Rupert Cornwell: A law born in the USA a very long time ago

Out of America: The 'birther' row shows how out of date the constitution has become

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The "birther" controversy, let us fervently hope, has now been laid to rest. Even the lunatic Republican fringe and Donald Trump surely have better things to do than challenge the irrefutable proof – which has, moreover, been in the public domain for half a century – that Barack Obama was born in Hawaii.

Alas, one cannot be sure. But before the issue is consigned to the "Craziest Conspiracy Theories in History" category, one question is worth asking: isn't it time to allow any long-standing American citizen to become president, no matter where and to whom he (one day, maybe, she) is born?

The trouble starts with article two, section one, of the US constitution, which states that "no person except a natural-born citizen" can be president. The term "natural-born" is not defined, but the courts have generally taken it to mean someone born on US soil, or born overseas to American parents. Even that, however, makes little sense any longer. For one thing, America prides itself on being a nation of immigrants, where everything is possible. Moreover, people who have consciously chosen the US as home are often even more committed to it than native citizens. To quote Jennifer Granholm, a recent two-term governor of Michigan (who some thought could have made a terrific presidential candidate, had she not been born in Canada): "You cannot choose where are born, but you can choose where you live and where you swear your allegiance." It's inconceivable that someone who wasn't totally involved with the country would seek so demanding a job.

At this point, I should clear up one misunderstanding. Contrary to widespread belief, a president doesn't have to have entered this world on the soil of the US. You can qualify as "natural-born" even if you were born abroad, indeed even if only one parent is an American citizen. That squashes any remaining argument about John McCain. The 2008 Republican nominee for the White House was indeed born in the Panama Canal Zone, outside the US, but both his parents were unassailably American.

Yes, Obama's father was Kenyan. But his mother was indisputably American – so even if he had been born in Africa, as the crackpots insisted, wouldn't he be fine? Not so. To qualify in 1961, when Obama was born, the one American parent of a foreign-born "natural-born" had to have lived for five years in the US after turning 14. But Stanley Ann Dunham was only 18 when the 44th president arrived. You do the maths.

Hence the importance of the Hawaiian birth certificate that trumps everything. Even if he had been born, say, to Moroccan parents during a one-day stop over in Hawaii, en route to China, this president would be deemed a "natural-born" American, no questions asked. But foreign-born, and as the son of an American citizen who had not met the five-year requirement, he would not. However, I digress.

The "natural-born" clause is an anachronism. The constitution of the United States is rightly hailed as a supreme political achievement, but it reflects its times. The second amendment, when it was written in the late 18th century, was intended not to doom gun control but to make sure local militias had the ability to stop any attempt by the dastardly British to snatch back the lost colonies.

Much the same goes for the "natural-born" language. Back in 1787, the constitution's authors wanted to prevent restoration-minded foreigners from subverting the new democracy. These days, though, America is open to all and not inclined to put a crown on anyone's head.

Every now and then, there are calls for a change that would permit long-naturalised Americans to run. Back in the mid-1970s, amid the crisis over Watergate, some proposed to amend the constitution to permit Henry Kissinger, the Secretary of State then at the height of his fame but born in Germany, to take his place in the line of succession.

A few years ago Arnold Schwarzenegger, then governor of California and a cult figure among Republicans, was the subject of similar efforts, as a Republican senator introduced a bill allowing anyone who had been a citizen for 20 years to be president. The measure never got out of committee and, even if it had, would surely have failed the requirements for a constitutional amendment. But the Governator dreams on. Would he run for the White House if he could, Schwarzenegger was asked last August. "Without any doubt," was the reply.

But the whole argument may now be moot. Live here for even a little while and you realise that you need to be Superman to be president. Now, however, even Superman, America's greatest fictional gift to humanity despite his birth on the planet Krypton, has had enough. In the latest issue of DC Comics, he is about to renounce his US citizenship, because it creates more problems than it solves. "Truth, justice and the American way... it's not enough any more," Superman laments. To which Obama, shell-shocked by the ridiculous "birther" affair, must be tempted to say, amen.

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