John Eastman's Shameful Kamala Harris Attack

On Wednesday, 12 August 2020, Newsweek published an opinion piece by John Eastman questioning Sen. Kamala Harris’s eligibility for the office of Vice President of the United States. Mr. Eastman argues, essentially, that Sen. Harris is not eligible, as she is not a "Natural Born Citizen," as required by U.S. Const.  art. I,  § 2 :

"No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

The first sentence of the 14th Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 

Mr. Eastman's argument, which, to cast it generously, is decidedly non-mainstream in the world of legal theory, hinges on an exceedingly narrow interpretation of "natural born Citizen," which, in his mind, requires not only that a person be born in the United States, but, also, that one or both parents be US citizens. He focuses on the "subject to the jurisdiction thereof" clause, which consensus legal opinion agrees serves merely to exclude such narrow classes of people as Native Americans (who, by treaty, are subject to the jurisdiction of their respective sovereign nations) and children of foreign diplomats (who are subject to the jurisdiction of their home countries).

While the Supreme Court has not ruled directly on this element of the natural born Citizen requirement, it has issued opinions that would seem to relegate Mr. Eastman's argument to the trash bin of jurisprudential history. The first of these, Lynch v. Clarke of 1844, determined that persons born "within the dominions and allegiance of the United States," are natural born Citizens, irerrespective of parental citizenship. The landmark case, United States v. Wong Kim Ark of 1898, ruled that a child born to two Chinese immigrants to the United States became "at the time of his birth a citizen of the United States."

Sadly, but predictably, in an echo of the Obama Birtherism phenomenon, many on the political far-right have latched onto this argument, including the President. I am not a lawyer, and hesitate to spill too much ink on a critique the substantive merit of Mr. Eastman's thesis. However, a survey of the topic on The Interwebs reveals that the vast majority of commentators consider this to be a fringe position, with many charging that it is, essentially, a racist attack on Sen. Harris, just as the Obama Birtherism argument was (an argument championed by President Trump).

Esteemed legal scholar Eugene Volokh (Gary T. Schwartz Distinguished Professor of Law at UCLA), in a counterpoint piece published by Newsweek, directly challenges Mr. Eastman's contention. Alex Nowrasteh of the Cato Institute cites numerous inconsistencies in Mr. Eastman's own logic. Attorney and Slate Staff Writer Mark Joseph Stern evaluates Mr. Eastman's argument at Slate, characterizing it as "a nativist fairy tale with no basis in reality."

I do, however, have experience assessing the credibility of scholars & scholarship, and was keen to understand exactly how much of an expert Mr. Eastman is on constitutional law. The Newsweek article describes Mr. Eastman as PROFESSOR OF LAW, CHAPMAN UNIVERSITY AND SENIOR FELLOW, CLAREMONT INSTITUTE. He is a professor at the Dale E. Fowler School of Law of Chapman University in Orange, CA. The law school was founded in 1995, and has a decidedly below average ranking based on the first-time Bar Exam passage rate: 59% vs an average of 71% for ABA-accredited law schools in California. US News & World Report ranks Chapman's law school #111 (tie) out of 198 schools - not exactly top (or even second) tier material. For comparison, US News ranks Mr. Volokh's UCLA law school #15.

Mr. Eastman's faculty bio page at chapman.edu describes him as an "expert" on the U.S. Supreme Court; Constitutional Law; Freedom of Religion. In the world of academic scholarship, the principal way to measure a scholar's expertise and credibility is to survey the contribution they have made to their field in terms of scholarly publications - how much original research has the scholar published? In what publications? How frequently is their research cited by other scholars in the field? Google Scholar returns about 90 articles by Mr. Eastman, many published in student-run Law Review journals (which, in themselves, play an important role in legal education and scholarship) of various law schools (a good number in Chapman's own Law Review), while many are newspaper opinion pieces or simply blog entries at chapman.edu.

His most influential article, in Chapman's Law Review journal, has been cited by 102 other pieces of scholarship (this is not, in this context, a large number, and most are student-written articles in their respective schools' Law Review journals). The vast majority of his work has been cited between 0 and 10 times. By contrast, Mr. Volokh's body of scholarship consists of several widely-used law textbooks and more than 150 journal articles (which, as with Mr. Eastman, are heavily represented in Law Review journals). His most influential scholarship has been cited more than 600 times, while several other articles have citations in the 100s, with more than half of them cited at least 40 times. This is a substantial and impressive contribution to the field of legal theory.

Contrary to President Trump’s assessment of him as a “very highly qualified and very talented lawyer,” Mr. Eastman is, at best, a middling figure in legal scholarship with a small scholarly contribution that has exerted a very low impact on his field of study. He teaches at a third-tier law school and publishes in credible scholarly journals infrequently. This paints a picture of a man who is decidedly not an expert in any area of legal scholarship, least of all on the topic of Sen. Harris's eligibility for the office of Vice President. If there is justice in this world, his opinion in this matter will continue to be roundly criticized as a fringe theory mounting an intellectually barren attack on the Democratic candidate for Vice President, and his stature in the field of constitutional law will be revealed as that of, to be somewhat provincial, a poseur. Fortunately, this appears to be the case based on the current state of published commentary. Rather than assess Sen. Harris's quite considerable qualifications for the Vice Presidency, Mr. Eastman has chosen to take the intellectual low road, a route he appears to travel frequently and comfortably. If Newsweek had a shred of integrity, it would retract Mr Eastman's opinion article, or, at least, provide a far better explanation for its decision to publish this piece of intellectual horseshit than offered in its Editor's Note (which was added to the article only after the righteous uproar of objection to its publication emerged). Shame on Mr. Eastman for writing this drivel, and even more shame on Newsweek for giving it a home in the mainstream media.