A few years later, Epstein enthusiastically applauded the death of Chevron<\/em><\/a>, allowing judges to use their law school degrees to second-guess scientists and engineers. Truly inspiring to see how much someone can achieve without a sense of irony.<\/p>\n Or shame as the case may be.<\/p>\n In any event, he\u2019s back with a Supreme Court amicus brief backing up one of Donald Trump\u2019s pet constitutional law theories: that the guarantee of birthright citizenship enshrined in the Fourteenth Amendment doesn\u2019t really say that. To be clear, Epstein\u2019s not an expert in this field, but he views his own law degree as a sort of academic \u201cstayed at a Holiday Inn Express last night\u201d allowing him to weigh in and enjoy presumptive credibility without any of the heavy lifting involved in going out and engaging with experts.<\/p>\n NYU Law Prof. Richard Epstein has submitted his amicus brief to the United States Supreme Court on birthright citizenship. He has no expertise in this area and has never done, as far as I know, any substantial work on the history of the common law dating back to early modern and pre-modern England.<\/p>\n \u2014 Anthony Michael Kreis (@anthonymkreis.bsky.social)<\/a> 2026-01-27T18:24:49.571Z<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n The birthright citizenship fight bears a lot of similarities to Trump\u2019s effort to seize Greenland. Both are topics that absolutely no one was talking about until Trump took them up, but now generate a whole industry of sycophantic support. For roughly a century-and-a-half, everyone agreed that the Fourteenth Amendment clearly meant what it said about birthright citizenship. Indeed, Richard Epstein never thought anything about the subject either \u2014 having never written anything even hinting at it throughout his career. But since Trump embraced the subject, Epstein\u2019s written a whole book on it!<\/p>\n Because when you\u2019ve been catastrophically wrong about epidemiology, why not try your hand at constitutional history?<\/p>\n The brief itself<\/a> argues that \u201csubject to the jurisdiction thereof\u201d in the Citizenship Clause should be read to exclude children of immigrants because naturalization laws historically required people to renounce foreign allegiances. Because the children of naturalized citizens got to be citizens, he takes the leap that children must not be citizens unless their parents are fully naturalized. Georgia State law professor Anthony Michael Kreis, an actual constitutional history scholar, explains how English common law \u2014 beyond reading the Cliff\u2019s Notes of Blackstone\u2019s Commentaries \u2014 does not support this conclusion:<\/p>\n Children born in the king\u2019s realm were generally subjects, no matter the parents\u2019 identity. Had Epstein dug back into the common law *before* Blackstone, there are some good examples of this being explained. Instead, he treats parents\u2019 status as somehow inherited by the children. He suggests that Blackstone\u2019s articulation tends to accord with the brief\u2019s argument that \u201cchildren of illegal aliens\u201d are \u201csubject to a foreign power.\u201d That\u2019s entirely unsupported rubbish.<\/p>\n<\/blockquote>\n Kreis, along with professors Evan Bernick and Paul Gowder, anticipated and eviscerated precisely this style of argument in a Cornell Law Review piece<\/a>. Their assessment of academics who suddenly discovered anti-birthright citizenship arguments is appropriately brutal: <\/p>\n Under the guise of \u201coriginalism,\u201d [these scholars] propose an ahistorical, revisionist interpretation of the Fourteenth Amendment\u2019s Citizenship Clause\u2026 Their efforts to radically redefine the historical understanding of citizenship are methodologically flawed and undermine core principles of constitutional law.<\/p>\n<\/blockquote>\n More directly: the arguments are \u201cwildly inconsistent with constitutional text, history, precedent, and unbroken tradition.\u201d<\/p>\n Epstein\u2019s brief argues that Wong Kim Ark<\/em> \u2014 the 1898 Supreme Court case that explicitly held the Citizenship Clause grants birthright citizenship \u2014 was \u201cwrongly decided,\u201d citing Chief Justice Roberts\u2019s lament that gay people can get married now for good measure. Until a few years ago, even the most die-hard conservative legal movement voices would acknowledge it as both settled and obvious<\/a>. Before Trump\u2019s rise, the political debate over birthright citizenship revolved around repealing parts of the Fourteenth Amendment\u2026 now it\u2019s about pretending the Amendment doesn\u2019t really exist at all.<\/p>\n The Kreis, Bernick, Gowder article addresses why this whole \u201callegiance\u201d theory peddled by Epstein wouldn\u2019t even accomplish the fundamental purpose of the Fourteenth Amendment here \u2014 namely, nullifying Dred Scott<\/em>:<\/p>\n Nullifying Dred Scott thus required a theory of citizenship that did not depend upon any initial consent on the part of enslaved people to obey U.S. law\u2026 Enslaved people were kidnapped and forced into the United States; their consent was neither sought nor given.<\/p>\n<\/blockquote>\n In other words, the consent-based citizenship theory Epstein champions would struggle to explain how the very people the Fourteenth Amendment was designed to protect became citizens at all.<\/p>\n This kind of fly-by-night constitutional theorizing springs from a troubling historical precedent: the Dunning School of Reconstruction historiography. And while all conservative, originalist \u201chistory\u201d draws from the Dunning-Kruger School, this Dunning is unrelated. The Dunning School addressed here involves the work of an early 20th century historian named William Archibald Dunning, who churned out a series of racist interpretations of post-Civil War history that got picked up at the convenience of bad faith actors hoping to wish away Reconstruction. <\/p>\n At least that Dunning was trying to be a historian, and not a tourist crashing the discipline hoping to rewrite history with a law degree.<\/p>\n Whenever called upon to speak about artificial intelligence, I cite Christine Lemmer-Webber\u2019s description of LLMs as \u201cmansplaining as a service<\/a>.\u201d It\u2019s going to give the user answers, and if they\u2019re wrong\u2026 they\u2019re going to be very confidently wrong. Maybe we can expand that phrase to cover Epstein\u2019s public work.<\/p>\n The post Torts Professor Who Botched COVID Prediction Suddenly Expert On Birthright Citizenship<\/a> appeared first on Above the Law<\/a>.<\/p>\n Richard Epstein is back and as opinionated as ever. Or maybe, more accurately, \u201cas willing to share his opinion as ever regardless of expertise.\u201d<\/p>\n The NYU Law professor who famously predicted that only 500 Americans would die of COVID-19<\/a> and then adjusted<\/em> his estimate to 5000<\/a> when that didn\u2019t pan out and then just shrugged and stopped talking about it when his amateurish dabbling in public health theory ended up being off by hundreds of thousands more. The intellectual gadfly just flitted on to another subject rather than grapple with being profoundly and embarrassingly wrong. Tragically, the White House reportedly took Epstein\u2019s baseless ramblings at face value<\/a>, delaying a proper response to COVID on the pseudoscientific ramblings of a neophyte.<\/p>\n A few years later, Epstein enthusiastically applauded the death of Chevron<\/em><\/a>, allowing judges to use their law school degrees to second-guess scientists and engineers. Truly inspiring to see how much someone can achieve without a sense of irony.<\/p>\n Or shame as the case may be.<\/p>\n In any event, he\u2019s back with a Supreme Court amicus brief backing up one of Donald Trump\u2019s pet constitutional law theories: that the guarantee of birthright citizenship enshrined in the Fourteenth Amendment doesn\u2019t really say that. To be clear, Epstein\u2019s not an expert in this field, but he views his own law degree as a sort of academic \u201cstayed at a Holiday Inn Express last night\u201d allowing him to weigh in and enjoy presumptive credibility without any of the heavy lifting involved in going out and engaging with experts.<\/p>\n NYU Law Prof. Richard Epstein has submitted his amicus brief to the United States Supreme Court on birthright citizenship. He has no expertise in this area and has never done, as far as I know, any substantial work on the history of the common law dating back to early modern and pre-modern England.<\/p>\n \u2014 Anthony Michael Kreis (@anthonymkreis.bsky.social)<\/a> 2026-01-27T18:24:49.571Z<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n The birthright citizenship fight bears a lot of similarities to Trump\u2019s effort to seize Greenland. Both are topics that absolutely no one was talking about until Trump took them up, but now generate a whole industry of sycophantic support. For roughly a century-and-a-half, everyone agreed that the Fourteenth Amendment clearly meant what it said about birthright citizenship. Indeed, Richard Epstein never thought anything about the subject either \u2014 having never written anything even hinting at it throughout his career. But since Trump embraced the subject, Epstein\u2019s written a whole book on it!<\/p>\n Because when you\u2019ve been catastrophically wrong about epidemiology, why not try your hand at constitutional history?<\/p>\n The brief itself<\/a> argues that \u201csubject to the jurisdiction thereof\u201d in the Citizenship Clause should be read to exclude children of immigrants because naturalization laws historically required people to renounce foreign allegiances. Because the children of naturalized citizens got to be citizens, he takes the leap that children must not be citizens unless their parents are fully naturalized. Georgia State law professor Anthony Michael Kreis, an actual constitutional history scholar, explains how English common law \u2014 beyond reading the Cliff\u2019s Notes of Blackstone\u2019s Commentaries \u2014 does not support this conclusion:<\/p>\n Children born in the king\u2019s realm were generally subjects, no matter the parents\u2019 identity. Had Epstein dug back into the common law *before* Blackstone, there are some good examples of this being explained. Instead, he treats parents\u2019 status as somehow inherited by the children. He suggests that Blackstone\u2019s articulation tends to accord with the brief\u2019s argument that \u201cchildren of illegal aliens\u201d are \u201csubject to a foreign power.\u201d That\u2019s entirely unsupported rubbish.<\/p>\n<\/blockquote>\n Kreis, along with professors Evan Bernick and Paul Gowder, anticipated and eviscerated precisely this style of argument in a Cornell Law Review piece<\/a>. Their assessment of academics who suddenly discovered anti-birthright citizenship arguments is appropriately brutal: <\/p>\n Under the guise of \u201coriginalism,\u201d [these scholars] propose an ahistorical, revisionist interpretation of the Fourteenth Amendment\u2019s Citizenship Clause\u2026 Their efforts to radically redefine the historical understanding of citizenship are methodologically flawed and undermine core principles of constitutional law.<\/p>\n<\/blockquote>\n More directly: the arguments are \u201cwildly inconsistent with constitutional text, history, precedent, and unbroken tradition.\u201d<\/p>\n Epstein\u2019s brief argues that Wong Kim Ark<\/em> \u2014 the 1898 Supreme Court case that explicitly held the Citizenship Clause grants birthright citizenship \u2014 was \u201cwrongly decided,\u201d citing Chief Justice Roberts\u2019s lament that gay people can get married now for good measure. Until a few years ago, even the most die-hard conservative legal movement voices would acknowledge it as both settled and obvious<\/a>. Before Trump\u2019s rise, the political debate over birthright citizenship revolved around repealing parts of the Fourteenth Amendment\u2026 now it\u2019s about pretending the Amendment doesn\u2019t really exist at all.<\/p>\n The Kreis, Bernick, Gowder article addresses why this whole \u201callegiance\u201d theory peddled by Epstein wouldn\u2019t even accomplish the fundamental purpose of the Fourteenth Amendment here \u2014 namely, nullifying Dred Scott<\/em>:<\/p>\n Nullifying Dred Scott thus required a theory of citizenship that did not depend upon any initial consent on the part of enslaved people to obey U.S. law\u2026 Enslaved people were kidnapped and forced into the United States; their consent was neither sought nor given.<\/p>\n<\/blockquote>\n In other words, the consent-based citizenship theory Epstein champions would struggle to explain how the very people the Fourteenth Amendment was designed to protect became citizens at all.<\/p>\n This kind of fly-by-night constitutional theorizing springs from a troubling historical precedent: the Dunning School of Reconstruction historiography. And while all conservative, originalist \u201chistory\u201d draws from the Dunning-Kruger School, this Dunning is unrelated. The Dunning School addressed here involves the work of an early 20th century historian named William Archibald Dunning, who churned out a series of racist interpretations of post-Civil War history that got picked up at the convenience of bad faith actors hoping to wish away Reconstruction. <\/p>\n At least that Dunning was trying to be a historian, and not a tourist crashing the discipline hoping to rewrite history with a law degree.<\/p>\n Whenever called upon to speak about artificial intelligence, I cite Christine Lemmer-Webber\u2019s description of LLMs as \u201cmansplaining as a service<\/a>.\u201d It\u2019s going to give the user answers, and if they\u2019re wrong\u2026 they\u2019re going to be very confidently wrong. Maybe we can expand that phrase to cover Epstein\u2019s public work.<\/p>\n The post Torts Professor Who Botched COVID Prediction Suddenly Expert On Birthright Citizenship<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" Richard Epstein is back and as opinionated as ever. Or maybe, more accurately, \u201cas willing to share his opinion as ever regardless of expertise.\u201d The NYU Law professor who famously predicted that only 500 Americans would die of COVID-19 and then adjusted his estimate to 5000 when that didn\u2019t pan out and then just shrugged […]<\/p>\n","protected":false},"author":3,"featured_media":142760,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-142759","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/01\/Headshot-300x200-ZLDSnR.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/142759","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=142759"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/142759\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/142760"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=142759"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=142759"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=142759"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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\n![\"Headshot\"](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2016\/11\/Headshot-300x200.jpg?resize=189%2C126&ssl=1\" "\\"\\"")
Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n\n
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\nJoe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n