Chapman professor questions Harris’ eligibility for vice presidency

Kamala Harris was selected as Joe Biden’s running mate Aug. 11. Pictured above, Harris, left, is sworn into office by Biden, right, as a California senator Jan. 3, 2017. WikiCommons.

Not a day after the presumptive Democratic nominee Joe Biden announced California Sen. Kamala Harris as his running mate in his 2020 presidential bid, a Chapman University law professor stirred controversy by challenging Harris’ candidacy. 

John Eastman, the Henry Salvatori Professor of Law and Community Service at Chapman University Fowler School of Law, released an opinion piece on Newsweek Aug. 12 titled “Some Questions for Kamala Harris About Eligibility.” In the article, Eastman calls Harris’ natural-born citizenship into question, determining that under the “original” interpretation of the 14th Amendment’s Citizenship Clause, her eligibility for the position of vice president is uncertain. 

“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,” the piece read, in reference to a question if her parents were temporary visitors on student visas.

John Eastman, Chapman University professor at the Dale E. Fowler School of Law. Photo by Chapman University

Formerly the Dean of the Fowler School of Law at Chapman, Eastman resigned from his position in 2010 to run for California Attorney General. As a member of former President Ronald Reagan’s administration, a former clerk to Supreme Court Justice Clarence Thomas and a proponent of President Donald Trump and the Republican party, Eastman pursued a Republican nomination. However, he lost in the Republican primary by a 13 percent margin to former Los Angeles County District Attorney Steve Cooley – who would then go on to concede the race to Harris. 

In his opinion piece, Eastman posed questions regarding the citizenship status of Harris’ parents, asking if her mother, father, or if she herself had been “naturalized.” If they had not, it would deem Harris’ eligibility for vice presidency invalid. 

However, Eugene Volokh – a member of the American Law Institute and a professor in First Amendment law at University of California, Los Angeles (UCLA), as well as a longtime friend of Eastman for almost 20 years – disagreed with his colleague’s line of reasoning. Eastman references Volokh’s own Aug. 10 opinion affirming Harris’ citizenship in his Newsweek piece, calling Volokh’s drawing on the Citizenship Clause in the 14th Amendment “erroneous.” 

In an interview with The Panther, Volokh said while he doesn't support Biden and Harris, who was born in Oakland, California, he disagrees with Eastman’s logic and argues Harris is a natural-born citizen.

Eastman cites, in his opinion, the 1898 U.S. v. Wong Kim Ark Supreme Court Case, which ruled that unless a newborn falls into four specific scenarios – born to foreign rulers or diplomats, born on foreign public ships, born to enemy forces on the U.S. territory or born to members of Native American tribes – they remain under the jurisdiction of the United States. As a result, Volokh reasoned that almost all children born in the U.S. are treated as natural-born citizens, and said the logic of Wong Kim Ark would equally apply to children of parents here on temporary student visas.

“The Wong Kim Ark opinion defines who is excluded by the phrase ‘subject to the jurisdiction,’ and those are very narrow categories,” Volokh told The Panther. “Basically, anybody who is in the U.S. who doesn’t fall into those three narrow categories and is born in the U.S. qualifies as a natural-born citizen.”

Many on Twitter, where Eastman shared his piece, were quick to condemn it as racist. Garnering 9,000 likes, one Twitter user commented, “If this racist piece of (expletive) John Eastman is still employed by Newsweek or Chapman University by the end of the day, we need to boycott them both until they fire him.” 

Jamie Ceman, the vice president of strategic marketing and communications at Chapman University, wrote an email statement to The Panther.

“Chapman University respects the academic freedom of all its faculty,” Ceman wrote Aug. 13. “The opinions expressed by faculty are their own and we will never restrict their right to express it, however, they do not represent the opinions of the institution.”

Another 22,200 comments have been left on Eastman’s Twitter as of midday Aug. 13, most of which criticize the author and Newsweek for painting a narrative that interpreted and drew heavily on legislation from the 1800s. The word “birtherism” began trending on Twitter Aug. 12 as a result of Eastman’s article, seemingly in reference to a term that became popular during Trump’s questioning of the authenticity of former President Barack Obama’s birth certificate. 

However, Newsweek’s Global Editor-in-Chief Nancy Cooper and Opinions Editor Josh Hammer uploaded a separate “Editor’s Note” later that night denying claims of Eastman’s assumed “racist birtherism.” Cooper and Hammer attempted to assuage the conflict by alluding to the longstanding debate between scholars on the textual foundation of the Citizenship Clause and whether it is mandated by birthright citizenship as opposed to citizenship by parentage. Additionally, they affirmed Eastman’s qualifications as a “preeminent constitutional scholar,” noting he has litigated “countless” cases at the Supreme Court. Volokh also spoke against claims of “birtherism,” and any comparison to the debate over Obama’s citizenship in relation to Harris’. 

“They’re obviously about a similar issue, but generally speaking, the debates couldn’t be more different,” Volokh said. “Here, there’s no factual; there’s a purely legal question. Who counts as a legal-born citizen?”

Eastman did not respond to The Panther’s requests for comment.

Update Thursday Aug. 13, 8:58 p.m. PT: President Donald Trump made remarks today suggesting California Sen. Kamala Harris is not eligible for vice presidency. While not outwardly questioning her citizenship, he was quoted by the New York Times saying to White House reporters, “I would have thought, I would have assumed, that the Democrats would have checked that out before she gets chosen to run for vice president.” Trump mentioned he has “no idea if that’s right,” but said he heard speculation earlier today, which may be in reference to John Eastman’s opinion piece on Newsweek.