What does "academic freedom" protect?

[ciao_yall]

I'm not sure I understand. He's a law professor writing an article about a legal question. In terms of questions of academic freedom, why would it matter where he publishes it? Academic freedom applies whether he's writing in an OP-ED, a professional journal or on twitter.

My scan of the article must have missed the field of the writer or the specific topic.  IF the topic is related to the field, then yes, academic freedom should apply. 
(The question competence failure, may belong to Newsweek.  IF they didnt review the accuracy of the submission (peer review), then perhaps it is their problem!)

The authors of the point/counterpoint are both esteemed law profs.

From Newsweek:

The essay—by Chapman University law professor John C. Eastman, also a Claremont Institute denizen, and headlined "Some Questions for Kamala Harris About Eligibility" was rebutted by Eugene Volokh in the same issue.To me it just seemed like two law profs doing what law profs do.

My reading and listening seems to support the "settled law" position of Volokh, but it also is possible there is no such thing as settled law.

Back when The Fairness Doctrine was still a thing, my econ professor talked to us about how the problem was, on the news, something would be said. Then they had to dig up some loonytune to give an "alternative perspective."

This sounds like that sort of thing. Digging up some loonytune just to fill time and space.

[jimbogumbo]

If anybody runs my last post thru Turnitin it will be flagged as plagiarism. The first sentence after From Newsweek: was a quote for a bit; I added the part about rebutted by Eugene Volokh, which was supposed to be separated from the rest.

Both writers really are esteemed in some sense, both Law Professors, both prone to inflammatory prose.

[financeguy]

Anyone who says that anything containing the word "constitutional" is either objectively verifiable (beyond simple recitation of the text itself) or "settled" must be speaking of another constitution on another planet subjected to a totally different academic environment.

Nearly everything I have ever heard that addresses the constitutionality of an issue is quite unsettled. There are so many reasons for this. Is the person an originalist or someone with the "living document" viewpoint? Are they contesting the meaning of a word or phrase at the time? If so, is it based on the writing of a founding father that sheds light on the text? Is that contradicted by someone else?

Even pointing out that the argument is likely to be ignored isn't proof of anything since many legal scholars frequently make the point that the constitutionality of an issue is often not taken into account, taken into account incorrectly, intentionally thwarted, etc.

It's not at all inconsistent to say that constitutionally Harris is ineligible while recognizing this will not actually be addressed, let alone upheld by any court.

[Caracal]

Anyone who says that anything containing the word "constitutional" is either objectively verifiable (beyond simple recitation of the text itself) or "settled" must be speaking of another constitution on another planet subjected to a totally different academic environment.

Nearly everything I have ever heard that addresses the constitutionality of an issue is quite unsettled. There are so many reasons for this. Is the person an originalist or someone with the "living document" viewpoint? Are they contesting the meaning of a word or phrase at the time? If so, is it based on the writing of a founding father that sheds light on the text? Is that contradicted by someone else?

Well, it is an an example of why Constitutional Originalism makes no sense in a historical context. All we know about why the phrase ended up in the constitution is that it seems to have come from Hamilton, but there's no recorded debate about it. Probably the simplest explanation is that it was just used because it was a relativelycommon English legal phrase. But, there was no set definition of what it meant in English Common Law, either. During the 18th ideas of citizenship in England were changing and England was moving closer to an idea of birthright citizenship, so you're actually trying to fix this phrase's meaning at a period when the meaning of all the terms was evolving.

Why would the founders have used this unclear term without defining it? They were busy trying to write the rest of the constitution in a couple of months, it was a compromise document and nobody seems to have cared too much about this particular part of it, perhaps because it didn't apply to any of them or their children since people who were citizens at the creation were eligible.

They also lacked consensus on exactly what kind of document they were writing, how it was supposed to be interpreted and who was supposed to interpret it. All of which makes these sorts of attempts to decide what some phrase means, completely pointless.

[jimbogumbo]

Anyone who says that anything containing the word "constitutional" is either objectively verifiable (beyond simple recitation of the text itself) or "settled" must be speaking of another constitution on another planet subjected to a totally different academic environment.

Nearly everything I have ever heard that addresses the constitutionality of an issue is quite unsettled. There are so many reasons for this. Is the person an originalist or someone with the "living document" viewpoint? Are they contesting the meaning of a word or phrase at the time? If so, is it based on the writing of a founding father that sheds light on the text? Is that contradicted by someone else?

Even pointing out that the argument is likely to be ignored isn't proof of anything since many legal scholars frequently make the point that the constitutionality of an issue is often not taken into account, taken into account incorrectly, intentionally thwarted, etc.

It's not at all inconsistent to say that constitutionally Harris is ineligible while recognizing this will not actually be addressed, let alone upheld by any court.

The term settled law is common usage in the legal professions. This issue would really seem to be a case pf settled law. No challenges since 1898 have been heard (have there been any?) by the Supreme Court. 120 years would surely meet any criteria for how the term settled is used.

[kaysixteen]

Indeed, if SCOTUS were ever to revisit the birthright citizenship question, at least in terms of those born here to parents who were not objectively illegal immigrants (and probably that too) it would seriously question the overall validity of the 'stare decisis' theory of SCOTUS jurisprudence, to the point where one would more or less not be able to count on the long-term applicability of any SCOTUS ruling, and thus severely reduce the import and authority of the court itself.

That said, although Harris is certainly constitutionally eligible to become veep, it is probably long past the time to amend the constitution to specifically allow naturalized citizens to seek this office.   One wonders why anyone in the 21st century would oppose such an amendment.

[Caracal]

Indeed, if SCOTUS were ever to revisit the birthright citizenship question, at least in terms of those born here to parents who were not objectively illegal immigrants (and probably that too) it would seriously question the overall validity of the 'stare decisis' theory of SCOTUS jurisprudence, to the point where one would more or less not be able to count on the long-term applicability of any SCOTUS ruling, and thus severely reduce the import and authority of the court itself.

That said, although Harris is certainly constitutionally eligible to become veep, it is probably long past the time to amend the constitution to specifically allow naturalized citizens to seek this office.   One wonders why anyone in the 21st century would oppose such an amendment.

I can think of a few reasons, none of them very pleasant.

[Caracal]

The term settled law is common usage in the legal professions. This issue would really seem to be a case pf settled law. No challenges since 1898 have been heard (have there been any?) by the Supreme Court.

No, there never has been. The 1898 case mentioned the clause, but was actually about citizenship, not presidential eligibility. As I understand it, there's a pretty good case to be made that the Supreme Court actually doesn't have jurisdiction and that the House of Representatives is in charge of determining qualifications of presidents.

[jimbogumbo]

The term settled law is common usage in the legal professions. This issue would really seem to be a case pf settled law. No challenges since 1898 have been heard (have there been any?) by the Supreme Court.

No, there never has been. The 1898 case mentioned the clause, but was actually about citizenship, not presidential eligibility. As I understand it, there's a pretty good case to be made that the Supreme Court actually doesn't have jurisdiction and that the House of Representatives is in charge of determining qualifications of presidents.

How on earth is citizenship NOT about eligibility? It is in fact a requirement to be a natural born citizen.

[Caracal]

The term settled law is common usage in the legal professions. This issue would really seem to be a case pf settled law. No challenges since 1898 have been heard (have there been any?) by the Supreme Court.

No, there never has been. The 1898 case mentioned the clause, but was actually about citizenship, not presidential eligibility. As I understand it, there's a pretty good case to be made that the Supreme Court actually doesn't have jurisdiction and that the House of Representatives is in charge of determining qualifications of presidents.

How on earth is citizenship NOT about eligibility? It is in fact a requirement to be a natural born citizen.

No court has ruled on the question of eligibility for the presidency based on birth. The claim being made is that "Natural Born Citizen" citizen means something different from "US citizen at birth." I think that's a stupid argument, but there you go.

[jimbogumbo]

The term settled law is common usage in the legal professions. This issue would really seem to be a case pf settled law. No challenges since 1898 have been heard (have there been any?) by the Supreme Court.

No, there never has been. The 1898 case mentioned the clause, but was actually about citizenship, not presidential eligibility. As I understand it, there's a pretty good case to be made that the Supreme Court actually doesn't have jurisdiction and that the House of Representatives is in charge of determining qualifications of presidents.

How on earth is citizenship NOT about eligibility? It is in fact a requirement to be a natural born citizen.

No court has ruled on the question of eligibility for the presidency based on birth. The claim being made is that "Natural Born Citizen" citizen means something different from "US citizen at birth." I think that's a stupid argument, but there you go.

Heh. Some of us believe without stupid arguments life would have no meaning (looking right at my fellow math profs, but channeling my spouse).

I had read this, which of course speaks to Cruz and McCain. Nits need to be picked in law.

https://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/

[Puget]

If a faculty member, in a particular field, uses their position to knowingly mislead the public on a topic related to their expertise... is that "academic freedom?"

IHE: Boulder Won't Cancel Scholar Who Wrote Harris Op-Ed

Ah yes, the much resented "visiting conservative scholar" position foisted on CU Boulder by Republican regents who think Boulder is full of commies. The main qualification for this person is that they be conservative, not that they be a good scholar. You get what you ask for I guess.

[Hibush]

If a faculty member, in a particular field, uses their position to knowingly mislead the public on a topic related to their expertise... is that "academic freedom?"

IHE: Boulder Won't Cancel Scholar Who Wrote Harris Op-Ed

Ah yes, the much resented "visiting conservative scholar" position foisted on CU Boulder by Republican regents who think Boulder is full of commies. The main qualification for this person is that they be conservative, not that they be a good scholar. You get what you ask for I guess.

So if Boulder is full of commies, the best course of action from their perspective is to let the designated conservative spout off to his heart's content and then laugh publicly at the absurdity of those spouts.

Everyone's academic freedom is protected and the system of critical thinking works as intended.

[marshwiggle]

If a faculty member, in a particular field, uses their position to knowingly mislead the public on a topic related to their expertise... is that "academic freedom?"

IHE: Boulder Won't Cancel Scholar Who Wrote Harris Op-Ed

Ah yes, the much resented "visiting conservative scholar" position foisted on CU Boulder by Republican regents who think Boulder is full of commies. The main qualification for this person is that they be conservative, not that they be a good scholar. You get what you ask for I guess.

So if Boulder is full of commies, the best course of action from their perspective is to let the designated conservative spout off to his heart's content and then laugh publicly at the absurdity of those spouts.

Everyone's academic freedom is protected and the system of critical thinking works as intended.

If they laugh after he's finished, then that's a vast improvement over the de-platforming, shouting, horn-blowing, etc. that has become all too common to prevent people even being able to be heard in the first place.

[Wahoo Redux]

It's "socialists" now.  "Commies" is passe.