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September 10, 2020

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anon

As I was reading, I was thinking, "Wow, Lubet actually is getting this issue right. He is an actual "liberal" and principled to boot."

THen, I got to the end and realized I missed that this was a guest post.

Specifically, I would wonder if Lubet would agree with this: "If what the 400 signatories mean is that their views are so important for the good of humanity that all opposing views must be forbidden and their perpetrators punished, they should know that theirs is exactly the concept of academic freedom practiced by the Nazis."

This goes to the heart of what is often referred to as "political correctness": a concept that has been stretched in this country, at this time, to the point of irrationality.

Kevin Jon Heller

Who knew academic freedom meant the right not to be criticised by those who disagree with you?

Kevin Jon Heller

But kudos to Eron for throwing in an irrelevant reference to sntisemitism, given that the letter doesn't actually ask CU to fire or even punish Eastman.)

Ediberto Roman

This is a tough one for me. I appreciate the sentiment that questions Eastman's position, but his argument here is one he has made for over decade--though his motivations may be subject to debate, his position is far from new. As someone that has debated him on this very point, I believe as a constitutional scholar, he has the right and expertise to make his arguments. He happens to be wrong on the issue, but he should have the right to make his arguments. There are so many other immigration/citizenship arguments that have far less basis than his reading of the Constitution in this instance. John, how about round two???

Steve L.

Good to hear from you, KJH. Glad you continue to read and comment on the blog. But I don't get your first point. The Open Letter did more than criticize Eastman, it stated a position on academic freedom different from the AAUP's "80 year old definition." Eron criticized that aspect of the open letter, disagreeing with the disagreers.

Now you evidently disagree with Eron. Isn't that how academics work?

Howard Wasserman

By twice quoting the "reconsider their ability to be a productive member of our community" language, the letter seems to imply that Eastman should not be welcome at CU--whether he should leave of his own accord or that administrators should carry that language out.

Steve L.

Also, Eron's reference to Nazism was not irrelevant. The Open Letter itself brought up the Third Reich, adding that the defense of the traditional concept of academic freedom "leads directly to acts of segregation and eugenics."

I know of no one in serious academics who agrees with Eastman about birthright citizenship, although he has been pushing his ideas for years. The Newsweek oped was indeed reprehensible.

One need not agree with Eron, however, to recognize that his own oped was a reasonable contribution to a discussion about the boundaries of academic freedom. Contra KJH, he did not say that academic freedom includes a right not to be criticized.

anon

About one point, it seems to me that Eastman's thesis must be addressed:

As I read Eastman's op ed, it appeared to me that he suggested that there is no SCOTUS opinion that directly held, on the facts before the court, that birth on the soil of the US automatically and without more (i.e., no consideration of the status of the parent(s)) conferred "natural born citizenship" for purposes of the relevant requirement for the presidency.

Before everyone freaks out, am I reading Eastman correctly? If so, what is the answer? Was Eastman correct or not? (Citation needed)

Jeff RIce

Steve, you say the following: I know of no one in serious academics who agrees with Eastman about birthright citizenship, although he has been pushing his ideas for years. The Newsweek oped was indeed reprehensible. If Eastman had stated that the Germ Theory of Disease was communist plot or the world was flat or that the Holocaust was a great hoax, would you stop with the word reprehensible or would you add to the comment, intellectually irresponsible and therefore its potential for danger disqualifies it for academic freedom. One might disqualify him from hiring in your own department but if every reasonable department banned holocaust deniers, anti-evolutionists, and flat earthers...why is Eastman different. I am honestly seeking a non-cliches answer.

Steve L.

Thanks for posting, Jeff. Unlike many commenters, and surely unlike most of the Open Letter signatories, I have actually done the background reading on the Fourteenth Amendment’s Citizenship Clause, when I taught Immigration and Nationality Law years ago.

Eastman’s interpretation is tendentious and farfetched, but I would not quite put it in the flat-earth category. It is more in the hydroxychlorquine category.

In any case, the people at the Benson Center evidently thought he had something worth listening to, other than on citizenship. I regard that the same way I regard all other objectionable speakers.

Leila Khaled, a two-time airplane hijacker who attempted to explode a hand grenade when she was foiled by sky marshals, will be speaking this month at San Francisco State University, invited by the Arab and Muslim Ethnicities Diaspora (AMED) program. I find that objectionable. Unlike Eastman, Khaled actually attempted to murder people, including children. (Don’t take my word for it; read her memoir.)

But the invitation was AMED’s to extend. As explained by SFSU president Lynn Mahoney, “A university is a marketplace of ideas, and San Francisco State University supports the rights of all individuals to express their viewpoints and other speech protected by law, even when those viewpoints may be controversial.”

Eron’s point, however, was broader than that. He focused not on Eastman but rather on the Open Letter’s proposed redefinition of academic freedom, which would evidently discard the AAUP’s 1940 Statement on Academic Freedom. Eron does not believe – nor do I, and I would venture neither do you – that traditional protections for academic freedom have led to segregation and eugenics, but that is what the Open Letter asserted.

There is obviously a discussion on many campuses about the future scope of academic freedom. Perhaps it will be narrowed and redefined as the Open Letter suggests, and perhaps not. Perhaps it will prove impossible to arrive at a content-neutral rule that applies equally to John Eastman and Leila Khaled. My preference would be to invite neither one to speak on my campus, but I do my best to respect the rights of others to make different choices.

anon

Simple question

And, the citation to this irrefutable rule is?

Should be easy to cite the SCOTUS opinion, especially for an expert.

anon

Ok, so, it appears that you are not able to just cite a SCOTUS opinion that held that birth on the soil of the US automatically and without more (i.e., no consideration of the status of the parent(s)) conferred "natural born citizenship" for purposes of the relevant requirement for the presidency.

How about this: cite a SCOTUS opinion that held birth on the soil of the US automatically and without more (i.e., no consideration of the status of the parent(s)) conferred "natural born citizenship" as that phrase is used in the Constitution.

Again, if this principle is so clear that it is possible to compare Eastman to a "flat earther" then is should be exceedingly easy to just cite a case, no?

Please, just the citation. It would be great to actually make the case like … well... a lawyer or, better yet, a professor of law, rather than just calling names and making bogus analogies. But here, a citation will support the point without more.

Please, cite a SCOTUS opinion.

Jack Chin

For those interested in the basic, undisputed precedents showing that Dean Eastman is an outlier, one may refer to the article by Trump-appointed Fifth Circuit Judge James Ho, who was on the President's recent list of potential Supreme Court Justices. https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf

anon

Not looking for an article, Professor. With all due respect, please, just a cite. I'm not interested in the propositions "irrefutably" supported by someone's choices of cases to include in an "article." Not looking for an "article." I'm looking for authority from SCOTUS on point.

Please, just one citation to a SCOTUS opinion, that was on all fours, on either of the two issues described above.

That's all.

If there isn't one, please just say so.

I'm genuinely interested.

anon

Just read the Ho article cited above.

As suspected, that article no way cites any SCOTUS opinion that addresses the issues identified above and below in this comment. It doesn't even address the issue!

Again,

Please cite a SCOTUS opinion that held that birth on the soil of the US automatically and without more (i.e., no consideration of the status of the parent(s)) conferred "natural born citizenship" for purposes of the relevant requirement for the presidency.

If unable, please cite a SCOTUS opinion that held birth on the soil of the US automatically and without more (i.e., no consideration of the status of the parent(s)) conferred "natural born citizenship" as that phrase is used in the Constitution.

I suspect that some would like to resort to the argument Tom Cruise's character made in a "Few Good Men." After the assertion was made that there was nothing about a "Code Red" in the manual, Cruise asked, "SHow me where it says in the manual how to find the mess hall" or something like that.

But, that point made sense -- because finding the mess hall would be a sort of obvious matter of common knowledge.

Are the answers to the questions above matters of common knowledge?

This much I know. No one can so claim. As even Volokh noted, answering Eastman, at the time of the Constitution, an understanding of term "natural born citizen" was not universal and uniform.

So, it seems to me that that phrase means what the SCOTUS says it means.

But, it doesn't really matter what I "think" or frankly, what all of you are saying is beyond dispute.

Again, if the answers to the questions posed above are so clear, so unequivocal and so beyond any legitimate dispute, any expert -- such as a person who taught an immigration course some years ago -- should be able to cite a SCOTUS opinion that directly answered those questions.\

There may be such an opinion, I don't know.

Please, this is just a few numbers and letters

[Vol.] {Reporter] [Page}

No more virtue signaling, please.

Please, cite the case.

Or, say you can't.

A non

Jeff Rice, because your list of examples (Holocaust deniers, anti-evolutionary theory, anti-Germ theory, and Flat Earthers) concern matter of scientific and historical fact. By contrast, disputes over the meaning of the concept "natural born citizenship" and the norm in which it is housed cannot be resolved by appeal to either definitive work in the empirical sciences employing the hypothetico-deductive model, or through pure historical inquiry.

Indeed, the fact that you plug in constitutional interpretation questions in with your above-mentioned list as if they formed a cogent category is ITSELF problematic.

One can furthermore easily see that as emblematic of a disturbing trend amongst many left-wing American academics (NOT left academics, globally, by any stretch of the imagination) of confusing their preferred values with fact, and treating them as being predicated upon, and as being on a par with, scientific development (thereby couching rival normative stances in epistemic terms of "ignorance"). The rivals' view are characterized as beyond the pale, unmentionable, and unscientific, whilst their own are emblematic of moral and scientific truth (SAVE THAT most such scholars THEMSELVES remain tone deaf to the hard left on many such matters...).

Personally, I also find it noisome that so many people furthermore claim "Je Suis Charlie," yet have precisely the opposite instincts and policy preferences...

Jeff Rice

Steve, two issues are on the table here: irresponsible speech and protection of free speech. When Charles Murray came to speak I defended his right to speak once he had been invited. Likewise, Jeff Sessions. I pushed the argument to the. category , "should they have been invited". This produced a robust discussion driving students to read deeply into the debate over Murray. This allows us to evaluate a speaker in advance, boycott if we wish, but no deny her or his right to speak. Our own Provost told my class that he wold only cancel a speaker if the security risk was so great that the University could not guarantee any one's safety. In the case of Leila Khaled, rehabilitated criminals are a category of speaker we have all experienced. I am more sympathetic to criminals who are regretful of their choices (but even this is a fuzzy category). But this is the price we pay for supporting free speech as I do. Its always the problematic cases that keep us up at night. At crunch time, I will endorse more speech than less. The paper was flawed and I think that in the general case, one can hardly prove causation between free speech. Until speakers cross the line and urge their listeners to commit crimes.

As for the comment by A non @11:42. I am not going to respond to comments posted behind an anonymous shield. Feel free to attack me unchallenged.

Thanks for the wonderful array of Bob Dylan this morning.

anon

Jeff, as you know, the Constitution itself was written by folks who "posted anonymously." Your example of the Bell Curve is apt. Take a look at what recently happened to Andrew Sullivan. In legal academia, the situation is far, far worse. Indeed, that is what this thread is about -- the punitive and hysterical way that different views are "dealt with" by legal academicians.

Since no one can cite a SCOTUS decision on point, let's consider this.

In 1875, Chief Justice Waite, writing for a unanimous court in Minor v. Happersett, stated:

"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first."

This statement was, no doubt, dicta. But the point here is not the holding: it is the opinion that there were “doubts” whether persons born on the soil of the US were “natural born citizens” without reference to the citizenship of their parents.

I think we all know by now the definition of natural-born citizen in Emerich de Vattel's treatise, The Law of Nations: "The natives, or natural-born citizens, are those born in the country of parents who are citizens.”

As many have mistakenly asserted, the question of “birthright citizenship” is not what this controversy is about. As I understood his point, Eastman was exploring the meaning of “natural-born citizen.” By the well-known rules of construction, the answer to this question does not depend solely upon the meaning of the term “citizen.”

Given that no one can cite a SCOTUS opinion on point, do those writing so dogmatically on this issue believe that they know better than Chief Justice Waite that the meaning of “natural born citizen” is clear and unambigous? Waite was closer to the Constitution and the 14th Amendment (1868) than anyone writing today, and he was writing for a unanimous court. He referenced "doubts" (i.e., ambiguity) where the zealots of today see only crystal clear certainty of their conclusion.

To be sure, the law evolves and the statement quoted above was dicta. We may disagree with Waite. Perhaps he was wrong, on the merits. But, really, was he a “flat earther” and all the rest because he noticed "doubts"? Or, do those demonizing Eastman better fall into that category?

It took a Constitutional amendment to change the rule laid down by Waite. Tellingly, some have proposed a Constitutional amendment to remove the “natural born” requirement. Perhaps this would pass easily.

Easier than dealing with those ready to make a Galileo of Eastman.


A non

Why bother, Jeff? You don't have a credible response.

Profturnedjudge

Professor Eron - Your note was sensible and open-minded until the line: "Perhaps they understand that many of their own arguments could be disputed and that if Professor Eastman can be condemned and urged to leave CU, then so could they." If you are going to posit a motive for the law school's independent professors not-signing then you devolve into the same pithy and unwarranted accusations made by the politicos against their opponents and we ought to reach higher than that.

In my former school (when I was a graduate student) a professor denied that the Ottoman government murdered Armenians to the point that it could be called a genocide. There was a petition to have him fired, but none of the history department signed the petition. My thesis advisor survived Birkenau and he very much believed that the removal of a noxious professor for good could have a slippery slope into the very event you describe. But over lunch I learned from other professors they had differing reasons. Yet all of them worked, in their own way, to let it be known why the denier was no longer a part of their collective pursuit into legitimate historic inquiry. And in time, that professor discovered that he (1) had no graduate students; and (2) undergraduates were able to opt-out of his western civilization course. In the end, a common denominator was a trust in the market-place of ideas, but the arguments and beliefs to achieve that denominator widely varied

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