Co-Authored by Eric Segall & Anthony Michel Kreis
The Affordable Care Act is a thousand-page federal law
regulating virtually all material aspects of the trillion-dollar health
insurance/health care industry. Congress has the authority to regulate "commerce among the states." There can be
no debate that the regulation of a one-trillion dollar industry that affects the
commerce of every state is a regulation of "commerce among states." Nevertheless,
shortly after the statute was passed, Federalist Society law professors along with
the conservative media questioned whether the federal government had the authority to require people to buy health insurance.
The gist of their argument was that if Congress can
require you to buy health insurance, it could also require you to buy
broccoli, and that amounts to a federal government that is out of control. The
problem with this argument, however, is that although the federal Constitution limits how
the government may regulate speech, religion, association, and numerous other
aspects of our lives, the Constitution says nothing about the use of federal mandates by Congress to implement its enumerated powers. A "No Mandate" Clause or Amendment simply does not exist. This silence,
combined with the historical fact that the second Congress used economic mandates,
shows that neither text nor history came close to supporting the broccoli argument. In fact, history/originalism strongly supported Congress's use of mandates.
The broccoli argument was so very frivolous, so absurd, that
Dahlia Lithwick bet one of us (Segall) that she would eat my book if the Court bought it (she
was excused from following through on this bet based on the technicality that the mandate was
upheld by the Court as a tax.).
Nonetheless, five Supreme Court justices eventually accepted the frivolous broccoli argument fully with no shame or embarrassment. That would never have happened without op-eds, blog posts, and law review articles written by law professors making patently unpersuasive legal arguments but easily digestible political sound bites. Once one political judge accepts this kind of unsupportable constitutional argument which succeeds politically but should fail legally, wholly unpersuasive arguments that were once "off the wall,” become very much "on the wall."
All of which brings us to Birthright Citizenship.
In late January, federal district court judge John Coughenour rapidly dispatched Donald Trump’s executive order purporting to strip citizenship from children whose parents were not lawfully present in the United States. Shortly after the judge called the Fourteenth Amendment’s textual guarantee of birthright citizenship an easy issue, a law professor responded on social media as follows, “I find it highly embarrassing for a judge to say something so unequivocally at a preliminary stage without the slightest acknowledgement that there is an entire literature that disagrees.”
The problem was that there was no “entire literature” to speak of. Scholars have spilled hundreds of pages on birthright citizenship. The overwhelming consensus view of these scholars is that the framers of the Fourteenth Amendment wanted to ensure that nativity– natural birth on American soil– was the hallmark of constitutionally guaranteed citizenship. The only exceptions to this were for agents of foreign governments, like diplomats or invading soldiers, and Native Americans subject to tribal jurisdiction. (Native Americans now have citizenship via statute.)
Despite the overwhelming body of work to the contrary and the plain language of the Constitution, three weeks later, the law professor mentioned above co-authored an op-ed in The New York Times claiming there was a meritorious historical claim that a parental allegiance component was an overriding part of the citizenship guarantee.
Two and a half weeks ago on this blog, Neil Buchannan
demonstrated how the text and history of the 14th Amendment obviously protect birthright citizenship. And one of us co-authored an
essay in the Cornell Law Review On-Line also demonstrating the easy and obvious case for birthright citizenship. But this post will not repeat those arguments, instead focusing on the behavior of legal scholars and the danger of them setting forth weak arguments in prominent places.
The short New York Times op-ed, riddled with inaccuracies about the history of the common law and barely touching the politics of Reconstruction, was followed by a long blog post and a promise of a long-form article. Was an off-the-wall argument now all-of-a-sudden on the wall? Was an open-and-shut historical question suddenly open?
Law professors watching this travesty had to decide whether to ignore the claims and risk they spread unchecked or confront the ahistorical work and risk creating the appearance of a serious debate. Any judge who wanted to dismantle the Fourteenth Amendment’s textual command that all persons born in the United States are citizens suddenly might have intellectual cover. Is this broccoli all over again?
Meanwhile, the entire academic process was turned inside out and backward. The best legal history scholarship should identify a historical question first and then proceed to answer that question by engaging with published literature, unearthing new evidence, presenting new analytical frameworks, justifying evidentiary weight, and workshopping claims. Instead, the issue was presented as seriously contested from the jump, and the public-facing work reasoned backward from that opening salvo. Instead of pursuing interesting historical questions to pursue truth, the authors treated one of the most fundamental rights the Constitution bestows like a fun little puzzle without regard for real-world consequences.
In a post-Internet world, prominent law professors writing half-baked op-eds in national media outlets is both dangerous and not scholarly. One politically motivated judge can ignore the persuasive arguments, adopt the weak ones, and now reasonable people can disagree over an issue and, presto, anything is possible.
If legal academics are pushing obviously weak arguments in the spirit of gaining further knowledge, they should openly admit that is what they are doing. The arguments from text, history, and precedent overwhelmingly show that a child born to anyone other than a diplomat, invading force, or (putting aside the statute) some Native American tribes is an American citizen. The argument for this legal result is much stronger than the arguments against it.
One does not need to be a hard core legal realist to agree that in nationally important political cases, law often takes a backseat to politics. The terms of engagement between academics and judges have changed. Legal scholars put forward obviously weak theories which could never convince on their own merits but a judge who wants to reach a political result can harness these unpersuasive arguments, cite the rogue academics, and pretend hopelessly weak arguments are actually persuasive.
There may have been a time when law professors could debate harmlessly in the New York Times or other media, but not anymore. We live in a country where political judges make political decisions daily. When text, history, tradition, and precedent all point strongly in one direction, all a motivated judge needs to rule the other way is one legal scholar suggesting an overwhelmingly minority view is actually the correct one. Given that reality, legal scholars need to pay more attention to the real world consequences of their own published academic musings.
Real people and real people’s lives are often at stake in constitutional cases. The arguments for birthplace citizenship are much, much stronger than those against it. Pretending that is not so is irresponsible and dangerous.