Heart & Soul Conversation #22……Garden Tuesday

A law professor flagged a legal theory from a Trump amicus brief that he says would let foreigners bring enslaved people into the U.S.

During an interview on the Legal AF podcast, legal expert Paul Gowder talked about American legal scholar Richard Epstein and an argument he made in an amicus brief filed in Trump's birthright citizenship case. Earlier this month, the Supreme Court ruled against Trump's bid to end birthright citizenship, and Epstein filed the brief on Trump's side.

Gowder explained that Epstein argued that the phrases "subject to the jurisdiction" and "within the jurisdiction" have different meanings in the Constitution. Epstein observed that the phrase "subject to the jurisdiction" is used in the 14th Amendment, which guarantees birthright citizenship, and the 13th Amendment, which abolished slavery.

Epstein interprets that to mean that those two amendments can only apply to people who are members of society in the United States, or "subject" to the jurisdiction, not simply within it, according to Gowder.

"Richard Epstein wants to read 'subject to the jurisdiction' to mean like in more control of the U.S., basically a member of the U.S. community, not somebody who's just passing through," Gowder explained.

That would allow Epstein to argue, "We can read the 14th Amendment to exclude tourists and to exclude undocumented people," Gowder said. But with slavery and the 13th Amendment, "he just, like, embraces the notion that therefore the 13th Amendment must mean that if somebody from a country that has legal slavery comes to the U.S. as a tourist, they can bring their slaves with them," Gowder explained.

"Like, what?" Gowder said in dismay as he described Epstein's idea as "slave tourism."

Gowder stressed that Epstein isn't a fringe legal scholar and described him as a "very, very famous NYU law professor, worshipped by the [Federalist Society], like basically, for a certain kind of right-wing thinker, people on the right often think he's like the greatest legal mind of his generation."

However, for Gowder, Epstein is "completely nuts."