The Supreme Court has spoken on the question of birthright citizenship. Five justices concluded that the 14^th Amendment guarantees citizenship to virtually everyone born on American soil. Four disagreed. (And yes, I mean four! Justice Kavanaugh agreed with the dissenters that the 14^th Amendment itself does not mandate birthright citizenship for children of temporary visitors or those present in the country illegally.) That is how constitutional law works. Cases are argued, judges decide, and scholars continue debating what the Constitution actually means.

Or at least that is how it used to work.

In the wake of the Court’s decision, some legal academics have insisted that the losing side should not merely be answered but, also, punished. One of the most remarkable examples came from Fordham law professor John Pfaff, who declared that there “MUST be repercussions” for the law professors who argued that the 14^th Amendment does not require universal birthright citizenship. Their work, he claimed, was “parasitic.” They should be “frozen out of academic life until they recant.” After criticism, Pfaff softened his rhetoric slightly but reaffirmed the basic proposition that scholars advancing what he regarded as bad arguments should suffer professional consequences.

Notice what is missing from this demand.

Not evidence of fabrication.

Not plagiarism.

Not academic dishonesty.

Not intentional misquotation of historical sources.

Rather, the offense is having advanced an interpretation of the Constitution that ultimately failed to persuade a majority of the Supreme Court.

That is an astonishing standard.

Consider what the scholars he would have punished actually accomplished. Following on the long-standing work of Claremont Institute scholars like Ed Erler, Thomas West, and me, Professors Ilan Wurman, Richard Epstein, and others persuaded the solicitor general to adopt their arguments. Their scholarship was cited repeatedly in the litigation and by Justice Clarence Thomas in his dissent. They helped frame one of the most significant constitutional debates of our generation. The Supreme Court rejected their position—but by no stretch of the imagination can their work be described as frivolous. It was serious enough to command the attention of the United States government, multiple federal judges, and four members of the Supreme Court.

If that is not legitimate legal scholarship, what is?

Indeed, legal academia has always advanced through controversial minority positions. Oliver Wendell Holmes’s dissents became constitutional orthodoxy decades later. Justice Harlan’s lone dissent in Plessy v. Ferguson eventually prevailed. Indeed, originalism itself spent decades as a minority academic theory before becoming the dominant methodology among conservative jurists—and, increasingly, it is an unavoidable point of engagement even for its critics.

Had today’s academic gatekeepers been in charge during those earlier eras, each of those scholars would have been branded irresponsible until the courts caught up.

The irony runs even deeper.

Legal academics routinely celebrate scholarship that challenges settled precedent. Entire careers have been built urging the overruling of Lochner, Bowers, Roe, Citizens United, Heller, Dobbs, or Trump v. Hawaii. No one suggests that professors advocating those positions should be expelled from polite academic society if they lose. On the contrary, challenging precedent is often celebrated as precisely what serious legal scholarship is supposed to do.

Of course, only one direction of dissent is permissible.

This asymmetry reveals that the issue is not academic quality but ideological conformity.

The history of constitutional law should make everyone nervous about that proposition. Nearly every great constitutional advance began with scholars willing to argue against prevailing consensus. The academy is supposed to be the institution where difficult questions may be explored before they become accepted wisdom—or rejected after full consideration. If controversial constitutional arguments become professionally hazardous merely because they offend current orthodoxies, universities cease to be places of inquiry and become mechanisms for enforcing ideological discipline.

The language of “recantation” is particularly revealing. Recantation belongs to inquisitions, not universities. It evokes Galileo, religious tribunals, and political purges—not law schools dedicated to pursuing truth through reasoned debate. Academic freedom exists precisely because today’s minority view may become tomorrow’s constitutional consensus.

Scholars cannot know in advance which arguments will be vindicated. Their obligation is not to predict which side will ultimately prevail but to make the strongest arguments the historical evidence and legal materials permit.

One need not agree with Wurman’s or my reading of the citizenship clause to recognize the danger of treating our scholarship as morally beyond the pale. In fact, one should be especially protective of scholarship one believes to be mistaken. There is little need for academic freedom if it only protects ideas with which everyone already agrees.

The deeper danger is not to any individual professor. It is to constitutional government itself.

The American constitutional tradition depends upon the continued testing of received wisdom. Every generation reexamines the Constitution’s text, history, and original meaning. Sometimes established doctrine survives that scrutiny. Sometimes it does not. But that process requires scholars willing to challenge orthodoxy without fearing professional excommunication.

The Constitution is not strengthened by declaring difficult questions permanently off limits. Nor is legal scholarship advanced by demanding ideological conformity from those who disagree.

If legal academics genuinely believe that the birthright citizenship arguments are historically unsound, they possess the ideal remedy. Write better articles. Produce stronger historical evidence. Persuade readers.

That is how scholarship defeats error.

Calls to ostracize dissenters until they “recant” betray a lack of confidence that the better argument can prevail on its own merits.

Universities should be places where constitutional arguments are tested, not where heretics are identified and expelled.