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The Trump campaign attack on Kamala Harris’s citizenship is right out of the birther playbook

The Trump campaign wasted no time suggesting the first Black and Asian American woman on a major-party ticket is ineligible to serve.

Harris standing with a mask.
Kamala Harris at a coronavirus briefing with Joe Biden and health experts on August 13 in Wilmington, Delaware.
Drew Angerer/Getty Images

If you thought Trumpworld had moved past birtherism, think again.

Hours after presumptive Democratic nominee Joe Biden formally introduced Kamala Harris as his presidential running mate on Wednesday, the Trump campaign got busy trying to revive racist conspiracy theories of the sort Donald Trump rode to political prominence back in 2011.

Trump campaign legal adviser Jenna Ellis retweeted an op-ed written by law professor John Eastman in which he argues Harris is “not entitled to birthright citizenship under the 14th Amendment as originally understood,” citing a fringe legal theory holding that children of temporary visitors to the country are not conferred citizenship even if they are born here.

Ellis is clearly trying to gin up controversy about whether Harris, a Black woman who is a natural-born citizen to immigrant parents from India and Jamaica, is actually an American citizen, and therefore eligible to serve as vice president.

Asked for comment by ABC’s Will Steakin, Ellis did not back down, saying Harris’s eligibility is “an open question.”

In reality, Harris’s eligibility is not up for debate. But Trump himself gave voice to this attack on Harris’s citizenship during a news conference on Thursday, when he said of her that “I just heard it today that she doesn’t meet the requirements” to be vice president.

Then, in a quintessentially Trumpian moment, immediately after amplifying the unfounded idea that Harris isn’t actually an American citizen, Trump tried to distance himself from it, saying, “I have no idea if that’s right.”

Kamala Harris is a “natural born citizen” under the Constitution

Sen. Harris was born to immigrant parents in Oakland, California. That fact alone makes her a “natural born citizen,” and thus eligible to serve as either president or vice president.

Under the 14th Amendment, “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.” Thus, with a narrow exception for individuals not subject to the “jurisdiction” of the United States — that is, people who are not subject to US law — anyone born in this country is automatically a citizen.

The Supreme Court explained the narrow scope of this “jurisdiction” exception in United States v. Wong Kim Ark (1898), a case holding that a Chinese American man born in San Francisco was a US citizen. Certain Native Americans, who historically were exempt from US taxation and primarily subject to tribal law, were not considered citizens even if they were born within US borders. Similarly, the children of foreign diplomats (who enjoy diplomatic immunity from US law), and “the children of alien enemies, born during and within their hostile occupation” are also not citizens by birth.

But Harris’s parents were not foreign diplomats, and they certainly weren’t part of an invading army. That makes her a natural-born citizen.

Nevertheless, in the Newsweek opinion piece promoted by Ellis, Chapman University law professor John Eastman attempts to lay out a case for Kamala Harris birtherism. Eastman’s primary argument is that there is a missing word in the 14th Amendment’s declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” are citizens.

The phrase “subject to the jurisdiction thereof,” Eastman claims, means “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).” Thus, Eastman suggests, Harris is not a citizen if her parents were not “lawful permanent residents at the time of her birth.”

This argument that the words “subject to the jurisdiction thereof” actually mean “subject to the complete jurisdiction” is not a new one — in fact, it is very old. In Wong Kim Ark, the two dissenting justices made a similar claim. “Born in the United States, and subject to the jurisdiction thereof,” according to Chief Justice Melville Fuller’s dissent in Wong Kim Ark, means born “under such circumstances as to be completely subject to that jurisdiction.”

Fuller took an even stingier view of citizenship than Eastman — Fuller’s dissent suggests that only the children of US citizens are entitled to birthright citizenship. But the fact that the Wong Kim Ark dissent and Eastman both read the word “complete” into an amendment that does not use that word deeply undercuts Eastman’s argument. It should go without saying that a dissenting opinion is not the law.

There are also good reasons to believe that the Wong Kim Ark majority opinion is correct and that the dissent misread the 14th Amendment.

The Wong Kim Ark majority produced an unusually scholarly opinion, which traced the history of birthright citizenship back to the English common law that existed prior to US independence. “The fundamental principle of the common law with regard to English nationality was birth within the allegiance,” Wong Kim Ark explains. This rule of citizenship was “not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom.”

This English common law rule, Wong Kim Ark continues, “was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.” Indeed, the principle that “all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution.”

There was one very significant early American departure from the rule of birthright citizenship. In Dred Scott v. Sandford (1857), an infamous pro-slavery decision, the Court held that Black people are “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations” — and thus not entitled to the rights of citizenship.

But one of the primary purposes of the 14th Amendment was to overturn Dred Scott. As the Wong Kim Ark majority explained, the amendment sought to “establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott.”

This history, in other words, suggests that birthright citizenship was the American rule long before the 14th Amendment was ratified. This general rule inevitably came into conflict with chattel slavery — which could only exist in a nation that denied enslaved people the full rights of citizenship — but the nation chose birthright citizenship over slavery as part of the settlement that ended the Civil War.

And that settlement was written into the Constitution itself when the 14th Amendment was ratified.

There is simply no basis, in other words, to deny that the child of immigrants — someone like Kamala Harris — is a natural-born citizen.

Once a birther, always a birther

It’s not a shock that the Trump campaign would so quickly resort to pushing conspiracy theories of this sort about the first Black and Indian American woman to appear on a major party’s presidential ticket. Trump has a long and sordid history of doing the same about America’s first Black president.

During the runup to President Barack Obama’s reelection campaign in 2012, Trump endeared himself to the far right by pushing conspiracy theories about Obama’s place of birth. For instance, during an April 2011 appearance on CNN, Trump said, “he could have been born in Kenya and gone over to the United States. Everybody wants to be a US citizen, and his grandparents put an ad in saying he was born in the United States because of all the benefits you get from being born in the United States.”

Obama responded that same month by releasing copies of his long-form birth certificate. But even then, Trump wouldn’t admit he was wrong, and in the months that followed, he repeatedly claimed Obama’s birth certificate was fake.

When then-Republican presidential nominee Trump finally addressed his history of birtherism during a September 2016 press conference, he went as far as to suggest he deserved praise for raising the issue, saying unapologetically, “I finished it. President Obama was born in the United States — period.”

But there are indications that Trump’s interest in birtherism persisted into the White House. In November 2017, the New York Times reported that Trump “used closed-door conversations to question the authenticity of President Barack Obama’s birth certificate”:

One senator who listened as the president revived his doubts about Mr. Obama’s birth certificate chuckled on Tuesday as he recalled the conversation. The president, he said, has had a hard time letting go of his claim that Mr. Obama was not born in the United States. The senator asked not to be named to discuss private conversations.

Reached for comment on Thursday afternoon, Biden campaign spokesperson Andrew Bates said Trump “was the national leader of the grotesque, racist birther movement with respect to President Obama and has sought to fuel racism and tear our nation apart on every single day of his presidency.

“So it’s unsurprising, but no less abhorrent, that as Trump makes a fool of himself straining to distract the American people from the horrific toll of his failed coronavirus response that his campaign and their allies would resort to wretched, demonstrably false lies in their pathetic desperation,” Bates added.

The Trump campaign didn’t immediately respond to an inquiry about whether Ellis’s comments reflect the official position of the campaign.

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