Why theory on Kamala Harris not eligible as US VP is xenophobic, false

The upshot is that the attack on Harris's eligibility is standard-issue xenophobia, albeit dressed up in a fringe constitutional theory. (Photo: Reuters)
The theory that Kamala Harris is ineligible to be vice president because her parents were not U.S. citizens is xenophobic and false. But it's not exactly the same as the birther conspiracy theory that said President Barack Obama wasn't born in the United States at all.

Birtherism was a conspiracy theory based on a factual lie. Even debunking that kind of theory can be a bad idea because it tends to help the falsehood reach more people — some of whom then believe the lie. 

The anti-Harris theory, in contrast, is based on a fringe constitutional claim about the meaning of the words of the 14th Amendment. When it comes to constitutional claims, even extreme ones, it's important to explain why they are wrong in order to refute them.

It’s therefore both valuable and necessary to explain carefully why this theory is incorrect as a matter of constitutional law.

To do that, you need to start with the theory itself. It starts with the constitutional provision of Article II that says, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” (To be vice president, you have to meet the eligibility requirements to be president.) 

According to the attack theory, the meaning of “natural born” should be derived from the 14th amendment, which says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The attack on Harris’s eligibility focuses on the words “subject to the jurisdiction thereof.” The basic idea is supposed to be that those words modify the words “born in … the United States.” The theory asserts that children of non-citizens aren't subject to the jurisdiction of the U.S. If that is so, runs the argument, they aren't citizens.

Think about that for a moment. Accepting this theory wouldn’t only mean Harris is ineligible to serve as vice president. It also would lead to the conclusion that Harris isn't a citizen at all. And nor are all the other children of immigrants in the United States.

That's not a pure coincidence. This attack is derived from an earlier attack on birthright citizenship, one that was being pushed most recently in 2018, when I last wrote about it. The anti-immigrant fringe has just taken this earlier argument and aimed it at Harris.

It’s an incoherent idea that was squarely rejected by the Supreme Court over a century ago. In 1898, a landmark decision called U.S. v. Wong Kim Ark held that children of immigrants who are born in the U.S. are citizens. It mentioned three categories of children who might have been excluded by the words “subject to the jurisdiction thereof”: Native American children; children of foreign diplomats; or children of foreign occupiers who were invading the United States at the time the children were born there. Obviously, none of these categories applies to Kamala Harris.

This also aligns pretty closely with the original meaning of the words “subject to the jurisdiction thereof” in the 14th amendment. This is all usefully explained in a law review article by the scholar Gerard Magliocca, the author of the leading biography of John Bingham, the main draftsman of that 1868 amendment.

The original purpose of the natural born citizen requirement in Article II (which dates back to the draft Constitution of 1787) was probably to keep specific foreigners from becoming presidential candidates. (I wrote about this issue, too, a couple of years ago in a different column.) Tom Lee, a brilliant scholar with an uncanny penchant for uncovering the framers’ original intent, suspects it was specifically aimed at preventing the Marquis de Lafayette, who was popular in post-revolutionary America, from being made commander in chief.

In any case, there would be no conceivable reason to try to apply that exclusion to a child of immigrants who was born in the United States. To reach that conclusion, you basically have to be an anti-immigrant zealot who opposes birthright citizenship altogether.

The upshot is that the attack on Harris's eligibility is standard-issue xenophobia, albeit dressed up in a fringe constitutional theory.

The framers would be proud, not threatened, to see a child of immigrants running for the vice presidency. Whatever their flaws — and they were many — the framers understood that the United States was a nation of immigrants. Article II allowed immigrants to become president, provided they were citizens at the time of ratification. The 14th amendment formalized birthright citizenship for the children of immigrants. These are settled legal facts — and will remain so.


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