Constitutional Law

Dr. Eastman is also the founding director of the Center for Constitutional Jurisprudence, a public interest law firm on whose behalf he has participated as amicus curiae in several Supreme Court cases related to the topic of the Symposium at which this Article was presented, including Hamdi v Rumsfeld, 542 US 507 (2004), and Arizona v United States, 132 S Ct 2492 (2012). He has testified before Congress (Oversight Hearing on Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty before the Subcommittee on Immigration, Border Security, and Claims of the House Committee on the Judiciary, 109th Cong, 1st Sess 57 (2005)), the Arizona Legislature (both the Judiciary and Appropriations Committees on the Birthright Citizenship State Compact bill, Feb 7 and 22, 2011, respectively), and the California Legislature (Assembly Republican Task Force on Illegal Immigration, Oct 11, 2006), on matters related to the subject of this Symposium. The congressional testimony was subsequently published in the Texas Review of Law & Politics and the University of Richmond Law Review. John C. Eastman, Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11, 12 Tex Rev L & Polit 167 (2007); John C. Eastman, Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11, 42 U Richmond L Rev 955 (2008). Other related publications include: John C. Eastman, The States Enter the Illegal Immigration Fray, in Carissa Hessick and Jack Chin, eds, Illegals in the Backyard: State and Local Regulation of Immigration Policy (NYU forthcoming 2013); John C. Eastman, Papers, Please: Does the Constitution Permit the States a Role in Immigration Enforcement?, 35 Harv J L & Pub Pol 1 (2012); John Eastman and Ediberto Román, Debate on Birthright Citizenship, 6 FIU L Rev 293 (2011); John C. Eastman and Karen J. Lugo, Arizona’s Immigration Storm, 12 Engage 68 (June 2011). Portions of this Article have been drawn from some of those prior publications.

My thanks to Gary Lawson, Larry Solum, and Sherif Girgis for comments on fragments of early drafts. (Do not blame them for what I say.)Akhil Amar is an old and dear friend. We were roommates and constitutional law sparring partners as students at Yale Law School in the early 1980s. We disagreed wildly and occasionally vehemently—yet somehow still cheerfully—over many things. We continue to disagree over a great many things today—including (as this review demonstrates) nearly everything in his recent book. As noted below, I have reviewed two of Akhil’s other books highly favorably. See note 3. I hope he will forgive me this unfavorable— but still cheerful—review, which I offer in the same spirit as our dorm-room screaming matches thirty years ago. (You told me I could let you have it, if I thought you deserved it, Akhil. Well, here it is!)

I received insightful feedback on this project from Mitchell Berman, Laura Ferry, Kim Forde-Mazrui, Brandon Garrett, Jacob Gersen, Julius Getman, Michael Gilbert, Risa Goluboff, Pratheepan Gulasekaram, Aziz Huq, Jennifer Laurin, Sanford Levinson, Charles Mackel, John Manning, Martha Minow, Melissa Murray, Lucas Powe, David Pozen, Saikrishna Prakash, Richard Primus, David Rabban, Benjamin Sachs, Richard Schragger, Jordan Steiker, Matthew Stephenson, and faculty workshop participants at the University of Texas. I also received exemplary research assistance from Patrick Leahy, Trevor Lovell, Liam McElhiney, Jim Powers, and Brian Walsh. I completed various portions of this Article when I was a visiting assistant professor at The University of Chicago Law School during Fall 2012 and a visiting assistant professor at the University of Virginia School of Law during Spring 2013.

For comments, I am grateful to Kristen Boon, Curt Bradley, Stephen Burbank, Cary Coglianese, Bill Ewald, Oona Hathaway, Sophia Lee, Zach Price, Beth Simmons, the editors of the University of Chicago Law Review, and participants at the 2016 Yale-Duke Foreign Relations Law Roundtable, the University of Pennsylvania Law School faculty retreat, and the Seton Hall University School of Law faculty workshop. For assistance with sources, I thank Gabriela Femenia of the Penn Law Library.

I am grateful to Jim Fleming, Andrew Gold, Frank Michelman, and Larry Solum for extremely helpful comments and to Ephraim McDowell for outstanding research assistance.