Update, August 16, 8:13 pm:

On August 16, Trump's Chief of Staff Mark Meadows said that Trump will not be pursuing the despicable, racist "birther" theory against Kamala Harris that Trump first raised on August 13. Trump also stated that he will not pursue this vile theory, even as he revived it by stating that "Sleepy Joe" Biden should have "vetted" Harris based on this same racist lie that her nonwhite immigrant parentage somehow makes her ineligible to be VP. See, Daily Mail (UK):


My original comment appears below.

Donald Trump, who led the utterly false, malicious and racist "birther" attack against President Barack Obama's US citizenship, is now using the same tactics against Joe Biden's VP pick, Kamala Harris. The appeal to racial bigotry in Trump's utterly baseless suggestion that Harris might not be a US citizen despite her birth in California could not be more obvious. She is the child of (highly educated, professional) immigrant parents; her mother is from India and her father is from Jamaica.

See: Washington Post, August 13,:

Trump promotes false claim that Harris might not be a U.S. citizen

But this despicable, totally unfounded attack on Senator Harris is not just the latest in the countless lies that Trump has been promoting against nonwhite immigrants from the time that he started running for president five years ago up to now. Behind this latest attempt at racial defamation against Harris, there is a much more dangerous and sinister Trump agenda: ending the 14th Amendment's guarantee of US citizenship to all persons born in the United States (except for the children of foreign diplomats - which i the only meaning of the Amendment's requirement that the person must also be "subject to the jurisdiction" of the United States).

As the above WP article explains, reputable legal scholars agree that the above phrase has no other meaning (it also originally applied to certain Native American groups that were not subject to US laws). There is nothing whatsoever in the meaning of this phrase to support the right-wing fringe argument that US birthright citizenship depends on the legal immigration status of a US-born person's parents.

But what makes Donald Trump's false attack on Kamala Harris' US citizenship so dangerous is not just the fact that there is no evidence to support even this fringe theory - Trump does not allege that either of Harris' parents was ever in the US illegally. The danger is that, as The Post also reports, Trump in 2018 threatened to abolish the 14th Amendment's guarantee of birthright citizenship by executive order.

In other words, in Trump's view, a presidential decree takes precedence of the constitution of the United States, at least involving immigration and the right to citizenship.

When a US president claims the power to override or abolish the US constitution by executive diktat, and to deprive millions of US-born Americans of their citizenship as a result then this nation will no longer be a democracy - it will become a fascist dictatorship.

While Trump never followed through on his threat to issue an executive order abolishing birthright citizenship, his latest attempt to smear Harris by raising unfounded questions about her US citizenship should be taken as a warning that Trump has not forgotten his 2018 promise. This promise was to abolish birthright citizenship, and that just as his first term was devoted to trying to destroy America's legal immigration system, his second term, if there is one, will focus on trying to take away US citizenship from as many Americans of non-European ancestry as possible.

One of the most appropriate precedents for this in modern history is the Nazi Nuremberg laws of 1936, which took German citizenship away from that country's Jewish population as a prelude to their extermination.

Of course, no one is accusing Donald Trump of planning mass extermination of any kind or against any group of people. But mass expulsion of non-European immigrants has avowedly been high on his agenda from the beginning of his regime. The danger is growing that this may be followed by mass expulsion of US citizens who do not fit in with Trump's racial vision of a white supremacist America. .

Turning back to the far right wing argument for abolishing birthright citizenship based on a twisted and distorted view of the 14th Amendment, the key to understanding the meaning of the "subject to the jurisdiction" clause in the Amendment's birthright citizenship provision is in the U.S. Supreme Court's 1898 Wong Kim Ark decision, to be discussed in Part 2 of this comment.

The term "jurisdiction" goes back 2,000 years to the time of Roman law. It concerns the power of the courts or tribunals to make binding decisions on the parties concerned and has nothing to do with questions of a litigant's ancestry or parents' legal status. This is the historical reality, notwithstanding the distorted attempts of some immigration opponents to read these issues into the 14th Amendment.

The ancient Roman origins of "jurisdiction" as it has been understood for the past two millennia will also be discussed in Part 2.

To be continued.

Roger Algase
Attorney at Law