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OP-ED: Of course Kamala Harris is a citizen. That Newsweek column was a specious distraction

Michael McGough
Los Angeles Times (TNS)
Democratic presidential candidate former Vice President Joe Biden's running mate Sen. Kamala Harris, D-Calif., speaks during a campaign event at Alexis Dupont High School in Wilmington, Del., Wednesday, Aug. 12, 2020. (AP Photo/Carolyn Kaster)

Kamala Harris was born in the United States and is eligible — in fact, extremely qualified — to be vice president of the United States, and president of the United States. Let’s start there.

Newsweek has offered a feeble explanation for a column suggesting that Sen. Kamala Harris might not be a “natural born citizen,” denying that the column was “an attempt to ignite a racist conspiracy theory around Kamala Harris’ candidacy.”

Maybe not, but it would be surprising if the column by John C. Eastman, a law professor at Chapman University, wasn’t embraced by fever-swamp conspiracy theorists, including President Donald Trump. (Trump, unsurprisingly, tried to fuel this theory, saying, “I heard it today that she doesn’t meet the requirements. I have no idea if that is right.”)

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Remember, Trump didn’t just traffic in the “birther” falsehood that Barack Obama was not born in Hawaii, but rather in Kenya — a racist fantasy that he grudgingly abandoned relatively late in his campaign for president. As president he talked about a rollback of “birthright citizenship,” the concept that anyone born in this country — even if the parents are undocumented immigrants — is a citizen.

Legal nerds long have been aware of the odd argument that the 14th Amendment doesn’t confer citizenship on everyone born in the U.S. That amendment says: “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.”

Opponents of birthright citizenship fixate on the phrase “subject to the jurisdiction thereof” and argue that it places substantial limits on who can be a citizen. The usual context in which this quibble is raised is immigration. The argument is that undocumented immigrants aren’t subject to the jurisdiction of the U.S. and thus their children born in this country aren’t citizens. But that argument has been repeatedly rejected by the federal courts. It has been conclusively established that anyone born in the United States is a citizen of the United States.

Eastman’s twist is to suggest that Harris may not be a citizen because her Indian mother and Jamaican father might have been in this country on student visas and thus weren’t subject to the “complete” jurisdiction of the U.S. As he explains it, Harris would “derivatively” share the same status. (For good measure, Eastman throws in the possibility that Harris might also be ineligible for her current position as a U.S. senator!)

To put it mildly, this exercise in insinuation isn’t persuasive. (Eastman himself acknowledges that his argument “will be dismissed out of hand as so much antiquated constitutional tripe.”) In an article that also appears on Newsweek’s website, UCLA law professor Eugene Volokh decisively dismantles the argument against Harris’ citizenship, with citations to the framers of the Constitution and the legal thinker William Blackstone.

But to dwell on the legal objections to Eastman’s argument is to miss the point that it’s not going anywhere, except maybe into the inbox of Trump opposition-research trolls. Voters will evaluate Biden and Harris on their qualifications, and if they win Harris will be sworn in as vice president. The objections to her eligibility will end up in the same trivia file as the debates over whether Barry Goldwater (born in what was then the Arizona territory), John McCain (born in the Panama Canal Zone) and Barack Obama were “natural born citizens.”

— Michael McGough is the Los Angeles Times’ senior editorial writer, based in Washington, D.C.