I guess this was predictable but it is also an ill-omen.

 I guess this was predictable but it is also an ill-omen.  

A few months back, as it became increasingly apparent that the fix was in for Kamala Harris as the VP pick, I wondered about her eligibility.  At the time, I was aware that she was the daughter of immigrants, a Jamaican father and an Indian mother.  But was she born in the US?  A quick review of Wikipedia (with a couple of cross-checks) confirmed she was born in the US.  That was that.  She was eligible.

When her selection was announced this week, I went back and checked.  Still eligible. 

What is interesting is how often this relatively straight-forward fact of natural-born citizenship seems to come up.  Ted Cruz (American parents but he was born when they were in Canada); John McCain (born in the Canal Zone); Obama (foreign father), etc.  

You would think this was pretty black-letter law but when there is money and power riding on definitions, definitions will be disputed.  

Apparently there is a current furore owing to a Newsweek opinion piece, Some Questions for Kamala Harris About Eligibility by John C. Eastman.  If she was born here, what questions?

The fact that Senator Kamala Harris has just been named the vice presidential running mate for presumptive Democratic presidential nominee Joe Biden has some questioning her eligibility for the position. The 12th Amendment provides that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." And Article II of the Constitution specifies that "[n]o person except a natural born citizen...shall be eligible to the office of President." Her father was (and is) a Jamaican national, her mother was from India, and neither was a naturalized U.S. citizen at the time of Harris' birth in 1964. That, according to these commentators, makes her not a "natural born citizen"—and therefore ineligible for the office of the president and, hence, ineligible for the office of the vice president.

"Nonsense," runs the counter-commentary. Indeed, PolitiFact rated the claim of ineligibility as "Pants on Fire" false, Snopes rated it simply "False," and from the other side of the political spectrum, Conservative Daily News likewise rated it "False." All three (and numerous others) simply assert that Harris is eligible because she was born in Oakland—and is therefore a natural-born citizen from location of birth. The 14th Amendment says so, they all claim, and the Supreme Court so held in the 1898 case of U.S. v. Wong Kim Ark.

But those claims are erroneous, at least as the Citizenship Clause of the 14th Amendment was originally understood—an error to which even my good friend, renowned UCLA School of Law professor Eugene Volokh, has fallen prey.

The language of Article II is that one must be a natural-born citizen. The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that "all persons born...in the United States, and subject to the jurisdiction thereof, are citizens." Those who claim that birth alone is sufficient overlook the second phrase. The person must also be "subject to the jurisdiction" of the United States, and that meant 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). Such was the view of those who authored the 14th Amendment's Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.

So far so good in the sense that I follow his reasoning.  I am not a lawyer and I have no awareness of the technical merits of his argument but it seems clear that it hinges on "and subject to the jurisdiction thereof" with the implication that simply being born here (the de facto current state) entitles one to citizenship is incorrect.  His argument is that the text is that one must be born here AND "subject to the jurisdiction thereof."  

What does that condition mean?  

The Supreme Court's subsequent decision in Wong Kim Ark is not to the contrary. At issue there was a child born to Chinese immigrants who had become lawful, permanent residents in the United States—"domiciled" was the legally significant word used by the Court. But that was the extent of the Court's holding (as opposed to broader language that was dicta, and therefore not binding). Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.

Well that overturns things.  IF correct.  But is it?  Were her parents subject to the jurisdiction of the US.  Sure would seem like it.  But there's the rub.  Now Eastman is deep in the details and also speculation.

Were Harris' parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible. Or were they instead, as seems to be the case, merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act? If the latter were indeed the case, then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers—Jamaica, in the case of her father, and India, in the case of her mother—and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.

Sounds like a thin hair to split.  

But an interesting argument.  In an increasingly integrated world where mobility is near universal - what constitutes a citizen of any country?  It is a topical issue everywhere and materially consequential.  If a nation is a product of law and culture, foreign admixtures to the culture is probably something of note.  It is not necessarily a negative thing, simply a consequential event.

So is Eastman uncovering a real challenge to Harris's citizenship status?  I don't think so.  I think all he is highlighting is that our definition of citizenship has turned much more on evolving interpretations than on national consensus.  A fair point and one which, both as a matter of policy as well as practical effectiveness ought to be resolved at some point.

What is discouraging is the predictable response.  He has a valid technical argument, if a thin one.  It should be addressed as an argument.  As does Eugene Volokh in Yes, Kamala Harris Is Eligible to Be Vice President.  I have read Volokh for years and am in general in broad alignment with his interpretation of cases.  Not always, but generally.  I expected to read his argument and find a pretty solid refutation of Eastman's position.  

I think Volokh makes a solid and strong argument but there sure are a lot of exceptions and dependencies to it.  I ended his piece thinking that perhaps there was more to Eastman's position than I had credited even though on balance Volokh's position is ultimately better.  In other words, Eastman's position cannot be dismissed out-of-hand.  

But ultimately, this is how it ought to work.  Argument and counter-argument.  Point and counter-point.

But that is not how Eastman's argument is being treated in many corners.  It is being treated as one would expect by the lawless and the autarchic.  As outlined in Constitutional law prof faces backlash after questioning Kamala Harris VP eligibility by Ben Zeisloft, the response to Eastman's argument is anything but coherent, respectful or civilized.  

A sample:

Amid the backlash to Eastman's op-ed, Newsweek added a note acknowledging that “some readers reacted strongly," seeing it as an attempt to ignite a racist conspiracy theory. 

David Rothschild, a fellow at the University of Pennsylvania and Columbia University, called Eastman's article "hard-core racist birtherism."

 

Seth Masket, a political science professor at the University of Denver, told Eastman, "this is disgusting. You embarrass yourself." 

 

David Darmofal, who teaches political science at the University of South Carolina, said "I reported his tweet for spreading false information about an election & I encourage others to as well."

 

Other users, including prominent political analyst Bill Palmer, encouraged social media users to report Eastman to Twitter and boycott Chapman University “until they fire him.”

A Classical Liberal responds to an argument in the marketplace of ideas with a counterargument based on evidence and logic.  That is what Eugene Volokh did and he ends up with the better of the argument I believe.  In the Classical Liberal world, that is how we progress.  With logic and evidence-based arguments.

But the Classical Liberal world order is under assault by anarchists, statists and autarchs.  They are not interested in the niceties of argument and logic and evidence.  They focus on winning power and control at any cost.

In this instance, leading lights such as Rothschild, Masket, Darmofal, and Palmer do not respond with a counterargument or evidence or logic.  They respond with ad hominem abuse (racist, birtherism, misogynist, etc.), with empty insults ("You embarrass yourself"), with active efforts to deplatform and suppress Eastman, and even with active efforts to assault Eastman's well-being by inciting and coordinating a virtual mob to get him fired for making an academic but reasonable argument.  

You do not progress by suppressing and destroying and punishing and lying and avoiding reasoned arguments.  That is the path to anarchy and autarchy and misery.  That such responses are deemed acceptable by our Mandarin Class bodes ill.  Seeking to win power at any cost is an alarming position.