A (4:58)

When I greeted the day facing yet another Twitter vomit storm and a call to fire me from our first lady, Melania Trump, saying I should be fired because of a joke I made again five nights ago. It was a pretend roast. I said, our first lady Melania is here. Look at her, so beautiful. Mrs. Trump, you have a glow like an expectant widow. Which obviously was a joke about their age difference and the look of joy. We see her face every time they're together. It was a very light roast joke about the fact that he's almost 80 and she's younger than I am. It was not by any stretch of the definition a call to assassination. And they know that I've been very vocal for many years speaking out against gun violence.

B (5:47)

Is anyone buying this? Really? Is anyone actually buying this Jimmy Kimmel? Look, I used to play poker. I can read people's places, people's faces. Excuse me. Decently. Well, is anyone buying Jimmy Kimmel's face there? The face gives away that he barely believes the words that are coming out of his own mouth. If you believe Jimmy Kimmel that he was not wink, wink, nudge, nudging at the blue sky Adel brains, far left assassination porn morons, that he was not winking and nudging at them to try to finish the job. To paraphrase Hasan Piker, that is absolutely what Jimmy Kimmel is doing. And he reflects extremely poorly on ABC and the Walt Disney Company that the House of Mouse is just leaving Jimmy Kimmel in place. Hakeem Jeffries also was doubling down just on Monday. Hakeem Jeffries, the minority leader among the House Democrats, the leader of the House Democratic Caucus, Hakeem Jeffries, just last week had called vocally for, quote, unquote, maximum warfare against Donald Trump. You know what maximum warfare actually looks like, Mr. Jeffries? It looks like Cole Allen barging into the Washington Hilton with a 12 gauge shotgun and a.38 caliber handgun and a bunch of knives trying to kill the President. But no, Hakeem Jeffries says, my rhetoric was totally just fine. Here's Hakeem Jeffries. Political violence in any form directed at anyone, whether that's the right, the left or the center, is unacceptable, Harriet, full stop. The notion that any of us are concerned with so called criticism from these

A (7:23)

phony Republicans

B (7:26)

as it relates to anything that has been said, certainly as it relates to the comment related to maximum warfare everywhere all the time in connection with the redistricting battle that Republicans launched. I stand by it. You can continue to criticize me for it. These people are so full of garbage that it is starting to overflow out of their bodies and is going into the east river and other waterways. You can basically just see the garbage just seeping out of Hakeem Jeffrey's nose and boy is defeated. Boy is it rancid. They are lying through their teeth. And is incumbent upon you, the voter, you the concerned citizen, to not buy it. To not buy it. And to make sure that Hakeem Jeffries not become God forbid speaker Jeffries come January 2027. Much more to get to on the topic and others, but for now, folks, want to tell you a quick word about our sponsor of today's show, which is Angel Studios. You know, I recently joined the Angel Guild and I watch their brand new documentary the Death of Recess. And I'll be honest, I was not expecting this. But you really should go ahead and check out this extremely powerful new documentary, Death of Recess. It's fundamentally is a tale about control, about how the teachers unions, organizations like the NEA have just taken the entire classroom experience and they have reworked it and they have taken it in a manner that redounds solely to the interest, the very parochial, specialized interests of the teachers union themselves. Children unfortunately are the victims of this and even things like recess is frankly now up for grabs. Trust me, I come from a line of teachers. My mother, my grandmother, my great grandmother were all teachers. I heard horror stories about this from my mother growing up. Teachers unions unfortunately have co opted the American childhood classroom experience is all reflected in this powerful new documentary, Death of Recess. And frankly, exactly why platforms like Angel Studios are so deeply important. Because it's not the kind of thing folks that you will see out from the traditional Hollywood studios out in Los Angeles. So go to angel.com hammer to join the Angel Guild and watch Death of Recess right now if you care about kids. Trust me, this is essential viewing. Angel.com/angel Studios is today's sponsor for our show. So it's actually even worse than that. Bethany Mandel, my friend Bethany Mandel actually just yesterday evening flagged on social media a brand new fundraising email from California from the California gubernatorial race. So the California gubernatorial race is a total mess, an absolute mess for the Democrats. Which by the way is one of my reasons for why all these rumors have now finally been Corroborated and verified against Eric Swallow and why Eric Swallow is no longer in Congress, no longer running for governor of California. California has this whole thing called the so called jungle primary, which basically means that there are no partisan political party primaries. Rather, rather it's simply just the top two vote getters overall from the primary, which will in California will be in about a month and a half in early to mid June. The top two people then get to the general election ballot in November. The problem for the Democrats is that their field was so dispersed, they had so many people running, which is why swole had to be taken out. So there's a possibility, the extremely, extremely enticing possibility that you could have an all Republican matchup for California voters in November. It could possibly be that way. We'll see if it happens. Anyway, one of the Democrats left is the execrable, the truly execrable Katie Porter, who was just absolutely, absolutely awful. So Bethy Mandel put out this, this tweet on Monday evening. A screenshot of a fundraising email. Katie Porter, 7:07pm Eastern Time fundraising email, titled this email F. Trump. Except he doesn't have F. She just actually says the word which we're not gonna say here on our family show. The email reads in part, I'm Katie Porter. Some of you know me as the whiteboard lady who held CEOs and billionaires accountable in Congress. So today I want to start with one simple, powerful message we all agree on. Say it with me. Ready? One, two, three. F. Trump. Again. She just says it, which spells it out the real way. Yeah, that's right. F Trump. Together we're going to kick Trump's butt. But she doesn't say but she's a worse word in November and stop him in his tracks. What? They just tried to kill the man. Literally less than 48 hours prior to this email, can you imagine if Barack Obama had faced an assassination attempt by a far right guy, a neo Nazi, white supremacist, whatever it is. The third time this happened in less than two years. And then less than 48 hours later, a major Republican is fundraising off of F. Obama. Could you imagine the left is playing a really, really, really dangerous game. The worst part is they know what game they're playing. They know exactly what game they're playing. They don't care. In fact, in fact, I suspect this actually is not a bug, is very much a feature. I'll explain what I mean with that. On the other side of a short commercial break, folks. There. This will be right back. Much more on the other side, if

A (12:24)

you work in university maintenance, Grainger considers you an MVP because your playbook ensures your arena is always ready for tip off. And Grainger is your trusted partner, offering the products you need all in one place, from H VAC and plumbing supplies to lighting and more. And all delivered with plenty of time left on the clock. So your team always gets the win. Call 1-800-GRAINGER visit grainger.com or just stop by Granger for the ones who get it done.

B (12:58)

So why is this leftist assassination culture porn, this fetish? Why is this a feature and not a bug? Well, I will tell you why. How many times have you heard from the far left in recent years that they seek nothing less than the eradication of the United States of America? Sometimes they openly call for it. These campus jihadi organizations like sjp, Students for Justice in Palestine, a lot of the far left in general. If you actually look at these, for instance, these post 10-7-pro Hamas encampments at America's elite schools, you will see a lot of signs that are not just anti Semitic or anti Israel, but are oftentimes just deeply, deeply anti American, calling for the abolition of America, the tearing down of America. They believe America is a bastion for colonialism, imperialism and systemic racism. And all these stupid euphemistic buzzwords that you've heard from these faux intellectual morons for years now. They oftentimes just outright call for the overthrowing the downfall of Western civilization itself. So hear me out. If that's actually your goal, and look, I take people at their word, you tell me something, I believe you. I think words have meaning. Call me crazy, I think words have meaning. So if you tell me that you actually want Western civilization to be overthrown, if you tell me, do you think that America should be eradicated, I'm going to take you at your freaking word. Therefore, what better way to do it than to take us back to yesterday's show? What better way to actually end America than to replace words, keyboards and the ballot box and all the various other meeting institutions of civil society and democracy? What better way to do it than to kick all that to the curb and to summon the spirit, the demonic spirit of Robespierre on the French Revolution reign of terror, and to instead go for guns and knives and bazookas and guillotines? This is the left at their core, at their most raw. So yes, I call again on the left to stop doubling down like this, to actually take control of their own discourse. But that would assume that their goal is not as diabolical as instead, I fear that it is speaking of regimes and organizations and institutions that are diabolical, we should probably talk a little bit at least about the situation over with Iran, one of the most diabolical regimes, regimes on the, on the planet. So we're still in something of this extended standoff where there is this kind of sort of ceasefire extension. It's not really a ceasefire extension because the United States is still engaging in a full blockade on, on Iranian ports. And Donald Trump has instructed the United States Navy to, to, to engage in shoot to kill when it comes to mine laying vessels all across the Strait of Hormuz. Actually, just this morning on Tuesday, Donald Trump putting on Truth Social, he wrote, quote, iran has just informed us that they are in a state of collapse. So the Iranian regime, if you believe Trump, and again, I believe my commander in chief, they're saying they are collapsing. I don't know what that means exactly, but they are having a massive internal fractiousness. They are certainly not speaking with one voice at this moment. That is why the more political actors, people like the former parliament speaker, Gallobaev and the former foreign minister Aragachi, have been sidelined in favor of the true radicals, people like Vahidi, the new head of the irgc, the Islamic Revolutionary Guard Corps. So Iran is essentially collapsing. Now they are saying that they will stop holding Strait of Hormuz hostage if Donald Trump stops blocking blockading Iranian navy ports. And we now know why Iran is so desperate to end that US Naval blockade, which has been a highly, highly efficacious, effective blockade. Because the Wall Street Journal is now reporting this morning that, quote, Iran is scrambling to find new ways to store its oil, hoping to avoid a crippling production shutdown as US Nail blockade bottles up its exports. So the Journal's reporting that this war is now something, a standoff to see what folds first. Will it be the oil industry in Iran or global consumers who just want cheaper oil prices? The problem is that when Iran cannot actually export the oil, all the millions of barrels that is pumping out on a given day, at some point you have to close those wells. There's a lot of oil. I mean, like, literally, what are you going to do with the oil? You have underground storage and whatnot for sure, but how many millions of oil can you just stack in a country, right? So at some point you have to close down the wells. And once an oil well is closed, it's actually very difficult then to go ahead and get that thing started up anytime soon. So the big question then is what comes if this standoff continues or if the United States and President Trump to continues properly just keep their foot on the gas pedal when it comes to the naval blockade or possibly even just restart actual conventional hostilities in a continuation of Operation Epic Fury. Well, Senator Marco Rubio was talking with Trey Yingst over on Fox News about what happens if there is no deal. Here is what, here's what Marco Rubio had to say. If there is no deal, what comes next? Well, again, that's the President's decision to make. I would start out by reminding everybody

A (17:49)

that the level of sanctions on Iran are extraordinary.

B (17:52)

The pressure on Iran is extraordinary, and I think more can be brought to bear. But I hope that in the aftermath of this conflict, the whole world's eyes have been opened to the threat Iran poses. So it is President Trump's decision to make, and I believe that he will resume hostilities at some point. I'm actually somewhat surprised that we have not seen that already thus far at this point. But when Donald Trump finally makes a decision that he is just being pushed around by a country that does not speak with one voice because they are deeply fractured on the inside. And, and, and the United States, because we are the world's number one energy exporter, can withstand this 304 moves, energy bottleneck, this crisis. We can withstand this much, much, much more easily than Iran can. The Iranian economy is overwhelmingly predicated on energy exports. But we have a blockade and they're talking about how to shut down their wells. Now. It's a massive, massive problem economically for Iran, much, much less so frankly for the United States. So I do think that Trump will continue hostilities sooner rather than later. We will see at some point. Very hard to say, of course, when that is. Meanwhile, the ceasefire between Israel and Lebanon is also not much of a ceasefire for the very simple reason that Hezbollah, which is the radical Shiite organization operating inside of Lebanon, is not abiding by the ceasefire. Surprise, Jihadists don't actually abide by ceasefires. I mean, who in the world could have possibly seen this coming? In fact, the actual Arabic word for a ceasefire, or at least what the media says is the Arabic word for ceasefire is actually a word called hunna is typically transliterated as H U D N A a hudna. But a hudna, if you actually go back and look at the Arabic language, if you actually go back and look at Sharia law, what Islam has to say about so called ceasefires and fighting, a hudna is actually not a true ceasefire. It is essentially a strategic measure to purport to pause in the name of just regrouping in the plan of continuing the eternal civilizational, millennia long, et cetera, jihad. So Hezbollah, Hamas, these organizations don't really know what an actual ceasefire looks like. So I bring this up because the situation between Israel and Hezbollah is considered to be very closely tied to the situation between the United States and Iran, given that Hezbollah to this day is Iran's most favored proxy in, in the region. In the region. And we'll see, of course, what happens when it comes to Israel and Hezbollah. One thing that I think you could probably safely say about Prime Minister Netanyahu is that if he thinks that the job with Hezbollah is not done, then he's not going to take his foot off the gas pedal. And as I was saying earlier, I feel very strongly that the same applies for Donald Trump with Iran, the patrons of Hezbollah as well. So we'll talk about this a little bit more tomorrow on the show. But King Charles III and Queen Camilla were in are in Washington, D.C. today. And it's quite a day of festivities. There was a beautiful ceremony at the White House. All the pomp and circumstance and His Majesty. Her Majesty. I thought Donald Trump actually spoke really, really quite movingly, frankly, at the White House this morning. King Charles also speaking to the Congress today as well. But when Trump was speaking at the White House earlier today, it was a very different tone. It's very different tone from Donald Trump speaking about US UK Relations than what we heard earlier on in just this year and frankly, over this second term in office in general, where Trump has struck a much more cautious and at times harsh tone on Keir Starmer, the adult brains, Labour Party liberal, very liberal prime minister of the United Kingdom. Now, Keir Starmer is an absolute joke and he deserves, frankly, all the scorn and derision that Donald Trump gives him and then some. But this is something of a rapprochement. It was something of a massive olive branch. An olive branch extended from the junior country, if you will, the United States, toward the former, the ancient mother country of the United Kingdom. And Trump is speaking quite movingly about how we come from a similar tradition, similar ancestry, we have similar customs, as we will discuss with Richard Epstein shortly, similar laws, similar legal traditions. Look, maybe I'm a SAP for this, but I personally am an Anglophile. I really just love all that England has given the world. And Britain, if you want to extend to Scotland and Wales that are there, they've given the world so much. And at the risk of stating the obvious. Donald Trump is right that the United States does not exist if the United Kingdom does not exist because we are directly downstream of that inheritance. Yes, we improved upon their constitutional structure. Ours is superior. Yes, we improved in many other ways as well when it comes to technological improvements, innovative culture, lifestyle, et cetera, et cetera. No doubt about that. We couldn't have done it without that baseline. So I, maybe the Anglophilic SAP within me was very happy to see this raw prochement between President Trump and King Charles. King Charles, very liberal man in his own right there. Not my cup of tea, pun intended. But nonetheless, this is a good thing I would submit to you when it comes to the broad defense of Western civilization. And on that note, folks, we're taking to a quick commercial break. On the other side, Professor Richard Epstein joins us to discuss his brand new book on birthright citizenship. It's a hot topic. Stay with us. We'll be right back with Professor Epstein.

A (22:53)

If you work in university maintenance, Grainger considers you an MVP because your playbook ensures your arena is always ready for tip off. And Grainger is your trusted partner, offering the products you need, all in one place, from H Vac and plumbing supplies to lighting and more. And all delivered with plenty of time left on the clock. So your team always gets the win. Call 1-800-granger. Visit grainger.com or just stop by Granger for the ones who get it done.

B (23:27)

Welcome back. So today is a real treat for me on a personal level. I think this might be the first time in the history of the Josh Hammer show that I am welcoming him on a former teacher, former professor of mine. And that professor is Richard Epstein. Richard Epstein is the Lawrence A. Tisch professor of Law at nyu, a senior Fellow at the Sibytas Institute at the University of Texas, Austin, and perhaps most importantly, at least for my purposes, he's also a senior lecturer and professor emeritus at the University of Chicago Law School, which is where I had him for not one, but two courses many moons ago. Professor Epstein, thank you so much for joining the show. It truly is an honor for purposes of our conversation today. Perhaps most importantly, I probably should mention Professor Epstein is also the author of the brand new book, a very timely book, I might add, the Myth of Birthright, what the 14th Amendment really says. And that is going to be the launching off point for our conversation today. So, professor, thank you again for joining and congratulations on this brand new, highly timely, topical book. So let's just dive right in here. We've talked about this issue before on the show there is the Trump vs Barbara case currently pending before the Supreme Court. This is the case that was argued a few weeks ago, I thought quite ably from the Solicitor General of the United States, John Sauer, in defense of the President's January 20, 2025 executive order trying to limit the scope of constitutionally automatic birthright citizenship. You've done a very deep dive here, and you've arrived at a conclusion that I personally share, but I think is at loggerheads with much of, let's call it the legal establishment, frankly, even parts of the right of center legal establishment. So I guess the first question, professor, is why do you think so much of the legal scholarship and legal establishment has gotten this question so wrong in the past?

C (25:06)

Well, that also includes Mr. Sauer. What happens is there are two ways in which to sort this. One of them is to go back to the history of the Naturalization Acts, which were actually in place even before the Constitution was ratified at the state level, and then follow that history forward. And the other is to come in at the end of the show in a case called Wong King, which was decided in 1898 by a Justice named Horace Gray, who was a distinguished man. And they are completely different enterprises. So why is it that everybody wants to stay away from the original history? Well, it turns out the inspiration for the section I'm about to quote is none other than Thomas Jefferson. And in 1779, he passed the or institute the naturalization act for the State of Virginia. And its initial words get carried over into the First Congress 1790 act, and which says any free white person may apply to become a citizen of the United States. So we had basically two parts of this situation. We had a rule which limited naturalization to only white people, and we had a rule which was effective in 1808, eliminated slaves. And so what you have to do to understand the nationalization acts historically is to understand the effort that they made to keep this pretty much a white nation. People don't like that, and I understand why. Now, when was the prohibition against the blacks being nationalized or persons of African descent? That was only in 1870, which was two years after the 14th Amendment was put into law. And so what the automatic citizenship people are saying is by misreading the statute, that people who come to these shores illegally become citizens without going through anything else. But if you come through when your parents are Naturalized under the 1790 act and all acts thereafter, the minor children were naturalized itself. So the argument is a child who comes here legally cannot be a natural born Citizen. But somehow or other, a child that's born illegally could become a natural law citizen. And so the question you want to ask is, where do they get that from? The argument that they made is, I think, completely wrong. There are two phrases used in different ways in different places of the 14th amendment with very different meanings. So one of the place is subject to the jurisdiction thereof and the other is within the United States. And if you go back to the English law and then the early American law, these two phrases have exactly opposite meanings. If you are within the jurisdiction, you're certainly welcome there. But you have to agree to abide by all the laws, the criminal laws and the civil laws that drives the way in which you drive a car or pay a tax and things of that sort. But once you leave, you're just gone and you have no further connection with the state. And that's what happens with, for example, birthright people. And these people are never eligible for citizenship. Citizenship under the English law. And the definition was carried over, but the requirements were not. The definition was that what you as a citizen did is that you swore loyalty to the Crown and the Crown in turn agreed to protect you. And notice, voting is no part whatsoever the definition of citizenship. And that was true in England when the suffrage was very limited. And it was equally true in the United States, for example, when women did not vote, they were still citizens of the United States.

B (28:27)

Professor, pardon me just for one second here, but I want to make sure the audience is on the same page as us. So the relevant language Here in Section 1 of the 14th Amendment is subject to the jurisdiction thereof. This is really the crux of the 14th Amendment debate here. What most people do on the other side of this argument, professor, as you know, is they take the word jurisdiction in isolation, which in the process of combating and say, oh, jurisdiction just means that you pay taxes, you can be arrested, et cetera there. But you're doing something truly fascinating here. You're focusing not on the word jurisdiction, but if I understand correctly, on the modifier subject to which does connote this kind of Anglo inspired notion of full loyalty. So with that said, please go ahead.

C (29:06)

Yes, well, being a subject to citizens did not exist in England. They were subjects of the Crown. Americans became citizens. And then the question is, what part of the English tradition made it over from there to here? And there were two parts of it. One did come and the other did not. Stuff about local allegiance, that is following the traffic laws and so forth. That made it over, and it made it over into the last clause of the 14th Amendment, it says, you know, you have equal protection under the laws. Right? And what that was designed to say, we're trying to figure out which laws we're comparing it to. And it can only be laws in the jurisdiction of which you're a part. And then the other part of the clause was essentially the due process clause, and they did not have that modifier put there because the due process requirements carried over pretty much everywhere. And there were also Roman rules requirements, audi altum partum and nemo iudex and casus sua. It turns out you have to hear the other side and you can't be a judge in your own court. Right. And so that's why you have the last two clauses on equal protection and due process apply to all persons, not just citizens. Right? Because everybody's entitled to a fair trial. And to be a citizen under the privileges and immunities clause, you have to get something extra. And the standard rules then and now still apply. If you want to get a job in the United States and you're a foreigner, you have to get some kind of work approval from the government. If you want to buy and own real estate, you have to get some approval from the government. What you can do is you can basically rent a place in the country in order to live here, and you can basically live, buy food and whatever it is. But if you want a job, you have to go through that kind of system to make it work. And the privileges and immunities clause thus give privileges and advantages to the citizen. They don't have to do either of those things. They're entitled generally to get a job, and they're generally entitled to own property. And then on the criminal side, everybody's in the same position. So it's a perfectly coherent statute if you read the whole thing together. And it's not a coherent statute. If you just say if you're within the jurisdiction, you're subject to the jurisdiction, which as many judges have said in the modern cases. So it's completely wrong. It's not close. If you go back and you check the cases and then if you look at the assembly authorities, they're all linking to the naturalization statutes, right? Because it says any person burned or naturalized in the United States and subject to the jurisdiction thereof is a citizen of the United States in the state of which they're in. And so what you have to do is you have to go through the naturalization acts if you're not born here. Well, those are not trivial. Requirements have to be here for two years, you have to renounce all loyalty to any additional sovereign. Until 1870, you had to be a white person and so forth and so forth. You had to be a person of good character which could be tested and a variety of ways. So automatic citizenship is just an evasion of the requirements that they put there. And so the question is, why is it people who enter the United States illegally have a better position than people who enter the United States legally and go through the naturalization process? And there's no real answer to that question. If you then look at the way in which these statutes were interpreted, my friend Sam Srecker and his student Mr. Rudy, they looked at all the administrative practices and they found that, that the understanding that I've just given you was the one that was applied in an administrative situation. So if you're trying to get yourself understanding what's going on afterwards, as a practical interpretation, there is no administrative interpretation that squares with the other definition.

B (32:42)

I think it's also crucial to point out, as you alluded to, that in the naturalization statutes from the late 18th century into the late 19th century consistently had a requirement to forswear any other other form of foreign allegiance, which again, is getting at this, this broader, fuller notion of subject to the jurisdiction. Again, folks, Professor Richard Epstein is the author of the brand new book, the Myth of Birthright citizenship, what the 14th Amendment really says. We're having this conversation, as you are aware, in the context of the pending decision by the Supreme Court in the Trump versus Barbara case. Professor Epstein is going to join us for much more on this and other topics after a very short commercial break. Don't go anywhere. Trust me, you're going to want to hear the end of this conversation with Professor Richard Epstein. Stay with us. We'll be right right back. Welcome back. And we continue our conversation with Professor Richard Epstein, who is the author of, well, many things, but among them the brand new book the Myth of Birthright, what the 14th Amendment really says. And Professor, I want to ask you a similar question here, which you've made thus far already a very compelling case for why the 14th Amendment means essentially what the Trump administration's executive order says that it means. There have been seemingly a flurry of pretty well known legal scholars, yourself very much included, Professor Randy Barnett of Georgetown among them. He had an op ed in the Wall Street Journal the day of the oral argument in this case a few weeks ago, a lot of, let's call them, esteemed luminaries in the legal profession, at least in the originalist sphere have come to this position. So what do you think accounts for the resurgence in interest in not just this question, but I would argue, in getting this question right. And the logical corollary to that question, if I can kind of jump the gun a little bit, is do you think that there is a real chance that this argument actually is vindicated at the Supreme Court in the Barber case?

C (34:31)

Well, we don't know. Look, what happened is you asked why I disagreed so strongly with Mr. Sauer in the way which he argued the case. He tried to win this case on the cheat. That is to say, if you look at the facts of the case, it turns out that Wong Kim OK was a child of a Chinese parent. So he had no natural allegiances and he was carrying a Chinese passport. Right. So he's subject to the absolute prohibition at the time on Chinese becoming citizens. And in my book, I go through the history of all the naturalization acts explaining why that was right. And ironically, it was Horace Gray, the. The guy who wrote Wong Kimwell who's the most vehement about how it is we could keep people out.

B (35:11)

And he wanted Elvis Wilkins.

C (35:12)

Yes. I mean, yes, Elk versus Wilkins is a case involving Indians in which they use the full definition of subject to the jurisdiction thereof. And it was also repeated in the slaughterhouse cases as dicta. But pretty powerful dictum. But anyhow, what he said is, look, what they said is that this guy is a permanent resident. We could let him in and all these other people, just temporary people, so they're not covered by Wong Kim. Ah. And then it turns out he's legal and all these other people were illegal in some sense. And so either they were caught by one of the other horns, and so it turns out this is wrong. So he tried to work off the case. What happened is there is general language in the case which says if we really have the naturalization required, what are we going to do with all these Scotsmen and all these Englishmen and so forth? And so they seem to say that birthright citizen has been there from the beginning. It's a passage. But the chief. But Justice Gray was misconfused about it. The reason the situation is very different. It goes back to Roman law again is when you have people coming in who are eligible for citizenship and don't apply and they have their children here. There are all sorts of doctors like adverse prescription and prescription which allow them to become citizens because otherwise you have a real crisis on your hand. But with the Chinese case, there was no way they could get it by prescription, because they were expressly excluded by the statute. And so they're completely distinguishable cases on what is going on there. And he does not recognize that particular distinction. And also, it turns out that the Roman, the English law did not carry over on birthright citizenship. And there were two reasons for it. One is, we were a slave nation, and that's a big deal, and England was not. And so the question is, if you have slave nations and birthright citizenship, those two things just don't go together. And secondly, you have state laws, and these are utterly irrelevant to the federal law, which is exclusively a federal jurisdiction. And all the cases in which they talk about invading armies and so forth are state court decisions brought in federal court, where the issue is, can you vote in a state election or can you vote you inherit under some kind of estate contract, none of them having to do anything with the situation with respect to federal citizenship. So the moment the revolution starts, Blackstone is finished, because now his rule was that even if you had just birthright citizenship, you could not dissolve the relationship between you and the emperor voluntarily. You were bound unless the government released you. And now you have all these American rebels saying, we don't want to be English citizens anymore. And the American courts immediately disregarded all of the English rules related to how it is that you are naturalized. And so the thing to understand is in order for commerce to thrive, the rules with respect to people just happen to be visiting the jurisdiction are pretty much uniform everywhere you obey the law. When you leave, you're gone when you're not. But the rules for nationalizing you, which are very personal, are decided differently in every state, and they're decided in every state by statute. So Justice Kagan said these were all common law rules. Go back and you look at Blackstone, he says, no, it's statutes. Most of the statutes, by the way, were members bills giving citizenship to this, that, or the other person. I said, well, how could that be? Well, if you then look at the American situation, in 1887, just at this period of time, we all, for the first time, we had a generalized taking statute, the Tucker act, which allowed you under certain, certain circumstances to bring jurisdiction to have company. And two years before which the Chief justice missed, we completely changed the American Constitution by judicial fiat by saying that immigration became a federal issue. And the reason they did this was very serious. Wong Kim ok. And all sorts of other peoples were often allowed out of the country with an express federal promise that they could come back in. And then when they tried to come back in if the only thing you had power over naturalization, you couldn't do anything about it. So what they do is they asserted inherently the power over immigration. And then since we control immigration, are we bound by our promise? And they said sovereign immunity means no. And so they were allowed to keep people out. And it's against that background of a solid tradition in which no person of Chinese origin was ever allowed to become citizens that they give this dodge. And you could see what the right answer was. The correct answer is if you bind sovereigns to their promises, as I think you should, then he comes back with exactly the same status that he had when he left. He was a permanent legal alien when he left, and he should be a permanent legal alien when it comes back.

B (39:50)

There's an absolute, absolute mess to clean up here. Sorry to cut you off, Professor. I just want to make sure we don't run out of time here. So the fuller argument, and again, the justice could do a lot worse, frankly, than reconstruction. This book, as they are preparing their opinion, I frankly hope that they are. The book again, folks, is the Myth of Birthright citizenship, what the 14th Amendment really says, written by Professor Richard Epstein. Professor, just a few minutes left here before I have to let you go, unfortunately. But I do want to pick your brain just on one other issue before I do so, which is we've covered quite extensively over the past few weeks the increasingly swirling, volatile rumors in certain parts of the legal ecosystem about, about a possible forthcoming vacancy at the nation's highest court this summer. I'm not going to put you on the spot, professor, and ask you to suggest a name or two in case we do get a retirement from Justice Alito or Thomas or potentially Roberts, as a guest last week on our show, actually suggested. But rather than kind of name specific names, can you just talk a little bit more about some of the criteria that the administration, ultimately the president, should be most focused on if this vacancy does transpire?

C (40:50)

Well, I think what happens is the first time around they did a truly extraordinary job in picking judges. You might remember that people led by Will Bode, who's become more of a maverick on this issue, said, I can't vote for Trump because he's not enough of an originalist. And then you look at the appointments that he made on the first term, including Judge Ho, one of my students, of course, and use court for him. And this has been an absolutely stellar class. And so the first criterion I have, think that one might want to take is somebody who's come up either through Trump, one It used to be that Ed Meese was the kind of guy who was the linchpin and he's still very active. But you know, his guys, they're kind of old to become Supreme Court judges. Alito was a Supreme Court clerk of his right and I think somebody else was as well, the Chief justice, Roberts both worked in the administration. So I think one of the things is that the second thing I think that they're going to be very much worried about we don't want to take anybody we don't know, because what happens there's just too many surprises. And the single most important choice on that was back in 1991 or two and there was a question of do you appoint David Souter or Edith Jones? Now, I know Edith Jones and I don't know. I did not know do it as David Souter. He was a very learned, very scholarly. He retired, in effect to read the great history books and so forth. And he was a fair minded, middle of the road judge. Sometimes I liked him, sometimes I didn't. But he had exactly one day of experience, I think, on the 1st Circuit and the President was George Bush, who said, oh, well, this is a good guy. Edith Jones is a tiger and she is somebody who was at Cornell when the whole place went up in smoke. She's an extraordinarily able judge. She's very conservative on a large number of issues. The entire composition of the Supreme Court for 20 years would have changed if Edith had been appointed as many people had recommended. She's still a powerhouse, sitting on the fifth Circuit and so forth.

B (42:53)

Oh, to this day I think that George H.W. is picking suiter over Edith Jones is probably the single worst Supreme Court decision, utter botched job decision, whatever you want to call it, over the past half century, probably. I would love to continue this conversation, fortunately, where we're up against the hard Commercial break so the book again, folks, the Myth of Birthright citizenship, what the 14th Amendment really says. Professor Richard Epstein is the author. You can check out the book. I strongly encourage you to do so. Professor, what an honor. Thrill to host you here. We hope you'll stop by again sometime soon. Thank you so much.