Wednesday, April 17, 2019

Ask the Professor Part 1: Did the Fifth Amendment Impliedly Repeal the Natural-Born-Citizen Requirement for the Presidency?

by Michael C. Dorf

Today I'm inaugurating a new series of occasional blog posts in which I answer questions from readers. As those of you who visit the blog directly may know, I often respond to interesting questions or criticisms that readers pose in the comments, but I have found lately that between the comments section, social media, and email, I've been getting a fair number of interesting questions that call for a response on the blog. Rather than try to force my answers into the news cycle, I will from time to time simply reproduce a reader's question and then offer some thoughts in response. Unless readers publicly identify themselves (e.g., by using a real name in the comments) or expressly granting me permission, I shall post the questions as coming from anonymous sources. I shall sometimes take the liberty of modestly rephrasing questions.

Today I address a question posed by a reader who wants to know what I think of an argument set out in a 2006 law review article by lawyer Paul Clark to the effect that "the Fifth Amendment implicitly repealed the natural-born citizen requirement for the U.S. Presidency." Here is how the reader summarizes the article and addresses a potential counter-argument:
[Clark's] argument is that SCOTUS has ruled that the Fifth Amendment contains an implicit equal protection clause whose scope is identical to the 14th Amendment's explicit equal protection clause and that since any hypothetical state constitutional provision that limited its governorship to natural-born US citizens would be struck down by the courts as being contrary to the 14th A, SCOTUS should likewise nullify the natural-born citizen requirement for the US Presidency as being in violation of the 5th A. 
I know about the presumption against implied repeal, but why exactly should legal constitutionalists have to follow this presumption when this presumption is not in the text of the US Constitution? Just like the US Constitution does not mandate the use of a specific interpretive methodology, it also does not mandate the use of any canons of construction--thus leaving this issue to the people who actually interpret the Constitution to do with as they see fit.
The short version of my response is that I am not persuaded by Clark's argument on its own terms. Moreover, the fact that the US Constitution does not mandate the use of any canons is not especially informative.
Let's take those points in reverse order. Many canons of construction simply distill common sense. Take the canon that as between two statutes that irreconcilably conflict, the later-in-time statute prevails. That canon is not found in the text of the US Constitution. But the principle seems unassailable. The whole point of new legislation is to change the legal status quo. A rule that preferred earlier-in-time to later-in-time acts, or one that left the choice to some other procedure (such as a coin toss or even a judge's assessment of whether the earlier or later act better served the public interest) would be fundamentally inconsistent with not just democracy but governance more broadly.

To be sure, the presumption against implied repeal is less essential to governance than the later-in-time rule. One could have a working legal system in which implied repeals were freely acknowledged. However, I think the rule-of-law arguments for a presumption against implied repeals generally make sense. That's not to deny that there are circumstances in which one could reasonably conclude that a later-in-time statute that does not expressly repeal an earlier-in-time statute impliedly does so. But that's not an exception to the presumption against implied repeal; it's simply an acknowledgment that the presumption, though strong, is rebuttable. In any event, my point is that the Constitution's failure to set forth (or to reject) the presumption against implied repeal has little bearing on whether it's appropriate to apply such a presumption.

Accordingly, let's turn to the reader's and Clark's basic contention, and let's reframe it this way: There are sufficient grounds to think that the Fifth Amendment's Due Process Clause invalidates the natural-born-citizenship requirement for the presidency to overcome the presumption against implied repeal. Is that contention persuasive?

Clark's article begins by arguing--persuasively in my view--that in just about every other imaginable setting, a government preference for natural-born over other citizens would be a denial of equal protection. If deployed by a state, such a preference would violate the Fourteenth Amendment's Equal Protection Clause; if deployed by the federal government, it would violate the equal protection component of the Fifth Amendment's Due Process under the "reverse-incorporation" doctrine we now associate with Bolling v. Sharpe.

Does the argument work? On the face of it, no. As the late John Hart Ely wrote in a 2001 Virginia Law Review article,
Article I’s provision that the President must be a native-born (as opposed to a naturalized) citizen would obviously violate the Equal Protection Clause were it not in the Constitution. Given that it is, however, it would take a lunatic to argue that it is unconstitutional.
There's a little sloppiness in the foregoing. Ely ought to have cited the equal protection component of the Fifth Amendment Due Process Clause rather than the (Fourteenth Amendment's) Equal Protection Clause. But his core point is right, no?

In the rest of the article, Ely distinguishes between two sorts of "interclausal immunity," i.e., two sorts of arguments that the acceptance of a practice in one clause of the Constitution precludes its implicit invalidation by another clause. Where a constitutional provision expressly adopts a rule--such as the allocation of two Senators to each state and the natural-born citizenship requirement for the presidency--Ely says that it's loony to infer its implied repeal by some other, vaguer, constitutional provision. However, where a constitutional provision supplies solid evidence about what its framers thought about some practice but does not actually contain a mandate, then there need not be interclausal immunity.

In that latter category, Ely discusses and ultimately rejects the following arguments: that the Eighth Amendment cannot ban the death penalty, because the contemporaneously adopted Fifth Amendment impliedly allows deprivations of "life" with due process; that Section 1 of the Fourteenth Amendment cannot bar official sex discrimination with respect to civil and political rights, because its Section 2 allows states to disenfranchise women without paying a representation penalty; that poll taxes must be permissible in state elections because the Twenty-Fourth Amendment expressly forbids them only with respect to federal elections; and that felon disenfranchisement cannot violate a right to vote rooted in Section 1 of the Fourteenth Amendment, because Section 2's representation penalty does not count persons who have been disenfranchised as a consequence of having committed a crime.

Here's how Ely distinguishes those sorts of arguments from the kind of argument later made by Clark and the reader who posed the question inspiring this post:
The Constitution says in no uncertain terms that each state is to have two Senators and the President is to be a native-born citizen, and no provision remotely intended or fairly read to repeal either of these provisions has since been enacted. The Constitution does not say that either states or the federal government are to execute people, discriminate against women, levy poll taxes, or take the vote away from felons. And while many, probably most, of the people who wrote and ratified the bulk of our Constitution approved of these practices—as they approved of many practices since invalidated—and sometimes evidenced that approval in the document itself, in no case did they provide them unusual sanctuary from constitutional evaluation.
I find that distinction persuasive. Another way to put the point would be to say that, in addition to overcoming the presumption against implied repeal, the argument advanced by Clark and my reader also needs to overcome the interpretive canon that says that the specific language takes priority over general language (lex specialis derogat legi generali).

Admittedly, the lex specialis canon is not absolute, but abandoning it with respect to the natural-born-citizenship requirement could not be readily distinguished from abandoning it with respect to other hard-wired rules of the Constitution that could fairly be said to violate the best understanding of equality and liberty--such as the two-Senators rule (per Ely's example) and the Electoral College. Although I have no great love for these rules, I do think that using Due Process to supersede them would undercut the ability of the Constitution's hard-wired provisions to play their coordination and settlement functions.


Joe said...

The death penalty reference answers a common argument that deems it patently obvious that the Constitution directly authorizes capital punishment as if a few procedural protections regarding taking of life (not all of them even limited to capital punishment) does so. I find that argument dubious.

Anyway, if you are taking requests, one thing that I wonder about is if The Chief Justice of the United States as a constitutional matter needs to be separately nominated or if it can be selected by lot, seniority, the justices themselves etc. And, for a certain fixed term. The justice would still serve for good behavior.

Michael C. Dorf said...

Okay, thanks for the question. I'm going to keep a running list and occasionally address them. (My initial thought is that no, the Chief does not need to be separately nominated, given the pretty open text of Art. III.)

Herveus said...

Hmmm... If the Fifth Amendment overturns the natural-born-citizen requirement, would not the same logic equally overturn the wildly disproportionate two-senators-to-a-state rule, thus requiring senators to represent roughly equal numbers of people?

Buddha Buck said...

I would say that the 5th Amendment cannot be viewed as overturning the two-senators-to-a-state rule implicitly, without also addressing the final clause to Article V, which prohibits amendments which deprives equal representation by States in the Senate.

Given the way that clause is written, there might be some wiggle-room (in that a state which ratifies an amendment that "deprives [it] of equal suffrage" could be said to have consented), but the clause would still need to be addressed in the argument.

Coyote said...

@Herveus: No, it can't. The 17th Amendment explicitly states that every US state will have two US Senators. Thus, unless one argues that the 17th Amendment itself is unconstitutional, one cannot make that argument in regards to the US Senate.

Of course, even if the 17th Amendment did not specify how many US Senators each US state should have, there would still be the issue that Buddha Buck raises. While AFAIK all US states ratified the 5th Amendment, none of them actually understood it as requiring a US Senate that is apportioned strictly based on population. Thus, the crucial question would be whether in ratifying the 5th Amendment, US states could be legitimately said to have "consented" to the idea that the US Senate should be apportioned based on population. Of course, if we're going to talk about consent in general, one could question whether consent was obtained in other important cases. For instance, did US states actually "consent" to the one-person, one-vote principle when they ratified the 14th Amendment? If not, was it actually fair to impose this principle upon them?

Coyote said...

Dear Professor Dorf,

Thank you very much for raising this issue. Anyway, I have some thoughts on this:

By Ely's logic, had the original US Constitution (as in, the 1787 text) explicitly stated that US states are allowed to segregate their schools by race and have anti-miscegenation laws (and to have whatever punishment they wanted to have for individuals who violated these laws, including the death penalty), Brown v. Board of Education, McLaughlin v. Florida, and Loving v. Virginia would have all been wrongly decided. After all, the language of the 14th Amendment would be more general than the language of this hypothetical provision of the original US Constitution. (Also, there might have very well not been a unanimous intent among the draftsmen of the 14th Amendment at the time of this amendment's passage and ratification that it would forbid segregated schools and anti-miscegenation laws; indeed, had the 14th Amendment contained explicit language outlawing one or both of these things nationwide, it's possible that the 14th Amendment would not have been passed and/or ratified.) Would you have actually agreed to rule the other way in all of these cases in such a scenario, Professor Dorf?

Also, as you hopefully know, the rule that more specific language should trump more general language is also not in the text of the US Constitution itself. Thus, judges are likewise not obligated to follow this rule if they don't want to. You could nevertheless say that this rule makes good sense, but the thing is that, in the hypothetical scenario in my paragraph above, the adoption of this rule would result in different outcomes in the Brown, McLaughlin, and Loving cases. Personally, I could not in good conscience declare segregated schools or anti-miscegenation laws (including those where the punishment for miscegenation was either years in jail or the death penalty) to be constitutional if there was a plausible interpretive rule that would have allowed me to rule differently in such cases. I view my hypothetical scenario in the paragraph above as being a good question to ask because the correctness of cases such as Brown, McLaughlin, and Loving has recently been used to determine whether a particular theory of constitutional interpretation should be acceptable or not. Personally, I certainly think that this principle should also be extended to hypothetical scenarios if one actually accepts this principle for real life.

(continued in later post)

Coyote said...

(continued from previous post)

I also find it a bit hypocritical for Ely to think that original intent is crucial for cases where general language implicitly repeals earlier, specific language but not in other cases. I think that people such as Raoul Berger were more consistent in regards to this by *always* believing that original intent is crucial. Indeed, it strikes me as being more consistent to either say that original intent is always crucial or that original intent is never crucial--even in cases where general language implicitly repeals earlier, specific language.

In regards to the US Senate and Electoral College, your (and Ely's) argument here doesn't work as well as you think that it does. After all, the 17th Amendment (which comes after the 5th Amendment) explicitly states that each US state will have two US Senators. Likewise, the Electoral College is explicitly mentioned in the 12th and 23rd Amendments, both of which likewise come after the 5th Amendment. Had any part of the US Constitution after the 5th Amendment explicitly stated that only natural-born US citizens could be US President, *then* I would agree with you that there is no case in favor of allowing naturalized US citizens to run for US President. However, the fact of the matter is that, as far as I know, *no* part of the US Constitution after the Fifth Amendment explicitly states that only natural-born US citizens could be US President. Thus, one could certainly argue that, in this case, the Fifth Amendment should be controlling. The one area where I do think that the Fifth Amendment could make a difference is in the unequal allocation of electoral votes. One could certainly argue that the Fifth Amendment should be read as requiring electoral votes to be allocated solely based on US states' population--as Erwin Chemerinsky has in fact argued after the 2016 election.

(continued in later post)

Coyote said...

(continued from previous post)

In addition, theoretically speaking, there is a way to distinguish the US Senate and Electoral College from the natural-born citizen requirement. Specifically, one could argue that, in a federation, it is permissible to have unequal apportionment--which I think is an argument that SCOTUS actually used in the 1960s redistricting cases to justify the unequal allocation of US Senate seats and electoral votes. In contrast, it would be less acceptable to have discrimination based on national origin at either the state level or the federal level. One doesn't have to accept this argument, but it is at least a valid argument that could be made. Alternatively, one could argue that the canon that more specific language trumps more general language should be abandoned in cases where discrimination is made based on immutable characteristics (such as race or national origin) but not in other cases. Thus, it would be possible to nullify the NBC requirement for the US Presidency as well as to still strike down segregated schools and anti-miscegenation laws in my hypothetical scenario above in this post. Such a stance could be viewed as principled since discrimination based on immutable characteristics is viewed as being much worse (with the resulting view that it would be more legitimate to nullify or strike down such discrimination even using vague constitutional language) in comparison to discrimination based on other characteristics--such as on place of residence. Such an approach could also be viewed as being relatively restrained since it would only allow explicit constitutional text to be nullified in cases where it discriminates based on immutable characteristics--which would prevent the rest of the US Constitution from being nullified based on vague constitutional text (and thus prevent judicial excesses).

(continued in later post)

Coyote said...

(continued from previous post)

Finally, maybe you're going to address this in a subsequent post, but you haven't addressed the idea of an unconstitutional constitutional amendment. Specifically, if (purely hypothetically) a US Constitutional Amendment will be passed and ratified (using the proper procedures for doing so, that is) that will permanently exclude all Chinese-Americans and/or Russian-Americans (even those who are natural-born US citizens) from the US Presidency, would it be permissible to use the vague language of the 5th Amendment to declare this constitutional amendment to be unconstitutional? After all, the language in this new amendment would be more specific than the general language of the 5th Amendment would be. Also, what about a US Constitutional Amendment that was properly passed and properly ratified that prohibited all naturalized US citizens from ever serving in the US Congress as well as serving as US Secretary of State? Should such a US constitutional amendment likewise be declared unconstitutional on the basis of the 5th Amendment even though this amendment's language would be more specific than the general language of the 5th Amendment would be?

Do you have any thoughts on this as well as on the rest of what I wrote here, Professor Dorf?

Shag from Brookline said...

Following this inauguration, may we expect the new series to less occasionally than originally conceived post answers to questions raised by readers? "Canons to the left of them, canons to the right of them, into the valley of the interpretation/construction of the Constitution rode the readers, originalists and non-originalists, textualists and non-textualists, ...."

Joe said...

I asked Prof. Segall elsewhere and he believes a rotation of the Chief Justice role would help things some.

The Chief Justice of the Michigan Supreme Court rotates every two years with the justices choosing. The current Chief Justice is the sister of an actress who was on West Wing & she (as do several state judges as far as I can tell -- wonder if the ethics rules are different for federal judges) has a Twitter account as well.

They like many courts (state/federal/foreign) also provide video of their oral arguments and other matters. The U.S. Supreme Court just refused same day audio of the census case.

Michael C. Dorf said...


(1) While I much appreciate the thoughtful engagement, I think you misunderstand the point of a Comments section.

(2) You say: " . . . the rule that more specific language should trump more general language is also not in the text of the US Constitution itself. Thus, judges are likewise not obligated to follow this rule if they don't want to." You appear to have ignored the first part of my blog post, in which I explain that common-sense canons like the last-in-time rule and lex specialis can command judicial adherence, even if not written into the text of the Constitution. You would do better to argue that the lex specialis canon creates only a rebuttable presumption.

(3) Treating the lex specialis canon as creating such a rebuttable presumption might lead to a different result in your hypothetical example in which the original Constitution expressly permits racial segregation and anti-miscegenation laws.

(4) You charge Ely (who is no longer here to defend himself, but should not be so lightly dismissed, given his well-deserved stature) with hypocrisy for failing to take an all-or-nothing approach to original intent. You seem to assume that the weight of original intent must be fixed across all cases. Where do you get that idea from? It's not in the text of the Constitution (as you might say), nor (more sensibly) is there any reason to think that the weight of a factor in pluralist constitutional interpretation (about which see Bobbitt) must be invariant across all contexts.

(5) Your efforts to distinguish the 2-Senators rule and the Electoral College turn on the fortuity that subsequent amendments refer to or endorse them. Surprisingly, given your penchant for testing propositions by hypotheticals, you appear to have missed the thrust of the argument. What if there had not been those subsequent amendments? Would the 5th Amendment abolish the EC in that case? In the absence of the equal-suffrage provision of Art. V, would it abolish the two senators rule? (These are rhetorical questions, not an invitation to another 1200 words of comments.)

(6) I shan't reply further to an extended response to the foregoing, though I encourage you to write up your view as a freestanding essay or article.

Greg said...

Isn't there also a school of thought that the Bill of Rights, more than the other amendments, should be treated as contemporaneous with the original constitution? This kind of thinking is a third argument against the view that the fifth amendment repealed the natural born citizen requirement, since with this thinking nothing in the bill of rights should be treated as repealing anything in the original constitution, only clarifying it or setting additional boundaries.

Joe said...
This comment has been removed by the author.
Coyote said...

Dear Professor Dorf,

How exactly was I using the comments section here inappropriately? I mean, I was merely offering my thoughts on your post here--which doesn't appear to be much different from the comments on this blog post by Professor David Upham on another site:

True, I wrote a lot, but so did at least one person in the comments for David Upham's blog post in my link above.

Basically, I want to know how exactly I used the comments section improperly here.

Also, I am quite willing to further respond to you--either on here or on some other site. Honestly, I would prefer to do it here so that all of the commenters here could see my comments (if I'll post a link to somewhere else, not everyone here might actually click on it). That said, though, I need to figure out how exactly I improperly used the comments section here. (I am willing to further respond to you somewhere else, but again, I would prefer to further response to you here.)

Coyote said...

@Greg: Technically speaking, if I recall correctly, the Bill of Rights was ratified a couple of years after the original US Constitution was ratified. Thus, it's almost contemporaneous, but not quite. In turn, this leaves the door open to creative interpretations of the 5th Amendment such as the 5th Amendment argument above. Had the Bill of Rights and the original US Constitution been ratified at exactly the same time as one big package, *then* I would agree with you that the 5th Amendment argument above wouldn't work.

Of course, your logic here would also mean that if the original US Constitution would have explicitly sanctioned federal discrimination based on immutable characteristics such as race, national origin, and sex, and if the US Congress would have explicitly mandated school segregation in Washington DC, then the Bolling v. Sharpe case (as well as the subsequent cases that resulted from it) would have been wrongly decided. In addition, in such a scenario, the US Congress would be well within its authority to, for instance, pass a statute that would have created different naturalization rules for people of different races.

Also, as a side note, if one embraces the "contemporaneous" theory in regards to the Bill of Rights, one could also bring up this theory in regards to the 14th and 15th Amendments. Specifically, one could ask how exactly the 14th Amendment makes voting a fundamental right if it took separate amendments (the 15th, 19th, 24th, and 26th) to extend the suffrage to different groups of people? Indeed, the 15th Amendment is especially relevant here since it was passed and ratified just a couple of years after the 14th Amendment.

Shag from Brookline said...

The Late John Hart Ely was a neighbor of mine for a couple of years several decades ago. He invited my wife and me to a couple of functions at his home that included a fair number of ConLaw profs from Boston area law schools. I enjoyed very much discussions I had with these and other guests. My wife and I had occasion to invite John and his wife to our home to sample some fine French wines a corporate client had graced me with. In the course of the conversation I learned that John played the sax. I told him I had a C-Melody sax that another client had given me that I used to doodle on without any training. I brought the sax out at his suggestion and he honked for a while and then got down to business with several jazz standards, emitting great solo sounds, great chops. He entertained us for about an hour as there was plenty of wine. Originalism was no biggie back then. Jazz improv goes well with constitutional law coming back to the melody and the text respectively, eventually.

John and his family moved on, including their Saint Bernard who once jumped our wall and did what dogs do, but more of. I was saddened when I learned of John's demise. He was proud of his service (post-Brown) clerking on the Warren Court. Brown had come down as I was finishing up my final year of law school, a "Hallelujah" moment. I noted a comment here on Brown that might suggest that in these days of Trump challenges to Brown may be perking from Trump's base, and of course the Federalist Society.

I occasionally think about that happy day decades ago listening to John swinging the C-Melody sax. Shades of Johnny Hodges on the alto. Oh, and wine was fine.

Joe said...

Thanks for the memory Shag.

Ely Jr. was also a vegetarian, so fits in with this blog as well. [I do not know if he was a vegan, but did see a reference to him being a vegetarian.]