Newsweek decided to publish an opinion piece by Dr. John Eastman, a law professor at Chapman University and a Senior Fellow at the Claremont Institution. In his OpEd, Eastman makes the argument that Sen. Kamala Harris (D-CA) is ineligible to be vice president because she’s not a “natural born citizen.”
“Her father was (and is) a Jamaican national, her mother was from India, and neither was a naturalized U.S. citizen at the time of Harris’ birth in 1964. That, according to these commentators, makes her not a ‘natural born citizen’—and therefore ineligible for the office of the president and, hence, ineligible for the office of the vice president,” Eastman wrote.
Of course, the cancel culture mob went after Newsweek editors, claiming that this was pushing the “birther” movement. Editors responded by defending Eastman’s piece, saying it had nothing to do with the birther movement (emphasis mine).
Some of our readers have reacted strongly to the op-ed we published by Dr. John Eastman, assuming it to be an attempt to ignite a racist conspiracy theory around Kamala Harris’ candidacy. Dr. Eastman was focusing on a long-standing, somewhat arcane legal debate about the precise meaning of the phrase “subject to the jurisdiction thereof” in the Citizenship Clause of the 14th Amendment. His essay has no connection whatsoever to so-called “birther-ism,” the racist 2008 conspiracy theory aimed at delegitimizing then-candidate Barack Obama by claiming, baselessly, that he was born not in Hawaii but in Kenya. We share our readers’ revulsion at those vile lies.
The 14th Amendment is one of the most-studied areas of constitutional law, and questions were raised by the Constitution’s Article II, Section 1 “natural born Citizen” requirement for presidential eligibility about both John McCain and Ted Cruz, at the time of their respective runs. The meaning of “natural born Citizen,” and the relation of that Article II textual requirement to the 14th Amendment’s Citizenship Clause, are issues of legal interpretation about which scholars and commentators can, and will, robustly disagree.
Debating the meaning of these constitutional provisions and, in the particular case of Dr. Eastman’s piece, the meaning of the 14th Amendment’s phrase “subject to the jurisdiction thereof,” is not an attempt to deny facts or to make false claims. No one is questioning Harris’ place of birth or the legitimacy of an obviously valid birth certificate.
After President Trump referenced the OpEd in his press conference on Friday, politicos took to Twitter to slam the so-called “birth strategy.”
Now is a good time for a reminder that in addition to being racist and disgusting, the republican “birther” strategy was a failure. Barack Obama was elected twice.— Palmer Report (@PalmerReport) August 14, 2020
Beyond reporting the initial fact of it, giving the (completely made-up) Harris birther thing any air is editorial malpractice.— Kai Ryssdal (@kairyssdal) August 14, 2020
Hey media, you realize you have a responsibility to the public, right? Giving this racist birther crap air is amplifying it. You DO NOT have to repeat every lie and racist piece of garbage the Trumpers fling. Some things are unworthy of news coverage. Coverage is complicity.— Walter Shaub (@waltshaub) August 14, 2020
Newsweek ended up issuing an editor’s note at the top of Eastman’s OpEd, saying the piece was never meant “to spark or to take part in the racist lie of Birtherism.”
Here’s the note (emphasis mine):
Editor’s note, 8/14: This op-ed is being used by some as a tool to perpetuate racism and xenophobia. We apologize. The essay, by John Eastman, was intended to explore a minority legal argument about the definition of who is a “natural-born citizen” in the United States. But to many readers, the essay inevitably conveyed the ugly message that Senator Kamala Harris, a woman of color and the child of immigrants, was somehow not truly American.
The op-ed was never intended to spark or to take part in the racist lie of Birtherism, the conspiracy theory aimed at delegitimizing Barack Obama, but we should have recognized the potential, even probability, that that could happen. Readers hold us accountable for all that we publish, as they should; we hold ourselves accountable, too. We entirely failed to anticipate the ways in which the essay would be interpreted, distorted and weaponized.
As we said in our earlier note, this essay was an attempt to examine a legal argument about the difference between “natural born” and “naturalized,” the latter being ineligible to hold the office of president. In the days since the op-ed was published, we saw that it was being shared in forums and social networks notorious for disinformation, conspiracy theories and racist hatred. All of us at Newsweek are horrified that this op-ed gave rise to a wave of vile Birtherism directed at Senator Harris. Many readers have demanded that we retract the essay, but we believe in being transparent and are therefore allowing it to remain online, with this note attached.
It’s ridiculous that Newsweek had to issue any kind of editor’s note at all. Why can’t we discuss the merits of someone’s eligibility for office without it automatically being considered racist or xenophobic? Eastman laid out the scholarly debate surrounding the 14th Amendment. He brought up questions about Harris’ eligibility for the office. The same questions have come up when John McCain and Ted Cruz both ran for president.
We need to get back to having intellectually honest conversations surrounding the Constitution. Not every question is risen with malice. For some people, like law professors and scholarly experts, are focused on the Constitutional aspect of things.