If she is a naturalized citizen, that would leave an unmistakable paper trail, which is not in evidence. Since she is a citizen now, and has not been naturalized, she must have been a citizen since birth.
If you’ll read my whole post you see I use the argument that i) She is a citizen because she is a Senator. ii) She is not a naturalized citizen because obviously if one wishes to argue that, they should be able to point to the documentation. iii) Therefore, her citizenship must be by the only over process of citizen by birth.
As far as I know there has been no definitive legal precedent that citizen by birth is anything other than the meaning of natural born citizen.
If Kamala Harris is not an American citizen, then what is she a citizen of?
She cannot be an Indian citizen, because at the time she was born Indian citizenship could only be conferred to persons born abroad through their father.
She is not a Jamaican citizen, because, although she is eligible, she must apply for citizenship and there is no evidence that she has done so.
As Slate puts it, Eastman is essentially arguing that she (and most other Americans born of non-citizen immigrants) are some class of stateless untermenschen who are subject to US law but not protected by it, and I can’t help but think that that’s the quiet part he doesn’t want to say out loud.
It’s a fair cop. I’ve gotten irritated at people asking questions in GQ that they could have answered for themselves with a quick Google query, and here I kind of fell into the same pattern. Shoot, Eastman’s essay had a link to Volokh’s opposing viewpoint right at the top. My bad. In the future, I will indeed try to dig a bit more on my own before posting here.
I just scrolled through this thread, reviewing all of my responses. I can’t see where I’ve argued against the answers others provided, except to point out specific cases where they haven’t really refuted the details of Eastman’s claim. Can you highlight where you feel I’ve done so?
It’s entirely possible I’m an idiot. While Eastman’s essay certainly works in Trump’s favor, and Trump has happily passed it along without condemning it, I would not have guessed that the essay itself was orchestrated by Trump’s campaign. However, even if it was, that shouldn’t matter.
I’m not an old man yet, but I’ve already stopped being amazed at the stupid decisions that are sometimes made by people of prominence. See for example groupthink. Not saying that’s the case here - I agree that the Democratic party probably did their homework. But it doesn’t mean they’re infallible.
For the record, I will be voting for Biden/Harris in November. I don’t believe Harris is “trying to pull a fast one”; I have no doubt that she genuinely believes she’s a US citizen, and I believe she is, too. My question was whether someone could conceivably challenge her eligibility by bringing a case to the Supreme Court and arguing the same points Eastman made.
As for your second sentence, I can only presume you are using “they” as an ungendered singular pronoun in reference to me. While there are plenty of racist assholes out there making hay from Eastman’s essay, I’m not one of them; Harris could have been as pasty-white as Johnny Winter, and I still would have asked my question. Moreover, your use of “once again” implies some kind of pattern of racist posts on my part - and so I have to ask what the hell you’re talking about.
I agree that Harris and those kids would be in the same category - people born on US soil to parents who were not green-carded at the time of birth. To challenge Harris’ citizenship status would be to challenge the citizenship status of millions of people. But that fact does not mean Eastman is wrong; “this is how we’ve always done things” has never been a very persuasive argument in Supreme Court cases.
Never, ever forget these words:
It’s interesting that the problem of people being subject to the laws but not protected by them is solved or avoided by precisely the method the courts have already chosen: interpreting “jurisdiction” to mean exactly what it usually means in various fields of law, subject to authority.
It’s the proponents of racism-tinged schemes of limited citizenship who come up with crabbed or arcane interpretations of “jurisdiction” in the 14th Amendment. My “favorite” is that a Congress with a majority of lawyers and ex-judges, who had just come through a civil war and had object lessons in the concepts of loyalty and allegiance, actually meant that (essentially, willingness) when they drafted and voted on the 14th but for some unfathomable reason shied away from using those words in the 14th and instead used a pre-existing legal term with its own long legal gloss very different from loyalty or allegiance.
Eastman’s approach IMHO is not to openly adopt this absurd interpretation but to leave room for it by shrugging his shoulders and implying that there are ambiguities or uncertainties in the term “jurisdiction” when in fact there aren’t. Jurisdiction can have different particular meanings in different fields of law, but it always has the core or essence that a person is subject to authority, whether or not he/she wants to be. A party arguing jurisdiction is invariably arguing that another party who’d prefer not to be subject to particular authority is nonetheless subject.
If these people had their way, though, they’d find out quickly that the group of people in question --persons born in the U.S. of non-citizen immigrants – isn’t just the black and brown people they picture in their minds but people in their in-group and possibly even themselves. 
I’m a born citizen and both my parents immigrated. While at least one of my parents has a naturalization certificate, I imagine there are millions of Americans of all kinds who, if these yahoos succeeded and we no longer had citizenship by birth on U.S. soil, would not be able to prove their parents’ (or grandparents’ or whichever generation immigrated) bona fides. I refuse to join the Leopards Eating Faces Party or adopt their approach to citizenship because, unlike their supporters, I wouldn’t be surprised that they’ll eventually want to eat my face too.
Now, that’s a valid question, given the makeup of SCOTUS.
I don’t think so, obviously the Democratically nominated justices would rule for her being eligible, and at least Roberts, if not pretty much everyone else would as well.
But, it’s a long time till swearing in, and if McConnell gets another couple seats on SCOTUS, that may change.
Yeah, imagine the convoluted logic they would have to use to find a way to say that immigrant parents from the “good” countries actually didn’t have to have green cards for their kids born here to be citizens.
If SCOTUS ruled Harris ineligible after she was elected, would that make Pence Biden’s VP? Or would the seat be vacant and filled the same way Agnew’s was?
I’m not sure it matters. But a quick look at Google Scholar indicates that Eastman has been making the same argument (that Wong was incorrectly decided) for the last 15 years–he appears to have been prolific on the subject between 2005 and 2007. I agree that his sloppy assumption of facts weakens the argument, but I think he’s using Harris as a vehicle to try to get some attention. She’s convenient because she’s (maybe) close enough and it will get him published more widely – even if only to criticize him (we’re not going to have a 100 post SDMB thread entitled: Obscure legal academic thinks old precedent was wrongly decided).
(Eastman’s end goal is pretty clear and has nothing to do with this election: he does not believe that the children of unlawfully present aliens should fall within the birthright provision of the 14th Amendment. Wong doesn’t necessarily demand that outcome, but it certainly suggests that they do. Is that racist? Plenty of people on here are going to say yes, but it’s a different issue than voting for Harris (or not)).
Too late to edit, but: Eastman may well be being used by people doing what you’re saying. And I don’t know that that speaks particularly well of him. But my point is only that he clearly didn’t make up this theory to go after Harris.
You don’t think he chose Harris, and writing a piece for Newsweek, as opposed to a law review article, because he wants to help prevent (Biden and) Harris from being elected? Because I feel pretty confident about the answer to that. I wasn’t saying he must have made it up on the spot. (It doesn’t matter when he thought it up, in my view.). I was saying that the motivation behind this article, which is clearly meant to harm Harris, was to give people who feel icky about voting for Harris a “reason” to hang onto.
Pence’s term has a fixed end. He can’t remain Vice President past the end of it unless he is re-elected.
If Harris is elected and then ruled ineligible, it would create a vacancy in the office of Vice President which would be filled under the procedure in the 25th Amendment. If Congress refused to confirm Biden’s nominee, the position would remain vacant and the Speaker of the House would be the next in line of succession.
If Harris was ruled ineligible before the election, Biden would name a new running mate. This happened in 1972. Vice Presidential candidate Thomas Eagleton wasn’t declared ineligible but he withdrew his candidacy and Sargent Shriver was named as his replacement.
If Harris was declared ineligible and Biden, for some reason, decided not to name a replacement VP then on election day people would have a choice of voting Biden/nobody or Trump/Pence. Biden could end up getting the most votes for President and Pence could end up getting the most votes for Vice President. Pence would not have received a majority of the votes, which would send the selection of Vice President to the Senate. The Senate would choose from the two people who got the most votes, which would be Pence and some third party candidate, probably Spike Cohen. I’m guessing they would pick Pence (unless they really like waffles).
It is also theoretically possible for people to vote separately for Presidential and Vice President . The states generally issue ballots with the two candidates named together and you vote for them as a pair. But people could write in Biden as their choice for President and then write in Pence as their choice for Vice President.
I don’t know. I certainly don’t know anything about Eastman specifically (there’s that lawyer that pops up periodically–her name escapes me–who sued Obama a bunch of times on eligibility issues and, I think, also Cruz and Rubio. She does not strike me a someone pushing some nuanced obscure legal theory). I’m sure he doesn’t want Biden elected (he appears to be a Republican).
But my default assumption is similar to my default assumption regarding the law professor who pushed the McCain citizenship theory that we spent time yesterday talking about – I’m sure he favored Obama and I’m willing to believe that he thought his theory would help Obama; but I also strongly suspect that he was mostly using the opportunity to push some obscure view on the “true” effect of the 1795 Nationality Act and looking for attention. And, my experience with legal academics is that they tend to focus on legal theories that have little practical relevance and seem to love opportunities to push those into the public sphere (often misrepresenting what they think the law should be as what the law is).
Maybe I’m not sufficiently cynical. In any event, it doesn’t make the legal theory more or less persuasive to me, so it doesn’t really matter.
Yeah, I still remember the look on my mother’s face when she was spouting the “you should have to have four grandparents born in the US to vote” nonsense - after I reminded her that meant she couldn’t vote, I couldn’t vote, my kids couldn’t vote and my grandchildren wouldn’t be able to vote. Somehow, she had forgotten that there were a lot of immigrants in the family.
That’s not my experience with law professors, generally.
Too late to ETA: There is a peculiar conceit about constitutional law arguments, where everyone has to frame their theories as being about what the Constitution has meant all along. You can’t (successfully) argue that the Supreme Court should change its mind about whether some people are citizens or not. You have to argue that what the Constitution really says is X, and the case that says Y is mistaken. That doesn’t amount to a disingenuous argument in legal circles, unless the person tries to hide or not acknowledge the Y precedent.
What was it John Roberts said? Your average law review article is something like the Effect of Emmanuel Kant on Evidence Law in 18th Century Lithuania. (That’s not quite right).
I don’t want to be overly dismissive – a lot of good law (and some bad) has been made thanks to academics pushing legal arguments that are, by the standards applied here, “false” or “baseless.”
There is a right way and a wrong way to frame those arguments though. Eastman is being disingenuous. There are ways to do it that are not. And one needs to be particularly careful when presenting a theory like this one to lay people, to not create the impression that this is already the law. Eastman did not do that, either.