Born in the U.S.A.: Kamala Harris Is Eligible to Become Vice President | Opinion

Is Kamala Harris ineligible to become vice president because she is not a natural born United States citizen? Can that possibly be true? The answer is no. An examination of the relevant constitutional provision and Supreme Court precedent tells us that Harris is indeed a natural born U.S. citizen and fully eligible to become vice president.

Under the Constitution, to be eligible for president or vice president, a person must be a natural born U.S. citizen. The Citizenship Clause of the 14th Amendment defines natural born citizenship. It states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." There is no question Harris was born in the U.S. But, was she "subject to...U.S. jurisdiction" when she was born?

An argument has been made that the "subject to the jurisdiction thereof" language requires that, for a person to be a natural born citizen, he or she be born in the U.S. to parents who are either U.S. citizens or permanent resident aliens. That is a narrow understanding of the phrase and, if true, would mean Kamala Harris is not a natural born citizen since her immigrant parents were not permanent resident aliens when she was born. Her parents were students, presumably in the U.S. on student visas at the time.

But is the narrow interpretation the correct one?

To properly determine the meaning of the Constitution, Justice Antonin Scalia tells us that we should always first try to discern the plain meaning of the text. In this case, the relevant text is the phrase "subject to the jurisdiction" of the United States.

As a starting point, we can look to the ordinary dictionary meaning of the term. Various dictionaries all provide essentially the same meaning: being "subject to" means being "under the political control or authority of something," or "in a situation where you have to obey a rule or a law." Who is subject to the jurisdiction of the United States? Who must obey the laws of this nation? Virtually everyone who is physically present in the U.S., including citizens, foreign tourists, authorized immigrants and even unauthorized immigrants.

The plain meaning of the term "subject to the jurisdiction thereof" is clear and unambiguous. If that's the case, textualists tell us that is the proper meaning. If the 14th Amendment Framers meant something more restrictive, they easily could have adopted more restrictive language. They could have said a person born in the U.S. is a citizen only if their parents are U.S. citizens or permanent legal residents. If there is a clash between competing interpretations, Justice Scalia asserts that the plain meaning should triumph.

Presumptive
Presumptive Democratic vice presidential nominee Kamala Harris Drew Angerer/Getty Images

We can also turn to Supreme Court precedent as an interpretive source. The key case is U.S. v. Wong Kim Ark, decided in 1898. The Court held that a Chinese-American child born in the U.S. to immigrant parents was a U.S. citizen, opining that the 14th Amendment Citizenship Clause "affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens" or "subjects of other countries." The fact that his parents were Chinese immigrants who were, by law, excluded from becoming American citizens, did not matter. The legal status of the parents was irrelevant to a determination of citizenship.

The Wong Kim Ark Court did mention a few, narrow categories of persons who are not subject to U.S. jurisdiction: First, children born to Native Americans; second, children born to foreign diplomats to the U.S.; and third, children born of "alien enemies in hostile occupation." Bottom line: The Court in Wong Kim Ark, whether in its holding or in dicta, effectively ratified the plain meaning of the Citizenship Clause, and the case remains to this day the most definitive explication of that clause's meaning.

There are fraught implications if we adopt the narrow interpretation of the Citizenship Clause. If only persons born to parents who are U.S. citizens or permanent resident aliens are natural born citizens, then, Kamala Harris a person who was born in Oakland, California, is not only ineligible to become vice president, but she is not an American citizen at all.

If she's not an American citizen, then, what is she? Is she a Jamaican citizen? An Indian citizen? Is she an undocumented immigrant? Her status may be even more precarious. She might be a stateless non-citizen. A stateless person is not a citizen of any nation. As a non-citizen, Harris would be subject to deportation to whichever country would agree to take her.

The possibility that Harris could be a stateless non-citizen brings us back to the origins of the Citizenship Clause. Why did the Framers include birthright citizenship in the 14th Amendment in the first place? They were seeking to overrule the infamous 1857 Dred Scott v. Sandford decision. In Dred Scott, the Supreme Court held that all descendants of slaves could never become U.S. citizens. Ever. If they could not be citizens, then, what could they be? They would be stateless non-citizens, part of a permanent second class of people in America.

A restrictive interpretation would take us back to a notion of citizenship that the 14th Amendment rejected. It would also put into jeopardy the citizenship status of countless Americans, including Kamala Harris. By contrast, the broad, plain meaning of the Citizenship Clause, which is the law of the land, provides us with a more inclusive, open notion of citizenship. As a result, we may soon see Vice President Kamala Harris sworn into office.

Reginald Oh is professor of law at Cleveland-Marshall College of Law, Cleveland State University.

The views expressed in this article are the writer's own.