Judiciary 
Committee than most people realize. And I appreciate that so 
much, and I want to thank you for your tenure here as Chairman.
    Chairman Hatch. Well, thank you, Congressman Conyers. I 
certainly appreciate our relationship. I respect you greatly, 
admire you, and we have worked on a lot of issues together over 
the years. So I appreciate those kind remarks.
    [The prepared statement of Representative Conyers appears 
as a submission for the record.]
    Chairman Hatch. Representative Snyder, we will turn to you. 
We appreciate having you here.

STATEMENT OF HON. VIC SNYDER, A REPRESENTATIVE IN CONGRESS FROM 
                     THE STATE OF ARKANSAS

    Representative Snyder. Thank you, Senator Hatch, and thank 
you for the invitation to be with you today. I was in church 
this past Sunday, the church at which my wife is the senior 
pastor, and I was approached by a woman in the stairway. She 
said, ``I want to tell you a story about my son, Alexander.'' 
This is her son, Alexander Clurgett. He was adopted a few years 
ago from Russia. And the story she told me is that just 
recently she had overheard Alexander talking with one of his 
friends from his school in Arkansas. And Alexander asked him, 
``Where were you born?'' And he said, ``I was born in Little 
Rock.'' And Alexander came back and said, ``That means you can 
run for President.''
    These kids are aware of the differences between them and 
other kids, and I think it is very important that the work you 
are doing here today, Senator, calls attention to this very 
important issue.
    I assume that I was invited here today because our bill has 
a little different perspective than yours does, Senator. It has 
a 35-year requirement for citizenship, and yours has a 20-year 
requirement. Let me just run through quickly three reasons why, 
when I had the bill drafted, I ended on the 35 years.
    First, it is just this, I guess, legal philosophy of the 
smallest change necessary to the Constitution to effect the 
change. The constitutional requirement is that a person be 35 
years old to be President, I suspect because of the age, 
maturity, the life experience of a 35-year-old as opposed to a 
21- or a 26-year-old. And so I chose 35 years. If someone like 
Alexander is adopted when he is 3 years old, then that would 
mean that he would have to be 38. Or if someone is adopted when 
they are 1 month old, then they would have to be 35 years and 1 
month. But 35 years of citizenship.
    Second is what I call the Manchurian candidate argument. My 
guess is that you have heard this one, too, Senator, that 
somehow someone is going to at age 40 become a U.S. citizen, 
they are going to come over here committed to becoming 
President of the United States, and then somehow unleash the 
forces of our military against us. I have heard people come to 
me personally and espouse those arguments. Well, by having the 
length of time be 35 years, obviously what we are focusing on 
is youngsters, is kids at a young age.
    And, third, to me this is about children. A few years ago, 
I was doing some legal research on a law review article I wrote 
on the congressional oath of office. It was probably read by 
tens of people throughout the country, but, anyway--
    Chairman Hatch. I understand that. [Laughter.]
    Representative Snyder. I ran into some discussion about 
this amendment. I have some other pictures I want to show you. 
This is my niece, Sara Doty, at age 10 months. She has a pretty 
impressive hairdo at age 10 months.
    Chairman Hatch. She is beautiful.
    Representative Snyder. She was adopted at around age 10 
months. This is her much more recent photo. We think her hair 
is lovely in both photos. But it brought home to me, the 
reading that I did, that my niece, who has been raised here--
the only life she knows is as an American--is not eligible to 
be President.
    Some of these other children, this is Luke and Adam who 
were adopted from China. Their parents are Lisa Farrell and 
Jimmy Jackson back home. And as Lisa said to us in an e-mail, 
she said, ``How can you not look at these boys and not want 
them to be President? It is the dream of a parent in America.''
    And then the last one is a young girl, Miriam. Her parents 
are Cynthia Ross and Dr. Martin Howard Jensen back home in 
Little Rock, and just riding a merry-go-round.
    Well, to me this amendment and what you are trying to do 
and what we are trying to do is to talk about the dreams of 
kids. And so to me it comes down to two reasons. You very 
appropriately identified this hearing today as maximizing voter 
choice, and so it increases the pool of prospective candidates. 
But it also maximizes the dreams for all Americans, including 
these children. And I think that is very, very important.
    Just a couple of detail points. First, Senator Nickles was 
talking about the clarification of ``natural born.'' One 
specific issue that I think would come from getting this 
resolved, when a Presidential nominee selects their Vice 
President, it is perceived as being their first big decision 
and they are judged on it. And I fear that if we have children 
who perhaps, asSenator Nickles was talking about, are born to, 
say, missionaries overseas, or Congresswoman Diana DeGette, 
born on a military base to U.S. citizens, my guess is there 
would be no question about her. But you could foresee a 
scenario in which a nominee would say, ``I cannot have my first 
big decision, selecting my Vice Presidential nominee, being 
judged as, well, maybe they are not quite legally eligible.'' 
And as you know, a whole lot of our Vice Presidents have gone 
on to become President.
    Finally, with regard to the 20 versus 35 years, I certainly 
will be supportive of a 20-year amendment if that is what comes 
to the floor of the House and what comes out of this Congress. 
There are some issues. Does that get into discussion about 
personalities? I personally think both Governor Granholm and 
Governor Schwarzenegger ought to be eligible to be President. 
Some people may decide that it would be better to have a longer 
period of time so we eliminate individuals. But I applaud you 
for your efforts here today, and I appreciate the opportunity 
to testify.
    Chairman Hatch. Well, thank you, Vic. We appreciate you 
coming over here. Of course, if you have to leave, any of you, 
we fully understand.
    You know, I guess the President could pick a non-native 
born citizen for Vice President. And what happens if that 
President passes on for some reason or other? See, these are 
problems that we really do need to solve.
    Representative Snyder. That is right. And you may recall 
from our young days, there were previous discussions about--and 
both of them were resolved--you know, Senator Goldwater was 
born in Arizona at the time it was still a territory. Governor 
Romney had been born in Mexico to U.S. citizens, and that was 
becoming an issue. But then he decided not to run.
    So these things do flare up. The point I was making about 
the Vice President is that it may well be if there was someone 
like that, you know, the advisers would say, you know, this is 
your first big decision, we do not need that to be the story 
for the next 2 or 3 weeks. Thank you.
    Chairman Hatch. Thank you. I sure appreciate having you 
here.
    Representative Frank, we are honored to have you here, and 
we look forward to hearing your always lucid comments.

 STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS 
                FROM THE STATE OF MASSACHUSETTS

    Representative Frank. Thank you, Senator. I appreciate the 
way you framed this as increasing the choice for voters. 
Obviously, there is an element here of fairness to individuals. 
My colleague from Arkansas has pointed that out. And I was 
first asked to do this--I did this a few years ago. I filed one 
version. I actually had a hearing when Representative Kennedy 
from Florida was the Chair of the Constitutional Rights 
Subcommittee. Four or five years ago we had a hearing. And it 
was brought to my attention by an immigrant, who is an American 
citizen, who has been active in politics in the city of New 
Bedford, Massachusetts, and he was troubled, as I was, by the 
invidious discrimination of it. It basically says to people who 
have chosen to come to America in many cases, or who have been 
brought here, who have gone through the process of citizenship, 
have been very loyal, very law-abiding citizens, that they are 
somehow flawed.
    The notion that people who come here and become naturalized 
are any less entitled to be here and to exercise privileges and 
rights and responsibilities than anybody else is offensive. And 
for that reason alone, we ought to get rid of it.
    Beyond that, though, there is a fundamental principle here, 
and it is the one you touch on with your phrasing of this. I 
believe in the right of the people to choose as they wish.
    Now, people say, well, you are amending the Constitution. 
The fact is that in 1789, the notion of direct democracy was 
not the one that governed. Clearly, in terms of world history, 
the people who came to the American Constitutional Convention, 
they went for the first time to self-governance, but they did 
not go all the way. They had a Senate which was indirectly 
elected, a House directly elected, a President that was not 
supposed to be even indirectly elected. Remember, the original 
notion of the Electoral College was they would vote for a lot 
of smart guys, and the smart guys would sit around and decide 
who should be President. Remember, in the Electoral College, 
you did not pick President or Vice President. You just voted 
for President, and whoever got the most votes was the 
President, and whoever got the second most votes was the Vice 
President.
    We have evolved substantially since that time, I think in a 
good direction. Unfortunately, the evolution has not yet 
reached a point where we got rid of that foolish Electoral 
College, but that is something for a later day. But we do have 
now this major obstacle in the way of the voters, and we say to 
them: We don't trust you. You could get fooled. I mean, they 
might--some foreign country might sucker you by getting some 
slick person mole him into the United States, or her, and get 
that person citizenship, and then years later have that person 
get elected President, and you will be too dumb to notice. I 
don't think that is accurate, and I don't think that ought to 
be the governing principle. I really believe that the people of 
the United States ought to have the right to elect as President 
of the United States someone they wish.
    I understand the prudential argument about some time 
limitation. I originally said 20 years. Mr. Snyder said 35. The 
fewer the better, as far as I am concerned. I will be honest 
with you. If you look at the principle of it, in my view an 
hour and a half is probably about enough time, because I trust 
the voters. This is up to them. Obviously, for practical 
reasons it will have to be a little bit longer.
    But that is the issue. Should we tell the American people 
that we do not trust them to decide that someone--and, 
remember, nobody parachutes into the Presidency.
    Chairman Hatch. That is a tough process.
    Representative Frank. Yes, it is hard work, as we have 
learned. I understand that. I heard that last week, that it is 
very hard work to be President.
    [Laughter.]
    Representative Frank. In fact, I understand they do not 
play ``Hail to the Chief'' anymore at the White House. They 
play ``A Hard Day's Night.'' But nobody comes in without being 
subject to a lot of scrutiny. Presidential candidates are 
people who the public has a chance to see. They have been in 
lower offices. They have been in the private sector. They have 
been prominent. And I don't think we should say that the 
American people don't have the mental acuity and political 
judgment to look at someone who has been around for a while and 
who has achieved the kind of prominence that you have to 
achieve to be a Presidential candidate, but we cannot trust 
them to pick someone who happened to have been born in another 
country because of some flaw on their part.
    So I think this is really a further step in bringing 
democracy as it should truly be understood to the electoral 
process, and I am for it, and it would also have, I think, a 
very useful time. You know, this is a world in which our 
country has been, I think, unfairly accused of a lot of things, 
misinterpreted. I think for this country at this point to take 
a step towards enhancing the rights of immigrants, even in this 
particular way would be--this is a good time to do it.
    Chairman Hatch. Well, thank you. There is no question that 
you have made a lot of good points there, some of which have 
been too humorous, I think.
    [Laughter.]
    Chairman Hatch. Congressman Rohrabacher?

    STATEMENT OF HON. DANA ROHRABACHER, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Representative Rohrabacher. Thank you very much. Thank you, 
Senator, and it is a great opportunity to testify before you 
because your Senate Joint Resolution 15 is exactly as my House 
Joint Resolution104.
    Chairman Hatch. There is some genius in there for sure.
    Representative Rohrabacher. We mirror each other on this 
subject. And many of the arguments have already been presented, 
but let me just note that the reasons our Founding Fathers 
added a natural born citizen requirement to the Constitution's 
qualification for being President, those reasons may have 
seemed like they were real back then, but they are archaic, and 
technologically they have been dealt with in the meantime. The 
main rationale seems to be that our Founding Fathers had was to 
protect future generations from undue foreign influence which 
would happen through the election of a foreign-born leader to 
the Executive office.
    This mind-set prevailed among our Founding Fathers because, 
of course, they had just freed themselves from foreign 
domination. And that may have made a lot of sense back then.
    Interestingly enough--and I will call this the Hamilton 
loophole because I believe that your analysis is incorrect 
about Hamilton not being eligible. They exempted their own 
generation from the burden of the natural born citizenship 
requirement. Seven of the 39 signers of the Constitution in 
Philadelphia in 1787 were foreign born as well as eight of 
America's original 81 Senators and Representatives. Three out 
of our first ten Supreme Court Justices and four of our first 
six Secretaries of the Treasury and one of our first 
Secretaries of War were all foreign born. Most, if not all, of 
these immigrants were eligible to serve as President since the 
Constitution exempted all those who were citizens at the time 
of its adoption from the natural born citizen requirement.
    Today, of course, the office of President and Vice 
President are the only offices where a person who is not born 
in the United States is disqualified from serving. Is this 
still appropriate when we have seen great leaders after a 
lifetime of service thus be ineligible to represent this 
country as President?
    Today we have many significant political leaders who cannot 
be President or Vice President simply because they were not 
born here. And, of course, this hearing would certainly not be 
complete unless the name of Governor Arnold Schwarzenegger was 
not mentioned at least once. But, of course, he is just one 
famous example that has been pointed out here today. We have 
the Governor of Michigan, of course, who came from Canada at 
age 4. Pete Hoekstra came to this country when he was 3 years 
old from the Netherlands and has now been given the 
responsibility as being Chairman of the House Permanent Select 
Committee on Intelligence. So Congressman Hoekstra oversees the 
Intelligence Committee in a post-9/11 America yet, regardless 
of his lifetime of service, is disqualified from serving in the 
highest office.
    There are many others who are similarly unfairly excluded 
or whose eligibility is in doubt. For the record, I am 
attaching to my written testimony a list of Americans who have 
spent a career of service to this country who are now 
ineligible for President because they are not U.S. citizens of 
birth, along with a list of those who are U.S. citizens from 
birth, but whose eligibility to be President has been 
questioned because they were born outside the borders of the 
United States.
    So I appreciate your leadership, Mr. Hatch, and I would ask 
my colleagues to join me in this very important step, which 
sends a message to the legal immigrants in the United States 
today and the legal immigrants who have become citizens in 
particular. And I agree with Mr. Frank that this is a very 
important time to send such a message.
    While we may have major disagreements on what to do and 
what positions we should take about illegal immigration and 
about what to do with illegal immigrants who are in the United 
States, it behooves all of us to underscore that we are not 
talking about those who legally come to our country, and 
especially those who are now naturalized citizens. Naturalized 
citizens and legal immigrants should have the rights of all 
Americans, and I think that this small change in our 
Constitution underscores that commitment among all of us here 
in elected office.
    So I thank you very much for your leadership, and I hope to 
work with my colleagues, and Representative Conyers I know has 
already endorsed my bill, and I hope that we could put this 
through.
    Thank you very much.
    [The prepared statement of Representative Rohrabacher 
appears as a submission for the record.]
    Chairman Hatch. It would be great if we could, and you are 
right about that on Alexander Hamilton. Some did not want him 
to be President, but they did make that exception. But if they 
made it then, why can't we do it today, and especially after 
better than 200 years of this process, and especially when we 
have a time limitation in there that should satisfy those who--
    Representative Rohrabacher. Senator, there is one aspect of 
this as well, that when our Founding Fathers put this into the 
Constitution, it was impossible for people who were voting for 
a Presidential candidate to actually try to get to know that 
Presidential candidate. I mean, they read about him in a 
newspaper, maybe. I don't even think you could put photographs 
in newspapers in those days.
    Today, when you are voting for a President of the United 
States, you--
    Chairman Hatch. You are going to know a lot more than you 
even want to know.
    [Laughter.]
    Representative Rohrabacher. That is correct.
    Representative Frank. Would the gentleman yield for a 
second?
    Representative Rohrabacher. Television has brought that, 
has brought us into a personal relationship, and one other 
note. Naturalized citizens and people who immigrate here 
legally to the United States and become part of our society, I 
find them to be generally more patriotic rather than Manchurian 
candidates. They are more patriotic than even most of our 
fellow Americans who take their freedom and liberty for 
granted.
    Chairman Hatch. That is a good point.
    Representative Issa?
    Representative Rohrabacher. I would be happy to yield to 
Barney.
    Representative Frank. Just to make the point that, given 
the Electoral College, in fact--and this was certainly the 
intention--you did not even vote for a candidate. You voted for 
wise men who were going to pick the candidate. Now, the public 
soon demanded the right to do that, but in the original 
conception--and the theory that, you know, a small band of 
people, the electors, might have been unduly influence had at 
least some plausibility. But the point was that you were not in 
the original Constitution envisioning a public vote directly 
for President. It was for electors who were envisioned as 
having the ultimate choice.
    Chairman Hatch. Barney, for what it is worth, I led the 
fight against the so-called direct election of the President. 
It was one of the few times in my whole time of 28 years in the 
Senate where I think the debate was won on the floor, where 
people really paid attention to it, because it is not just a 
bunch of--I do not want to get into a debate on that today, but 
the fact of the matter is that we have basically a direct 
election by 50 States. And it is a very interesting process, 
and it is one that has served this country well. I think I 
could rebut every--
    Representative Frank. Well, Senator, I don't mean to--you 
know, I don't want to introduce undue elements of controversy 
here, but I am still addicted to the view that the person who 
gets more votes than the other guy ought to be the winner.
    Chairman Hatch. Well, and as a general rule, that has 
always worked that way. And in the cases where it has not, 
there have been real questions of fraud and other problems.
    Representative Frank. Not last year. There was no question 
of fraud in the overall total.
    Chairman Hatch. Only in six States, Barney.
    Representative Issa? There were six States that--
    Senator Craig. Could we have order, please?
    Chairman Hatch. I would be happy to debate that in the 
future. I would be more than happy.
    Representative Issa?

 STATEMENT OF HON. DARRELL ISSA, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Representative Issa. Thank you. I was wondering when Mr. 
Rohrabacher was going to reclaim his time.
    Senator Craig. I am reclaiming it for him.
    Representative Issa. Thank you, Senator. Thank you for 
holding this hearing, Senator, and all of the Senators here. 
Obviously, our senior Senator from California, I really 
appreciate your being here.
    Often in these hearings when you are the last person, 
everything that can be said has been said, and I think that is 
not the case here, but I will dispense with my prepared 
comments so that I can go only to those areas that perhaps have 
been touched on lightly or not at all.
    Certainly, like each of the previous speakers, I have a 
member of my staff who was adopted from Korea at age 2, and 27 
years later he knows no other country but America. And yet he 
is not eligible to be President.
    In California, we are often faced with the interesting 
anomaly that people who come to our State illegally and have a 
child, perhaps even come legally and have a child during a 
short visa stay, that child is eligible to be President. And 
yet somebody who waits in line and perhaps does not arrive in 
America until their child is 2 or 3 years old, that child is 
ineligible. So we penalize those who wait, who wait in line. 
And I think that goes to my first and most important point.
    This piece of constitutional amendment--and unlike the 
Senator I very much believe that we have to have a 
constitutional amendment--is about fairness. The Framers of the 
Constitution were fair to the people of their time. At that 
time they felt it was fair to grant Native Americans less than 
full citizenship. They felt a compromise that granted African 
Americans less than full citizenship, in fact, less than 
freedom, was acceptable. They felt that granting men full 
freedom and rights but women less than full freedom was 
acceptable.
    That does not make those people bad men. It makes them men 
and leaders of their time. But we are the men and women that 
are the leaders of our time. And just as the Native Americans 
now enjoy full rights, including Presidency, including the 
right to vote, including the right to be counted in a census 
fully, as do African Americans, as do women, we have one group 
that has been left out. And I think that is where fairness is 
the most important part of your proposal for this 
constitutional amendment, Senator.
    However, to Senator Nickles, in contrasting the two major 
differences between his legislation and your constitutional 
legislation, I disagree with the Senator's theory that we can 
take care of this by legislation. We live in an era--it was 
mentioned perhaps slightly a minute ago--in which anything can 
be challenged and taken to nine men and women on the Supreme 
Court. Any law that we pass here is open to challenge at the 
Supreme Court. So we could pass a law today allowing someone to 
be President that previously was in doubt. That would include, 
obviously, those born abroad of U.S. citizens, such as Senator 
McCain, who was born in an area that is no longer the United 
States. It was the United States when he was born, the Panama 
Canal District; today it is not.
    That doubt certainly could be challenged after an election, 
challenged to the U.S. Supreme Court. And the U.S. Supreme 
Court would not have the ability to say: Do we go with the will 
of the people? They would have to say: What is the Constitution 
and what does it say?
    So I think that as much as we could envelop for feel-good 
purposes more and more people into the system of being defined 
as natural born, I do not believe that it would exempt a 
Presidential candidate, if elected, from being open to that 
challenge. And the possibility certainly exists that someone 
could be elected President and their Vice President could be 
sworn in because the men and women of the Supreme Court would 
have to interpret the Constitution as unamended rather than 
amended by simple legislation or statute. And I think that is 
the most important reason that this constitutional amendment is 
necessary.
    Each and every one of the points brought to us here today 
of uncertainty--uncertainty, even the question of Hamilton's 
exemption, certainly no longer germane today. But Senator 
McCain, who is to say that Senator McCain, if he had been the 
Republican nominee for President in 2000, if he had won by a 
narrow margin in so few States with hundreds or a few thousand 
votes, who is to say that the Supreme Court would not have been 
faced with two questions--one question about whether or not he 
won the election, and a second one about whether he was 
eligible to be President.
    Certainly in this day and age, anyone can bring a case, and 
the Supreme Court would have an obligation to hear it.
    So since that has not been previously decided, each and 
every one of the people that we want to include has not been 
decided, I believe that we should decide it in clear and 
definitive language that will be unambiguous for the future for 
all those we want to be eligible.
    Lastly, because people have talked about the period of 
time, I am a cosponsor of both pieces of legislation in the 
House. I will add that if I were going to pick times--and since 
Congressman Frank said an hour and a half might be too short--I 
would only say that as this legislation goes through the House 
and the Senate, the truth of the matter is, the simple 
statement is we needed a President by the Founding Fathers to 
be 14 years a resident. And if I were going to pick a single 
date, 35 years old should stand, but also, realistically, with 
all due respect, Senator, I might suggest that even 14 years a 
citizen and a resident would be a fairly understandable 
requirement, because we are going to let stand the fact that 
you have to not just be a citizen but that you cannot have 
essentially left the country for years and then be--what do 
they say?--parachuted back in.
    So whether you use an hour and a half, 14 years, 20 years, 
or 35 years I think is less important than the two guiding 
principles--one of fairness, the other of clarity--and your 
legislation brings both. So I want to thank you, and thank you 
for holding this hearing.
    Representative Frank. We have 10 minutes to vote.
    Chairman Hatch. We are grateful that all of you would come. 
We are grateful to have your testimony, and we appreciate it, 
and it has been very enlightening. Thanks so much. We will 
excuse you at this time. Thank you.
    Chairman Hatch. Let me introduce our distinguish witnesses 
for panel two.
    Professor Akhil Reed Amar is the Southmayd Professor of Law 
at Yale Law School. He has also received his undergraduate 
degree from Yale, where he graduated with a perfect grade point 
average and his law degree. He has been teaching at Yale for 
almost 20 years, so we welcome you, Professor. We are very 
happy to have you with us once again.
    Dr. Matthew Spalding is an expert on American political 
history, constitutionalism, religious liberty, and civic 
renewal. He is also the director of the B. Kenneth Simon Center 
of American Studies at the Heritage Foundation. An adjunct 
fellow with the Claremont Institute, Dr. Spalding is the author 
of ``A Sacred Union of Citizens: George Washington's Farewell 
Address and the American Character,'' and the editor of the 
Founders' Almanac. He also holds a Ph.D. in government from 
Claremont Graduate School, so we welcome you as well, Dr. 
Spalding. Good to see you again.
    Next we have Professor John Yinger, who is Trustee 
Professor of Public Administration and Economics for the 
Maxwell School at Syracuse University. He has also taught at 
the Harvard JFK School of Government, Princeton University, the 
University of Michigan, and the University of Wisconsin. So we 
are very grateful to have you here as well.
    Now, I have to explain. I am on the conference committee 
that is meeting over in the House on the FSC/ETI bill, and so I 
have asked Senator Craig if he would finish this hearing. But I 
will read everything that you folks say, and I have read a 
number of things anyway, and I will pay very strict attention 
to what you have to say. We appreciate your being here.
    Senator Durbin. Mr. Chairman?
    Chairman Hatch. Yes, Senator?
    Senator Durbin. May I ask unanimous consent that a 
statement by Senator Leahy be entered into the record?
    Chairman Hatch. Without objection, we will put that at the 
beginning of the hearing immediately following my own 
statement.
    So if we can, we will turn to you, Professor Amar first, 
then Dr. Spalding, then Professor Yinger.

 STATEMENT OF AKHIL REED AMAR, SOUTHMAYD PROFESSOR OF LAW AND 
   POLITICAL SCIENCE, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT

    Mr. Amar. Thank you, Mr. Chair. My name is Akhil Reed Amar. 
I am the Southmayd Professor of Law and Political Science at 
Yale University. As my formal testimony draws upon a soon-to-be 
published book that I have written on the history of the 
Constitution, I respectfully request that the relevant pages of 
that book, which I have attached as an appendix to my 
testimony, be made part of the record.
    In a land of immigrants committed to the dream of equality, 
the Constitution's natural born clause seems, well, un-
American. Why shouldn't we open our highest office to those who 
have adopted this country as their own and have proved their 
patriotism through decades of devoted citizenship?
    Legal traditionalists will doubtless, and with good reason, 
counsel us to think twice before altering the Founders' system. 
But the Framers themselves created an amendment process as part 
of their legacy to us. A close look at why they added the 
natural born citizen clause can help us decide whether their 
reasons still make sense today.
    As I have documented in greater detail in ``America's 
Constitution: A Guided Tour,'' the 1787 Constitution was, by 
the standards of its time, hugely pro-immigrant. Under the 
famous English Act of Settlement of 1701--and this is what you 
need to understand is the baseline against which they are 
acting--no naturalized subject in England could ever serve in 
the House of Commons, or Lords, or the Privy Counsel, or in a 
wide range of other offices. The Constitution repudiated this 
tradition across the board, opening the House, the Senate, the 
Cabinet, and the Federal judiciary to naturalized and native 
alike.
    As you have just heard, seven of the 39 signers of the 
Constitution at Philadelphia were foreign-born, as were 
countless thousands of the voters who helped ratify the 
Constitution and made it the supreme law of the law. Immigrant 
Americans accounted for eight of America's first 81 
Congressmen--actually, nine of the first 91, if you count the 
later ones in the first 2 years--three of our first ten Supreme 
Court Justices, four of the first six Secretaries of the 
Treasury, one of the first three Secretaries of War.
    Only the Presidency and the Vice Presidency were reserved 
for birth-citizens, and even this reservation was softened to 
recognize the eligibility of all immigrants who were already 
American citizens in 1787--men, like Hamilton, who had proved 
their loyalty by coming to or remaining in America during the 
Revolution.
    Why, then, did generally pro-immigrant Founders exclude 
later immigrants from the Presidency? If we imagine a poor boy 
coming to America and rising through the political system by 
dint of his own sweat and virtue only to find himself barred at 
the top, the rule surely looks anti-egalitarian. But in 1787, 
the more salient scenario involved the possibility that a 
foreign earl or duke might cross the Atlantic with immense 
wealth and a vast retinue, and then use his European riches to 
buy friends on a scale that virtually no homegrown citizen 
could match. There were no campaign finance rules in place 
then.
    [Laughter.]
    Mr. Amar. No such grandees had yet come to our shores. 
Thus, it made good republican sense to extend eligibility to 
existing foreign-born Americans, yet it also made sense to 
anticipate all the ways that European aristocracy might one day 
try to pervert American democracy.
    Several months before the Constitution was drafted, one 
prominent American politician had apparently written to Prince 
Henry of Prussia, brother of Frederick the Great, to inquire 
whether the prince might consider coming to the New World to 
serve as a constitutional monarch. Though few in 1787 knew of 
this feeler, the summer-long secret constitutional drafting 
sessions in Philadelphia did fuel widespread speculation that 
the delegates were working to fasten a monarchy upon America. 
One leading rumor was that the Bishop of Osnaburgh, the second 
son of George III, would be invited to become America's king. 
The natural-born clause gave the lie to such rumors and thereby 
eased anxieties about foreign nobility.
    These anxieties had also been fed by England's 1701 Act, 
which inclined the Founders to associate the very idea of a 
foreign-born head of state with the larger issue of monarchical 
government. Though England banned foreigners from all other 
posts, it imposed no natural-born requirement on the head of 
state himself. In fact, the 1701 Act explicitly contemplated 
foreign-born future monarchs--the German House of Hanover, in 
particular. By 1787, this continental royal family had produced 
three English Kings named George, only the third of whom had 
been born in England itself.
    Thus, in repudiating foreign-born heads of state, the 
Framers meant to reject all vestiges of monarchy. Theirs was 
ultimately an egalitarian idea. Their general goal was to 
create an egalitarian republic.
    In light of this history, the case for a constitutional 
amendment today would appear to be a strong one, and we can 
best honor the Framers' egalitarian vision by repealing the 
specific rule that has outlived its original purposes.
    Now would this be the first time we have tweaked the 
Founders' rules of Presidential eligibility. The Constitution 
says ``he'' and ``his,'' when it comes to the President, and 
they were thinking about kings, not queens. They never talked 
about--and they knew about queens. Virginia was named after 
one, William and Mary another.
    So a plausible argument could be made that the original 
Constitution envisioned only men would be eligible. But after 
the 19th Amendment, it is clear that women have a right not 
just to vote but to be voted for, to hold office. So we have 
already in effect changed the rules of Presidential 
eligibility. ``He'' now means ``he or she.'' What the 
suffragist movement did for women, America should now do for 
naturalized citizens. America should be more than a land where 
every boy or girl can grow up to be...Governor.
    Thank you.
    [The prepared statement of Mr. Amar appears as a submission 
for the record.]
    Senator Craig. Thank you very much.
    Dr. Spalding, please proceed.

   STATEMENT OF MATTHEW SPALDING, DIRECTOR, B. KENNETH SIMON 
      CENTER FOR AMERICAN STUDIES, THE HERITAGE FOUNDATION

    Mr. Spalding. Thank you, Senator. More than any other 
nation in history, this country and its system of equal justice 
and economic freedom beckons not only the downtrodden and the 
persecuted, but those who seek opportunity and a better future 
for themselves and their posterity.
    By the very nature of the principles upon which it is 
established, the United States encourages immigration and 
promotes the transformation of those immigrants into Americans.
    ``The bosom of America is open to receive not only the 
opulent and respectable stranger,'' George Washington wrote, 
``but the oppressed and persecuted of all Nations and 
Religions; whom we shall welcome to a participation of all our 
rights and privileges if, by decency and propriety of conduct, 
they appear to merit the enjoyment.''
    Yet there is one legal limitation of those potential 
rights: only those who are native born can become President of 
the United States. Why the exception? In addition to what 
Professor Amar has already pointed out, I would add one: 
Poland, where in 1772, as Forrest McDonald has pointed out and 
argued, ``the secret services of Austria, Prussia and Russia 
had connived to engineer the election of their own choice for 
king'' and then divided the country.
    Perhaps with this in mind, John Jay wrote George Washington 
at the Convention, urging that the Commander-in-Chief be only 
given to or devolve on a natural born citizen. Thus, the 
phrase, as Justice Joseph Story later explained, ``cuts off all 
chances for ambitious foreigners, who might otherwise be 
intriguing for the office.''
    But there is something more going on here, I believe, that 
points to the general views of the Founders about immigration. 
The immediate fear was a foreign takeover, but the larger fear 
was the influence of foreign ideas.
    At the Constitutional Convention, there was a lively and 
illuminating debate about the eligibility of foreign immigrants 
for Federal office. Some wanted to restrict membership to those 
born in the United States. Other more numerous delegates 
vigorously criticized this position. James Madison wanted to 
invite ``foreigners of American republican principles among 
us,'' and West Indies-born Alexander Hamilton spoke of 
attracting immigrants who would ``be on a level with the First 
Citizens.''
    These views prevailed and the Constitution required 
relatively modest residency periods for immigrant citizens who 
aspired to office. This was long enough, Madison later wrong in 
the Federalist Papers, to assure that legislators are 
``thoroughly weaned from the prepossessions and habits incident 
to foreign birth and education.''
    So why the nature born citizenship requirement for the 
Presidency? With a single executive, at the end of the day 
there are no checks, no multiplicity of interests that would 
override the possibility of foreign intrigue or influence, or 
mitigate any lingering favoritism--or hatred--for another 
homeland.
    The attachment of the President must be absolute, and 
absolute attachment comes most often from being born and raised 
in--and educated and formed by--this country, unalloyed by 
other native allegiances. The natural born citizen requirement 
for the Presidency seeks to guarantee, as much as possible, 
this outcome where it matters most.
    While the practical circumstances have changed--there is no 
threat of a foreign takeover--the underlying concerns about 
attachment and allegiance still make sense. The question is 
whether you can expand the eligibility to non-native-born 
citizens without undermining the wisdom and caution inherent in 
the Framers' design.
    One proxy would be a significant citizenship requirement, 
along with a significantly increased residency requirement. How 
much? The question is enough to approximate the attachment that 
comes with having lived in America for almost all of one's 
life, thus fundamentally shaped by this regime, its history, 
institutions, and way of life. The average of 20th century 
Presidents is 54. A 35-year citizenship requirement, combined 
with a residency requirement increase, would assure that most 
would-be Presidents are citizens before they are 18 years old 
and residents for much of the time thereafter.
    Four very brief caveats:
    One, opening the question of the Presidency to naturalized 
citizens raises the issue of dual citizenship. This is a 
significant issue that must be addressed and could be a 
particularly thorny problem.
    Secondly, in order to have the intended effect, this effort 
must be part of a renewed effort, a deliberate and self-
confident policy to assimilate and Americanize immigrants and 
teach them about the country's political principles and civic 
traditions.
    Thirdly, I am concerned about the politics of this 
question. It should not be resolved based on immediate 
calculations to advance or hinder the political aspirations of 
any particular individual or party. I am tempted to suggest 
that any amendment should include language that it would not 
take effect for 10 years or so, when the current candidates are 
not on the scene.
    And, fourth, I must say that the more I have looked at it, 
the more I am intrigued by the legislative approach. 
Recognizing the difficulty of amending the Constitution, the 
possibility of closing key loopholes by legislation is 
attractive. Looking at the legislation of the 1st Congress, the 
Naturalization Act of 1790, it seems that Congress does have 
authority in this matter. I won't speculate what the court 
would say, but these questions seem to accord well with court 
precedents and court's deference to allow Congress latitude in 
exercising its plenary powers over naturalization.
    Let me end very briefly on a personal note. Last year, my 
wife and I adopted two Russian orphans, age 3-1/2 and 1. They 
both hold birth certificates in our name and are American 
citizens. Joseph knew some broken Russian, but one of the first 
English phrases he learned as ``God bless America.'' He 
actually knows that George Washington is the Father of his 
Country. Yet he cannot grow up to be President of the United 
States. What is worse, in reading stories of our Nation's 
heroes and in emulating their patriotism, he cannot dream, as 
little boys do, of serving his country in its highest office, 
``one a level with the First Citizens.''
    Nevertheless, these children--our children--will be as 
natural born citizens, not because of where they were born, but 
because they will be raised and educated to know, as Lincoln 
said of those who did not themselves descend from the Founders 
but came to understand the truths of the American creed, that 
they are ``blood of the blood, and flesh of the flesh, of those 
who made the Revolution.''
    Thank you.
    [The prepared statement of Mr. Spalding appears as a 
submission for the record.]
    Senator Craig. Doctor, thank you.
    Professor, please proceed.

     STATEMENT OF JOHN YINGER, TRUSTEE PROFESSOR OF PUBLIC 
ADMINISTRATION AND ECONOMICS, THE MAXWELL SCHOOL OF CITIZENSHIP 
  AND PUBLIC AFFAIRS, SYRACUSE UNIVERSITY, SYRACUSE, NEW YORK

    Mr. Yinger. Good morning, Senator Craig, and other 
distinguished members of this Committee. I would like to thank 
you very much for inviting me to testify today.
    I am a professor of public administration and economics at 
the Maxwell School of Citizenship and Public Affairs at 
Syracuse University. The topic of this hearing, the clause 
limiting Presidential eligibility to natural born citizens, is 
of great interest to me both professionally and personally, and 
I have been studying it for the past several years.
    My research on civil rights and the nature of our Federal 
system helped to spur my interest in this clause. In addition, 
I am the proud father of two adopted children, one of whom--my 
son, Jonah--will not be eligible to run for President when he 
grows because he was born in another country. Two of my nieces, 
Sara and Julia Grace, also are not eligible to run for 
President.
    The principle that all citizens should have equal rights is 
one of the cornerstones of American democracy. The U.S. 
Constitution made historic contributions, of course, to the 
establishment of this principle, but the Founding Fathers did 
not fully implement it, and the Nation has struggled ever since 
to try to complete the task.
    The Constitution's most important limitations on this score 
obviously were that it allowed the States to disenfranchise 
people on the basis of sex and race. The 14th, 15th, and 19th 
Amendments to the Constitution, along with extensive civil 
rights legislation, have been passed to remove these 
limitations.
    This hearing is about the next step on the path toward 
equal rights, which is to ensure that naturalized American 
citizens have exactly the same rights as natural born citizens. 
The constitutional provision prohibiting naturalized citizens 
from running for President violates the equal rights principle 
and serves no useful purpose. It should be removed from the 
Constitution.
    At the Constitutional Convention in 1787, the final 
Presidential eligibility clause with the natural born citizen 
requirement in it was accepted unanimously with no record of 
debate. But earlier versions of the clause did mention 
nativity, and the Founders provided at least three types of 
evidence that they had serious doubts about the natural born 
citizen requirement.
    The first source of evidence is the Presidential 
eligibility clause itself, which grants eligibility to any 
citizen of the United States at the time of the adoption of 
this Constitution. This grandfather clause gave Presidential 
eligibility to roughly 60,000 naturalized citizens in the 
elections of 1796 and 1800. By including this clause, the 
Founders rejected the view that naturalized citizens are 
inherently more likely than natural born citizens to be subject 
to foreign influence.
    Second, extensive evidence comes from the debates 
concerning the time of citizenship requirements for the Senate 
and the House of Representatives. The key issue in these 
debates was whether to set long time-of-citizenship 
requirements and thereby to place an extra burden on 
naturalized citizens.
    Numerous delegates spoke out against such requirements and, 
thus, against even stronger restrictions, such as making 
naturalized citizens ineligible altogether. James Madison 
declared that a severe restriction on the rights of naturalized 
citizens would be ``improper: because it will give a tincture 
of illiberality to the Constitution.'' He was seconded by 
Benjamin Franklin ``who should be very sorry to see any thing 
like illiberality inserted in the Constitution.'' The word 
``illiberal'' was their way of saying that such a restriction 
would violate the equal rights principle.
    Madison also said he ``wished to maintain the character of 
liberality which had been professed in all the Constitutions 
and publications of America.'' This position was seconded by 
several other delegates. Madison is referring to the 
Constitutions passed by virtually all the States at the time of 
Independence, not one of which restricted the rights of 
naturalized citizens.
    Madison reiterated his view several years later when he 
said, ``Equal laws, protecting equal rights, are found, as they 
ought to be presumed, the best guarantee of loyalty and love of 
country.''
    Third, in 1798, the U.S. Senate, composed of men who had 
participated in the founding of the United States, demonstrated 
its ambivalence toward the natural born citizen requirement by 
electing a naturalized citizen, John Laurance of New York, to 
be President Pro Tempore of the Senate.
    This action is significant because Laurance was eligible to 
be President, thanks to the grandfather clause, and because at 
that time the President Pro Tempore was second in the line of 
succession. Despite fears of foreign intrigue, therefore, a 
naturalized citizen briefly stood only behind Vice President 
Thomas Jefferson in the sequence of succession.
    With the Founders' doubts in mind, consider the relevance 
of this issue today. The natural born citizen requirement is 
the only provision in the Constitution that explicitly denies 
rights to an American citizen based on one of that citizen's 
indelible characteristics. By embracing one exception to the 
equal rights principle, we leave open the door to other 
exceptions. We can strengthen our democracy and our reputation 
around the world by closing this door.
    The 14th Amendment, which is one of the crowning 
achievements in this Nation's struggle to promote equal rights, 
says, in part, ``All persons born or naturalized in the United 
States...are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce any law 
which shall abridge the privileges or immunities of citizens of 
the United States.''
    This amendment prohibits the States from treating 
naturalized citizens any differently from natural born 
citizens. The Federal Government should face the same 
prohibition. As the U.S. Supreme Court said in another context, 
``it would be unthinkable that the same Constitution would 
impose a lesser duty on the Federal Government.''
    Despite all the protections built into our constitutional 
system, some people insist that the natural born citizen 
requirement makes us safer. If naturalized citizens were 
allowed to run for President, these people argue, foreign 
powers might scheme to have their citizens elected here. This 
Manchurian candidate imagery has two major flaws. The first was 
articulated by Benjamin Franklin. He ``reminded the Convention 
that it did not follow from an omission to insert the 
restriction...in the Constitution that the persons in question 
would actually be chosen into the Legislature.'' This fits, of 
course, with earlier comments that it is very difficult to run 
for President.
    Moreover, any naturalized citizen running for President 
would have a hard time convincing a majority of the American 
people that he or she is the best candidate for President. This 
point was made by Madison. ``For the same reason that [men with 
foreign predilections] would be attached to their native 
Country, our own people would prefer natives of this Country to 
them.''
    The second flaw was also exposed by Madison. He said, ``If 
bribery was to be practised by foreign powers,'' it would be 
attempted ``among natives having full confidence of the people 
not among strangers who would be regarded with a jealous eye.''
    Restricting the rights of all naturalized citizens out of 
the fear that one of them might try to undermine our Government 
by running for President is an extreme form of profiling with 
no basic in logic or history. Does it make sense to 
discriminate against 12.8 million naturalized citizens, 
including 250,000 foreign-born adoptees, because one of them 
with disloyal thoughts might decide to run for President? Of 
course not. It makes no sense at all. The natural born citizen 
requirement adds nothing of substance to the extensive 
protection provided by our constitutional election procedures 
and the judgment of the American people.
    Most people never run for President, but the right to run 
for President has enormous symbolic importance. The power of 
this symbolism was brought home to me just a few days ago. On 
September 22nd, the Syracuse Post-Standard wrote an editorial 
in support of the amendments introduced by Senator Hatch and 
Representative Rohrabacher. This editorial quoted me and 
mentioned my son, Jonah. The next day I received a letter from 
Ms. Cathy Fedrizzi, one of Jonah's second-grade teachers, which 
said, ``Dear Dr. Yinger, As I read this morning's editorial 
about Jonah, I had a feeling this would be a hard. I was 
scheduled to visit Jonah's class to teach about the upcoming 
election. Part of my lesson involves teaching about who is 
eligible to become President...''
    ``...As we worked our way through the lesson, I noticed 
Jonah sitting on the edge of the group. That's unusual for 
Jonah...whenever I've taught guest lessons before, he's been 
front and center, so I had a feeling he wasn't happy. Before I 
got to the rules for becoming President, he told me the rule 
about being born a citizen. I explained that some laws are made 
a long time ago and seem like a good idea at the time, but I 
didn't like the law the way it was either. He didn't seem 
satisfied with my answer, and neither was I.''
    ``I feel sad every time this situation occurs...I hope that 
some day, before I stop teaching, I can tell eight year old 
students that anyone sitting on the floor at my feet could one 
day be President of the United States.''
    My son should not have to feel this way. No American second 
grader should have to feel this way. No American citizens 
should have to feel this way. I urge the members of this 
Committee, and indeed all Members of Congress, to support 
Senator Hatch's Equal Opportunity to Govern Amendment or one of 
the comparable amendments introduced in the House. Let us renew 
our commitment to the equal rights principle by giving 
naturalized citizens the right to run for President.
    Thank you very much.
    [The prepared statement of Mr. Yinger appears as a 
submission for the record.]
    Senator Craig. Well, gentlemen, thank you all very much for 
very valuable and well-done testimony. I am one who has not yet 
decided on a course of action that we should take, but one who 
is an activist in the area of adoption and believe I have 
helped bring literally thousands of children into a permanent 
loving environment, both domestic and foreign, struggle with 
many of your arguments. Last year, this Nation's parents 
adopted 25,000 foreign-born young people, many of them babes in 
arms. And to suggest that once they have lived here for a 
period of time, educated here, become Americans, without 
question every bit the American that I am, that they would be 
denied this right is a tough one. And it is one that the 
Congress is obviously struggling with.
    Let me ask a couple of questions and then turn to my 
colleagues, and I am going to ask questions that all three of 
you might choose to respond to. Senator Hatch's amendment and 
other amendments choose a time of so many years having been a 
naturalized citizen before one could serve as or be eligible to 
seek the office of the Presidency. Is there a magic time in 
years?
    Mr. Amar. The 35-year-old clause has been used as a 
springboard to say, well, maybe it should be 35 years after one 
becomes a citizen. There is a sort of plausibility to that. It 
does not quite achieve equality for babes in arms. If a kid 
comes here at age 3, he or she would only then be eligible at 
38 where his classmates are at 35. But that may be a small 
thing.
    My thought is that actually the 35-year-old clause had a 
rather different purpose, and it was actually an anti-dynastic, 
anti-monarchical purpose. The concern was who would have name 
recognition to be elected President at 30 or 33, and it is the 
son of a famous father. And they were reacting against dynasty, 
and so they wanted to make sure that lower-born people would 
have a chance to show their stuff and well-born people would 
have a chance to make their own mistakes and achieve their own 
successes. And I am not sure that that reasoning--so John 
Quincy Adams does become President, but not before he got a 
track record of his own. I am not sure that that actually is 
the same cluster of reasons that would be sensible.
    But 14 years of continuous residence was suggested, and 
that has a certain naturalness. It borrows directly from the 
eligibility clause itself. Twenty is a kind of intermediate 
compromise. Fourteen actually builds on the Constitution 
itself.
    Senator Craig. Mr. Spalding?
    Mr. Spalding. In my testimony, I actually mentioned this 
question. I think it is important that you look at this and 
judge it according to the right standards. The issue here does 
not seem to be paralleling existing numbers in the 
Constitution. The question you need to address is what level of 
citizenship and residency in your mind is required for the 
unique office of the Presidency. In amending the Constitution, 
you are open to amend it as you choose. The reason I came up 
with the 35 number is actually it is in the Constitution, but 
more importantly, if you look at the average age of current 
Presidents, all Presidents, especially in the 20th century, 
minus 35, that gets you down to the possibility of making sure 
that someone emigrates here when they are still at an age where 
they will be formed in their character and ideas by this 
country. And that is what we need to assure. The question here 
is about the unique nature of the Presidency, not about--
comparisons are very important, but there is something--all 
these comparisons are very important, but there is something 
different about the Presidency that I think you have an 
obligation to think through very seriously. It is very clear. A 
child, a babe, can clearly become attached to this country and 
has no obligations or connections. The flip side is that 
someone who comes over here that is 40 or 50, that might 
present some sort of problems. They have clear allegiances to 
another country. Where do you draw the line?
    The issue, I think, is attachment, and that is what you 
have to think through.
    Senator Craig. Mr. Yinger?
    Mr. Yinger. I would only add that I think that the key 
issue here is the one of eliminating a situation in which 
someone is disenfranchised because of an indelible 
characteristic in some important way. And I do not think that 
you need to have in this clause any guarantee of particular 
characteristics of an individual. That is what voting 
procedures are for. That is what the judgment of the American 
people is for.
    So I think that there needs to be a debate and people need 
to decide what they are comfortable with. I think anything in 
the 14- to 35-year range would be reasonable.
    Senator Craig. Well, I think, Dr. Spalding, you have 
mentioned something that is important in the numbers 
determination, and that is, a period of time long enough for 
that individual to become imbued with the general beliefs, 
appreciation for this country, its constitutional system, and 
all of that.
    At the same time, I will tell you that, like Congressman 
Conyers, I have attended a good many naturalization ceremonies, 
and I find naturalized citizens sometimes having studied us 
better than our own native born citizens, knowing more about 
us, being more excited about this country, and more fervently 
American in many instances. So it is an energy and a chemistry 
that I think those who come here seeking citizenship, wanting 
to become one of us, if you will, that in itself is a 
phenomenal challenge and in itself is a qualifier.
    Mr. Spalding. If I could make just one brief comment, I 
completely agree with you. That is why I am so interested in 
this question.
    But you have to remember that in making a change to the 
U.S. Constitution, you are making a rule not an exception. The 
rule you make has to last for the foreseeable future in a 
Constitution that lasts forever.
    And, secondly, remember, this is the Presidency. The key 
question you have to concern yourself with is: At the end of 
the day, when the President, a single executive, makes a key 
decision, they must be absolutely loyal to this country and not 
either hesitate perhaps in a military decision or a security 
decision, they cannot hesitate in making a decision which 
favors this country and is not shaped by allegiances or hatred 
of other countries. That was a key concern of the Founders, and 
especially Washington's Farewell Address.
    Senator Craig. You and I have no dispute there whatsoever. 
I think that is part of an important consideration in choosing 
to change our Constitution.
    Now, I will say in conclusion, because I am also very 
intrigued--and I will come back to ask a question of you about 
Senator Nickles' approach. I am one who has attempted to 
convince the American people to pass a constitutional 
amendment. I have traveled to 40 States with a single amendment 
in mind and visited with those legislatures. It is a near 
impossible task. It is a hurdle so high that it is near 
impossible. And it must be an issue that is overwhelmingly 
popular and obvious on its face to the American people, or it 
will not happen.
    So I am going to come back to you. My time is up. So think 
about, if you would, Senator Nickles' amendment that deals with 
the definition of and what is believed to be a responsibility 
that could be assumed here in making that adjustment.
    Let me turn to Senator Durbin--I believe you were here 
next--for any questions you might have.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman, and thank you to 
the witnesses.
    When it comes to amending the Constitution, I am a skeptic, 
a proud skeptic. In 22 years on Capitol Hill, I have seen more 
attempts, scores if not hundreds of attempts, to amend this 
Constitution. Some of them are offered in good faith, and some 
just reflect the politics du jour. If someone burns a flag at a 
political convention in Texas, another person says, ``Let's 
amend the Bill of Rights for the first time in our history.'' I 
think that shows a readiness to change a document that we 
should be very reluctant to ever change.
    I am prepared to make an exception because I think this is 
a good change, for two reasons:
    First, I don't think there is any other way to achieve 
this. I may disagree with Dr. Spalding on this. I don't think 
you can do this legislatively. I think the Constitution is very 
explicit, and our change should be explicit within the 
Constitution.
    And, second, I believe it corrects an anachronism, and 
there are anachronisms in that Constitution. Witness Article I, 
Section 2, where we count those who are not free persons as 
three-fifths of a citizen for the purpose of apportionment in 
Congress. What was that all about? We did not view African 
Americans as real, whole Americans. They were only counted as 
three-fifths of a citizen. Well, thank God we came to the 
realization that was wrong, as we came to the realization it 
was wrong to deny women or those who did not have property an 
opportunity to vote. So some change is necessary. The Founding 
Fathers got most of it right, but not everything.
    There are two observations I would make, one leading to a 
question. And the first is consider what is driving this 
debate: the fundamental inequity and unfairness of the way we 
are treating naturalized citizens in America. 30,000 
naturalized citizens are today risking their lives, putting 
their lives on the line for America, as members of the armed 
forces, We cannot ask anything more of a person than to give 
their lives for this country.
    Now we are talking about the same naturalized citizens 
being recognized as having an opportunity to run for the 
highest office of the land. I think that is a question of 
equity and fairness. But I will say to my colleagues on the 
Judiciary Committee, many of whom are not here today, the 
immigration laws of this country are rife with inequity and 
unfairness. We see it every day in our offices. We are focusing 
on the Presidency. We should be focusing on the body of laws 
and how we treat immigrants who come to this country. We have 
not done because it is politically volatile.
    The second issue is one that has been historic, and that is 
the question of dual loyalties. I am Catholic. There was a time 
in the 19th century when being Catholic virtually disqualified 
you from being seriously considered for the highest office in 
the land. Why? Because they believed these papists would listen 
to advice from the Vatican before the American people. Well, 
thank goodness that came to an end in 1960 with the election of 
President Kennedy. It appears not to be an issue--and perhaps 
it will not be--on November 2nd. But the point is that is no 
longer a debate topic.
    Some raise the question about dual loyalty of Jewish-
Americans. Can they be loyal to America and to Israel? Now we 
come into another aspect of this dual loyalty question, which 
we have talked about in general terms, but Dr. Spalding has 
raised in specific terms. And this is where I come to my 
question. A friend of mine by the name of Val Adamkus was born 
in Lithuania. He as a young boy fought the Nazis when they 
occupied Lithuania, then fought the Soviets when they occupied 
Lithuania, and left that country to come to the United States 
to become a naturalized citizen. He received the highest award 
in civil service in America for his service to our Government. 
And then after his retirement from our Federal Government and 
after the liberation of Lithuania from the Soviet Union, he 
returned to Lithuania and was elected President of that 
country. An amazing story.
    But there is one footnote most people don't realize. In the 
closing moments before he was sworn in as President of 
Lithuania, he surrendered his American citizenship. He didn't 
feel that he could serve the people of Lithuania if there was 
ever any question about his loyalty.
    Dr. Spalding, you raised that point. We live in a world 
where people can be dual citizens. Is that an important part of 
this discussion? Should we in some way or another make it clear 
that you have to renounce other citizenships to be considered 
as President, even as a naturalized citizen? Or should we trust 
the crucible of the campaign, let the people decide as to 
whether a person's first loyalty will be America?
    Mr. Spalding. It is a very good question. Just a very brief 
clarification so that we do not confuse my earlier point. When 
I said I was interested in the legislative approach, I was--I 
am fascinated by what his legislation proposes to do, namely, 
to correct some specific things. One thing that is clear is 
that natural born does not equal naturalized. That would 
require an amendment. So I am not saying you can solve that 
problem through legislation.
    I think the question I have raised and you alluded to is 
extremely important. My children have dual passports, dual 
citizenship. They hold Russian passports and have U.S. 
passports. Holding dual passports is not the issue. There are 
many people that have dual connections to countries. What I am 
concerned about is, at the end of the day, where their number 
one allegiance is. And I think that is a legitimate question. 
And I think the example you gave is a very good example of 
precisely that.
    Now, having said that, there is only so much you can do in 
an amendment like this or in law, but you have an obligation to 
do what you can to try to clarify that. And as I understand it, 
the law currently is very ambiguous on this question.
    There will be a lot of cases here and there that are either 
problematic or not problematic, but the law cannot be silent on 
it. And to the extent that you cannot solve every question, I 
think you are absolutely correct--and I agree with the example 
you gave about John F. Kennedy--that at the end of day, let's 
let the big questions be solved in the political realm. But 
what I think you cannot do is just leave it unsaid because it 
is a thorny issue there, and it has to be thought through. And 
there is a connection with this issue that points to larger 
questions of immigration reform. And I agree with you there, 
too. That should be part of a larger set of things that we do.
    Senator Durbin. I would invite the other two witnesses, if 
there is time, to respond to my question. Professor Amar? 
Professor Yinger? You have to turn your microphone on.
    Mr. Yinger. First of all, I think Dr. Spalding and I have a 
fundamental disagreement. To me, it is an illusion to think 
that you can protect this country by the way you define these 
eligibility rules. Again, we have 12.8 million naturalized 
citizens, and most of them will never want to run for 
President. If they were allowed to run for President and did, 
most of them would never get anywhere. And the idea that we can 
protect ourselves by keeping this barrier there or by 
manipulating it in some way I think is an illusion.
    Mr. Spalding. That is not my position.
    Mr. Yinger. It is just as likely that somebody who was a 
natural born citizen could cause us trouble, and we have to 
have a system that is good enough to protect this country from 
candidates who will not serve us well, regardless of where they 
come from. So to me, the key principle here is that we should 
have--once somebody becomes a citizen, they should be treated 
like every other citizen. And it just doesn't make any sense to 
me to make a distinction.
    Senator Durbin. What about dual citizenship?
    Mr. Yinger. Well, I think if somebody is a dual citizen, 
they would have a very tough time running for President. I do 
not see any reason to make that--
    Senator Durbin. You would trust the campaign, let the 
voters decide?
    Mr. Yinger. Absolutely, I would.
    Senator Durbin. Professor--
    Mr. Yinger. Also, just one other point to make. I think 
questions of immigration are obviously extremely important for 
this country. It is an enormous issue. But I think it is a 
totally separate issue. I think the issue here is we will have 
a debate about what rules are required for somebody to 
immigrate and to become a citizen, and that is a very important 
debate. But once we allow somebody to become a citizen, then we 
should treat them exactly equally with other citizens.
    Senator Durbin. Could Professor Amar response?
    Senator Craig. Please.
    Mr. Amar. On the dual citizenship point, of course, that 
could be true even if someone was born in the United States 
who, because of his or her parents, is eligible for dual 
citizenship, just as someone born in the United States could 
move at a very early age, be educated abroad, not quite 
socialized into the American way of life, but under the 
existing rules be eligible so long as he or she then had 14 
years continuous residence thereafter. So, one, the idea of 14 
is it really achieves a certain kind of fundamental equality 
between naturalized and native born, and the dual citizenship, 
you see, can arise whether one is naturalized or native born.
    Here is a great test, I think, because I share your general 
anxiety about just amending the Constitution willy-nilly. The 
more I study it and teach it, the more I respect it, even as I 
acknowledge and see its flaws.
    There is a grand constitutional tradition that we are part 
of today, and it is best seen by seeing what the rules were 
before. The Constitution is a tremendous liberalization of what 
the immigration rules and the naturalization rules were before. 
Then we added a Bill of Rights. We freed the slaves and then 
made people equal citizens by birth, and then enfranchised 
black men and women and got rid of poll taxes and extended the 
franchise. So you would be, I think, with this amendment part 
of a grand--to use Madison's phrase--``liberalizing 
tradition,'' moving us toward greater freedom and equality in a 
way that some of these other proposals you see I think are 
actually counter to that extraordinary tradition.
    Here is one other feature of the rules of eligibility. So 
35 wasn't illiberal. It was actually about a quality and anti-
dynasty. And look at what is not there. There is no religious 
qualification, since you mentioned the cap. At the time of the 
Constitution, 12 States have religious qualifications for 
office-holding. Twelve of the State constitutions have 
religious qualifications.
    Senator Durbin. It is an express prohibition against a 
religious rest.
    Mr. Amar. And no State constitution has that. That is a new 
idea, an amazing idea that is going to grow with the 
Establishment Clause and thereafter. Two of the guys up there 
on Mount Rushmore, two of the four, are members of no formal 
religious denomination, in a very religious country.
    So this idea of general openness--that was actually really 
their idea and the natural-born thing was a particular concern 
about European monarchy and aristocracy, but theirs was an 
egalitarian republic.
    Senator Durbin. Thank you.
    Senator Craig. Thank you very much.
    Now, let us turn to the Senator from California, Senator 
Feinstein.

STATEMENT OF DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF 
                           CALIFORNIA

    Senator Feinstein. Thank you very much, and I want to thank 
that came to testify. I appreciate it very much. I am one that 
approaches this issue very reluctantly, and I want to spell it 
out, like Dr. Spalding to some extent. My mother was born in 
Russia. My father's parents were born in Poland and Lithuania, 
respectively. So I have the seeds of immigrants in my blood and 
in my being.
    Essentially, what the Constitution means today is that my 
mother could not have run for President, but as improbable as 
it may seem, I can. So it essentially means that you skip a 
generation for an immigrant.
    A while ago, I read a treatise by James Schlesinger 
entitled ``The Disuniting of America,'' and from that I came to 
believe that there is this basic reserved right of birth as a 
major qualification for the presidency. It may not be a bad 
thing; it may be a strengthening thing. Dr. Spalding, I think 
in your paper you quote Alexander Hamilton, who makes that 
argument under the moniker of the safety of a republic, and he 
goes on to say that it depends essentially on the energy of a 
common national settlement, on a uniformity of principles and 
habits, on the exemption of the citizens from foreign bias and 
prejudice, and on the love of country, which will almost 
invariably be found to be closely connected with birth, 
education and family. To a great extent, I agree with that.
    I think this amendment, if it receives two-thirds, will 
have a very hard time being adopted by three-quarters of the 
legislatures of the States. The Constitution here is very 
dispositive. Despite the arguments about concern at the time of 
a takeover by a foreign power, or that a member of the clergy 
be designated to come here and be, quote, ``a king,'' end 
quote, they wrote the Constitution in a very specific way: ``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 
the age of 35 years and been 14 years a resident within the 
United States.''
    Senator Craig and I go back and forth about the 
interpretation of the Second Amendment to the Constitution as 
it affects guns, and it has produced a lot of debate as to what 
it means. Here, in the text of the Constitution, there is no 
doubt about what it means.
    Now, the question is does the fact that this is today a 
much more diverse country mean that we should remove that 
reserved right of birth to aspire to the presidency, a right of 
which very few people take hold. A minuscule number of people 
really want to aspire to the presidency. Does the right really 
serve some basic confirmation of American leadership as being 
related in the highest office to birth? I think those are 
worthy questions and I think we should not move precipitously.
    Interestingly enough, coming from the State of the person 
that is now governor who is generally at least accorded the 
popularity of this, I have never had anybody approach me and 
say, oh, you must do this, you know, it is so important.
    So I have read your papers and I have read your examples 
and I appreciate it. I am just reluctant. I suppose I am 
reluctant because I am not sure it is damaging to go through 
that first generation of missing that right of aspiration to 
the highest office of the land, to which so few really aspire, 
and that in terms of the common good of the general electorate, 
that right doesn't create a burden which is a healthy burden 
because it connotes with it a deeper responsibility.
    The diaspora of immigrants is a very broad one now, as you 
know. In my State, we have a lot of immigrants and many do not 
aspire to learn English; many do not aspire to want to be 
anything other than what they are, which is fine. They can do 
that. But in the event of the presidency, that reserved right 
in the Constitution of birth I don't think we can easily 
dispense with because it is so dispositively written in the 
Constitution.
    So I would like you to come back at me with arguments, and 
let's begin with Dr. Amar.
    Mr. Amar. Thank you very much, Senator. I grew up in Walnut 
Creek and remember well from the very beginning admiring your 
courage and leadership on so many issues.
    Senator Feinstein. Thank you.
    Mr. Amar. I think that Professor Yinger put his finger on a 
very interesting word in the Constitution that isn't much 
emphasized in the amendments. It is in the 14th Amendment, it 
is the first sentence, and it is that all persons born or 
naturalized in the United States are citizens.
    So there is this deep idea--we tend to focus on later words 
in the 14th Amendment about equal protection, but even before 
we get to those later words, there is a very powerful idea of 
birthright equality in the document. And for me, that idea of 
everyone born is born equally helps explain why the 14th 
Amendment isn't just about race. It is about people, male and 
female, being born equal, and rich and poor being born equal, 
and Jew, Gentile and Catholic and everything else being born 
equal.
    So I think there is a certain kind of unenlightenment 
aspect to assigning people a fixed status by dint of their 
birth; you can't do it just by the conditions of your birth. 
And the 14th Amendment which Professor Yinger invoked-I think 
that word ``born'' is under-attended to. I want to emphasize it 
because I explain to my students it helps show why the 14th 
Amendment way before the 19th was all about women's equality.
    Way before the Supreme Court had begun to talk about equal 
protection applying to women, which wasn't until I graduated 
from high school that the Supreme Court started to talk that 
way, that word ``born'' actually suggests that it is more than 
just about race. It is about a much bigger idea.
    The only other thing I might mention is, as Congressman 
Frank, I think, mentioned in his remarks, we might not want to 
think about not just the aspirations and the interests and the 
inclinations of a few people who might run or even what kids 
think about on the playground and how they understand 
themselves, but the rights of the voters themselves to make 
ultimately the decision. Congressman Frank said why don't we 
trust the voters to weigh that birth situation along with many 
other factors in making a decision about who we trust most.
    Senator Feinstein. Thank you.
    Anybody else want to take a crack at it? Dr. Spalding.
    Mr. Spalding. Yes, thank you, Senator. I am actually from 
the Central Valley of California, so I am actually very 
interested in experience with these issues.
    Senator Feinstein. Two out of three. That is pretty good.
    Mr. Spalding. This question is an anomaly. Just read the 
Declaration of Independence: ``All men are created equal.'' 
This idea of a starting point of equality, I think, is 
extremely important, but I want to emphasize that if you decide 
to pursue this change, which is extremely difficult, I believe 
it is necessary to at least consider and replicate what is a 
legitimate concern that the Founders talked about, which is 
that it is not the physical notion of being born here, but it 
is the idea that you are attached from birth, you know no other 
allegiance, that has a natural effect.
    An immigrant comes here. This means, obviously, no 
disrespect, and there are cases where this is not the case, but 
the presidency, I think--I want to say this differently. It 
wasn't just about monarchy; it was about this attachment issue.
    Lastly, I think in the earlier panel this clause was 
referred to as invidious discrimination. That is not the case. 
They had a very reasonable and rational reason for thinking 
this through, and you have got an obligation to do that now. 
This is not an easy question, but again I think that the 
presidency--in this day and age, given the power and the 
authority especially in security affairs, you have got to think 
this through.
    When it comes down to it, when that decision has to be 
made, you have got to have that confidence in the person. The 
natural sense of elections can play a lot of this out. I am 
very confident in that, but if you take this notion of equality 
too far, then you have got to get rid of age requirements. What 
about some guy who is 35 who is really sharp? What about this, 
what about that?
    Your job as legislators is to make reasonable rules of a 
framework that allows republican government to flourish. That 
is what this is about. You are defining the standard, the bar, 
if you will, and you have got a responsibility to make sure 
that bar is set correctly.
    Senator Feinstein. Thank you.
    Mr. Yinger. I, too, am someone who is a fervent admirer of 
our Constitution and does not believe in amending it lightly. I 
would like to point out several things about this case.
    The first one is that the historical record on this 
particular clause is incredibly thin. There is not a word in 
the records of the Constitutional Convention about why they 
added the natural-born citizen clause. In fact, there is a lot 
of evidence, as I have in my longer testimony, that they were 
very nervous about that kind of restriction. And it is true 
that skilled historians, including other people on this panel, 
can explain that there are themes floating around that this is 
very consistent with and that it makes sense that this was 
linked to that.
    But the Founders did not have a clear argument that this 
provision does ``x'' for us. From my reading of the records of 
the Constitutional Convention, it seems much more likely that 
it was a last-minute compromise and a whole series of 
compromises that was designed to assuage some of the people who 
had the strongest fears about foreign influence. But there is 
certainly nothing in the historical record that makes a clear 
argument, here is what this provision does.
    The second point I would make is, again, I think it is not 
really the case that we can protect ourselves through 
provisions like this. There are all kinds of ways that 
Presidents might not serve the interests of this country, and 
most of the ways don't have anything to do with where they are 
born. We have to have a very strong system, which the Founders 
gave us and has been improved over time, a very strong system 
for trying to identify people who will act in the Nation's best 
interest.
    The idea that somehow we can take one subset of them and 
come up with a criteria for eliminating people who would be 
disloyal, I think, is really an illusion. Again, there are 12.8 
million naturalized citizens, and the idea that some rule or 
other to identify which ones of those might be loyal and which 
not is, I think, just not going to work.
    To me, I think a much clearer way to think about it is to 
say we have been struggling to get a principle of equal rights 
for our citizens. Here is an example where, for complicated and 
hard-to-pin-down historical reasons we have an exception. We 
can't find any reason to support the exception today. It 
doesn't serve any purpose, it doesn't give us any protection. 
It may make us feel good, but it doesn't really give us any 
substantive protection, and let's just get rid of it. It is a 
very small change in the Constitution. It makes the 
Constitution consistent.
    The 14th Amendment doesn't just say ``born''; it says 
``burn and naturalized in the United States.'' It says very 
clearly we should not treat people who are naturalized any 
differently. It is right in the Constitution. It contradicts 
this provision, and yet we allow the Federal Government to 
maintain this one discrimination against naturalized citizens 
when we have rejected it for the States and we reject it in 
every other case. It is much more consistent to just get rid of 
it.
    Senator Feinstein. Thank you, all of you. Thank you very 
much.
    Senator Craig. Thank you.
    I have one last question to ask of you, and I think it is 
appropriate to say for those of us who have attempted to be 
students of the Constitution and the period of time in which it 
was created, it has grown to be viewed as a very principled 
document with contradictions. But at the time, it was also a 
very political document; it had to be to be ratified. 
Oftentimes, we forget the politics that spiraled around it 
during its time of creation and ratification.
    My good friend from Oklahoma, Don Nickles, has suggested an 
alternative approach to this issue. As you know, Senator 
Nickles has offered legislation that would statutorily define 
``native-born citizen'' to include anyone who receives 
citizenship or birth by virtue of their parents' citizenship or 
was adopted by the age of 18 by American parents who are 
otherwise able to transmit citizenship.
    So my question to all of you would be what is your view of 
this approach? Do you believe it is constitutionally sound? Is 
there any reason not to pursue both approaches, both 
statutorily to resolve or to define, and then constitutionally 
to take the ultimate question away that is so clearly put 
within the Constitution?
    Gentlemen?
    Mr. Amar. It is an extraordinarily generous provision. One 
side might call it a liberal provision,another side might call 
it a compassionate provision, but it is an idea with a very big 
heart. There are some real questions about whether it might 
ever get litigated or it might be non-justiciable, and if it 
were litigated, the argument would be you are reading out of 
the Constitution the word ``born.'' You are supposed to be born 
a citizen and some people aren't on the day of their birth 
citizens, and this creates sort of a retroactive citizenship.
    The counter would be that, yes, it is a kind of a legal 
fiction to treat adopted kids as legally identical to natural-
born, to biological offspring, but we do it in other parts of 
the law. We try to treat them equally. And it is a legal 
fiction again that is motivated by a spirit of generosity, and 
courts should accord some deference to Congress when it is 
defining ambiguous provisions.
    If I were trying to defend it in court, one could even make 
a formalistic argument that, well, perhaps actually the statute 
confers on everyone in the world an imperfect or inchoate 
American citizenship at the time of their birth that is only 
perfected if and when they happen to be adopted.
    So I can imagine clever lawyerly arguments, and I might 
feel comfortable making some of those because I think it is 
such a generous provision. But who knows what some future five 
out of nine Justices would do with it? You could have both 
approaches, though, going together, and one idea might be that 
the statute helps create a public face, a reason for generosity 
that people see and that might actually also help them see how 
the statute doesn't fully fix the problem. It is a partial fix 
only for certain adopted kids, so maybe we need the 
constitutional amendment to fully fix it.
    But the two might actually synergistically go together to 
help because the Constitution is so difficult to amend, give it 
a public and innocent, rather than, oh, this is to help some 
existing politician right now who wants to be President or 
something.
    Senator Craig. Comments, Dr. Spalding?
    Mr. Spalding. I agree with everything Professor Amar said. 
Two things I would add to that. One is I would go back and look 
at the Naturalization Act of 1790 that included the Framers. 
They passed legislation there that said children of citizens of 
the United States beyond the sea. They seemed to think that 
this was within their powers in Congress and this was needed to 
be addressed. So there clearly is something there, and I don't 
think it has been fully fleshed out yet and I think that that 
is something that ought to be done.
    Secondly, I think there is this notion coming out of the 
Child Citizenship Act of 2000 about adoptees. The law already 
does that. I think if you want to address these problems, one 
thing you do is to see whether it can be done legislatively, 
and given the difficulty of amending the Constitution, you 
should go down that avenue. These things aren't contradictory. 
You could do both. A legislative approach would help the 
constitutional approach.
    One thing I would add is I am a general proponent of 
Congress asserting its authority to the court; that is to say 
that the one way you will not have any authority in this matter 
is if you do nothing. The one way you might have authority is 
if you assert it, and there is a precedent, I think, to look at 
the court giving deference to Congress. Congress has plenary 
authority over naturalization and there is something called 
Chevron deference by which the court gives deference to the 
body that clearly has authority, and I think it could be 
applied in this case.
    Senator Craig. Thank you.
    Mr. Yinger. I would like to second the remarks of the other 
people on the panel. I would just like to add, when I started 
this I was motivated in part because of my personal interest 
and I thought that trying to fix the situation--
    Senator Craig. There is nothing wrong with that passion.
    Mr. Yinger. Well, that is an important part of many public 
policy debates, I know.
    I was at first concerned with adopted orphans, 
particularly, but I have come to believe that the issue is a 
broader one, and so I think that this is an issue where many 
approaches should be tried. Because of the difficulty with a 
constitutional amendment, I think the legislative approach is a 
very good one to try. But I also believe that it is only a 
partial fix to the broader problem of equal rights.
    Senator Craig. Well, gentlemen, we thank you very much for 
your participation and your contribution to what is a 
fascinating debate and a very poignant issue that I think 
future Congresses are going to ultimately want to address for 
many of the reasons you have spoken to.
    I would like to submit for the record an article referenced 
in Senator Hatch's opening statement, as well as some 
additional articles on this topic. We will keep the record open 
for a week for any written questions or additional information.
    With that, the Committee will stand adjourned.
    [Whereupon, at 11:58 a.m., the Committee was adjourned.]
    [Submissions for the record follow.]
    [Additional material is being retained in the Committee 
files.]

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