From Shakespeare to Kamala…
what is “natural-born”?

Strained interpretations of birthplace and/or parents’ backgrounds have often come up in presidential races

By Byron Toben

With the selection of Westmount High grad Kamala Harris as the Democratic candidate for United States Vice President, some opponents have raised the question as to whether she is ineligible to hold that office.

The U.S. constitution of 1789 Article II, Section 1, states that the President shall be a natural-born citizen of the United States and is further clarified by the 14th Amendment in 1868 that “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States…”

This requirement has long been interpreted to extend to the vice president as well.

Many cases and learned articles over the years have ruled that the citizenship of the person’s parents is irrelevant.

A 2015 documentary film, 14: Dred Scott, Wong Kim & Vanessa Lopez, examines the quest of three born in the USA to claim U.S. citizenship even though their parents were respectively, slaves, Chinese immigrants and undocumented Hispanics. Two House Republicans have introduced bills to cancel the 14th amendment.

A 2019 play, What the Constitution Means to Me, by author/performer Heidi Shreck discusses the 14th and other issues. It had Tony nominations for best play and best actress and was a finalist for the Pulitzer Prize in Drama before selling out at the Eisenhower theatre in Washington, D.C.

All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States…

– 14th Amendment to the U.S. Constitution

Ms. Harris was clearly born in Oakland, California. Her parents at the time were legal immigrants. Nevertheless, some Trumpian adherents are floating the strained argument that both parents must also have been U.S. citizens at the time of birth. Her mother, Shyamala Gopalan, a breast cancer researcher of note, originally from India, passed away in 2009. Her father, Donald J. Harris, originally from British Jamaica became a naturalized U.S. citizen and is a retired professor emeritus at Stanford University. This additional requirement has no basis in the constitution nor in other case law.

Its invocation is remindful of Donald J, Trump’s long “birther” argument vs. former president Obama, alleging despite his Hawaii birth certificate, a Kenyan birth.

All this blather put me in mind of Shakespeare’s Macbeth, wherein the witches prophesized that he should never be vanquished by one of “woman born”. Alas for him, to be informed by the vengeful MacDuff that he was “from his mother’s womb untimely ripped” (i.e. a Caesarean operation). I suppose that some present-day desperate “birther” will now research whether Ms. Harris was possibly so born and is thus not natural-born and is thus not eligible to be vice president. As Hippocrates quipped ages ago, “desperate times call for desperate measures”.

“Ted Cruz has impassioned supporters” – Image: DonkeyHotey via StockPholio.net

Anyway, mes amis, I was amazed at how many times strained interpretations of the place of birth and/or the background of the parents have come up in presidential races. Here is a quick rundown.

Chester A. Arthur, Republican vice president, was sworn in as president when James A. Garfield was assassinated in 1881. Although born in Vermont to a Vermont-born mother, his Irish-born father worked and had lived in nearby Quebec so a Democratic attorney raised the possibility that Arthur was actually born in Canada.

Charles Evans Hughes, Republican candidate defeated by Woodrow Wilson in1916. Wilson’s supporter claimed that Hughes was ineligible as his father at the time of his birth was still a British citizen.

‘… some Trumpian adherents are floating the strained argument that both parents must also have been U.S. citizens at the time of birth… This additional requirement has no basis in the constitution nor in other case law.’

Barry Goldwater, Republican candidate in 1964, had been born in Arizona, which was not yet a State at the time of his birth. No one seemed to raise a fuss and he was overwhelmingly defeated by Lyndon Johnson in 1964

George Romney, born in Mexico to U.S. parents, ran in the 1968 Republican primary but was defeated by Richard Nixon.

Lowell Weicker, Republican, born in Paris, France, to two US citizens, was suggested as a vice presidential candidate in 1976 and briefly entered the race in 1980, but dropped out early in both cases.

John McCain, Republican, born in Panama in 1936 at the U.S. Naval Base in the Canal Zone to two U.S. citizens. Eligibility was not challenged during his 2000 campaign but was in his 2008 campaign. The naval base was not considered U.S. territory at the time but a 1937 law did so retroactively. McCain lost the 2008 election to Barack Obama.

Image: Bonzo McGrue via StockPholio.net

Barack Obama, Democrat, was born in Hawaii to a U.S.-born mother and a Kenyan-born British subject. Several lawsuits to claim he was not a natural-born U.S. citizen failed as did several similar suits in some State courts in the 2012 primaries. An alternate theory that he was actually born in Kenya, promoted by Donald Trump, never offered proof and was eventually conceded by Mr. Trump.

Marco Rubio and Bobby Jindal, Republicans, both announced plans to enter the 2016 Presidential primary race. Both were born in the U.S. to parent immigrants from Cuba who were not U.S. citizens at the time of their births. Ballot challenges were filed by objectors (who had also challenged Obama’s eligibility) in Vermont, New Hampshire, Florida, New York, Illinois, Indiana and Arkansas. Jindal dropped out in 2015 and Rubio in 2016.

Ted Cruz, Republican, was born in Alberta, Canada. His mother was a U.S. citizen and his father, a U.S. immigrant born in Cuba who naturalized in 2005. Thus a dual Canada/U.S. citizen, Cruz officially renounced his Canadian citizenship in 2014. He lost the primary to Trump.

Tulsi Gabbard, Democrat, who entered the 2020 presidential primary, was born in American Samoa, which, unlike other U.S. territories, does not confer U.S. citizenship at birth. However, both her mother (from Indiana) and father were U.S. citizens. She suspended her campaign in 2020.

To renounce… U.S. duality… would require large expenses in government, legal or accounting fees. Ted Cruz… was able to quickly renounce his Canadian dual citizenship with a simple letter and a Can $ 50 fee.

And now, back to Kamala. Although she had dropped out of the presidential primary, she was eventually selected as the vice-presidential candidate by winner Joe Biden.

In a recent Newsweek op-ed, John C. Eastman, a professor at Chapman University (who had run against her for the California Attorney General position) declared that if her parents were only on temporary visas at the time of her birth, she would be ineligible to be considered natural-born for 14th amendment purposes. Although this argument drew a torrent of contrary legal opinions, some feel the op-ed was meant to rekindle “birther” animosity against a woman of colour.

My own op-ed on a related non-presidential point

In a piece I wrote posted in the Montreal Gazette a few years ago, I pointed out that “accidental” Americans, such as Canadian babies born in the U.S., even for one day were considered U.S. citizens at birth even though they may not want to be dual citizens upon reaching majority and thus subject to U.S. tax laws and military draft registration, etc., with consequences to their estate planning as well as to their spouses, children and business partners.

To renounce their U.S. duality and avoid this would require large expenses in government, legal or accounting fees. Ted Cruz, above, was able to quickly renounce his Canadian dual citizenship with a simple letter and a Can $ 50 fee.

Feature image: Tea Party protest by Fibonacci aBlue via StockPholio.net

Read more articles from Byron Toben

Byron Toben, a past president of The Montreal Press Club, has been WestmountMag.ca’s theatre reviewer since July 2015. Previously, he wrote for since terminated web sites Rover Arts and Charlebois Post, print weekly The Downtowner and print monthly The Senior Times. He also is an expert consultant on U.S. work permits for Canadians.