ACCORDING TO UYGUR, THE NATION ALREADY HAS. He cited a Supreme Court case from the 1960s,
Schneider v. Rusk, which ruled that a naturalized citizen was illegally denied a U.S. passport on the premise that she lived in her former country for three years. The law enabling this, Justice William O. Douglas wrote, “proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make … It creates indeed a second-class citizenship.”
The case does briefly refer to the Article II restriction of the presidency to natural-born citizens, and many have made the case that the Court recognized that exception, which would forbid Uygur from the ballot. He doesn’t agree. “They did not address the issue. Some people say, ‘Because they didn’t address it they must like it.’ No, the entire argument is that you cannot discriminate.” In other words, keeping Uygur off the ballot, he claims, violates his constitutional rights.
A separate point Uygur made is that Title VI of the Civil Rights Act of 1964 bars discrimination, including on the basis of national origin, for anything requiring government funding (and federal elections would seem to count). “You might have to rule Title VI unconstitutional if you can discriminate against naturalized citizens,” Uygur says. “I think [the courts] would be loath to say that.”
Not everyone agrees with these interpretations. I asked Erwin Chemerinsky, dean of the UC Berkeley School of Law, what he made of Uygur’s arguments. “The natural born citizen provision is deeply offensive,” Chemerinsky writes in an email. “But section 1 of the 14th Amendment addresses something different: who is a citizen of the United States. I would like to see it as modifying the natural born citizen clause, but I am skeptical that a court will accept that.”
That’s the issue in the case: not an interpretation of Article II, which is clear, but whether the 14th Amendment overrides Article II, which is less clear.
The natural-born citizen issue only comes up in rare contexts. We primarily heard about it in recent years when conservatives, including Donald Trump, tried to claim Barack Obama was ineligible to serve because he was born in Kenya.
Few delve an inch deeper to try to come up with why this ban should be imposed. If the courts decide that naturalized citizens actually cannot be discriminated against, and that the 14th Amendment does modify Article II, it would not only be a victory for roughly 7 percent of the U.S. population. It would make very clear that the Constitution is not an unchangeable document, and that it can indeed by updated to fit our modern times.
We use kid gloves with the Constitution to a frightening degree, allowing many of its clauses that force unequal representation, the chance for a president to be elected without a majority of the votes, and other inequities to fester. “You can make an argument on behalf of the Constitution and say, ‘Look, they were looking to perfect the union,’” Uygur says. “But you can’t say that
and say that we shouldn’t fix it. Do you believe in perfecting the union or don’t you?”
