I haven’t accepted Eastman’s opinion. I read his essay, thought “hm, that’s an interesting argument, now what’s the counterargument?”
And Eastman didn’t offer “nothing more than that”. He wrote a whole legal analysis and cited what appears to be some relevant case law. In short, he made an argument.
Tribe said:
“She is a natural born citizen and there is no question about her eligibility to run.”
And you said:
Those are claims, not arguments. Make an argument.
The only time I can see “subject to the jurisdiction thereof” being an issue is when a child is born in the US to non-citizens who have transferable diplomatic immunity, which is to say, in some cases, the immunity of diplomats is conferred on their resident children, and in some cases it is not. I’m not sure how it is decided when it does or does not, but if a child is born into diplomatic immunity, then you could legitimately say she was never subject to the jurisdiction of the US.
Nations have the power to waive diplomatic immunity for citizens abroad who have it, and have in a few cases, when the children of diplomats have committed heinous crimes-- there was a case once, where the son of an ambassador who was accused of rape. The governor of the state where the consulate was located got the nation to waive diplomatic immunity, but after the trial the sentence was carried out in the rapist’s home country, as part of the whole deal. I’m not finding the case now, but I remember reading about it-- I think it may have been New York, because I seem to remember reading about it in The Village Voice.
Anyway, that makes me wonder if a country could retroactively waive someone’s diplomatic immunity if the person wanted to claim US birthright.
Here’s what I’m waiting for, though: the test case of the foundling.
There’s a law that if a small child is found within US borders, who, after reasonable efforts to determine its origins are exhausted, and its parents still cannot be found, so that there is no way to know where the child was born, is determined by a physician to be under the age of 5, then the child is presumed to have been born here. This is for purposes of receiving services, becoming eligible for adoption, etc.
As far as I know, no one whose citizenship came under such circumstances has ever run for a high office, but since the presidency is the only one that requires natural-born citizenship, I suppose a foundling could always undergo naturalization if the constituency was unhappy.
I’m not saying that I agree with that argument- but it wouldn’t apply to children of diplomats and US service members stationed abroad in any place that wasn’t a unincorporated US territory. Because other places that are outside the limits of the US are also outside its jurisdiction.
It’s a shit argument. It ignores legal precedent and history.
The constitution didn’t need to say more than that because the concept wasn’t new and wasn’t in dispute.
So no, it’s incorrect to say that Mr. Eastman doesn’t “question long-established matters of historical fact”; he clearly does.
How do you figure? I think we agree that a military base is not “in the United States” for the purpose of the 14th Amendment. See, e.g., Thomas v. Lynch (2015) (no birthright citizenship for birth on military base in Germany). But a military base abroad seems certainly “subject to the jurisdiction” of the United States (usually as a function of a treaty). And the reason that the child of a diplomat in the United States can’t get birthright citizenship is the recognition that the diplomat (and his child) remains subject to the jurisdiction of his home country (sort of a human enclave of jurisdiction). Certainly all of the cases on birthright citizenship for military bases seems to recognize that such bases as within the “jurisdiction” while not being “in” the United States. Am I missing something?
Edit: For example, from Bounmedine v. Bush: “Guantanamo Bay is not formally part of the United States. And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” (emphasis added). Thus Guantanamo Bay is not “in” the United States, but is within its jurisdiction. Right?
Which is why Congress corrected the confusing part in view of the court decisions. The law and the courts’ understanding needed to be squared away in view of what happened now that the US was a World Power, had “unincorporated territories, belonging to but not a part of the US” (that last “but” a court ruling creation itself), and was occupying countries for extended periods of time (Haiti, etc,) and also could be expected to have large numbers of people deployed abroad full-time.
My entirely cynical opinion is that someone at some point forgot that there are legitimate circumstances for a foreign-deployed Amerian to have a child abroad.
Oh, and born in a US military base abroad is the same thing as born in a civilian hospital abroad, unless the treaty specifies otherwise. The military base is rented real estate, not sovereign land.
[quote=“JRDelirious, post:26, topic:918307”]
My entirely cynical opinion is that someone at some point forgot that there are legitimate circumstances for a foreign-deployed Amerian to have a child abroad. [/quote]
I might agree with this, if I could be convinced that this “loophole” doesn’t extend to diplomats and soldiers abroad. Because those were every real concepts at the time of the founding. And your premise, I think, is that in 1790, citizenship extended to child of citizens born outside “the limits of the United States” and in 1795 it was changed to “limits and jurisdiction of the United States” and the purpose (or effect) of this was to remove citizenship from children of those diplomats. And there does not appear to be any historical reasons why that would be true. And it seems like an extraordinary claim.
Oh, and born in a US military base abroad is the same thing as born in a civilian hospital abroad, unless the treaty specifies otherwise. The military base is rented real estate, not sovereign land.
Right. Not sovereign land (and thus not “in” the United States for 14th Amendment purposes), but land over which the United States exercises joint (or complete) jurisdiction. Thus falling within your “loophole”, I think. Which is why I don’t buy it.
(Relatedly, the law granting citizenship to all persons born the the Canal Zone doesn’t change my interpretation for the law for children of U.S. citizens, since it’s plainly intended to reach other residents of the area. I would intrigued to learn, as was suggested, that children of U.S. citizens had been deported under the “loophole” theory. I really cannot imagine anyone seriously advancing this argument under those circumstances).
Edit: I made a mess of quoting you and I don’t know how to fix it. Sorry.
Not my premise. That of the cases that led Congress to clarify that that was not what they meant. To me it would have been clear that all along (a) John McCain was born an American and (b) being born an American is what “natural born” means. But there were people arguing the contrary so that had to be addressed.
What cases? I’d like to read them. Every reference I can find relates to the 14th Amendment concept that there is a dual requirement for 14th Amendment citizenship: birth “in the United States” and “subject to the jurisdiction” and recognizing that there are areas (unincorporated territories, military bases, etc.) that are not “in” the United States, even though they are subject to its jurisdiction. But I haven’t seen anything that interprets the Naturalization Act of 1795 to draw the suggested distinction with respect to the citizenship of children of U.S. citizens.
Put differently: it is clearly the case that children of non-citizens born in certain areas (like unincorporated territories and military bases) would not be U.S. citizens at birth by operation of the 14th Amendment. And there are perfectly good policy reasons to extend birth citizenship to those people. And I’ve seen cases saying the former, and I know the law has been changed to accommodate some of them. But I haven’t seen anything that suggests that the 1795 Act has the effect suggested. (And it should have come up between 1795 and 2008. For example, I can find a 1999 9th Circuit case about the Philippines (Friend v. Reno) that hinges on the paternal residency requirement and clearly accepts the premise that birth in the Philippines in 1931 (outside the “limits” but within the “jurisdiction” of the United States) would work, but holds that residence in the Philippines cannot meet the requirement of residency “in” the United States). Mr. Friend would have fallen within this “loophole,” but no one suggests that.
(There is the notion that a “natural born” citizen must be a citizen by constitution – i.e., born in the United States – and not by statute. Which I also find odd since it took almost 100 years to adopt a constitutional “definition” of citizenship. “Citizen at birth by law” seems like the best definition of “natural born”, especially in light of the 1790 Act).
The OP seems to consider the individual he’s quoting as the sole legal expert on this issue. Said source using the term “partial jurisdiction” as the basis for his stance shows that the quoted source is playing very loose with the facts.
It is rather obvious what is behind that source’s stance. It’s also rather obvious what was behind the previous birther nonsense touted by a certain politiian now holding office. Turns out to be the same obvious thing.
Why would you say this? If I felt that way, I wouldn’t have ended my OP with this paragraph:
Heck, if I felt that way, I wouldn’t have even started this discussion.
Then why didn’t you read the very first response here that contained a legal justification from an eminent lawyer? That case has also been cited by others. Like you yourself.
You had your answer immediately. Never mind accepting it; why aren’t you even acknowledging it?
I am reading Eastman’s essay and I honestly cannot understand his point, in light of case law and the available evidence.
His argument hinges on the notion that Harris was not subject to the “complete jurisdiction” of US law when she was born… and yet
The matter of what constitutes “subject to the jurisdiction of” is settled in case law. There is no ambiguity at all as to what that means; it excludes people under a flag of diplomacy and enemy aliens.
Eastman lies about that, too, saying
But this is absolutely false. That is not the government’s view; it still holds that children born to diplomats (or enemy aliens, not that that happens) aren’t birthright citizens.
I don’t understand why Eastman is twisting the truth this much when
Oh, there it is.
I think this overstates it somewhat. We know (from Wong) that children born of aliens who are lawful permanent residents get birth-right citizenship under the 14th Amendment. We also know that children of diplomats do not. We assume (based on historical practice) that children of enemy aliens do not get it (but I don’t believe this has ever come up).
Wong phases the question that it purports to answer very narrowly. There is a whole host of aliens who fall outside the question presented and while I think that the reasoning of Wong would result in a favorable outcome for most of them, I don’t think it’s been “settled” in any sort of binding precedent (I’m not an expert in this area, but the fact that we keep pointing to Wong suggests that there’s nothing more recent or clearer). Edit: Although, the practice of the US Government in treating these people as citizens would likely be afforded some weight; but not usually as a matter of constitutional interpretation.
Is there a legal equivalent of pseudoscience? Pseudolaw?
Whatever the term might be, Eastman’s article is an example of it. There is no real legal value to what he wrote. He just made some stuff up and used words that made it sound legitimate. It’s the legal equivalent of homeopathy.
Its purpose is to give racists support in their belief that only white people are Real Americans and that everyone who isn’t white doesn’t really belong here. There were no claims that people like John McCain, Ted Cruz, Mitt Romney, Barry Goldwater, or Donald Trump aren’t natural born citizens. These arguments are only made about people like Barack Obama and Kamala Harris and Alexandria Ocasio-Cortez.
Newsweek should be apologizing for publishing this racist nonsense.
Not that it really matters. But (in what has wasted far too much of my time today), Eastman appears to have been arguing that Wong does not apply to children of parents on temporary visas since, at least, 2005. (His testimony to the House from September 2005 argues that Wong is wrong… I guess he’s moderated some in the ensuing years). (That link is to an obviously biased site, but it was the first free pdf copy I found).
His opinion may be political, it may even be racist, but it predates his loss to Harris.
Relatedly, his testify relies heavily on the notion of “complete” jurisdiction from Elk v. Wilkins (1884) which (in a case regarding an American Indian) stated that the term “subject to the jurisdiction” in the 14th Amendment meant “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance”. The Court goes on to say:
“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”
Which seems pretty consistent with Wong… why spell out children of “ambassadors” if you really mean “children of all non-resident aliens”
I am no Constitutional lawyer, but even with everything Eastman wrote, I don’t see how the fact that Harris was born in the USA doesn’t automatically trump everything (no pun intended,) period. That should be the be-all and end-all of the whole debate.
Born on USA soil? Game over.
Who cares what her parents could have done or not done? The clause says nothing about parents.
The “all persons” there applies to Harris herself. So does the “subject to the jurisdiction thereof” part. There’s nothing in there about parents. Natural born citizen includes people born abroad to citizen parents, but that’s not what’s being discussed. I don’t know exactly what the subject to jurisdiction phrase was meant to apply to, but I’m confident it has nothing to do with parents’ temporary legal presence.
My off-the-cuff guess would be, because it’s talking about persons who may now be adults themselves, it may mean people who are outside of the US who have renounced citizenship.
They did, sorta, when their own staff revolted.
“This op-ed is being used by some as a tool to perpetuate racism and xenophobia. We apologize,” read Newsweek’s editor’s note on Friday, which replaced the magazine’s earlier detailed defense of the op-ed.
“We entirely failed to anticipate the ways in which the essay would be interpreted, distorted and weaponized,” read the apology, signed by Josh Hammer, opinion editor, and Nancy Cooper, global editor-in-chief. …
Some Newsweek staff had publicly slammed the decision to run the oped. Christina Zhao, a New York news editor, tweeted: “This is an inflammatory and racist op-ed that should never have been published. That is my opinion.”
From United States v. Wong Kim Ark (an 1898 Supreme Court decision)