The media is on fire today after an article was published in Newsweek by Professor John C. Eastman of Chapman University, which raised the question of whether Sen. Kamala Harris is a citizen and Vice-President that the courts have long recognized that in Persons born in the United States are citizens for the purposes of the Fourteenth Amendment. To do justice to Professor Eastman and Newsweek, this has been a debate that has been heated during previous elections on candidates from Chester Arthur to Barack Obama to John McCain.
The first-born entitlement has been the subject of debate since the 14th Amendment was passed. There are arguments on both sides for the currently accepted broad interpretation of the language. Many of our closest allies oppose the concept of birthright.
However, the case law strongly supports Harris. In 1898, the US court against Wong Kim Ark found that the child of Chinese immigrants was still a citizen after the 14th Amendment, since it was born on US territory. His parents were legal permanent residents here. Furthermore, the language of the 14th Amendment does not clearly support the exclusions put forward by Eastman. It states: "Any person born or naturalized in the United States who comes under its jurisdiction is a citizen of the United States and of the state in which they reside."
Most who read this language have come to the conclusion that it provides the birthright certificate for anyone “born in the US”. The fourteenth amendment begins and ends as a model of clarity and states that "all persons born or naturalized in the United States" are "citizens of the United States and the state in which they reside." But between those two sentences, Congress added the words "and is subject to its jurisdiction". These six words have puzzled scholars for 150 years. The prevailing view of law professors is that the lineage as a whole guarantees that anyone born in the United States will become an American citizen. However, some believe the restriction means that you must be in a legal status here. If you are not a US citizen, you are a legal resident.
I don't think there is a credible question of Harris's legitimacy. However, I am concerned about the attacks on Newsweek and the author from a freedom of speech standpoint. This problem has been raised for decades and there are few Supreme Court cases that are not dispositive on all aspects of the question.
In previous coverage of candidates like McCain, there was no request for newspapers to denounce their own publications. Eastman is a professor who has addressed a commonly discussed constitutional and political issue. There is no reason to denounce him as a racist or Newsweek as the facilitator of racism. The media often publish controversial theories. There were no calls for withdrawals when a Harvard professor said Trump was not actually charged when he was charged, a North Carolina professor said the entire Trump defense team would prosecute, or any number of the controversial theories Crime against Trump. Instead, we have simply discussed the issues that actually raise interesting historical or ethical questions.
Michael McGough of the LA Times called the Newsweek statement "weak" when he insisted that it only shared a constitutional viewpoint and did not seek to "spark a racist conspiracy theory about Kamala Harris' candidacy". However, this "weak" reason has been the basis for previous articles on the 14th Amendment debate in major publications for decades.
Instead of challenging Professor Eastman's analysis, people attack Newsweek for letting his views be heard. It's an effort to force a creeping apology, as comes after Senator Tom Cotton's column was published in the New York Times. Eastman stated that his theory would likely not be accepted. However, he advocated a strict interpretation of the 14th amendment. Even a 2011 report by the Congressional Research Service confirmed such contradicting theories before correctly concluding that
“The weight of legal and historical authority suggests that the term“ naturally born ”citizen would mean a person who is eligible for US citizenship“ from birth ”or“ at birth ”, either by entering the United States and born under these jurisdictions, including those born to foreign parents; through the birth of parents of US citizens abroad; or by being born in other situations that meet legal requirements for US citizenship "at birth". "