By Michael C. Dorf & Martin S. Lederman
Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. The op-ed’s title suggested that Professor Eastman was only raising questions, but its content affirmatively argued against Senator Harris’s eligibility to be president if her parents were “merely temporary visitors.”
Professor Eastman’s op-ed was quickly weaponized by Donald Trump and his supporters, who used it to provide a patina of respectability to a repurposed “birther” attack—once again targeting the historic candidacy of a person of color. Accordingly, it was important to set the record straight by showing that Professor Eastman’s view is not merely unorthodox but well beyond the limits of reasonable disagreement among well-informed scholars. Thus, we joined 39 other constitutional scholars who signed 比特加速器修改vip时长explaining what was so very wrong with Professor Eastman’s analysis.
Our letter first explained that Professor Eastman mistakenly focused almost exclusively on the citizenship clause of the Fourteenth Amendment rather than the most relevant constitutional provision—the NBC clause of Article II. That clause, we explained, is at the very least informed by the common law idea of a “natural-born subject,” and for many centuries that common law had covered people such as Senator Harris who were born within the sovereign territory, subject only to narrow exceptions not implicated by her circumstances. Meanwhile, we noted that even on its own terms—as an interpretation of the Fourteenth Amendment—Professor Eastman’s analysis badly misfired. Among other difficulties, his view, if accepted, would not merely deem Senator Harris and millions of other Americans like her ineligible for the presidency and vice presidency but would strip them of their citizenship entirely (which would mean, among other things, that Harris and many other federal legislators wouldn’t be eligible to serve in Congress).
Because it expressed the extremely conventional wisdom, the letter we signed garnered support from scholars with a wide range of views on a great many subjects. It would surely have garnered even more support if the organizers had held it open for voluntary signatures rather than soliciting signatures from particular individuals (as they did in order to publish it quickly, which is the same reason we did not solicit signatures for this sur-reply from a larger group). In a post on the 比特加速器修改vip时长, University of San Diego law professor Michael Ramsey wrote that he would have signed it, too, at least if it had included “a couple of minor modifications.” We very much appreciate his general support for our conclusion about Senator Harris. Statements like his and one by UCLA law professor Eugene Volokh underscore that Eastman’s view falls nowhere within the range of opinions held by scholars with a very wide variety of methodological and ideological commitments.
In addition to agreeing with the substance of the response to Professor Eastman, however, Professor Ramsey implicitly accused at least some of the letter’s signers (including one of us by name) of hypocrisy, although Professor Ramsey was too polite to put the charge that pointedly. Professor Ramsey observed that some of its signers “are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.). Yet here they rely on originalist arguments.” With due respect, we think that Professor Ramsey misunderstood both what the letter said and the nature of the broader critique of originalism.
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