A Once-Fringe Nazi Theory Takes the Spotlight at The New York Times

The Times' Ad Hominem by Proxy Argument

Possible article in The New York Times:

For more than a century, most scientists and researchers have agreed that smoking has nothing to do with lung cancer. But now, the fringe theory that smoking is bad for your health is being promoted by an obscure German dictator named Adolf Hitler -- the same dictator who would later preside over the murder of 6 million Jews.

Maybe liberals have been doing this forever and I only recently noticed, but there's been a rash of supposedly serious news outlets trying to discredit conservative arguments by attributing the argument to the most embarrassing right-winger they can find.

Today's Weakest Link trick comes from the Times' Abbie VanSickle, who claims John Eastman is the originator of the idea that the 14th Amendment is about freed slaves, not illegal aliens. In case you're not sure what to think of Eastman, VanSickle quickly identifies him as "an obscure California law professor ... [who provided] Mr. Trump with legal arguments he used to try to overturn the results of the 2020 presidential election.”

Further proving that this was Eastman’s idea all along, there's an 8-by-10-inch photo of him accompanying VanSickle's story, titled, "At Supreme Court, a Once-Fringe Birthright Citizenship Theory Takes the Spotlight."

Upon publication of VanSickle's article, every journalist on TV became an expert on the issue, regurgitating her preposterous claim that Eastman is the brains behind the idea -- oh, and by the way, this is the guy who tried to overturn the 2020 election.

So I guess you don't have to know anything more!

I'm not comparing Eastman to Hitler, except in the sense that Hitler was not the first person to come up with the idea that smoking is bad for your health -- just as Eastman is not the first person to argue that the 14th Amendment has nothing to do with anchor babies. Why falsely identify him as the originator of that view (which happens to be correct) unless you're trying to discredit the argument without ever having to explain it, much less refute it?

This is like ad hominem by proxy. You find someone who's easy to attack, then designate that person as the sole purveyor of an argument you don't like.

But just to be extra sure that Eastman is the inventor of the "wacky idea" that the 14th Amendment has nothing to do with illegal immigrants, VanSickle checked with Eastman himself. And guess what? He's delighted to claim full credit. (So in addition to being "obscure," Eastman is also what's known as "a delusional narcissist.")

E.g.:

-- "Mr. Eastman said that the president did not directly consult him about the birthright citizenship order but that several of his friends ... 'knew that my scholarship was kind of at the forefront of this.’”

-- "Mr. Eastman said Mr. Trump was 'likely' referring to him [when he cited many lawyers who agreed with him on anchor babies]."

Is this really how the Times determines authorship? Ask the person claiming credit: Tell the truth. Is this your idea? (Glad they weren't on the Claudine Gay plagiarism investigation.)

According to VanSickle, Eastman first made the argument in a 2004 amicus brief to the Supreme Court. The case had nothing to do with anchor babies, and Eastman's brief was not read by the court -- much less by Donald Trump -- but let's take 2004 as our marker.

Here are just a few people whose scholarship on the issue far preceded Eastman's.

In 1985, Yale professors Peter Schuck and Rogers Smith -- no slouches -- published a book, "Citizenship Without Consent: Illegal Aliens in the American Policy,” making this inarguable point:

"The parents of [illegals] are, by definition, individuals whose presence within the jurisdiction of the United States is prohibited by law and to whom the society has explicitly and self-consciously decided to deny membership. And if the society has refused to consent to their membership, it can hardly be said to have consented to that of their children who happen to be born while their parents are here in violation of American law."

Schuck and Smith simply take it for granted that anchor babies are not mandated by the 14th Amendment. They write that the debates "establish that the framers of the Citizenship Clause had no intention of establishing a universal rule of birthright citizenship." (In VanSickle's telling, this description of the debates doesn't appear in the Yale professors’ 1985 book: It's just a "claim" made by Eastman.)

In the summer of 1996, Dan Stein and John Bauer published an article in the Stanford Law & Policy Review, also arguing that the Constitution does not mandate anchor babies: “Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants?”

Then, in 2003, the late Richard Posner, 7th Circuit Appellate judge, wrote a concurring opinion in Oforji v. Ashcroft for the express purpose of demanding that Congress stop “awarding citizenship to everyone born in the United States.” He said he doubted that this was the meaning of the 14th Amendment and pleaded with Congress to pass a law and “put an end to the nonsense.”

Say you're a reporter for the Newspaper of Record, trying to fairly summarize the debate over the 14th Amendment and anchor babies. Do you cite Posner, the most-cited federal judge, regularly called a "genius" by his peers -- including the late Justice Antonin Scalia -- and one of the 100 judges listed in "Great American Judges: An Encyclopedia"? Two Yale professors? A Stanford legal journal?

Or do you cite a disbarred, debunked "obscure California law professor" who helped Trump try to overturn the 2020 election?

The choice is obvious. You cite the kook.

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