Opinion | Professor Eastman responds
John Eastman, Henry Salvatori Professor of Law and Community Service at Chapman University Fowler School of Law
A number of people affiliated with Chapman University, including fellow professors, various student groups, and even Wylie Aitken, the chairman of the Board of Trustees, have objected to the article I published in Newsweek the day after Senator Kamala Harris was tapped by former Vice President Joe Biden to be his running mate, which raised questions about Senator Harris’ eligibility for the office of Vice President. Some of the claims made against me, particularly those by Aitken, are not only demonstrably wrong but scurrilous and defamatory. Others, such as that by my successor as Dean of the Fowler School of Law, Tom Campbell, make legal points that are laughably erroneous. And nearly all draw conclusions about my motives that are without any evidentiary support. A full response to these errors and defamations is therefore warranted, and I thank The Panther for soliciting from me such a response. I also want to take this opportunity to respond to the claims in the petition by student groups that by raising questions about Senator Harris’ eligibility, which they found to be “incredibly hurtful,” I have somehow called into question the students’ own “dignity and worth as human beings” because they believe I have only raised such questions for “black people and people of color.” That is demonstrably not true, but I truly regret that the students have mistakenly viewed my legal argument – one which I have been making for nearly 20 years, in all sorts of contexts – as having anything to do with Senator Harris’ race, and then drawn from that misperception the further conclusion that even raising the eligibility question “advances negative sentiments about the BIPOC (Black, Indigenous, People of Color) community, immigration, and citizenship in this country.” Whether the students are persuaded by my legal analysis below (and as published much more extensively elsewhere), I hope that they will at least come to realize that mine is a serious scholarly argument on a question having nothing to do with race but that remains unresolved by the Supreme Court, and that there is as a result no cause for them to “question their own identity and place at the law school.”
First, let me take up Aitken’s scurrilous article, published in the Voice of OC, an entity for which, like Chapman, he serves as chairman of the Board. And here, a little background is in order. Although I do not wear my politics on my sleeve in the classroom and did not do so when I was Dean, I am a conservative Republican – what we used to call a “Reagan Republican.” Wylie, on the other hand, is a hyper-partisan Democrat. This is undoubtedly well-known in the Chapman community. What is not well known is that when I was tapped to become Dean back in 2007, Wylie unsuccessfully tried to block my appointment as Dean. Although I successfully moved the law school up an unprecedented amount in the national rankings, from 155th in 2007 to 93rd when I stepped down in 2010; moved our median LSAT and GPA scores to 159 and 3.56 – the highest they had ever been; secured one of the lowest law student-faculty ratios in all of the country; oversaw an 81% bar pass rate; and developed one of the most diverse range of clinical offerings ever achieved by an American law school, Aitken’s antipathy toward me continued during my entire tenure as Dean. This is not to excuse, but perhaps to explain, the virulent nature of Aitken’s attack, in which he claimed, among other things, that my article was “an absurd thought without any real credibility,” “shoddy and inaccurate,” “universally considered racist and xenophobic, and which reads like the ranting of a political operative rather than a serious legal scholar,” and “downright deliberate fake research.” One has to wonder whether Aitken even read my article, which cannot plausibly be described as a “rant.” But it is manifestly clear that, at the very least, Aitken did not bother to read either my significant body of scholarship on the meaning of the Fourteenth Amendment’s Citizenship Clause or that of numerous other prominent legal scholars who, after thorough study, have come to the same conclusion I have – scholars like Yale Law Professor Peter Schuck and his former college in the Yale Political Science Department, now at the University of Pennsylvania, Rogers Smith; or University of Texas Law Professor Lino Graglia; or University of Chicago Law Professor (and now retired Seventh Circuit Judge) Richard Posner. I could go on, but even this short list serves to rebut Aitken’s claim that “Nationally recognized Constitutional scholars have universally debunked Eastman’s” position. If one were truly concerned about “loyalty” to the school, as Aitken claimed, then perhaps it would have been better for Aitken to acknowledge my cutting edge and well-considered scholarship, rather than jumping on the bandwagon of Twitter trolls who, without merit, jumped to the conclusion that my article was “racist and xenophobic.
My colleague at the law school and successor as Dean, Tom Campbell, published a piece of his own in the Orange County Register, claiming that my view of the 14th Amendment is “wrong,” but the example he gives to disprove it – namely, that if Harris’ parents were not “subject to the jurisdiction” of the United States, then they could not be arrested or deported for overstaying their visas – is laughable. The 14th Amendment requires that one be born on U.S. soil and also be “subject to the jurisdiction” of the United States. With this, Campbell agrees. But the issue is whether the latter clause requires complete, allegiance-owing jurisdiction or merely the partial, territorial jurisdiction by which everyone within our geographic boundaries (save for diplomats) is subject to our laws. As I have argued extensively elsewhere – in scholarly articles, in testimony before Congress and in a brief I filed in the Supreme Court with former Attorney General of the United States Edwin Meese III, for example – I think the evidence is pretty strong that those who drafted and ratified the 14th Amendment meant complete jurisdiction. Indeed, the authors of the language stated so expressly. Campbell is well aware that one could be subject to the territorial jurisdiction of the United States without also owing allegiance to the United States, because I brought the obvious point to his attention before he published his article. Yet he persisted in making the laughable claim anyway, apparently deciding to tee up a straw-man argument that rests on a general ignorance of the phrase’s ambiguity to bolster his claim that I have “damaged our country,” rather than taking the scholarly course to address the argument on the merits (and thereby help dampen rather than stoke the divisiveness about which he claims to be concerned).
The broader faculty petition was not much better. It claims that my article was “poorly argued, inaccurate, and racist,” and that I “(reignited) racist birtherism by falsely claiming Kamala Harris is ineligible.” But it nowhere addresses the arguments I actually made, or points out any particular that was “inaccurate” – and certainly none that was “racist.” I did not claim that Senator Harris is ineligible, for example, but expressly acknowledged that if her parents had become naturalized citizens or lawful permanent residents rather than merely temporary visitors at the time of her birth, then she would clearly be eligible under the original understanding of the 14th Amendment and the Supreme Court’s controlling decision in United States v. Wong Kim Ark. The issue I raised – and it is one yet unresolved by the Supreme Court – is whether the 14th Amendment also confers automatic citizenship on children born to parents who are only temporarily visiting this country. Countless scholars on both sides of that interpretative issue have acknowledged that that is an open question. Yet the faculty petition fails even to acknowledge, much less grapple with, that significant issue of constitutional law, instead resorting to the ipse dixit and ad hominem tactics hardly worthy of a serious university faculty.
History professor Robert Slayton, who was apparently the initial author of the faculty petition, weighed in with a separate piece of his own. Quoting that paragon of serious scholarship, Slate Magazine, for the proposition that I am “not qualified to pass judgment on anyone’s citizenship” because I am “a fabulist whose toxic views have grown like a cancer on the right,” he both takes me to task and applauds me for publishing in a popular forum rather than a legal journal. (Apparently he is unaware that I have published on this topic in legal journals as well). He does concede that had I “published in an academic publication,” he “might agree with qualms (that had been raised by other members of the faculty) about tackling (my) arguments,” however, so I invite him to actually read my academic publications on the subject, including an article just last year in Chapman’s Law Review, and then “tackle” the arguments with me, perhaps in a public forum hosted at Chapman.
More significant, though, is his mischaracterization of my argument, because that (and similar mischaracterizations by others) is what has generated so much unwarranted angst on the part of our students who are immigrants themselves or the children of immigrants. Slayton erroneously contends that I based my claim “on the argument that children of immigrants are not citizens, even if they are born in this country, an argument clearly at odds with the wording of the Fourteenth Amendment to the Constitution.” I did not argue that “children of immigrants are not citizens,” and have never made such an argument. What I argued (and have repeatedly argued, in numerous contexts involving people of many different races and nationalities) is that the children born to parents who were only temporarily visiting the United States are not automatically citizens under the 14th Amendment because they are not subject to the complete jurisdiction required by that Amendment as originally understood. This is true, whether we’re addressing IRS efforts to tax people like current British Prime Minister Boris Johnson (who was born in the U.S. while his British parents were temporarily visiting here), or the unlawful Taliban combatant Yaser Esam Hamdi (who was born in Baton Rouge, Louisiana, while his Saudi father was on a temporary work visa), or the ridiculous birth tourism industry (Russian mothers in Miami, Chinese mothers in Los Angeles, Mexican and Central American mother in El Paso), or the case of the ISIS bride currently being litigated in the District of Columbia federal courts. And it is true of Senator Harris, not because her parents were immigrants, but because it appears that, at the time of her birth, they may have been only temporary visitors.
Which leads me to the petition circulated by several of the law school’s student groups. As should be evident from the above (and should have been evident to anyone familiar with my nearly 20 years of scholarship on this subject), it is simply not true, as the petition claims, that “the only candidates that have been questioned about their citizenship are black people and people of color.” Nor is that true more broadly. Eligibility questions have been a frequent part of presidential elections. Senator John McCain – born in the Panama Canal Zone to American citizen parents – had his eligibility questioned, so seriously that the House of Representatives ultimately weighed in with a resolution confirming (in their view) McCain’s eligibility. Harvard Law Professor Laurence Tribe questioned Senator Ted Cruz’s eligibility for the office of President (even though he had been born to an American citizen mother), and I do not recall anyone jumping to the unfounded conclusion that Professor Tribe was therefore racist for challenging the eligibility of a Cuban American. The simple fact is that race and color have absolutely nothing to do with the issue. Indeed, the claim by the signers of the letter amounts to a demand that Senator Harris be exempt from the same kind of inquiry that has been addressed to numerous others merely because she is part Black.
The second issue raised by the student group petition is the inartfully worded claim that my “trend of questioning the citizenship” of candidates “sends a chilling effect throughout our political process.” That amounts to a claim that the eligibility requirements in the Constitution should not be enforced, a bizarre notion. Natural-born citizenship is required for the office of President and Vice-President precisely because the Founders were concerned about foreign influence over the person who would fill the office of President and be Commander-in-Chief of the nation’s armed forces. As Justice Joseph Story would later note, the natural-born citizenship requirement “cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office.”
Citizenship is also required to be a member of the House of Representatives (seven years) and the Senate (nine years). Would the authors of the letter support simply ignoring those requirements as well? What about the other eligibility requirements, such as age (35 for President and Vice President, 30 for Senate and 25 for House) or residence in the state the candidate is seeking to represent? If Senator Harris was only 34, would it be “racist” to challenge her eligibility under the age requirement? Would it “send a chilling effect throughout the political process? Clearly not, so why is raising the issue about her eligibility on the natural-born citizen requirement any different?
The fact of the matter is that, to be a citizen at birth on U.S. soil, the parents had also to be “subject to the jurisdiction” of the United States at the time of birth. That could mean subject merely to the partial, territorial jurisdiction, such as applies to everyone within the geographic boundaries of the U.S. except diplomats. Or it could mean subject to the complete, allegiance-owing jurisdiction. When asked, the authors of the 14th Amendment said “complete” jurisdiction was intended. The Supreme Court’s first occasion to interpret the clause reached the same conclusion, as did Thomas Cooley, the leading treatise writer of the day, and the U.S. State Department shortly thereafter. The Supreme Court subsequently held that the Clause guaranteed automatic citizenship to the children born in the U.S. of parents who were lawfully and permanently domiciled in the U.S., but it has never held that the children of temporary visitors also become automatic citizens at birth.
How any of that would cause “students to question their own identity and place at the law school,” as the petition claims, is a real stretch. Most of the students at the law school are under the age of 35. To borrow again from the age hypothetical above, if I had questioned someone’s eligibility on the ground that they did not meet the age requirement, would that have likewise questioned the identity and place of every under-35 student? I dare say not, so why the difference here? Apart from partisan predispositions (Is there any doubt that each of the student organization signatories to the letter favor Biden/Harris over Trump/Pence, and favored Clinton/Kane over Trump/Pence in 2016?), nothing is apparent to me, unless what they are really seeking is to dispense with the citizenship requirements altogether. And if we dispense with them as eligibility requirements for office, should we also dispense with citizenship as a requirement for voting? For jury service? For sensitive positions in our military or national security agencies? To raise such questions is not to question anyone’s “identity,” unless they are falsely claiming to be citizens when they are not. It is, instead, to continue to draw the distinction between citizen and non-citizen that is found in nearly every country on Earth, and has been found throughout history. The United States is a nation of immigrants – admitting to our body politic every year more citizens who have immigrated to the United States from foreign countries than almost all of the rest of the world combined. But we should not undermine the value of that citizenship by adhering to positions that make citizenship irrelevant.
Note: Dr. Eastman is the Henry Salvatori Professor of Law & Community Service, and former Dean, at the Fowler School of Law. He is on leave this year, while he is serving as the 2020-21 Visiting Scholar in Conservative Thought and Policy at the Benson Center for the Study of Western Civilization, University of Colorado Boulder. The views expressed are entirely his own, and have been lightly edited solely to abide by AP Stylebook guidelines.