Julian SanchezThe hacks working furiously to rationalize Trump’s desire to end birthright citizenship serve very much the same function in law that the Discovery Institute does in biology: To create the illusion of a scholarly debate that in fact does not exist.
There is no *fundamental* debate in the field of biology about the fact of evolution (though plenty about the details, of course), and hasn’t been for many decades. The chaff churned out by the Discovery Institute & similar propaganda shops is regarded as shoddy & unserious by 99.9% of the field.
Their function is not actually to persuade other biologists or make a good faith contribution to scholarship. It is to gin up a Potemkin simulacrum of controversy for the benefit of political actors & laymen who can’t tell it’s kabuki, to create the impression there’s still a contested question.
This was put to use by right-wing legislators in the 90s who hoped to sneak religious proselytizing into public science classrooms under the guise of “teaching the controversy” when, in fact, there was no controversy.
What Discovery realized was that you really only need a minuscule handful of credentialed fundamentalists to create this illusion of controversy, even if biologists as a whole are virtually unanimous.
Birthright citizenship is a rerun of that playbook. You only need maybe half a dozen credentialed partisan ideologues like Wurman cranking out hasty politically useful journal articles, which student editors who don’t know any better are only too happy to publish.
It seems clear to me that the overhwelming majority of legal scholars who actually scrutinize these arguments find them not just unpersuasive but, like Discovery’s work, fundamentally shoddy, unserious, & driven by a desire to reach a particular conclusion. But that doesn’t matter.
What matters is that they’ve created the illusion that there isn’t a strong consensus after all, which creates a permission structure for partisan justices to claim that the politically desired anti-Constitutional result is equally intellectually respectable, since the topic is now “hotly debated.”