Is Senator Harris Technically A Natural Born Citizen? At This Point, What Difference Does It Make? [Corrected and Updated]

(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.

24 thoughts on “Is Senator Harris Technically A Natural Born Citizen? At This Point, What Difference Does It Make? [Corrected and Updated]

  1. I find it hard to believe that this person, a lawyer and professor, would actually write something like this. Oh, wait, he lost an election to Harris! I also find it hard to believe — but shouldn’t — that Newsweek would publish it without publishing a reasoned counter-argument next to it. Oh, wait! Newsweek is a print medium. Understood on both counts now.

    The phrase “natural-born citizen” appears in Section 1 of Article 2 of the United States Constitution.

    While the Constitution does not expressly define “natural born” and the Supreme Court has not ruled “precisely” on what that means, it is clear under various Supreme Court cases (for example, United States v. Wong Kim Ark), that anyone born on U.S. soil and subject to its jurisdiction is a natural born citizen, regardless of parental citizenship. This type of citizenship is sometimes referred to as birthright citizenship. There is no doubt ( nor has even this deluded professor who was a political opponent of Sen Harris claimed) that she was born in the US. Donc, voila! As my French friends say. She is qualified. To argue otherwise is a fine but useless academic exercise (as so many academic exercises are), inconsistent with history, tradition, and legal precedent. These arguments belong — if they belong at all — in academia and in attempted arguments before courts, claiming that history, tradition, and legal precedent are all wrong. I doubt Justice Scalia (“the originalist”) would have made or accepted that “academic” argument. I know my Constitutional Law professor, Charles Alan Wright (noted conservative Constitutional lawyer who was offered and rejected a Sup Ct appointment as “everyone has skeletons in their closet”) would not…or at least believe wholeheartedly that he would not…as I took a special Supreme Court seminar from him.

  2. I’m thinking about Ted Cruz’s situation although his mother was a U.S. citizen when he was born in Canada. His father was not a U.S. citizen at his birth. Personally I think the law should be changed in the case that at least one parent should be a U.S. citizen of a child born in the U.S. in order for them to qualify to run for the presidency or V.P. It seems to be a moot point with Harris however.

  3. Yep. Why go down that road? By that logic, Ted Cruz is ineligible because his father is Cuban and wasn’t a naturalized citizen when Ted was born, which was in Canada.

    Trump and the Republicans need to pound on her policies instead of pointless arguments.

    jvb

  4. Can someone explain to me the rationale for requiring that the POTUS be a naturally born citizen?

    As an outsider looking in, I think the point might have been to prevent people with loyalty specifically to England from holding high office, but that seems antiquated in 2020. More, it seems a little redundant, someone who isn’t a naturally born citizen would almost by definition have a harder time getting support from Americans than a naturally born American. And that’s not unique to America… Canada doesn’t have the “naturally born” rule, but the only time we had foreign born PM since locally born Canadians were old enough to be considered for PM was an interim PM for a 90 day stint in 1984.

    • It is antiquated, and very specific to the candidate qualifications of 2 roles….but I’d wager if Arnold Schwarzenegger were to be appointed Secretary of State and the requisite misfortunes occurred, he’d legally be President despite his origination. So, I do not see it as impossible for the U.S. to have a foreign born POTUS. With that said,maybe I’m wrong. Maybe such disqualifications remove a person in such a role from the line of succession? (Someone jump in here and give me the academic answer!)

      I think it would be sufficient enough to give other qualifications now that the country has developed. The two remaining qualifications mean that someone born to US Citizens within the US can be immediately taken as a newborn to an adversarial country and raised with a specific ideology – then returned at any time and as long as they reside in the U.S. for 14 years, they’re eligible at age 35.

      Those probably weren’t the plot-lines the founders envisioned, but I think it shows the silliness of even having qualifications in the first place.

      In fact, in writing this, I wonder if it’s fair to say the only qualification we should have is that a person never served in a government or military of another nation? Beyond that, I think the US would have stronger options with this new competition and the people would be able to decide for themselves what’s relevant or not.

      Just my half-cent thoughts.

      • I’d image that if Arnold were appointed Secretary of State, his place of birth would be a huge thorn in his confirmation. Most likely, a memorandum of understanding would be signed by Schwarzenegger, the president and senate that he would voluntarily bypass his ascension to the presidency under 25th Amendment conditions to avoid the constitution problem altogether.

      • The Constitution says the Congress can make provisions for a situation where there is no president or vice-president. The most recent action on this appears to be 3 U.S. Code § 19. It provides the line of succession and includes a proviso that the person moving up to president or vice-president must be “eligible to the office of President under the Constitution.”

  5. Here you go, from some of the writings at the time. There is no “absolute” answer but this seems to be a reasonable one:
    “[T]he general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the Pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this sourceL”. So, several law review articles have argued that it was intended as one protection against foreign interference in US elections—for example, by a well funded candidate sponsored by a foreign government (that was one specific example given). A bit ironic, perhaps, in today’s context.

    • It is a very old provision, one that may have been important when the Constitution was written, but one that, in my biased opinion, is ripe for updating. Four of my grandchildren were adopted in infancy from foreign countries. They are U.S. citizens, but, not being natural born citizens, are ineligible for president or veep. For them and for the many others who entered the country legally at a very young age, a change should be made.

  6. The law as it stands is clear: a person born in the United States is a natural-born citizen, unless the United States has no jurisdiction over them. I refuse to pretend (as gun control nuts do with the 2nd Amendment’s “well-regulated” clause) that this jurisdiction clause can be made to mean whatever a government bent on undoing the thrust of the clause wants it to mean. If the US declares a person born here to not be subject to its jurisdiction, it must be so in fact. Such a person should be immune from prosecution, exempt from taxes, and otherwise beyond the reach of US law. Conversely, if the US insists it may enforce its laws against a person born here, it must concede they were born a citizen.

    Concerning the law as it should be, I think this conventional view of the Citizenship Clause is the one more in harmony with the foundational civic philosophy of America. In a monarchy, it’s considered normal for the rule of a land to belong in perpetuity to the heirs of a privileged group. America rejected that view and declared the rule of the land should belong to the people who live there. To allow the existence of a hereditary class of disenfranchised people is not materially different from allowing a hereditary nobility, and so the people of the United States have drawn a bright line, and declared all who cross it to be Americans in perpetuity and without limitation or reservation.

    • I agree with the philosophical intent. It has the practical application that illegal immigration dies within one generation, which I think is desirable. Image having to produce both your birth certificate, and your parent’s and possibly grandparent’s to prove citizenship! It becomes an impossible job, and second or third generation illegal aliens born in the US and living here their whole lives, but subject to deportation at anytime is contrary to any sense of justice I have.

      • Your birth certificates and your parents if they were American citizens should be relatively easy to obtain even if they were born someplace like the Canal Zone. The requirement is that one parent be an American citizen.

  7. I think the GOP needs to discard this approach immediately. There is plenty policy-wise to attack Harris on, and the media is already running interference. It is essential that she, a black Hillary who’s spent her whole life in the pursuit of power, NOT become president.

    • Agreed, but you know what? Articles will be published at a quick and frequent rate in an attempt to pigeonhole opposition arguments.

      If you can find the silliest argument of your opposition and promote that to the exclusion of others, you might be able to fool the receiver of your message that there’s nothing substantial to note from the opposition.

      Everytime this “issue” is highlighted in corporate news media, we should ask ourselves if there’s any genuine or meaningful support behind it or if it’s being “propped up”.

  8. I suspect this language was intended to limit citizenship rights of children born to foreign diplomats while on US soil or US territories:

    “All persons born or naturalized in the United States and subject to the jurisdiction thereof’ are citizens.”

    If an ambassador from a foreign nation is not subject to the laws or the jurisdiction of the US. e..g, under the principles of sovereign immunity, then their children should not/would not born on US soil or territory have US citizenship.

    jvb

    • That was indeed part of it, but that was made explicit in several places. The more sweeping explanation is in the comment I submitted earlier. A little ironic now that it was (at least in part) aimed at preventing foreign interference in US Presidential elections by state-sponsored foreign personages.

  9. Jack: “ What would you call it if the Republicans suddenly argued that we should hold a special election if President Joe Biden died?”

    I have waited for weeks to pose this and, despite several tangential opportunities, this is the best.

    The next step in the Tyler progression is what will happen if Biden is elected, but dies before he takes the oath? Can Harris take the oath if Biden was never sworn into that office?

    Even worse, what happens if Biden dies before the election. We know dead people vote Democrat, but has a dead Democrat ever been elected.

    It is not that I hope Biden will die soon, but, it does seem apparent that the Democrats hope he will die at the right time for a colorless woman to become president; they set it up this way. They wanted a black woman because Biden will be out at some point.

    -Jut

    • The hypothetical of Biden dying after being elected, but before inauguration, is covered by the Twentieth Amendment: “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President.”
      If a major party candidate were to die shortly before the election, chaos would ensue, but the Electoral College would be relied upon to make it right. Presumably, the party would specify the replacement candidate and the electors would vote their conscience while following state law. Then, the lawyers would move in … .
      Since I have occasionally been called Jack, I’ll respond to the first question, too. I would call it foolhardy and further evidence that at least some Republicans don’t want to follow the Constitution.

    • Jack, wasn’t it Horace Greeley who died before the election? I believe it did cause confusion although not as much as if he had won. But there is a precedent of sorts.

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