In early December, you may recall Donald Trump stepping into the ridiculous and quickly dismissed lawsuit from Texas to invalidate election results that Ken Paxton disliked. Trump was represented in that intervention by a Chapman University law professor named John Eastman.
Eastman’s previous claim to fame was to post a comment on Newsweek last August arguing that Kamala Harris was not actually a U.S. citizen. This was widely viewed as racist – because it is – and Newsweek had to apologize long ago to say they were shocked, shocked that the play was “used to perpetuate racism and xenophobia”.
I was less shocked than the editors at Newsweek, and not just because I wasn’t born yesterday. I happened to have seen versions of Eastman’s reasoning before because the virulently anti-immigrant section of the right wing has tried unsuccessfully to promote them for years. I first saw it in an amicus letter in a largely independent case about American Samoa filed by the Immigration Reform Law Institute, the legal branch of a group of anti-immigrant organizations that includes the Center for Immigration Studies. It was promoted in at least one other post, which was included here by Elie Mystal. It is likely the basis for Trump’s recent talk about ending birthright by order of the executive.
And for legal reasons, it’s hot rubbish. Because to believe it, one has to believe that the fourteenth amendment does not mean what it says and then disregard a Supreme Court precedent which directly states that the children of immigrants are citizens. I really think that, around 2020, the right wing won’t be able to be ashamed.
The Fourteenth Amendment of the United States states: “All persons born or naturalized in the United States under their jurisdiction are citizens of the United States and the state in which they reside.” Eastman acknowledges that the United States is in the Practice conferring citizenship at birth, however, claims the “subject to their jurisdiction” clause makes this legally wrong. I want to shed some light on why, but I think I can’t. Eastman says Harris and others in their shoes aren’t under full U.S. jurisdiction, but most likely he explains why Harris owes allegiance to their parents’ countries if they were not naturalized citizens at birth.
Eastman goes on to say that his position is not contradicted by the US Supreme Court finding against Wong Kim Ark that a son born in China is a citizen of Chinese immigrants. Sure, the case directly said, “The fourteenth amendment … including[es] All of the children here were born to resident aliens, “Eastman says, it was dictation. He provides no evidence of this, but who will you believe, a white man or your own eyes? (You don’t really have to choose because another white man, UCLA Professor Eugene Volokh, disproved Eastman.)
The other arguments for this belief are just as bad. The Amicus letter in the American Samoa case is primarily aimed at the children of undocumented immigrants, so it does not apply to Harris, but makes the happily contradicting argument that such people are outside the jurisdiction of the United States because they can be deported. The op-ed Mystal responded by saying that children of immigrants owe a fidelity to their parents’ countries, which is wrong with regard to countries that do not confer citizenship based on their ancestry, and apparently relies on a word the author said in a country added 1866 congressional debate.
The Obama era taught me that when people passionately defend arguments that are obviously nonsense, it is time to look for racism. But while I was writing this, I found evidence of a different explanation. Eastman’s biography at Chapman states that he took time off from university in 2010 to run for California’s attorney general. He didn’t win that race or even leave elementary school, but guess who did that?
Lorelei Laird is a freelance law writer and the only person you know who still has an I Believe Anita Hill bumper sticker. Find them at wordofthelaird.com.