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. …