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.
I don't know enough to answer intelligently, but I won't let that stop me.
I thought the idea was that Colorado could ban talk therapy of *any kind* concerning gender identity, so that the ban would be about content rather than a particular viewpoint on that topic (gender-affirming, gender-converting, etc.). I don't know how they would justify such a law, though. In fact, I also wondered exactly what Kagan and Sotomayor had in mind.
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.
Perhaps if I were a lawyer, this would be clear to me, but it seems that both sides in the oral arguments over birthright citizenship took a sort of "originalist" approach, with the ACLU lawyer arguing (among other things) that the Fourteenth Amendment and related laws were based on English common law before the American Revolution, so that's how we should interpret them now.
It seems that "originalism" has shifting definitions and that originalist arguments are used in one form or another by both liberals and conservatives when it suits them. If there's a more precise way to understand this, I'd like to know what it is.
It’s more that originalism has become the lingua franca of the Court thanks to the conservatives’ insistence on it. If you’re arguing in front someone who only speaks one language, well you had better speak it too. I’m sure the ACLU would love to make a pragmatist argument, but no one should try to speak Hungarian in Basque Country.
"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.
I think Justices reach the best decisions when they apply reason, in good faith to their oath, rather than any unyielding rule. When we elevate judges with an extreme agenda, whether on the left or right, we are going to see questionable decisions. Though ethics rules might be good...
I think Congress can dictate which types of cases the Court may (or must) hear on appeal but not how to go about deciding them due to separation of powers concerns.
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.
The 14th Amendment itself even provides for Congress to implement its provisions. The Court has sometimes given that great weight, other times not so much.
Right! Why didn't the Justices discuss the LIMITS of Executive Orders? The President went way beyond his executive authority on this one and the Court should have said so.
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
They are interchangeable words. Your contempt for dictionaries is fascinating, because basically you are saying that the authorities' view should not count and we should listen to some guy on the Internet who wishes the language would obey his dictates and desires instead.
And I say this as someone who personally does say "throw down the gauntlet" and "run the gantlet". Nonetheless, the words ARE interchangeable and your idiosyncratic beliefs about what "should" be correct English do not count for anything.
Of course you are being facetious, but I am simply saying that the meaning of terms is fixed by the public and reflected in dictionaries. "But... it SHOULDN'T mean that!" is a meaningless statement because the only tribunal here is the public, which doesn't care about such things.
I have mixed feelings about this debate. Language sometimes evolves in a natural and reasonable way, but it sometimes evolves due to carelessness or ignorance. I'm not wild about readily accepting the latter kind of evolution, as I think it encourages sloppiness.
I'm not willing to throw down the gauntlet over gantlets, though; in that particular case, I share your viewpoint.
The thing is, whatever the public decides IS natural and reasonable, definitionally. The public ISN'T "ignorant"-- the "ignorant" people are the folks who don't understand how language work, don't care what the public has chosen, and falsely and smugly "correct" people who know the language better than they do.
Indeed, I would encourage you to look at this a different way-- language is one of our few truly democratic institutions. The public rules, and elites have no special power to override public consensus. In that sense, it's actually a beautiful thing.
Well, we differ on that particular point. Some people are ignorant of word meanings, others are more knowledgeable. I think the "anything goes" approach can degrade language. I understand that language is a human creation, so we're free to define it as we wish, but that doesn't mean that all approaches lead to equally good results in terms of clarity and expressiveness.
Since this is just a difference of opinion, I don't have much more to say, and we've strayed from the topic of the article.
Originalism is, to me, just a fig leaf for partisanship. We cannot know what the Framers intended by most parts of the Constitution because the words themselves generally reflected compromise among the group who gathered at Philadelphia. Besides, the Reconstruction Amendments shook up whatever underlying consensus there may have been, at least on some of the big questions related to states' autonomy. And the only way to make sense of those 18th century debates is to use actual history, which means consulting historians. But our Supreme Court basically does not do that. So perhaps another indictment of the justices is "arrogance."
Similarly, we do not (and probably cannot know) the "original public meaning" at the time of ratification by the States (which I think is J Barrett's way of characterizing originalism).
Whatever its definition, originalism seems to ignore the fact that the nation's concept of ordered liberty has evolved. To embrace originalism, it seems to me, decontextualizes contemporary legal issues from that evolution. An appreciation for the history of the law is important, but the Justices should focus on precedential judicial opinions and the text of the Constitution (not, as Steve suggested, points of view cherry-picked from law review articles).
Eastman has written about birthright citizenship when the broad Republican view was inclusionist under GWB. Theory is still wrong but he has driven the "debate" rather than jumped on the bus as it was passing.
The thing is Eastman is a crank and the guy who generated the legal theories that supported 1/6/21, legal theories so frivolous and dangerous that they resulted in bar discipline.
So yes, an absolute crazy person who should have never had either a law license or a professorship was trafficking in intellectually bankrupt legal theories for a long time. (Fun fact, I was tasked with writing the response to Eastman in the local bar journal when he was peddling his anti-birthright argument when Hamdi v. Rumsfeld was pending, so I remember this quite well.) The thing is, academics shouldn't legitimize the theories of crazy cranks.
In a (paywalled) Substack piece by Seymour Hersh (1), he outlines John Eastman's plans for ensuring that Republicans win the next presidential election. Hersh wrote:
"I was told that Eastman’s new scheme, recently the subject of informal discussions at the White House, calls for sympathetic election officials in states where the Democratic candidates win simply to delay or refuse to submit the electoral votes at the time mandated by the Constitution. Eastman’s notion is to find a way to void the electoral votes from states with a large Democratic plurality, so that the number of electoral votes needed to claim the presidency is low enough to turn a losing Republican candidate into a president."
As far as I can tell, Democratic leaders are either unaware of this or indifferent to it.
My concern is that if the Trump administration tries Eastman's approach and no one opposed to the administration has planned ahead, it may be too late. Publicizing Hersh's article might at least help to rouse early opposition in case Eastman convinces Trump to go with his plan.
Don't worry. You need to do about 15 different things to steal a presidential election and you need nobody to stop you at each one. Eastman is a very dim bulb and very crazy-- what actually happened in 2021, and will happen in 2029, is that someone will stop him because what he is saying is nuts.
I wish I could share your sentiments. I'm certainly not seeing enough "stop" with laws being broken by our current leadership. And, speaking of laws. I fear I'll be hitting my expiration date before I see the miniseries 'Epstein Files' conclusion.
I’ll throw in my Eastman fun fact. One time the House Judiciary Committee assigned Prof. Eastman to review a memo I wrote, and then demanded, with great fanfare, that I address his rebuttal. I complied, after which the matter was quietly dropped without a hint of acknowledgement. But Congress later passed legislation that accorded with the views I presented, so I’m counting it as a win.
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?
I don't know enough to answer intelligently, but I won't let that stop me.
I thought the idea was that Colorado could ban talk therapy of *any kind* concerning gender identity, so that the ban would be about content rather than a particular viewpoint on that topic (gender-affirming, gender-converting, etc.). I don't know how they would justify such a law, though. In fact, I also wondered exactly what Kagan and Sotomayor had in mind.
It would seem any such law would have to cover so much as to be either dangerous or meaningless.
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.
Perhaps if I were a lawyer, this would be clear to me, but it seems that both sides in the oral arguments over birthright citizenship took a sort of "originalist" approach, with the ACLU lawyer arguing (among other things) that the Fourteenth Amendment and related laws were based on English common law before the American Revolution, so that's how we should interpret them now.
It seems that "originalism" has shifting definitions and that originalist arguments are used in one form or another by both liberals and conservatives when it suits them. If there's a more precise way to understand this, I'd like to know what it is.
It’s more that originalism has become the lingua franca of the Court thanks to the conservatives’ insistence on it. If you’re arguing in front someone who only speaks one language, well you had better speak it too. I’m sure the ACLU would love to make a pragmatist argument, but no one should try to speak Hungarian in Basque Country.
"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.
I think Justices reach the best decisions when they apply reason, in good faith to their oath, rather than any unyielding rule. When we elevate judges with an extreme agenda, whether on the left or right, we are going to see questionable decisions. Though ethics rules might be good...
I think Thomas and Alito have shown us that "might" would appear better as a "Should".
I think Congress can dictate which types of cases the Court may (or must) hear on appeal but not how to go about deciding them due to separation of powers concerns.
I suspect SCOTUS would take that position to defend its freedom. But Congress can set standards of review, this is essentially that.
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.
The 14th Amendment itself even provides for Congress to implement its provisions. The Court has sometimes given that great weight, other times not so much.
Exactly. That's why 8USC§1401 exists. Passed in 1952, there can be no imputation that is applies only to former slaves
Right! Why didn't the Justices discuss the LIMITS of Executive Orders? The President went way beyond his executive authority on this one and the Court should have said so.
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
They are interchangeable words. Your contempt for dictionaries is fascinating, because basically you are saying that the authorities' view should not count and we should listen to some guy on the Internet who wishes the language would obey his dictates and desires instead.
And I say this as someone who personally does say "throw down the gauntlet" and "run the gantlet". Nonetheless, the words ARE interchangeable and your idiosyncratic beliefs about what "should" be correct English do not count for anything.
It seems that Paul Adler takes an originalist approach, whereas your dissenting opinion treats dictionaries more as living documents.
https://www.merriam-webster.com/dictionary/gauntlet
Of course you are being facetious, but I am simply saying that the meaning of terms is fixed by the public and reflected in dictionaries. "But... it SHOULDN'T mean that!" is a meaningless statement because the only tribunal here is the public, which doesn't care about such things.
Yes, I was being (or trying to be) funny.
I have mixed feelings about this debate. Language sometimes evolves in a natural and reasonable way, but it sometimes evolves due to carelessness or ignorance. I'm not wild about readily accepting the latter kind of evolution, as I think it encourages sloppiness.
I'm not willing to throw down the gauntlet over gantlets, though; in that particular case, I share your viewpoint.
The thing is, whatever the public decides IS natural and reasonable, definitionally. The public ISN'T "ignorant"-- the "ignorant" people are the folks who don't understand how language work, don't care what the public has chosen, and falsely and smugly "correct" people who know the language better than they do.
Indeed, I would encourage you to look at this a different way-- language is one of our few truly democratic institutions. The public rules, and elites have no special power to override public consensus. In that sense, it's actually a beautiful thing.
Well, we differ on that particular point. Some people are ignorant of word meanings, others are more knowledgeable. I think the "anything goes" approach can degrade language. I understand that language is a human creation, so we're free to define it as we wish, but that doesn't mean that all approaches lead to equally good results in terms of clarity and expressiveness.
Since this is just a difference of opinion, I don't have much more to say, and we've strayed from the topic of the article.
You may be right about the English language, but I don’t think it is universally true. For example, see the Académie Française.
And I thank you for your wit here. Best giggle all day.
Originalism is, to me, just a fig leaf for partisanship. We cannot know what the Framers intended by most parts of the Constitution because the words themselves generally reflected compromise among the group who gathered at Philadelphia. Besides, the Reconstruction Amendments shook up whatever underlying consensus there may have been, at least on some of the big questions related to states' autonomy. And the only way to make sense of those 18th century debates is to use actual history, which means consulting historians. But our Supreme Court basically does not do that. So perhaps another indictment of the justices is "arrogance."
Similarly, we do not (and probably cannot know) the "original public meaning" at the time of ratification by the States (which I think is J Barrett's way of characterizing originalism).
Whatever its definition, originalism seems to ignore the fact that the nation's concept of ordered liberty has evolved. To embrace originalism, it seems to me, decontextualizes contemporary legal issues from that evolution. An appreciation for the history of the law is important, but the Justices should focus on precedential judicial opinions and the text of the Constitution (not, as Steve suggested, points of view cherry-picked from law review articles).
Eastman has written about birthright citizenship when the broad Republican view was inclusionist under GWB. Theory is still wrong but he has driven the "debate" rather than jumped on the bus as it was passing.
The thing is Eastman is a crank and the guy who generated the legal theories that supported 1/6/21, legal theories so frivolous and dangerous that they resulted in bar discipline.
So yes, an absolute crazy person who should have never had either a law license or a professorship was trafficking in intellectually bankrupt legal theories for a long time. (Fun fact, I was tasked with writing the response to Eastman in the local bar journal when he was peddling his anti-birthright argument when Hamdi v. Rumsfeld was pending, so I remember this quite well.) The thing is, academics shouldn't legitimize the theories of crazy cranks.
In a (paywalled) Substack piece by Seymour Hersh (1), he outlines John Eastman's plans for ensuring that Republicans win the next presidential election. Hersh wrote:
"I was told that Eastman’s new scheme, recently the subject of informal discussions at the White House, calls for sympathetic election officials in states where the Democratic candidates win simply to delay or refuse to submit the electoral votes at the time mandated by the Constitution. Eastman’s notion is to find a way to void the electoral votes from states with a large Democratic plurality, so that the number of electoral votes needed to claim the presidency is low enough to turn a losing Republican candidate into a president."
As far as I can tell, Democratic leaders are either unaware of this or indifferent to it.
Well, since Eastman is actually a crazy moron we need not worry. The courts simply do not give a hoot what he thinks.
My concern is that if the Trump administration tries Eastman's approach and no one opposed to the administration has planned ahead, it may be too late. Publicizing Hersh's article might at least help to rouse early opposition in case Eastman convinces Trump to go with his plan.
Don't worry. You need to do about 15 different things to steal a presidential election and you need nobody to stop you at each one. Eastman is a very dim bulb and very crazy-- what actually happened in 2021, and will happen in 2029, is that someone will stop him because what he is saying is nuts.
I wish I could share your sentiments. I'm certainly not seeing enough "stop" with laws being broken by our current leadership. And, speaking of laws. I fear I'll be hitting my expiration date before I see the miniseries 'Epstein Files' conclusion.
I’ll throw in my Eastman fun fact. One time the House Judiciary Committee assigned Prof. Eastman to review a memo I wrote, and then demanded, with great fanfare, that I address his rebuttal. I complied, after which the matter was quietly dropped without a hint of acknowledgement. But Congress later passed legislation that accorded with the views I presented, so I’m counting it as a win.