Questions about Kamala Harris’ eligibility for the vice presidency are being called “Birtherism 2.0”

Questions about Kamala Harris’ eligibility for the vice presidency are being called “Birtherism 2.0”
Source: The Washington Post/Getty Images

On Tuesday, August 11, former Vice President Joe Biden made history in selecting Senator Kamala Harris to be his running mate. When Biden officially accepts the Democratic Party’s nomination for president on Thursday, Harris will become the first Black and Asian American woman on a major party’s presidential ticket, representing yet another first in a career already full of them.

But within 24 hours of Biden’s announcement, Harris’ achievement was being assailed, with some conservatives questioning if she was even eligible to be vice president. The framing of their doubts – based on Harris’ parents not being citizens of the United States – echo those faced by former President Barack Obama, whose citizenship was questioned repeatedly by current President Donald Trump.

Newsweek questions Kamala Harris’ eligibility

The day after Harris was announced as Biden’s running mate, Newsweek published an op-ed from Chapman University law professor John C. Eastman entitled, “Some Questions for Kamala Harris About Eligibility.” The piece argued there were legal reasons why Harris, whose father is Jamaican and whose mother was Indian, did not meet the citizenship requirement for being vice 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,” Eastman states, laying out the rationale behind this argument, “That … 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.”

Eastman’s argument is centered on the language in Article II and the 12th Amendment to the US Constitution. The former states that only a “natural born citizen” can be president and the latter establishes that only a person who meets the presidential requirements can be vice president.

The Constitution does not define what it means to be a US citizen, Eastman acknowledges, but he focuses on the 14th Amendment’s assertion that all people born “in the United States, and subject to the jurisdiction thereof, are citizens.”

Harris was born in Oakland, California, but, because neither one of her parents were citizens at the time, Eastman contends she was not fully subject to the nation’s jurisdiction as the framers of the 14th Amendment meant it. “[They] meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States.”

Eastman concludes his article by stating that Harris’ potential “divided allegiance” must be taken seriously in light of “persistent threats from Russia, China and others to our sovereignty and electoral process.”

Though election threats from China and Russia have been reported, there does not appear to be any credible intelligence that India or Jamaica have ever sought or are currently seeking to interfere in the US’ electoral process.

A backlash and an apology

Criticism of Eastman’s article was swift, with many calling it “racist” and others labeling it “birtherism.” The question of Harris’ eligibility, critics said, was based merely on her being a woman of color, not on any legitimate legal question.

Birthright citizenship – a legal standard that grants citizenship to anyone born in the US – has long been the accepted interpretation of the 14th Amendment. Trump has said he opposes that standard.

Others pointed out that Eastman had run to challenge Harris for attorney general of California in 2010 but lost in his primary bid (that fact was not revealed in the original article).

Since the article was published, Newsweek has been playing damage control. A day after Eastman’s article appeared, Newsweek ran a separate Editor’s Note in response to those who had “reacted strongly” to Eastman’s article. That note maintained the article was not racist and that legal debate over the phrase “natural born citizen” was worthy of discussion. The note concluded:

“The debate pertaining to the precise constitutional requirements for the Article II phrase ‘natural born Citizen,’ having been aired in 2000, 2008 and 2016, is unlikely to fall quiet soon.”

That note, however, did not quell criticism and by August 14, Newsweek had added another editor’s note, this time putting it before Eastman’s article. That note begins, “This op-ed is being used by some as a tool to perpetuate racism and xenophobia. We apologize.”

While insisting the point of the article was simply to address the legal question, the note concedes its arguments were being used to claim Harris, “a woman of color and the child of immigrants, was somehow not truly American.”

The site also published two separate op-eds – one from UCLA law professor Eugene Volokh and the other from Cleveland State University law professor Reginald Oh – stating that, yes, in fact, Harris is eligible to be vice president because she was born in the US.

“It’s possible,” Volokh writes, “that ‘natural-born citizen’ has since been broadened to include children of U.S. citizens born overseas … But it hasn’t been narrowed, and in U.S. v. Wong Kim Ark (1898), the [Supreme] Court interpreted the 14th Amendment as reaffirming that people born in the U.S. are indeed natural-born citizens, regardless of their parents’ citizenship.”

Birtherism 2.0

The charge that Eastman’s article gave fuel to “Birtherism 2.0” was a reference to a conspiracy theory that Barack Obama was not actually born in Hawaii, but instead in Kenya.

The most prominent public figure to push this false assertion was Donald Trump before he became president. Throughout Obama’s presidency, Trump used interviews and his Twitter account to feed conspiracies and attempt to undermine Obama’s right to serve as president.

Trump did not begin the rumors that Obama was foreign-born – Republican politician Andy Martin is credited with that – but the real estate mogul helped spread them. Even after Obama released his birth certificate, Trump insisted it was fake and that Obama was an illegitimate president. Trump seemingly held that view until he became president, at which time he claimed to accept that Obama was a US citizen.

Trump initially seemed to suggest the rumor about Harris’ ineligibility could be true, saying in a White House press briefing that the rumors were “very serious.” However, days later, White House officials said the topic was not something they were “going to pursue.”

Questions of eligibility

As Newsweek stated in their initial Editor’s Note, both Senators John McCain and Ted Cruz faced questions about their eligibility to run for president. McCain, who ran against Obama in 2008, was not born in the US, but instead in the Panama Canal Zone, a sovereign US territory. Both of McCain’s parents were US citizens. At the time, Obama maintained McCain was a natural born citizen.

Similarly, Cruz, who lost the Republican nomination to Trump in 2016, was born in Calgary, Canada. Like Obama, one of Cruz’s parents was a US citizen when he was born and the other was not. Cruz’s father was Cuban, but his mother was an American born in Delaware.

Despite the similarities to Obama’s circumstances – the former president’s father was Kenyan and mother was from Kansas – the question of Cruz’s eligibility was never more than an academic one. Neither McCain nor Cruz ever faced any related legal challenges to their ultimately unsuccessful bids for the presidency, despite neither one being born in the US.

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