He’s a Chapman law professor and constitutional law scholar. He ran for attorney general of California. And, he says, he’s one of the legal experts upon whose research President Donald Trump is basing his recent decision to potentially end birthright citizenship.
John Eastman, who also served as the dean of Chapman’s law school in the early 2000s, has studied the 14th Amendment, which courts and legal scholars have long said guarantees citizenship for people born on American soil for years.
Though it was mentioned when Trump was on the campaign trail in 2015, the president has only recently revealed his intent to change the amendment by executive order and eradicate birthright citizenship, most notably in an exclusive interview with Axios that aired Nov. 4.
“We’ve now got a president who has some authority to take some action by executive order to enforce the law as written, not as it has come to mean,” Eastman, who said he has testified in front of Congress about the interpretation of the amendment at least three or four times, told The Panther. “That’s certainly well within his power.”
Eastman declined to comment when asked if he had been contacted by or spoken with the White House or the Trump administration about the issue of birthright citizenship. But, he said, he’d be “happy to” provide counsel or speak on the subject to anyone who asked.
“I’ll very likely weigh in if there’s a court battle over this,” he said.
In an Oct. 31 press conference, Trump said that he concluded that changing birthright citizenship through an executive order would be the best option after he met with “very talented” legal scholars.
“Now, I’d rather do it through Congress, because that’s permanent,” Trump told reporters outside the White House. “But we can certainly do it through … I really believe we can do it through executive order.”
The basis for Eastman’s argument against the current interpretation of the amendment stems from a specific phrase which indicates that in order to qualify for citizenship, those born here must be “subject to the jurisdiction thereof,” which is widely understood to mean U.S. law.
While the Supreme Court ruled in favor of birthright citizenship in 1898, holding that even immigrants in America illegally are subject to U.S. law, some scholars like Eastman argue that the phrase actually means that at least one of the child’s parents needs to be a U.S. citizen for the child to be subject to U.S. political jurisdiction.
But there has been pushback on this interpretation of the constitution from other prominent legal scholars. Garrett Epps, who specializes in constitutional law, wrote in The Atlantic in July that this argument is “at best, scholarly malpractice” and equated it to flat-earthism.
“If a British citizen is visiting here as a tourist, he’s subject to our territorial jurisdiction while he’s here. He has to drive on the right side of the road, not the left,” Eastman said. “But he’s not subject to our political jurisdiction … he doesn’t owe any allegiance to us.”
Eastman, who is on sabbatical from teaching in Chapman’s law school, said the topic has come up in some of his Chapman classes over the years – one student even worked with him on a brief for a birthright citizenship case.
Ian Barnard, a Chapman English professor, tweeted about Trump potentially taking inspiration from Eastman Oct. 30, calling Eastman a “xenophobic, homophobic Chapman University law professor.”
Eastman serves as chairman of the board for the National Organization for Marriage, a group that has been described by the Southern Poverty Law Center as anti-gay. He also called homosexuality “barbarism” in a piece he wrote in 2000.
“How embarrassing for @ChapmanU!!” Barnard said in his tweet.
President Daniele Struppa wrote in an email to The Panther that, while he’s a mathematician, not a legal scholar, he believes the 14th Amendment is “quite literal.”
“From this perspective, it seems to me that the amendment is clear: If you are born in the US and are subject to its laws, you automatically are a U.S. citizen,” Struppa wrote. “So I disagree with interpretations that would exclude U.S. born children of persons who are in the U.S. illegally: It seems to me that the 14th Amendment gives them citizenship. I recognize and respect that other people may think differently, but to me, the reading is simple.”
Despite his belief in changing the constitution to eradicate birthright citizenship, Eastman said he hopes that whatever comes out of Trump’s executive order doesn’t retroactively affect children of immigrants who have already been born in the U.S.
“I’d like to see it done in a way that doesn’t pull the rug out from people that we have been, for too long, acting as if they were already citizens,” Eastman said. “When our own government is indicating to them that they’re citizens, they ought to be able to rely on that.”