Some Questions for Kamala Harris About Eligibility | opinion

Editor's Note, 8/14: This article is being used by some as a tool to perpetuate racism and xenophobia. We apologize. The essay, by John Eastman, sought to explore a minority legal argument about the definition of who is a “natural born citizen” in the United States. But to many readers, the essay inevitably conveyed the ugly message that Sen. Kamala Harris, a woman of color and the child of immigrants, was somehow not truly American.

The op-ed was never intended to provoke or engage in the racist lie of birtherism, the conspiracy theory designed to delegitimize Barack Obama, but we should have recognized the potential, even the likelihood, that this could happen. Readers hold us accountable for everything we post, as they should; we also take responsibility. We could not fully anticipate the ways in which the essay would be interpreted, distorted, and weaponized.

As we said in our previous note, this essay was an attempt to examine a legal argument about the difference between “natural born” and “naturalized,” the latter being ineligible to hold the office of president. In the days since the op-ed was published, we saw it being shared on forums and social networks known for misinformation, conspiracy theories and racist hate. All of us at Newsweek are horrified that this op-ed has given rise to a wave of vile birtherism directed at Senator Harris. Many readers have demanded that we retract the essay, but we believe in transparency and are therefore allowing it to remain online, with this note attached.

Eugene Volokh offers the opposite argument here.

The fact that Sen. Kamala Harris has just been named the vice presidential running mate of presumptive Democratic presidential nominee Joe Biden calls into question her eligibility for the position. The 12th Amendment states that “no person constitutionally ineligible to the office of President shall be eligible to the office of Vice President of the United States.” And Article II of the Constitution specifies that “[n]or person, except a natural-born citizen…shall be eligible to the office of President.” His father was (and is) a Jamaican national, his mother was from India, and neither was a naturalized American citizen at the time of Harris. birth in 1964. This, according to these commentators, makes her not a “natural born citizen” and therefore ineligible for the office of President of vice president

“Nonsense,” says the counter-comment. Indeed, PolitiFact called the ineligibility claim “Pants on Fire” bogus, Snopes called it simply “fake” and from the other side of the political spectrum, Conservative daily news also rated it as “False”. All three (and many others) simply claim that Harris is eligible because he was born in Oakland, and he is so a natural born citizen. The 14th Amendment says so, they all say, and the Supreme Court so ruled in the 1898 case of USA v. Wong Kim Ark.

But these claims are wrong, at least as the Citizenship Clause of the 14th Amendment was originally understood, a mistake to which even my good friend, renowned UCLA Law School professor Eugene Volokh, has fallen prey.

The language of Article II is that you must be natural born citizen. The original Constitution did not define citizenship, but the 14th Amendment did, stating that “all persons born . . . in the United States, and subject to its jurisdictionare citizens.” Those who claim that birth alone is sufficient overlook the second sentence. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not only a partial jurisdiction as applicable to any person temporarily residing in the United States (whether lawfully or unlawfully). This was the view of the framers of the Citizenship Clause of the 14th Amendment; of the United States Supreme Court in 1872 Slaughterhouse Cases and the case of 1884 Elk vs. Wilkins; of Thomas Cooley, the leading constitutional treatise of the time; and the State Department, which, in the 1880s, issued directives to US embassies to that effect.

The subsequent decision of the Supreme Court a Wong Kim Ark it is not the opposite. At issue was a child born to Chinese immigrants who had become legal and permanent residents of the United States: “domiciled” was the legally significant word used by the Court. But this was the measure of the Court holding (as opposed to the broader language that was dictation, and therefore non-binding). In fact, the Supreme Court has never held that anyone born on American soil, regardless of the circumstances of the parents, is automatically an American citizen.

Of course, our government's view of the Constitution's citizenship mandate has morphed over the decades into what is now an absolute view of “birth in the soil, regardless of circumstances,” but this transformation seems to it didn't start until the late 60s, after Kamala Harris. ' birth in 1964. Children born on American soil to guest workers from Mexico during the roaring 1920s were not considered citizens, for example, when, in the wake of the Great Depression, their families were repatriated to Mexico. Nor were children born on American soil to guest workers in the bracero program of the 1950s and early 1960s considered citizens when that program ended, and their families migrated back to their home countries.

So before we so brazenly accept Senator Harris's eligibility for Vice President, we should ask her a few questions about the status of her parents at the time of her birth.

Harris' parents were lawful permanent residents at the time of his birth? If so, then under the actual ownership of Wong Kim Ark, must be considered a citizen at birth, that is, a natural-born and therefore eligible citizen. Or were they, as appears to be the case, only temporary visitors, perhaps on student visas issued under section 101(15)(F) of title I of the Immigration Act of 1952? If the latter was the case, then, derived from her parents, Harris was no subject to the complete jurisdiction of the United States from his birth, but instead owed his allegiance to a foreign power or powers—Jamaica, in the case of his father, and India, in the case of his mother—and therefore he was not entitled to birthright citizenship under the 14th. Amendment as originally understood.

Interestingly, this recitation of the original meaning of the 14th Amendment's Citizenship Clause could also cast doubt on Harris' eligibility for her current position as a United States Senator. Article I, Section 3 of the Constitution specifies that to be eligible for the office of senator one must have been “nine years a citizen of the United States.” If Harris was not a citizen at birth, we should know when (if ever) she became a citizen. His father's Stanford University bio page identifies his citizenship status as follows: “Jamaica (by birth); USA (by naturalization).” But there is some dispute as to whether he was in fact ever naturalized, and it is also unclear whether Harris' mother ever became a naturalized citizen. If neither ever naturalized, or at least did not become naturalized before Harris's 16th birthday (which would have allowed him to obtain citizenship by naturalization under immigration law, at that time ), then she would have had to naturalize herself in order to be a citizen. It seems that this never happened, but without it, she would not have been a “citizen of the United States for nine years” before her election to the United States Senate.

I have no doubt that this important challenge to Harris' constitutional eligibility for the nation's second-highest office will otherwise be dismissed as old constitutional guts. But the concerns about divided loyalties that led our nation's founders to include the “natural-born citizen” requirement for the office of president and commander-in-chief remain important; indeed, with the persistent threats from Russia, China and others to our sovereignty and electoral process, these concerns are perhaps even more important today. It would be an inauspicious start to any campaign for the highest offices in the country to ignore the eligibility requirements of the Constitution; how else could we expect candidates, if elected, to live up to their oaths to “faithfully execute the office of President of the United States and . . . [their] Ability to preserve, protect and defend the Constitution of the United States?”

Dr. John C. Eastman is the Henry Salvatori Professor of Law and Community Service and former dean of the Fowler School of Law at Chapman University. He is also the 2020-21 Visiting Scholar in Conservative Thought and Politics at the Benson Center for the Study of Western Civilization, University of Colorado Boulder. Dr. Eastman is also a senior fellow at the Claremont Institute and founding director of the Institute's Center for Constitutional Jurisprudence. Eastman ran in the 2010 Republican primary as a candidate for attorney general; he lost to Steve Cooley, who lost to Kamala Harris in the general election.

The opinions expressed in this article are the writer's own.

UPDATE, 8/13; 9:15 am ET: Bio has been updated to include that Eastman ran for attorney general in the 2010 Republican primary; he was defeated by Cooley, who was then defeated by Harris.