Kamala Harris – Eligible for President?
Now that Kamala Harris is officially the Democrat nominee for President, it again raises the question of whether she is eligible per the Constitution that requires Presidents be Natural Born Citizens. Of course, no one is really asking the question since she has been the Vice President, and it seems to be a moot point. When the question was originally asked by then President Trump when she first became Biden’s running mate, all anyone would say is “Of course she is eligible, she was born in Oakland CA”, as if that settles it. Well, there is more to the story!
Let’s see what the Constitution says on the eligibility factor. What is the citizenship requirement to be President? Article II of the Constitution specifies that “[n]o person except a natural born citizen…shall be eligible to the office of President.”
First, why would the Founders put the requirement to be a natural born citizen in the Constitution? Well, they wanted to make sure that the chief executive was not in any way beholding to a foreign power. Where did they get the wisdom for that idea? From the Bible – Deuteronomy 17:15 says: you may indeed set a king over you whom the Lord your God will choose. One from among your brothers you shall set as king over you. You may not put a foreigner over you, who is not your brother. This great advice from the Lord was incorporated in the Constitution.
Now back to Kamala Harris. Her father was (and is) a Jamaican national, her mother was from India, and neither was a naturalized U.S. citizen at the time of Harris’ birth in 1964. Does that make her a “natural born citizen” or not? Contrary to the media, that should an important question that determines her eligibility for the office of the president.
The original Constitution did not define what is a natural born citizen so we must look to the Founding generation to see what they understood as natural born citizens. Since they relied heavily on British common law, the most used reference in the Founding era for that was Blackstone’s Commentaries on the Laws of England. According to Blackstone who used the principle of jus soli (meaning “right of the soil”), anyone born in the land of England was considered a natural born subject. He discussed in detail that a person not born in England but with English parents (specifically the father) was also a natural born subject due
to their allegiance to the King. (That is another eligibility discussion for people like Ted Cruz who were born outside the US.) Blackstone did not address the issue of allegiance when a foreign couple had a child in England. St. George Tucker, in his influential update of Blackstone’s Commentaries echoed Blackstone’s jus soli ideas. Today, most people point to Blackstone’ jus soli as the accurate definition of natural born citizen, and therefore claim that anyone born in the US, regardless of circumstances, is a natural born citizen.
However, the truth is a little more complicated. By taking the jus soli view exclusively, scholars disregard the principles of natural law and the laws of nations. This is a significant omission given that the word “natural” is used in the phrase natural born citizen. Also, what is disregarded is the 1758 treatise of Emil de Vattel, The Laws of Nations, or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. That book, along with Blackstone’s Commentaries, were the two books the Senate bought for official use in 1794 to deal with foreign relations issues.
How did Vattel view natural born citizenship? Unlike the English statutes and treatises, the Swiss republican Vattel wrote of citizens, not subjects. He began: The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens [the French word is indigene], are those born in the country, of parents who are citizens …. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country. In Vattel’s view, jus sanguinis (meaning “right of blood”) trumped jus soli in determining “natural born” citizenship. A child born in the territory of one sovereign was not a citizen of the sovereign if the child’s father was not a citizen. The idea was that a child, as a minor, inherited the allegiance of the father through a “tacit consent” which the child could renounce upon coming of age. Note the resemblance of Vattel’s logic here to Madison’s reasoning in his May 1789 speech. [E]very man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth.
Now we have two plausible definitions of natural born citizen. The real question is then, which definition did the Founders mean. Unfortunately, there is no definitive answer from history. Either definition could be argued with Founder’s quotes and other historical evidence.
So, what else can we examine to get the true sense of the word? There were no significant court rulings in the early years to point to the correct definition. Not until after the 14th Amendment do we see court rulings that somewhat address the issue.
Today, many scholars and certainly the left points to the 14th Amendment as the proof of what they call “birthright citizenship”, that anyone born in the US, regardless of their parents’ circumstances, are citizens and therefore natural born citizens.
What does the 14th Amendment say about citizenship? It says this in Section 1 – “All persons born or naturalized in the United States, … are citizens of the United States and the State wherein they reside.”
Is that what it says? Well, no. I skipped a section, but that is how the left reads it today. What it actually says is “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
Those who claim that birth alone is sufficient overlook the second phrase. I have read articles and heard news reports that conveniently leave that phrase out. That is a very important phrase because it makes a qualification on citizenship for those born in the US.
What does “and subject to the jurisdiction thereof” mean? Again, to understand we must go back to the intent of those who proposed and ratified the Amendment.
The view of those who authored the 14th Amendment’s Citizenship Clause was that it meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully).
Of course, everyone knows the real intent of the Amendment was to ensure that freed slaves were granted citizenship in both their State and the United States. It
also overturned the Dred Scott decision that denied citizenship to slaves and freed slaves. The Left has a way of reading the clear intent of a law, the Constitution, or an amendment and expanding it to meet their purposes. The 14th Amendment has been used more than any other for that purpose. But what of Birthright Citizenship? Did the authors and ratifiers of the 14th Amendment intend to include that in this Amendment?
The Left claims that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally. But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868.
The Left erroneously states that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike. But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
Before the 14th Amendment, citizenship was granted by states, and subsequently recognized by the federal government. When the 14th Amendment was enacted, there were few limits on immigration and very few persons in the United States would have been residing here illegally. There is simply no direct evidence that Congress wished to confer citizenship on the children of temporary or illegal visitors, but there is a lot of evidence that they did not.
The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.
This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
In the Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born on American soil, no matter what the circumstances of their birth, and no matter who their parents are.
The Left also claims that the issue was settled in 1898 in the case of US v. Wong Kim Ark. First, I will say again that the Supreme Court is not supposed to make law and is not the final authority for all things Constitutional. Secondly, even in that case, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally or temporarily must be considered a U.S. citizen. I believe the court’s interpretation of the 14th Amendment as extending to the children of legal, noncitizens was incorrect, according to the text and legislative history of the amendment. But even under that holding, citizenship was not extended to the children of illegal aliens or temporary residents—only permanent, legal residents.
Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.
What is the practical history of this issue since these cases? For example, the children born on U.S. soil to guest workers from Mexico during the Roaring 1920s were not viewed as citizens when, in the wake of the Great Depression, their families were repatriated to Mexico. Nor were the children born on U.S. soil to guest workers in the bracero program of the 1950s and early 1960s deemed citizens when that program ended, and their families emigrated back to their home countries.
It is just plain wrong to claim that the children born of parents temporarily in the country as students or tourists or illegals are automatically U.S. citizens: They do not meet the 14th Amendment’s jurisdictional allegiance obligations. They are, in
fact, subject to the political jurisdiction (and allegiance) of the country of their parents.
You may be thinking, since there is no clear reason to give birthright citizenship in the 14th Amendment or anywhere else in the Constitution, why are we doing it? Good question!
Federal law offers no answer. U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.”
Granted, our government’s view of the Constitution’s citizenship mandate has morphed over the decades to what is now an absolute “you are a US citizen if you are born on the soil – no matter the circumstances”. This view has encouraged abuses from illegal aliens to expectant mothers who fly to the States on “vacation” to have their babies so they can be US citizens.
When and how did this happen? Sometime in the late 1960’s, the State Department began interpreting that statute erroneously and thus began to provide passports to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S. Accordingly, birthright citizenship has been implemented by fiat from an unelected bureaucracy, not because it is required by federal law or the Constitution.
Do other countries grant birthright citizenship? The left will shout “There are 30 other countries that grant such citizenship rights.” Really, well that means there are 164 countries that do not. And of the major industrialized countries, only the US and Canada have such policies. The rest who do are third world countries who don’t have a major demand for immigration. Most nations recognize the stupidity of such a policy. We are destroying our country by allowing such a crazy policy!
Birthright Citizenship has gone unchallenged for the last 50 years, it is time to start challenging it, and making it a major campaign issue. In practicality, it is too late to challenge Harris’ eligibility. I have no doubt that the Left will dismiss out of hand any challenge to Harris’ constitutional eligibility for President, because they have such loathing for our Constitution and the rule of law. They will fight tooth and nail to maintain that she is eligible, and it goes way beyond just her running
for President. The whole issue of birthright citizenship is at stake. They want/need all the illegals to become citizens so they can add to the number of Democrat voters.
But, the concerns about divided allegiance that led our nation’s Founders to include the “natural-born citizen” requirement for the office of president and commander-in-chief remain important. It is obvious from Harris’ rhetoric that she does not hold a tight allegiance to our Founders view of America. I don’t think she is capable of the oath to “preserve, protect and defend the Constitution of the United States!”
Unfortunately, this question will get no traction, even from conservatives. The real need is for Congress to fulfill its duties and make specific law about birthright citizenship; hopefully, declaring that babies of illegals and temporary visitors are not citizens. That authority was given to Congress in Article 1, Section 8 and no one else. The courts shouldn’t be making those policies and certainly not an unelected bureaucracy. i “Natural Born Citizen”, Thomas H. Lee, American University Law Review, Vol 67:327, p. 390
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