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.
Newsweek (8/12/20) gives a platform to a fringe legal theory that holds Kamala Harris is not actually a US citizen because her parents were immigrants.
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.
Contrary to Newsweek‘s editors’ note (8/13/20). the column it ran is entirely in the spirit of racist birtherism.
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.
ACTION ALERT: Please contact Newsweek‘s editors and demand that they retract the op-ed insinuating that Kamala Harris (like millions of other Americans) is not a US citizen.
CONTACT: You can contact Newsweek here or via Twitter: @Newsweek.
Please remember that respectful communication is the most effective. Feel free to leave a copy of your message in the comments thread of this post.
In my Tweet I quoted this column: “That Newsweek chooses to give a platform to this xenophobic legal quackery is dismaying.” FAIR
Iowa Congressman Steve King, the REAL Steve King of horror (soon to be gone as he lost his primary) was nice enough to leave links to the Senate debate on the 14th Amendment and it seems that Senator Howard who wrote the “subject to the jurisdiction” language that was not in the version of the proposed 14th Amendment sent to the Senate by the House.
Senator Howard is quite clear in his meaning stating: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States and subject to their jurisdiction is by virtue of natural law and national law a citizen of the United States.
This will not, of course include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
May 30, 1866 “The Congressional Globe,” page 2890
Now if the fantasy claim is that Kamala Harris was not an American citizen by birth, then where is their proof that she ever received citizenship by taking a citizenship test?
If they don’t believe she was born a citizen and did not become a citizen, then she has violated law after law by registering to vote, voting, running for various public offices.
https://steveking.house.gov/media-center/columns/ending-birthright-citizenship-does-not-require-a-constitutional-amendment
https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11
Page 2890, May 30, 1866 Congressional Globe (apparently the Congressional Record of the day).
Hi Jim,
thank you for your post about “newsweek” and Kamala Harris !
I don’t know if you are aware of this Mother Jones piece from 2014/03 !
I’d say it is very helpful for better understanding of the big “evangelical” problem todays America is suffering from ….. and it will help you to see “newsweek” and IBT Media in a new light ! https://fair.us20.list-manage.com/track/click?u=e6457f9552de19bc603e65b9c&id=ee2d186db7&e=10e8dd7d2f
How is it racist to think she may be ineligible? If she were white with the exact same circumstances, would it be racist then? When people asked these questions of John McCain was that racist? No. It is purely political. When you overuse the term xenophobic, racist, islamaphobic, homophobic, sexist, intolerant, bigot, rape, etc. you diminish the meaning. Most people are developing an immunity against these charges now. Once we have herd immunity to these charges, your leftist days will be numbered.
I actually thought you were making a reasoned point, worthy of debate, until you blew it at the end by showing you are just another “rightist” jerk.
Adam, not a jerk. I’m tired of everyone being called racist. These baseless claims all come from the left. Case in point, ever hear the term Christianaphobe? Me neither. Why is that?
It’s not everyone being called racist. It’s people doing and saying racist things.
Because nobody gave it any serious consideration when the questions were brought up about McCain or Cruz, that’s why. Bullshit like this only gets amplified when the targets are Obama or Harris. So it sure seems to me that nobody seriously questions the citizenship status of any lily-white candidates, but change the skin color of those candidates and suddenly the current President is spouting off completely specious attacks.
Who gives it attention? The media. Who dominates the media? The left. If folks like FAIR would just drop it, it wouldn’t have legs. The leftist media (redundant), love the call people out for being racist.
So… If the media ignore when shitty people say shitty things, it’s the same as if they never said them? Huh… I’m not sure you’ve thought that through.
When people like you only see things through race colored glasses, everyone is a racist and every comment is racist.
I completely agree. And it wasn’t only McCain. The questioning of his eligibility was in 2008. Romney (because of his father) in 2012. Ted Cruz and Marco Rubio in 2016, and now Harris in 2020.
And, yes, the “racist” stuff has been extremely overplayed.
My Foster Dad is rolling in his grave right now. He was an avid reader of Newsweek, back when it published journalism and not lunatic fringe legal opinions. I will never forget the day he confronted a man who yelled racist epithets at my then eight-year-old little Sister. This was back in the eighties during the not-so-hidden racist political agenda of the Southern Strategy that clearly Rappin’ Ron Reagan embraced. It took real cojones back in the 1980’s, for a white man to openly and loudly stand up to another who made hateful remarks. To this day I have yet to see as much courage and selfless behavior as I witnessed that day in my Foster Dad sticking up for us. That act was a powerful example to onlookers too, I could see that other adults within earshot, were very uncomfortable at the situation. This made the moment all the more memorable for me. My Sister and I were in and out of dozens of children’s homes growing up. There were many abusive families and juvenile warding facilities. We were children of the system and all we truly had was each other. I constantly had to fight to stay with my Sister, she being of African American and white mixed, and myself being white. Too many times, the child services bureaucrats would attempt to separate us, based solely on our appearances (even though we had the same case file, last name and the same Mother). This was extremely distressing to us, but through it all we eventually landed in a very loving and nurturing foster home—the one with the aforementioned courageous Dad. This all brings me to why I felt the need to contact Newsweek: I swear sometimes it feels like the US is still in those shameful racist times I experienced as a kid. It doesn’t help when Newsweek gives the bully pulpit to a race-based legal-conspiracy-theory about Kamala Harris’ birthright citizenship (which—no matter what that right-wing quack who wrote the piece thinks—cannot be stripped from her without a constitutional amendment). Shame on you Newsweek.
“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”
Charles Curtis, 3/8th Native American, ran as Hoover’s VP in 1928. Not a good look to start off a “fairness & accuracy in reporting” with an inaccurate claim.
Assuming it’s inaccurate. Maybe you don’t consider the Republican Party a “major party”; or someone with 3/8th Native blood to be a “person of color”. If so, maybe you should include these beliefs alongside your claim.
POC really refers to blacks or Mexicans. Kamala Harris is referred to as being black, not Indian even though she’s half Indian. Why is that? Obama is half white. He’s black too. Indians are not considered POC. If anyone can explain the logic, I’d be happy to hear it.
Yes, race itself is a controversy. I was in this case trying to limit my objection to Jim Naureckas’ naked claim of “Kamala Harris became the first person of color”. Which is [in general common “POC” terms} inaccurate. As is inaccurate her being a fake black or not satisfying Constitutional blah blah. So you can take a hike on that if so.
But the other recent, few days trope was that Kamala Harris would be the “first person of color” VP.
And apparently I overestimated Jim Naureckas as an objective writer/author/editor. He just went whole hog on that inaccurate line. He didn’t think twice. He regurgitated. Started the article off with a copy-paste of some balderdash he’d heard or read or saw.
Maybe wait a couple days instead of a couple minutes next time, Jim Naureckas, so as to not embarrass yourself due to your ignorance and simpleton belief in whatever others tell you is real.
Again, assuming you think a 3/8 Native American isn’t a “person of color”. It’s far more likely you, as said above, just ignorantly regurgitated a line from the MSM. So, should basically resign, or at the least do a retraction; a mea culpa.
“From now on I won’t regurgitate common lines from a few hours ago that the media told me is facts.”
Jim makes an air-tight case that the 14th Amendment means what it says, but those of us who have not seen the Newswek article have no idea what he is talking about.
I read Eastman’s Newsweek column. I am embarrassed that a lawyer could promulgate such ignorant drivel. But there is nothing racist about it. Anyway, it is not Kamala Harris’s parents that make her ineligible for the vice presidency. It is her bloodthirsty fascist perspective on human rights. She may be legally eligible, but certainly is not morally eligible.
Racist and fringe theories that seek to question eligibility of Kamala Harris to be Vice President are opposed by long established legal precident and the 14th amendment and have no place in our political discourse. The Newsweek op/ed should be retracted.
For a site that calls themselves “FAIR,” this article was extremely biased. First, the same questions have been asked of McCain, Romney, Cruz, and Rubio, along with Obama, and now Harris. To even presume to make this about race is wrong.
Harris is in a similar situation to all of those questioned before. If at least one of her parents had been a legal citizen, the question of her “natural born” status would’ve been squashed quickly (except for partisanship, I presume). But if her parents had both been Indian, or white, and she’d had lighter skin, the same question would’ve been discussed.
As far as I’m concerned, anyone who makes this about race is showing the world how they think, while trying to make it sound like someone else’s thinking is in play, as if they can read minds.
An inquiry into the citizenship of Kamala Harris was absolutely not in the same vain as the McCain (et al) citizenship inquiries. Here are at least two key things that set this situation apart from others in the past:
1) The Newsweek Op Ed chief editor and John Eastman (author of the nativist fringe legal opinion piece) are affiliated outside of Newsweek via conservative think tank membership, and this went unreported in the article.
2) Newsweek also failed to report or declare for its readership that Eastman (author of the nativist and racist fringe legal opinion) was a losing candidate to Kamala Harris in a past political campaign.
Obviously the political motive with the John Eastman Op Ed was not unbiased, and none of that was reported in the article.
As to your ‘anyone who makes this about race is thinking like a racist’:
FAIR published this Action Alert in a fair and unbiased manner. Jim correctly points out the inherent racism in the Newsweek Op Ed, which is wholly based on nativism- a racist doctrine and political position. This article and it’s premise, while obviously uncomfortable for you to accept, is not equivalent to thinking like a racist.
Way to go NewsWEAK, as that wiII be your new moniker. Maybe you have stayed too long, or possibly strayed too far from what real reporting is like? Actually BIG MEDIA, news was so much better during WATERGATE times —-Oh weII, in the 21st century and in a pandemic—-much of what used to be reliable isn’t. FareweLL NewsWEAK—you used to be a contender.-