by Richard Cameron    

Trump’s Claims About Kamala Harris’ Eligibility – Counterfeit And Treacherous

Some clown at the Claremont Institute and professor at Chapman University (both right wing oriented educational establishments) – by the name of John C. Eastman, wrote an article questioning the qualification of Joe Biden’s newly minted running mate, Senator Kamala Harris to be sworn in as our next Vice President.

As soon as it was called to Trump’s attention (via a re-tweet from Trump campaign advisor Jenna Ellis), Trump then decided to resurrect his long standing scurrilous tactic of invoking a “birther” controversy.

Is Kamala Harris ineligible to be Vice President under the U.S. Constitution’s “Citizenship Clause”? https://t.co/wDj5ijpfjC

— Tom Fitton (@TomFitton) August 13, 2020

I’ll not even delve into the conspiratorial junk law and baseless fictions that Fitton is notorious at trafficking in, but it’s the sort of thing that the alt-Right and hence, Trumpublicans, lather themselves with. 

“I heard it today that she doesn’t meet the requirements,” Mr. Trump said, adding he wasn’t sure what the case was. He praised the law professor who proposed the theory, John Eastman, as a “very highly qualified, very talented lawyer,” but added, “I have no idea if that’s right.”

Of course he has “no idea.” Trump has no ideas, just salacious, racist, sexist and indecent notions about people and things and the impulse to air them publicly.

He went on, “I would have assumed the Democrats would have checked that out before she gets chosen to run for vice president. But that’s a very serious — you’re saying that — they’re saying she doesn’t qualify because she wasn’t born in this country?”

This is Trump recklessly tossing a match on dry brush (White Nationalists and Xenophobes) and attempting (unsuccessfully) to absolve himself of having actually made the claim. Matthew Yglesias, writing in Vox and thinking of Trump’s modus operandi, invokes the philosopher Harry Frankfurt, and Frankfurts’ description of a “bullshitter”, in both the ordinary, garden variety setting and in the context of demagoguery:         

For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.

Trump, as is customary for him, didn’t actually read the article, but the premise appealed to him, having used the same ugly tactic against his predecessor, Barack Obama, Senator Marco Rubio and against pre-castration Senator Ted Cruz. 

The article – actually an opinion piece, and nothing more, published in Newsweek, is an exercise in incompetent Constitutional analysis. Eastman invokes the 14th Amendment as the backbone of his contention that Senator Harris is not eligible to occupy the Vice Presidency, but the 14th Amendment itself, refutes his argument.

Senator Harris’ parents, from India and Jamaica, resided legally in Oakland, California when she was born, making Harris a legally naturalized citizen. End of story.

End of story at least for those of us in the mainstream of Constitutional scholarship. But Trump and his campaign and White House political advisors such as Stephen Miller and Jenna Ellis, prefer to go shopping for crackpots – and they found one.

Eastman is reviving a silly disputation about what constitutes a “Natural Born Citizen” and there is no basis to do so. His definition – that both parents had to have been “naturalized citizens” at the time of the child’s birth, in this case, Kamala Harris, has been repeatedly debunked.

Eastman correctly cites the 14th Amendment’s clause that defines what a natural born citizen, “all persons born…in the United States, and subject to the jurisdiction thereof, are citizens.”

So far so good, and that is where the question should have been settled, but then Eastman injects some unfounded nonsense about Senator Harris’ parents not having planted themselves, but instead were “sojourning” or that they were “temporary visitors.”

There is no evidence to support that notion and it is patently absurd and irrelevant on its face.

Eastman attempts to read intentions into the text of the 14th Amendment that simply don’t exist, such as a false distinction about it requiring someone to be “completely” subject to the jurisdiction.

He speculates that if Harris’ parents were transients (with nothing to support that notion), then,

“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.”

Addressing Eastman and some others of his ilk, who introduce fallacies about the children of, and for that matter, immigrants themselves, not being fully subject to the jurisdiction, Garrett Epps, Professor of Constitutional Law at the University of Baltimore, writing in the Atlantic, breaks it down in artistic simplicity:     

Is there anything to it? Not in the slightest. Children of noncitizens in the U.S. can be sued, arrested, tried, and imprisoned by state or federal government. That’s jurisdiction. The “subject to the jurisdiction” argument is crackpot constitutionalism—“sovereign citizenship” in academic robes—and its persistence is a depressing feature of our corrupt and hateful national dialogue.

Elsewhere, Eastman claims that courts and Constitutional authorities viewed the definition of “natural born citizen” differently before 1964 as opposed to after, and then, by inference, argues that Harris’ status should be judged retroactively to the old standards, which, in itself is faulty. But again, he doesn’t provide any basis to that proposition.     

Our international collection lets you say adios to Trump in several languages

“Tyrants and would-be tyrants are often eager to take citizenship into their own hands as a powerful tool of terror and control.” 

                            Garrett Epps, Professor of Constitutional Law at the University of Baltimore

Professor Eastman acknowledges that renowned U.C.L.A. Gary T. Schwartz Professor of Law, Eugene Volokh, strongly disputes Eastman’s theories about Senator Harris’ eligibility in his regular column in Reason magazine, called “The Volokh Conspiracy.” 

And indeed, Volokh does – citing the foundational English Common Laws that informed the Framers’ concepts of “natural born” and also cites Blackstone as well as Supreme Court precedence, including the landmark U.S. v. Wong Kim Ark (1898) – which you will see referenced in many debunkings of birther conspiracy narratives. 

One excellent illustration, Professor Volokh references as an example of the traditional ideas of what essentially qualified a “natural born citizen” or alternately, a “natural born subject”, comes from both the the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777:

Every foreigner of good character who comes to settle in this state, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land or other real estate; and after one year’s residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years residence.

Here, you can see, with the above provision, that the authors of Colonial Constitutions, which were in many aspects, the template for the U.S. Constitution in regard to citizenship matters, considered a person’s having put down roots and maintained them for a specific time period, to have settled the question as to whether they were subjects to the jurisdiction on the one hand, and eligible for all of the rights, including holding office, in the other.

Had Kamala Harris been born on Pennsylvania soil to such parents as described in that state Constitution, it would have been without question as to her status. The only hitch is that elsewhere than Vermont and Pennsylvania, and other free states, her parents might have been slaves.

Eastman maintains that even a dubious disputation of the status of “natural born” casts a shadow on an individual whose loyalties, as those of Kamala Harris, have been demonstrated as unassailable:

It would be an inauspicious start for any campaign for the highest offices in the land to ignore the Constitution’s eligibility requirements; how else could we possibly expect the candidates, if elected, to honor their oaths to “faithfully execute the Office of President of the United States, and…to the best of [their] Ability, preserve, protect and defend the Constitution of the United States?”

To bring the oath of office into this, along with all the rest of this fraud’s failed essay, is, to quote a familiar courtroom objection, “irrelevant, incompetent and assumes facts not in evidence.”

But what is in evidence, is that the current occupant of the White House, the (impeached) president Trump, has serially dishonored his not so solemn oath to“faithfully execute the Office of President of the United States, and…to the best of [their] Ability, preserve, protect and defend the Constitution of the United States.”

Finally, there is some sand in Eastman’s vaseline – grains of sore loser-ism. We’re informed in a footnote by Newsweek, that, “Eastman ran in the 2010 Republican primary as a candidate for attorney general; he lost to Steve Cooley, who lost to Kamala Harris in the general election.” 

It clearly hacks Eastman off that a state office he felt he deserved, wound up in the hands of a Black woman and a Democrat. There’s always something at the root of this sort of academic masturbation. 

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