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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 Rostova. After toasts and speeches, Anatole announces that it is time to go. But as the assemblage heads to the door, he 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 an amendment to the Constitution should emulate Anatole’s deliberation. Since ratification of the Bill of Rights in 1791, the Constitution has been amended only 17 times. Now momentum is building, fueled by the election of Austrian native Arnold Schwarzenegger to the governorship of California, to change the Constitution to allow all citizens to run for president, not just those born in the United States. Congress has held hearings, Web sites have surfaced, and newspaper stories have been written. Most of the attention has been favorable. So is this an amendment whose time has come? Let’s close the door and sit down to pause and reflect. THE FRAMERS SAID NO Article II, Section 1, Clause 5 reads in part: “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 it the Constitution’s worst provision. The founding fathers had a higher estimate. Sixteen years after the Constitution was ratified, they applied the same restriction to the office of vice president under the 12th Amendment. The original provision appears to have been the brainchild of Alexander Hamilton. In June 1787, he offered a sketch of his ideas on the new federal 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 (in the West Indies). 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 Poniatowski’s brief reign, the Russian ambassador was the de facto ruler of Poland. Partition of Poland among Russia, Austria, and Prussia followed. In this country, the Framers worried that foreign adventurers, such as Revolutionary War hero Baron Friedrich von Steuben, might conspire with domestic troublemakers, such as Capt. Daniel Shays, to elevate some foreign prince to power. Any wisdom the provision may have evinced in the world of the late 18th century, however, 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 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 Rep. Tom Lantos has also gone on record as “irrevocably opposed” to the amendment. It is interesting that these two Democrats from California, the state with the largest percentage of immigrants, have taken a position so patently discriminatory against the foreign-born. No doubt politics plays a role. The amendment has recently been promoted by (among others) Republican Sen. Orrin Hatch of Utah, who held hearings this past October and proposed an amendment in 2003. If the amendment passes, the immediate beneficiary would be Schwarzenegger, a Republican. In an effort at bipartisanship, the www.amendforarnold.org site now carries a banner that reads “Amend for Arnold & Jen.” The latter refers to Canadian-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? MANCHURIAN CANDIDATES The main argument against the amendment � that foreign-born citizens are somehow less trustworthy than native-born citizens � 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. Just think of Miami’s Cuban community. So the belief might actually justify a preference for, rather than a prohibition against, foreign-born American eligibility for the Oval Office. Opponents of the amendment have raised the possibility of a Manchurian Candidate scenario, with an agent controlled by a foreign power winning 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 in the upper echelons of U.S. government would select a native-born American above any suspicion rather than an immigrant. Note also that the natural-born requirement applies only to the president and vice president. If loyalty truly turned on natural-born status, then the restriction should extend at least to those who serve in the foreign service and the military as well. Yet two secretaries of state in recent memory have been immigrants: Madeleine Albright (Czechoslovakia) and Henry Kissinger (Germany). The former chairman of the Joint Chiefs of Staff, Gen. 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, protect 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? CLOSE ENOUGH TO NATIVE 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 to allow the foreign-born to hold the presidency 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 qualify as “natural born.” If Congress could simply declare all foreign-born Americans to be natural-born under its naturalization power, then perhaps the “worst provision” could be undone by this better provision, without the need for an amendment. But it’s doubtful the naturalization power goes that far. It certainly grants Congress the right to declare as natural-born people such as Sen. John McCain, who was born in the Panama Canal Zone. 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. To stretch this power to cover children born abroad of foreign parents, however, 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. OUR AMERICAN SOUL Finally, there is the argument for opposing the amendment based on a citizen’s familiarity with this country. While the foreign-born may be as loyal as the native-born, some (including some foreign-born opponents of the amendment who testified before Congress) 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. In fact, Sen. Hatch’s proposal does not ignore this consideration: It would require foreign-born aspirants to the presidency to have lived 20 years as citizens first. House Minority Leader Nancy Pelosi (another Democrat from California) has expressed sympathy for that idea, but 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.” Clearly then, one can favor a long residency requirement without favoring maintenance of the 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 because a foreign-born American entertained the troops for almost 50 years. (Bob Hope was born in Eltham, England.) And foreign-born Americans can grasp our sense of justice because that justice has often been explicated by foreign-born Americans � from Justice Felix Frankfurter (Vienna, Austria) to Judge 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 17 times since the Bill of Rights shows that we can handle one amendment every dozen years. The 27th Amendment 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!” Lawrence J. Siskind of San Francisco’s Harvey Siskind Jacobs specializes in intellectual property law.

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