A Brief Ecosystem

0:00Welcome to another episode of Amarika's Constitution. I'm Andy Leopter. I'm here with Professor Achille Lamar. Hello, Achille. Good morning, Andy. And welcome to our listeners that are part of the Scottish Blog Network, including listeners from advisory opinions and from divided argument. That, of course, last week you heard us actually with them. Their voices as well, Sarah Isger, David French, Daniel Epps and William Bode. And we're so pleased to be working with them this week. We're on our own, but we're continually associated with the network in many ways. For example, today we're going to be talking about and referring to Scottish Blog posts. And of course, scottisplog.com is not just a place where you can find these other podcasts,

1:01but it's also a place where you can find written commentary. And Achille and his brother, Vic, write the Brothers in Law column. And we've been referring to those posts frequently because virtually all of those columns recently have been on the topic of birthright citizenship, the Trump versus Barbara case, which is oral arguments coming up in two weeks from when we're recording this April 1st. So there's that. And then the other podcasts have their locations there as well, especially advisory opinions. That's their primary home. They'll be talking about us. We'll be talking about them. They'll, you'll also be able to find links on scottisplog to the specific podcast episodes in the Marcus Constitution. So not just the articles and mentions, but actual links. So that can be a go to place for you if you want to see a recent episode. Of course, we're also continuing to be available at Achille and more dot com slash podcast, as well as Apple podcasts, Spotify, what's left of Google podcasts,

2:03the heart radio, Pandora, Stitcher, you name it. All these different platforms we're present on. So yes, the ever expanding reach of a Marcus Constitution. And today we're going to talk about the ever expanding discussion of birthright citizenship. And a few weeks ago, Achille, we asked our audience to with themselves in the shoes or the seat of a Supreme Court clerk faced with this case. And the case is coming up. And what do you do? You would read the brief and so hopefully people that listen to the podcast have read the brief. But I'm sure many of them haven't, plus we're talking about new listeners, especially after our introductions with the other podcast. So we'll discuss that today. And then eventually, of course, as a clerk, you would hear the arguments. You would hear the opening arguments, but we can't be giving the oral arguments through the Supreme Court ourselves or you can't.

3:04So you gave a would be opening argument and that's where you had that. But now we're going to go back and talk about the brief in more detail. And I think we'll branch out to the scrotus blog post as we get to something that is in the brief that a post elaborates on and meaningful way we'll probably talk about it then. So Achille, when you wrote the brief, we've written some briefs before. And especially the more versus Harper brief, which was the independent state legislature case, you took a little different approach to that brief. Then most people do. In fact, people have said they'd never seen a brief like that. And we won that case. Maybe it's good that you're doing it again. So tell me a little bit about how you approached it. And of course, Andy, by the brief, you mean our brief. There are dozens of briefs that have been filed in the birthright citizenship case, Trump, the Barbara. And since you mentioned a hypothetical clerk who might be prepping for the case, one of the big challenges for us, frankly, is to get the real clerk's attention because there are so many dozens of briefs competing for their eyeballs.

4:18And they have to read the briefs of the parties because formally, the Supreme Court is deciding a case between parties who have standing and have the requisite connection to the legal issues that are being presented. That's the legal formalism. But in fact, truthfully, this case is not two farmers haggling over a price of the cow that doesn't infect anyone else. This is a case about all Americans and who's a citizen and who's not by birth is about the Constitution. Generally, one litigant is the government, the executive branch, Donald Trump. It's Trump the Barbara. And he's represented by the solicitor general. The other is a private litigant and a private lawyer, non-profit lawyer, an ACLU lawyer, a former student of mine, Cecilia Wang will do the oral argument. And that's because she handled the case below in the lower courts that whether it's formally a class action or not.

5:23But in fact, she and her clients are standing in for a much broader array of Americans are being affected. So in this case, especially, I think there is a role, a very important role for amicus briefs to come in, but in the challenge is to get them read. First by the clerks and then when hopes maybe even by the justice, our podcast tries to build on the brief to encourage the audience more generally to read the brief and Andy in a previous podcast episode, we mentioned that I had the great good fortune to write an op ed in the New York Times, a guest essay on this. But before I did that, I sent them an early copy of the brief actually and said, what part of this brief are you particularly interested in? So the briefs help me land that op ed and and I hope the brief now is going to help me get the attention of our audience members generally who might write their own op ed talk about things, their friends and community and the Supreme Court is part of a larger democratic culture.

6:31But then finally, Andy enter our scotus blog. Okay, so we're now affiliated in the podcast network with them, but literally Andy, between the time you said, welcome to another episode of a Marcus Constitution, four minutes ago, and now scotus blog just uploaded today's column. Column it we're recording this audience on Monday morning, March 16, right after the eyes of March, March 15th, the eyes are mentioned by the way in born equal because John Wilts Booth says that he murdered Lincoln on the eyes of April, not true, but John Wilts Booth was very much influenced by the play, Julius Caesar, and he thought he was killing a tyrant the way Brutus and others had killed Caesar, he wasn't, of course, but I digress. Just a bit, but Andy, since you started talking, scotus blog posted this most recent column, I think it's maybe the sixth or seventh possibly in a series on the Trump versus Barbara case, this most recent one is actually a response to another piece on the other side of the case that scotus blog posted last week.

7:46You're going to get listening to this podcast and that you're going to get a scotus blog is seeing a bit of the back and forth, the conversation among some of the lawyers and a meeky in our brief Andy, I did have one section that responded directly to the solicitor general to Donald Trump's arguments, but of course, I couldn't have responded to all the other meekies briefs, post of which were filed after mine on my side on the side of birthright citizenship, there were some meekies briefs on the other side that had been filed and I was able to respond to one or two of them, but now that the briefs are generally in scotus blog is an opportunity to continue this conversation among American legal experts before the oral argument. And yes, ours has a distinctive format Andy and it's a format that we did feature in another brief in an earlier case and it's connected to what I've been talking about, it's styled as an FAQ frequently asked questions and here's the connection between what I just said and the FAQ format.

8:55We are living in an information revolution in which things are happening faster and with more participants. So I mentioned the New York Times, but that's so 20th century to try to make your argument in the paper of record or to get on one of the three networks that existed. The news networks when you and I were growing up was CBS, NBC, ABC, pretty much I think even in that order and it was CBS above all it was Walter Cronkite and most of us watched him every day and he told us at the end that's the way it is and we accepted that there were advantages to that scheme Americans were all getting in a common basis for conversation they all had seen the Walter Cronkite episode. So we were in conversation with each other, but it was narrow now lots of different voices much more quickly lots more amicus briefs hopping in lots more stuff on social media on X and other networks and lots more participants and Andy the need to respond more quickly to what other folks are saying.

10:08And in a format that's more congenial to people who want things very quick and and short so you might even might say brief. I think that you can make arguments on both sides, haha about this FAQ idea, but it does have usefulness and I think you could see it even today as we record this the New York Times as a piece this morning on the Iran war and in it they have basically an FAQ lots of I think 16 questions that people are asking or might ask about the war interestingly in their case they pull out different reporters to answer different questions. Based on the expertise required to answer that question and I think that's really good in the case of the times obviously you could do that too if you wanted to bring in your friends or have people co write a brief with you or something like that, but on the other hand.

11:10What's interesting I think this is perhaps a more circumscribed subject and you know one way or the other yes you're asking frequently asked questions but they're all of a piece there most of them are original questions of one former another I think it's reasonable that one person could have most of the expertise required and then if you need to go beyond that you have the service blog columns. That becomes serve as ways to expand beyond that. And Andy our brief looks different than all the other briefs especially all the other amicus briefs the parties have to cover all the issues in the case although even then because of space constraints some issues get short shrift Donald Trump's brief I think has three or four pages no more than four pages about a statue past in 1952 that I think is. That I think is absolutely despositive conclusive decisive trump loses the case whatever one thinks about the 14th amendment trump loses the case because of the 1952 statute which is utterly clear.

12:17But this list which I normally has four pages on that maybe three and he's spending most of this time on other issues but the party briefs in principle have to discuss all the issues at least a bit. That's not true of the amicus briefs and most of the amicus briefs are laser beams they're experts who focus on this issue or that one so they're outstanding amicus briefs for example just on the 1952 statute they're outstanding amicus briefs on a very important thing that happened in the middle of a world war. Americans American babies born to enemy alien parents Japanese parents not Japanese Americans Japanese citizen parents who were in detention centers gave birth to babies on American soil under an American flag and those babies were recognized by everyone in the government as American babies.

13:17There's a brief just on that by our friend Eric Mueller excellent brief briefs just on the legislative history of this aspect of the 14th amendment or that aspect of the 14th amendment so many of the briefs are laser beam briefs just and that's partly because the space constraints. We try to do it a little differently one stop shopping 7 11 convenience store you go in and you can get everything you need immediately. Of course that sounds a little contradictory on the one hand you said that the solicitor general gives you implied short shrift to the statute and he gives a couple pages to it but he can't do everything you have fewer words than the parties do in your brief the word limit is shorter. For you and yet you're covering everything either you have a very funny brief because brevity is the soul of wit or I don't quite understand how you can get everything into the brief now you do have the Scottish blog columns to expand on things and that's nice but when you read the brief.

14:26There's only really one time in the brief that I think you really refer to the Scottish blog columns which is when you say that you'll have the complete quotes about under the flag in in a Scottish blog column and that's not that's different that's giving details of long quotes that's not really making arguments that footnote the article may make arguments but that footnote doesn't really do that and so explain to me why you are not. Victim of trying to do too much in one brief as you imply the parties might be. There's this brief which is brief builds on a lifetime of scholarship and multiple books that I've written not any one of which is just on this topic that many of them are on this topic in substantial part and the most recent of which born equal is a lot about the birth equality idea at the heart of this sentence.

15:33There's a lot of the 14th amendment and Andy disconnects to our sponsor ever scholar which is trying to encourage people to read books which will have long lasting pay off okay you read a book today and there may be 20 different issues that arise over the next 20 years that will be illuminated for you because you've read this book. So when I published America's Constitution of biography which is around 600 pages it's a random house book it's very dense it walk you the reader through the written Constitution in textual order from start to finish. I published that book in 2005 and when people asked me when that book came out how long it took me to write that book I said 47 years old I've been thinking about issues for a long time before. I even sat down at a keyboard and started tapping so that book and subsequent books have lots of stuff on birthright citizenship.

16:41Andy at every dollar two weeks ago when we were in Philadelphia together with Gordon Wood and Kim Roosevelt both of whom have been on this podcast multiple times we spent a few hours at the National Constitution Center. And thanks to Jeff Rosen who until very recently was a long serving presence and CEO of the National Constitution Center they have an interactive Constitution website the entire Constitution the entire text start to finish so it's a web version of like my book about the whole Constitution. What they did is they broke it up into sentences into clauses and got individual scholars to write about individual clauses and they didn't just get one dollar per clause they got to someone who self identified as a liberal and self identified it's conservative and they are three different essays for each clause you know what the two scholars agreed with each other about and then the liberal scholars individual take in the conservative

17:41dollar individual takes up three takes on each and every clause of the Constitution and they did it in the New York Times way they actually had different people for each clause and even though I'm with co founder of the center I only got to pick one clause to write about now I got first tips because they asked me early on and of all the clauses of the Constitution and I could have picked an audience member who was interested in an awful lot I picked the citizenship clause that first sentence 14th amendment because it's so central to my existence literally because I'm born in Ann Arbor Michigan and my parents aren't citizens when I'm born they're here legally they're doctors serving American patients but that day the day of my birth the Constitution makes me in my view of birthright citizen and Donald Trump is challenging that not for me retroactively although who knows going forward but he's challenging that idea for the future little exiles who are born to non citizens parents but born on American soil under the America flag so this cause is I thought about this forever way before I got to law school I thought about this when my parents took me to Philadelphia I was 10 or 11 and I went to Independence Hall Andy and ever scholar folks went to Independence Hall

19:02we had an amazing private tour of Independence Hall but they took me to Independence Hall and I think that's why I decided wow I want to study the Constitution so I the reason this brief could be brief is that I've been thinking about this for my entire life especially about this and have been writing about it in great detail and just fair and dipitously it turns out that my most recent birth born equal is essentially about the core themes of this contested sentence contested now in litigation the first sentence of the 14th amendment which is about in my view equal birthright citizenship the born equal idea so the brief at several points doesn't just cite to other things you could read besides to other things that you could read that I wrote that have much more detail explanation of the synopsis that I gave in the brief and yes at one point I said oh and see some school just blog columns that we're about to post on this but other citations other footnotes in that are two previous books where I've discussed these issues in very great detail

20:19and a couple things you said along the way there that I'd like to focus on for one thing you mentioned you would tell your own story and you were saying that maybe the Trump executive order doesn't implicate you because it's prospective in its outlook I said but really seems to me this is something that hasn't maybe I haven't seen that much discussion of it but he's seeking to put an interpretation on the Constitution and if he can't just say the previous interpretation applies only to people up till now that's what the Constitution used to mean and now it means this it has to mean the same thing at each time how you act maybe how you enforce certain things might vary from time to time but the implication is that either he's making new law for himself or the Constitution he's asserting constitutional interpretation which would in effect be retroactively true back to 1868 so your comment on that.

21:26That is such a brilliant question and we haven't talked about this in detail in the briefs or in any of the school to blog posts so let's just think about this a bit. So if he's just making things up going forward it's then it's like legislation and he doesn't have that power. It's not even clear Congress does given that there's a Constitution but okay and if he can do this today can he change his mind tomorrow and change his mind the day after that and this is a present who's been known to change his mind audience. And then what about the president after him and the president after that and are we going to go back and forth and back and forth and given that citizenship is in most cases connected to voting rights it is actually possible believe it or not for states to allow non citizens to vote in state elections and therefore federal elections

22:30and we've had our friend Jamie Raskin on in previous episodes in Jamie when it was a law professor full time law professor actually wrote about this topic about aliens voting. But just in general today almost almost everywhere citizenship rights are connected to voting rights and now if going forward each president decides who's going to be a citizen and who's not in the shadow just on the eve of the upcoming election. Oh my gosh now if instead he's saying this is what the Constitution means and always meant and we just got it wrong before yes the logic of that position would be that a keel wasn't born a citizen because he's saying you're not really a citizen he's going forward unless the small exceptions one of your parents at least one of your parents was a citizen or green card holder for a minute resident alien that wasn't true for me. My parents were to repeat here legally but they weren't yet permanent residents or citizens they were doctors serving American patients at the American government's invitation and my mom did not come over here pregnant to pop me out just in case I just took because I want to make this really clear my parents met in the United States got married.

23:49I emerged a couple of years later but but if his logic is the Constitution has always meant you have to have a citizen or permanent resident alien parent in with a few exceptions then why shouldn't that apply retroactively the solicitor general's brief just has a sentence about reliance interests or something like that. And Andy the reason that such a brilliant question is it connects to conversations about originalism versus precedent and the reliance issues so in the extreme version while I'm not a citizen and then let's just play this out if I'm not a citizen then why is my wife a citizen because she became a naturalized American she was born in Indian citizen because she married me but her marriage to me put her on a certain track. She was born for naturalization but if I wasn't a citizen maybe she shouldn't have been on that track if neither of us are properly citizens then what about our kids who are American born and they thought they were born to two citizen parents but now we're starting to unravel all of this wow wow and then if we start going back and what about people of earlier generations who never even inquired about whether they're parents for citizens or not now they go and do some DNA search or talk.

25:1323 and me or some genealogical search how far back are we going to unravel this thing now but your question though cuts to the core to the heart of my own narrow theory of reliance let's just remind the audience of what it is I think we talked about this several years ago when we talked about rovers is weighed and abortion rights. So you so that's imagine now that we're living in a world where row is themingly settled law. And now the question is can it be overruled because a core thinks it's wrong as a matter of originalism justice. Kagan preemanately says no because of precedent and our audience members will know that I sometimes see a three times you know press and press and press and row row row and see that can't be right to freeze in place forever incorrect law of brown deviates from

26:20to see versus Ferguson the new deal revolution undoes all sorts of lock net error cases our audience has heard me talk about that before the flag burning case of go by this is overruled in Barnett okay so can't just be press and press and press and immunizes any error house whoever wrong then justice Kagan switches a bit from precedent to reliance and that is a difference let's just take for example flag burning we might think that individuals have reliance interest against government but not quite government having reliance interest against individuals just like there are more rights than the Constitution expressly itemizes that's what the ninth amendment says not every right has to be enumerated listed textualize but there can be more but not less so you might think in go by this the court says government can punish people who refuse to flip the flag and now in Barnett they think that's wrong and precedent doesn't stand in the way because president should block appeal to the constitution correctly understood nor are there really any individual reliance arguments here you might say the government isn't entitled to have reliance we relied on the fact that we could punish non flags the looters or something like that.

27:43Okay but row is different in row the person claiming the reliance interest is indeed a person and not government my thought is that here strong argument for reliance because I do believe there is a reliance concern that has to be taken into account because judges are acting on things that have already happened. I'm going to tell you a little bit about abortion and then I'll connect it back to citizenship but let me introduce a third hypothetical involving guns. So the legislature at time T1 passes a law let's say just prohibits guns altogether. Someone brings a lawsuit saying I'd like to own a gun I'm ready willing and able to purchase again so I the case is right I haven't bought the gun yet because if I do I'm in violation of the gun law and the court says yeah we're going to let you bring a lawsuit and that law is unconstitutional.

28:48Okay and now because the court has so rule now does that mean that the law is not on the books no the laws on the books it's not like the law was vetoed and never was on the books he told on constitutional grounds when then it would never be on the books. It's not as if that law was repealed maybe on constitutional grounds is there for no longer books formally the statute is on the books but the court has said it's in operative it's inert it's it just pay no attention to it. The court ruling is a time to see to see when is when they passed the law to you to is when let's just make it nice and clean the Supreme Court says completely unconstitutional. It's a no let's say no let's say that's what they say isn't that the word that they say stuff like that and we talk about striking down a law okay now I buy again in reliance on that court decision a time T3 now at time T4 in some unrelated litigation. involving someone else the court says or we were wrong there's no constitutional right to have a gun as it say maybe it involves even another state or something like that now at time T5 the legislature says uh-huh that law which has been on the books all along was all along a valid law that the court

30:06case that said it wasn't was no law was no ruling at all was incorrect and we're going to prosecute you for having had the gun until now and I said I would have never bought the gun but for that Supreme Supreme Court case if the Supreme Court had gotten it right the first time around and said there was no I had no entitlement to a gun I would never have bought it so I'm worst off then I would have been have the Supreme Court got it right the first time that's a very strong argument for reliance but I'm not sure then titles need to have a gun forever it might mean that after a suitable notice period that the legislature should can and the executive of my state could say look the Supreme Court has not corrected itself we don't need to repass that law it's always been on the books I governor I prosecutor in this state I'm announcing that hence for or with a 30 day grace period I'm going to start enforcing law law so if you have a gun you should junk it you can give it to the police department or throw it away or just smash it up or

31:08something but starting 30 days from now we are going to take the position fat law doesn't need to be re-adopted is on the books and is now judicially enforceable once again but for those who had the gun earlier when the court said that this law was to be was the nullity it would be unfair to prosecute you for having had the gun during that period okay now do they are you compensation for okay and see you're going to the fifth level and I'm not sure and now and Andy do you know with that you know what you just ask me about you just ask me about the tariff case part two on what about the back tariffs okay going forward you can't have this tariff but what about the tariffs you already paid in the taxes you already paid and the court says we're going to let lower courts handle that Supreme Court planted on that one okay so now I've explained that in my gun hype it said now over to Roe versus Wade if Roe was on the book and you are having sexual relations let's

32:12say using contraception quite responsibly you're a woman your doctor has told you that were you to become pregnant and try to carry your pregnancy to term it would be life threatening to you and the baby but the doctor has told you that as long as you use contraception the odds that the doctor prescribes the odds of getting pregnant are very low and in any event should contraception fail in the very low percentage of cases that it might don't worry over his Wade is the doctor tells you the law of the land and it's settled and abortion is a fallback option a plan be so to speak should your contraception plan fail so you're very responsible person and the court has announced this in Roe persuades you continue to have consensual sexual relations with contraception and it fails okay and you've acted in reliance on Roe versus Wade and had a Roe never been on the books at all you would have

33:20organized your life in a very different way but if that's the argument for Roe I think it's a nine month argument it's an argument that a case like dobs that wants to overrule Roe has to have a waiting period so to speak before can go into effect that's imagine I know it's now Andy I know you you're because I can see the wheels in your eyes and what if you say like this nine months you moved to a state because actually you thought that their abortion laws were inoperative and you took a job and you left another job and you organized your life exactly how far we trace all the actions and in actions in reliance upon a case these are complex issues but I am giving you the thought that the core reliance idea is you are worse off than you would have been had the court got it right to begin with so in my case situations we've gone from guns to Roe versus Wade abortion and now to citizenship

34:24here's an argument if you had told me and my parents when I'm four years old that I'm not actually a birthright citizen it would mean I can never be president okay I can deal with that but I would have not been a US citizen but had they known they would have arranged for me to be naturalized or when I turned 18 I would have arranged for me to be naturalized and I didn't do any of that because I was acting in reliance upon the position of my government that of course I'm a citizen they're giving me a passport they give me multiple passports and social security cards and all sorts of things telling me at every point in my life we the government acknowledge that you're a citizen so there are some reliance interest going forward there are some reliance interest such that Sauer could be taking the position we're going to treat everyone in the past even though they're not entitled to birthright citizenship if they had been because they would have naturalized had they known that so maybe that's the theory

35:30of course this is an interesting discussion about reliance but in the end it's unconstitutional period and therefore it's a bit moot but it's not entirely moot because what we're saying is that he's actually offering a different interpretation even if he were right about that he'd still be violating the statute so one way or another that isn't what he's doing he's actually legislating himself and therefore he has to lose the case on that and that's one of the reasons that my amicus brief talked about the statute is one of the 10 frequently asked questions and many of the others just focused on the statute or just focused on the constitutional issue that didn't focus on both but we definitely did both in our brief now another thing that you said quite a bit was you talked about all my parents were here legally and listen and I just want I've said it before in this podcast I want to say it again I understand you defending the virtue of your parents

36:33and you like the idea that they behave legally at every point you don't want to imply to our audience but it has nothing to do with this dress because if none of those things were true you would still be a citizen you would still be a birthright so it is irrelevant to the question of your citizenship as to whether your parents were here legally or illegally whether your parents were married or unmarried whether they were even your parents is completely irrelevant to the notion of your citizenship which is ultimately what the case is about is who is a citizen and who is not not whether their parents were virtuous or not so good for you for defending your parents virtue but it has nothing to do with the yes not just I can hear people listening to this saying oh look he's emphasizing that they were here legally not just their virtues and I am speaking as a son but also as an American I am speaking to their patriotism my mom is no longer with us

37:35and I do constitutional law because my parents both of them took me to Philadelphia when I'm 10 years old and we saw it in Independence Hall and it was very moving to me my mom walked me around the city and it had a huge impact on me and I think about my mom every day and my dad and I think about them not just as a beautiful son would but they were American patriots and my dad still is they have a deep love of this country and I get that from them and so that's why I do want to emphasize that but your absolute right has nothing to do with the legalities of the 14th Amendment and so far as my citizenship is concerned I'm born in Ann Arbor Michigan under an American flag and that's it now Andy suppose I wasn't born in Ann Arbor Michigan suppose actually who was born in Toronto which is not so far from Ann Arbor Michigan on the other side of the Trevor River something oh that would be very different now suppose if we're playing out the hypothetical I used to think about these things all the time growing up

38:36all the time suppose I'm not who I think I am I thought I was born in Ann Arbor but I wasn't okay and my entire life has been in reliance upon a lie how would we think about and a lie that the government participated in with that matter versus a lie that was that the government actually was a fraud on the government as well these are interesting questions but I think okay we've talked about some of those aspects there's so many more questions to ask and answer yes and before we do let's just take a moment for listeners who want to get their CLE from listening to this podge podge or propary of ruminations about the case and I promise you that we will become a little more structured and organized as we go forward and looking at the brief but anyway the New Jersey State Bar Association is made as possible for you to in a very organized way get your CLE credit go to podcast

39:37at mjsba.com and after filling out the form enter the code which this week is 22250 that's 22250 and having done that voila if you're in the states of New York, New Jersey or Pennsylvania you have your CLE credit in other states you will also have it if you fulfill the reciprocity requirements which in most states are minimal formalist but you do have to find out exactly what they are so thank you again New Jersey State Bar Association for making this possible okay back to the brief so your brief tries to do everything and it can do everything because you've spent your whole life thinking about this and you first of all have very formulated views that can be expressed quickly or briefly if you will but also because you can and you do reference this work so there are footnotes to yourself which some might say okay he's making an argument

40:40and then as evidence for his argument he's saying yeah I made the argument so that's an interesting practice and it relies on your legitimacy before the court as a scholar but you rest on that to some degree of course those authorities that use whether it's America's constitution, biography or other things themselves make arguments and have an insight to historical evidence and ultimately just like an originalist ultimately has to retreat to the constitution or at least maybe not retreat but at least begin with the constitution so do these things so there is credibility it's just that you may have to climb up a tree to get it here but again I think we're still left with the question of why you're able to do this but sour isn't or whatever and I think part of the reason is that your argument structure which is that you make arguments that are largely originalist arguments, constitutional arguments in the brief

41:40although you make reference to what happens from there some other words precedent comes from there the statute comes from there and then these things matter and then your Scottish blog post elaborate on I think this goes to the nature of an originalist argument if you're writing a brief and you're just writing about one little aspect of the case based on a precedent or based on practice something like that once you've made that argument there's nothing more to say right you've made your argument you've explored your point that's the end of the brief here if you start with the constitution then all sorts of things flow from that okay from the constitution flow the pressments flow the statutes flow the practices flow the American people's understanding of the of constitutional provisions so therefore it lends itself to more of a 50,000-foot brief your commentary most cases do not require an originalist analysis because the constitution only tells you a big idea

42:42but this case is all about the big idea of birthright citizenship so this case is somewhat unusual in that it is a case about first principles and I did not want to rely as other briefs did just on the precedents and I understand what other briefs rely on the precedents especially in support of birthright citizenship because the precedents are pretty strong and indeed the precedents are entirely one-sided almost uniquely in the annals of a modern American constitutional litigation at the Supreme Court level in a big case there is no case that I know on the other side no district court case no Supreme Court ruling in a fork well over a hundred years the first major Supreme Court ruling on this is Wong Kim Ark in the 1890s

43:44and it's just an uninterrupted line at least on the question does someone who is born in the United States under the American flag and so therefore we're not talking about children of diplomats or children born on an Indian reservation Indian enclave Indian land or born behind occupied enemy lines does someone born on American soil under an American flag require in order to be a birthright citizen a citizen parent or green card holder parent the answer is no no court has ever said that so I understand why some briefs just emphasize that angle on the case I understand why other briefs have emphasized not just the cases but government practice because no administration has ever taken this position from Lincoln's all the way through Trump won

44:47the first Trump administration and Biden so I understand why other not just that they not just that they haven't not just they haven't taken that position but the position that they have taken is one where they have citizenized millions of people they've affirmatively followed this policy not just that they haven't taken a country policy it's that they've affirmatively taken a policy that that to verify is the amendment of people but for me that's not quite enough because I am ultimately an originalist and if all the presence were wrong and if all the practices including Trump won were wrong I'm open to the theoretical idea and this is the logic of originalism I'm not happy about this on this case and these facts on this issue but the logic of my position as someone who believes in the Constitution is it's ultimately the supreme law not the practices not the presses and so in theory the practices and the precedents would have to yield

45:47and there are these questions about transition and reliance on all the rest but I go you're right be on the precedents and be on the practices and I always yes try to root my arguments on this issue and I give them an originalist foundation now I don't need that the media mentioned one other thing we've talked about before there is a congressional statute the congressional statute wouldn't have had to have a constitutional foundation Congress for example recognizes the citizenship of children born abroad to American parents in France or Germany what have you and that has nothing to do with the first sentence of the 14th Amendment Congress has that power so Congress has broad statutory power above and beyond the 14th Amendment but for me it matters a lot whether citizenship is merely statutorily grounded or is also constitutionally grounded why doesn't matter

46:47because of this merely the statute Congress could in principle change the statute the day after the Supreme Court hands down its decision and Donald Trump currently his party has a majority albeit slim in the House a majority albeit modest in the Senate he's president so if it's merely statutorily they could try to change that the day after that decision comes down in support of statutory birthrights if instead it's constitutional that has very different implications for our society we can still change it Andy but we'd have to do it by a constitutional amendment and in that conversation there again going to be questions about reliance and prospectivity of the sort that we've been talking about but yes this brief very much tries to because it's one stop shopping tell you the reader about the constitution it's test history structure and about the presses I don't do that much with the president

47:47because other briefs are doing more of that and the practices I don't do that much in the brief on that because other amicus briefs are doing all of that but I tried to do all of that and Andy at the end because I think each of these is sufficient basically to win the precedence you could say for example the precedent should prevail unless the constitution clearly says otherwise so even if I weren't clearly right about the constitution as long as I'm not clearly wrong go with the presses or something like that now I don't believe that but because I think precedent is a sufficient basis and the cases are and the statute is a sufficient basis I did need to talk about the constitution in order to win the case but I want to because I want people to understand the first principles at issue and then at the very end of this brief I say because there's so many different ways my side can win why do I want the court to actually rule on the constitution

48:48rather than more narrowly in some other way we've talked about this before and on many occasions and we'll get to that when we get to that part of the brief but I would say that yes you talk about the president you talk about the statute you'll really talk about the practice but then you do talk about it and let's go to this blog columns but I would say that you do talk about the precedents for sure but you talk about them mostly as they flow from the constitutional principle and you talk about the statute you could try to win the case just you could try to win the case just on the precedent or you could say yes the president's favor me and that is even more of an argument for the constitutional principles because they use those principles in the reasoning they are originalist decisions and so that is even more support for my originalist argument yes other people would just say the precedents are there and they're clear and they're not contradicted by later precedents done

49:49and I say no I'm taking dobs fiercely and dobs says even when the precedents are clear if they're wrong they can be tossed overboard but dobs actually says precedents that try to talk about the Constitution itself precedents themselves are rooted in an original methodology are entitled to more epistemic weight just we should be more hesitant to say the precedent was wrong if it's obviously trying to root itself in the test history and structure of the Constitution then if the precedent isn't doing that or just to flip it around row that shouldn't count for very much because it so obviously doesn't care about the text of the Constitution or its history so yes you're right Andy even when we do in the brief a precedent analysis it's a precedent analysis of an originalistic sort and not all precedent worshippers would actually narrate the thing that way

50:51but we do in this brief say this precedent is entitled to special weight this precedent wonky mark because the court in wonky mark does talk about the text and the history of the 14th Amendment in a way for example that row does not and besides dobs for that proposition and many other amicus briefs that are precedent based I think don't quite do it the same way I think it's more than that also there are really two ways that you use them and it's similar to what you do about your own work you cite your own work and you could say I'm signing this work because it's a generally accepted work that people have come to rely on and think is good and it itself is based in the Constitution so you should take it seriously but you also are citing it because you want people to read the argument and agree with it okay not just that because you think it's shorthand for it's like incorporating by reference okay and similarly with the precedent you say this is an original is present because they used originalist methodology that should give it greater weight

51:51and it's a precedent so you should care about it but you also are saying it's a good argument here's the argument you told from wonky mark here's the argument okay and it's not just that it's an originalist argument but it's a good originalist argument and so that's really two so it's similar to your own work yes you made the work of people like that and it's good you should actually read it and then when you read it you will be convinced truthfully at the margin wonky mark says some things and much I quite would have said just that way but some of that you could say is dictate didn't really matter given the facts of the case at hand but wow it's a lot better for example than plusy versus Ferguson which was decided just two years earlier okay all right so let's take a look then at some of the arguments that you make so you made your opening argument last time but if we look at the brief and we look at the summary of argument you say three things basically because you say first, second and third

52:54in your opening argument so there you go and before you say that you make it just a one-line statement which is what we've been saying here it's a perfect opportunity for the court to reaffirm first principles of text, history, structure and precedent okay which is a bonus what's the first one the first one is the principle and you italicize it so that's how we know where it is when a baby is born in America and an American flag flies above the cradle that baby is a birthright citizen and so that's the summary of the principle that you're trying to prove you're trying to prove that the Constitution says that and of course American flag flying above the cradle that's not in the Constitution those words so that you have a task later to show this notion of under the flag because you have this metaphor that you have the soil and the flag so the soil's under the flags okay so there's this kind of spatial argument

53:56which goes to your geographic approach to this case and I connected to the text Andy it's born in the United States that's geographic and the object to the jurisdiction and then I say textually subject to is the same kind of as under and jurisdiction is the counterpart of that is the flag that's just a way of cashing out jurisdiction so I link my under the flag to the tech but then I immediately link its two history saying I'm not making up that phrase under the flag that's how the reconstruction Republicans explained the pending amendment again and again this is originalism and you won't see that phrase in other people's work but it does appear I think five times in this 2005 book America's Constitution of Biography and I didn't make up the phrase it was the phrase that I was getting from the primary sources

54:56and here's what's really interesting it's an originalist culture it's a constitution worshiping culture it's a political culture this is the 1860s these guys who framed the amendment need to explain it to ordinary people because it's an off-year election this is where about to have an off-year election now it's the present is on the ballot but every member of Congress is their platform the Republican Party platform is an effect of 14th Amendment here's what the war was all about people are going to be asking very shortly what the heck is this war in Iran all about what did you get for it why did we do this after a warning and bloody civil war people were asking that question and the Republicans say here's what was all about the 13th Amendment ending slavery and we've done that but here's what it's also about now these formerly enslaved peoples what's their status to look forward they have to be birthright citizens okay that's what actually we believe that's what we think Lincoln's idea is and he's the one who got us into this war

55:58he believes all men are created equal and we are now going beyond that in some ways and interpreting it to mean all Americans born on the soil and end of the flag are equal birthright citizens now the language is more technical than that it says subject to the jurisdiction but these folk these Republican congressional leaders need to explain the amendment to their constituents who are going to need to decide whether to send them to back to Congress and also going to need to decide state by state whether to ratify the 14th Amendment and so it's not a coincidence that they're coming up with a phrase that ordinary people can understand okay under the flag and they say it again and again and Andy I'm really proud of the brief because no other brief talks about this and I don't know and yes I actually say in the brief look at America's Constitution of biography it uses the phrase

56:59under the flag five times and that was 20 years ago and no one was talking about Trump is just that actually is the historical fact of the matter that's the phrase they actually use this is original but it's not just text it's what people understood themselves to be doing when they were amending someone listening to that could say what is he talking about it's not history that a kill a Mars said it okay that you said it in 2005 that's not history the history is what you were citing or what you were referring to then when you wrote that but when I set him up with that formulation not knowing that it was ever going to be relevant to Donald Trump executive order so that's the first part of your argument and of course you're going to have to in the body of the brief explain where that phrase comes and why we should rely on it why it's not just your invention your convenient invention

57:59to make your argument more irrefutable and even in the initial explanation you provide a little bit of historical evidence you say and we'll get into the more evidence you say countless reconstruction Republicans led by once-in-future vice presidents Hannibal Hamlin and Skyward Holfax put the point time and again in the amendments drafting and ratification process the point they put was under the flag and then you also say all major Republican leaders who carried the banner of President Abraham Lincoln during his tenure and after his death and Seward shared this vision so we're going to get into that in terms of okay what's your evidence and what does it mean to carry the banner does it mean in Congress does it mean to the people but what does it mean

58:59so I'll be very interesting and so that's your first point you actually really have four points even though you only list three points these words appear nowhere in the amendment okay and then so right away you're taking on a counter argument you're taking on sour and you know right away by saying that because the implication is someone is saying that the parents matter and you're saying that it's not in the amendment so this is a geographic argument it has to do with where is the baby and now you go on to say in terms of what the argument is you're also saying what it is text history and structure that's originalism so I'm saying yes the text is geographic it's about people born in the United States

59:59and I'm also telling you putting in history here's what the Republicans actually said but it's connected to the same point but the text doesn't say so the text does say in and it doesn't say parent, parents, or domicile so that's all what the text says and doesn't say and I've also told you some history here's how actually all the Reconstruction Republicans are the leading ones explain the thing to their fellow citizens and I introduced this phrase that's what I do under the flag correct and so when you're talking about you go on to say parent, parents, and domicile you're talking about what isn't in the amendment and also what isn't in the discussion yeah that's history that's history and under the flag is also going to explain who's in people born in Ann Arbor, Michigan

1:00:59and who's out under people born behind occupying enemy lines because they're not under the flag so under the flag is who's in and who's out as a matter of birthright citizenship you can be born outside the United States under a different flag and become a statutory citizen in Congress with past statues saying people born to America parents in France and Germany are statutory citizens but the under the flag is both in and out of the nation and what's not in the text bloodline, parentage, parent, parents, domicile, legions these just aren't in the text and yes not in the historical discussion so it's text and history the history is they do talk about under the flag and they don't talk about parents, parents, and domicile and in the text or in the conversation so when you say let me read something back to you

1:01:59that's a question about it so the italicized sentence that i quoted before when a baby is born in America an American flag flies above the cradle that baby is a birthright citizen isn't that a little bit redundant in other words aren't you saying that if an American flag doesn't fly above the cradle then they're not really in America okay one thing that i tried to phrase is here's a principle and this is your phrase from an earlier episode of inclusion if this then you are citizen you could be a citizen otherwise for example suppose you were born under an American flag in the U.S. Embassy in Baghdad when we had such an embassy in Paris that sheet in fact they're not just in the U.S. Embassy even if you're born under a French flag

1:02:59in Paris you're an American citizen by statute if your parents are U.S. citizens and then there's specifics I'm simplifying the statutes so when i was saying those if you're born on American soil and under an American flag that's enough to be in it's not required but it's enough and it's not redundant because i can imagine someone born under a flag but not on U.S. soil in a foreign embassy and i can imagine someone born on American soil but not under a flag that's Indian territory for example India land you could say it's part of America but it's not quite under the flag and they were trying to be as specific as they could be because they had three things that they didn't want to citizenize and so that's why i think they used the formulation they did

1:03:59and why i'm using this under the flag idea to capture the scope of the birthright citizenship guarantee and its edge what lies beyond it which to repeat one more time doesn't mean that you're not a citizen if you don't meet these criteria you should not have a 14th amendment it might be naturalized or you might be an overseas baby but you wouldn't be a 14th amendment baby so in this particular point within almost an intertextual point you say like the 13th amendment that precedes it the 14th distains hereditary based status no one born in America is born a slave and all born squarely on the soil and under the flag are born equal citizens yes, intertextual is a version of structure originalism is text and we've talked about text what's in the text what's not in the text

1:04:59originalism is history you've talked about what they did talk about under the flag and what they didn't talk about parents, parents or domicile of legions that's not in the text more than most people trying always to connect one part of the constitution and other to try to show you how it's part of a larger a particular cause of the constitution might be part of a larger constitutional project and here this is the reconstruction project this anti hereditary anti-cast is trying to make us move us away from an onsen regime that's very blood based this is what you and I and Gordon and Kim but especially Gordon talked about in every dollar couple weeks ago in connection with Gordon's just epic book the radicalism of the American Revolution

1:05:59and it's gonna manifest itself this radicalism in phrases like all men are created equal which is going to grow and morph and evolve the principle of the 14th Amendment but on its way to that is going to travel through the abolition project of early state constitutions in Massachusetts Pennsylvania, Vermont and elsewhere and a 13th Amendment and that's what the born equal book is all about going from all men are created equal through state and free and equal through a 13th Amendment that's going to continentalize that not just apply in the north but everywhere and that's going to ramp into a 14th Amendment and eventually a 15th and 19th that's the story that I tell in born equal

1:06:59it's a big book and that's why I cite to it in the brief that I read and his epic book Radicalism the America Revolution which we talked about in great detail Andy, you and I and Kim and Gordon himself in Philadelphia with what was it? 26 other ever scholars you and 26 others? Yes, by the way, we don't usually fit that many people into an ever scholar course it's hard to have a good seminar and I think everyone felt like they got a chance to say everything that they wanted to say and of course part of that is the structure of ever scholar because you also are having dinner and you're walking to and from the Constitution Center and Independence Hall and all these great places so there's plenty of opportunity for discussion but anyway since you mentioned ever scholar I do want to take a moment

1:07:59and as ever scholar I just mentioned about its new course on artificial intelligence and in fact that announcement was just made an email and out to thousands of people and you could be one of them if you just go to ever scholar.org and put in your email address and you'll get this kind of information first but it's about this new course which is called Humanity at the Frontier what does that mean exactly Prometheus and Icarus we know Prometheus stole fire which is a metaphor for knowledge and Icarus through his hubris flew too close to the Sun and that was the end of Icarus you could see how these things might apply to AI so the question for us is how would ever scholar do in AI course what do you go to the course or something like that

1:08:59no that's not the way it works and I think to give you a insight into the way ever scholar will address this let me read two quotes to you this was actually in the email so here's the first quote truly this is almost a miraculous era what is before us no one can say what is upon us no one can hardly realize the progress of the age of human belief the future is known only to omniscience that's the first quote here's the second one day by day however the machines are gaining grounds upon us day by day we are becoming more subservient to them more men are daily bound down as slaves to tend them the time will come when the machines will hold so you might feel that those quotes express the anxiety that many of us

1:09:59feel in the wake of AI but the first quote was from Daniel Webster in 1825 and the second quote was from Samuel Butler in 1872 in a novel that he wrote called Aeroan which spelled backwards is nowhere they were reacting to steam power, electricity railroad technology so the point is that these fears and these questions although they might be more existential now although they might be more realistic they might be more acute they might be more well-founded they are not new questions and so one of the things that ever scholar does looks back through the same way and we will talk about the problems of today in this case tomorrow

1:10:59so that forms much of what we are doing but we also have to have our feet in the present in the future and we are doing so with our choices of faculty we are going to talk more about this and subsequent emails but I think that in terms of looking at today and tomorrow and among many positions that he holds. One of the things that Professor Ball did was he was worked in the Trump administration and authored. He was the principal author of the AI policy, which is now the policy of the US government. He's no longer in the administration, but and in fact he's been quite critical. He appeared on Ezra Klein's podcast and the interview appeared in the New York Times last week or the week before in the wake of the blow up with the Trump administration excluded andthropic and declared them a supply chain risk. And Dean was extremely critical of this and he had all sorts of interesting and humanist arguments that applied to it. So that's just a little pre-taste of this program, humanity at the frontier. We have two other

1:12:04faculty who are themselves more even more in the humanist realm. Registrations can open on March 29th and the courses in San Francisco, July 9th to 12th. And I've already been receiving many inquiries saying, hey, hold a spot for me, hold a spot for me, which of course can't always do, but go to everscholar.org and find out more about this. It's very exciting. Okay. All right, so back to the brief. So we're talking about the argument. Really today we're just talking about the outline of the argument. I think we'll get into the evidence starting in the next episode. So that was your first main point, which I think there's really two points. And then in the second point, you say what we've been saying earlier, you said President Trump violates the Constitution structure by trying to legislate enormously consequential citizenship policies in the absence of any constitutional provision or congressional enactment authorizing such presidential adventurism. And then you say it's in defiance, in fact, of an existing statute.

1:13:08It's like the tariff case. And had the brief been filed a week later, then it was, I would have cited the tariff case, but this actually I think was filed or we sent it off to the printer. The very day the tariff case came down, we sent it off, I think to the printer on Friday and it got filed on Monday. And that was the Friday of the tariff case. And then the third point that you make is that the executive order flies in the face of precedent. And you list two main precedents, one Kim Mark and then Youngstown, which of course are on different subjects. And one Kim Mark is more about the substance of birthright citizenship. And Youngstown is about presidential, presidential unilateralism. And you say that both of these cases are original as cases, you don't use that word, you say they faithfully followed core precepts of the Constitution itself. And that's it for the summary of argument. Okay, so Kiel, I know it might seem that we took a roundabout route, but we went through the

1:14:13summary of argument. You had presented your argument previously in your little opening statement. But I think we talked a little bit here about the structure of the brief and that I think took us a field but was relevant to those matters, to the question of why is it structured this way? And why can your brief be structured this way? And others can't and why? And the role of the Scottish blog post, I think we didn't get into too much, but I think it's obvious, which is that's where you get to provide even more evidence than the brief did. And more give and take more response to the other contemporaneous briefs. Right. So as we go forward through the brief, we're going to not only prove your argument, hopefully, using with evidence and various types, historical, structural, textual, etc. as we go through that, but we'll also say, okay, what might someone say against this? And what are they saying against it? And here's what they said, and here's your response. So I think this will be a fun back and forth as we go forward. And so I think you're sort of

1:15:19brief-o system of the brief, the Scottish blog, your previous writings, and the podcast will actually come together. I look forward to that. Thank you. Thank you, Andy.