And So It Begins

At Newsweek law prof John Eastman questions whether Kamala Harris is eligible to be Joe Biden’s running mate on Constitutional, 14th Amendment, and legal grounds. Apparently, the issue of whether the child of non-citizen, non-permanently resident aliens is automatically granted U. S. citizenship when born in the United States has never been ruled on by the courts:

Were Harris’ parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible. Or were they instead, as seems to be the case, merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act? If the latter were indeed the case, then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers—Jamaica, in the case of her father, and India, in the case of her mother—and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.

Before you dismiss this as so much conspiracy-mongering, we are a nation of laws and the laws matter. I don’t know the answers to Mr. Eastman’s questions but I suspect a lot of people think they do.

Update

At Reason.com Eugene Volokh presents a counter-argument, citing the common law and precedent:

The 14th Amendment does have a narrow exception for people who were not “subject to the jurisdiction” of the U.S. at birth, but the Court made clear that this was a narrow exception for “children of members of the Indian tribes,” who were at the time not citizens, “children born of alien enemies in hostile occupation” and “children of diplomatic representatives of a foreign State.” Children born to noncitizens living here are certainly subject to the jurisdiction of American courts—no one thinks, for instance, that they are immune from criminal prosecutions or civil lawsuits. They are likewise “subject to the jurisdiction” of the United States for citizenship purposes.

Now, this view had not been universal. For instance, the 1797 edition of the English translation of Emer Vattel’s treatise on The Law of Nations (a book that had some influence on the Framers), did say that, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” But that was describing the European civil law rule, not the English common law rule; and in any event, the earlier editions that the Framers would have read didn’t use here the phrase “natural-born citizens,” but instead spoke of “indigenes” (borrowed directly from the French original “Les Naturels, ou Indigènes”). The Framers, when they were writing the Constitution, likely mentally linked the “natural-born citizens” phrase to the “natural-born subject” in Blackstone’s very familiar explanation of the common law, rather than to “natives, or indigenes” in Vattel’s somewhat less familiar discussion of the civil law.

Just be prepared for this argument to continue. As I’ve warned before I expect this to be particularly tough, nasty election season, waged not only on the stump and at the ballot box but in the courts as well.