This Is Racist Birtherism

This Is Racist Birtherism August 13, 2020

Newsweek is Just Asking Questions. Questions about Kamala Harris’ citizenship, of course. Because who knows! Maybe the scary black lady whose parents aren’t from here isn’t really a U.S. citizen! (Gee, does this sound familiar?)

John Eastman is a law professor at Chapman University and a former candidate for California Attorney General in that state’s Republican primary in 2010. In a Newsweek opinion piece published yesterday, after Biden announced that he had picked Kamala Harris as his running mate, Eastman wrote as follows:

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.

Which “some,” John? Hmm? Do you mean you? Or racist bigots? Who, exactly? If you’re going to say it, you might as well state the quiet part out loud, and not hide behind a nebulous “some.”

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.

Eastman does not deny that Kamala Harris was born in Oakland, California. He simply questions whether the children of immigrants are, in fact, well, U.S. citizens. 

Also, who exactly are “these commentators”? Eastman does not link to anyone else saying what he’s saying. He simply asserts that “some” people are saying it and that “these commentators” don’t feel she’s eligible. He literally never names these people or links to anything they’ve written.

The level of cowardice here is stark.

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).

Those “temporarily sojourning” in the U.S. would likely be quite surprised to learn that they are only partially bound by U.S. law. I’m not going to dicker about Harris’ parents’ specific legal status when she was born, because frankly, the 14th Amendment was designed to make freed slaves U.S. citizens, and I’m pretty damn sure that means it’s not about one’s particular legal status. 

Eastman argues that if Harris’ parents didn’t become naturalized U.S. citizens by the time she was 16, she is currently not a U.S. citizen. This blows up Eastman’s whole 14th Amendment argument: if a freed slave’s ancestor’s never became U.S. citizens (and they did not), Eastman’s interpretation of the 14th Amendment would seem to render that freed slave not a U.S. citizen. 

Although, Eastman does make one exception:

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?

Here’s the thing though: Slaves were neither “lawful permanent residents” (they were literally property) nor “subject to the complete jurisdiction” thereof (laws applied differently to property). So once again, if you use the 14th Amendment to render Harris not a citizen, you do the same to all freed slaves. Consider, too, that Eastman is trying to use the 14th Amendment to narrow who counted as a U.S. citizen. The whole point of the 14th Amendment was to broaden who was a U.S. citizen. This is so disingenuous it hurts.

Eastman’s use of Wong Kim Ark is also disingenuous. That case affirmed birthright citizenship. Eastman argues that because the parents in that case were “lawful, permanent residents” it does not apply to Harris. Using the case that arguably created birthright citizenship to deny it to Harris is absolute balderdash.

This is actually a really important story. Wong Kim Ark was born in San Francisco, and, as an adult, traveled to China to visit relatives. On his return he was barred entry under the claim that he was not a U.S. citizen, because he was Chinese. Chinese were, under the Chinese Exclusion Act, prevented from becoming U.S. citizens by law. Wong Kim Ark argued, under the 14th Amendment, that he was a U.S. citizen because he was born in the U.S. The Supreme Court found in favor of Wong Kim Ark. This was a huge deal. Huge deal! This is the case Eastman is using to argue that being born in the U.S. is not enough to make Harris a citizen.

No matter how you slice it, Eastman’s arguments make no sense, and appear to be part and parcel of a greater xenophobic racist effort in portions of the Republican Party to eliminate birthright citizenship. This is something Trump himself has suggested, and it is always, always, always grounded in a xenophobic, racist anti-immigrant ethos. Those people are not like us. They are not real Americans.

It’s unsurprising, then, that many many people reacted negatively to Eastman’s article, decrying the creation of a newly renewed birtherism, focused this time not on Barack Obama but on Kamala Harris. There are many similarities, after all. Bear in mind that anti-Obama birtherism didn’t just hold that Obama was actually born in Kenya, because this should not actually have mattered given that his mother was a U.S. citizen (the children of U.S. citizens are U.S. citizens no matter where they are born). Instead, the argument was that Obama’s mother was too young at his birth to pass her U.S. citizenship on.

In other words, birtherism was always weedsy and not just about where Obama was born. It was always this sort of ridiculous whataboutism and hair-splitting about what the U.S. Constitution actually says about citizenship. It was always about undermining the credibility of a powerful Black candidate.

After the uproar that followed the publication of Eastman’s post, Newsweek added a note to the top. Was it an apology? A distancing? No. It was nothing of the sort.

Editor’s note: Some readers reacted strongly to this essay, seeing it as an attempt to ignite a racist conspiracy theory. That is entirely inaccurate, as this Note explains.

Entirely! Inaccurate!

What exactly does the “note” say?

Editor’s Note: Eastman’s Newsweek Column Has Nothing to Do With Racist Birtherism

By Nancy Cooper and John Hammer

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. Dr. Eastman was focusing on a long-standing, somewhat arcane legal debate about the precise meaning of the phrase “subject to the jurisdiction thereof” in the Citizenship Clause of the 14th Amendment. His essay has no connection whatsoever to co-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.

Uh huh. Sure Jan.

It’s all bullshit. The whole piece is bullshit. It is true, as the piece notes, that when John McCain ran for president questions came up about whether he was a “natural born citizen” due his to being born in the Panama Canal Zone. But I would note that no one questioned McCain’s citizenship. The question was not whether McCain was a citizen but whether he met the eligibility requirements for president (which actually go beyond mere citizenship). Eastman, though, questioned whether Harris was a U.S. citizen at all and even suggested that she may in fact be an undocumented alien.

Questioning whether someone born in the United States is in fact a U.S. citizen at all is manifestly not the same as discussing whether or not someone born outside of the United States to U.S. citizen parents is a “natural born citizen” for the purposes of presidential eligibility (and not whether they are a U.S. citizen).

Oh, and also? The fact that we settled that question right quickly (and concessively) in the case of John McCain and then moved on, but nevertheless keep bringing up citizenship qualification questions when Black people born in the U.S. to immigrant parents run for president is exactly the problem. 

Oh and also, check this out:

Josh Hammer, Newsweek’s opinion editor, is a published constitutional scholar and former federal court of appeals law clerk who was involved in helping Senator Cruz’s 2016 presidential campaign rebut the erroneous claims that Cruz was ineligible on “natural born Citizen” grounds.

Uhhhh okay then. Cool cool cool.

Hammer, remember, is one of two names on the “we promise Eastman’s column has nothing to do with racist birtherism” followup piece. Ted Cruz was born in Canada to a Cuban father and a U.S. citizen mother. While I do think people like Cruz should be eligible to run for president, the idea that Cruz has a greater claim to being a “natural born U.S. citizen” than a woman literally born in the United States is absurd. That Hammer, who was directly involved in defending Cruz’s eligibility to run, is willing to so blithely engage in the questions about Harris’s eligibility, to me highlights the fact that this is racist birtherism. 

This is racist birtherism. This is racist birtherism. This is racist birtherism. Are we clear yet? This is racist birtherism.

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