Constitutional Imperfections

                                                        by Paul R. Hollrah –

Article V of the U.S. Constitution provides the rules under which the Constitution can be amended, should that become necessary.  Although the Constitution has been successfully amended only twenty-seven times since March 4, 1789, most Americans would be surprised to learn that some 11,770 proposed amendments have been introduced in Congress between 1789 and January 3, 2019.

The first ten amendments are what we refer to as the Bill of Rights.  These amendments were written and adopted to satisfy the objections of the Anti-Federalist (States’ Rights) faction of the Constitutional Convention.  The Bill of Rights Amendments addressed Anti-Federalist concerns regarding personal freedoms and individual rights, restrictions on government power in judicial proceedings, and a catch-all declaration stating that all powers not specifically granted to the Congress are reserved to the states or to the people.

The remainder of the amendments, numbered eleven through twenty-seven, deal with such matters as the election of presidents and vice presidents; outlawing slavery; citizenship and voting rights for former slavers; taxation authority; the election of U.S. senators; the sale and consumption of alcoholic beverages; women’s suffrage; presidential term limits; Washington, DC, electoral rights; outlawing poll taxes; presidential disability; voting rights for 18-year-olds: and others.  However, three constitutional shortcomings now demand our immediate attention.

First, and most importantly, we must take immediate steps to amend the Constitution to eliminate the concept of “birthright citizenship.”  The 14th Amendment, ratified on July 9, 1868, was designed to provide citizenship for all those previously enslaved individuals who became Freedmen when President Lincoln signed the Emancipation Proclamation.  The amendment was never intended to confer citizenship on those who just happened to be born on American soil, with no effort on their part.  As written, the amendment proclaims, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside…”

However, since the 1898 decision in U.S. v. Wong Kim Ark, the courts have held that it is sufficient for infants to claim “birthright citizenship,” so long as they are born on American soil, no matter the country of residence or the citizenship status of the child’s parents.  Ignoring the fact that children born to alien parents on American soil have no formal connection to the United States, the courts have rendered the phrase “and subject to the jurisdiction thereof” meaningless.

The center for Immigration Studies estimated in 2012 (the most recent figures available) that there were then approximately 40,000 annual births in the United States to “birth tourist” parents.  However, since 2012, a cottage industry called “maternity hotels” has developed.  For example, it has been reported that the Trump Tower II hotel in Miami, Florida, has become a “maternity hotel” specializing in Russian “birth tourists.”  Russian parents can give birth to an infant with American citizenship by paying a fee as small as $20,000 or as much as $85,000.  Wikipedia tells us that the deluxe program includes food, lodging, Russian-speaking obstetricians, gold-tiled bathtubs, and chauffeur-driven limousines.

Although it appears as if a great many Americans remain unconvinced that “birth tourism” is a bad thing, the “birth tourist” industry is one that must be eliminated.  A 2015 Pew Research survey found that 53% of Republicans and only 23% of Democrats oppose the concept. What is needed is an amendment clarifying the 14th Amendment, requiring that alien parents must be full-time legal U.S. residents for a period of years before their newborn infants can expect to have “birthright citizenship.”

Next in order of importance is an amendment to Article II, Section 1 of the Constitution, specifying the manner in which presidential electors are allocated in the various states.  Although states must retain the power to determine how electors are chosen, the question of whether states should be allowed to utilize a winner-take-all system, as opposed to the more democratic system now used by the states of Maine and Nebraska, is debatable.  To allow the winner-take-all system to be used at the discretion of the state legislatures is to guarantee an unrepresentative system in which a small number of states with very large cities will be able to determine who will lead our country.

In the 2000 presidential election, a switch of just 271,951 votes would have given George W. Bush a narrow popular vote victory over Democrat Al Gore, along with a 271 to 266 vote victory in the Electoral College.  The 2000 Bush-Cheney victory in the Electoral College, while losing the national popular vote, caused liberals, Democrats, and some moderate Republicans to search for ways in which to bypass the Electoral College.  The result was the creation of an organization called the National Popular Vote Interstate Compact (NPVIC).

The NPVIC actively seeks support among the legislatures of the various states in support of a rule requiring that all of their state’s electoral votes be cast for the candidates for president and vice president who receive a majority of the national popular vote… regardless of the popular vote count in each of the Compact states.  What the NPVIC “reformers” have failed to consider is the outcome of the 2000 Electoral College vote if the NPVIC rule had been in place in all the blue states in the country, and if Bush-Cheney had been able to attract just one additional vote out of every 373 votes cast to win a narrow majority in the national popular vote.

In that event, the NPVIC proponents would have been quite chagrined to learn that, under the NPVIC rule, George W. Bush and Dick Cheney would have been the beneficiaries of a 538-0 unanimous vote in the Electoral College… not exactly what Compact supporters had in mind.

What is needed is an amendment to Article II, Section 1 of the Constitution, requiring the states to adopt an electoral vote allocation formula in which the winner of each state’s popular vote would receive his/her state’s two at-large electoral votes, while the remainder of each state’s electoral votes would be allocated to reflect the winner of the popular vote in each of the state’s congressional districts.   It is the most democratic reform available and it would require candidates to campaign in many more states than the so-called “swing” states of recent years.

The third, and final, constitutional shortcoming requiring our attention is the need for a clear definition of the term “natural born Citizen,” as used in Article II, Section 1, of the Constitution.

As the Framers met in Philadelphia in July 1887 to approve a final draft of the U.S. Constitution, delegate John Jay, the first Chief Justice of the United States, sent a letter to General George Washington, president of the Constitutional Convention.  In his letter, Jay expressed his concern over the prospect of allowing an individual with any form of foreign allegiance, whether real or perceived, to serve as president of the United States and commander-in-chief of the Army and the Navy.  He wrote: “Permit me to hint whether it would be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the commander-in-chief of the American army shall not be given to, nor devolve on, any but a natural born citizen (emphasis added).”

The Framers rightly understood that the most influential factor in a child’s upbringing is the parenting he/she receives as a child, and that the cultural, philosophical, political, and religious influence of a child’s parents fundamentally establishes the direction of his/her future conduct and intellectual development.  Accordingly, what the Framers feared most and what caused them to limit access to the presidency only to the “natural born” was the fear that a future president… during his formative years and during the years in which he was developing intellectually… would be exposed to an environment or an ideology which might cause him/her to reject the values and the principles embodied in the U.S. Constitution.

Accordingly, the Constitution contains the clause cited above, requiring that all candidates for president and vice president must be “natural born” citizens, individuals whose citizenship status is unencumbered by any modifying adjective such as “dual,” “naturalized,” or “birthright.”  They cannot be “dual” citizens, as is the case with Barack Obama, Kamala Harris, Ted Cruz, Bobby Jindal, Marco Rubio, or Nikki Haley.  And they cannot be “naturalized” citizens, as is the case with former California governor Arnold Schwarzenegger.

As a nation of some 320 million people, there is enough political talent available to us to forego the necessity of delving into our large population of non-natural born citizens for presidential and vice-presidential talent.

Accordingly, a clarifying amendment to Article II, Section 1, Clause 5 is needed to make it clear, as the Framers intended, that a “natural born” citizen is an individual who was born to parents, both of whom were U.S. citizens at the time of his/her birth, and who has at no time in his/her life been a dual citizen  of the United States and any other country.

Since the earliest days of the 20th century, aliens wishing to avoid U.S. immigration and naturalization statutes have utilized liberalized interpretations of the 14th Amendment to win U.S. citizenship for their newborn infants, making it possible for extended family members to gain unfair and unintended legal residency status.  That citizenship loophole must be eliminated.

We must also take a lesson from the two-term presidency of Barack Obama.  Obama’s father was a Muslim and a black African communist sympathizer; his mother was a left wing socialist flower-child; his stepfather was an Indonesian Muslim; his grandparents were far-left communist sympathizers; his teenage mentor, Frank Marshall Davis, was a well-known Communist Party writer and activist; the people who were instrumental in launching his political career in Chicago were Weather Underground terrorists who had killed U.S. law enforcement officers; and his religious mentor was the Rev. Jeremiah Wright, an America-hater of the first order.  These are but a few of the far-left radicals who had a major impact on Obama’s social, political, and economic values.

So, is it any wonder that he attempted to “fundamentally transform” the government and the culture of the greatest nation on Earth?

Finally, the Framers were concerned that at some future time a relatively small number of megalopolis urban cities would have populations sufficient to control the selection of our national leaders.  Their concern that the day would come when small and sparsely populated states would have little or no say in the selection of our presidents and vice presidents led them to create the U.S. Electoral College.  It has served our nation well and we must take steps to protect it. | October 2, 2019

Paul R. Hollrah is a retired government relations executive and a two-time member of the U.S. Electoral College.  He currently lives and writes among the hills and lakes of northeast Oklahoma’s Green Country.

You must be logged in to post a comment Login

Leave a Reply