Last Thursday, a reporter asked President Trump about the Newsweek op-ed from law professor John Eastman arguing that Kamala Harris was ineligible to be vice president. “I have no idea if that’s right,” Trump told the reporter he had only just heard about the claim and seemed unaware of the details of the allegation, but the reporter pressed on before Trump finally said, “Yeah, I don’t know about it. I just heard about it.”
Eastman’s op-ed had argued that although Kamala Harris was born in the United States, she is not a “natural born citizen” because her parents were not citizens at the time of her birth. Therefore, she is ineligible to serve as vice president of the United States. It is a dubious claim, and the general consensus holds that anyone born in the United States is a “natural born citizen.” Of course, there was a collective hissy fit on the left and in the media about it, and the op-ed was decried as racist and xenophobic. Newsweek issued an apology of sorts and updated the article with a disclaimer alleging that the op-ed “is being used by some as a tool to perpetuate racism and xenophobia.”
On top of that, the media quickly latched on to the false narrative that Trump had “promoted” the birther conspiracy, despite the fact he clearly had not.
The media seems to take the position that questioning the meaning of “natural born citizen” and discussing various interpretations of it, even in a hypothetical context, is only okay when considering Republican candidates, but not when considering Democrat candidates. In fact, in 2008, some in the media openly questioned John McCain’s citizenship, and therefore his eligibility to be president.
John McCain, “born in Panama Canal Zone, may not qualify as ‘natural born,’” mused Pete Williams of NBC News on February 29, 2008, roughly two weeks after John McCain became the presumptive GOP nominee for president. “Sen. McCain is undoubtedly a citizen, but is John McCain a natural born citizen? The Constitution does not define the term further, and legal scholars say the notes of the Constitution’s drafters shed little light on what they meant.”
Williams acknowledged that constitutional questions about the intent of the Founding Fathers with regard to the “natural born” requirement are nothing new. “This issue has been raised before in the presidential campaigns of Barry Goldwater, born in Arizona territory not the United States, and George Romney, born in Mexico. But it was never resolved.”
In 1964, the Supreme Court seemed to say, without deciding, that “natural born” meant born inside the United States. In an opinion on an unrelated issue, the court observed, “The rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.” But that language is not legally binding, and the Supreme Court has never ruled on what “natural born” means.
Williams appeared to argue against John McCain meeting the “natural born” requirement because the United States “never had sovereignty” over the Canal Zone. “It’s not clear, either, who would have the legal right to sue if McCain were elected president,” he wrote. “One expert on federal procedure said any taxpayer aggrieved by an action of a President McCain would have standing to challenge his qualifications.”
Williams was clearly arguing that the definition of “natural born citizen” was still up for debate. Though you won’t find the small print that says it’s only up for debate when it’s about a Republican. Williams, rather than dismiss the claim that McCain was ineligible to become president, actually elaborated on a scenario (with help of a legal expert) in which McCain’s qualifications could be challenged if he was elected president.
Can you imagine if NBC News had published a similar piece about Barack Obama, whose eligibility to become president was first raised by the Clinton campaign? Of course, you can’t. Because it never would have happened. The media wants you to believe that the only candidates who have ever had their eligibility to serve questioned are Barack Obama and Kamala Harris, and obviously the only reason they were questioned was because of their skin color.
But minority status didn’t prevent the media from openly questioning Senator Ted Cruz’s eligibility to be president in 2016. Cruz was born in Canada to a Cuban father and an American mother, and CBS News openly wondered, “Does Ted Cruz have a Canada problem?” They noted that the definition of “natural born citizen” is still “a legal question that has never been answered because the Supreme Court has never ruled on the issue.”
The Washington Post also ran an op-ed titled, “Ted Cruz is not eligible to be president” which was written by Mary Brigid McManamon, a constitutional law professor at Widener University’s Delaware Law School. McManamon made a lengthy argument against Cruz’s eligibility before including the sidebar, “Let me be clear: I am not a so-called birther. I am a legal historian. President Obama is without question eligible for the office he serves. The distinction between the president and Cruz is simple: The president was born within the United States, and the senator was born outside of it. That is a distinction with a difference.”
Apparently, questioning the eligibility of a Democrat is what makes one a birther. Questioning the eligibility of a Republican is simply constitutional interpretation.
Like Professor Eastman’s Newsweek op-ed about Kamala Harris, McManamon made an argument based on her own assessment of constitutional intent and legal precedent, and acknowledged the existence of contrary opinions. There are no Newsweek-style disclaimers on her article warning that the op-ed “is being used by some as a tool to perpetuate racism and xenophobia.”
And speaking of Newsweek, it published a news article on January 13, 2016, titled “More Scholars Say Ted Cruz Can’t Be President,” citing only three scholars by name: Thomas Lee, a professor of constitutional and international law at Fordham University; Mary Brigid McManamon and her Washington Post op-ed; and Laurence Tribe, a professor of constitutional law at Harvard, who happened to have taught both Ted Cruz and Barack Obama.
Can you see Newsweek (or any publication) collecting the opinions of just three scholars who support Eastman’s argument and publishing an article titled “More Scholars Say Kamala Harris Can’t Be Vice President”?
While discussions about Republican candidates’ eligibility to serve are fair game, the same can’t be said about Democrat candidates—regardless of whether they are hypothetical or serious. The media repeatedly tells us that to even bring up the issue about a Democrat makes you racist and xenophobic, while the media has no problem raising doubts about Republican candidates based on the opinions of a select few constitutional scholars.
Of course, one might point out the big difference between the current controversy over Eastman’s op-ed about Kamala Harris and the debates surrounding McCain and Cruz was that Kamala Harris was undoubtedly born in the United States.
Lest they forget that Bobby Jindal and Marco Rubio both had their eligibility to serve as president questioned by the media because even though both were born in the United States (like Kamala Harris) their respective parents were not citizens at the time each was born (also like Kamala Harris).
But, accusations of racism and xenophobia seemed to be nonexistent at the time the issue was brought up 2011, when Jindal and Rubio were seen as rising stars in the Republican Party and potential threats to Obama and the Democratic Party. One could argue it was a preemptive attempt to dissuade both from running for president. Can anyone recall Barack Obama being asked to specifically condemn those allegations? Both Jindal and Rubio went on to run for president in 2016. It’s hardly a stretch to say that had either been contenders for the nomination or actually became the GOP nominee that questions regarding their eligibility would have been revived by the media.
The common theme of each of the aforementioned cases is the definition of “natural born citizen” and the Supreme Court’s lack of a ruling on the issue—not race or xenophobia. The media wants you to believe that this isn’t a constitutional debate at all. The moment Eastman’s op-ed on Kamala Harris came out, the narrative was set, and naturally, the next step was to put Trump in the middle of it as a means of bolstering that narrative with fake news.
But never forget, the media has loved the presidential eligibility debate in previous elections, just only when talking about Republicans.
Matt Margolis is the author of the new book Airborne: How The Liberal Media Weaponized The Coronavirus Against Donald Trump, and the bestselling book The Worst President in History: The Legacy of Barack Obama. You can follow Matt on Twitter @MattMargolis