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

Kamala Harris is not eligible for office of POTUS or VPOTUS

Kamala Harris got away with fraudulently gaining office, thus disenfranchising all those REAL natural born citizens of the USA.

Kamala Harris would have made false oath when she signed Presidential Major Party Candidate Declaration for Nomination and
Oath of Candidacy.

Take time to read all of this article and go to the links to get confirmation for yourself.

It's irrefutable.

Read for your self, about how and why only a natural born citizen could be eligible for office.

Obama is also not a natural born citizen, regardless of where he was born.

Biden's a front for the Dems, in my opinion Kamala Harris is who they are really pushing toward the presidency.

Her eligibility must be challenged asap, and the only way to have "standing" in SCOTUS, is to have a massive class-action by true US natural born citizens, because if she gets away with it, like Obama did, it leaves those who ARE real natural born citizens without any significant standing that is representative of their inherited sovereignty.

That is, a natural born citizen child born to US citizen parents would be no different to an anchor baby from the pits of Mexico.

The inherited sovereignty of the children of "we the people" US citizen parents would be worthless and count for nothing.

Liken this to, say, a native North American Indian, their children inherit membership in the tribe from their parents who are members of the tribe.

They are natural born members of the tribe.

It's that simple.

Kamala Harris has virtually claimed to be a US constitutional "natural born citizen".

But she can't prove it, because it's not true.

Burden of proof rests with the claimant.

The main point regarding eligibility for office of POTUS and vice POTUS ...

The precedent was set by the framers, when they identified "natural born citizen" in Article II of the Constitution , then LATER, in the 14th Amendment, declined to use that same terminology to identify a 14th Amendment citizen.

Kamala Harris is not constitutionally eligible for office of POTUS.

She is a fake, and not a natural born citizen, yet she was born a citizen.

If it were true that being born in the USA is all that is required for one to be a NBC, then the 14th Amendment would say "natural born citizen", but it doesn't.

The framers of the US constitution deliberately made the distinction between citizen and natural born citizen, by requiring presidential eligibility to be NBC and requiring eligibility for citizen to be born in US, so NBC is not the same as a born citizen.

The framers were careful to require the highest possible allegiance for one to be commander in chief, i.e. not influenced by foreign connections.

The highest possible allegiance is a born citizen per 14th Amendment, AND BOTH parents US citizens.

The framers would settle for nothing less, and it makes perfect sense that the 14th Amendment intentionally makes no mention of "natural born".

Article II of the constitution (presidential eligibility) was enumerated in the original document, and thus the concept of NBC existed BEFORE the born citizenship clause of the 14th Amendment.

Had the authors of the 14th Amendment intended a born citizen to mean a natural born citizen, it is without any doubt they would have clearly stated this in the 14th Amendment, by using established terminology, but they didn't for very wise and good reasons of national security.

The precedent was set by the framers, when they identified NBC, then LATER, in the 14th Amendment, declined to use that same terminology to identify a 14th Amendment citizen.

It was no accident.

It would be incomprehensible to entertain the notion that the framers were not careful and not deliberate in their choice of terms.

Vattel's Law of Nations was relied on by the founding fathers.


"§ 212. Citizens and natives.
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 natural-born citizens, are those born in the country, of parents who are citizens.

As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it.

The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent.

We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born.

I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."

Benjamin Franklin:
"I am much obliged by the kind present you have made us of your edition of Vattel.

It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations.

Accordingly, that copy which I kept, (after depositing one in our own public library here, and sending the other to the college of Massachusetts Bay, as you directed3) has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author. Your manuscript Idee sur le gouvernment et la royauté, is also well relished, and may, in time, have its effect.4 I thank you, likewise, for the other smaller pieces, which accompanied Vattel. Le court exposé ce qui s’est passe entre la cour Br. et les colonies, &c. being a very concise and clear statement of facts, will be reprinted here,.......",completely%20free%20of%20foreign%20influences

Posted by: Michael Norris | Aug 2, 2022 5:10:50 PM

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