US Constitution, Article II, Section 1

Cenk’s best argument



Cenk Uygur has been a friend for many years. I opened my first book about democracy reform, Republic, Lost (2011), with a quote from him:

In October, Cenk announced he was a candidate for President. Unlike others (or at least one) have been, Cenk’s campaign is not focused exclusively on that “one issue.” Instead, it is focused more fundamentally on the threat to our democracy if (or, in his view, when) Joe Biden loses to Donald Trump.

The most apparent barrier to Cenk becoming President is the Constitution’s requirement that the President be a “natural born Citizen.” Though there have been many candidates who have tested the limits of that term (John McCain, Ted Cruz), Cenk’s is a clear case of what that term does not include. Born in Turkey, Cenk, though a citizen, is certainly not a “natural born Citizen.”

Yet Cenk has argued for many years that the Constitution, as amended, erases the “natural born Citizen” qualification, not expressly, but by implication. Many disagree with that reading of the Constitution. And indeed, I have told Cenk that I believe that the Supreme Court would not read the “natural born Citizen” qualification out of the Constitution. But having read the arguments of many about why Cenk’s argument is “crazy,” I thought it might be valuable to sketch in brief (what I consider to be) the strongest argument on Cenk’s side. (This argument tracks the argument made almost 20 years ago by Paul Clark in his paper, Limiting the Presidency to Natural Born Citizens Violates Due Process. For reasons I explain, there is no substantive difference between speaking of Due Process and Equal Protection.)

Cenk’s argument begins with the 14th Amendment. The first sentence of that amendment established for the first time a constitutional rule for national citizenship:

Persons “born” or “naturalized” are citizens of the United States (and the state where they live). Cenk, having been naturalized, is, therefore, a constitutionalized “citizen.”

The argument then continues at the end of Section 1:

This is the Equal Protection Clause. It forbids a “state” from denying “equal protection” of the laws to any person.

Not much supporting Cenk’s argument, however, flows automatically from these two bits alone. Yes, he’s a citizen. But in 1868, plenty of “citizens” were not entitled to be President. E.g., William Sprague (R-RI) was a member of the Congress that proposed the 14th Amendment. But though a natural-born citizen, he could not be elected President because he was not yet 35 years old. And indeed, more generally, to be a citizen did not mean you were equally entitled to all political rights. Women couldn’t vote or sit on juries, the same with kids, etc. Citizenship and political equality, at the start at least, were very separate concepts.

More fundamentally, the Equal Protection Clause originally restricted just states (“No State shall”). It was not a constraint on the federal government. And a fortiori, not an implicit repeal of the Natural Born Citizen Clause of the federal constitution.

Thus, as an original matter, the argument that the 14th Amendment somehow implicitly repealed the Natural Born Citizen Clause seems crazy at best.

But to see why it’s not crazy, think about the status of women under the federal constitution. Though our federal Constitution does not do this, plenty of state laws and regulations limited offices to men. Shortly after the 14th Amendment was adopted, the Supreme Court made it clear, in Bradwell v. Illinois (1873), those laws were just fine because the amendment was not intended to secure sex equality. Myra Bradwell was the leading legal author in the State of Illinois. She was not, however, permitted to be a lawyer under the rules of the Illinois Bar. Bradwell challenged those rules under the newly enacted 14th Amendment. The Supreme Court — in an opinion the length of an op-ed—rejected her challenge. Then, to add insult to injury, Justice Bradley concurred with the decision, including this choice bit of “reasoning”:

Bradwell no doubt was a citizen; she was, nonetheless, not entitled to every public office.

Obviously, today, no state law could ban a woman from any public office. Reed v. Reed (1971) is the clearest Supreme Court case affirming the idea. The issue in that case was whether a state statute could make a man the presumptive administrator of the estate of someone who died without a will. It could not, the Court held. And though we have no Supreme Court cases between Bradwell and Reed that say when this happened, obviously, sometime between those two points, what was permitted in 1873 was no longer permitted in any state.

You might think that line was the 19th Amendment, which gave women the right to vote in 1920. But as Elizabeth Katz writes, it’s clear that after the 19th Amendment, women were still excluded from the right to hold office. Not everywhere, not universally, but that’s not the point: The question is when the Constitution requires as it requires today — that women have an equal right to serve. The answer to that question is not 1868 (when the 14th Amendment came into effect), not 1920 (when the 19th Amendment was ratified), but certainly by 1971 (Reed v. Reed) and possibly sometime before.

Ok, so how does this have anything to do with Cenk and the Natural Born Citizen Clause?

The shift in the entitlement of women to be candidates happened because of the evolving understanding of Equal Protection. Over time, sex-based categories became suspect; once suspect, the government needed a(n increasingly) strong justification to support its discrimination. At some point, no justification for excluding women could survive. So, at some point, women would have had a constitutional right to be a candidate.

The same analysis would be invoked by Cenk. At the time of the 14th Amendment, Equal Protection would not have meant that he, or someone like him, could be a candidate for President. But over time, nationality-based categories became increasingly suspect. We don’t have similarly clear judicial markers, but it’s not unreasonable to say today that a law that said “Citizens from Asia cannot be a candidate for school board,” or “Citizens born in Turkey can’t be a candidate for state legislature” would face an insurmountable challenge under the Equal Protection Clause.

For this principle to work for Cenk, he must get the court over three hurdles.

First, the restriction in the Constitution is not a restriction by a state. But since Bolling v. Sharp (1954), the companion case to Brown v. Board of Education (1954), the federal government has been made subject to the restrictions of the Equal Protection Clause through the Due Process Clause of the 5th Amendment. (That’s why Clark says that it’s the Due Process Clause, which constrains the federal government, that renders the Natural Born Citizen Clause unconstitutional.)

Second, he would have to convince the Court that a qualification based on where someone was born is the same sort of “discrimination” as “national origin” discrimination. That’s not an implausible link, but it is not compelled either. The Natural Born Citizen Clause does not express disdain for any particular nation or people; it simply narrows the scope of candidates to those deemed sufficiently “American.”

Third, even if he were able to convince the Court that the Clause effected a kind of national origin discrimination, he would then have to convince the Court to effectively overrule a bit of constitutional text. We don’t have unambiguous examples of this in our tradition. We have clear examples to the contrary (for example, how do 2 Senators per state survive Equal Protection? The Court has expressly permitted it, equality notwithstanding). It’s not inconceivable, but it is not obviously possible.

If he could get the court over each of these hurdles, then it’s possible to imagine a court affirming his right to be a candidate for President. Possible.

Would such a ruling mean the Constitution couldn’t create any restriction on who could be President? No. First, there is an age restriction that would not fail because of this method of reasoning. Age does not trigger the same suspect class analysis. It could more easily survive, even under the modern Equal Protection doctrine. And second, it could be perfectly reasonable to have a rule that was sensibly tied to assuring national loyalty. The Natural Born Citizen Clause is not reasonably tied to loyalty — being born in a country doesn’t mean you’re loyal to it; likewise, being born in the United States doesn’t mean you are loyal to it. But a rule that limited candidates to those who had been in the country for a sufficient period of time (like the 7-year rule for Representatives) could be more reasonably tied to the legitimate purpose of such a qualification clause.

Finally, all this presumes that it is the place of states to police who should be on the ballot. In South Carolina, where Cenk’s petition to be included on the ballot will be heard by a prominent federal judge Wednesday, the state has already taken the position that it will not police whether Donald Trump is “qualified” to be on the presidential ballot, charges of insurrection notwithstanding. It seems weird the state would block Cenk when it is refusing to even evaluate whether to exclude Trump. It’s also interesting to note that the first woman to run for President, Victoria Woodhull, in 1872, was herself not qualified (since not yet 35). Nonetheless, she was permitted to appear on the ballot across the nation, though she won no electoral votes.

Bottom line: I don’t predict Cenk would win his fight in the Supreme Court; this is not a time when the Court seems keen to articulate even greater protection against invidious discrimination (except maybe when it’s about ballot recounts in Florida, see Bush v. Gore (2000)). But the argument is not crazy, and it is certainly high time that it be heard in earnest.