Editor's Note: Eastman's Newsweek Column Has Nothing to Do With Racist Birtherism

Kamala Harris
California Senator Kamala Harris is Joe Biden's pick for vice president on the 2020 Democratic ticket. KAMM/AFP/Getty

Some of our readers have reacted strongly to the op-ed we published by Dr. John Eastman, assuming it to be an attempt to ignite a racist conspiracy theory around Kamala Harris' candidacy. Dr. Eastman was focusing on a long-standing, somewhat arcane legal debate about the precise meaning of the phrase "subject to the jurisdiction thereof" in the Citizenship Clause of the 14th Amendment. His essay has no connection whatsoever to so-called "birther-ism," the racist 2008 conspiracy theory aimed at delegitimizing then-candidate Barack Obama by claiming, baselessly, that he was born not in Hawaii but in Kenya. We share our readers' revulsion at those vile lies.

The 14th Amendment is one of the most-studied areas of constitutional law, and questions were raised by the Constitution's Article II, Section 1 "natural born Citizen" requirement for presidential eligibility about both John McCain and Ted Cruz, at the time of their respective runs. The meaning of "natural born Citizen," and the relation of that Article II textual requirement to the 14th Amendment's Citizenship Clause, are issues of legal interpretation about which scholars and commentators can, and will, robustly disagree.

Debating the meaning of these constitutional provisions and, in the particular case of Dr. Eastman's piece, the meaning of the 14th Amendment's phrase "subject to the jurisdiction thereof," is not an attempt to deny facts or to make false claims. No one is questioning Harris' place of birth or the legitimacy of an obviously valid birth certificate.

On the contrary, leading law schools have long entertained debates between competing scholars about the original public meaning of the Citizenship Clause. The issue discussed in these debates, and contested by Dr. Eastman, is whether birthright citizenship (jus soli, birth by soil), as opposed to merely citizenship by parentage (jus sanguinis, that is, citizenship by citizenship of one's parents at time of birth), is textually mandated. Again, scholars can, and do, disagree on this point.

Some scholars contend that "subject to the jurisdiction thereof" refers to a "partial" jurisdiction (e.g., when a citizen travels to a foreign land and is subject to the criminal laws of that foreign land), and some contend that it refers to a "complete" jurisdiction, which means political allegiance (hence, jus sanguinis). This "natural born Citizen" presidential requirement was debated during the 2000 and 2008 presidential campaigns of McCain (born in the Panama Canal Zone), the 2016 presidential campaign of Cruz (born in Calgary, Alberta), and at other times. In Harris' case, because her parents were not U.S. citizens at the time of her birth, her "natural born Citizen" status—a constitutional requirement for the presidency—is necessarily dependent on whether the 14th Amendment Citizenship Clause mandates jus soli, as opposed to just jus sanguinis (holding aside any independent congressional legislation in this field).

The author of the op-ed, John Eastman, a Ph.D. and longtime law professor/former law school dean who has litigated countless cases at the Supreme Court and previously clerked for Justice Clarence Thomas, is a preeminent constitutional scholar widely associated with the legal argument that the aforementioned Clause does not constitutionally mandate jus soli. (Josh Hammer, Newsweek's opinion editor, is a published constitutional scholar and former federal court of appeals law clerk who was involved in helping Senator Cruz's 2016 presidential campaign rebut the erroneous claims that Cruz was ineligible on "natural born Citizen" grounds.)

The debate pertaining to the precise constitutional requirements for the Article II phrase "natural born Citizen," having been aired in 2000, 2008 and 2016, is unlikely to fall quiet soon.

Nancy Cooper
Global Editor in Chief

Josh Hammer
Opinion Editor

Editor's Note: Eastman's Newsweek Column Has Nothing to Do With Racist Birtherism | Opinion