Within 24 hours of Joe Biden announcing California Senator Kamala Harris as his running mate, Newsweek of all places posted a “just asking questions” op-ed wondering whether Harris is constitutionally qualified to serve as the Vice President. The op-ed was written by John Eastman, a professor of law at the right-wing Chapman University. (I will not link to the article in question because Newsweek doesn’t deserve to be rewarded with traffic for this deplorable piece. You can, of course, Google it if you wish.) Because Eastman couches his op-ed in terms of “I’m just asking questions,” he can credibly claim that he’s not actually asserting that Harris can’t be Vice-President. But Trump wasted no time taking the bait in a Thursday press conference, where he said that a “very highly qualified lawyer” suggested Harris didn’t qualify for the position.
The notion that Harris is not qualified for the position is beyond absurd. The Constitution has this to say about presidential qualifications:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
The Twelfth Amendment, ratified in 1804, adds an additional gloss: “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
Thus, the Vice President must be just as constitutionally qualified as the President. Eastman contends—or, rather, suggests—that she might not be because her parents weren’t U.S. citizens when she was born. And yet, Harris herself was very clearly born on U.S. soil in Oakland, California. It’s well established that being born inside the United States automatically confers U.S. citizenship, right? Eastman implies this may not be the case:
The language of Article II is that one must be a natural-born citizen. The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that “all persons born…in the United States, and subject to the jurisdiction thereof, are citizens.” Those who claim that birth alone is sufficient overlook the second phrase. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.
Eastman contends that, because Harris’s parents—who were from Jamaica and India—were not “lawful, permanent residents” at the time she was born, they were not fully subject to the United States’s jurisdiction and therefore Harris was not a natural-born citizen.
This contention is, again, absurd. Eastman attempts to have it both ways when he notes, “Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.” Of course, the Supreme Court has never not held that is the case, either. This means there’s no controversy about Harris’s nationality at birth, other than the controversy Eastman is himself manufacturing.
Eastman cites two inapplicable examples to support his position:
The children born on U.S. soil to guest workers from Mexico during the Roaring 1920s were not viewed as citizens, for example, when, in the wake of the Great Depression, their families were repatriated to Mexico. Nor were the children born on U.S. soil to guest workers in the bracero program of the 1950s and early 1960s deemed citizens when that program ended, and their families emigrated back to their home countries.
Of course, Harris’s parents weren’t guest workers on a guest worker program. They were both students who came to the San Francisco Bay Area to pursue graduate studies. And they didn’t return to their home countries, either; they continued to live and work in the Bay Area. Harris’s mother, a cancer researcher, died in Oakland in 2009. Harris’s father, an economist, retired from Stanford University in 1998. Harris’s parents weren’t transients in the United States on vacation; they moved here to live and work, and remained here. Eastman’s “examples” are frivolous on their face.
Nevertheless, Eastman doubles down on his cowardly “just asking questions” technique:
Or were they instead, as seems to be the case, merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act? If the latter were indeed the case, then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers—Jamaica, in the case of her father, and India, in the case of her mother—and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.
This phraseology is akin to a routine Gilbert Gottfried used in his roast of Bob Saget, where Gottfried said, “There is absolutely no evidence that BOB SAGET RAPED AND KILLED A GIRL IN 1990. People should stop saying that BOB SAGET RAPED AND KILLED A GIRL IN 1990 because saying that BOB SAGET RAPED AND KILLED A GIRL IN 1990 is slander to his good name.” Eastman similarly reveals—except not in a funny way—that he intends to do little more than cast doubt on Harris’s obvious qualification for the presidency and vice-presidency. Fear, uncertainty, and doubt (FUD) is a well-worn Republican political tactic that enables such a politician to say, “Oh, I’m not saying she’s not qualified! I’m just saying other people are saying it.” This is precisely what Trump did on Thursday. The intention is for Republican voters to conflate doubt or hypothesis with certainty.
Newsweek has since added a gloss to the top of the article: “Some readers reacted strongly to this essay, seeing it as an attempt to ignite a racist conspiracy theory. That is entirely inaccurate, as this Note explains.” The editor’s note also links to a refutation of Eastman’s op-ed by Eugene Volokh, a right-leaning law professor at UCLA School of Law.
Predictably, the Editor’s Note observes that questions were raised about John McCain’s eligibility to serve as President (he was born in what was then the U.S.-controlled Panama Canal Zone), and Ted Cruz’s eligibility (he was born in Canada to a Cuban father and an American mother). But as with most facile comparisons, the Editor’s Note ignores the similarities between Barack Obama and Harris. Obama was the subject of an equally absurd and ludicrous conspiracy theory—championed vociferously by Trump, you’ll recall—that he was not born in Hawaii, but rather in Kenya, and his Hawaiian birth certificate was falsified. The McCain and Cruz birther theories were generally dismissed, while Obama’s dogged him for literally his entire term in office—and to this day, there are people out there who staunchly believe he was born in Kenya, not Hawaii. It couldn’t possibly have anything to do with the color of his skin, could it?
Newsweek was irresponsible to give its cachet to Eastman’s attempt to again sow FUD as against a multiracial candidate. At the very least, its editors should have realized that Eastman was attempting to resurrect the “birther” conspiracy not only to cast doubt on Harris’s qualifications but also to discretely (or perhaps not so discretely) signal to Republican voters: She’s an outsider, a foreigner. She’s not like you. She’s brown and has a funny name. For that, you should not only not vote for her, but you should loathe her because she’s different. That was precisely the point of the Obama “birther” conspiracy theory and it is now the point of the new Harris “birther” conspiracy theory.
Of course, Eastman can’t come out and say that he’s correct. That’s because he’s not. Despite his tortured interpretation of the law, there is no question that Harris is a natural-born citizen who is qualified to be Vice-President and President. Newsweek should be ashamed of itself. The “Marketplace of Ideas” does not benefit by discussing whether a frivolous argument, made in bad faith, is correct. The only people who are served are Republican politicians and their supporters, who are eager to find a reason to cast Harris as some sort of foreigner or outsider. Thanks to Eastman, with the willing assistance of Newsweek and its editors, they may have succeeded.