The Three Whisky Happy Hour: Emergency Edition, with John Eastman

Lots of people didn't get the memo that the 3WHH is on hiatus for the month of July as we revamp the show's format and lineup, but since I don't want loyal listeners to go into painful withdrawals, I am offering this emergency stopgap edition, with just me and a frequently-requested guest, John Eastman.

If you go only by the mainstream media coverage of the Supreme Court, you might think that the 6 - 3 decision against President Trump's executive order that attempted to curtail birthright citizenship under the emanations and penumbras of 14th Amendment was a serious setback. But discerning readers recognize that on the core constitutional question of whether birthright citizenship is anchored in the 14th Amendment, the vote was actually 5 to 4, since Justice Kavanaugh agreed with the other three dissenters that the 14th Amendment does not establish birthright citizenship, and he voted to strike down Trump's executive order because he thought it failed on statutory grounds.

Statutes, of course, can be changed. And 5 - 4 Supreme Court decisions indicate that the matter is not decisively settled. Keep in mind that Roe v. Wade was a 7 - 2 decision, but the shoddiness of the reasoning in Roe became so apparent over time that it was indeed overturned.  Likewise this may occur on birthright citizenship. It is most definitely not over. Consider that even as recently a decade ago no one thought a constitutional challenge to birthright citizenship could make it to the Supreme Court, let along get four votes. Many commentators thought Trump might lose this case 8 - 1, or perhaps unanimously. 

If there is one person above all who deserves credit for bringing this moment about, it is John Eastman. You may have heard of him. He's been in the news a bit the last few years. (Full disclosure, as the saying goes—Eastman and I were classmates, and for a time housemates—in graduate school back in the 1980s.)

About 30 years ago, Eastman began writing a series of law review and other academic articles attacking the supposedly secure foundations of birthright citizenship. His argument seemed exotic at the time, and was summarily dismissed. And yet in recent years more and more eminent constitutional scholars began to come around and endorse his critique of the accepted view, which as I say now commands four votes on the Supreme Court.

In our conversation here we review the course of this unfolding rethinking that has brought us to this moment, and we also take up what might be next, as Eastman has his eye on a sweeping revision of another important and highly consequential constitutional provision that nearly everyone ignores. If he can repeat the story arc of the birthright citizenship issue, it might lead to one of the most significant reforms of American government in decades.

To find out that this sequel is, though, you'll just have to listen.