Thursday, January 14, 2016

Constitutional law professor reminds us that Congress can't amend the constitution!!

The Natural Born Citizen Clause as Originally Understood

Mary Brigid McManamon 

Widener University Delaware Law School
June 2, 2014

[Re: 1952 McCarran-Walter Act--lgstarr]

Page 345: “A bedrock principle of our constitutional system holds that Congress cannot make such an alteration…”

Page 346: “Congress cannot amend the Constitution by statute.”


The relationship between Congress and the American Constitution is quite different. According to the Supreme Court in Marbury v. Madison, 121 to allow Congress the same latitude as Parliament

would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbid[d]en, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits.122

Therefore, Congress cannot alter who is eligible to run for President by statute. Such a dramatic change requires a constitutional amendment.123

Unsurprisingly, no evidence suggests Congress intended to expand the class of persons who could run for President. Moreover, early commentators agreed that the use of “natural born” in the first naturalization act did not amend Article II. For example, St. George Tucker¾a professor of law at the College of William and Mary124¾published his edition of Blackstone’s Commentaries in 1803, wherein he provided his own notes concerning the differences between English and American law.125 With respect to naturalization and citizenship, he cited all of the American naturalization statutes enacted to that date, including the 1790 Act.126 He then concluded that “[p]ersons [] naturalized according to these acts, are entitled to all the rights of natural-born citizens, except . . . they are forever incapable of being chosen to the office of president of the United States.”127 In any event, Congress swiftly repealed the 1790 statute in 1795.128


IV. CONCLUSION The introduction to this Article posed a question: “in the eyes of early Americans, would someone born in a foreign country of American parents be a ‘natural born citizen’ and therefore eligible to be President of the United States?” The pertinent historical materials lead to only one conclusion: aside from children born to U.S. ambassadors or soldiers in hostile armies, the answer is “no.”

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