As promised, a thread in response to the semi-viral paper posted today by Evan Bernick, Paul Gowder, and Anthony Michael Kreis.

1. First: This long-form piece responds entirely to the op-ed. Not only did they not wait for us to write the longer piece, which is fine but a bit odd for this format, but they also completely ignored the much longer Reason essay Randy and I wrote elaborating on our argument. They cite it once to say we backtracked, but of course, maybe that should have indicated to them instead that the essay was a significantly more extensive elaboration and that that's what they should have focused on. After all, we were limited to only 1,300 words in the op-ed. This suggests to me they were not actually interested in grappling with the argument, as also evidenced by the numerous and sometimes obvious misunderstandings of our argument. papers.ssrn.com/sol3/papers.cf… 2. For example, they say there's no evidence connecting "allegiance" to "jurisdiction" and that we're violating basic rules of originalist methodology. But as we explain in the Reason piece, the *Supreme Court itself* in Wong Kim Ark presumed the connection. We explained that we're making that presumption too. It is of course possible that jurisdiction does more or less than the common law rule. And we have an entire section in the Reason piece addressing the methodology point. These authors say nothing whatsoever about any of that. Which suggests their target is not the merits of our argument, but rather something else. To be sure, in our longer forthcoming work we will address this question, and address it thoroughly; the point now is only that they're responding to something that simply wasn't within the scope of our initial interventions, which was the baseline common law rule itself.

Finally. Thank you @nytimes @nytopinion for running what’s sure to be a controversial op-ed from me and @RandyEBarnett on birthright citizenship. 1/

nytimes.com/2025/02/15/opi… Obviously, read the whole thing for yourself. But some high-level points. We don’t think the framers rejected just soli in favor of jus sanguinis. But we think it’s an open question whether jus soli covers the situations encompassed by the EO. 2/

I don’t mean to make light of the situation today by retelling this, but the last time a Supreme Court justice was almost assassinated resulted in a really important SCOTUS case about executive power. (And it was probably wrongly decided.) Buckle up. 1/ Back when SCOTUS judges still rode circuit, Justice Stephen Field was sitting as part of a circuit court in California that decided against Sarah Hill, who fraudulently pretended to be the wife of the rich William Sharon. 2/

Maybe I’m missing something—and I don’t mean to downplay the importance of the Fifth Circuit’s decision—but it seems to me lots of folks are overreacting. The court did NOT dismantle SEC’s enforcement powers, and the SEC is NOT all of a sudden unconstitutional after 90 years. 1/

https://twitter.com/prof_jpc/status/1527003339644362756

The 5th Cir. simply held that if you’re accused of committing a federal crime and the government is coming after you for civil penalties—your livelihood and property are at stake—your case should be heard in a real court with a real judge and a jury. SEC can still prosecute. 2/

No, originalism did not "come from" Dred Scott v. Sandford. Dred Scott was almost certainly inconsistent with the original meaning of the Constitution. 1/5

msn.com/en-us/news/pol… On where originalism comes from, here is Chief Justice Marshall in Gibbons v. Ogden (1824); Daniel Webster in 1841 (on Congress's bankruptcy power); Madison in an 1824 letter; and Hamilton in 1791 bank debate. They were all originalists. 2/

Excellent essay by @JeannieSGersen, with nods to @MJSteilen @nikobowie & @jamalgreene. But one thing that troubles me about the discourse over Dred Scott: Why don’t more scholars talk about Justice Curtis’s dissent? 1/6 newyorker.com/news/our-colum… Many argue that Taney’s racist opinion in Dred Scott was faithful to the “original intent” of the Founders, but Curtis’s dissent utterly obliterated the majority opinion as a matter of original meaning. 2/6

Short 🧵! A great unanswered question in constitutional law is whether the President must enforce a statute s/he believes to be unconstitutional. Many think not because the Constitution is also a law that must be faithfully executed. But I’m not sure that’s the right answer. 1/3

https://twitter.com/jannwolfe/status/1401937409110118401

After all, the President gets a suspensive veto only. Congress can override it. If the President vetos a law on constitutional grounds and Congress overrides it, can the President really refuse to enforce it anyway? Wouldn’t that turn the suspensive veto into an absolute one? 2/3

The author says that Chief Justice Marshall believed in living constitutionalism because he said in McCulloch that the Constitution was "intended...to be adapted to the various crises of human affairs." This is a common misinterpretation. A thread! 1/7 newrepublic.com/article/161162… First, context. Marshall is interpreting the necessary and proper clause: does it permit only means "absolutely" necessary, or merely convenient? Thus he says, famously, we must remember it is a constitution we are expounding. He meant that if the N&P clause were read narrowly 2/

This morning, I filed a petition for special action in the Supreme Court of Arizona on behalf of 26 small business owners whose bars have been shut down by Governor Ducey’s executive orders. I will link to my briefing for anyone to use. 1/10 This case is based on state, not federal, constitutional law claims, but those claims—violations of the nondelegation doctrine, the state’s privileges or immunities clause, and, relatedly, due process—are broadly applicable. 2/

This @nytimes review is nuts. I haven't read Ellis's book (yet), and can't be sure what he says. But the notion that Madison believed in a "living Constitution" is absolutely belied by the evidence. Just consider two statements from Madison, one in 1790 and another in 1826. 1/5

https://twitter.com/andreaketchum/status/1059417297620733954

In response to Jefferson's "the earth belongs to the living" letter, Madison responded that the Constitution is an improvement that forms a "debt against the living," which can only be discharged "by a proportionate obedience to the will of the authors of the improvement." 2/5