Home / General / You do not, under any circumstances, “gotta hand it to” pseudo-scholarship supporting the Trump administration’s attempted nullification of the 14th Amendment

You do not, under any circumstances, “gotta hand it to” pseudo-scholarship supporting the Trump administration’s attempted nullification of the 14th Amendment

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Any time the conservative legal movement has a felt need to support a policy conclusion with no legal basis conservative judges want to reach — like “Congress loses its power to enforce the 15th Amendment if its remedies are too effective” or “the Constitution makes the president an unaccountable king” — there will be 1)an effort to dress up these policy conclusions with some fake-historical nonsense followed by 2)specious claims by some liberalish legal academics that these arguments must be treated with the seriousity they surely merit. Birthright citizenship, now that it’s in the crosshairs of an authoritarian president, is no exception:

So their strategy now is to create the illusion of some genuine controversy, which doesn’t exist. What exist are a tiny handful of obscure journal articles by D-tier academic crackpots having a little mutual admiration society for the legal equivalent of flat earth theory.

[image or embed]— Julian Sanchez (@normative.bsky.social) January 23, 2025 at 8:05 PM

Call this the Discovery Institute strategy. You can scrape together half a dozen fundamentalists with some kind of credential to host a little symposium on how evolution is fake, Earth is 6,000 years old, and cavemen rode T-Rexes. Voila, a “literature”. But it’s not a serious scentific debate.— Julian Sanchez (@normative.bsky.social) January 23, 2025 at 8:10 PM

The point of the exercise is not to convince other scholars, who correctly laugh this stuff off. It’s to create a Potemkin dispute that gives political actors cover to demand the “controversy” be taught as though these were equivalently legitimate sides in some pitched, live debate.— Julian Sanchez (@normative.bsky.social) January 23, 2025 at 8:15 PM

So if 3 crackpots write articles staking out a super fringe view, maybe only a couple academics with the view 99% of the field holds bother responding. There are real, therefore more interesting, controversies to work on. But from the outside it might look like these are evenly matched sides.— Julian Sanchez (@normative.bsky.social) January 23, 2025 at 8:33 PM

As John notes, it’s also a little easier to manufacture the appearance of live controversy in legal academia than the sciences, where the gatekeepers even at the real journals are 22-year-old students. bsky.app/profile/john…

[image or embed]— Julian Sanchez (@normative.bsky.social) January 23, 2025 at 8:49 PM

Plenty of good and interesting work appears in American law reviews, of course. But this doesn’t mean that articles written and edited by people with no historical expertise or training constitute an “academic literature” simply by the virtue of their nominal existence. And claims that the first clause of the 14th Amendment doesn’t mean what the text says or what 125 years of Supreme Court precedent has held belong as blogs written by soon-to-be-disbarred seditionists at zombie news magazines; dressing them up with some footnotes doesn’t make them arguments to be taken seriously.

The “but there’s a WHOLE LITERATURE urging us to make Dred Scott great again” gambit reminds me that John Yoo once wrote an entire book asserting that the Constitution was originally understood to give the president more-than-monarchical warmaking powers:

In the past, those who hoped to increase Congress’s role in warmaking were the ones who invoked the intent of the Framers. Aiming to run the reel backward and reduce presidential war powers to the dimensions that the Founders intended, they sought, unsuccessfully, to transform a policy debate into a legacy dispute. With whimsical eccentricity, Yoo has devoted much of his short career to swapping places with these defenders of frayed tradition, claiming that original intent supports not Congressional but presidential prerogative, not only during wartime but also in the run-up to war.

The Framers charged the President with protecting the nation, he tells us, “even if that meant fighting with the legislature to enforce the desires of the people.” True to their British heritage, Yoo also asserts, the Framers modeled the President’s war powers on those of King George III. They therefore refused to grant Congress even a concurrent power to commence war. At its core, the Constitution embodies the Framers’ intention to prohibit Congress from “encroaching” on the executive’s power to initiate as well as conduct war.

To make his contrarian claim ring true, Yoo whites out contrary evidence and draws dubious conclusions on the basis of fragmentary and carefully selected facts. He disregards the main thrust of the historical record and misrepresents the parts he acknowledges. He ferrets out (and exaggerates the importance of) scattered shreds of evidence that, at first glance, seem to back up his predetermined narrative. This cherry-picking of the sources may explain why he fits so comfortably into an administration known for politicizing intelligence, smothering doubts, silencing critical voices and fixing the facts around the policy.

But why would an aspiring legal scholar labor for years to develop and defend a historical thesis that is manifestly untrue? What is the point and what the payoff? That is the principal mystery of this singular book. Characteristic of The Powers of War and Peace is the anemic relation between the evidence adduced and the inferences drawn. The footnotes and citations teem with ambiguity and complexity, while the summary statements snap dogmatic simplicities. For instance, in a section devoted to the powers of war and peace in various state Constitutions, between independence and the ratification of the Constitution, Yoo uses selective citation to convey the impression that state executives not only possessed substantial foreign-policy powers but were also, when commanding the state militias, freed from any obligation to act according to laws passed by state legislatures. That his case is wobbly on both counts is the least that might be said. But what makes his misleading account additionally baffling is that he cites without comment the very provisions in several state Constitutions that deny the executive branch any power to act except “under the laws” passed by the legislative branch.

Being written by a law professor — even a very highly compensated torture enthusiast — does not in itself make something “scholarship.”

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