7 mins read

It was just a matter of time before someone questioned whether Kamala Harris is eligible for the vice presidency because her parents are immigrants.

On Wednesday, John Eastman published a piece in Newsweek making just such an argument.

This morning, the Trump campaign got into the act when Trump campaign advisor Jenna Ellis told ABC reporter Will Steakin that Harris’s eligibility is an “open question.” She also retweeted the Newsweek Op Ed piece.

Before we begin, it’s worth noting John Eastman, author of the Newsweek piece, ran for attorney general of California in 2010. He lost the Republican primary. Had he won, his competition would have been Kamala Harris, who, of course, won the election.

I will march through Eastman’s arguments and offer rebuttals, not because I care what John Eastman thinks, but because it’s obvious that this stuff will be pervasive on Facebook, and many of you will hear this nonsense from family members.

Here is what you need to know.

Eastman doesn’t deny that Harris was born in Oakland, but he questions whether she is nonetheless eligible because Article II requires that the President be “natural born.”

Article II states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” And Article II of the Constitution specifies that “[n]o person except a natural born citizen…shall be eligible to the office of President.”

The original Constitution that included the term “natural born” was a racist document that permitted slavery. We fought a thing called the Civil War. The Confederates lost. As a result, we got the Thirteenth, Fourteenth, and Fifteenth Amendments.

The Thirteenth and Fifteenth amendments outlawed slavery and gave Black men the right to vote. The Fifteenth Amendment was obviously not widely honored for about 100 years.

The Fourteenth Amendment contains the “due process” and “equal protection” clauses, which not only freed the enslaved people, it gave them equal rights.

It also clarified what made a person a citizen.

The idea behind the birthright portion was to instantly give all the freed slaves the full rights of citizenship. None of them had parents who were citizens. Yet all were born here. Hence, the Fourteenth Amendment makes clear that anyone born here is a citizen.

The South and Confederate sympathizers hated these amendments. And I mean hated them. They’ve been trying to get around the Fourteenth Amendment since it was passed. 

For a while, they were successful. Nineteenth-century judges, for example, held that women were not “persons” under the Fourteenth Amendment and therefore not entitled to equal protection of the laws. The argument: infants and incompetents are also “persons” but they do not have full rights of citizenship and are not permitted to vote. The Supreme Court in Plessy v. Fergusson (1896) held that racial segregation didn’t violate the “equal protections” clause of the Fourteenth Amendment. We didn’t get that reversed until 1954. 

Just as racists and Confederate-sympathizers hate the “due process” and “equal protections” clauses and the word “persons” in the 14th Amendment, they also hate the “people born here are citizens” part. Why do you think Trump wants to get rid of it?

It is no surprise that a Trump supporter like Eastman would try to argue that Kamala Harris might not be eligible if her parents had not yet been naturalized at the time of her birth. It’s just another right-winger trying to pretend that the Fourteenth Amendment doesn’t exist.

John Eastman has been trying to help Trump figure out a way to get around birthright citizenship. The argument is that actually, the 14th Amendment doesn’t allow for birthright citizenship, something that makes zero sense given the fact that the 14th Amendment was added to the Constitution in 1868 after the Civil War for the sole purpose of making freed slaves citizens. Because none of their parents were actually citizens, by Eastman’s argument, no freed slaves were citizens.

I don’t actually know the status of Kamala’s parents at the time she was born in Oakland, and it doesn’t matter. She was born in Oakland. She is eligible.

As long as we’re talking about racist attacks on Kamala Harris, how about this one from Dinesh D’Souza:

First, the hoopla isn’t that the female descendant of slaves can make it so far. The hoopla is that a Black woman can get past all the barriers in her way now.

Second, enslaved women were routinely raped by slave owners thereby producing Black children “descended” from slave owners.

I know nothing at all about Kamala Harris’s father, and I actually don’t care unless we are going to examine the lineage of white men as well. How many white members of Congress have slave owner ancestors? Or is this only an issue with Black candidates? For that matter, how many white members of Congress have ancestors who raped enslaved women?

What’s amazing is that Dinesh and his right-wing friends think that this line of attack will diminish Sen. Harris in the eyes of Democrats. It makes us defend her more fiercely because it proves what a Black woman is up against when she moves into a position of power.

So, you can tell I’m irritated?

[View as a Twitter threads here and here.

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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