Newsweek Should Disavow Racist Insinuation That Kamala Harris Is Not a Citizen

Less than 24 hours after Kamala Harris became the first person of color to be chosen as a vice presidential candidate on a major party ticket, Newsweek ran an op-ed (8/13/20) insinuating that she was not a citizen and therefore ineligible to run.

The piece, by former Clarence Thomas law clerk John Eastman, disregarded almost two centuries of Supreme Court jurisprudence to pretend that there is an actual debate over the phrase "subject to the jurisdiction thereof," which appears in the 14th Amendment passage that grants automatic citizenship to people born here:

All 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.

Long before the 14th Amendment was passed in 1868, however, the Supreme Court made it clear that children born to residents of the United States were citizens. In Inglis v. Trustees of Sailor's Snug Harbor, an 1830 case, the Court declared:

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.

Generations later, in the 1898 ruling United States v. Wong Kim Ark, the Supreme Court spelled out its understanding of what the 14th Amendment means for citizenship, listing all the categories of people who were not "subject to the jurisdiction" of the US:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of 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.

(Indigenous Americans were recognized as citizens by Congress in 1924, removing one of the very few exceptions to the birthright citizenship rule.)

Most of a century later, in Plyler v. Doe (1983) the Court reaffirmed that "jurisdiction" is to be understood in "predominantly geographic sense." The ruling held that "no plausible distinction with respect to 14th Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

In 2018, when President Donald Trump threatened to issue an executive order that he claimed would strip US citizenship from the children of unauthorized immigrants, the Congressional Research Service (11/1/18) summed up the legal situation:

At least since the Supreme Court's decision in the 1898 case United States v. Wong Kim Ark, the prevailing view has been that all persons born in the United States are constitutionally guaranteed citizenship at birth unless their parents are foreign diplomats, members of occupying foreign forces, or members of Indian tribes.... Because none of these exceptions permits the denial of birthright citizenship based on the alienage of parents who are not diplomats, the case is most often interpreted as barring the federal government from accomplishing such denial through any means other than a constitutional amendment.

Are there lawyers who believe that the Supreme Court could and should overturn the 122-year-old precedent of Wong Kim Ark and find some new ground for declaring certain US residents not "subject to the jurisdiction" of the United States? Yes, and they are generally regarded as fringe theorists, motivated by a desire to denaturalize millions of US citizens, overwhelmingly people of color, who are every day recognized as full-fledged Americans for purposes of paying taxes, serving on juries, registering to vote--and running for office. That Newsweek chooses to give a platform to this xenophobic legal quackery is dismaying.

Newsweek's global editor in chief Nancy Cooper and opinion editor Josh Hammer published an editors' note (8/13/20) hours after Eastman's op-ed appeared, saying that "some of our readers have reacted strongly to the op-ed we published by Dr. John Eastman, assuming it to be an attempt to ignite a racist conspiracy theory around Kamala Harris' candidacy." The editors assert:

His essay has no connection whatsoever to so-called "birther-ism," the racist 2008 conspiracy theory aimed at delegitimizing then-candidate Barack Obama by claiming, baselessly, that he was born not in Hawaii but in Kenya. We share our readers' revulsion at those vile lies.

Eastman's column, they claim, "is not an attempt to deny facts or to make false claims. No one is questioning Harris' place of birth or the legitimacy of an obviously valid birth certificate." But it is an effort, based on the most far-fetched legal speculation, to assert that Harris is literally not an American because her parents were immigrants. It is the exact same impulse that prompted hatemongers like Donald Trump to question Barack Obama's right to run for office, motivated by the identical racist ugliness.