THE NON-CONTROVERSY OVER BIRTHRIGHT CITIZENSHIP
Photo by Mercedes Blackehart
BY MARGARET STOCK AND NAHAL KAZEMI
During the 2020 election cycle, we began to once again hear rumblings that a prominent Democratic candidate for higher office was not really a natural born United States citizen. This charge, advanced by Professor John Eastman as a sincere constitutional question, is ripe to be weaponized against immigrants and their children to question their “American-ness,” and the legitimacy of their place in the body politic.
Contrary to Professor Eastman’s assertions, there is no legitimate question that Senator Kamala Harris is a United States citizen who is eligible to serve as Vice President or President of the United States. She was born in the United States of America. She was not the child of a diplomat or invading soldier not subject to U.S. jurisdiction. Her birth in the United States makes her a natural born American citizen under the Fourteenth Amendment.
Arguments to the contrary serve only to further inflame political divisions and attempt to attack political opponents as “un-American.” Jus soli, the legal principle of citizenship based on place of birth (with extremely limited exclusions for persons born into a status of legal immunity), has a 400-year-old history in Anglo-American jurisprudence.
Any attempt to undermine birthright citizenship will throw into question the citizenship of millions of Americans who contribute tremendously to their communities and our country.
This principle is not only enshrined in the U.S. Constitution but is also codified in federal statute, and implemented through regulations, which create a clear, fair, and easily enforced rule of citizenship. Birth in the United States also happens to be the way most Americans prove their citizenship. Any attempt to undermine birthright citizenship will throw into question the citizenship of millions of Americans who contribute tremendously to their communities and our country. The unintended consequences of this proposed change to the understanding of who is and is not a U.S. citizen are hard to overstate.
This Article will briefly address the history of birthright citizenship in the Anglo-American legal tradition. Part I will explore the purpose and intent underpinning the Fourteenth Amendment’s Citizenship Clause. We will also explore some of the positions of those opposing its traditional understanding.
Part II will address the different attacks on the widely understood meaning of birthright citizenship and why they fail.
Part III will explain why Professor Eastman’s most recent theory of birthright citizenship is not only unsupported by either legislative or judicial history but is not even a workable theory of citizenship. Moreover, if Professor Eastman is correct in his ever-evolving interpretation of the Fourteenth Amendment, dozens, if not hundreds, of American politicians would also fail his test of citizenship—including the current President, Donald J. Trump. Part IV briefly concludes.
READ THE FULL ARTICLE AT THE CHAPMAN LAW REVIEW.
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Margaret Stock focuses her practice on immigration and citizenship law. She is a nationally known expert on immigration and national security laws, and has testified regularly before Congressional committees on immigration, homeland security, and military matters.
Nahal Kazemi is a Pacific Council member and Senior Counsel at Keller/Anderle LLP, where she combines a strong background in broad, high-stakes litigation with extensive experience as a diplomat.
This article was originally published by the Chapman Law Review.
The views and opinions expressed here are those of the authors and do not necessarily reflect the official policy or position of the Pacific Council.
