The Taney Revivalists
By 
Pema Levy and Isabela Dias have a great piece on the not-even-pseudo-scholarship being generated to create a “controversy” about the plain meaning of the citizenship clause on the 14th Amendment:
On February 15, 2025, two law professors dropped a legal bombshell. Just three weeks before, President Donald Trump had signed an executive order attempting to unilaterally deny birthright citizenship to the children of visa holders and undocumented immigrants despite the Constitution’s clear mandate that virtually everyone born on US soil is an American citizen. In quick succession, four federal district court judges blocked the order, with one deeming it “blatantly unconstitutional.” Into this righteous consensus rode Ilan Wurman, a law professor at the University of Minnesota, arguing in the pages of the New York Times that, actually, Trump might have a point.
Legal scholars and historians reacted with horror, not because the article, co-written with Randy Barnett of the Georgetown University Law Center, had uncovered some secret truth that would crack the traditional view of universal birthright citizenship, but because their argument against this cornerstone of American democracy was deceptive. Critics decried Wurman and Barnett’s case as “wrong and dangerous,” pointing to their misreading of historical sources and reliance on evidence that contradicts their thesis. One constitutional law professor went so far as to call their op-ed “hackery by amateur historians who misstate the legal history and twist their own argument.” He and others warned that the article’s revisionist arguments and prominent platform risked leading the public to falsely believe that there was a serious debate at play.
[…]
There is a mountain of evidence supporting the long-held and widely accepted interpretation of the 14th Amendment’s guarantee of citizenship by birth. This broad understanding is shared by nearly every historian and legal authority on the subject, on both sides of the political aisle. The few who have established the camp to narrow birthright citizenship make for a revealing band of misfits.
Among the legal minds who submitted friend of the court briefs supporting Trump’s executive order are Wurman, an ambitious young Trumpian law professor; Richard Epstein, a prolific libertarian torts expert who distinguished himself with woefully inaccurate predictions about Covid-19; and John Eastman, who has long argued for restricting birthright citizenship but earned national notoriety as the legal architect of Trump’s failed 2020 insurrection. Together, they have put forward both novel and recycled already-rejected arguments that are not only morally reprehensible but historically implausible.
Your reminder that before he became the ad hoc theorist for 1/6 Eastman wrote an op-ed asserting that Kamala Harris was not constitutionally eligible to be president. That’s the quality of the argument we’re talking about here. To call Wurman’s work “law office history” would be far too generous:
But most originalists, including prominent conservatives, disagree with Wurman. His methods, reasoning, and scholarship has drawn criticism from several adherents of the approach, who accuse him of being sloppy at best and dishonest at worst. “He misstates what the rule [imported from England] is,” says Keith Whittington, an originalist law professor at Yale University. “He mistakes what the legal history of that rule is. He misstates the logic and implications of the rule. He misstates the justification for the rule.”
“Wurman should never be trusted with historical work again,” Anthony Michael Kreis, a professor at Georgia State University College of Law and fierce Wurman critic, posted recently on Bluesky. “In any respectable academic field, we’d be talking about article retractions. It is simply that bad.” In an email, Kreis, whose scholarship focuses on the historical development of American law, further condemned the efforts by proponents of restricting birthright citizenship. “I have never seen so much methodologically bankrupt, motivated faux scholarship,” he wrote. “The level of hackery is astounding… If people wanted to be fiction writers, they should’ve pursued another career.”
And as Levy and Dias point out, it’s telling that in the brief he submitted for the case he abandoned many of the claims he’s made in other fora:
Perhaps the best refutation of Wurman’s position is the ultimate timidity of his own amicus brief before the Supreme Court. In public and on social media, Wurman is uncompromising in his views. But in the final analysis, synthesizing his best arguments for the nine justices, Wurman’s brief oozes with self-doubt. His conclusions are tempered by words like “likely,” and questions on which he is strident in public are described as “difficult.” His key claim that undocumented parents are not subject to the United States’ complete jurisdiction is reduced to a suggestion: “Whether unlawfully present aliens are subject to the complete jurisdiction of the United States is less clear, but three reasons suggest they are not.” His contention that temporary visitors were excluded from birthright citizenship becomes “at best unsettled.” “The Wurman brief,” as one amicus brief against the government noted, “deserves plaudits for the candid way that it highlights the weaknesses of its own argument.”
That these arguments will get even 2 votes from the Supreme Court is disgraceful, although obviously the 5-vote alternative is far worse. And we should never forget not just the people who invented fake history in service of Trump’s war on equal citizenship but those who enabled them:
/4. Fourth: Advocacy does have a moral component. Lying about law and history in an effort to make millions of people stateless is not “doing law the right way.” The notion that advocacy is morally neutral or even inherently good if performed according to cultural ritual remains vapid and harmful.— A New And More Reasonable Popehat (@kenwhite.bsky.social) Apr 1, 2026 at 9:53 AM
/5 To expand on Point Four: the enemies of democracy and freedom are not just hacks like Wurman and Barnett, it’s also the people who demand that we treat Wurman and Barnett as good-faith commentators because they talk in law review articles or NYT editorials. Call evil evil.— A New And More Reasonable Popehat (@kenwhite.bsky.social) Apr 1, 2026 at 9:55 AM