Cenk Uygur's argument he's eligible for the Presidency

[I spent the winter writing songs about getting better]

I'm kind of interested in what some of the more legally-minded people here seem to think. Most people seem to be rejecting it and frankly if it was valid someone would've probably brought it up by now. But Cenk is arguing that despite being a naturalized citizen originally from Turkey that he is eligible and the natural born citizen clause of eligibility for the Presidency was overturned by the Fourteenth Amendment, specifically this part:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The issue I see is that it states that a STATE may not discriminate against naturalized citizens, but this clause is in the federal Constitution. So based on these grounds it would be unconstitutional for any state to require that its Governor be a natural-born citizen and disallow naturalized citizens. But this clause in the federal Constitution is not covered by that.

So how right am I? Any other issues involved?

[Ferguson97]

Naturalized citizen =/= natural-born citizen

This is open and shut, from a legal standpoint.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

The Supreme Court, for reasons best known to itself, has stubbornly refused to revisit the Slaughter-House Cases, an 1873 decision that effectively read the privileges or immunities clause out of the Constitution, repeatedly resorting to the fascinating and well-known custom of contorting the next clause to produce the same outcomes; that dog won't hunt here.

ETA: Apparently under Slaughter-House it might in fact be the case that running for President "counts" (not much else does!), but the argument still fails because, as BRTD points out, the natural-born citizen clause is not a state law.

[Donerail]

The Supreme Court, for reasons best known to itself, has stubbornly refused to revisit the Slaughter-House Cases, an 1873 decision that effectively read the privileges or immunities clause out of the Constitution, repeatedly resorting to the fascinating and well-known custom of contorting the next clause to produce the same outcomes; that dog won't hunt here.

Yes, but the issue here is the meaning of the Citizenship Clause and whether it effectively amended the Natural-Born Citizen Clause of Article II. Cenk's argument (I think) is that, by defining all persons naturalized in the United States as "citizens," the 14th Amendment abolished by implication the distinction between natural-born and naturalized citizens made in Article II. Or you can go from there to Equal Protection, conclude that election laws distinguishing between natural-born and naturalized citizens are drawing a distinction based on national origin, and conclude the Equal Protection Clause abrogates the Natural-Born Citizen Clause. (BRTD correctly points out that Equal Protection textually applies only to the states, but the doctrine of "reverse incorporation" has led the Court to conclude it applies to the federal government via the Fifth Amendment.)

So how right am I? Any other issues involved?

Whichever way you cut it, I don't think there is a good argument. Repeals by implication are generally disfavored, and the Reconstruction Congress considered and rejected proposals to amend or repeal the natural-born citizen requirement. There's no evidence that they thought the version they ultimately passed would have that effect, and the fact that they explicitly rejected proposals to do so settles it for me.

[Skill and Chance]

The Supreme Court, for reasons best known to itself, has stubbornly refused to revisit the Slaughter-House Cases, an 1873 decision that effectively read the privileges or immunities clause out of the Constitution, repeatedly resorting to the fascinating and well-known custom of contorting the next clause to produce the same outcomes; that dog won't hunt here.

Yes, but the issue here is the meaning of the Citizenship Clause and whether it effectively amended the Natural-Born Citizen Clause of Article II. Cenk's argument (I think) is that, by defining all persons naturalized in the United States as "citizens," the 14th Amendment abolished by implication the distinction between natural-born and naturalized citizens made in Article II. Or you can go from there to Equal Protection, conclude that election laws distinguishing between natural-born and naturalized citizens are drawing a distinction based on national origin, and conclude the Equal Protection Clause abrogates the Natural-Born Citizen Clause. (BRTD correctly points out that Equal Protection textually applies only to the states, but the doctrine of "reverse incorporation" has led the Court to conclude it applies to the federal government via the Fifth Amendment.)

So how right am I? Any other issues involved?

Whichever way you cut it, I don't think there is a good argument. Repeals by implication are generally disfavored, and the Reconstruction Congress considered and rejected proposals to amend or repeal the natural-born citizen requirement. There's no evidence that they thought the version they ultimately passed would have that effect, and the fact that they explicitly rejected proposals to do so settles it for me.

This.  My best (non-lawyer) understanding is that when a legislature passes law ABC and then, many years later passes law XYZ that appears to contradict portions of law ABC without explicitly saying law ABC is repealed, then law ABC will generally stand as an exception to law XYZ.

The same principle could reasonably be applied to constitutional text, which is probably why the Baker v. Carr line of cases never reached US Senate apportionment.  So, while a state senate apportioned by county instead of population is unconstitutional under 14th Amendment equal protection, the US Senate apportionment is constitutional because apportionment by state instead of population is explicitly authorized by a different part of the constitution that was not explicitly altered by the 14th Amendment.  A similar logic follows for the federal electoral college, even though a state level electoral college setup for electing a governor was thrown out in the 1960's. 

Ironically, this ends up being one of the few areas where the constitution allows the federal government more latitude than the states.

[I spent the winter writing songs about getting better]

Am I correct though in that this means that no state may institute a natural-born citizen requirement for any office? I'm not sure if any did even prior to the 14th Amendment, but this seems to be the one implication from Cenk's argument that holds any water.

[Blue3]

Naturalized citizen =/= natural-born citizen

This is open and shut, from a legal standpoint.

What’s the difference between born and naturalized, in the 14th amendment quote? Since the text treats them as different things.

[Donerail]

Am I correct though in that this means that no state may institute a natural-born citizen requirement for any office? I'm not sure if any did even prior to the 14th Amendment, but this seems to be the one implication from Cenk's argument that holds any water.

I think that'd be national origin discrimination in violation of the Equal Protection Clause, yes. Cenk is right that there's a tension between those two clauses, I just don't think it'd be resolved in his favor:

[Vosem]

It is a clever argument and it is one that an unscrupulous Court which cares about an evolving law might have adopted once upon a time (it feels like the sort of thing that Breyer might've liked, actually), but especially given that the Congress which passed the Fourteenth Amendment considered and decided not to revise the natural-born citizen requirement, I can't imagine the current Supreme Court adopting Cenk's interpretation.

(It would also be a weird and retrospectively unfair decision, since many individuals who might've otherwise run for the Presidency and perhaps been elected chose not to run because of this particular clause. If it is repealed, it should be through an explicit amendment, not through the end-run of SCOTUS reinterpreting what everyone spent 200 years reading in a particular way.)

[I spent the winter writing songs about getting better]

It is a clever argument and it is one that an unscrupulous Court which cares about an evolving law might have adopted once upon a time (it feels like the sort of thing that Breyer might've liked, actually), but especially given that the Congress which passed the Fourteenth Amendment considered and decided not to revise the natural-born citizen requirement, I can't imagine the current Supreme Court adopting Cenk's interpretation.

(It would also be a weird and retrospectively unfair decision, since many individuals who might've otherwise run for the Presidency and perhaps been elected chose not to run because of this particular clause. If it is repealed, it should be through an explicit amendment, not through the end-run of SCOTUS reinterpreting what everyone spent 200 years reading in a particular way.)

I doubt it's even the conservatives on the court, I'd wager any decision on this would be 9-0. At most Sotomayor would write a very sympathetic concurrence in which she implies about how this requirement really really ought to be repealed for most of it but then concluding at the end that it hasn't been.

[Vosem]

It is a clever argument and it is one that an unscrupulous Court which cares about an evolving law might have adopted once upon a time (it feels like the sort of thing that Breyer might've liked, actually), but especially given that the Congress which passed the Fourteenth Amendment considered and decided not to revise the natural-born citizen requirement, I can't imagine the current Supreme Court adopting Cenk's interpretation.

(It would also be a weird and retrospectively unfair decision, since many individuals who might've otherwise run for the Presidency and perhaps been elected chose not to run because of this particular clause. If it is repealed, it should be through an explicit amendment, not through the end-run of SCOTUS reinterpreting what everyone spent 200 years reading in a particular way.)

I doubt it's even the conservatives on the court, I'd wager any decision on this would be 9-0. At most Sotomayor would write a very sympathetic concurrence in which she implies about how this requirement really really ought to be repealed for most of it but then concluding at the end that it hasn't been.

Oh, yeah, I'm not even saying Breyer would've agreed with this argument; just that he would've liked it. It's the sort of argument that you could imagine the ultra-confident late Warren Court adopting had the matter reached its attention, in the innovative decade between Griswold and Gregg, but which would've been beyond the pale as too contradictory of the actual text in either the early 1960s or the late 1970s.

[David Hume]

The Supreme Court, for reasons best known to itself, has stubbornly refused to revisit the Slaughter-House Cases, an 1873 decision that effectively read the privileges or immunities clause out of the Constitution, repeatedly resorting to the fascinating and well-known custom of contorting the next clause to produce the same outcomes; that dog won't hunt here.

Yes, but the issue here is the meaning of the Citizenship Clause and whether it effectively amended the Natural-Born Citizen Clause of Article II. Cenk's argument (I think) is that, by defining all persons naturalized in the United States as "citizens," the 14th Amendment abolished by implication the distinction between natural-born and naturalized citizens made in Article II. Or you can go from there to Equal Protection, conclude that election laws distinguishing between natural-born and naturalized citizens are drawing a distinction based on national origin, and conclude the Equal Protection Clause abrogates the Natural-Born Citizen Clause. (BRTD correctly points out that Equal Protection textually applies only to the states, but the doctrine of "reverse incorporation" has led the Court to conclude it applies to the federal government via the Fifth Amendment.)

So how right am I? Any other issues involved?

Whichever way you cut it, I don't think there is a good argument. Repeals by implication are generally disfavored, and the Reconstruction Congress considered and rejected proposals to amend or repeal the natural-born citizen requirement. There's no evidence that they thought the version they ultimately passed would have that effect, and the fact that they explicitly rejected proposals to do so settles it for me.

For original intention and original public meaning, this would settle it for the originalists on this court. I think Cenk will lose for sure.