The media is alight today after the publication of a piece in Newsweek by Chapman University Professor John C. Eastman that raised the question of whether Sen. Kamala Harris is a citizen and eligible to be Vice President. She is. The courts have long recognized that individuals born in the United States are citizens under the Fourteenth Amendment. In fairness to Professor Eastman and Newsweek, this has been a debate that has been raised during prior elections over candidates ranging from Chester Arthur to Barack Obama to John McCain.
Birthright citizenship has been a subject of debate from the time that the 14th Amendment was adopted. There are arguments on both sides of the currently accepted broad interpretation of the language. Many of our closest allies reject the concept of birthright citizenship.
However, the case law is strongly supports Harris. In 1898, in United States v. Wong Kim Ark, the court found that the child of Chinese immigrants was still a citizen under the 14th Amendment because he was born on U.S. territory. His parents were here legally as permanent residents. Moreover, the language of the 14th Amendment does not clearly support the exclusions raised by Eastman. It states “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.”
Most reading that language have concluded that it allows for birthright citizenship for anyone “born … in the United States.” The 14th Amendment starts and ends as a model of clarity, stating that “all persons born or naturalized in the United States” are “citizens of the United States and of the state wherein they reside.” But between those two phrases, Congress inserted the words “and subject to the jurisdiction thereof.” Those six words have perplexed scholars for 150 years. The dominant view of law professors is the line as a whole guarantees that anyone born within the United States becomes an American citizen. But some believe that the caveat means you must be here in a legal status, that if you are not a American citizen, then you are a legal resident.
I do not believe that there is a credible question of Harris’ eligibility. However, I am concerned with the attacks on Newsweek and the author from a free speech standpoint. This issue has been raised for decades and the Supreme Court cases are few and are not dispositive on all aspects of the question.
In prior coverage of candidates like McCain, there was not a demand for newspapers to denounce their own publications. Eastman is a professor who raised a commonly discussed constitutional and political issue. There is no reason to denounce him as a racist or Newsweek as an enabler of racism. Media often publish controversial theories. There were not demands for retractions when a Harvard professor said Trump was not actually impeached when he was impeached, a North Carolina professor saying the entire Trump defense team would face bar charges, or any number of the controversial theories of criminality against Trump. Instead we simply debated the issues, which actually raised interesting historical or ethical questions.
LA Times’ Michael McGough called Newsweek’s explanation “feeble” when it insisted that it was merely sharing a constitutional viewpoint and not attempting “to ignite a racist conspiracy theory around Kamala Harris’ candidacy.” Yet, this “feeble” reason has been the basis for past articles on the debate over the 14th Amendment in major publications for decades.
Rather than contest the analysis of Professor Eastman, people are attacking Newsweek for allowing his views to be heard. It is an effort to force a cringing apology like the ones following the publication of the column by Sen. Tom Cotton in the New York Times. Eastman indicated that his theory would not likely be accepted. Yet, he put forward the case for a narrow interpretation of the 14th Amendment. Even a Congressional Research Service report from 2011 acknowledged such countervailing theories before concluding,, correctly, that
“The weight of legal and historical authority indicates that the term ‘natural born’ citizen would mean a person who is entitled to U.S. citizenship ‘by birth’ or ‘at birth,’ either by being born ‘in’ the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship ‘at birth.’”