Claremont Institute legal scholar John Eastman is now best known for his efforts to help Donald Trump overturn the 2020 presidential election, but in August 2015 he was still a professor at the Chapman University’s Fowler School of Law and someone whose legal opinions the New York Times considered worthy of publication.
The occasion back then was a proposal from candidate Donald Trump to end birthright citizenship. The current requirement that children born here be recognized as U.S. citizens was “the biggest magnet for illegal immigration,” he argued.
Many conservatives opposed Trump’s claim. It was dismissed in an August 20 Wall Street Journal editorial, and even Berkeley law professor John Yoo, a co-author of the notorious 2002 “torture memos,” differed in an August 22 National Review opinion piece. But John Eastman backed Trump’s fringe position, and he was given two opportunities to defend it on August 24, one in the National Review and one in the Times. (The current online version of the Times op-ed was somewhat updated in December.).
I emailed Professor Eastman few days later with questions about two problems that had jumped out at me when I read his defense of Trump’s claim.
Fudging a Quote
My first question concerned legal interpretations of the citizenship clause at the beginning of the 14th Amendment:
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.
The standard interpretation is based on an 1898 Supreme Court decision, United States v. Wong Kim Ark, which upheld the grant of citizenship to everyone born in U.S. territory. As it stands now, the decision only rules out “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory.” (The Court also excepted “children of members of the Indian tribes owing direct allegiance to their several tribes,” but this was nullified by an act of Congress in 1924.)
It might seem hard to get around a clear decision by a conservative court; most of the same justices had produced the racist “separate but equal” doctrine two years before in Plessy v. Ferguson. Eastman did his best in the two 2015 articles, relying on strained interpretations of legal terms like “domiciled,” but one of his arguments was especially problematic.
This concerned the original intent of the 14th Amendment’s sponsors. In his National Review article Eastman cited Michigan Senator Jacob Howard, who was especially prominent during debates on the amendment. Howard held, according to Eastman, that the citizenship clause was meant to exclude “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
But Eastman had added “[or]” to the original quote. Senator Howard was hardly a progressive, at least on some issues; one of his concerns about the amendment, he said, was to make sure “the Indian savages, wild or tame, belonging to a tribal relation” didn’t “become my fellow-citizens and go to the polls and vote with me.” But did he really mean birthright citizenship didn’t apply to the children of any “foreigners” or “aliens”? Wasn’t Howard referring to the children of diplomats, who share their parents’ diplomatic immunity and therefore aren’t subject to U.S. jurisdiction?
I asked Eastman why he added the bracketed word. He answered promptly and politely. “I think it the better reading of the passage,” he emailed me, “given the overall nature of the argument being made by Senator Howard. It is also the case that the phrase is not a verbatim transcript, but a summary of Howard’s floor statement taken down by someone who was listening to it.”
In other words, the transcript was reliable enough for Eastman to consider it legally meaningful, but not so reliable that he shouldn’t feel free to touch it up a little.
Anchors and Magnets
For me a far more important issue was Trump’s claim about birthright citizenship as “the biggest magnet for illegal immigration,” which Eastman had echoed in his Times op-ed, although he modified Trump’s wording to “a powerful magnet.”
This is a familiar rightwing charge: migrants supposedly risk their lives at a deadly border in the belief that having a child here will shield them from deportation. GOP politicians regularly dismiss such children as “anchor babies” that migrants “drop” as a way to live here. But migrants’ children aren’t anchors, and their parents aren’t metallic objects irresistibly drawn to “a powerful magnet.” Migrants are human beings who can explain their own motivations if we bother to ask them.
So do undocumented immigrants really come here to take advantage of the 14th Amendment’s citizenship clause?
Not according to two surveys, one from 2006 and another from 2013. When asked their reasons for entering the United States, most undocumented immigrants cited economic reasons or a desire for a better life. If any said they came to have “anchor babies,” the percent wasn’t high enough to report. A study released this November by the World Food Program, the Organization of American States and several other organizations has also failed to find that birthright citizenship is an important motivation for migrants.
In any case, it’s hard to see how the citizenship clause could be much of an incentive for immigrating. As journalist Janell Ross, then at the Washington Post, pointed out in August 2015, the presence of a U.S. citizen child doesn’t actually do much to help undocumented parents. Ross explained that they would need to wait 21 years before their child could sponsor them for a green card, and most parents who entered without authorization would end up waiting for a full 31 years.
“Dirty, Wet, Cold”?
I asked Eastman about his evidence for the supposed “magnet.” He responded by citing “the exceedingly high rates of births to illegal immigrant mothers in border city hospitals, among other things.” He linked to three items when I asked him for sources.
The first was a PBS NewsHour story from 2013 giving estimates of births to undocumented immigrants; most births seemed to occur in California, New York, Texas, Florida, North Carolina, Arizona, and Illinois. But only four of these seven states have an international land border, and New York’s is with Canada. Eastman’s second source was a 2005 study by Steve Camarota at the immigration-restrictionist Center for Immigration Studies. This showed that in 2002 there was a high rate of births to immigrant mothers (documented or undocumented) in various counties, some of which border on Mexico. The highest rate, though, was in Queens, New York—which is about 330 miles from the state’s only international border.
Eastman’s third source, a CBS News report from 2008, was the only one giving evidence of high undocumented birth rates in “border city hospitals.” CBS national correspondent Byron Pitts quoted a Texas hospital CEO named Joe Riley who claimed that 40 percent of the births at his facility were to undocumented mothers. “Riley has seen and heard it all,” the report continued.
“Mothers about to give birth that walk up to the hospital still wet from swimming across the river in actual labor … dirty, wet, cold,” he said.
But here to have a child?
“Here to have a child in the U.S.,” he said.
Enabling the Fringe
It’s not clear how many migrants Joe Riley could have seen swimming the Rio Grande while in labor. Most migrants have children well after they’ve settled in the United States. A 2011 Pew Research study estimated that 61 percent of the undocumented immigrants with children born in 2009 had arrived here before 2004, 30 percent had arrived from 2004 to 2007, and only 9 percent arrived later.
In fact, I found myself wondering how someone as obviously intelligent and well-educated as Eastman could present such flimsy arguments. Was he just lying, or had rightwing ideology warped his mind to the point where he could believe what he was writing?
But a far more important question is how Eastman rose to such prominence—and not just in hyper-conservative circles like the Federalist Society. The U.S. political class, including the corporate media, gives a certain deference to far-right figures like Eastman, a deference they often deny to leftist activists and intellectuals, even moderate ones. In addition to the New York Times and the National Review, over the years Eastman has had articles published in The Hill, RealClearPolitics, Newsday, and Newsweek, not to mention far-right media like those owned by the Murdoch family.
Eastman is something of an embarrassment for the mainstream now. He’s lost a professorship, may face an ethics investigation by the California bar association, and has been subpoenaed by the House select committee investigating the January 6 insurrection. But if he’s an embarrassment, he’s one the mainstream has spent years nurturing.