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Famous Legal Expert, John Eastman, Questions Kamala Harris’s Eligibility to Be Vice President


The fact that Senator Kamala Harris has just been named the vice presidential running mate for presumptive Democratic presidential nominee Joe Biden has some questioning her eligibility for the position. The 12th Amendment provides that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” And Article II of the Constitution specifies that “[n]o person except a natural born citizen…shall be eligible to the office of President.” Her father was (and is) a Jamaican national, her mother was from India, and neither was a naturalized U.S. citizen at the time of Harris’ birth in 1964. That, according to these commentators, makes her not a “natural born citizen”—and therefore ineligible for the office of the president and, hence, ineligible for the office of the vice president.

“Nonsense,” runs the counter-commentary. Indeed, PolitiFact rated the claim of ineligibility as “Pants on Fire” false, Snopes rated it simply “False,” and from the other side of the political spectrum, Conservative Daily News likewise rated it “False.” All three (and numerous others) simply assert that Harris is eligible because she was born in Oakland—and is therefore a natural-born citizen from location of birth. The 14th Amendment says so, they all claim, and the Supreme Court so held in the 1898 case of U.S. v. Wong Kim Ark

But those claims are erroneous, at least as the Citizenship Clause of the 14th Amendment was originally understood—an error to which even my good friend, renowned UCLA School of Law professor Eugene Volokh, has fallen prey.

The language of Article II is that one must be a natural-born citizen. The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that “all persons born…in the United States, and subject to the jurisdiction thereof, are citizens.” Those who claim that birth alone is sufficient overlook the second phrase. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.



The Supreme Court’s subsequent decision in Wong Kim Ark is not to the contrary. At issue there was a child born to Chinese immigrants who had become lawful, permanent residents in the United States—”domiciled” was the legally significant word used by the Court. But that was the extent of the Court’s holding (as opposed to broader language that was dicta, and therefore not binding). Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.

Granted, our government’s view of the Constitution’s citizenship mandate has morphed over the decades to what is now an absolute “birth on the soil no matter the circumstances” view—but that morphing does not appear to have begun until the late 1960s, after Kamala Harris’ birth in 1964. The children born on U.S. soil to guest workers from Mexico during the Roaring 1920s were not viewed as citizens, for example, when, in the wake of the Great Depression, their families were repatriated to Mexico. Nor were the children born on U.S. soil to guest workers in the bracero program of the 1950s and early 1960s deemed citizens when that program ended, and their families emigrated back to their home countries.

So before we so cavalierly accept Senator Harris’ eligibility for the office of vice president, we should ask her a few questions about the status of her parents at the time of her birth.

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