Richard
Epstein
is
back
and
as
opinionated
as
ever.
Or
maybe,
more
accurately,
“as
willing
to
share
his
opinion
as
ever
regardless
of
expertise.”
The
NYU
Law
professor
who
famously
predicted
that
only
500
Americans
would
die
of
COVID-19
and
then
adjusted
his
estimate
to
5000
when
that
didn’t
pan
out
and
then
just
shrugged
and
stopped
talking
about
it
when
his
amateurish
dabbling
in
public
health
theory
ended
up
being
off
by
hundreds
of
thousands
more.
The
intellectual
gadfly
just
flitted
on
to
another
subject
rather
than
grapple
with
being
profoundly
and
embarrassingly
wrong.
Tragically,
the
White
House
reportedly
took
Epstein’s
baseless
ramblings
at
face
value,
delaying
a
proper
response
to
COVID
on
the
pseudoscientific
ramblings
of
a
neophyte.
A
few
years
later,
Epstein
enthusiastically
applauded
the
death
of
Chevron,
allowing
judges
to
use
their
law
school
degrees
to
second-guess
scientists
and
engineers.
Truly
inspiring
to
see
how
much
someone
can
achieve
without
a
sense
of
irony.
Or
shame
as
the
case
may
be.
In
any
event,
he’s
back
with
a
Supreme
Court
amicus
brief
backing
up
one
of
Donald
Trump’s
pet
constitutional
law
theories:
that
the
guarantee
of
birthright
citizenship
enshrined
in
the
Fourteenth
Amendment
doesn’t
really
say
that.
To
be
clear,
Epstein’s
not
an
expert
in
this
field,
but
he
views
his
own
law
degree
as
a
sort
of
academic
“stayed
at
a
Holiday
Inn
Express
last
night”
allowing
him
to
weigh
in
and
enjoy
presumptive
credibility
without
any
of
the
heavy
lifting
involved
in
going
out
and
engaging
with
experts.
The
birthright
citizenship
fight
bears
a
lot
of
similarities
to
Trump’s
effort
to
seize
Greenland.
Both
are
topics
that
absolutely
no
one
was
talking
about
until
Trump
took
them
up,
but
now
generate
a
whole
industry
of
sycophantic
support.
For
roughly
a
century-and-a-half,
everyone
agreed
that
the
Fourteenth
Amendment
clearly
meant
what
it
said
about
birthright
citizenship.
Indeed,
Richard
Epstein
never
thought
anything
about
the
subject
either
—
having
never
written
anything
even
hinting
at
it
throughout
his
career.
But
since
Trump
embraced
the
subject,
Epstein’s
written
a
whole
book
on
it!
Because
when
you’ve
been
catastrophically
wrong
about
epidemiology,
why
not
try
your
hand
at
constitutional
history?
The
brief
itself
argues
that
“subject
to
the
jurisdiction
thereof”
in
the
Citizenship
Clause
should
be
read
to
exclude
children
of
immigrants
because
naturalization
laws
historically
required
people
to
renounce
foreign
allegiances.
Because
the
children
of
naturalized
citizens
got
to
be
citizens,
he
takes
the
leap
that
children
must
not
be
citizens
unless
their
parents
are
fully
naturalized.
Georgia
State
law
professor
Anthony
Michael
Kreis,
an
actual
constitutional
history
scholar,
explains
how
English
common
law
—
beyond
reading
the
Cliff’s
Notes
of
Blackstone’s
Commentaries
—
does
not
support
this
conclusion:
Children
born
in
the
king’s
realm
were
generally
subjects,
no
matter
the
parents’
identity.
Had
Epstein
dug
back
into
the
common
law
*before*
Blackstone,
there
are
some
good
examples
of
this
being
explained.
Instead,
he
treats
parents’
status
as
somehow
inherited
by
the
children.
He
suggests
that
Blackstone’s
articulation
tends
to
accord
with
the
brief’s
argument
that
“children
of
illegal
aliens”
are
“subject
to
a
foreign
power.”
That’s
entirely
unsupported
rubbish.
Kreis,
along
with
professors
Evan
Bernick
and
Paul
Gowder,
anticipated
and
eviscerated
precisely
this
style
of
argument
in
a
Cornell
Law
Review
piece.
Their
assessment
of
academics
who
suddenly
discovered
anti-birthright
citizenship
arguments
is
appropriately
brutal:
Under
the
guise
of
“originalism,”
[these
scholars]
propose
an
ahistorical,
revisionist
interpretation
of
the
Fourteenth
Amendment’s
Citizenship
Clause…
Their
efforts
to
radically
redefine
the
historical
understanding
of
citizenship
are
methodologically
flawed
and
undermine
core
principles
of
constitutional
law.
More
directly:
the
arguments
are
“wildly
inconsistent
with
constitutional
text,
history,
precedent,
and
unbroken
tradition.”
Epstein’s
brief
argues
that
Wong
Kim
Ark
—
the
1898
Supreme
Court
case
that
explicitly
held
the
Citizenship
Clause
grants
birthright
citizenship
—
was
“wrongly
decided,”
citing
Chief
Justice
Roberts’s
lament
that
gay
people
can
get
married
now
for
good
measure.
Until
a
few
years
ago,
even
the
most
die-hard
conservative
legal
movement
voices
would
acknowledge
it
as
both
settled
and
obvious.
Before
Trump’s
rise,
the
political
debate
over
birthright
citizenship
revolved
around
repealing
parts
of
the
Fourteenth
Amendment…
now
it’s
about
pretending
the
Amendment
doesn’t
really
exist
at
all.
The
Kreis,
Bernick,
Gowder
article
addresses
why
this
whole
“allegiance”
theory
peddled
by
Epstein
wouldn’t
even
accomplish
the
fundamental
purpose
of
the
Fourteenth
Amendment
here
—
namely,
nullifying
Dred
Scott:
Nullifying
Dred
Scott
thus
required
a
theory
of
citizenship
that
did
not
depend
upon
any
initial
consent
on
the
part
of
enslaved
people
to
obey
U.S.
law…
Enslaved
people
were
kidnapped
and
forced
into
the
United
States;
their
consent
was
neither
sought
nor
given.
In
other
words,
the
consent-based
citizenship
theory
Epstein
champions
would
struggle
to
explain
how
the
very
people
the
Fourteenth
Amendment
was
designed
to
protect
became
citizens
at
all.
This
kind
of
fly-by-night
constitutional
theorizing
springs
from
a
troubling
historical
precedent:
the
Dunning
School
of
Reconstruction
historiography.
And
while
all
conservative,
originalist
“history”
draws
from
the
Dunning-Kruger
School,
this
Dunning
is
unrelated.
The
Dunning
School
addressed
here
involves
the
work
of
an
early
20th
century
historian
named
William
Archibald
Dunning,
who
churned
out
a
series
of
racist
interpretations
of
post-Civil
War
history
that
got
picked
up
at
the
convenience
of
bad
faith
actors
hoping
to
wish
away
Reconstruction.
At
least
that
Dunning
was
trying
to
be
a
historian,
and
not
a
tourist
crashing
the
discipline
hoping
to
rewrite
history
with
a
law
degree.
Whenever
called
upon
to
speak
about
artificial
intelligence,
I
cite
Christine
Lemmer-Webber’s
description
of
LLMs
as
“mansplaining
as
a
service.”
It’s
going
to
give
the
user
answers,
and
if
they’re
wrong…
they’re
going
to
be
very
confidently
wrong.
Maybe
we
can
expand
that
phrase
to
cover
Epstein’s
public
work.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.