Sen. Kamala Harris is a citizen of the United States who is eligible to serve as vice president. This is not an argument but a statement of fact, because children born in the U.S. to immigrant parents receive birthright citizenship under the Constitution. It is as debatable as the solution to 2+2—which is to say it’s not up for debate. A cadre of racists, however, argue otherwise: They allege that these children do not automatically receive American citizenship. They are objectively wrong. But the conservative legal movement continues to entertain their lie, lending it a patina of legitimacy. In turn, media outlets give these charlatans a megaphone through which to launder their racist falsehoods.
And that, in short, is why President Donald Trump is floating the fictitious claim that Harris may not qualify to serve as vice president. “I heard today that she doesn’t meet the requirements,” Trump said on Thursday. For support, he alluded to a Newsweek opinion column written by John Eastman, whom the president described as “very highly qualified.” In truth, Eastman is not qualified to pass judgment on anyone’s citizenship. He is a fabulist whose toxic views have grown like a cancer on the right, forming the pseudo-intellectual foundation for birtherism 2.0.
Eastman’s Newsweek article rehashes an argument he has made for years: that American-born children of immigrants only acquire birthright citizenship if their parents were lawful permanent residents at the time of birth. According to Eastman, the children of immigrants who entered the U.S. without authorization, or on a temporary permit, are not American citizens. Rather, they constitute an underclass of (mostly stateless) aliens subject to deportation and denied the rights and privileges of American citizenship. His article is titled “Some Questions for Kamala Harris About Eligibility”—he’s just asking questions!—because he believes her citizenship turns on the immigration status of her parents when she was born. If her parents were “temporary visitors, perhaps on student visas,” Eastman wrote, then Harris lacks American citizenship. Eastman has never fully explained how he intends to strip millions of Americans of their citizenship, though he does suggest that, at a minimum, Harris might need to be expelled from her Senate seat.
Because he makes his case with such confidence, Eastman creates the illusion that there are plausible grounds for his claim. There are not. The first sentence of the 14th Amendment declares: “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.” This clause overruled the Supreme Court’s notorious 1857 Dred Scott decision, which held that Black people could not be American citizens because they are an “inferior order” with “no rights which the white man was bound to respect.” After the Civil War—which was sparked, in part, by Dred Scott—the Framers of the 14th Amendment chose to make birthright citizenship a constitutional command. They did so in unambiguous terms. And in 1898, the Supreme Court confirmed that virtually all people born in the U.S., including the children of immigrants, automatically become American citizens.
There were a few minor exceptions to this rule. Congress chose to exclude American Indians outside the control of the federal government, as well as the children of diplomats. It made this choice because the government had limited authority to enforce American laws against both groups: Diplomats and their offspring received immunity under international law, while tribes were treated as separate sovereigns. In the language of the 14th Amendment, these individuals are not “subject to the jurisdiction” of the U.S.
Eastman seeks to contort the meaning of those four words. He alleges that they were designed to exclude the children of immigrants who had not established permanent residency in the U.S. As he put it in Newsweek, these children are “not subject to the complete jurisdiction of the United States at birth,” but instead owe their “allegiance” to a foreign power. This reading of the 14th Amendment flies in the face of every statement made by its Framers and every word of its text. It is false beyond dispute, a nativist fairy tale with no basis in reality.
Why, then, do outlets like Newsweek and the Washington Post keep publishing articles that promote this lie? A coterie of racists based at the Claremont Institute hope that if they repeat it enough, they can leave the door open for a mass expatriation of second-generation Americans, most of them minorities. Indeed, there are few if any supporters of this falsehood who lack connections to the Claremont Institute. Eastman is a senior fellow at Claremont and the founding director of its Center for Constitutional Jurisprudence. Josh Hammer, the Newsweek editor who commissioned the piece, is a former fellow at the institute. Michael Anton, who manipulated the text of a quote from the Senate debate over the 14th Amendment in a Washington Post op-ed to make this lie seem more credible, is a senior fellow there. (Anton may be best known as the author of “The Flight 93 Election,” published in the Claremont Review of Books, which condemned “ceaseless importation of Third World foreigners.”) Claremont “scholar” Edward J. Erler wrote a book arguing that the American-born children of Mexican immigrants have no right to U.S. citizenship, giving the idea greater exposure.
The Claremont Institute masquerades as an intellectual salon of the right, but it is really just a racist fever swamp with deep connections to the conspiratorial alt-right. It even granted a fellowship to Jack Posobiec, who helped promote the notorious Pizzagate conspiracy theory. Claremont’s resident bigots offer deranged fantasies of violently expelling Americans from their home country because of their ethnic backgrounds. Their work deserves the intellectual weight given to that of David Duke and his Nazi-loving fellow travelers.
Claremont contributors also defend Trump’s most overtly racist comments, praising the president as “our most important truth teller.” And yet, despite the institute’s commitment to white supremacy, its “scholars” and “fellows” remain welcome in the conservative legal movement. They routinely participate in events hosted by the Federalist Society, a powerful network of conservative attorneys, where they can present their theories as part of a friendly debate within the staid world of legal scholarship. Indeed, the Federalist Society invited Eastman himself to debate birthright citizenship in 2018. These events create the false impression that there are two equally valid sides to the argument. It also elevates the ideas of would-be fascist storm troopers to the same status as those of conservative legal luminaries.
The accusation against Harris is ultimately similar to the Trump-propagated birther conspiracy theories about President Barack Obama, with more sweeping implications: Obama birthers suggested that nonwhite people are only contingently American, whereas Harris birthers reject the citizenship of up to 18 million Americans.
This new birtherism is also fundamentally different from theories that John McCain (born in the Panama Canal Zone) and Ted Cruz (born in Canada) are not natural-born citizens. Those theories asked whether an individual who obtains American citizenship by statute, rather than by birth on U.S. soil, is a “natural-born citizen.” They did not challenge McCain’s or Cruz’s American citizenship itself. Nor did these theories draw upon long-standing prejudices that question whether nonwhite people are sufficiently American to hold higher office. As University of Southern California Gould School of Law professor Franita Tolson has pointed out, white supremacists have rejected the citizenship of Black officeholders since the first Black Americans were elected to Congress during Reconstruction.
Today’s racists have carried on this repulsive tradition with Harris. They want nothing more than to instigate yet another argument about birthright citizenship. But the 14th Amendment settled this debate, and those who deny that reality deserve as much respect as those who insist that the earth is flat or that the Holocaust didn’t happen. Some questions have definitive answers. And birthright citizenship for the children of immigrants is not up for debate.
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