More on eligibility to be President

gerald neuman gln1 at COLUMBIA.EDU
Wed Aug 9 11:35:34 PDT 2000

I'm not sure why Sandy is confident that it follows from the Insular Cases
that the phrase "the United States" in Art. II, sec. 1, cl. 5 would
necessarily be interpreted as excluding the unincorporated territories.
Is there precedent or dictum specifically addressing this -- if so, I've
forgotten.  Couldn't it be concluded that there is nothing "anomalous"
about including the unincorporated territories in this phrase?
In the other direction, would Sandy also assume that the phrase "nine
Years a Citizen of the United States" in the qualifications for Senators,
and "seven Years a citizen of the United States" in the qualifications for
the House, excludes citizens born in unincorporated territories (do we
have precedents on that?); and indeed would a citizen born in an
unincorporated territory not be a "natural born Citizen", despite the absence of the geographical qualifier?  [To state
the obvious, I recognize that Sandy is not in favor of any such
        -- Gerry Neuman

On Tue, 8 Aug 2000, Sanford Levinson wrote:

> Article II, Section 1, clause 5 states that "No Person . . . shall be
> eligible to theh Office of President . . . who shall not have attained to
> the Age of thirty five Years, and been fourteen Years a Resident of the
> United States."  Assume that X is born in Puerto Rico and lives there until
> she is thirty, at which times she moves to the mainland and becomes a huge
> success in, say, New York.  Indeed, by the time she is 42, she is thought
> to be the ideal candidate to become President.  Is she eligible?  I.e., has
> she been "fourteen Years a Resident of the United States"?  I.e., are the
> Insular Cases still good law?  If Dick Cheney were Puerto Rican (and
> assuming he would have been chosen by Governor Bush as part of the "reach
> out to America" program), would we dismiss the constitutional question as
> quickly (and casually) as most people (and, most certainly, the general
> public) dismiss the 12th amendment habitation question?
> I'd be the first to argue, incidentally, that dismissal might be a good
> thing, just as I'd endorse forgetting about the stupid and pernicious
> second-class citizenship language in the earlier part of the clause, which
> limits the presidency to "natural born Citizens" and thus precludes many of
> our fellow Americans from aspiring to hold our highest office.  (I believe
> that among the people made ineligible for the presidency is Professor
> Tribe.)  But would constitutional "purists" (including Professor Tribe in
> his attack on "free-form interpretation" regarding the Treaty Clause) argue
> that we can't ignore the clear language of the Constitution even if it is
> indefensible?  (Possibility B, incidentally, is a Bolling v. Sharpe type of
> argument that the Natural Born Citizen Clause was overruled by the 14th
> Amendment read backwards into the Fifth Amendment.  It's not self-evident
> to me that it's any worse an argument for the Second-Class Citizenship
> Clause than for state-imposed segregation.)
> Sandy Levinson

More information about the Conlawprof mailing list