Friday, August 14, 2020

"Racist Conspiracy Theory"? Controversy Over Republican Claim that Kamala Harris is Not Eligible to Be President

I wanted to add to MHC's post on the public discussion of Senator Kamala Harris's eligibility for the presidency.  As the Associated Press concluded, Harris unquestionably is eligible to be President.

In a sad development on the political scene, Professor, and former Dean, John Eastman (Chapman) has published commentary in no less than Newsweek suggesting that Senator Harris is ineligible to be President because she is not a natural born U.S. citizen, even though it is undisputed that she was born in the United States.  It is nothing less than an embarrassing argument -- with no resemblance to what one would expect of a law professor at a national law school.   Newsweek has been harshly criticized for publishing Eastman's commentary.   

Eastman's claim about Harris is consistent with his claim (and here) that the U.S. Constitution does not automatically grant birth-right citizenship.  Eastman's birth-right citizenship argument finds extremely few supporters in legal academia.

Eastman's commentary generated many critical responses.  Conservative UCLA law professor  Eugene Volokh quickly offered the opposing argument hereOthers (and here, here, and here), including my colleague Jack Chin, have joined in.

Katie Rogers for the New York Times ("Trump Encourages Racist Conspiracy Theory About Kamala Harris") takes President Trump to task for suggesting that Eastman's half-baked theory had credence. She writes:

"In an interview .  . . , Laurence H. Tribe, a professor of constitutional law at Harvard Law School, compared Mr. Eastman’s idea to the `flat earth theory' and called it `total B.S.'

`I hadn’t wanted to comment on this because it’s such an idiotic theory,' Mr. Tribe said, `There is nothing to it.'

Mr. Tribe pointed out that the theory still quickly landed in the hands of a president who has used his pulpit to spread a number of conspiracies against his political enemies, particularly those who do not have white or European backgrounds.

During the 2016 presidential race, Mr. Trump continuously questioned the citizenship of Senator Ted Cruz of Texas, suggesting that his Canadian roots would be a problem should he win the presidency. Mr. Cruz, who was born in Canada to an American mother and a Cuban father, is a United States citizen. Mr. Eastman, for his part, wrote that year that Mr. Cruz was eligible.

But Mr. Trump was relentless about questioning Mr. Obama’s background. In 2011, he began appearing on television to question whether Mr. Obama was born in the United States — spreading the lie he has never fully apologized for."



UPDATED (AUG. 16):   Mark Kennedy for the Associated Press reports that 

"Newsweek has apologized for an op-ed that questioned Sen. Kamala Harris’ U.S. citizenship and her eligibility to be Joe Biden’s running mate, a false and racist conspiracy theory which President Donald Trump has not dismissed.

`This op-ed is being used by some as a tool to perpetuate racism and xenophobia. We apologize,' read Newsweek's editor’s note . .. . , which replaced the magazine's earlier detailed defense of the op-ed."


UPDATED (AUG. 18):  In "Scholars' Letter on Senator Kamala Harris’s Eligibility" on Balkinization, a group of leading constitutional law professors rebut the claim that Kamala Harris is not constitutionally eligible for the presidency.


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Natural Born Citizen
Definition given on the floor of Congress, Representative John Bingham, father of the Fourteenth Amendment to the Constitution.
Reference - (Cong. Globe, 39th, 1st Sess., 1291 (1866))

“I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States.”

Chief Justice Marshall’s dissent in the Venus case of 1814 had a quote from Vattel on the subject:

“The whole system of decisions applicable to this subject, rests on the law of nations as its base. It is, therefore, of some importance to enquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character, or partaking of the character of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, ‘the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights."’

The unanimous opinion in Minor v Happersett of 1875 written by Chief Justice Morrison Waite defined natural born citizen as follows:

“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

In US v Wong Kim Ark of 1898 written by Associate Justice Horace Gray, Chief Justice Fuller’s dissent had this to say:

“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that 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,...”

A contemporary Supreme Court citation of Vattel citing his expertise, his current applicability, and his credibility with the founders.
5-4 decision of the U.S. Supreme Court in Franchise Tax Board of California v. Hyatt,  __ U.S. __, 139 S. Ct. 1485 (2019).
“According to the founding era’s foremost expert on the law of nations, “[i]t does not … belong to any foreign power to take cognizance of the administration of [another] sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it.” 2 E. de Vattel, The Law of Nations § 55, p. 155 (J. Chitty ed. 1883).”

Posted by: Harold Gielow | Aug 14, 2020 1:40:51 PM

A native or natural born citizen is a child born in a country to parents who are its citizens, anyone can read this plain statement in the unanimous supreme court opinion minor v happersett.

Posted by: Leo F Derosia | Aug 16, 2020 9:20:05 PM

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