This is the painful background to the entirely predictable attempt by a far-right scholar, John Eastman of Chapman University’s law school, to cast a shadow on the selection of Harris as Biden’s running mate. In a recent essay in Newsweek, Eastman points out that Harris’s parents were both immigrants, living in Oakland, California (which, according to the most recent U.S. Geological Survey National Map, is within the territorial limits of the United States), when Harris was born there in 1964.
Eastman is just asking questions, he says. Here’s the main one: Were Harris’s parents “merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act? If the latter were indeed the case, 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—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.”
This is the nub of a persistent, utterly fraudulent myth about the Fourteenth Amendment—that the child of a noncitizen, born in the United States, is not “subject to the jurisdiction of the United States,” as specified by the Fourteenth Amendment’s citizenship clause.
Is there anything to it? Not in the slightest. Children of noncitizens in the U.S. can be sued, arrested, tried, and imprisoned by state or federal government. That’s jurisdiction. The “subject to the jurisdiction” argument is crackpot constitutionalism—“sovereign citizenship” in academic robes—and its persistence is a depressing feature of our corrupt and hateful national dialogue.
First, let’s deal with the idea that Harris in 1964 was, because her parents may not have been citizens, not “subject to the jurisdiction” of the United States or of California. As I have pointed out before, it takes an impressive level of mental torture to hold this idea in one’s mind alongside the practical knowledge needed to get through an ordinary day. The framers of the Fourteenth Amendment made clear in the debates drawing up its language that “subject to the jurisdiction” had a practical lawyers’ meaning—subject to suit and trial in American courts; the only exceptions to this were persons who, by treaty or international law, were immune to American law. The language of the debates makes clear that the “jurisdiction” excepts only Native people and the children of diplomats. The deniers insist that the language really means Native people, diplomats—and anyone whose parents are from another country.
This is, to use a technical term, swill. Not long ago, the former White House aide Michael Anton published an op-ed in The Washington Post that altered the transcript of the debates on “subject to the jurisdiction” to say what conservative commentators claim was said. Some years ago, I debated a Claremont Institute scholar who similarly made claims unsupported by the evidence. Perhaps this keeps happening because the actual record of what was written and said at the time the amendment was adopted just can’t get such scholars to where they want to go.