It’s not every day that academics are willing to call each other out on their scholarship and methodology—and do it publicly.
But ever since two well-known law professors published a controversial op-ed in the New York Times making a case for the Trump administration’s executive order restricting birthright citizenship, the legal community has been in uproar. Some scholars have accused the authors—professors Randy Barnett and Ilan Wurman—and other legal minds backing Trump’s effort to rewrite the Constitution of engaging in “hackery” and revisionist history. One charged that their work should be retracted.
Tomorrow, the Supreme Court will hear oral arguments in a monumental case challenging the constitutionality of Trump’s executive order denying citizenship to the US-born children of undocumented immigrants and visa holders. The government’s case will largely rest on arguments by a handful of controversial legal scholars who make up a band of misfits. They include Wurman, a young Trumpian University of Minnesota professor; Richard Epstein, who famously predicted US deaths from Covid would peak at 500; and John Eastman, the architect of the 2020 stolen election plot who has been attacking birthright citizenship for decades.
Let’s be very clear: Their case challenging the consensus over 150 years of 14th Amendment interpretation is nonsense.
Despite its glaring flaws, these are the legal theories the justices will contend with on Wednesday in Trump v. Barbara. What they decide could take the country back to a caste-like system where some people are born on US soil and relegated to a permanent underclass, where their status in life depends on that of their parents. At least on paper, that notion was rejected a long time ago. You can read our full analysis here.
—Isabela Dias
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