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Federalist Radio Hour
‘The Myth Of Birthright Citizenship’
00:46:40
On this episode of The Federalist Radio Hour, American legal scholar Richard Epstein joins Federalist Elections Correspondent Matt Kittle to dissect the Citizenship Clause of the 14th Amendment and explain the constitutional case for judging...
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Professor Richard A. Epstein
All?
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Matt Kittle
We are back with another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections Correspondent at the Federalist and your experience Sherpa on today's quest for knowledge. As always, you can email the show at radio the federalist.com follow us on XDRLST. Make sure to subscribe wherever you download your podcast and of course to the premium version of our website as well. Our guest today is Professor Richard A. Epstein, Lawrence A. Tisch professor at NYU Parker Hall, Distinguished Service professor of Law Emeritus and a Senior Lecturer at the University of Chicago. He's also the author of the compelling new book the Myth of Birthright citizenship. What the 14th Amendment really says. We're going to find out what the 14th Amendment really says in context of, well, history and in context of the modern day battle over what birthright citizenship is. Professor Epstein, thank you so much for joining us.
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Professor Richard A. Epstein
Oh, it's a pleasure to come.
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Matt Kittle
Absolutely. I think I told you before we got started that it's such a compelling issue and a topic because it has so much history contained in it. And I think, you know, we could go back to 1868 when the 14th Amendment, you know, became part of the US Constitution. But I think we need to go back a little farther, maybe to Marbury v. Madison, when Chief Justice John Marshall said it is emphatically the Province and duty of the judicial department to say what the law is. It's the concept that we've talked about for a long time in this country. On judicial supremacy. Thomas Jefferson didn't care much for Marshall's idea, though he later asserted that Marshall's idea would have the effect of, quote, placing us under the despotism of an oligarchy. As we turn the page further into history in before the Civil War and the Dred Scott decision, abominable decision that was led by the Taney court, we have Abraham Lincoln then emerging as truly nationwide political candidate in no small part for his agreement with Jefferson on the concept of judicial supremacy. If we can. Let's start from that prism.
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Professor Richard A. Epstein
Okay. Well, the phrase that Justice Marshall used, the chief justice, was a masterpiece of ambiguity for a decision which, if you look closely at the text, was clearly wrong. What happened in that particular case was whether or not the Congress could force upon the court a set of duties which, given this construction of the statute that Marshall adopted, forced it to take things that did not fall within its jurisdiction. So the narrow version of this stuff says that the political branches can't force costs to do things that they don't want to do. This was a long part of the American tradition and so forth. So there were such cases as, for example, court has jurisdiction only over matters which is, say, more than 10 pounds. And some judge is told by the legislature he has to hear cases for £5. And the argument is, well, you can't really make people do the things that aren't done. And what Marshall said in this particular case was that what they wanted to do was to give him the power to execute certain kinds of activities, but the statute did not allow it, the statute of mandamus. Now, what was wrong about the Marshall addition is he was going for broke. And the history of American constitutional law and English constitutional law has no viable instances of judicial review apart from the one that I said. But what he did is he said that they were trying to give me an independent power of mandamus, and I don't have that. The statute did not try to do this. What it said it why gave him mandamus in aid of dealing with other issues that were, in fact, properly before the court. So he read it out of context and then left it completely ambiguous as to whether it was judicial parody or judicial supremacy. And as you know, it was as late as, I think, 1958, when Cooper and Aaron was decided that they unambiguously adopted the broader concept, but that was, in fact, the wrong Conception. Now, the question is, was Marshall right or was Marshall wrong? And I think on this issue, there's actually a split verdict of what's going on. If you look at the mechanism by which the original Constitution thought the discipline the legislature, it was the supremacy clause, not the first part, which says that the constitution and the laws made under it shall be the supreme law of the land. The part that really hit it was that the judges in every state shall basically treat that as the supreme court of the land and enforce it accordingly. And so under the very baroque system that the Constitution put into Place in 1789, the only way that you could check the supreme court, rather check the legislature, was to have state court judges declare things as going fine. Now, you ask yourself about that. Well, it's one thing to say that the supreme court is going to review a federal matter, as it was in Marbury Madison, the issuance of a commission to hold an office, but to say that 13 and now 50 state court judges get to determine the Constitution, and there's no federal power that can overrule any of them. It's a suicide pact. And so what we did is we had Justice Story, who is an ardent federalist. What he did is he cheated. And he said no. If you look at section 75 of the Judiciary act, there's a power in the Supreme Court to review these cases, but there was no such power there. He made it up. And so what's your reaction to it afterwards? It's amen. Thank God he did that, because if he didn't do it, the country would have surely fallen apart because you get a Southern court Supreme Court and a northern Supreme Court, and they have absolutely absolute interpretation, and there's no common way in which to do it.
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Matt Kittle
Well, the country did fall apart.
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Professor Richard A. Epstein
Yes, but it would have fallen apart a lot sooner.
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Matt Kittle
A lot sooner. Right.
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Professor Richard A. Epstein
If it turned out this was done. But on the federal side, the unitary nature of the executive branch being Congress only you don't have that problem of inconsistent judgment. So history would be is much kinder, I think, in terms of the intellectual structure to the cheat that was put into place by Story, as opposed to the one that was put into place under section 13 of the Judiciary Act. And that was done, of course, by Marshall. So there's a real lesson to learn here. And this is also true of the 14th amendment. Everything you read when you have a document, you have to go backwards and you have to go forward. And you're talking about two different things. If you were trying to assess what the mood Was at the time of the constitutional convention in 1787, the Anti Federalists were a very powerful force. And what they thought in effect is that giving too much power to the central government would be extraordinarily dangerous. That's why we have such notions as enumerated powers in the situation there. But the moment you started going forward from the day of the Constitution, now you're trying to make things operational. And all the limitations that they thought were necessary to protect the states now became an embarrassment. So what are you supposed to do if Congress does not decide to create lower federal courts? Remember, the article only says there's one Supreme Court and such lower courts as Congress shall ordain and establish. Now we establish none. What's going to happen when you have all the federal statutes which now have to be interpreted in state law? Are state procedures going to government, state judges going to government? Or can you basically what do you do? And then you have the District of Columbia. What are you supposed to do there when there's no state that's involved? And so the moment this thing hits the books, they realized this was a terrible mistake and they decide to create lower federal courts. But the amazing thing is the only lower federal courts they create are those to deal with diversity jurisdiction. They didn't create it to deal with the questions that arise under federal statute. That was only done in 1875. And you ask, well, why the later date? Because essentially the Constitution became normalized after the Civil War. When it turned out, guess who won? It was the North. And if you recall the name of the war during the war was very different. It was the war between the states. If you were a southerner and it was a Civil War if you were a northerner. And the Southerners essentially said this is a partnership. And the general rule of partnership carried over to the public area is a rule that says any partner is entitled to withdraw when they want to and nobody can force you to remain in. But a civil war is as a single unitary nation and you can't break it ascended by a unilateral action.
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Matt Kittle
Well, at that time too, the States, the United States of America was, you know, they were not the United States. It's not the United States is. It's the United States are is how it was was set up. And that gives us the who whole setting for the Dred Scott decision that gets US to the 14th Amendment to the Constitution.
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Professor Richard A. Epstein
Yes, it does. And what that was was kind of crazy. I mean, one of the things you do when you teach constitutional law, you say Here's a decision which clearly was the most disastrous decision in the history of the United States. Look at this document and tell me which clause is involved. And you ask that to somebody who's not a constitutional lawyer. They will never get within a mile of the correct answer on that. Because nobody would think that it's a territory clause which was half of it and the other half of it was a diversity jurisdiction. Are these people citizens of the United States? And it turned out when Taney got that. And remember, Taney is a great intellect. Forget that knot. He was a distinguished lawyer before he was put on the Supreme Court. He was Attorney General for Jackson. He was one of the great lawyers of patent law and everything else. The man was bloody smart. Unfortunately, had one weakness which more than offsets all the good points that he had. And so he read, the territories clause is only applying to pre existing territories and not to the 1850 Compromise. And he said, a citizen is determined solely by federal law. And by federal law we know that these poor African American persons are not sufficient and intelligent. So none of them become citizens, even if the states want to make them citizens of their own state. And that is actually a very important notion here which reflects everything associated with the birthright citizenship problem. Because in fact, if you look at the Constitution, he's right about at least one thing. The naturalization clause is essentially an exclusive federal jurisdiction, and it determines under federal law only who becomes a citizen of the United States. It has nothing to say whatsoever about who becomes a citizen of the state. State. So the two tier system that our good friend Tony put into place was actually an accurate reflection of the original design. And this is the point in my life where everything became unglued. I had read the Constitution, I saw the word naturalization. But it took me, as I was doing this, a fairly long period of time to say, oh, what the hell, I better look at the text of the statue and see what does it say. And you open it up and all of a sudden your life is transformed for the worse. It says, any free white person may apply to become a citizen of the United States if they meet the following conditions. No blacks allowed. And then you ask, well, where would you get such monstrous language to put into a constitution? And how would you deal with it? Well, do you know who was the author of that language? Ask you a question? Because it was Thomas Jefferson.
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Matt Kittle
Thomas Jefferson, Sure.
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Professor Richard A. Epstein
Now why Thomas Jefferson? Right. I mean, you're sitting there, the author
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Matt Kittle
of the Declaration of Independence. Exactly. Which Abraham Lincoln, you know, drew his idea in no small part when it came to judicial supremacy and the Dred Scott decision.
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Professor Richard A. Epstein
Yes. I mean, so you sit there and then you try to think about this and you realize that you really have to understand citizenship in a way that you did not do. And so what was my comparative advantage on this subject? Well, I had the fortune to go to Oxford in 1964. And unlike most Americans who took PPE and then came back to the United States for a solid legal education, I opted to take an English education in law. And the first course I ever took was a Roman law course dealing exclusively with con with contract. And since 1973, I've taught Roman law most years in the curriculum. And you go back and you realize that there's a period before everybody becomes a citizen around 220 A.D. and the book Gaius written in 161 starts to talk about provincial rights and people who are citizens and people who are not citizen. And you start to see that this is a huge gulf that's taking place because essentially what happens is a citizen is somebody who's a preferred creature and who gets exclusive protection in exchange for loyalty. And these foreigners are basically hung out to dry if the empire should try to do it. And so it's a completely different kind of framework. And what Jefferson said is the declaration about all men being created equal with unalienable rights is not territory specific. And then the question is, how do you integrate a clause like that with another provision which says that the federal government has exclusive power over naturalization and that means the power to exclude. And the traditional answer that you got from the Roman law going forward is that the exclusion power is a pragmatic necessity and that the citizens rights are only given to people who are citizens of the state in question. There was no internal inconsistency between what Jefferson said and what the natural source did and the natural rights theories behind it. Now, I spent my life as a natural law theorist, right? So this is a real body block to see this and then to figure out how they got there and then what it meant. Well, it meant a lot because the states could do whatever they want. And a lot of people who sort of argue that, well, there's a lot of recognition of citizens for people born in the country. They're all state decisions, none of them are federal decision. And in fact, none of them are actually concerned with giving citizenship to, to people who were born of aliens. So how do you understand what's going on there?
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Matt Kittle
Well, yeah, that's. And that's. And that is, you know, your book Dwells on that point. I mean, that's, that's the entire premise. You write the citizenship clause of the 14th Amendment. And again, you have to realize when this was written, the spirit, the intention of why it was written. And I'm not exactly sure why we have such a disconnect from that, but I think it's maybe in large part because we, we've lost the idea of teaching history and constitutional law and what the times said about it. But you write the citizenship clause of the 14th Amendment of the US Constitution seems quite simple, and yet it is embroiled in one of the most contentious constitutional battles of our time, birthright citizenship. You talk about the Constitution and what it is actually says about citizenship and what it doesn't. And therein lies the entire argument here. So ultimately, at the end of the day, what did the 14th Amendment mean to the people who were trying to pass it, trying to put it into the Constitution? And what does that inform about the the Trump administration's battle over birthright citizenship now in the US Supreme Court today?
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Professor Richard A. Epstein
Well, the first thing is I do not rely on anything that Trump did or said in order to resolve this problem. It predated him. He's a lightning rod for controversy that I don't need. But in fact, when you go back and you read it, his was essentially the kind of soul of middle discretion. What Trump wanted to say was related to a different question, which is, suppose it turns out that you discover that he's right and he is. What do you do with people who've already been made citizens under the previous regime? And in an exceptionally important but largely overlooked notion about his executive order, he says, I will not try to undo anything that was done under the previous arrangement. Anybody who was given citizenship under the birthright provision before this decision was made in my favor, they get to keep it. And this is an extremely important provision because unlike natural law theory in the abstract, if the law changes in midstream, there is a huge question of whether you undo previous arrangements. And if you look at the American history on this and the English history on this, courts of equity generally have the power to distinguish between those people who have extensive reliance interest on an older rule and those who do not. And to grandfather the earlier people in it may be that you have to do it as a constitutional matter, but the Trump administration never put you to that choice. It said, we're willing to do it loyally. Then you read the briefs that were filed the day after this decision came down. None of them bothered to notice the fact that that was there. So the original line of attack is everybody saying, well, what about respecting the relentless interest? And it turned out that was taken care of. And so then drops out of this particular case. But the really frightening thing associated about all of this is you have history after history that's done on this. And if they were written before this casted wrote, all the discussions of the equal protection clause, whether right or wrong, ignores the whole problem of birthright citizenship in its entirety. And so if you go back and you read Alex Bickle and his strong defense of Brown v. Board of Education, he never talks about it. Michael McConnell, my student and one of my learned colleagues, he writes an extremely thorough article. He doesn't mention it. My good friend Randy Barnett and Evan Burnett, they write something about the wonders of this text and the spirit of the 14th Amendment, and they never cited her either. And so the question is, how do you do this? Well, in 2005, I went to a class that was taught at Brooklyn Law School, and they were talking about it was prunes and so forth. And then I actually started to read the clause aloud, which is a very good way of slowing yourself down. And when it got to privileges and immunities, when it says, no state, federal, state government shall abridge the privileges, immunities of the citizens of the United States, and then you get to the due process clause and Equal protection Clause, and they apply to all persons. So the first thing you have to say, how is it that you're going to get anything to deal with voting rights in a clause that deals with people who are aliens for whom voting rights do not exist? So it clears. If you're going to have to get it, you're going to have to get it through the citizenship court. And in fact, all of the people who write about this in the conventional fast said, well, of course, citizenship is one of the things that we care about more than anything else. Jack Balkan wrote that in his book about living originalism and so forth. On, on and on it goes. And then what you do is you start reading the text, and this is the grim reality that you have to face. Citizenship has been around for a very long time. Universal suffrage in 1868 was by no means a universal situation. Right. It certainly was not true in England that there was universal situation well into the middle of the 19th century, and women were never allowed to vote and blacks were never allowed to vote in the United States. Trying to figure out what's going on here with all of this stuff. And the answer is, according to Senator Jacob, the way we got this clause through was to make sure that it said nothing about voting rights, but left the issue of voting rights entirely to the states. Now that's a whopper. And I mean, you look at it and then you go back and you read the privileges and immunities clause right from Article 4 in the original Constitution, and they start talking about voting rights. And then you realize what the Southerners had up their sleeve. It said, and voting rights according to the usage of the state of which you are resident.
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Matt Kittle
Right?
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Professor Richard A. Epstein
So there's no federal power over this. And what Senator Howard did to make this thing stick, and he said, you guys can now afford to vote for this stuff because most of you are opposed to giving voting rights to citizenship to blacks. And we managed to secure that the federal government has nothing to do with this. You say this is. I mean, it's kind of scary. But then, in fact, you go back to the time in question, and universal citizenship may have been regarded as a feature of modern democracy, but the peculiar notion of Republicanism that wafts in and out of the earlier debates has no such component. And so when it comes to the case of Minor versus Happerstadt, bought by Virginia Minor, a woman in Missouri, claiming that she has the right to vote under the privileges or immunity scores of the 14th Amendment, she loses nine, nothing. And why does she do that? Because the Chief Justice, Morrison Waite, knew his history. He may have been too gleeful about all of this. And when he says, you can go back as far as you want, and the only deal that's appropriate to citizenship in England or the United States or anywhere else is we protect you and you give us loyalty. And don't think that's a trivial protection, by the way, because if you happen to be a woman and you may not be able to vote, but if you are held by a foreign government illegally, we're under a duty to protect you, just as the way we're in the duty to protect the man. And so it is with respect to black citizens is also a government duty to defend them. So the franchise was not regarded part of the bundle of rights that was existing in privileges or immunity. So now you're going back to the birthright citizens debate, and you hear these arguments that Everybody under the 14th Amendment is made equal in all ways with respect to the law. And then you look at the voting situation and you realize that was not them. That's just us. And indeed, Minor and Happerstadt remained on the books. It was never overruled, even by the 15th Amendment, which was, by the way, already on the books when the case was decided in 1874. And then what happened was we needed the 19th amendment right to change the law. The reason we needed the 19th amendment is it was not in the 14th amendment at the time that it was there.
- [25:38]
Chris Markowski
Stop gaslighting the American people. The Watchdog on Wall street podcast with Chris Markowski. Every day, Chris helps unpack the connection between politics and the economy and how it affects your wallet. As consumer confidence hits record lows, some economists are blaming Americans confusion about the economy while gas prices rise. Just be honest with us, whether it's happening in D.C. or down on Wall street, it's affecting you financially.
- [26:02]
Professor Richard A. Epstein
Be informed.
- [26:03]
Chris Markowski
Check out the Watch Daughter on Wall street podcast with Chris Markowski on Apple, Spotify or wherever you get your podcast.
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Matt Kittle
But see, that's the misreading, I think, of courts throughout time. And I think it is the misreading of courts today. Our guest today is Richard A. Epstein Lawrence A. Tisch professor at nyu. He's also the author of the fascinating new book, the Myth of Birthright citizenship. What the 14th Amendment really says. So you get to this notion of the allegiance side of things, and I think it's interesting. I wanted to get your take on this, the argument that Justice Katanji Brown Jackson brought up in oral arguments on this birthright citizenship case before the Supreme Court today. And she talked about allegiance in terms of your legal obligations. And she brought up this particular example, strained at best. She said, if I'm in France and I steal someone's wallet, I have an allegiance to the country of France because I'm going through their legal system and allegiance clearly constitutionally, and what it means to be a citizen is so much more than that. And that is ultimately your argument here on, on, on the 14th Amendment, isn't it?
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Professor Richard A. Epstein
The woman is totally ignorant. I mean, it's really painfully so. Really what happens is there are two parts of jurisdiction in international law. And the 14th Amendment, by the way, was in no way meant to overrule any part of international law dealing with citizens or anything else. And the first part was allegiance that you have to your sovereign, where you have to basically go to bat for them and they have to protect you. The things that she is talking about were called local allegiance in Blackstone's Treatise. And that definition is carried over everywhere throughout the world and was adopted in the United States in 1812 in a case called the Princess McMahadan ship. And what Justice Marshall said, what everybody else said, you go into somebody else's country and you decide that you can be immune from all of their laws with respect to everything, then nobody's going to take you in. So there is a universal, basically implicit agreement that says if you enter into somebody else's country, you have to obey that traffic law and you have to obey that clinical law. But if you are a natural citizen of the United States and you go to France, you don't lose your citizenship, whether you go back to Germany or somewhere else. But if you leave a country in which they have only local jurisdiction, you are gone. And so what happens is they basically protect that. Now, that is a custom of international law. And the question is, why does it last? And why is this different from the sort of universal allegiance that is done with respect to sovereignty? And a little game theory takes you a long way. And so what happens is commerce is something that you're trying to facilitate between nations. And you ask yourself the following question. Can you facilitate commerce if it turns out every time you go into another country you can break its laws and every time you go into another country they can just arrest you? Truth? Well, it's not going to work. So you then ask yourself, is there any nation that would not agree to a convention that basically adopts the rules on local jurisdiction subject to carve outs by individual contractual cases? And the answer is, there's nobody. So this is very much like diplomatic immunity, which is not preserved by the 14th amendment. It was an ancient tradition going back to Greek and Roman law, and it existed independent of the 14th Amendment. And the State Department acknowledges that in its account. Well, the reason you give diplomatic immunity is if you could shoot the messenger from the other government who's coming to do business with you, you'll never get anything done. So essentially it's in everybody's interest to basically give that document. And so what happens is it becomes in the strongest sense a universal custom, and there are violations of it. Iran did it in 1979 when it arrested American diplomats at the embassies and so forth. But it's a universal proposition. Well, Blackstone said when you get to this other kind of stuff, it's all local stuff. So then you start looking at why would that be? Because every constitution in every country is somewhat different. Now, the English did adopt a system of birthright citizenship without exploring its implication. And I wrote a lengthy part of the book explaining how that was organized in England and why it didn't carry over to the United States because they did not have to worry about the problem associated with federalism or slavery, which are two Big issues that changed everything in the American setting, as I already mentioned. Why? Well, they do that. And then you get the following question. Blackstone says, you have loyalty to us now that you're a citizen. But suppose you don't want to be a citizen of England because your parents want you to only be a citizen of France from which you had come. The interesting thing about English law, hell with what do you think you're a citizen whether you like it or not. And so the English doctrine as it was created, forces people to become citizens of England, puts them in. Well, that's.
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Matt Kittle
That's King George of them, isn't it?
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Professor Richard A. Epstein
Well, it's King Blackstone. This was ancient stuff. And it's clear to me what happened is it never happened because otherwise you would have terrible problems. So you now have a Frenchman and they're not married to an Englishman. They go back to France. And do you think they register themselves as English citizens? Because remember now, a war exists between France and England, and if you owe loyalty to both countries, you're going to be in an impossible situation of committing treason against one or the other by simply deciding to give the gift. Now, this notion that fit a citizenship is always of benefit is just wrong. So you start looking at the modern cases on this, associated with the various issues related with the insular cases and so forth. And there was a recent letter of some tribal member, I don't remember which tribe and doesn't matter. And he says, how dare you make me an American citizen. I don't want to be an American citizen. And for you to impress this upon me makes it appear to me that this is all benefit to me and no burden, that's just plain wrong. So why is it wrong? Well, given the modern view of the Equal Protection Court, right, which covers things that it didn't cover, sex discrimination, God knows what else, right. He says, I don't believe in any of this. We have a tribal structure, and it's very specific about rank in place. It has sex differences and so forth. We don't want the United States equal Protection clause to tell us how to run our internal society. But what happens is there is such an arrogance on the part of so many people that they only see citizenship as an asset, but not as an obligation. But it's both. And if somebody doesn't want it, why force it on them? So when we took over Puerto Rico, it was very different. I mean, I did a long study before I wrote this book on the whole problem associated with the insular cases. For the readers, this is our listeners. The insular cases arose mainly in 1901, but continued through 1901, 1922. And what they held is, how do you integrate Cuba, which they let free the Puerto Rico, the Philippines and Guam, which we had taken from Spain in the Spanish American war. And in 1916, they solved the citizenship problem in a very different way from what people did in 1924 with the act which made all Indian citizens against their will or not. And they said individual people from Puerto Rico can elect to have American citizenship or decide not to take it. And that was essentially a choice that many people said, we don't want this stuff. And then the same issue starts coming up here about is it American imperialism to tell every other country how to have to run their business? So there is a. Basically a defamation case that arises inside of Puerto Rico. And the question is whether Puerto Rico has to follow the American rules, which would give you a jury trial, or did it follow the rules of the Spanish government in Puerto Rico, which gave you a jury trial only in large cases. And what happens is everybody on this issue, it's the same kind of mad authoritarianism that you see with respect to the situation on the birthright cases. There is just a huge movement out there which gets every bit of the raw long on this thing which says that you have to give them the full American rights because of equal protection. And then somebody points out, wait a second, Equal protection clause only applies to states. Right? It doesn't apply to states.
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Matt Kittle
Exactly.
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Professor Richard A. Epstein
And the territories are governed by a completely different regime. And that regime essentially should be rightly read to say that if they have local variations on this, they can use them with one exception. And the fundamental exception is, can you deny people the right to due process, that is the right to be heard. Can you deny them under these circumstances, the right to present evidence? And those things you cannot deny because they're universal truths. But on the question of how you organize a jury issue, that's not a universal natural law truth. There's nothing. Natural law is about a rule in the seventh Amendment which says that you get a jury trial in common law cases worth $20. It just doesn't make compute. And so what our good friend Taft said, and Taft knew this stuff inside and out because he had taken over the Philippines as commissioner back in 1900. Right. And what he said is, if they want to do it that way, we respect their local custom. So what happens is all the authoritarians treat him as just an unforgivable racist of one kind or another. And he was Wrong. Now, why does this matter? Well, you come up to 2022, you get the Biden administration, and they believe that the equal protection model as interpreted by the American courts has to carry over to all of this stuff. And the New York Bar association and the American Bar association unanimously a drop rules which said that the insular cases and Taft's opinion were all racist. And it's just an absolute scandal. I mean, everybody says something. Nobody even read this stuff in any kind of a serious way. And of course, people in American Samoa do not want to be American citizens.
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Matt Kittle
But do we get all of that? Do we get all of that because of the influence of the whole dei, diversity, equity, inclusion, you know, affecting the bar association? Certainly.
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Professor Richard A. Epstein
Oh, God.
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Matt Kittle
Different manners of law. Yes.
- [37:16]
Professor Richard A. Epstein
Look, I mean, it's frightening. There was nobody in either organization who voiced the dissenting opinion. And what happens is it's the same notion that the equal protection clause, which had a very important function, which is to make sure that the rules within the jurisdiction, that's the phrase they use, not subject to the jurisdiction, and for very good reason, uni Equal protection clause, do apply not only to American citizens, but to everybody. Right. And what that said is essentially you can't use heavier sentences against a black defendant than against a white defendant. What you have to do is basically use a set of laws that are race neutral in the criminal system. And nobody in his right mind would really want to disagree with that particular operation. But the question of whether or not you treat sex roles differently or not was never touched by the equal protection clause. In fact, if you go and read the further clauses in there, when they talk about voting, not only do they allow any state to exclude blacks from voting if they're prepared to take a reduction in their representation in Congress and so forth, but they don't even treat women as potential voters in these things because it talks about male and hat. And again, this is the kind of modernist. That clause just gets rid out of the thing. So by the time you get to read v. Read and 1971, and it's not a question of criminal law at all, it's a question of whether a father or a mother has priority in dealing with the inheritance of a minor child who's killed in an accident and they said you can't put the press, this has nothing to do with the equal protection clause as it was originally understood. In fact, when the equal protection clause was issued in connection with various kinds of restrictions on women and so forth, this is what happened. And it's an amazing story. I mean, so you start looking right at the Constitution. And if you recall, the whole apparatus of the 14th Amendment was designed to make good on the Civil Rights act of 1866. And that's a statute which is talking about not political rights. Civil rights then meant civil rights. Political rights were not covered by that amendment.
- [39:35]
Ryan Seacrest
It.
- [39:35]
Professor Richard A. Epstein
And it starts talking about how everybody has the right to make a will do this and the other thing, contracts of one sort or another. And it comes to the course in the Supreme Court and what it says is as follows. You know, the statute seems to treat men and women equally with respect to all of this stuff. But it turns out we can't possibly believe that they meant to get rid of every single sex difference with respect to occupational convention that had been followed from the beginning time, including Ms. Bradwell, that was the name of the plaintiff, the ability to practice law in the United States. And then they went on to the shtick about how men and women are completely different. And of course they've been true. Completely. Right. No woman has ever been successful since the bar was removed. You know, there's only men have been successful. That's all crazy as that matter. But the legal matter, it turned out what they said is they did not mean to do that. And so they basically cut back on the tax of the 1866 civil rights. That's how different a world we were in. And when did they get rid of that? Not until 1950.
- [40:40]
Matt Kittle
Yeah, but it's, it's, it's, it is. You have to understand and certainly you have to apply the intent, the context of the time. And I think that is so lost in this birthright citizenship argument. I just have a couple of minutes left and I, I want to ask you the future question. I want to ask you the question that no lawyer likes to answer about the Supreme Court. But I'm going to, I'm going to ask it anyway. Where do you think the Supreme Court will rule in the birthright citizenship case before it? And where do you think it should rule?
- [41:16]
Professor Richard A. Epstein
Well, I mean, that's not a short question, but I'll answer. There are basically two parts to the question. One of the parts is what do we do with people who are anchor babies who come over on votes and so forth. And in the oral argument, the chief justice got everything wrong about both the Constitution and the history of the Chinese Exclusion Act. It doesn't make any difference to us. But you start looking at the numbers, it turns out birthright babies of one sort or another, 10% of the population of the United States, over 300,000 such births, all having dual loyalties to somewhere else. And if they start thinking about the implications to security and everything else, the electoral college, they may decide to go back on that. They will not go back on the other issue, I think having to do with somebody who rolls into the United States, you know, desperate crimes, unsure. They will probably do that because they believe in Wong Kim Ark. I think they're completely wrong on everything. As I talk in the book, I explain how it was that Wong Kim Arc ignored the Naturalization Act. That should be no surprise. That was done deliberately by the government. They did not want to talk about the things that myself and Ben Flowers wrote in our brief on this, this stuff. And I don't think they're going to change. But the thing that was so. So it's annoying actually. You write a brief which explains all this stuff in some detail. It doesn't cover everything because it's not 200 page book, it's a 30 page brief or whatever. And they don't talk about the neutralization acts at all. They just don't discuss it. They only discuss one kimor which has a term domicile, which is not in the Naturalization Act. Yes, we're talking about. So it's completely intellectually irresponsible. But you know, let's just look at the list of people who disagree with Richard Epstein. It's the New York Times, it's the New Yorker, it's the Wall Street Journal, it's the Natural National Review and so forth. It's hard to find a major publication that essentially follows, let alone agrees with the arguments I made. And so the way in which I think you can beat me all the time is just.
- [43:27]
Matt Kittle
I think that's because they don't understand the law.
- [43:30]
Professor Richard A. Epstein
I think that's, that's the kind interpretation. I think the other interpretation is they don't want to, they don't want to understand this stuff.
- [43:38]
Matt Kittle
Yeah, I think you're right.
- [43:39]
Professor Richard A. Epstein
And if they don't want to under, they think I'm wrong, let them write a refutation. I mean, there's nothing which says that you're not prepared for engagement. But they don't do this. They just simply say, ah, the joys of citizenship are so important. How can we take it away from anybody who washes up on our shore? But then you look at the Immigration act and essentially it's Fortress America. That's the way the naturalization laws will work. And if you don't do it, why do you let it down? Only for people who are born in the United States, they have citizens who came with their parents into the United States and why don't you let them in as well? Because the statute was very clear. It does not distinguish where the kids are born. It says any mild child, minor child, has the citizenship of its parents. So if the parents get naturalized, the kids do and the parents don't. The kids don't. And you look at the cases that Justice Barrett and Justice Kadanji, Brown Jackson, and they're saying, I think it's just determined by looking at the kid alone. And that's just totally irresponsible because you have to check the darn statute. And so what? How are you going to win an argument when you spend 200 pages explaining in great detail everything you could think about on the statute and during the course of a two hour argument? The government doesn't want to raise the issue and the other side doesn't want to raise the issue. Why the government? Well, they don't want to be taught as racist. And it's not they who adopted the act in 1790. It was the United States of America and it was in this regard a racist country, but not very different from all sorts of other racist countries that existed around the world.
- [45:19]
Matt Kittle
That is so sad though, that we are making judicial decisions, we are interpreting law on the fear of not looking racist. And I think that is a big issue here. And I think it takes us back to judicial, you know, primacy, supremacy. And I will close with this, an interesting rumination on the subject all the way back 2003. For those of you scoring along at Home by Robert George in First Things he wrote, like Jefferson, Lincoln believed that courts, including the Supreme Court of the United States, could violate the Constitution and even undermine constitutional government. That judges, whenever they invalidate executive or legislative acts, purport to speak in the name of the Constitution and claim merely to be giving effect to its commands was, in Lincoln's view, no guarantee against judicial despotism. So are we at a point, are we at a point now of judicial despotism? Either by laziness or fear or all of those human emotions. And I think your book, you know, delves into the reason why that should not be the case. I very much appreciate your time, sir.
- [46:34]
Professor Richard A. Epstein
Yeah, well, look, there are always two kinds of errors. You get rid of judicial review in the state of great constitutional area, it's a disaster. We talked about the beginning. The reason why constitutional law is hard is it speaks in absolutist terms, but everything you have to judge turns out to be a difficult trade off and I try to get it right in the book and I think most other people didn't try and that's why they got it wrong.
- [46:59]
Matt Kittle
That's why I think this is a fascinating book that really delves into the topic in through a prism that I think it should be dealt with the law, which unfortunately we don't we don't see enough of. Thanks to my thanks to my guest today, Richard A. Epstein, Lawrence A. Tisch professor at NYU and author of the fascinating new book the Myth of Birthright citizenship, what the 14th Amendment really says. You've been listening to another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist. We'll be back soon with more. Until then, stay lovers of freedom and anxious for the fray.
- [47:47]
Professor Richard A. Epstein
I heard the faint voice of reason and then it faded away.
- [47:58]
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