I’ve mentioned before, I believe, that I earned my JD at Chapman University back in 2005. In hindsight, it turned out to be an interesting time to be there. John Eastman, as the title states, was my constitutional law professor. Hugh Hewitt taught (and I believe still does teach) con law at Chapman - my classmates that took his class said he basically used the morning session as show prep for his radio show. Tim Canova was also on the faculty while I was there (I took an international business law class with him, I think it was). Tom Campbell and Ken Starr were visiting professors while I roamed the halls - though I didn’t have any interactions with them. Ah, memories…

I got to know Eastman pretty well. Not only was he my con law professor, but I was a student member of the Federalist Society, even served as secretary of the Chapman club, and Eastman was the faculty advisor. I also ended up taking a class/clinical class with him that was a joint project with the Claremont Institute (worked on a draft of an amicus brief for a case seeking cert with the Supreme Court, which I’ll discuss later, probably). Eastman was (and is) incredibly smart, and kind of quirky, which combined for a unique sort of charisma.

It’s been a long time since I’ve run in those circles. I joked once that some time around 2007/2008 I fell asleep one night as a center-right libertarian and woke up as a center-left libertarian without (m)any of my views changing. To be fair, I knew that I wasn’t long for that orbit of politically motivated lawyers when I mentioned to a law school colleague that I was more Hamiltonian than Jeffersonian in my leanings and the reaction was, to use a phrase of the era, “shock and awe.”

So, with all of that out of the way, yeah, I’m not surprised that Eastman ended up where he did. Even back in the early aughts he had some pretty far out there views on the law and the constitution in particular.

He is, for example, mostly opposed to birthright citizenship - he holds the position that the 14th Amendment doesn’t (or shouldn’t) apply to everyone born in the US, based on the notion that someone born in the US to foreign parent doesn’t have a natural loyalty to the US. Now, I’m as confused now as I was when I was in law school as to how an infant could have loyalty to anything that wasn’t a breast. He has repeatedly tried to draw a distinction between the holding of US vs Wong Kim Ark and the children of undocumented immigrants by arguing that Wong’s parents were in the country legally but simply denied the ability to be naturalized as opposed to present day undocumented immigrants. Though given his recent “thoughts” on Kamala Harris’ eligibility to be Vice President, he may have hardened his position even further.

That’s not his most outlandish position either. He is, for example, not particularly fond of the direct election of US Senators. Eastman has always held what you might call a pre-industrial view of how the constitutional system should work. I suspect, if you were to ask him in a candid setting, he would suggest that state legislatures should just appoint electors rather than having people vote for them (and ostensibly the president). The heart of this general position that he has is that (to use a phrase that has been stuck in my head since 2003) “the states qua states should matter.” This is essentially a pre-Civil War take - that the constitution is a contract and that there are three parties: the federal government, the “people”, and the states. And in a bit of fairness to Eastman, this was the early view of the constitution and where the notion of “states rights” came from. It is not, however, the current view of most constitutional scholars (including the nine most important and their various clerks).

He also is a proponent of the Lochner Era (a Supreme Court decision that found the right to contract protected by the 14th Amendment and that the right overruled several state and federal laws regarding things like minimum wage and limits to working hours, among a whole host of other things). This falls into the “natural rights” line of thinking. There is, to paraphrase Inigo Montoya, too much to explain here. But it is basically a proto-libertarian legal view that there are some natural rights granted by God that no government can interfere with. If you really want to read up on it, here’s a law review article that Eastman wrote about the privileges and immunities clause and how it was intended to protect natural rights.

That Eastman would argue that the state legislatures should throw out electors chosen by voters in favor of electors appointed by the legislature is not surprising, as he tends to believe that “the states qua states should matter.” That he would argue that the Vice President could unilaterally reject slates of electors is also not surprising. And that he would cite a pre-12th Amendment example as to why, is not surprising. Again, in a candid situation, I wouldn’t be surprised if Eastman would admit that we shouldn’t even really have presidential elections because in his view the president should represent the states rather than the people (that’s also the “reason” if the election gets thrown to the House, the vote is taken by state not by individual representative).

The only aspect of all of this that really surprises me is that Eastman would go all in for Trump. I would not have expected Eastman, when I knew him, to go to bat for someone as vulgar, as crass, as Trump. But then again, I thought that about a lot of people that I knew back then, and in 2016 and 2020 I saw a few too many FB posts from them hemming and hawing their way to explaining why they had no choice but to vote for Trump. These last couple of decades have broken a lot of brains, some more than others. I don’t know if that’s the case for Eastman, I haven’t seen him in years. Despite his very originalist views on constitutional law, don’t be fooled into thinking he’s just some hack. He’s very smart but wrong on a lot of stuff (I didn’t mention his views on church and state), that’s usually a bad combination.