At Newsweek, John Eastman (Chapman): Some Questions for Kamala Harris About Eligibility. From the core of the argument:

The language of Article II is that one must be a natural-born citizen [to be President]. The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that “all persons born…in the United States, and subject to the jurisdiction thereof, are citizens.” Those who claim that birth alone is sufficient overlook the second phrase. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully).

Were [Senator] Harris’ parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible. Or were they instead, as seems to be the case, merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act? If the latter were indeed the case, then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers—Jamaica, in the case of her father, and India, in the case of her mother—and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.

(Via Ediberto Roman at Faculty Lounge.)

I disagree with Dean Eastman’s view of the original meaning of the “subject to the jurisdiction” language of the Fourteenth Amendment, as I’ve written previously on this blog (and am writing at greater length in a forthcoming article).  But entirely apart from that, I think his analysis errs in equating the Fourteenth Amendment and the natural born citizen clause.

The first sentence of the Fourteenth Amendment is not a complete definition of who is a U.S. citizen at birth.  It it a statement of who has a constitutional right to U.S. citizenship.  In addition to constitutional citizens, Congress may create (and has created) categories of persons who are U.S. citizens at birth — for example, persons born abroad with at least one U.S. citizen parent.  (It happens that I fall into that category).  Persons in this category are not U.S. citizens under the Fourteenth Amendment.  But they are U.S. citizens.

Whether persons in this category are natural born citizens is a different question.  That turns not on the original meaning of the Fourteenth Amendment but on the original meaning of the natural born citizen clause of Article II.  This issue was particularly prominent in 2016 in connection with Senator and presidential candidate Ted Cruz, who was born in Canada to a U.S. citizen mother.  Senator Cruz is not a constitutional citizen under the Fourteenth Amendment.  But quite arguably (and so I have argued) he is a natural born citizen under  Article II.

The Fourteenth Amendment does not define what it means to be a natural born citizen.  (Indeed, it’s theoretically possible — though I think not true in reality — that someone could be a constitutional citizen under the Fourteenth Amendment and not be a natural born citizen).  The two provisions are simply describing different things.

So (assuming that Senator Harris’ parents were not permanent residents when she was born) the question is whether persons in that category were considered natural born citizens when Article II was adopted.  I think the answer is clearly yes, for the reasons stated here.  But the Fourteenth Amendment has nothing to do with it.

RELATED:  Also at Newsweek, Eugene Volokh has a response to Dean Eastman, adapted from his earlier blog post on the issue. He doesn’t take on the Fourteenth Amendment point, and I agree he doesn’t need to.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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