Birtherism is back, and it’s as vacuous as ever. Democratic vice presidential candidate Kamala Harris is an American citizen who is as eligible to serve as vice president or president as Donald Trump, Mike Pence and Joe Biden. This shouldn’t have to be said, but here we are.
In a recent op-ed for Newsweek, Chapman University law professor John Eastman wrote that “some” are “questioning” Harris’s eligibility to be president because of an arcane and fringe interpretation over what constitutes a natural-born citizen.
Harris was born in the United States to legal immigrants from Jamaica and India. Eastman’s argument focuses on the 14th Amendment’s language that “all persons born … in the United States, and subject to the jurisdiction thereof, are citizens.”
Since Harris’ parents were not American citizens at the time of her birth, Eastman reasons, “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.”
But there are quite a few problems with this line of argument.
Eugene Volokh, a law professor at UCLA, notes that the concept of a natural-born citizen “was a familiar phrase to the Framers — an adaptation of the English term ‘natural-born subject.’”
As Volokh explains, this in turn was defined by Sir William Blackstone, characterized by Justice Antonin Scalia as “the Framers’ accepted authority on English law,” as those “born within the dominions of the crown of England” and that “the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”
The United States Supreme Court in 1898 likewise reaffirmed that those “born in the U.S. are indeed natural-born citizens, regardless of their citizenship,” as Volokh notes.
There are some narrow exceptions consistent with the 14th Amendment, including “children born of alien enemies in hostile occupation” and “children of diplomatic representatives of a foreign state.” But Harris falls under no such exception.
By this simple and utterly uncontroversial line of reasoning, Kamala Harris was born in the United States and is therefore an American citizen. It’s not complicated.
But Eastman, who may have just been indulging in a discussion of a fringe legal interpretation, kicked off a storm.
Trump campaign adviser Jenna Ellis retweeted the article and told ABC News that Harris’s eligibility is “an open question, and one I think Harris should answer so the American people know for sure she is eligible.”
When asked about it, President Trump, who prior to becoming president was an enthusiast of incoherently casting doubt on the citizenship of President Barack Obama, said, “I have no idea if that’s right.”
That’s slightly better than fully feeding into this craziness. It’s also dangerous to the body politic for the president of the United States to pretend that a demonstrably wrong interpretation of the Constitution may well hold water.
This purposefully divisive, distracting matter has no place in the national political discussion leading up to the election. There are plenty of legitimate issues for Americans to sort out, debate and civilly disagree with each other about. This is an ugly side show that often just serves as a vehicle for xenophobia and other deplorable tendencies.
