What Is the Constitution's Worst Provision?

By Post, Robert | Constitutional Commentary, Summer 1995 | Go to article overview

What Is the Constitution's Worst Provision?


Post, Robert, Constitutional Commentary


I confess that when Sandy Levinson asked me to contribute to this Symposium I had a momentary flash of panic, the same searing sense of stammering inadequacy that always seems to well up whenever my ten-year-old daughter Amelia asks such pointed questions as "What is your favorite movie?" or "What color do you hate the most?" For someone like myself who perenially and professionally shifts among subdued shades of gray, celebrating nuance and complexity, such invitations to extreme and personal self-assertion are not only disruptive, they are downright painful. They flex muscles that have long atrophied.

Swallowing my anxiety, however, and accepting the assignment, I first faced a conundrum. What, after all, should count as the Constitution? I have in the past been critical enough of First Amendment doctrine that I have seen as deeply mistaken. But should such doctrine be treated as the Constitution for purposes of this Symposium? Probably not, because the question we have been asked to answer seems in its premises to point toward a specific and contained document, the one generally printed at the beginning or end of constitutional law casebooks. In this sense the question appears to embody an implicit distinction between amendment and interpretation.

Perhaps because this distinction has relatively little meaning in the areas in which I work, I should be clear that I rarely in fact read the document of the Constitution. Although the document creates a profound structure of governance, it has always seemed to me to contain an extraordinarily sparse and haphazard collection of rules for the management of that structure. Because this Symposium is not the proper occasion to assess large and deep questions of constitutional design (such as whether the Constitution erred in failing to establish a parliamentary system), I felt compelled to turn to this odd (and largely unfamiliar) collection of rules to find my candidate for the Constitution's worst mistake.

I was looking for a relatively clear rule that continues today in legal force and yet that somehow stands out as egregiously unacceptable. I thus ruled out the original constitutional provisions dealing with slavery, for these have long since been discredited and rendered inoperable. I also ruled out provisions like the direct tax clause (Art. I. [sections] 9, cl. 4), whose meaning has never been very clear to me.

Given these constraints, my final choice was Article II, [sections] 1, cl. 5:

No person except a natural born Citizen, or Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President ....

The Clause is currently in force. It is remarkably innocent of both legislative history and judicial gloss.(1) Although it contains a number of important ambiguities, notably on the question of whether foreign-born children of American citizens qualify as "natural born,"(2) the Clause is highly objectionable because it unmistakably and clearly prohibits naturalized citizens from becoming President.

Without doubt Joseph Story correctly identified the purpose of this prohibition as cutting "off all chances for ambitious foreigners, who might otherwise be intriguing for the office. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

What Is the Constitution's Worst Provision?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.