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Thursday, August 13, 2020

Birtherism 2.0 more insidious than Original Recipe

Counter-arguments from top-line conservative scholars will not be enough to slow this tide. Original Recipe was based on a provably false factual premise--Obama was not born in Hawaii--that allowed it to be dismissed as the ravings of people living in an alternative factual reality. But 2.0 is not about a fact--no one questions that Harris was born in California. Instead, 2.0 is based on a legal argument; however weak and contrary to every judicial and scholarly position the argument, editors (such as those of Newsweek) can rationalize it as a point of scholarly disagreement and a constitutional debate "unlikely to fall quiet any time soon." And the President, editors, and others will bolster the legal position--however descriptively incorrect--by argumentum ad verecundiam, pointing out that Eastman is "very highly qualified and talented" and that he clerked for Justice Thomas and used to be a dean.

Two thoughts on responding. First is to recognize that this is a legal rather than factual dispute. The response cannot be "Eastman is wrong and Harris is eligible because she was born in California;" no one disputes that.* Eastman's argument is that she is ineligible even thought she was born in California, because she was born to non-citizen parents. Second, the conversation must emphasize the difference between descriptive and normative arguments. Descriptively, the prevailing state of current law is birthright citizenship, which makes Harris eligible. Eastman (and soon Trump) is making a normative argument about what he believes the law should be. Any conversation must show why that vision is wrong.

[*] For the moment. Once the fever swamp gets hold of this, who knows where she will have been born or what explanation there will be for why California was not properly admitted to the Union.

Two questions. First, will we see a spate of lawsuits (as we did in 2008) challenging Harris' placement on the ballot, which will be dismissed for lack of standing. Second, if Biden/Harris wins, do they get an OLC opinion on the subject?

Posted by Howard Wasserman on August 13, 2020 at 09:08 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I left a comment in part responding to Salem's question about whether Volokh was conservative, pointing out that he has already stated he will not be voting for Biden-Harris. Was this comment deleted?

Posted by: pc | Aug 17, 2020 10:30:03 AM

sarcasm Or we could hope that our elected representatives would do their jobs and pass an appropriate Constitutional amendment, followed by ratification of three-quarters of the states, to remove the particular ambiguities... if, that is, they're not satisfied with existing Supreme Court answers and/or are afraid those answers will change. /sarcasm

I say this as a grandchild of immigrants... and the parent of a child born overseas on a leased military installation (not, as in Senator McCain's case, a then insular territory of the US).

Posted by: C.E. Petit | Aug 14, 2020 11:24:47 AM

In what sense is Eugene Volokh a conservative?

Posted by: Salem | Aug 14, 2020 5:22:35 AM

Isn't he making a descriptive argument about what the law is in some originalist sense that supersedes doctrine? Clever academic originalists, like, say, Baude and Sachs, seem to believe that the law can somehow be something other than what even the Supreme Court has held it is. For example, Baude and Sachs claim that Tidewater is really, really wrong as a matter of originalist interpretation of Article III, from which they draw the startling conclusion that though we act "as if" there is diversity jurisdiction in a suit between a citizen of D.C. and a state, "in truth there's no diversity jurisdiction in a case between a citizen of the District and a citizen of Virginia."** That's a descriptive claim about what the law supposedly is right now. Maybe it's wrong (like their self-defeating analogy to a bad call in baseball, where they claim that though we act "as if" a runner is out when he's called out, he can still be, in truth, safe--no, whether someone is safe or out in baseball is not a fact about a person's position in space, but is simply constituted by what the umpire says about the positions of objects in space as he observes them), but it is a descriptive claim.

** See page 19 of: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=13947&context=journal_articles

Posted by: Asher Steinberg | Aug 13, 2020 11:34:04 PM

In fact, OLC has already opined on this: https://www.justice.gov/file/20136/download

Posted by: Shalev Roisman | Aug 13, 2020 10:54:51 PM

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