Yes, Kamala Harris Is Eligible to Be Vice President | Opinion

Some people have argued that Kamala Harris is ineligible to be vice president of the United States. The Constitution requires presidents and vice presidents to be "natural-born citizens"; Harris was born in the U.S., but her parents (who had come to the U.S. to study) weren't U.S. citizens at the time. Does "natural-born citizen" include Harris, and others like her?

It does. "Natural-born citizen" was a familiar legal phrase to the Framers—an adaptation of the English term "natural-born subject." Sir William Blackstone, an English treatise writer who (in Justice Scalia's words) was "the Framers' accepted authority on English law and the English Constitution," explained:

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king. ...The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.

English law defined "natural-born" based on birth (with some narrow exceptions), not on the parents' citizenship. Likewise, William Rawle's 1825 treatise on the Constitution said that "every person born within the United States, ...whether the parents are citizens or aliens, is a natural-born citizen." (Rawle was a lawyer at the time the Constitution was written, and served as the federal prosecutor in Pennsylvania during the Washington and Adams administrations.)

The Framers did generally shift from talking about "subjects" to "citizens," but that stemmed from a change from monarchy to republic, and not a redefinition of the concept of "natural-born." Indeed, the post-Independence Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777 expressly used Blackstone's "natural-born subject" phrase in explaining that naturalized citizens were "entitled to all the rights of a natural-born subject of this state."

It's possible that "natural-born citizen" has since been broadened to include children of U.S. citizens born overseas (a 1790 Act of Congress specified that, "The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens"). But it hasn't been narrowed, and in U.S. v. Wong Kim Ark (1898), the Court interpreted the 14th Amendment as reaffirming that people born in the U.S. are indeed natural-born citizens, regardless of their parents' citizenship.

The 14th Amendment does have a narrow exception for people who were not "subject to the jurisdiction" of the U.S. at birth, but the Court made clear that this was a narrow exception for "children of members of the Indian tribes," who were at the time not citizens, "children born of alien enemies in hostile occupation" and "children of diplomatic representatives of a foreign State." Children born to noncitizens living here are certainly subject to the jurisdiction of American courts—no one thinks, for instance, that they are immune from criminal prosecutions or civil lawsuits. They are likewise "subject to the jurisdiction" of the United States for citizenship purposes.

Now, this view had not been universal. For instance, the 1797 edition of the English translation of Emer Vattel's treatise on The Law of Nations (a book that had some influence on the Framers), did say that, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." But that was describing the European civil law rule, not the English common law rule; and in any event, the earlier editions that the Framers would have read didn't use here the phrase "natural-born citizens," but instead spoke of "indigenes" (borrowed directly from the French original "Les Naturels, ou Indigènes"). The Framers, when they were writing the Constitution, likely mentally linked the "natural-born citizens" phrase to the "natural-born subject" in Blackstone's very familiar explanation of the common law, rather than to "natives, or indigenes" in Vattel's somewhat less familiar discussion of the civil law.

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

My friend and fellow law professor John Eastman also points to some late 1800s cases that read the 14th Amendment's definition of citizenship as excluding children born in the U.S. to foreigners, such as: "The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign states born within the United States." But this phrase came in an 1873 case that dealt with the subject only in passing, since it had nothing to do with foreigners; and an 1875 case made clear that the matter remained unresolved in the justices' eyes.

It was Wong Kim Ark, in 1898, that considered the question directly, and expressly concluded that the children of foreign citizens (there, citizens of China) were American citizens. And though the parents there were permanent residents—albeit ones who returned to China when Wong Kim Ark was 17—rather than students, the logic of the case would apply to people living here on student visas, as well. And that logic is entirely consistent with Blackstone's explanation of late 1700s English law, to which the Framers were likely referring.

Some have argued, I think quite wrongly, that such attention to Harris' qualifications is connected to her race. But there are people of all races who are indubitably natural-born citizens of the U.S., and people of all races who are indubitably not. (I'm white, for instance, but I'm certainly disqualified from the presidency, because I was born in what was then the USSR, and is now the Ukraine.)

The attention does have to do with her parents' immigration status, and may thus be said to be in a sense skeptical of immigration. But the Constitution itself was to a limited degree skeptical of immigration, in limiting the presidency and vice presidency to "natural-born citizens" and excluding naturalized ones. The Framers were concerned that foreigners who immigrated into the U.S. might have enough allegiance to their former countries that they should not be trusted with the highest office in the land. It is perfectly proper to enforce this constitutional rule, whatever we think of the policy behind it.

But the Framers embodied this policy in a clear set of qualifications: The president must be "a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution"; must have "been fourteen Years a Resident within the United States" (another way of screening out people who might be too foreign); and must "have attained to the Age of thirty five Years." Someone who is, say, married to a foreign citizen or has children with foreign citizenship, or is even related by blood to a foreign royal house (a matter that may have been of some concern when the U.S. was still young and relatively weak), was not disqualified. It was up to the political process to decide whether to elect such a person—it was not a matter of constitutional disqualification.

The same is true for people born in the U.S. whose parents were foreign citizens. They were "natural-born subjects" under English law, and thus "natural-born citizens" to the Framers. Kamala Harris easily fits within that category.

Eugene Volokh is the Gary T. Schwartz distinguished professor of law at UCLA School of Law.

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

John Eastman offers the opposing argument here.