POSTED BY HANK REICHMAN

Last week, John C. Eastman , Professor of law at Chapman University and senior fellow at the Claremont Institute, posted an op-ed on the Newsweek web page arguing that Sen. Kamala Harris is not a natural-born citizen and hence ineligible for the presidency since her parents were not citizens at the time of her birth.  While Newsweek subsequently apologized for publishing the piece, it was picked up by President Trump in his usual ridiculously ignorant manner.  The idea is completely without foundation and runs completely counter to the meaning of both Article II and Section 1 of the Fourteenth Amendment.  The following legal analysis, signed by forty legal scholars and published today on the Balkinization blog, explains why.

John Eastman’s recent Newsweek op-ed questions both the citizenship of Senator Kamala Harris and her patriotism. He offers a reading of the Constitution’s restriction of eligibility for the vice-presidency to “natural born Citizen[s]” that ignores centuries of common law known to the Framers, fails to address early American understandings of who counts as a natural-born citizen, and twists the words of the Citizenship Clause of the Fourteenth Amendment so that it no longer accomplishes what its proponents and ratifiers sought. And he ends by charging that Senator Harris and Vice President Biden have “ignore[d] the Constitution’s eligibility requirements” and that we therefore should doubt their ability, if elected, “to honor their oaths” of office to “preserve, protect and defend the Constitution of the United States.”

Eastman’s assertions are wrong—dangerously wrong—along nearly every dimension.

To start, Eastman gives only lip service to the constitutional provision that actually contains the requirement that the President be a “natural born Citizen”—the fifth clause of Article II, Section 1 (which applies to the Vice Presidency as well as the Presidency because the Twelfth Amendment states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President”). Instead, Eastman lurches directly to claiming that the Fourteenth Amendment determines the scope of the requirement. But obviously, the conception of “natural born Citizen” contained in the Constitution as it was ratified in 1788 had a meaning before 1868, when the Fourteenth Amendment was ratified. And that meaning encompassed children born to alien parents who were only temporarily present in a sovereign’s territory.

As the Supreme Court long ago unanimously observed, “[t]he Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1874). A primary source to which the Supreme Court has consistently resorted is English common law.

And that common law, from centuries before the creation of the United States up through the nineteenth century, always treated children born within the sovereign’s territory as “natural-born subjects”—“subjects” within a monarchy being equivalent to “citizens” in a republic. The great English jurist William Blackstone, who significantly shaped the legal understandings of the Framers of the U.S. Constitution, explained in his Commentaries published shortly before American independence that “Natural-born subjects are such as are born within the dominions of the crown of England,” because by being born in English territory, they owed allegiance to the king. 1 Blackstone *365-66. In particular, he emphasized that “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”  1 Blackstone *373. The only exception Blackstone identified was children born to enemies of the realm. And the great U.S. Supreme Court Justice Joseph Story made exactly the same point a few decades later: “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 164 (1830).

In short, the rule “in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterward,” which “continued to prevail under the Constitution as originally established,” was that aliens, while residing within a sovereign’s territory, “were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction” of that sovereign and therefore “every child born in England”—and later in the United States—“of alien parents was a natural-born subject”—or, in the case of the United States, a citizen.  This was the law unless the individual in question was “the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.” United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898).

To be sure, over the course of American history there have been questions raised about who else, other than individuals born within the United States, might qualify as a “natural born Citizen.” But the fact that there has been debate over when natural-born citizenship extends to children born abroad cannot obscure the fact that a child born to alien parents residing in the United States is a natural-born citizen of the United States unless her parents are diplomats or invaders.

There was a shameful exception to that general principle as it existed prior to the ratification of the Fourteenth Amendment.  In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court held that persons of African descent could never become citizens of the United States. So it was irrelevant that Dred Scott, who was suing for his freedom, was born in Virginia. According to the Supreme Court, he was nothing but a piece of property, and even free Black people were never “regarded as a part of the people or citizens of the State.” Id. at 413.  Thus, had Senator Harris been born a hundred years earlier, there would have been a viable legal argument that she was ineligible to become Vice President—not because her father was a non-citizen, but because he was Black.

But the Fourteenth Amendment was enacted precisely to repudiate the idea that Black people born in the United States were not natural-born citizens. Section One of the Amendment provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  Nothing in this Citizenship Clause supports the idea that fewer people could qualify as “natural born Citizens” eligible to become President or Vice President after its enactment. That assertion would turn the amendment on its head. By declaring birthright citizenship, the Citizenship Clause squarely overrules the infamous holding of Dred Scott that Black people could never qualify as U.S. citizens.

As explained above, the Presidential Qualifications Clause of Article II, standing on its own interpretive bottom, controls whether Senator Harris is eligible to be Vice President or President, and the correct legal understanding of this clause establishes that she is.  Perhaps sensing the weakness of his argument under the clause that actually governs the question of Senator Harris’s eligibility, Eastman focuses almost all of his attention on the Citizenship Clause of the Fourteenth Amendment—specifically, its language providing that only persons “subject to the jurisdiction” of the United States can be citizens of the United States.  But he gets this clause wrong as well.  The clause reaffirms the age-old legal principle that individuals born in the United States are natural-born citizens, regardless of the citizenship of their parents.

The Fourteenth Amendment includes the limiting language “subject to the jurisdiction thereof” to exclude from its conferral of birthright citizenship the American-born children of foreign diplomats present in the United States.  This is because, under international law at the time that the Amendment was written and ratified, diplomats and their families were mostly immune from the legal supervision of the nation hosting them.  (In other words, the Amendment simply carried forward the common-law rule.)  The limiting language was also placed in the Citizenship Clause in order to deny birthright citizenship to the American-born children of Indian tribes, whose relations with the United States at the time constrained the nation’s legal authority over members of the tribes.

The Citizenship Clause was modeled on the Civil Rights Act of 1866, which also rejected Dred Scott’s racist and exclusionary conception of U.S. citizenship by declaring that “[a]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”  It was not thought at the time that there was daylight between the limiting language in the Civil Rights Act and the limiting language in the Fourteenth Amendment.  Nor have courts or the overwhelming majority of constitutional law experts seen a difference at any point since, which is why judges have firmly rejected the argument that the children of undocumented immigrants are not U.S. citizens even though they were born here.

The argument that the Citizenship Clause incorporated some requirement of parental citizenship was fully aired between ratification of the Fourteenth Amendment and the Supreme Court’s 1898 decision in Wong Kim Ark, where the Court rejected the argument.  The Court there noted only a few “exceptions or qualifications (as old as the rule itself)” to the Fourteenth Amendment’s declaration of birthright citizenship.  These exceptions were “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”  Wong Kim Ark, 169 U.S. at 693.  Children born on foreign public ships, including ships of war, are not birthright citizens for the same reasons that the children of foreign diplomats are not.  The same goes for children born to foreign invaders of the United States.

What do these limited and longstanding exceptions have to do with the citizenship status of Senator Kamala Harris?  Nothing.  She was born in Oakland, California.  She was not the child of a foreign diplomat.  She was not born on a foreign public ship, nor were her parents part of a military invasion of the United States at the time she was born—or, for that matter, at any time before or after.  And for nearly a century, federal law has recognized that members of Indian tribes born within the United States are birthright citizens.  Senator Harris is a birthright citizen who meets the requirement of the Qualifications Clause and who enjoys the very protection of the Fourteenth Amendment that, to the nation’s shame, Black people were long denied before the Civil War and Reconstruction.

The implications of Eastman’s argument go far beyond Senator Harris’s eligibility to become Vice President. Eastman recognizes that his reading of the Fourteenth Amendment “might also call into question Harris’ eligibility for her current position as a United States senator.”  This is because there’s no record of her being naturalized, and Article I, Section 3, of the Constitution requires Senators to be citizens. And though he does not say this as well, there is no record of Senator Harris becoming a lawful permanent resident. Perhaps in his next piece, Eastman will follow his argument to its logical conclusion and suggest that ICE detain her and remove her from the country as an undocumented alien. And even that would not be the end of Eastman’s reading of the Constitution: millions of others would also face roundups and deportation. And that would include not only the U.S.-born children of non-citizen parents, but their U.S.-born grandchildren and great-grandchildren as well, for if the first generation of U.S. born ancestors did not acquire citizenship under the Citizenship Clause of the Fourteenth Amendment, then no subsequent generation can do so either. The Fourteenth Amendment was written to ensure that the United States would not have a cohort of individuals whose descendants would remain forever alien.

Signatures [Institutions named for identification purposes only]

Matthew Adler
Richard A. Horvitz Professor of Law and Professor of Economics,
Philosophy and Public Policy
Duke Law School

Jack M. Balkin
Knight Professor of Constitutional Law and the First Amendment
Yale Law School

Nikolas Bowie
Assistant Professor of Law
Harvard Law School

Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley, School of Law

Walter Dellinger
Douglas B. Maggs Professor Emeritus of Law
Duke University School of Law

Michael Dorf
Robert S. Stevens Professor of Law
Cornell Law School

Garrett Epps
Professor of Law Emeritus
University of Baltimore

Joseph R. Fishkin
The Marrs McLean Professor in Law
University of Texas School of Law

Charles Fried
Beneficial Professor of Law
Harvard Law School

Ruben J. Garcia
Professor of Law
William S. Boyd School of Law
University of Nevada, Las Vegas

Mark A. Graber
Regents Professor
University of Maryland Carey School of Law

Jamal Greene
Dwight Professor of Law
Columbia Law School

Aziz Huq
Frank and Bernice J. Greenberg Professor of Law.
University of Chicago Law School

Dawn Johnsen
Walter W. Foskett Professor of Law
Maurer School of Law, Indiana University Bloomington

Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford Law School

Neil J. Kinkopf
Professor of Law
Georgia State University College of Law

Michael Klarman
Kirkland & Ellis Professor of Law
Harvard Law School

Genevieve Lakier
Assistant Professor of Law and Herbert & Marjorie Fried Teaching Scholar
The University of Chicago

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School

Martin S. Lederman
Professor from Practice
Georgetown University Law Center

Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair
Professor of Government
University of Texas

Leah Litman
Assistant Professor of Law
University of Michigan Law School

William P. Marshall
William Rand Kenan, Jr. Distinguished Professor of Law
University of North Carolina School of Law

Bernadette Meyler
Carl and Sheila Spaeth Professor of Law
Stanford Law School

Melissa Murray
Frederick I. and Grace Stokes
Professor of Law
New York University
School of Law

Robert Post
Sterling Professor of Law
Yale Law School

Richard Primus
Theodore J. St. Antoine Collegiate Professor of Law
University of Michigan Law School

Cristina Rodriguez
Leighton Homer Surbeck Professor of Law
Yale Law School

Jane S. Schacter
William Nelson Cromwell Professor of Law
Stanford Law School

Christopher H. Schroeder
Charles S. Murphy Professor Emeritus of Law and Professor Emeritus of Public  Policy
Duke Law School

Micah Schwartzman
Hardy Cross Dillard Professor of Law
University of Virginia School of Law

Peter M. Shane
Jacob E. Davis and Jacob E. Davis II Chair in Law
The Ohio State University
Moritz College of Law

Neil S. Siegel
David W. Ichel Professor of Law and Professor of Political Science
Duke Law School

Reva Siegel
Nicholas deB. Katzenbach Professor of Law
Yale Law School

Geoffrey R. Stone
Edward H. Levi Distinguished Professor of Law
The University of Chicago

David A. Strauss
Gerald Ratner Distinguished Service Professor of Law
University of Chicago School of Law

Franita Tolson
Professor of Law
USC Gould School of Law
University of Southern California

Laurence H. Tribe
Carl M. Loeb University Professor and
Professor of Constitutional Law Emeritus
Harvard Law School

Stephen I. Vladeck
Dalton Cross Professor in Law
University of Texas School of Law

Adam Winkler
Professor of Law
UCLA School of Law

Keith E. Whittington
William Nelson Cromwell Professor of Politics
Princeton University