Efforts to backfill academic support for the birthright citizenship executive order wouldn't have been possible without a Court open to such "scholarship."
I will be interested to read what you will write about the Chiles case, particularly in terms of the penumbra of 1st Amend free speech. It's not just Citizens United, in my view, but has it gone to far, while also being a double-edged sword. An irony in the Chiles result is how the Court (and some circuits) treats abortion vs conversion therapy.
Thank you so much for your beautifully clear and compelling writing, especially for those of us who are very concerned, but without law training. The 52-page book review sounds fantastic! More Vladeck! More! More!
Another great column. I've been vexed by the willingness of conservative judges to grasp onto any 18th Century verbiage that ostensibly supports their views on the Constitution while rejecting any reliance on the clearly-documented legislative history of more recent enactments. Shocked (shocked!) to learn that their historical sources are thin and result-oriented.
"The Gorsuch footnote is, alas, no outlier. One can find any number of other examples of justices citing recent scholarship as proof of (or at least support for) historical claims that, whatever their merits, just have not run the gauntlet of conventional historical scholarship. History can be, and usually is, complicated (the Dutch historian Pieter Geyl called history “an argument without end”). But if the Supreme Court is going to try to backfill its conclusions with whatever citations it can muster regardless of their integrity or persuasiveness, someone will provide those citations. Justice Sotomayor captured this exact point last month in paraphrasing Field of Dreams about how the Court’s behavior provokes responses: “if you build it, they will come.”
Historians, most likely including these soi- distant originalist legal historians, are also very complicated. There is incredible hubris in thinking we can preserve a certain perspective in amber as though it was gospel. It's hard not to question their motives.
One thing I believe as the daughter of a historian is that we never really arrive... we keep pressing forward with the tools at our disposal at the time. We think we know...but I believe future generations will argue we know less than we thought we did.
You should debate the faculty members you disagree with. Hash it out in the open, "iron sharpens iron." There has to be some pedagogical value in that.
I regularly participate in such debates. And when I'm critical of others' scholarship, I am not shy about calling those folks out directly (as I did here).
Crazy thought. Could Congress, as an extension of its power over SCOTUS jurisdiction, pass a set of interpretive guidelines. Essentially a framework for how the court should conduct its business. Sure, results driven justices will find a way to reach the conclusion they want within the guidelines, but they will at least have to pay lip service to doing their job the same way all the other justices are doing it. And their efforts would more easily be understood and placed in context.
This essay is a banger, so I almost hate to say this, but Prof. Vladeck citing himself and refererring to unnamed others really doesn't answer Prof. Wurman's point on liberal professors. Because there are absolutely tons of liberal legal scholars who have never once published a word in support of a conservative position or that is contrary to any Democratic Party or left-liberal position. There are even liberal professors who do the same shoddy rushed "scholarship" as amicus brief as Barnett and Wurman did here.
Prof. Vladeck IS good on this point. But plenty of academia is liberals using basically the exact same strategies as Barnett and Wurman use to shape the law, albeit perhaps without bonehead errors like the "amity" thing.
As I said, I don't want this point to hit too hard. This is a great essay.
Your point is, as usual, eminently fair--just as there are plenty of conservative legal scholars whose work I find deeply serious and above reproach, even when I disagree with it. The problem here, as I know you agree, is both Wurman's whataboutism and his ridiculous overclaiming, not the broader concern that too many law professors of all stripes too often engage in motivated reasoning. Just among *his* interlocutors, there are plenty of folks of whom he is obviously aware who don't fit his thesis.
Absolutely. Barnett and Wurman's obvious "suddenly discover a new interest in a subject as it becomes a salient political issue, and conveniently determine that history supports exactly what my political party's position on that issue is, shifting around as my historical theories don't work" act is both ridiculous and deserves everything you said about it.
Liberal law professors often get fairly conservative on matters economic. However, I'll concede Dilan Esper's point: their support for conservative economic positions is generally tacit, and seldom takes the form of active advocacy.
All these legal analyses are nice to read and debate, but they are moot. This case begins and ends with the question of whether an Executive Order can have any validity in this case. The answer is most emphatically not. Changing the meaning of birthright citizenship requires legislation. And any legislation must be consistent with the 14th Amendment. Furthermore, ALL legislative power in vested in Congress and only Congress. Executive Orders can only regulate the operations of the Executive Branch. So in the very first instance the EO goes beyond the lawful authority of the Executive Branch, and so is invalid.
Beyond that is 8USC§1401 which confers birthright citizenship on ALL persons born in the U.S., which includes all areas under our sovereign control: territories, embassies, warships, military bases, U.S. flagged aircraft and ships, and cemetaries ceded to the United States by foreign governments.
Opponents conflate loyalty with jurisdiction. Millions of people come here every year from countries they owe allegiance to. But while on U.S. soil they are subject to our laws, i.e., jurisdiction.
I have copied the last two sentences of the last paragraph of the first footnote to this post and pasted into a note to myself. Thanks for that and for the reminder (and demonstration) that there is actually critical thinking taking place and being taught in today’s world.
First, the conversion therapy opinion is horrible, and it's horrible that Kagan/Sotomayor concurred with it. They didn't simply concur in judgment. And as Jackson (and Slate) notes, the content/viewpoint thing in this context is a dubious "fix," if that is what it is.
And even Kagan said it would be a harder call. It isn't even that it would be allowed! It would be more difficult. This includes Gorsuch's usage of history and tradition, which Jackson calls out. It is the sort of First Amendment Lochner-ing or "weaponizing" of the 1A that Kagan in the past criticized. I fear the opinion will cause a lot of problems in Robert Kennedy Jr.'s America.
Second, originalism is a horrible approach. The reality of the situation is that history will only take you so far. It can be viewed from various perspectives. Yes, liberals will use it in a slanted way at times. History is often about finding possibilities. Is this or that reasonable?
History does provide a rough sense of what happened. It isn't totally subjective. Good scholarship has its place. But ultimately, the law will not rest on mere history.
There are lots of long articles about this or that constitutional matter. They can be sixty pages or more. Lots of citations and everything. Some are rather interesting. I find them so at least.
But they are imperfect vessels, and you can find others who reasonably apply the material differently.
Please, Prof. Vladek, “gauntlet” and “gantlet” do not mean the same thing, as I think I’ve noted before. A “gauntlet” is a type of glove, like those worn by jousters in medieval days. A “gantlet” is a double line of people between which an alleged miscreant is forced to run while being beaten by those on each side. Whatever “descriptive” dictionaries may allow these are hardly interchangeable words. Humpty Dumpty hasn’t completely taken over the rules on how we use words, especially, I hope, for the legal profession. Paul S. Adler
I will be interested to read what you will write about the Chiles case, particularly in terms of the penumbra of 1st Amend free speech. It's not just Citizens United, in my view, but has it gone to far, while also being a double-edged sword. An irony in the Chiles result is how the Court (and some circuits) treats abortion vs conversion therapy.
Wrt Justice Kagan's view, but in the Chiles case, isn't the content the speech? How can they be separated?
Thank you so much for your beautifully clear and compelling writing, especially for those of us who are very concerned, but without law training. The 52-page book review sounds fantastic! More Vladeck! More! More!
Another great column. I've been vexed by the willingness of conservative judges to grasp onto any 18th Century verbiage that ostensibly supports their views on the Constitution while rejecting any reliance on the clearly-documented legislative history of more recent enactments. Shocked (shocked!) to learn that their historical sources are thin and result-oriented.
"The Gorsuch footnote is, alas, no outlier. One can find any number of other examples of justices citing recent scholarship as proof of (or at least support for) historical claims that, whatever their merits, just have not run the gauntlet of conventional historical scholarship. History can be, and usually is, complicated (the Dutch historian Pieter Geyl called history “an argument without end”). But if the Supreme Court is going to try to backfill its conclusions with whatever citations it can muster regardless of their integrity or persuasiveness, someone will provide those citations. Justice Sotomayor captured this exact point last month in paraphrasing Field of Dreams about how the Court’s behavior provokes responses: “if you build it, they will come.”
Historians, most likely including these soi- distant originalist legal historians, are also very complicated. There is incredible hubris in thinking we can preserve a certain perspective in amber as though it was gospel. It's hard not to question their motives.
One thing I believe as the daughter of a historian is that we never really arrive... we keep pressing forward with the tools at our disposal at the time. We think we know...but I believe future generations will argue we know less than we thought we did.
You should debate the faculty members you disagree with. Hash it out in the open, "iron sharpens iron." There has to be some pedagogical value in that.
I regularly participate in such debates. And when I'm critical of others' scholarship, I am not shy about calling those folks out directly (as I did here).
I must miss them in the event announcements! That wasnt intended as criticism but encouragement
Crazy thought. Could Congress, as an extension of its power over SCOTUS jurisdiction, pass a set of interpretive guidelines. Essentially a framework for how the court should conduct its business. Sure, results driven justices will find a way to reach the conclusion they want within the guidelines, but they will at least have to pay lip service to doing their job the same way all the other justices are doing it. And their efforts would more easily be understood and placed in context.
This essay is a banger, so I almost hate to say this, but Prof. Vladeck citing himself and refererring to unnamed others really doesn't answer Prof. Wurman's point on liberal professors. Because there are absolutely tons of liberal legal scholars who have never once published a word in support of a conservative position or that is contrary to any Democratic Party or left-liberal position. There are even liberal professors who do the same shoddy rushed "scholarship" as amicus brief as Barnett and Wurman did here.
Prof. Vladeck IS good on this point. But plenty of academia is liberals using basically the exact same strategies as Barnett and Wurman use to shape the law, albeit perhaps without bonehead errors like the "amity" thing.
As I said, I don't want this point to hit too hard. This is a great essay.
Your point is, as usual, eminently fair--just as there are plenty of conservative legal scholars whose work I find deeply serious and above reproach, even when I disagree with it. The problem here, as I know you agree, is both Wurman's whataboutism and his ridiculous overclaiming, not the broader concern that too many law professors of all stripes too often engage in motivated reasoning. Just among *his* interlocutors, there are plenty of folks of whom he is obviously aware who don't fit his thesis.
Absolutely. Barnett and Wurman's obvious "suddenly discover a new interest in a subject as it becomes a salient political issue, and conveniently determine that history supports exactly what my political party's position on that issue is, shifting around as my historical theories don't work" act is both ridiculous and deserves everything you said about it.
Liberal law professors often get fairly conservative on matters economic. However, I'll concede Dilan Esper's point: their support for conservative economic positions is generally tacit, and seldom takes the form of active advocacy.
All these legal analyses are nice to read and debate, but they are moot. This case begins and ends with the question of whether an Executive Order can have any validity in this case. The answer is most emphatically not. Changing the meaning of birthright citizenship requires legislation. And any legislation must be consistent with the 14th Amendment. Furthermore, ALL legislative power in vested in Congress and only Congress. Executive Orders can only regulate the operations of the Executive Branch. So in the very first instance the EO goes beyond the lawful authority of the Executive Branch, and so is invalid.
Beyond that is 8USC§1401 which confers birthright citizenship on ALL persons born in the U.S., which includes all areas under our sovereign control: territories, embassies, warships, military bases, U.S. flagged aircraft and ships, and cemetaries ceded to the United States by foreign governments.
Opponents conflate loyalty with jurisdiction. Millions of people come here every year from countries they owe allegiance to. But while on U.S. soil they are subject to our laws, i.e., jurisdiction.
I have copied the last two sentences of the last paragraph of the first footnote to this post and pasted into a note to myself. Thanks for that and for the reminder (and demonstration) that there is actually critical thinking taking place and being taught in today’s world.
First, the conversion therapy opinion is horrible, and it's horrible that Kagan/Sotomayor concurred with it. They didn't simply concur in judgment. And as Jackson (and Slate) notes, the content/viewpoint thing in this context is a dubious "fix," if that is what it is.
And even Kagan said it would be a harder call. It isn't even that it would be allowed! It would be more difficult. This includes Gorsuch's usage of history and tradition, which Jackson calls out. It is the sort of First Amendment Lochner-ing or "weaponizing" of the 1A that Kagan in the past criticized. I fear the opinion will cause a lot of problems in Robert Kennedy Jr.'s America.
Second, originalism is a horrible approach. The reality of the situation is that history will only take you so far. It can be viewed from various perspectives. Yes, liberals will use it in a slanted way at times. History is often about finding possibilities. Is this or that reasonable?
History does provide a rough sense of what happened. It isn't totally subjective. Good scholarship has its place. But ultimately, the law will not rest on mere history.
One more thing, ma'am ...
There are lots of long articles about this or that constitutional matter. They can be sixty pages or more. Lots of citations and everything. Some are rather interesting. I find them so at least.
But they are imperfect vessels, and you can find others who reasonably apply the material differently.
Ah, happy days at Ye Old Law Shoppe where Originalism may be molded to fit your personal size and shape — bespoke legalisms.
Please, Prof. Vladek, “gauntlet” and “gantlet” do not mean the same thing, as I think I’ve noted before. A “gauntlet” is a type of glove, like those worn by jousters in medieval days. A “gantlet” is a double line of people between which an alleged miscreant is forced to run while being beaten by those on each side. Whatever “descriptive” dictionaries may allow these are hardly interchangeable words. Humpty Dumpty hasn’t completely taken over the rules on how we use words, especially, I hope, for the legal profession. Paul S. Adler