Brigham Young University Law Review
This Article uses the issue of presidential qualification as a vehicle to examine the meaning of citizenship today, arguing that the Natural-Born Citizen Clause perpetuates a second-class citizenship that is inappropriate and inapposite in modern American society. Upon this premise, this Article proposes that a constitutional amendment may be necessary since the argument that the Fourteenth Amendment serves as an implicit repeal of the Natural-Born Citizen Clause has proved historically insufficient. Part II of this Article examines the origins of the constitutional requirement that the President be a "natural born Citizen" and discusses the unsuccessful attempts to amend this requirement. This Part seeks to place the proposals to amend the presidential eligibility clause against the backdrop of historical events and concludes that the failure to amend the clause demonstrates a fear and distrust of the foreign-born citizen, continuing from this nation's earliest history. Part III considers cultural notions of citizenship, citizenship as identity-formation, and the obligations of citizenship, including the obligation to participate in the political life of the nation. This Part ultimately argues that excluding naturalized citizens from participation in the presidency creates a second-class citizenship and perpetuates the notion that naturalized citizens are less loyal and less American than natural-born citizens. Part IV considers whether passage of the Fourteenth Amendment, some seventy-five years after the adoption of the Natural-Born Citizen Clause, has repealed by implication the natural-born citizenship requirement, concluding that there is such an irreconcilable conflict between the requirement and the Amendment as to satisfy the elements of implied repeal. Part V concludes that despite the compelling argument for implied repeal, historical precedent demonstrates that a constitutional amendment to repeal the Natural-Born Citizen Clause is still merited.
J. Reuben Clark Law School
Malinda L. Seymore,
The Presidency and the Meaning of Citizenship,
BYU L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/37