Debunking Birtherism 2.0: Yes, Kamala Harris Is Eligible To Be VP

Sen. Kamala Harris, D-Calif., listens to testimony from top national security chiefs during a Senate Select Committee on Intelligence hearing on gathering intelligence on foreign agents, on Capitol Hill in Washington, Wednesday, June 7, 2017. (AP Photo/J. Scott Applewhite)

Isa-Lee Wolf is a writer and a non-practicing lawyer with a B.A in sociology.

Newsweek launched Birtherism 2.0 on August 12, 2020, with an essay from Chapman Law professor John Eastman entitled “Some Questions for Kamala Harris About Eligibility.” Senator Kamala Harris (D-CA), a recent vice-presidential candidate, was born in Oakland, California.

Before we go any further, that Harris was born in the United States, has lived here for more than 14 years, and is over 35 unequivocally answers all “questions.” The Senator is eligible for the presidency, and therefore, the vice presidency.

Eastman, who unsuccessfully tried to challenge Harris in 2010 for California Attorney General–he lost the Republican primary to Steve Cooley–is a fellow at the Claremont Institute, a conservative “think tank.” In 2016, he vociferously defended the eligibility of Senator Ted Cruz (R-TX) for the presidency in the National Review. Cruz was born in Canada to one Cuban and one American parent.

After the public identified the xenophobic, nativist essay for what it is, Newsweek defended its publication with an “Editor’s Note,” rushing to condemn readers for calling racism what it is: racism:

Some of our readers have reacted strongly to the op-ed we published by Dr. John Eastman, assuming it to be an attempt to ignite a racist conspiracy theory around Kamala Harris’ vice presidential candidacy.

A response. https://t.co/Srj9kWEDBi

— Josh Hammer (@josh_hammer) August 13, 2020

Then came the gaslighting:

Some of our readers reacted strongly to the oped we published by Dr. John Eastman, assuming it to be an attempt to ignite a racist conspiracy theory around Kamala Harris’ candidacy. That is entirely inaccurate. Here: https://t.co/eRjx3OFI7X

— NancyCooper (@NancyCooperNYC) August 13, 2020

As the Trump campaign struggles to find a credible attack on Kamala Harris, Trump campaign legal adviser Jenna Ellis retweeted the Newsweek article and told ABC News, “it’s an open question, and one I think Harris should answer so the American people know for sure she is eligible.” That is, of course, not true. It’s also unclear what Harris could “answer” given her American birth is indisputable.

President Trump was asked about this on Thursday. After praising Eastman, Trump deflected and said “I heard today that she doesn’t meet the requirements… I have no idea if that’s right.” Trump then said he’d look into it.

There will be no nodding politely while keeping our thoughts to ourselves this election cycle, and birtherism, no matter how it’s dressed up or couched, cannot be tolerated. Last time, it was the leading edge of the revolting and dangerous bigotry to come from Donald Trump and his cronies as he falsely alleged President Obama was born in Kenya. This time we know what it means, we understand the point, and we cannot let it stand.

The language of the 14th Amendment is clear:

“Section 1.
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.” (emphasis added)

Article 2, Section 1 of the Constitution sets the eligibility requirements for the presidency:

“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.”

Those three words, “natural born citizen,” lie at the crux of Birtherism 2.0, and feed its racist, shriveled heart.

Debunking John Eastman’s Argument

No need to read Eastman’s partisan diatribe, which has acquired the following:

“Editor’s note: 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.”

We’ll get to the rationalization and equivocation in a moment. Eastman suggests “some people” question Harris’ eligibility (perhaps they hang out with Trump’s “some people.”) Why do they do that? Let’s let him explain in a written three-card monty:

“The 12th Amendment provides that ‘no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.’ And Article II of the Constitution specifies that “[n]o person except a natural born citizen…shall be eligible to the office of President.” Her father was (and is) a Jamaican national, her mother was from India, and neither was a naturalized U.S. citizen at the time of Harris’ birth in 1964. That, according to these commentators, makes her not a “natural born citizen”—and therefore ineligible for the office of the president and, hence, ineligible for the office of the vice president.”

Kamala Harris’ father, Donald Harris is a naturalized US citizen. Eastman’s aside that Donald Harris “is” a “Jamaican national,” despite his naturalization, is telling, especially given the language of the 14th Amendment.

Eastman’s legal argument is nonsense

Did you see Eastman deal from the bottom of the deck while setting up his argument? Somehow, he claims, that because Kamala’s parents, like millions upon millions of other immigrants before them, were not citizens at the time of her birth, magically means Kamala Harris is not a “natural born citizen.” Note Eastman, like Newsweek itself, is not taking responsibility for this argument. No, it’s “some people.”

Apparently some people, even law professors, cannot manage a plain reading of the Constitution. Take another look at the 14th Amendment, which poses absolutely no such requirement. She was born “subject to the jurisdiction” of the United States.

Oh no, cries Eastman. With parents who are immigrants, Kamala was only “partially subject” to the jurisdiction of the United States. We’ll pause for the collective eye roll.

It’s an argument Eastman has made before, in relation to “birth tourism,” though he did not once mention the fact the people baby booming the industry are Russian. Still, he has concocted a nonsense argument that somehow people in the country who are here “temporarily” are not fully subject to the laws of the United States. And how he defines “temporarily” is extremely elastic; he questions whether Harris’ parents were legal permanent residents when she was born, and even Harris’ father naturalized, despite reports that he did. But there is no need to examine the facts, because his “legal” argument has zero basis in the law.

To be clear, none of Eastman’s arguments are requirements for citizenship. No court has ever applied the test of jurisdiction he suggests. In fact, in 1897, the Supreme Court established clear birthright citizenship in United States v. Wong Kim Ark, a case Eastman brushes aside with a semantic argument because if he didn’t, he would not have an essay.

Eastman thinks Trump can unilaterally end birthright citizenship, because “subject to the jurisdiction” of means, he claims, “people with full, political allegiance to the U.S. — green card holders and citizens.” Nothing defines “subject to the jurisdiction” in that way. If only something did, conveniently, define “subject to jurisdiction.”

Oh, wait. Federal code does:

31 CFR § 515.329 – Person subject to the jurisdiction of the United States; person subject to U.S. jurisdiction.
Ҥ 515.329 Person subject to the jurisdiction of the United States; person subject to U.S. jurisdiction.
“The terms person subject to the jurisdiction of the United States and person subject to U.S. jurisdiction include:
(a) Any individual, wherever located, who is a citizen or resident of the United States;
(b) Any person within the United States as defined in § 515.330;
(c) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(d) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in paragraphs (a) or (c) of this section.

Weird, nothing about “full political allegiance” here. The most chilling aspect of this article is Eastman questioning whether Harris is a citizen at all after he’s applied his fictional test. This where the racist core of the article lies; like the Nazis’ Nuremberg race laws, Eastman seeks to strip Harris not only of her eligibility, not only of her citizenship but of her nationality as well.

Eastman’s historical argument is nonsense too

Eastman claims history supports his deformation of the 14th Amendment, and that too is nonsense. This thread from Justin Fox fully and methodically dismantles the argument that the 14th Amendment historically means anything but birthright citizenship:

As a I discovered a couple of years ago by reading the Congressional debates over the 14th Amendment, one should never rely on anything John C. Eastman says about the history of birthright citizenship https://t.co/SeZlDwkpal

— Justin Fox (@foxjust) August 13, 2020

Including this excerpt from the author of the birthright language, Jacob Howard, explaining the intention of birthright citizenship:

Here’s Jacob Howard of Michigan, author of the 14th Amendment, explaining birthright citizenship in Senate debate on May 30, 1866 https://t.co/gLEgOTIvqX pic.twitter.com/hS6xzt9yfZ

— Justin Fox (@foxjust) August 13, 2020

The entire meticulously-documented thread is worth a read but the point shines through: like his legal argument, Eastman’s historical argument has no basis in reality. It is the wishful thinking of right-wing xenophobic groups and publications, like the National Review, the self-same magazine that published Eastman’s defense of Ted Cruz’s presidential eligibility.

Newsweek doubles down

After chiding readers for seeing their published “birther-ism” as birtherism, Newsweek claims to find such arguments “vile.” No no, readers are assured, this has nothing to do with that. Rather, demurs the Editor’s Note:

“The 14th Amendment is one of the most-studied areas of constitutional law, and questions were raised by the Constitution’s Article II, Section 1 ‘natural born Citizen’ requirement for presidential eligibility about both John McCain and Ted Cruz, at the time of their respective runs. The meaning of “natural born Citizen,” and the relation of that Article II textual requirement to the 14th Amendment’s Citizenship Clause, are issues of legal interpretation about which scholars and commentators can, and will, robustly disagree.” (emphasis added)

That sounds reasonable, right? Same old, same old, it has nothing to do with racism and xenophobia, heavens no, it’s just a “robust” constitutional debate. Only, here’s the thing: Neither John McCain nor Ted Cruz were plainly born in the United States. While both McCain and Cruz are likely eligible for the presidency, the questions raised about their eligibility have absolutely nothing to do with the 14th Amendment, but the meaning of “natural born citizen.” In fact, Cruz’s eligibility, which Eastman previously defended, hinges entirely on a type of birthright citizenship: that of being born to an American parent.

And then Newsweek, despite all it’s clutching of pearls, tells us exactly what they’re saying, while trying to force us to believe it’s not what they’re saying:

“The issue discussed in these debates, and contested by Dr. Eastman, is whether birthright citizenship (jus soli, birth by soil), as opposed to merely citizenship by parentage (jus sanguinis, that is, citizenship by citizenship of one’s parents at time of birth), is textually mandated. Again, scholars can, and do, disagree on this point.”

We all read the same 14th Amendment, right?

How To Become A US Citizen

A person becomes a US citizen through “birth, blood or naturalization.” Newsweek was right about “Jus soli” and “jus sanguinis,” but like the author to whom it gave a platform, it distorts reality. Both are not a requirement and one does not modify the other. One is not more legitimate than the other. Birthright citizenship does not require a citizen parent.

Citizenship by blood requires only that one parent be an American. In Birtherism 1.0, the utterly false and factually refuted claim that President Obama wasn’t born in the US really didn’t matter. As his mother was a US citizen, Obama could have been born anywhere in the world and still be a US citizen.

There is no room to debate Harris’ eligibility, she was born in the United States, she is a “natural born citizen.” John McCain was born on a US Naval station in Panama to American parents. Though military bases, unlike embassies, are not technically “US soil,” in McCain’s case, an act of Congress declared that particular base US territory. Nonetheless, McCain was born to American parents, and thus would have acquired his citizenship just how Newsweek and Eastman like it, by blood.

Similarly, Ted Cruz, whose father was a Cuban immigrant, was born to an American woman in Canada. Still a citizen. For both McCain and Cruz, the question wasn’t whether they were citizens, which everyone accepted despite their births outside of the US. The question was whether they were “natural born citizens.” Admittedly, this issue is more squidgy, despite what Newsweek might say, as it’s not one tested by the Courts, and not as crystal clear as, say, Harris’ birthright citizenship, but from the Harvard Law Review:

“…As Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose.”

The Rantt Rundown

There are no valid questions as to Kamala Harris’ eligibility for president. Like the racist genesis of birtherism 1.0, claims that “some people” question Harris’s eligibility are declarations that people of color are somehow less “American” than white Americans. We all see it, we all know what it means, and Newsweek can publish finger-shaking, disapproving notes until the sun burns out and it will change nothing.

The proof is in the denial, in the roots of birtherism. While no one questioned whether Ted Cruz and John McCain were citizens, that was the first line of attack against President Obama, who, unlike those two white Republicans, was actually born in the United States. But even if he had not been, he would be no less a citizen than they are.

Any lingering questions of the purpose of Eastman’s article can be answered by his refusal to accept the citizenship of Kamala’s father, by his attempt to strip Harris of her own citizenship. The intention is to create some other class of citizenship or limbo that doesn’t exist in US law or under the Constitution.

The similarity to history cannot be ignored. This othering, this claiming of noncitizenship of Jews is exactly what the Nazis did. These are not ideas founded in freedom, in justice, in equality, as the Constitution demands. Newsweek was right about one thing: Bitherism is vile. It just fails to understand why, or it wouldn’t have kicked off Birtherism 2.0.