In a research brief published soon after President Trump signed his executive order denying birthright citizenship to the children of illegal aliens and temporary visitors, I made a prediction:
D]espite the imaginative arguments some originalists have put forward in defense of Trump’s order, my expectation is that when the case eventually reaches the U.S. Supreme Court, the court will find that it violates the 14th Amendment.
It turns out I was right. In a decision released today in Trump v. Barbara, a 6/3 majority held that “Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.”
In the research brief cited above, I noted that
even among originalists, who are united in their belief that constitutional provisions should be interpreted to mean what they meant at the time they were ratified, there is disagreement about the constitutionality of Trump’s order.
I provided many examples of analysis by originalists on both sides of the issue in that research brief and in a subsequent blogpost. Given the quality of that analysis, it came as no surprise to find that the originalists on the court were divided too. Justices Barrett and Kavanaugh joined Chief Justice Roberts’ opinion for the majority, while Justices Alito, Gorsuch, and Thomas all wrote dissents.
There are couple of lessons policy-makers should learn from this decision. The first is to think carefully before constitutionalizing a policy decision that could be implemented by a statute alone. Two years before the ratification of the 14th Amendment, Congress passed the Civil Rights Act of 1866 which stated that “all persons born in the United States and not subject to any foreign power … are hereby declared to be citizens of the United States.” If Congress had left it at that, we might still have ended up arguing about whether the children of illegal aliens or temporary visitors are “subject to any foreign power,” and it might still have fallen to the Supreme Court to decide the question. The outcome, however, wouldn’t mattered as much because statutes are relatively easy to amend. Indeed, if birthright citizenship had remained a statutory matter, Trump might never have issued his order, and there might never have been a lawsuit. Instead, those who wanted to restrict birthright citizenship to the children of citizens and permanent residents could have lobbied Congress to amend the relevant federal statutes, and given that the Republicans controlled both houses, and given that Trump would undoubtedly have supported and signed the bill, they would probably have succeeded. Instead, because the birthright citizenship clause is part of the 14th Amendment, those people now have little choice but to undertake the onerous process of amending the Constitution under Art. V.
A second lesson policy-makers should learn from Trump v. Barbara is the importance of clear and unambiguous drafting. The Trump v. Barbara majority interprets “subject to the jurisdiction thereof” as used in the 14th Amendment to mean what it has always meant in general usage, i.e., “subject to the judicial authority thereof” or “subject to the laws thereof.” The dissenters argue that in the context of the citizenship clause, it means something else, e.g., “subject to the exclusive jurisdiction thereof,” “entitled to the protection thereof,” or even “domiciled within.” They present a good deal of historical evidence to support those interpretations. The problem is that, while Congress could have said any of those things in so many words, it didn’t. As noted above, it is much harder to amend a constitution than a statute, which means those who are responsible for drafting constitutional provisions need to be as clear and unambiguous as they possibly can.
Which brings me to a final point. During her confirmation hearing, Justice Kagan famously said, “We’re all originalists.” This decision suggests she was right. Roberts’ opinion for the court and the concurrences and dissents are all framed as efforts to discover and apply the original meaning of the citizenship clause. They nevertheless come to different conclusions, and part of the reason they did is that some took a “plain meaning” approach to the text whereas others focused its history and context. This isn’t at all surprising. There’s an inherent tension between plain-meaning originalism and history-and-context originalism. It will be interesting to see how the court resolves that tension in future sessions.
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