Living in San Diego, when I ride my motorcycle in the hills near the border I sometimes encounter ICE roadblocks. Once I was asked where I was born. I said, "Oakland, California." Oddly enough, that satisfied the officers, and they sent me on my way. According to Professor John Eastman of Chapman, however, the ICE officers really should have asked me whether my parents had been here on student visas when I was born. Otherwise my status would be in doubt. Fortunately for me, common sense, white skin, and gray hair did the trick.
Professor Eastman has penned a good example of scholarship that nominally poses questions for Senator Kamala Harris, who was born in the same town and the same year as me (but who is otherwise far more accomplished in every dimension). Foreseeably, and inevitably, these questions do much more. They are not a contribution to an arcane debate, as Newsweek disingenuously asserts. In the marketplace of ideas, they will be translated as a set of talking points that, even if well meant, will be used to advance bigotry.
Formally the piece claims to be about the original understanding of the phrase " born . . . in the United States and subject to the jurisdiction thereof." Professor Eastman wonders whether Senator Harris meets this standard, because her parents may not have been permanent residents when she was born. But the piece is not really about the meaning of "jurisdiction." Professor Eastman identifies no aspect of United States jurisdiction to which Senator Harris's parents were not subject. They were not foreign diplomats, for example, nor does he assert that they could not be arrested or sued, did not have to pay taxes, and so on.
Instead, Professor Eastman trades the legal concept of "jurisdiction" for the political concept of "loyalty." He posits that if Senator Harris's parents were not permanent residents 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." He then claims that "concerns about divided allegiance that led our nation's Founders to include the "natural-born citizen" requirement for the office of president and commander-in-chief remain important," citing Russian and Chinese meddling in our elections.
Broken down, the piece asserts: (i) that an infant has political loyalties; (ii) that those loyalties are the same as the parents' loyalties; and (iii) and that only permanent resident immigrants could be loyal to the United States. All three propositions are errant nonsense. Worse still is Professor Chapman's implied equation of Russian election hacking to being born in Oakland to immigrant parents. The equation is preposterous.
Depending on how one views the parameters of reasonable argument, there may or may not be what even Newsweek calls an "arcane" debate on the meaning of this text, but no one outside the echo chamber of originalism scholarship cares about it. And that arcane debate is not about current political loyalty, which is where Professor Eastman turns it to give it bite. In the real world of political debate these questions and their premises will be converted to assertions: Senator Harris is disloyal because her parents were immigrants. And that non sequitur will get a lot more traction because she is Black than it would if she were white.
Newsweek's self-justification is intellectually bankrupt simpering. (We are supposed to be impressed that one of the editors was a law clerk? Really?) It is either a disingenuous or an obtuse publication. If I advertised in it, I would pull my ads.
I take it as given that, personally, Professor Chapman is conservative, not racist. (One must not equate the two.) I expect he would prefer that Senator Harris not become Vice President, and that would be so even if she were white. Fair enough. But context matters, Senator Harris's race is an important element of this context, and framing attacks as questions does not eliminate that fact. This piece does not raise a "significant challenge to Harris' constitutional eligibility to the second-highest office in the land," as it asserts. It provides what amount to talking points that are likely to be used by others to advance bigotry.
For shame.