John Eastman’s essay in Newsweek last week about Kamala Harris’ citizenship status has sparked a lot of angry voices, but ISTM that it shouldn’t have done so. If you haven’t read it, it’s worth reading, just so you can have a fully informed opinion about it. It doesn’t talk about conspiracies, or hypothesize about forged documents, or question long-established matters of historical fact. Instead, it raises a legal question about how the Constitution ought to be interpreted, what the existing legal precedents are for interpreting it, and whether the Supreme Court has ever rendered a judgment that’s relevant to the specific circumstances of Harris’ birth.
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.
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.
The common understanding is that if you’re born on US soil, that’s enough: you’re a natural-born citizen. Eastman’s query centers on that other requirement that few people mention, “…and subject to the jurisdiction thereof.” Rather than rehashing his entire essay, I’d suggest you just read what he’s written about the matter.
AIUI, in the past lower courts have ruled both ways on the matter: there have been cases in which courts said birth on US soil was sufficient to confer citizenship, and other cases in which they said it was insufficient. And apparently the only time the Supreme Court has addressed the question was a case in which the parents were lawful permanent residents, a status Harris’ parents may not have had when she was born.
As mentioned above, I’m no lawyer. So I’m curious for lawyers’ opinions on this. Is birthright US citizenship an absolutely settled matter of law (with birth on US soil, by itself, being sufficient to qualify), or could someone conceivably bring a case to the Supreme Court about this?
The theory regained a veil of legitimacy following an opinion piece published by Newsweek in which law professor John C. Eastman — who wrote a January 2016 opinion piece for National Review about how Ted Cruz was eligible to serve as president despite not being born in the United States — argued that Kamala Harris may not be eligible to serve as president despite being born in the United States. Eastman proffered an arcane constitutional argument that Harris may not have been a citizen at birth because while she may have been “born … in the United States,” she was not necessarily entirely “subject to the jurisdiction thereof,” a portion of the 14th Amendment’s citizenship clause that has been overlooked, he argued.
The claim has no more legitimacy now than it did when Wohl proffered it, for many of the same reasons regarding the common law interpretation of “natural born citizen” present in our original article. As UCLA law professor Eugene Volokh wrote in response to Eastman’s piece:
“It’s possible that ‘natural-born citizen’ has since been broadened to include children of U.S. citizens born overseas …. but it hasn’t been narrowed, and in U.S. v. Wong Kim Ark (1898), the Court interpreted the 14th Amendment as reaffirming that people born in the U.S. are indeed natural-born citizens, regardless of their parents’ citizenship.”
{bolding mine} Quoted from Snopes, as you can see, including one lawyer’s thoughts. Other legal opinions are available with a quick google search.
The basic fact is that Kamala Harris was born in the US, and is therefore a citizen from birth - as much as John McCain (born in Panama), Marco Rubio, and Bobby Jindal (born in the US from non-US citizen parents).
Fun fact: At the time of John McCain’s birth, due to a loophole in the law, he was not a US citizen. That loophole has since been closed, and McCain (and all others in similar situations) were retroactively granted citizenship.
Funny thing about that: At the time of his run for the Presidency, everyone was in fact talking about whether one of the candidates was eligible. I wonder which one?
I’m not sure. Apparently “anchor baby” doesn’t mean what people think it means. I am personally acquainted with an undocumented immigrant who has given birth to children on US soil. She is currently the subject of deportation proceedings; AIUI, her children would be allowed to remain in the US if a suitable guardian were found, but the mere fact that she has had children here in the US is not enough to justify her continued presence here.
He may be a lawyer, but that article doesn’t address Eastman’s specific point. That article says:
CLAIM: If Joe Biden picks Kamala Harris as his running mate she will not be eligible to serve as president because her mother is from India and her father is from Jamaica.
That’s not Eastman’s issue. He is not concerned with the mere fact that her parents were immigrants; his issue is the question of whether her parents were lawful permanent residents/citizens at the time of or birth, or whether they were here on temporary visas - and whether their status as such affects her citizenship.
And again, his “issue” doesn’t matter. If you read his editorial closely enough, you’ll even see where he seems to acknowledge this. IIRC, his “controversy” seems to be a question as to whether or not the case law supported her citizenship at the time of her birth. I would retrieve the original article but Newsweek’s website is so spammy with ads and pop-ups I’d rather not waste my time there.
Where in the US Constitution is there any mention of things like lawful residents or visas? You can’t constitutionally invalidate someone’s eligibility to be president for conditions that weren’t even concepts at the time of its writing or addressed in any amendments.
What do you find difficult to parse about the phrase "and subject to the jurisdiction thereof”? You really don’t know whose jurisdiction they lived under in the United States? Only by doing contortions is there anything hard about that.
It doesn’t. Eastman’s point is not “Harris is definitely not a citizen”. His point is that her citizenship status may not be as ironclad as most folks seem to think.
Have you read Eastman’s essay? Here’s a relevant passage, in which he cites case law that addresses “and subject to the jurisdiction thereof”:
The language of Article II is that one must be a natural-born citizen . The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that “all persons born…in the United States, and subject to the jurisdiction thereof , are citizens.” Those who claim that birth alone is sufficient overlook the second phrase. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins ; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.
I was hoping for a legal opinion that had more legal justification behind it than “because I said so”
It’s difficult to say that any question of legal interpretation is “false” or “absolutely settled” since it can always be revisited, but it’s pretty much absolutely settled.
The 1898 case of Wong Kim Ark concluded that a child of aliens lawfully permanently present in the United States was a U.S. citizen at birth (A “child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.”).
There is a (largely unsuccessful) line of thought that focuses on the lawful residence of Wong’s parents to concluded that this does not extend to unlawfully present aliens, but I don’t believe that is implicated in Harris’ case.
Eastman’s argument is a variation on this (and, perhaps not directly controlled by Wong) which is that Harris’ parents (and,I think it would need to be both) may not have been permanent residents at the time of her birth (no “permanent domicil and residence”).
I think it is unlikely that any court would draw that line; the old cases about “temporary allegiance” that Wong relies on would seem to support the view that a child of a temporary lawfully resident alien would be a natural-born citizen.
(There is a more interesting theory that “natural born citizen” in Article II and the idea of citizen by birth in the 14th Amendment are not synonymous and that there may exist three “categories” of citizen. But that’s not Eastman’s argument, he’s arguing that a child both of non-permanent resident aliens is not a US citizen at all).
How do you figure? A child born overseas to two U.S. citizen parents (subject to certain pre-birth residency requirements) has been viewed as a natural born citizen since 1790.
For these purposes, IIRC at the time the 14th was passed(*), yes.
Someone present in the US under a visa is subject to the jurisdiction of the United States unless the law provides otherwise for that visa, not the other way around.
(*) At the time, members of Indian Nations were also excluded from birthright citizenship – that lasted until 1924!
The law has not continuously said that at all times since 1790. Heck, the 1790 version of the law was the only one using the words “natural born” at all, and it only lasted 2 years before that was edited.
McCain fell into a void created by later laws and by the fact that some of the bases where forces were stationes in Panama were NOT inside the “US Territory” Canal Zone. As is too often the case, nobody had tried to dig up all likely permutations of circumstances. The grey zone was fixed as the number of children of Americans born under those circumstances crept up.
That is very much so. Back when, it was understood that children of cross-border migrant workes who were born in the US side of the border would go where their parents went and in due time make their own decision whether to use their birth citizenship to immigrate permanently into the USA, and that was not seen as some sort of existential threat.
Why would you need more than that? You seem to have accepted Eastman’s opinion with nothing more than that. And when shown contrary opinions, you handwave them away.
I would like a citation for the proposition that a child born abroad to two U.S. citizens (who had previously resided in the United States) has ever been anything but a U.S. citizen at birth.
John McCain was born in 1936.
The Act of May 24, 1934 amended the law to say:
“Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of Residence shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of pf child, when one the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.”
Seems to qualify. Prior to the 1934 Act, the law appeared to be roughly the same as the 1790 act: you were a citizen, unless your father had never been a resident of the US. Come 1952, we start caring about how long your citizen parent was present in the United States (this is why the Obama situation gets mildly interesting, if the facts were different).
So, I again say: on what basis do we suggest that John McCain–born overseas to two U.S. citizen parents, both of whom had been legally resident and physically present in the United States prior to his birth–fell into some sort of “void”?
There was an issue because there were court decisions that said unincorporated territories (like the Canal Zone) were not part of the US for constitutional purposes and the law at the time McCain was born said that those born to a US Citizen parent outside “the limits and jurisdiction” of the US were citizens. But strictly speaking, that law didn’t cover people born in the Canal Zone- which was outside the limits of the US but within its jurisdiction. A law was passed that retroactively granted citizenship to those born in the Zone after 1904 ( some of whom had been deported) but that law was passed after McCain’s birth. The people suggesting McCain’s birth falls into a void see that law as fixing a problem, while others see it as clarifying what Congress had always intended.
Really? That’s even less persuasive than Eastman’s argument. If true, then we would have denied citizenship to children of all U.S. diplomats and soldiers stationed abroad. What a bizarre concept: the children of a non-resident U.S. citizen is a U.S. citizen, unless the parent is abroad in the service of the United States, in which case the kid is an alien (and quite possibly the citizen of no country at all… since children of diplomats have historically been ineligible for birthright citizenship). I assume there is a significant amount of legislative history demonstrating that Congress intended to do such a thing.