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As soon as Kamala Harris arrived on the 2020 general election scene she started causing whiplash among conservative critics. Most are coalescing around pitching her as a left-wing cartoon. Trump himself is going with his “nasty” and “phony” schtick. Tucker Carlson can’t even get her name right. Josh Hawley is trying to paint her as a big business enemy of the middle class which seems a lot closer to the message that actually landed Trump in the White House in the first place. But one thing they can all agree on is casually musing that Black and Brown people aren’t really American citizens.
It’s a conspiracy theory that popped up all over the place as soon as Biden’s camp announced that Harris was joining the ticket, but while most of this speculation was relegated to fringe message boards — indeed some of the more intellectually honest conservative media went ahead and debunked it out of the gate — Newsweek went ahead and published a whole essay about it from former Chapman Law School dean John Eastman.
The crux of the essay is that while Harris was born in the United States, if her parents weren’t citizens at the time, an outdated fringe theory of the 14th Amendment would suggest that she isn’t a natural born citizen because while born here she wouldn’t have been “subject to the jurisdiction thereof.” That provision is intended to deal with foreign diplomats, but here we are.
We make fun of U.S. News and World Report turning into U.S. Rankings and More Rankings, but that fall from grace is nothing compared to the trash bin Newsweek’s turned into.
Overnight, an editor’s note popped up seeking to dispel the impression that this foray into racist birtherism was really the foray into racist birtherism that it was:
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.
Debating the meaning of these constitutional provisions and, in the particular case of Dr. Eastman’s piece, the meaning of the 14th Amendment’s phrase “subject to the jurisdiction thereof,” is not an attempt to deny facts or to make false claims. No one is questioning Harris’ place of birth or the legitimacy of an obviously valid birth certificate.
You see, this is all about textual interpretation and parsing words carefully. For example, when the editors write the denial, “Eastman’s Newsweek Column Has Nothing to Do With Racist Birtherism” you might accidentally read that as “this is not racist” when they’re really only saying “it’s not about the fact of her birth.”
In fact, though, it is totally racist and also a new flavor of birtherism as it explicitly questions the circumstances, if not the location, of her birth. The editors, Editor-in-chief Nancy Cooper and Opinion Editor (and noted internet troll) Josh Hammer, attempt to deflect the idea that this could be racist by pointing out that John McCain and Ted Cruz also faced questions about their eligibility.
Why, exactly, was Cruz’s eligibility not racist birtherism? Cruz was born in Canada, which is a good cherry on top laugh about an Ivy League guy who tries desperately to wrap himself in Texas, but his mother’s American citizenship made him a citizen from birth. The person who spent the most time questioning Cruz’s eligibility was… Donald Trump who called him an “anchor baby” and wrapped it in with his wingnut theories about Cruz’s father assassinating JFK with Castro. The point is Cruz being a Republican doesn’t give him anti-racism armor and the questions about his eligibility were always about exploiting his “funny name” and immigrant father to undermine his legitimacy.
John McCain’s issue was a bit more explicit since the United States had been taking the position that children of American parents in Panama did not have citizenship — a stance driven by the reluctance to admit, ahem, a lot of kids produced by stationing a bunch of guys down there for years. This was resolved by later statute and then Clinton and Obama joined a resolution declaring McCain eligible anyway to close the issue.
The editor’s note is just one big “hey, we’re just asking QUESTIONS” defense. An adolescent response trying to duck behind the safe haven of academic inquiry. “I’m not saying he rapes goats, I’m just saying people have wondered and I think we should consider it.” Eastman’s essay is “a woman of color with immigrant parents is not American” dressed up to sound like a serious and neutral inquiry. This isn’t an intellectual inquiry, it’s a memorandum of understanding laying out the talking points for a nagging racist hit job. If you’re looking to get on Fox or OANN, start memorizing these out-of-context statutes and cases now! These shall be your new shibboleths.
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?
Prepare for four years of people asking for her dad’s long-form Green Card.
None of this really matters of course because she was born in Oakland. The status of her parents mean exactly squat since she doesn’t fall into the long-recognized exceptions to the 14th Amendment (i.e., the aforementioned diplomats, the children of indigenous people who were not citizens at the time, and the children of a hypothetical foreign occupying army who might happen to be on U.S. soil).
It’s the same racist birtherism wrapped in a new bow. It’s moved from “was he born in Hawai’i?” to “was she born the right way in California?” but it’s all the same claptrap. Far from Newsweek’s denial, this article and its tortured reading of the Constitution to get around Harris’s cut-and-dry birth certificate actually underscores exactly how birtherism works.
It’s never been about a birth certificate.
Some Questions for Kamala Harris About Eligibility | Opinion [Newsweek]
Editor’s Note: Eastman’s Newsweek Column Has Nothing to Do With Racist Birtherism [Newsweek]
Earlier: Federal Clerk Attacks His Law School For Celebrating Pro Bono Work