Yes, a Kamala Harris presidency is constitutional
Birtherism is back. As usual, it has little basis in law, reality, or common sense.
Note: This is a much-expanded version of an article of mine that ran in The Conversation last week. If you want to read something much shorter, more succinct, and professionally edited, go check it out. If you don’t want that, then go read The Conversation anyway — it’s a fabulous and informative outlet.
Also, a reminder that this post is available in audio format, and with a few more goodies like the original sound clips I reference in the post. In addition to listening here or in the Substack app, you can also subscribe to You Are Here as a podcast on Spotify, Apple Podcasts, Overcast, and PocketCasts. Enjoy today’s post!
In August of 2020, Newsweek ran an op-ed by John Eastman, a legal scholar and academic at the right-wing Claremont Institute thinktank that made a very bold, and very wrong, claim about then-Senator Kamala Harris, who had just been selected as Joe Biden’s Vice Presidential running mate. The claim? That because neither of Harris’s parents was born in the United States, and had unclear citizenship status when Harris was born in 1964, she isn’t eligible to be president, and therefore was not eligible to be Vice President in 2020.
The op-ed about Harris was roundly denounced by the legal community as unfounded and preposterous. It was also disavowed by the mainstream press and the broader public, who recognized immediately the echoes of birtherism, the conspiracy theory Donald Trump helped spread a decade earlier claiming that President Obama was born in Kenya (Obama was actually born in Hawaii, as shown by his birth certificate). Thus, the allegations about Harris in 2020 — another charismatic mixed-race presidential candidate — felt familiar. Then-President Donald Trump raised the question himself at a press conference, saying he thought Harris’s background was worth looking into.
And although the campaign never pursued it seriously in the weeks leading up to the election (after all, there was a pandemic to mismanage), the incident reportedly put John Eastman on Trump’s radar. This would come in handy later in 2020, when Eastman would be tapped as Trump’s primary legal advisor during the effort to overturn the 2020 election, a role for which Eastman was disbarred in the state of California and indicted as a co-conspirator in the Georgia election interference case.1
Unfortunately for Eastman — and for Donald Trump — neither of these two preposterous legal contributions were effective. Joe Biden became president, and Kamala Harris became Vice President. And now that Harris has replaced Biden as the presidential nominee for the Democrats, her opponents have predictably begun re-circulating Eastman’s dubious claim about her eligibility to be president.
How do we know it’s dubious? A good place to start, it seems, would be Article II, Section 1 of the U.S. Constitution, which lays out the three, and only three, eligibility requirements to hold the office of the presidency:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
Presidents must be at least thirty-five years old; have lived continuously within the U.S. for fourteen years; and be a “natural born Citizen.” The first two requirements are pretty easy to verify, but the third raises a real legal question: what on Earth does “natural born Citizen” mean?
The original Constitution, very unhelpfully, does not specify. But since the founding, both courts and lawmakers have weighed in on the meaning, in ways that were ultimately made much clearer by the 14th Amendment to the Constitution, which was enacted after the Civil War to ensure that formerly enslaved Black Americans and their children were recognized as citizens. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” the Amendment states, “are citizens of the United States.”
The 14th establishes what is commonly referred to today as “birthright citizenship” — that if a person is born on American soil, then there is nothing else they need to do to become a fully-fledged citizen of this country. In other words, says the Cornell Law School Legal Information Institute, “anyone born on U.S. soil and subject to its jurisdiction is a natural born citizen.”
Where does this leave Kamala Harris? According to her birth certificate, which was published back in 2020 by The Mercury News, Harris was born on Oct. 20, 1964, in Oakland, California. The certificate also notes the birthplaces of her father, Donald Harris, who was born in Jamaica; and her mother, Shyamala Gopalan, who was born in India. Both were grad students living in the U.S. at the time of Harris’s birth, but the certificate makes no mention of their citizenship statuses.
It was this detail that fueled John Eastman’s erroneous complaint: that actually, because Harris’s parents were not born in the U.S. and were not clearly citizens at the time of her birth, she does not qualify as a “natural born citizen,” and thus is ineligible to be president.
But any good-faith reading of the Constitution tells us that this is bunk. Article II, Section 1 says that any “natural born Citizen” is eligible to be president; the 14th Amendment says that any person born in the U.S. is a citizen; and Supreme Court cases since the passage of the 14th clarify specifically that those born in America to foreign parents qualify as “natural born.” Whether Kamala Harris would be an effective president is a matter for the voters to decide in a few months; but as a legal matter, she is absolutely eligible and technically qualified to hold the office. Like former President Obama (and Bruce Springsteen), Kamala Harris was born in the U.S.A. As a result, the citizenship status or birthplace of either of her parents is completely irrelevant.
John Eastman’s theory was silly in 2020, and it’s silly today. In an interview with the Associated Press, Loyola Law School professor Jessica Levinson put it about as bluntly as you can: “So many legal questions are really nuanced — this isn't one of those situations.” Prof. Levinson is absolutely right about Harris’s legal case, and — God willing — this will not be a major issue in the 2024 election. But it does gives us a chance to educate ourselves about presidential eligibility, by way of some candidates from past and recent history whose cases are a little — or a lot — more nuanced than Kamala’s.
So even if we take birthright citizenship as granted, what about potential candidates for president who might not have technically been born within the boundaries of the U.S.? Does being born abroad disqualify you from the presidency automatically?
In many cases, yes. Take Arnold Schwarzenegger, the movie star and former governor of California. Although many states have durational residency requirements for holding state office (that is, you need to have lived in the state for a certain amount of time beforehand), they do not typically have birthplace requirements. Schwarzenegger was therefore totally eligible to be governor, and a popular one at that. But despite his assertions that he would “absolutely” have run for president in 2024 if he were allowed to do so, the Constitution is pretty clear that he’s not. Schwarzenegger was born in Austria, to Austrian parents, so the 14th Amendment is no help to him.
So, are there any circumstances under which somebody can be born outside of the country, but still qualify as “natural born” under Article II? History actually tells us that the answer is a tentative “yes.”
We can look, for example, at the late Arizona Senator John McCain, who was the Republican nominee for president in 2008. McCain was born not in any state, but in the Panama Canal Zone while his father was stationed there as a naval officer. However, the Zone was under American control at the time of McCain's birth. And because the 14th Amendment specifies that citizenship also applies to those "subject to the jurisdiction" of the U.S., McCain was on pretty firm legal ground.
During his run, McCain also cited as precedent the successful nomination of Sen. Barry Goldwater, the 1964 Republican nominee who was born in 1909 in Arizona Territory, just a few years before it was admitted to the union as a state. Even McCain's main rivals for the presidency, Democratic Senators Barack Obama and Hillary Clinton, co-sponsored a resolution in April 2008 asserting that McCain was a “natural-born citizen” and thus eligible to be president.
McCain was also likely in the clear because historically, U.S. law has held that someone "born outside the United States to a U.S. citizen parent (or parents) is a U.S. citizen at birth."
This is the same precedent that, had he become president, would likely have applied to U.S. Senator and 2016 candidate Ted Cruz (R-TX), who was born in Canada, but whose mother was an American citizen by birth. Here’s Cruz talking with CNN’s Anderson Cooper about the issue in 2015:
Now, my mother was born in Wilmington, Delaware. She is a natural born citizen. I was born in Canada, as you have heard by now... But I was a citizen by birth, by virtue of my mother's citizenship. So I've never [had to be] naturalized. I've never breathed a breath of air on this planet when I was not a U.S. citizen. It was the act of being born that made me a U.S. citizen.… That's why John McCain was a natural born citizen, even though he was born in Panama, because his parents were U.S. citizens. That's why George Romney, Mitt Romney's dad, was a natural born citizen, even though he was born in Mexico when his parents were Mormon missionaries.
I may never speak these words again, so cherish them while they last: Ted Cruz is absolutely right, by any mainstream interpretation of constitutional law and established precedent. At this point, most (though not all) legal scholars, as well as an authoritative report from the Congressional Research Service published in 2011, hold pretty clearly that “natural born citizen” status is met either by being born in the United States and under its jurisdiction, even if the candidate’s parents are foreign-born non-citizens — this is Harris’s situation — or by being born outside of the U.S., so long as at least one parent was a U.S. citizen — the case for Senator Cruz.
Interestingly, and rather mischievously, John McCain was not quite so sure about Ted’s legal standing when he was asked to weigh in on the question in 2016:
I do not know the answer to that. I know it came up in my race because I was born in Panama, but I was born in the Canal zone, which is a territory. Barry Goldwater was born in Arizona when it was a territory when he ran in 1965… it's a U.S. military base that's different from being born on foreign soil. So I think there is a question; I am not a constitutional scholar on that, but I think it's worth looking into. I don't think it's illegitimate to look into it.
McCain is probably right that his and Goldwater’s situations are more legally clear, as both were clearly within U.S. jurisdictions when they were born. Despite the CRS report and other legal analysis, no truly foreign-born American has ever been a major-party nominee for president; Cruz would have been the first.
The truth is that we’ll never know whether there would have been a serious challenge to a Cruz nomination, or to a George Romney nomination in 1968. Personally, I’m doubtful that legal challenges to either would have made it very far, or would even have been brought by anybody with standing to do so in the first place. By any commonsense definition, all four of these guys are Americans and not Panamanian/Mexican/Canadian spies; and anyone challenging their citizenship would probably have looked like quite the sore loser in the eyes of the public. Ted Cruz maybe shouldn’t be president; but this ain’t the reason why.
We can probably imagine why the founders put in a provision like this in the first place: if the United States was going to be a free and autonomous country, it needed to be free of foreign influence as much as possible. This was particularly true for the President, who would be our main representative abroad, the commander-in-chief of the armed forces, and the chief diplomat to other countries. A president born — and thus, possibly in sympathy with — countries other than the U.S. would be far from ideal for this role. It’s a reasonable argument on its face, particularly coming from a bunch of revolutionaries who had just thrown off a foreign ruler with absolute power. Foreign influence in our elections was and continues to be unacceptable, and we can see why that might include the candidates we run for the highest office in the land.
But history also tells us that this instinct can go way too far, and drift perilously into outright nativism and racism. No major candidate for the presidency — even the guys I just discussed — has ever been in truly serious legal jeopardy because of the "natural born citizen" clause, and Kamala Harris is no exception. The Constitution does not protect her, however, from the same sorts of race-based political attacks that Donald Trump leveled against President Obama (and, to a great extent, Senator Cruz as well), during his yearslong “birtherism” crusade.
This time, neither Trump nor his allies are falsely asserting that Harris wasn't born in the U.S. (Obama, of course, was born in Hawaii). But as with Obama, the implication is clear: this candidate is foreign; they're anti-American; they're "not like you and me." Voters should be aware that these racist attacks may not be new; but they are almost certainly legally baseless.
One Last Thing
I don’t usually share other media stuff I do in this space, but I think this one is worth sharing. You may recall that few weeks ago, I wrote about why Congress, and American politics generally, is so replete with oldsters.
A reporter from CNBC followed up with me and ended up producing this really, really effective video featuring me and a number of other awesome experts and academics talking through the age issue in a lot more detail. In spite of the goofy green polo shirt I wore in the interview, I thought the final product was sensational. Major props to Carlos Waters at CNBC for the video.
Specifically, Eastman provided Trump with an idea even more legally dubious than his denials of birthright citizenship: that Vice President Mike Pence had the authority to deny the slates of electors that came from the December 2020 Electoral College vote, which decisively and uncontroversially elected Joe Biden as the next president. It’s truly not a stretch to say that Eastman is probably the second-most-responsible person for the events on January 6th, 2021.
Very interesting, Charlie. There have to be rules, and they need to cover every eventuality, which is difficult. You explained it well.