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.’”
Kamala Harris is an Anchor Baby. The courts refuse to address Anchor Baby births.
Harris’s parents were not USA citizens when she was born. India has said Kamala Harris is a lawful citizen of India.
According to original wording of what constitutes a USA citizen……Harris is not a legal citizen….. another Anchor Baby whose parents take advantage of the Communist Demoncrat politicians and Communist Demoncrat judges who rule with Ideaology instead of Law. Even faux Republican judges are ignoring law.
Every pregnant woman from just about every country cones to the USA to give birth! Why!?
The USA turns a blind eye to this….. Anchor Baby births. No other country allows this type of garbage to go on…..blatant law breaking.
I respect Mr. Turley’s law knowledge but he is a Democrat and lets his ideaology get in the way on occasion, like Anchor Babies.
Guzman writes: “I respect Mr. Turley’s law knowledge but he is a Democrat and lets his ideology get in the way on occasion, like Anchor Babies.”
Or this is further evidence Mr. Turley is reasonably independent in his thinking.
On the other side:
https://jonathanturley.org/2020/10/18/conservatives-attacked-by-blm-and-antifa-supporters-in-effort-to-hold-free-speech-rally-in-san-francisco/comment-page-1/#comment-2015332
Despite my line of questioning, I am very glad the weight of precedent is with Harris’s eligibility. All the best, Kamala.
Opinions are like ass holes, everybody got one and they all stink. Read the law of nations when Constitution was enacted. Read The 1sy Congress when they discussed this. The PARENTS must be citizens at time of birth and there is one other way and Harris didn’t qualify. Nor Rubio or Cruz.
Richard:
https://jonathanturley.org/civility-rule/
From Axios on Ted Cruz in 2016:
https://www.vox.com/explainers/2016/1/14/10772734/is-ted-cruz-citizen
“Here’s the problem: The Constitution doesn’t define “natural born Citizen.” Neither does any current law. And no one has ever brought a court case to decisively settle the question as a matter of US law….Because there’s never been a court case to explicitly test the question of who counts as a natural-born citizen for the purpose of presidential eligibility, the question is by definition “unsettled.” It hasn’t been resolved yet.”
From Wikipedia on US v Wong Kim Ark:
“Chief Justice Melville Fuller was joined by Associate Justice John Harlan in a dissent which, “for the most part, may be said to be predicated upon the recognition of the international law doctrine”…The dissenters argued that the principle of jus sanguinis (that is, the concept of a child inheriting his or her father’s citizenship by descent regardless of birthplace) had been more pervasive in U.S. legal history since independence. Based on an assessment of U.S. and Chinese treaty and naturalization law, the dissenters claimed that “the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the fourteenth amendment overrides both treaty and statute.”
“The dissenters acknowledged that other children of foreigners—including former slaves—had, over the years, acquired U.S. citizenship through birth on U.S. soil. But they still saw a difference between those people and U.S.-born individuals of Chinese ancestry, because of strong cultural traditions discouraging Chinese immigrants from assimilating into mainstream American society, Chinese laws of the time which made renouncing allegiance to the Chinese emperor a capital crime, and the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship.”
“In the dissenters’ view, excessive reliance on jus soli (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which “the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.””
Again, all the best to Kamala Harris on her historic nomination.
Conflating citizen and Natural Born Citizen is ignorance on display. What was the intent of the founders? They make clear their intent in the very first Congress. They wanted loyalty of the President to be to the United States. Born on the land to foreign parents provided no loyalty. That was discussed, and it was decided that BOTH PARENTS who were citizens at the time of birth was the best course no matter where the child was born. That makes sense. Putin and his wife having a child on the steps of the White House wouldn’t make it loyal, but according to you, the child would be eligible to be a sitting President. Lunacy fine sir. You are failing to comprehend the law and discussion at the time of enactment. Obama had the same problem and they let it slide so as not to be called racist.
Richard:
The link I provided upthread was from Vox, not Axios. My mistake.
I think you are misreading my tendency to side with the minority opinion in US v Wong Kim Ark.
Roots matter.
How many generations of US citizenship back, on both the mother’s and father’s side, should be sufficient to establish Presidential American heritage?
I for one find it astonishing that in the case of both Barack Obama and Kamala Harris, we see the Democratic party advancing historically capable candidates nevertheless deficient in multiple generations of native-born African American blood. Why are first generation African American citizens so much more qualified than African American citizens descended from the colonial and reconstruction eras?
https://en.wikipedia.org/wiki/Susan_Rice
I recognize my view is in the minority, and I appreciate the majoritarian message these nominations send to first-generation immigrants: in the USA, even first-generation immigrants can rise to the top.
I would restrict it as much as possible. Native born parents required. True Americans are more than just people who hold up their arms and swear words they may not understand at a naturalization hearing. They must be born and bred here of natives themselves or there is a qualitatively different mindset.
That is not to say that immigrants have a bad mindset nor first generations; not at all! many times their mindset is better
But we are not looking for better or worse we are just looking for: Americans
But that is not the law as it stands.,
This list is incomplete but informative:
https://en.wikipedia.org/wiki/List_of_presidential_qualifications_by_country
“The constitution of Mexico requires the candidate to be a natural-born citizen of Mexico with at least one parent who is a natural-born citizen of Mexico.”
Second generation through at least one parent. I am not sure how “natural-born” is defined in Mexican law, but there does not appear to be an indigenous Mexican American (“Chicanx”) blood requirement.
Elizabeth Warren, the leading woman in the 2019-2020 Democratic Presidential primary, found herself cornered into proving Native American ancestry:
https://www.npr.org/2018/10/15/657468655/warren-releases-dna-results-challenges-trump-over-native-american-ancestry
“In a rather unusual campaign move, Sen. Elizabeth Warren has released the results of a DNA test that says there is “strong evidence” of Native American ancestry dating back six to 10 generations, addressing a controversy that has followed her for years.”
https://blacknewschannel.com/president-donald-j-trump-interview-with-kelly-wright/
The Black News Channel (BNC) is the nation’s only culturally specific news channel that reflects the diverse views of the Black community. Host Kelly Wright interviewed President Donald J. Trump on the Kelly Wright Show. This marks President Donald J. Trump’s very first on air interview with BNC.
https://reason.com/2020/08/14/why-we-should-abolish-the-requirement-that-the-president-must-be-a-natural-born-citizen/
More wisdom from the purveyors of applied autism.
Of course there’s no discussion of any arguments in re birthright citizenship or naturalization.
For most of us, the United States is our country. For Ilya Somin, it is merely a professional venue. Let’s deport Ilya Somin.
The Volokh blog is excellent. Better than Reason magazine, which publishes it
Ilya Somin was born in the USSR. He advocates property rights and the free movement of peoples and various things like we see here, all of which fall into what is called
“Globalism”
globalism is the ideology that wants more “globalization” — “globalization, as defined by Stiglitz (2003), is the process of economic integration of countries, through the increasing flow of goods, services, capital and labour. This process is not new, but it has begun at the end of the nineteenth century with the first wave of globalization.”
so they want free movement of goods (free trade) services and labor (free migration) and capital (money & assets).
Soros and his ilk have spawned endless grant opportunities not only for BLM but for the likes of various little professors and other geeks to go out there and sow ALL the seeds of globalism.
IN short, they all attack the Westphalian order, the nation state, and sovreignty.,
Im not for globalism. Unless you are a billionaire, dear reader, then YOU should not be for it either.
It tears down every single advantage we native born Americans have. It is poison for us now and we just reject it if we intend to survive.
Kurtz, globalism is the future, or there is none. We are all enjoying it’s benefits at present.
Okay, so it settled that she is an American birth even though her parents were immigrants. Her father naturalized and since nothing similar is said about the mother one can assume that she did not. But were her parents legal immigrants? Did they get student visas, were those visas extended or transferred to a permanent residency status, etc? Her parents parents divorced when she was 7, so did her father naturalize before that time? If not and if her parents overstayed their student visas and never rectified their residency status, then doesn’t the 14th Amendment create a few questions? A lot of ‘ifs’ and ‘maybes’ there, but for someone seeking this position should we not cross all t’s and dot all i’s?
Exactly. There is a process if there is any question as to eligibility. McCain went through it and was found to be qualified, because of who his PARENTS were. Obama, Harris, Rubio and Cruz should have to go through the same process where they will not be eligible because of who their parents are and their status at the time of birth. It is not known at this time if Harris’s father or mother actually naturalized before her birth. These are legitimate questions.
It doesn’t matter, except in your imagination.
It does matter, except to morons who believe their truth over facts. Just ask Joe.
Richard,
You are absolutely correct!
I actually went to the LIBRARY OF CONGRESS and read the discussion in the first Congress. People need to educate themselves and stop listening to scholar’s that have political agendas.
12th Amendment is where you are wrong.
1. Shes not Natural Born
2. Shes also a dual citizen under Jamaican law.
II never thought I would say this, “Please stay well, Joe”
I can’t believe people are still talking about the 14th amendment. That has nothing to do with this question, which is about the “natural born citizen” requirement of Article 2. It should be modified or abolished. But lawfully, by amending the constitution, not having these silly debates.
https://strikelawyer.wordpress.com/2016/02/19/the-natural-born-citizen-fiasco/