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In Tolstoy’s “War and Peace,” the impulsive Anatole Kuragin, surrounded by drinking companions, is about to leave his apartment to elope with Natasha Rostov. After toasts and speeches, Anatole announces it is time to go. As the assemblage heads to the door, Anatole cries: “No, stop. Shut the door. We must sit down for a moment first. That’s the way.” They close the door and all sit down, following the Russian custom of pausing to reflect before setting out on a journey. “Now quick, march, lads!” Anatole says, rising. And off they go. Anyone contemplating amending the Constitution should emulate Kuragin. Since ratification of the Bill of Rights in 1791, the Constitution has been amended only 17 times. Momentum, fueled by the election of Austrian native Arnold Schwarzenegger to the governorship of California, is building to amend the Constitution to allow all citizens to run for president, not just those “natural born.” Congress has held hearings, Web sites have surfaced, and, just last week, a front-page story in USA Today appeared. Most of the attention has been favorable. Is this an amendment whose time has come? Let’s close the door and sit down to pause and reflect. * * * “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.” Some have called Article II, Section 1, Clause 5 “the Constitution’s worst provision.” The early leaders had a higher estimate. They thought it so wise that 15 years later, in the 12th Amendment, they applied the same restriction to the office of vice president. The provision appears to have been the brainchild of Alexander Hamilton. In June 1787, he submitted a sketch of his ideas on the new structure, which included the thought that the president should be “now a Citizen of one of the States, or hereafter be born a Citizen of the United States.” John Jay, destined to serve as the nation’s first chief justice, wrote to George Washington a month later: “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.” These men were not nativist bigots. Hamilton himself was foreign-born. But they had a healthy fear of foreign intrigues. They were familiar with the experience of Poland, where the Russians had engineered the crowning of Stanislaus Augustus Poniatowski, one of Czarina Catherine’s numerous lovers. During his brief reign, the Russian ambassador was the de facto ruler of Poland. Partition of Poland among Russia, Austria and Prussia followed. The framers worried that foreign adventurers, like Revolutionary War hero Baron von Steuben, might conspire with domestic troublemakers like Capt. Daniel Shays, to elevate some foreign prince to power. Any wisdom the provision may have evinced in the late 18th century has dimmed over the years. There have been many attempts since the 1870s to repeal it, none of which have gotten out of Congress. But the earlier efforts lacked a figure with the national star power of Arnold Schwarzenegger around whom supporters might rally. Thanks to Arnold, repeal of the “natural born” provision is now up for serious discussion. * * * Opponents of the amendment echo the same suspicions of foreigners harbored by the framers. “I don’t think it is unfair to say the president of the United States should be a native-born citizen,” Sen. Dianne Feinstein stated at a Senate hearing. “Your allegiance is driven by your birth.” Hungarian-born representative Tom Lantos has also gone on record as “irrevocably opposed” to the amendment. It is interesting that these two Democrats, from the state with the largest percentage of immigrants, have taken a position so patently discriminatory against immigrants. No doubt politics plays a role. The amendment has been promoted by Republicans Orrin Hatch in the Senate, and Dana Rohrabacher in the House. If the amendment passes, the immediate beneficiary would be Schwarzenegger. In an effort at bipartisanship, the amendforarnold.org Web site now carries a banner, “Amend for Arnold & Jen.” The latter refers to Canada-born Michigan governor Jennifer Granholm, a Democrat. But so far, no one is speculating about a Granholm presidency. Politics aside, how do the arguments pro and con stack up? The main argument against the amendment — foreign-born citizens are somehow less trustworthy than native-born — is hard to take seriously. Sen. Feinstein’s belief that “allegiance is driven by your birth” may prove more than she intends. Foreign-born Americans, particularly those from totalitarian countries, tend to be the most fiercely loyal of all citizens. Think of Miami’s Cuban or Orange County’s Vietnamese communities. So the belief might justify a preference for, rather than a prohibition against, foreign-born American eligibility. While no one keeps statistics on such matters, a good case could be made that disloyalty is more common among native-born Americans than foreign-born. John Walker Lindh, the so-called “American Taliban,” was born in the United States, as were Cold War spies John Walker and Jerry Whitworth. Among the more famous and controversial historical figures: Ethel and Julius Rosenberg were born in New York; Iva Ikoku Toguri, better known as “Tokyo Rose,” was born in Los Angeles — on the Fourth of July yet! The nation’s first bona fide traitor, Benedict Arnold, was born in Norwich, Conn. Opponents of the amendment have raised the possibility of a “Manchurian Candidate” scenario, with a foreign-controlled agent installed in the White House. But in Richard Condon’s novel, both the brain-washed assassin and the manipulated candidate were native-born Americans. Common sense dictates that any foreign service plotting to implant a mole would select a native-born American rather than an immigrant. The argument that native-born Americans are more loyal than foreign-born also highlights an inconsistency in the opponents’ position. The “native-born” requirement applies only to the president and vice president. If loyalty turns on native-born status, then the restriction should extend to the foreign service and the military. Yet many of our ambassadors are foreign-born, and three secretaries of state in recent memory have been immigrants: Madeleine Albright (Czechoslovakia), Henry Kissinger (Germany), and Christian Herter (France). In the military, the former chairman of the Joint Chiefs of Staff, John Shalikashvili, was born in Poland. Some 700 foreign-born Americans have won the Medal of Honor, and 60,000 now serve in the military, many in Iraq. We trust the foreign-born to guard the nation, negotiate its treaties, hold its secrets, and command its nuclear weapons. Would we really be in peril if a foreign-born president delivered a State of the Union message, or a foreign-born vice president presided over the Senate? Another possible argument for opposing the amendment is the absence of necessity. Most observers agree that the Constitution “should not be changed for light and transient causes” (to borrow a phrase from the Declaration of Independence). Is an amendment really necessary? Article I, Section 8, Clause 4 grants Congress the power to “establish a uniform Rule of Naturalization.” At least one scholar has speculated that this power enables Congress to declare that certain citizens born abroad are “natural born.” If Congress could simply declare foreign-born Americans to be “natural born” under its naturalization power, then perhaps the “worst provision” in the Constitution could be undone by a better one, without the need for an amendment. But it’s doubtful the naturalization power goes that far. It certainly grants Congress the right to declare people like Sen. John McCain, born in the Panama Canal Zone, “natural born.” It may also grant Congress the right to treat children born of American parents working or traveling abroad as though they were born in this country. But to stretch this power to cover children born abroad of foreign parents would be to allow one constitutional provision to destroy all meaning in another. Such a stretch would conflict with traditional notions of construction, which urge that each provision be treated as valid. Moreover, such an expansionary view of the “naturalization” provision would contradict the 14th Amendment, which refers to “persons born or naturalized in the United States.” If the two could be the same, there would be no need for the double reference. Finally, there is the argument for opposing the amendment based on familiarity with the country. While the foreign-born may be as loyal as the native-born, some (including some foreign-born opponents of the amendment testifying at congressional hearings) have said that only those who have lived here all their lives can truly appreciate the country’s customs and values enough to serve in its highest office. House Democratic leader Nancy Pelosi sympathizes with this view. Though supporting the thrust of the amendment, she takes issue with Sen. Hatch’s language. His proposal includes a 20-year citizenship requirement on foreign-born aspirants to the presidency. Pelosi believes that’s the wrong approach. She says the test should be length of residency, not length of citizenship. She would modify the amendment to limit eligibility to “somebody [who] is raised in our country or has lived here long enough to have an appreciation for the culture and the beautiful diversity of our country to serve as our president.” As Pelosi’s support for the amendment shows, one can favor a long residency requirement without favoring maintenance of the Constitution’s “natural born” provision. More fundamentally, one need not be born in America to understand and appreciate — and even create — American culture. A foreign-born American can appreciate the songs “God Bless America” and “White Christmas” — because a foreign-born American wrote them. (Irving Berlin was born in Tyumen, Russia.) A foreign-born American can laugh at the jokes in USO shows at military bases — because a foreign-born American originated USO tours. (Bob Hope was born in Eltham, England.) And foreign-born Americans can grasp our sense of justice since much of that justice has been explicated by foreign-born Americans from Felix Frankfurter (Vienna, Austria) to Alex Kozinski (Bucharest, Romania). * * * As the nation contemplates amending the Constitution, let’s shut the door, sit down for a moment, and reflect. The fact that the Constitution has been amended only 17 times since the Bill of Rights shows we can handle one amendment every 13 years. The 27th Amendment (no law varying compensation for Congress shall take effect until a House election intervenes) was ratified in 1992. That means we’re not due for another amendment until right about now. The proposal makes sense, and the process has not been precipitous. As Anatole Kuragin would say: “Now quick, march, lads!” Contributing writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs LLP, specializes in intellectual property law. He can be contacted at [email protected]

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