Kamala Harris was born in California, but birthers argue she can’t be vice president.

That’s because, while she was born in the U.S., her parents weren’t and although they later became naturalized citizens they were only legal residents at the time.

Their argument goes like this: The 14th Amendment defines citizenship as follows: “All persons born or naturalized in the United States, AND subject to the jurisdiction thereof” (caps for emphatic emphasis). In a Newsweek essay John C. Eastman, who is a law professor, failed GOP candidate, and head of several nasty rightwing organizations (bio here), writes:

“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).”

(This means sovereign citizens aren’t U.S. citizens or eligible to vote, but I digress.)

There’s a lot of ambiguity in the language of the 14th Amendment itself, as anyone can see from a cursory reading. The Supreme Court removed most of it, leaving only a tiny bit, in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), which held the Constitution guarantees birthright citizenship to all persons born on U.S. soil (in legal Latin, the jus soli principle), with very limited exceptions. Birthers, or Prof. Eastman at least, don’t appear to be claiming one of the very limited exceptions applies. Their argument is based on something else.

As for that tiny bit, Wikipedia describes the situation as follows:

“The parameters of the jus soli principle, as stated by the court in Wong Kim Ark, have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts … however, controversy has arisen over the longstanding practice of granting automatic citizenship to U.S.-born children of illegal immigrants, and legal scholars disagree over whether the Wong Kim Ark precedent applies when alien parents are in the country illegally.”

In other words, the birthers base their argument on the existence of a controversy, which they themselves created, and not on any existing legal precedent. In effect, they’re arguing the legal precedent should be changed, and that makes Kamala Harris ineligible to be vice president. Which is more or less the same thing as saying, “You can’t be vice president because we said so.”

But Prof. Eastman implores us not to “cavalierly accept Senator Harris’ eligibility for the office of vice president,” so out of respect for his formidable credentials (law degree from U. of Chicago, a very respectable law school, and on the law review too, meaning he was a top student; plus a Ph.D. in government from Claremont; but teaches at a law school approximating the legal equivalent of a Caribbean medical school), and to humor him (10% of the former, 90% of the latter), I’ll let him argue his case:

“Were Harris’ parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible. 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.”

Whew. That’s a lot of gobbledy-gook. And, in case you missed it, the germ of his argument (so to speak) is that Harris “owed her allegiance” (notice the past tense) “to a foreign power or powers” (don’t overlook the plural! She’s required to divide her loyalties between two foreign powers, although I’m not sure how that’ll work if India and Jamaica go to war — does she have to serve in the armies of both?) she’s never set foot in (so far as I know, but that could change when she’s vice president), and therefore can’t be a U.S. citizen.

Before I go any further, let me explain something. Law students are taught to prepare to argue any side of a case, and law professors are accustomed to saying in class, “Miss Jones, I’d like you to argue the Plaintiff’s side of this case; and Mr. Smith, I’d like you to argue the Defendant’s side.” So Prof. Eastman is in the habit of seeing all sides of an issue, and of arguing. Now let’s move on.

Any constitutional lawyer could write a brief weighing 5 lbs. on this issue, and a good one would edit it down to 12 oz. or so. (I was indoctrinated in law school to believe that judges are persuaded by arguments based on their relevancy, cogency, and legal merit, not how much the paper they’re printed on weighs; and with 40+ years of lawyer experience now under my belt, I believe that’s normally — not always — true.) I could do a law school exercise on Prof. Eastman’s arguments here, but I won’t, because it’s all make-weight. I could add that he’s only trying to make a simple thing complicated, but I won’t, because that should be self-evident; and, anyway, that’s what law professors and lawyers do to make their livings.

It takes only two sentences to dismiss his scribblings: 1. He’s not telling us what the law is; he’s arguing it should be changed. 2. Unless and until it is, Harris is eligible to be vice president.

But if birthers really want to go after the citizenship of descendants of immigrants, then they’re not citizens either, unless they descended from these people:


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  1. Hypocrisy GOP style #

    Republican play book: It is not okay to have non-white immigrant parents, but it is okay for Melania Trump’s Slovenian parents to become legal permanent residents of the US.

    This would appear to suggest they benefited from the same “chain migration” Trump has decried and sought to significantly scale back. Immigration experts say Viktor and Amalija Knavs (Melania’s parents) very likely relied upon this to obtain their green cards, though their attorney has not confirmed it. Trump has proposed limiting family migration to spouses and children, which would mean people such as Melania Trump’s parents would no longer be eligible.

    GOP raising the birther issue, Obama then, Kamala Harris now. Would birthers and their right wing white Nationalists even be questioning this if Kamala was white?

  2. Mark Adams #

    It is possible that Jamaica and India consider Kamala a citizen. That does not mean she is not a US citizen. If her parents were both ambassadors, or members of a foreign nations embassy, in another nations military then she may not be a US citizen. Technicly the US is not hip n dual citizenship, sp perhaps looking forward to running for public office Harris publicly affirmed her US citizenship and disavowed any and all others. (She could have done this at 18 even as an foreign Ambassadors child if she were born here and would be a full US citizen. Now if Republicans can show shw was born in Oakland, Argentina she cannot run for President, but this is the start of fun. Certainly the Biden camp vetted her and are ready for the silly fun, it is an election and if Melania Trump ever run for VP the Democrats would have fun.

  3. Roger Rabbit #

    There’s no possibility that she’s not a U.S. citizen, and making up facts won’t get you there.

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