(That’s the late, great Professor Irwin Corey, a famous walking, double-talking comedy spoof of professors. His theories are approximately as valuable as the topic of this post.)
Chapman University constitutional law professor John Eastman has a controversial essay in Newsweek analyzing whether Sen. Kamala Harris is eligible to become Vice president (or <cough> President) since her parents may not have been U.S. citizens when she was born.
Eastman’s theory is that the Twelfth Amendment’s language saying “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States” combined with Article II of the Constitution’s requirement that “[n]o person except a natural born citizen…shall be eligible to the office of President” raises legitimate questions about Harris’ eligibility.
Harris’s father and mother were born outside of the United States and neither was a naturalized citizen at the time of Harris’s birth in Oakland, California. (I did not know that! Did you know that Pat Venditte was the first Major League pitcher who regularly throws both right-handed and left-handed? ) If, Eastman, claims, Harris’s parents were not lawful permanent residents at the time of her birth, then she isn’t a natural born citizen. Along with a minority among constitutional scholars, Eastman believes the 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that ‘[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof’ are citizens. Just because one is born in the United States, these contrarians argue, doesn’t mean that individual has ‘subjected’ himself ‘to the jurisdiction’ of the United States. Under this theory, the children of tourists, diplomats, and illegal aliens are not “natural born” citizens.
What an interesting theory! And, like so many things academics and scholars put into print to gain fame, notoriety, and publishing deals, it is one that is completely pointless at this time in history. Eastman’s theory has not been adopted by the United States or used to determine citizenship, so the current interpretation that if you are born here, you’re a “natural born” citizen, is the law by tradition and practice. Nevertheless, conservative media is having a ball with this foolishness. “Kamala Harris was an Anchor Baby” says a headline I saw today. So WHAT??? There is so much wrong with Kamala Harris, and she is such an awful candidate for so many other reasons, why is anyone focusing on a dead letter technicality?
There is nothing wrong with a scholar claiming that we’ve been doing it wrong all this time, but there is a lot wrong with making that argument in the middle of a Presidential campaign. I get it: the presence of Harris on the Democratic ticket makes an arcane legal theory suddenly newsworthy, Chapman, however, is chasing personal fame at the cost of promoting needless distrust and uncertainty into a national election, as if we didn’t have too much of both already.
The responsible time to make this argument was between elections, and, oh, a century ago. Or it could have been examined during the Democratic primaries, when Harris was running for President. I put this “controversy” in the same category as the “resistance’s” Emolument Clause arguments. Nobody mentioned the Emoluments Clause, an archaic provision that is one of the more quaint features of the Constitution, while Donald Trump was running for President; it was weaponized once he was elected. All it has been used for and can be used for is to create confusion, as well as an excuse for partisan attacks.
Chapman’s article is the same; it’s timing is destructive and divisive without a legitimate purpose. Nobody, including the Supreme Court, is about to step in and invalidate Harris’ candidacy, and wouldn’t even do so if she were not sort-of kind-of African-American.
I’m pretty certain that President #10 John Tyler was wrong when he declared that the Founders’ intent was for the Vice President to finish out a dead President’s term, but he set the precedent by moving into the White House rather than setting a time for a special election. What would you call it if the Republicans suddenly argued that we should hold a special election if President Joe Biden died?
I’d call it silly, dishonest, unfair and irresponsible. I would not call it racist.
Newsweek added a note to Eastman’s op-ed stating that some readers saw the piece as an attempt to ignite a racist conspiracy theory. I guess some readers are race-baiting Democrats. This isn’t “birther-ism,” as when some ill-advised partisans—like Donald Trump—claimed that Barack Obama was born in Kenya, and that there had been a cover-up to pretend he was eligible to be President when he was not. (That claim wasn’t racist either…just contrived and unfair.)
But when the only tool you have is a hammer…claiming racism is what Democrats do, unless they are claiming sexism. Harris’ candidacy gives them a chance to do both. What fun for them!)
Eastman’s article isn’t racist. In its timing, however, it is unethical.
UPDATE: A long-time friend who is a professor of history at Georgetown chided me for not including the cite of the Supreme Court case that confirmed that the child of a non-citizen in the U.S. was a citizen of the US by being born here. He’s right, though the case does not address the eligibility for the Presidency issue. Here’s the link.