Richard Epstein, the NYU Law professor infamous for his grossly inaccurate COVID-19 death toll prediction, is now casting his unqualified opinions into the realm of constitutional law. Despite his previous errors in public health forecasting, where he dramatically underestimated the pandemic’s severity, Epstein has confidently stepped into the legal debate on birthright citizenship—a field far from his expertise.

Years after his COVID missteps, Epstein praised the demise of Chevron deference, advocating that judges rather than scientists should interpret technical and environmental regulations. His lack of humility remains intact as he now supports an interpretation of the Fourteenth Amendment that aligns with one of Donald Trump's controversial legal theories. Despite having no substantial background in historical jurisprudence, Epstein has submitted an amicus brief to the Supreme Court contesting the established understanding of birthright citizenship.

The legal community has raised eyebrows at Epstein's latest endeavor. Critics argue that his brief misinterprets the phrase "subject to the jurisdiction thereof" in the Citizenship Clause to exclude children of immigrants from citizenship. This interpretation contradicts longstanding precedents and scholarly interpretations. Anthony Michael Kreis, a constitutional history expert, points out Epstein’s disregard for the rich history of common law predating the American legal system, which generally recognized the citizenship of all born within a realm’s borders, regardless of parental nationality.

Legal scholars Evan Bernick and Paul Gowder, alongside Kreis, have criticized Epstein's approach in a recent Cornell Law Review article. They denounce the "originalist" arguments against birthright citizenship as revisionist and unsupported by historical evidence or constitutional text. They further argue that Epstein's allegiance-based citizenship theory fails to address the core intent of the Fourteenth Amendment—to overturn the Dred Scott decision and ensure citizenship for all born on U.S. soil.

Epstein’s brief even goes as far as to challenge the 1898 Supreme Court ruling in Wong Kim Ark, which explicitly affirmed birthright citizenship. This stance reflects a broader trend of reinterpretation and historical revisionism reminiscent of the Dunning School's influence on Reconstruction-era history.

Epstein’s leap from tort law to epidemiology and now to constitutional law showcases a concerning pattern of intellectual overreach. His readiness to opine on matters well outside his areas of expertise without engaging deeply with substantive research or expert consensus continues to stir controversy and debate within both the legal community and the broader public discourse.