"Yes, Kamala Harris Is Eligible to Be Vice President"

A new article of mine in Newsweek, responding to Prof. John Eastman's contrary view, and building on my blog post on the subject.

Comments

[TommyD2000]

Your Newsweek article does not address the expulsion of the children of the 1920s Mexican workers and 1950s bracero Mexican workers. I assume that you would say that was contrary to precedent.

[Eugene Volokh]

Not everything the federal government does is constitutional; beyond that, when noncitizen parents are deported, for instance because their visas have expired, they will often much prefer to take their U.S. citizen children with them. (Certainly children's U.S. citizenship doesn't give their parents a constitutional right to be present in the U.S.)

As I understand Prof. Eastman's point, it's that "no one has been able to identify for me a single instance of any of them claiming a right to stay in the United States on the ground they were 'birthright citizens' under the language of the 14th Amendment." But that fact, which could equally stem from a lack of trained advocacy for the deportees at the time, or a lack of sympathy for them from people who might have been in a position to speak up, doesn't count for much against the ruling of Wong Kim Ark

[StellaLink]

I'm not a big fan of the "no one has been able to identify. . ." argument in this context. If any of the children born in the United States and taken to Mexico were later to return to the United States and, based on a valid US birth certificate, register to vote, or register for the draft, or apply for a driving license, or do anything else that American citizens have the right to do, who would have questioned them? Who would have tried to deport them? The evidence there would be of some of these people returning is exactly the evidence that we have -- none.

In Texas, particularly south Texas and the Rio Grand Valley, there are many, many people born in the US whose parents were not citizens or even lawful residents. In recent years there has been some controversy over the citizenship of some of them as some midwives were known to create birth certificates indicating US birth when the births actually occurred in Mexico. Nobody tried to deny citizenship based on the citizenship of the parents, or even of their immigration status. It all has to do with the actual place of the birth. If, as Eastman suggests, there's a good argument to be made that people like Harris may not even be citizens, surely somebody at some time would have tried to make it. I know that I'm making the no evidence argument, but this time it's correct. If Eastman's views had even a bit of credence, surely somebody in the great state of Texas would have tried to implement.

[Martinned]

That's one of those American ideas that always frustrates me. What's the point of being an American citizen and having the right to live in the US if you have to move abroad anyway because you're 3 years old?

To quote the dictum in Ruiz Zambrano, the key ECJ case in this area: "[EU law] precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."

[Jerry B.]

Just because she's eligible, that doesn't mean it's a good idea.

[Noscitur a sociis]

Has anybody suggested otherwise?

[Joe_dallas]

If Kamala wins - we all lose

[bernard11]

If Trump-Pence win the country is toast.

[Eddy]

It would be nice to have a constitutional amendment saying that anyone who has been a U. S. citizen for 35 years need not be a natural-born citizen so long as (s)he meets the other criteria.

[Krychek_2]

The natural born citizen requirement would almost certainly be unconstitutional if it hadn't been written into the text of the Constitution itself. I'd favor getting rid of it altogether.

[Leo Marvin]

And thus the quiet campaign to get Eugene Volokh elected president begins.

[Squirrelloid]

This doesn't actually sound like a bad idea. Much better than the crap we keep getting offered by the major parties, certainly.

[California Dreamer]

There was some discussion of such an amendment back when Arnie The Terminator was Governor of California (sorry; can't spell his last name). I supported it then (although I would not have voted for him) and I would support it now. In my view, it makes absolutely no sense to exclude my daughter (adopted from China at the age of 11 months) from eligibility for the Presidency.

[David Cary Hart]

NIcely done Professor. This is Birther redux.

Eastman has been on my crackpot radar for years as board chairman of National Organization for Marriage. In that role he represented NOM in its suit against the IRS despite the obvious conflict. The genius billed $690,000. NOM received a nuisance settlement of $50,000 for a net loss of $640,000.

Eastman also signed the Philadelphia Statement which Newsweek saw fit to reprint in its entirety this week.

[Dilan Esper]

I remember Eastman writing cranky articles in the Daily Journal 20 years ago. He's really a right wing hack.

[Denverite]

And, there is a simple question the answer to which clearly shows that "subject to the jurisdiction" in the 14th amendment does NOT exclude from citizenship people born here whose parents are not citizens. That question is this -- suppose a non-citizen commits a federal crime while in the United States, can that person be tried and convicted of that crime in a U.S. court. Of course (unless they are a foreign diplomat, a member of an invading army, etc.). Therefore that class of persons is subject to the jurisdiction of the U.S. Therefore their children born here are U.S. citizens.

[Life of Brian]

Therefore that class of persons is subject to the jurisdiction of the U.S. Therefore their children born here are U.S. citizens.

In the 14th Amendment, the person that must be "subject to the jurisdiction" of the United States is the same person that was “born or naturalized in the United States." The legal status of the parents is just a factor in the (now out of vogue) test of whether the child is indeed fully subject to U.S. jurisdiction, or has some degree of allegiance to another country.

[Dilan Esper]

it doesn't say "fully subject", it says subject. There's no exclusion for those "partially" subject to our jurisdiction.

In any event, these people are fully subject to our jurisdiction. Denverite uses criminal law, but an even better example is child custody. A US court is competent to adjudicate the custody of a child born with the US, except perhaps one born within a recognized Indian nation or to foreign diplomats at the embassy or something. Jurisdiction is complete.

The 14th Amendment does not use the term "allegiance", let alone "exclusive allegiance". It uses "jurisdiction", which is a different concept. Wong Kim Ark was rightly decided.

[Life of Brian]

it doesn’t say “fully subject”, it says subject. There’s no exclusion for those “partially” subject to our jurisdiction.

So your argument is that someone only partially subject to the jurisdiction of the U.S. is somehow still a citizen and thus could be President? Wow.

[Sarcastr0]

There is no such thing as partially subject.

Wow.

[Kazinski]

Yeah, actually there is something as partially subject.

Take for instance my wife who is a Cambodian citizen with a provisional green card. She is subject to Cambodian law worldwide, but she is only subject to American law while she is residing in the US, and is not entitled to any consular protection as a US citizen would be when she is overseas.

Think of the difference of the protections and fallout for Jamal Khashoggi if he were a citizen of the US rather than a temporary resident outside the US.

[Sarcastr0]

That sounds like fully subject to American laws, but also Cambodian law.

[rsteinmetz]

Allegiance and jurisdiction are two mostly unrelated things.

[Jon S]

Right - under Eastman's bizarre logic, I don't think many of the freed slaves would be citizens either (a lot of freed slaves of course had citizen fathers/grandfathers, etc. due to, you know, the serial rape of slaves by the good and honorable people of the Confederacy). And many of their descendants may not be either - we'd have to go through their family tree to see if we can find a

[M L]

Denverite:

In the ratification debates, your understanding was clearly rejected. Senator Doolittle observed that Indians, for example, were "subject to the jurisdiction" of the U.S. in a limited sense as you describe here. For that reason, he thought that the 14th amendment should include language mirroring the Civil Rights Act of 1866, which stated:

"That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States"

Senator Doolittle's view was rejected by the Senate, because the congressmen considered the 14th amendment phrase "subject to the jurisdiction thereof" to have the same intended meaning of the 1866 Civil Rights Act phrasing, but with more clarity, avoiding questions surrounding "not taxed." Thus, the 14th amendment was originally understood as excluding those "subject to any foreign power." As Senator Trumbull explained in response to Doolittle:

"Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means."

[Keith Waters]

Why is the use of original intent here a good idea but not useful in other circumstances?

[M L]

I'm not certain what you are asking, but the ratification debates would be the single most pertinent piece of evidence for the original public meaning of the 14th amendment.

[Dilan Esper]

At this point, you are basically using a single statement of a legislator to override the plain meaning of the text (and over 100 years of controlling precedent). No thanks.

[Josh R]

And, as he did in the prior thread, M L left out this statement from Trumbull

Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.

[M L]

Josh R -

Your quote is not from the ratification debates or any discussion of the 14th amendment, but is from the debate on the 1866 Civil Rights Act.

But it makes no difference anyway. Here's the full quote: "I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens."

Trumbull was describing then-current "naturalization laws," as existed before the passage of the CRA, and before the passage of the 14th amendment.

Even if he had been referring to the meaning of the 14th amendment, the quote still makes no difference. Nobody is arguing that "subject to the jurisdiction" means that your parents had to be citizens. Nobody has ever argued that, to my knowledge.

[Josh R]

Perhaps Trumbull meant the parents had to be permanent residents (whatever "permanent" meant at the time since there were no green cards). Or perhaps only residents. Or perhaps they had to be anyone who wasn't an Indian, a diplomat or a member of invading army. Or perhaps something else.

Who knows. Concluding anything from Trumbull's quotes strikes me as an exercise in folly.

[M L]

"Concluding anything from Trumbull’s quotes strikes me as an exercise in folly."

And yet the 14th amendment is and will be understood to mean one thing or another. The entire ratification debates - not just Trumbull's statements, but those of Howard, Conness, Cowan, Doolittle, etc., not to mention subsequent SCOTUS rulings - together preclude the idea that the original meaning of the 14th amendment enshrined a constitutional requirement of automatic citizenship for those born to tourists ("sojourners" as they are called in the ratification debates) or those in the country temporarily or illegally.

[Josh R]

You are leaping to a conclusion that I don't think is supported by the evidence as explained by Eugene.

[M L]

Professor Volokh's article and post are focused on the "natural born citizen" issue, and touches only very lightly on the citizenship clause "subject to the jurisdiction" issue. I'm inclined to agree with EV's conclusion and some of the points he makes to get there.

As for Eastman, it seems to me his overall argument in the Newsweek article is fundamentally flawed, because he assumes that if Harris was "not entitled to birthright citizenship under the 14th Amendment as originally understood" then it would follow that she was not a citizen at birth. But I think she was a citizen at birth under current US law and administrative practice, notwithstanding that the 14th amendment does not require this.

[Josh R]

I am almost certain Eugene doesn't distinguish between "natural-born citizen" and "citizen at birth." Thus, if you agree with him, then you agree with the conclusion that people born in the USA are natural-born citizens except when the parents are Indians, diplomats or members of invading armies.

I'm not following how Harris can be a statutory or administrative citizen at birth without also being a 14th-Amendment citizen at birth. She can only qualify from the statute and any administrative procedures arising from the statute if she was "born in the United States, and subject to the jurisdiction thereof." (8 U.S. Code § 1401). Now perhaps you are arguing "subject to the jurisdiction" can have a broader meaning in the statute than it does in the 14th Amendment?

[M L]

Dilan - No, it's very much the ratification debates as a whole that need to be read. The most you can do in a comment section is address one piece at a time, which I've done many times.

I'm not trying to override any precedent. No SCOTUS case has ever held that the 14th amendment requires automatic citizenship for the children of tourists or illegal immigrants.

Admittedly, the holding of Wong Kim Ark was in some sense arguably a departure from the original meaning of the citizenship clause, as it was clearly explicated in Slaughterhouse dicta and the Elk v Wilkins holding.

But I tend to find Wong Kim Ark as best understood by seeing that the act of domicile is a deemed exercise of that right, which the Framers held to be inalienable, to renounce a former allegiance - notwithstanding that an international treaty formally prevented such acts by the Chinese.

[Josh R]

Assuming for the sake of argument that you are correct and the holding of Wong Kim Ark is limited to the parents being green card holders, what about the dicta that points to a larger set of parents?

[M L]

The dicta has no precedential weight and is incorrect.

[Josh R]

Are you sure Supreme Court dicta carries no weight when that dicta played a key role in the rationale that leads to the holding? In Kim Wong Ark, Gray could have used a narrower rationale, but chose not to, and you believe that fact should have no precedential weight?

[David Nieporent]

I’m not trying to override any precedent. No SCOTUS case has ever held that the 14th amendment requires automatic citizenship for the children of tourists or illegal immigrants.

In exactly the same way that no SCOTUS case has ever held that the 14th amendment requires automatic citizenship for the children of Turkish permanent residents.

[M L]

Not even close to being right.

[David Nieporent]

You think there is a Supreme Court case that says that the children of Turkish permanent residents are automatically citizens?

[David Nieporent]

My question, obviously, is rhetorical. You do not think there is a Supreme Court case that expressly says that. You merely think that even though WKA repeatedly says that a child of Chinese permanent residents is a citizen, this also includes Turkish ones because the issue of whether they were Chinese was irrelevant to the decision. This would, of course, be correct. The same is true of the fact that they were permanent residents; it was irrelevant to the decision.

[Sarcastr0]

Eastman ran against Harris for AG in 2010. Maybe not an unbiased observer.

Also, WTF is going on at the Claremont Institute?

[Jon S]

In fairness, I don't think that is the bias that is driving his views here, meaning he would write this same column re any other VP pick in the same circumstances. You figure out the circumstances.

[Sarcastr0]

Brutal!

[Dilan Esper]

FWIW, one of the columns he wrote in the Daily Journal back in 2002 or so urged the Court to take the Hamdi case (the petitioner in that case was the US-born child of noncitizen parents) to overrule Wong Kim Ark and hold that the children of immigrants are not citizens.

So this position he holds is probably more about being an anti-immigrant zealot than it is about Harris specifically.

[Sarcastr0]

Thanks for the facts. Still props to Jon S.'s circumstances shade.

[M L]

"and hold that the children of immigrants are not citizens."

Well, no. It would be that the children of persons in the US on a very brief temporary visa are not required to be automatic citizens under the Constitution.

[Josh R]

Are you saying Dilan misrepresented Eastman's argument, or are you merely expressing your own viewpoint? Either way, what is the quantitative value of "very brief"?

[M L]

I'm saying he misrepresented the argument. I searched and got this. https://ashbrook.org/publications/oped-eastman-04-hamdi/

[Leo Marvin]

The only people who have a problem with the Claremont Institute are Hillary Clinton child prostitution ring apologists.

[Angammus]

Sarcastr0 checks all those boxes.

[Rip Murdock]

Eastman lost in primary to the LA County DA Steve Cooley.

[CJColucci]

While I think the natural-born citizen clause no longer serves its original purpose and is otherwise unnecessary, I'd favor getting rid of it. On the merits, I don't see any problem with Kamala Harris's eligibility.
That said, it should be intolerable that 200-odd years in we don't instantly have an incontrovertible answer to whether any candidate for President or Vice President is eligible for the office. Even a bad answer is better than none.

[Jon S]

We do have such an answer. Just because cranks can come up with bogus arguments against the answer - or, in the case of Barack Obama, make up facts to come to a different answer - does not mean we don't have the simple answer. Born in the United States (and subject to jurisdiction, i.e., not where both parents are invading occupiers or foreign diplomats) and/or born to a United States citizen abroad = natural-born citizen. Period.

[CJColucci]

I agree that the answer is reasonably clear for most purposes. But it isn't as clear as we need it to be. I have seen it credibly argued that being born to American citizens abroad on government business such as military or diplomatic service, is OK, but not being born to citizens abroad on private business. That was the problem with Lowell Weicker, born in France to American citizens when they were in France because his father was working at the Paris office of a pharmaceutical company. The Weicker campaign fizzled out before anyone could test this. If Hillary Clinton had taken a pleasure trip to Canada in the eighth month of her pregnancy and given birth to Chelsea prematurely in a Montreal hospital, would Chelsea be eligible in 2028? I happen to think the answers to both of those questions is "yes," but it shouldn't have to be something I think. We ought to know.

[Dilan Esper]

We have a clear answer on THIS one, because Wong Kim Ark is controlling.

If you want to argue we don't have a clear answer on the John McCain one, maybe we don't.

But I am going to say something that not enough lawyers say about stuff like this. This debate is purely academic. The actual answer is that there is no way in hell the Supreme Court will ever disqualify a duly elected presidential candidate. It simply will not happen. If such a candidate won a party primary and won the election, it would be in a situation where that issue was raised and explicitly rejected by the electorate. In that situation, any Supreme Court that tried to overturn the results would get into "Mr. Chief Justice Marshall has made his ruling, now let him enforce it" territory. More than likely, they would rule it a political question and leave it to Congress to deal with.

But the reality is for that reason the natural-born citizen requirement is basically toothless.

[Dilan Esper]

BTW, if you want the edge case, it is Tammy Duckworth. Matt Yglesias tweeted about this today. Apparently Biden's lawyers told him not to pick her because she might not be a natural born citizen.

Duckworth was born overseas to a US father and a foreign (Thai) mother. She's the opposite of Ted Cruz (born overseas to a foreign (Cuban) father and a US mother). And that actually may make a difference.

Under Nguyen v. United States (2001), a child of a US mother and a foreign father, born overseas, gains citizenship at birth. But the child of a US father and a foreign mother does not necessarily gain citizenship at birth; additional requirements have to be satisfied.

Which may mean that such a person is not a natural-born citizen. I don't know.

[Josh R]

Nguyen was born out of wedlock. The rules for married parents are the same for when only the mother or father is a US citizen. Duckworth is a US citizen at birth.

[Dilan Esper]

That's a decent argument, but I suspect what Biden's lawyers were worried about was because a requirement additional to the birth itself and the citizenship status of the parents had to be satisfied, the courts might find her to not be natural born.

I don't think I buy that, but it does make Duckworth different from the rest of these.

[Josh R]

There is no doubt that Duckworth's father meets the additional requirement. I suspect what the Biden campaign was worried about was a judge who would distinguish between Duckworth being a citizen at birth (yes, all the requirements are met) and a natural-born citizen (no) because the former was granted by statute, not the Constitution.

[David Nieporent]

But that's the same as the Cruz situation, and other than Trump and a handful of illiterate troglodytes online (but I repeat myself), nobody considered that a serious argument.

And there's a dual problem: not only would no real judge ever rule that way, but who would even have standing to bring such a challenge (other than Trump/Pence, and they wouldn't have the guts to do it)?

[Charles Hughes]

Three cases to consider:

Elliott v. Cruz, 137 A. 3d 646 - Pa: Commonwealth Court 2016

“Accordingly, because he was a citizen of the United States from birth, Ted Cruz is eligible to serve as President of the United States, and the objection filed by Carmon Elliott to the Nomination Petition of Ted Cruz is denied.”

Victor Williams v. Ted Cruz, OAL DKT NO STE 5016-16

“I conclude the more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother, or both, is a natural born citizen within the contemplation of the Constitution. As such I conclude that Senator Cruz meets the Article II, Section I qualifications and is eligible to be nominated for President.”

Justice Thomas in Zivotofsky v. Kerry, 576 U.S. ___ (2015)

“...see also Miller v. Albright, 523 U. S. 420, 456 (1998) (Scalia, J., concurring in judgment) (recognizing that “Congress has the power to set the requirements for acquisition of citizenship by persons not born within the territory of the United States”). It has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U. S. C. §§ 1401(c), (d), (g).”

[Josh R]

I did not know previously know that Thomas was on the record as believing "natural-born citizen" equates to "citizen at birth."

[Charles Hughes]

The timing of Thomas’ comment is interesting. It came at about the same time people were questioning Ted Cruz’s eligibility.

Coincidence?

Or was Thomas giving a hint to how he might vote in such a case?

[Jimmy the Dane]

K-money's family used to own slaves. That should probably disqualify her or maybe it will just give us a reason to tear down her statue later.

[Charles Hughes]

Unproven at this point.

[Jimmy the Dane]

Her own dad said it.

[Charles Hughes]

Yes. And family histories can often be wrong.

His grandmother (Christiana Brown) was apparently born in 1880, the Irish-born slave-owner (Hamilton Brown) died in 1843.

There are no records connecting the two in that 37 year gap.

[Armchair Lawyer]

Why is this even a question? Can we discuss something more relevant?

Perhaps the mental capacity and likely dementia of Joe Biden?

[Sarcastr0]

Sure. Awesome argument to use against man woman camera TV.

[LawTalkingGuy]

For the life of me I cannot understand the amount of willful blindness that is required to not only ignore Trump's lack of acumen, but to actually think that this is an area that should be highlighted as one of comparative strength for him.

[Armchair Lawyer]

Wow.

There's a special sort of bubble needed for 3 different posters to blast out or reference that 5 word sequence so quickly. I had to look up what craziness you were talking about.

Now, I've never said Trump is a smart guy. (Hint...he's not). But there's a difference between not being a smart guy, and having actual dementia. Keep in mind half of DEMOCRATS don't think Biden would actually serve 4 years, if elected. 38% of voters think Joe has actual dementia.

And there's a difference between voting for a guy for president who's not super-bright, and one who actually has dementia and doesn't know what's going on.

It's a big issue.

[LawTalkingGuy]

We are talking about a guy who was bragging about passing a cognitive assessment they give to stroke victims and claims it is really hard. That's way beyond just not being super bright.

[StellaLink]

And, he can't remember when he took the test. Was it recently or several years ago. Trump got the wrong answer.

[Sarcastr0]

So you've decided Biden 'likely' has dementia via TV diagnosis.

But it's crazy to come back that Trump also acts pretty demented at times.

In other words, your partisanship is writing your reality again.

[Armchair Lawyer]

It's not "me" who is claiming this. It's the polls.

[Sarcastr0]

Well, that's certainly a valid diagnosis then.

[Armchair Lawyer]

De-om-ocracy..

[Sarcastr0]

There's a different polling question that tells us about that.

[grb]

I remember when Senate Majority Leader Bill Frist (R) made his TV diagnosis of poor Teri Shiavo, refuting the findings of all her doctors. Lord, but that was probably the most loathsome spectacle I've ever seen in D.C. (pre-Trump). It was fascinating to watch how the most righteously Christian players of that drama were the ones who completely abandoned themselves to ugly smears and calculated lying

And here we are today: Armchair Lawyer following in that tradition..

[Dan Schiavetta]

I remember that horrible spectacle.

[grb]

Armchair Lawyer : Your meme on Biden's "dementia" may give you warm fuzzy pleasure now (particularly given poll numbers that must cause you pain) but have considered the cost?

You Right-types have spent months spreading the cartoon fantasy Biden is a drooling imbecile. Tell us what happens when he shows up for the debates and is the same Joe who's already appeared in eleven Democratic face-offs - including the last two-hour event against Bernie Sanders alone. Sure, he may prove a little stodgy, but where will that leave you? Looking like a fool, that's where. It's the common problem when your mouth writes a check that your ass can't deliver.

Suddenly the last Trumpian defense dissipates like morning mist when the sun comes out. (Also, I'm willing to bet Biden at his worst knows the 1918 Spanish Influenza didn't end WWII)

[Leo Marvin]

Ahem... that's the 1917 Spanish Influenza. Read a book!

[grb]

You first!

[Angammus]

Can't I just Wikipedia it? 🙁

[Leo Marvin]

Only if you give Trump apologists enough time to change the date on the Spanish Flu page.

[Armchair Lawyer]

It's been a bit since the Sanders debate.

Biden's been....odd...

[grb]

Really ?!? Your sole hope is that Biden developed dementia since 15March, when he more than held his own against Sanders for over two hours?

Question for you Armchair : What do you think happens when that bit of wishful thinking comes up empty? It's common for politicians to downplay their chances in these events, but only Trump and his cultists could spend month after month performing that service for the other side.

The only question is how many points in the polls Joe picks up after all your lurid silliness falls flat. I can't say, but it will be more than enough to ensure Biden's victory. And you'll have only yourself to blame.

[Armchair Lawyer]

Tis not a "hope". Tis a fear

[grb]

Fear is behind all your nonsense; I'll grant you that.

[Angammus]

S/he's a wee sleekit cowrin' tim'rous beastie. O, what a panic's in [his/her] breastie!

[Rev. Arthur L. Kirkland]

Biden's odd.

Trump is a vainglorious, reckless, vulgar bigot.

Armchair lawyer is a bigot.

Every person who supports Trump is a bigot or appeases bigotry and bigots.

Biden's odd.

[Armchair Lawyer]

Oh Arty, there's only you for our friendly neighborhood bigot here.

[David Nieporent]

For the life of me I cannot understand the amount of willful blindness that is required to not only ignore Trump’s lack of acumen, but to actually think that this is an area that should be highlighted as one of comparative strength for him.

I wish I could upvote this.

Trump wasn't smart to begin with, and has shown clear signs of mental incompetence (he bragged that he could pass a test for dementia! Nay - he bragged that doctors were surprised he could pass a test for dementia! All while calling the test "hard.") He routinely says things that would be embarrassing for an 8-year old. And yet his acolytes pretend that Biden has something to fear from him.

[bernard11]

David,

We are dealing here with cultists.

[Jimmy the Dane]

Are you misgendering the TV on purpose?

[Snorkle]

You're going to have to person-man-woman-camera-tv that one quite a bit harder to get anywhere with it.

But hey, Let's see Manly Don ride a bike. Or at least try to keep his dentures seated long enough to explain why not without slurring.

[StellaLink]

Can't find an image of him on a bike, but here's an image of him with a scooter:
https://d1466nnw0ex81e.cloudfront.net/n_iv/600/777179.jpg

Recently, the question ogf his ability toi drive was posed. Here he is driving a car:
https://d1466nnw0ex81e.cloudfront.net/n_iv/600/902213.jpg

[Snorkle]

I do not believe John Eastman is a human, and will not recognize him as such until I see satisfactory, conclusive proof.

[StellaLink]

John Prine observed that "Some Humans Ain't Human."
https://www.youtube.com/watch?v=uIWotODqidE

[M L]

Love John Prine, notwithstanding some misguided social/political views.

[Sarcastr0]

It's an extremely overused term, but this here? This is virtue signaling.

Gotta make sure everyone knows you're purity policing, but also forgiving!

[M L]

No, I'm talking about taste in music.

[Sarcastr0]

Only for your first 3 words.

[M L]

EV: I believe there is an error in your article, in the phrase "the earlier editions that the Framers would have read didn't use here the phrase "natural-born citizens,"" the hyperlink does not point to an earlier edition, it points to the 1797 edition including the phrase "natural-born citizens."

[Eugene Volokh]

Whoops, thanks, will see if the link can be fixed. (The text is correct.)

[Leo Marvin]

Did you mean to refer to the Ukrainian state as the Ukraine?

[Charles Hughes]

Summary of the Massachusetts Acts of Naturalization and the the terml born citizen and natural born subjects:

February, 1785, "natural born citizens.”

February, 1786, "natural born citizen.”

July, 1786, "natural born citizens."

March, 1787, “natural born subjects.”

May, 1787, "natural born subjects.”

October, 1787, “natural born citizens.”

November, 1787, “natural born subjects.”

June, 1788, “natural born subjects.”

November, 1788, “natural born Citizens.”

February, 1789, “natural born subjects.”

June, 1789, "natural born subjects.”

March, 1790, “natural born subjects.”

March, 1791, “natural born subjects.”

[M L]

The problem with citing Blackstone, and equating Blackstone's "subject" with the different term "citizen" is demonstrated a few pages later, when Blackstone explains that allegiance described is a "debt of gratitude; which cannot be forfeited, altered, or canceled."

Obviously, not a single Framer embraced this notion, and each of them explicitly rejected it. That rejection was the core premise of the risky, bloody rebellion that the Framers conducted.

Admittedly, some State acts and Constitutions used the terms interchangably, where the distinction didn't matter. But the conceptual distinction is stark between the feudal system "subjectship" which was perpetual and immutable, and the American "citizenship" based on consent.

I appreciate the point that this does not imply a "redefinition of the concept of "natural-born"" as this article notes. It seems right that the phrase "natural born" is in accord with Blackstone.

[Sarcastr0]

Different though they may be in operation, I see no support for the idea that natural born citizenship was to be acquired in a different way than natural born subjectship.

[Charles Hughes]

“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States” James Madison, May, 1789.

[M L]

"A" criterion does not mean it is the sole criterion, and "allegiance" is not the same thing as citizenship. But yes, the general presumption in the United States has been that being born here is pertinent to "allegiance" moreso than who your parents were.

Of course Madison was speaking about 80 years before the 14th amendment existed. But even if he had been speaking at the same time, it still would not indicate that the 14th amendment requires automatic citizenship for the children of tourists, or sojourners, much someone who illegally crossed the border and then gave birth. Such automatic citizenship may certainly be granted under law, but the ratification debates preclude the idea that this would be required under the 14th amendment - and no SCOTUS case has ever held otherwise.

[Charles Hughes]

His comment was part of the Ramsay v. Smith contested election in 1788.

Smith won the South Carolina election to the House Of Representatives.

He was born in South Carolina, both of his parents died before 1770 and he was sent to England for schooling. He returned to the US in 1783. Ran for Congress in 1788 and won.

Dr. Dave Ramsay finished third to Smith. He challenged the election on the grounds that Smith was not a citizen for the required seven years. Smith’s parents were not citizens and died British subjects. Smith did not take part in the Revolution and didn’t could have become a citizen until he returned in 1788.

Madison and Congress rejected Ramsay’s argument saying that Smith was a citizen because of his birth in South Carolina.

[M L]

"'Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity or occasional business."

Joseph Story, Conflict of Laws

[Charles Hughes]

“And after he [Story] has stated persons who are born in a country are generally deemed to be citizens of that country, he does not state that there is any qualifications to the rule, though he suggest one as being reasonable.” Chancellor Lewis Sandford in Lynch v. Clarke

[M L]

You see no support because you simply ignore all such support, no matter how many times it is brought to your attention.

[Sarcastr0]

You haven't provided any support; your distinction is without a different in the arena of acquisition.

[M L]

I've provided countless points in support, but pretending we're at square one for a moment, here's a link for you to read that is more on the accessible side, in debate format, easier than a law review article but much more comprehensive than an op-ed:

https://claremontreviewofbooks.com/digital/birthright-citizenship/

[Jimmy the Dane]

Did anyone else find the "are you ready to get to work..." scripted line just sort of odd. Why not say "are you ready to take back America" or "are you ready to do something exciting" or really anything else?

[Dan Schiavetta]

No one would even be bringing this up if Harris was white.

[bobby oshea]

[multiple citations needed]

[Patrick Henry, the 2nd]

No she is not. Her parents were not subject to the complete jurisdiction of the US, hence she is not natural born, hence she is ineligible. Easy peasy.

[David Nieporent]

Her parents were, of course, subject to the complete jurisdiction of the U.S. while they were here. (Not that the 14th amendment puts the word "complete" in there.)

[davidfarrar]

There is nothing "racist" about limiting the definition of Art. II, §1, cl. 5 natural-born citizens to those born exclusively under U.S. sovereignty. The founders and framers of the U.S. Constitution, and, as it turned out, John Jay, realized if they were going to "elect" the commander in chief of the country's armed forces, they had better ensure, as much as possible, that that person occupying that office is loyal solely to the U.S. Constitution.
While it is true, Sen. Harris, under the "Exclusive Citizenship" theory, isn't an Art. II, §1, cl. 5 natural-born citizen, many other persons of color involved in the selection process of Biden's VP pick are: Namely, Rep. Val Demings of Florida, Atlanta Mayor Keisha Lance Bottoms, former Obama administration national security adviser Susan Rice, Stacey Abrams of Georgia, and Rep. Karen Bass.