Former Vice President Joe Biden seems to have announced Senator Kamala Harris as his running mate. There was an inquisitive photographer's shot of his notes suggesting just that. But there's also some question about whether she's really qualified. The media has already seeded the ground with quotes from some of the dumbest lawyers in America to state she is a “natural born citizen” under Article II of the U.S. Constitution, and is therefore, eligible to be vice president or president.

Is that really true? 

Kamala Harris’ mother was Shyamala Gopalan, born in British India (present-day Chennai in the Indian state of Tamil Nadu).  Ms. Gopalan never became a naturalized U.S. citizen.  Donald Harris, Senator Harris’ father, is a naturalized U.S. citizen born in Jamaica.  There are no provisions in the U.S. Constitution that qualifies a child born of a foreign national as a natural-born citizen and Senator Harris is not eligible to hold the office of the vice president.

It's possible the Trump campaign will not allow this nomination to go forward without a court challenge.  There will be a full court press by the media to claim Senator Harris is eligible to the office of the vice president.  The media and the Democrats will call President Trump every name in the book to get him to back off his call for legal action. 

The media did a bang-up job keeping Barack Obama, a child born of a foreign national, out of the courts and into the White House.  The Democrat Party believes they can do it again.

Let’s review the primaries of the 2008 election.  Hillary Clinton and John McCain couldn’t afford politically to take Obama with his questionable eligibility to court.  A court win would have been the classic pyrrhic victory.  Whichever candidate had “standing” at the time of the lawsuit would have won the argument (the law and the facts were not on Obama’s side) and disqualified Obama to be eligible to be president, but they would have lost the election (war).  A U.S. Supreme Court decision (either Clinton vs Obama, or McCain vs Obama) would have been viewed as a racist attack on a black man and the African-American community would have responded by throwing their support to the other candidate (an Obama replacement) or not voting at all. 

Virtually everything written on the topic of “natural born citizen” since the Founding documents were drafted and signed, falls into one of three categories:

(1) As Alexander Hamilton explained, the “natural born citizen” requirement was expressly placed into the Constitution to ward off “the desire in foreign powers to gain an improper ascendant in our councils” by “raising a creature of their own to the chief magistracy of the Union.”  

Some doubters questioned the supremacy of U.S. law over the laws of other nations, that being born abroad meant that person was a citizen or subject of that country.  However, the Naturalization Act of 1790 reaffirmed a person born abroad of American citizens is also a “natural born citizen.”

(2) The vast preponderance of law review articles focused on the “natural born citizen” requirement.  Authors challenged the Framers’ logic, decision, and promulgation (and subsequent Naturalization Laws) that foreign-born children of American citizens are inherently natural-born citizens.  One paper which is referenced extensively by other law school students and researchers has been Who Can Be President of the United States: the Unresolved Enigma.  Gordon’s article was written at a time when Governor George Romney ran for president.  George Romney was born to American citizens in a “Mormon colony” in Colonia Dublán in the state of Chihuahua, Mexico. 

Gordon argued that Romney should not be considered eligible to run for president.  He tried to revive the legal concept of jus soli (Latin: right of the soil), commonly referred to as birthright citizenship, as the right of a person born in the territory of a state to nationality or citizenship.  Gordon and other legal scholars rejected Romney’s claim of Constitutional presidential eligibility as a “natural born citizen” based on jus sanguinis (Latin: right of blood), the principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state.

(3) The remaining percentage of law review articles which focused on the question of “natural born citizen” took a different tack entirely.  They challenged the Framers’ logic, that the “natural born citizen” clause was discriminatory, that it embodied “…striking unfairness and dangerous ambiguity.” 

In What Is the Constitution’s Worst Provision? Robert C. Post argued that the Clause is highly objectionable because it unmistakably and clearly prohibits naturalized citizens from becoming president.  And in Unnatural Born Citizens and Acting Presidents, James C. Ho argued that “No matter who wins the White House this November [2000], I and millions of other Americans like me once again will have suffered a certain measure of exclusion from the selection process.  We have the right to vote, to be sure.  But we cannot serve as president.”

Article after article, it is hard to come to any other conclusion what these legal scholars had in mind and it wasn’t that the U.S. Constitution was “ambiguous,” the favorite trope of the left, but that Democrat lawyers tried to disqualify Republican presidential candidates (Governor Romney wasn’t the only one) on the basis that they were born abroad, that they were not “native-born” and thus should not have been qualified as a “natural born citizen.” 

In every article the authors argued the “natural born citizen” clause should mean something other than a person born of American citizens; that potential presidential candidates should either be born in the United States (native born) or not have been born in the United States (a naturalized citizen).  Alexander Hamilton asserted that a person’s birthplace is immaterial.  If they are born to American parents, then they can be born abroad, on the sea, in the air, and maybe one day, in space. 

When it pleased them, leftist lawyers wished to exclude candidates they did not like on the basis of where they were born or that the Constitution is discriminatory.  Alexander Hamilton’s concern wasn’t where a potential candidate for president was born but rather how he would govern the new United States.  The allegiance of a child of a foreign national could rest with another country over the interests of America.

In her 1988 article in the Yale Law Journal, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, Jill Pryor wrote, “It is well settled that ‘native-born’ citizens, those born in the United States, qualify as natural born.  It is also clear that persons born abroad of alien parents, who later become citizens by naturalization, do not.  But whether a person born abroad of American parents, or of one American and one alien parent qualifies as natural born has never been resolved.” 

Senate Majority Leader Harry Reid (D) brought to the floor Senate Resolution S.Res.511 and “resolved” and reaffirmed Senator John McCain (R)—born in Panama of American citizens—was a natural born citizen. 

There are no circumstances in U.S. law that qualifies a person born of a foreign national to be considered a “natural born citizen” of the United States.  Senator Harris’ mother was born in British India and never became a naturalized U.S. citizen.  Senator Harris is unambiguously ineligible to be vice president of the United States.  

In lieu of a court challenge and media malfeasance, I submit the Senate could consider a Senate Resolution to affirm Senator Harris’ constitutional eligibility for the office of the vice president. 

Mark writes thrillers and an occasional children’s book, and is a long-time contributor to American Thinker.

Image credit: Screen shot from MSNBC via shareable YouTube, enhanced with FotoSketcher.