When Kamala Harris ran for president, some folks on the right took a page from Trump’s Obama playbook and raised the question of whether Harris was a natural born citizen. When she left the race, the effort to cast doubts on her citizenship faded away, only to resurge when Joe Biden selected her as his running mate.
While it is tempting to automatically dismiss questions about Harris’s citizenship as evidence of racism, charity requires considering the possibility that there is a legitimate legal concern here. To address the matter, let us consider citizenship cases.
My own case provides a clear example of undisputable citizenship: both my parents are American citizens and both sides of my family can trace their citizenship way back. In the case of my mother’s side, the family has unbroken documentation going back to the Mayflower—so some of my ancestors became United States citizens when the United States became a nation.
Now consider cases that are less clear. George Romney, Mitt’s father, was born in Mexico. Barry Goldwater was born in what is now the state of Arizona—but was not a state at the time of his birth. John McCain was born in the Panama Canal Zone to American parents. Ted Cruz was born in Canada to a Cuban father and American mother. Questions were raised in all these cases and congress even passed a resolution (cosponsored by Obama and Hillary Clinton) stating that John McCain is a natural born citizen. As such, it must be noted that even white men face questions about their citizenship and thus such questions are not necessarily racist.
It might be wondered why such questions arise—it would have been simple enough for the Constitution to provide a clear and concise definition of “natural born citizen.” Unfortunately, the founders did not do this—perhaps because they assumed that what they meant was obvious. While the most obvious solution would be to bring a case before the Supreme Court that would compel a ruling, the courts have been reluctant to address this matter. A with all legal matters that are not self-evident (that is, all legal matters) the question of natural born citizenship has been addressed by legal experts and the general approach has been to accept their consensus view. As it stands, the consensus among the experts and the view of the Congressional Research Service is that the child of a citizen is a natural born citizen even if they are born outside the United States. So, both Ted Cruz and McCain would be Americans on this view and were eligible to be president. But what about Kamala Harris?
On the birthright view of citizenship, Harris would be a natural born citizen: she was born in California. As would be expected, folks on the left generally agree with this view of Harris. Legal experts and scholars also generally hold that the 14th amendment is clear on this matter: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” President Trump has also made it clear that he thinks the 14th Amendment grants birthright citizenship—he has expressed a desire to abolish it. As such, the idea that if you are born here, then you are a natural born citizen is well established. But not unchallenged. John Eastman recently raised arguments against Harris being eligible.
One of Eastman’s arguments focuses on the phrase “subject to the jurisdiction.” Eastman contends that this means “complete jurisdiction” and thus excludes people who are “temporarily sojourning in the United States.” Such people, and Eastman contends that Harris’s parents are such people, are only under the partial jurisdiction of the United States. He does note legal cases in the 1800s that he claims supports his view.
Eastman then admits the obvious: the consensus today is that being born in the United States grants one citizenship. But Eastman argues that this notion did not begin to “morph” from the previous view (under which Harris would not, he claims, be a citizen) into the current view until after Harris was born. As proof, he uses an argument by example. Children born to Mexican guest workers in the 1920s were not granted citizenship and children born to guest workers in the bracero program of the 1950s and 1960s were also not granted citizenship. Eastman then contends that Harris would not meet what he regards as the legal requirements at the time of her birth and hence was not a natural born citizen. Eastman follows the logic of his argument to its conclusion: Harris might not even be a United States citizen.
As would be expected, Eastman’s essay led to considerable criticism and hostility. Some even saw it as an effort to add a veneer of respectability to a racist conspiracy theory on par with that aimed at Obama. In response, Newsweek defended the essay, asserting that Eastman was not engaged in racism, he was merely considering the fine legal points of a longstanding and unsettled debate.
Since I am not a lawyer nor a constitutional scholar, my views on the legal issue have no weight. But there are some clear problems with the argument he advances. A key concern is that his argument rests heavily on his claim that Harris was born before the current notion of birthright citizenship solidified. The idea seems to be that since, he claims, people had a different view then, she was not a citizen and since she was born before the change, it does not apply to her. But he does not really do anything to argue why the change would not apply retroactively—especially since it was not (even on his view) a change of law, but a change of norms and views. If norms and view change about citizenship, it would be odd to say that you must mark the point of change and exclude people prior to that alleged change. There is also the obvious concern that she was accepted as a citizen then—and thus the norms and views of that time were consistent with her being a citizen. There is also the concern that his examples can be taken as evidence for the claim that racism factored into views of citizenship then. Rather than seeing it as he does, as proof that birth in America does not grant citizenship, one could see these as examples of how people are robbed of their citizenship rights because of racism—something that Eastman can be seen as attempting now.
As a professional philosopher, I believe in the importance of intellectual freedom and agree that Eastman has a right to engage the question of whether Harris is a citizen. However, there are moral concerns with his actions. Given the weakness of his argument and the fact that the established consensus is that Harris is a citizen, it is sensible to suspect that the intent of this work is not benign. That is, his goal was not to engage in a good faith intellectual debate over a controversial matter, but to try to hurt Harris. After all, he is certainly aware of the legacy of birtherism and surely knew that his view would be weaponized against Harris—as it was immediately.
The obvious counter would be to argue, rightfully, that a thinker should not be forced to self-censor because others might misuse their ideas or that their ideas might have negative consequences. That said, thinkers are not exempt from the morality of their actions. While Eastman has the right to raise the question he raises, there is the matter of the intent behind raising the question and the harm raising this question can cause.
The obvious concern about this approach is that this freedom of thought can be used as a bad faith cover for intentional efforts to do harm. So, while I agree that a thinker operating in good faith should have the right to engage with controversial matters in a public forum, I am morally opposed to agents acting in bad faith under the guise of intellectual freedom. The obvious challenge is sorting out such cases, since a good faith thinker and bad faith agent can use the exact same words. But context and other evidence can help clear things up, although there can be room for doubt—and there should be a presumption of good faith.
Looking at in context, the attack on Harris’ citizenship seems to be another example of birtherism: an attempt on the right to create a conspiracy theory to convince people that a black citizen is not a citizen. While Eastman did present an argument for his view, the view he is advancing is the same as that of various right-wing conspiracy theorists—and something that has now been taken up by Jenna Ellis, a legal advisor with Trump 2020. As such, there are grounds to suspect that Eastman is operating in bad faith—not exploring a controversial issue as a matter of intellectual interest but attempting to lend a right-wing conspiracy theory an aura of credibility. In any case, by the accepted norms and majority opinion of the experts, Harris is a citizen—and hence eligible to be vice president.