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.
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