Friday, August 14, 2020

The return of the birthers

Yes, they are back. In my own simplifying way I kind of thought that the matter is settled. Were they not trounced by their misguided attack on Obama’s birth status? I guess not. The same kind of conspiracy bullshit is being resurrected, this time against Kamala Harris.

On my reading, the fourteenth amendment of the Constitution is quite 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 …”

Just in case, not being a constitutional law guy, I consulted Eugene Volokh, a conservative professor of law. Here’s an abbreviated opinion. Yes, Kamala Harris Is Indeed a Natural-Born Citizen. Here’s a small part of what he had to say.

I saw over the weekend that some people argue that Kamala Harris is ineligible to be Vice-President: apparently her parents weren’t citizens when she was born, so the argument goes that she is thus not a natural-born citizen. (Under article II of the Constitution, only a “natural-born citizen” can be President, and the Twelfth Amendment provides that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”)

Finally, I’ve seen some suggest that being born to noncitizen parents may lead to divided loyalties, and that this should preclude the person from being elected President (or Vice-President). But while concern about divided loyalties may be the reason for the provision, the provision itself doesn’t ask about divided loyalties.

The voters can certainly consider any claims of dual loyalty. But the minimum criteria set forth by the Constitution are solely that the person be “a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution,” “have attained to the Age of thirty five Years,” and have “been fourteen Years a Resident within the United States.”

I wouldn’t vote for Kamala Harris for Vice-President (or for President); but she is indubitably constitutionally eligible to the office.

Charlie Sykes ( also considered the challenge to the status of Harris’ citizenship.

The birthers are back.

John Eastman, a fellow at the Trumpy Claremont Institute, is just asking questions, right, when he writes in Newsweek: “Some Questions for Kamala Harris About Eligibility.” Eastman writes: “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. That, according to these commentators, makes her not a ”natural born citizen“—and therefore ineligible for the office of the president and, hence, ineligible for the office of the vice president.”

Apparently, this is a big a day for dog whistles. “I have no doubt that this significant challenge to Harris’ constitutional eligibility to the second-highest office in the land will be dismissed out of hand as so much antiquated constitutional tripe,” writes the Claremont fellow. “But the concerns about divided allegiance …”

The argument is bullshit, of course, but expect it to be widely circulated in conservative media over the next few weeks.

Eugene Volokh is the Gary T. Schwartz Professor of Law at the UCLA School of Law and co-founder of the Volokh Conspiracy blog, hosted at Reason.

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