The True Constitution Doesn’t Grant Universal Birthright Citizenship
American legal conservatives are too enamored of abstractions.
At the recent oral argument in perhaps the most consequential case on the Supreme Court’s docket, the birthright citizenship case of Trump v. Barbara, Chief Justice John Roberts made a telling and illustrative quip. In an exchange with Solicitor General John Sauer concerning the problem of birth tourism, the chief justice responded to Sauer’s concern that 8 billion people around the planet are a “plane ride away from having a child who’s a U.S. citizen.”
“It’s a new world,” Roberts said. “It’s the same Constitution.” Roberts had, in so summarily distilling the worldview of the American legal conservative movement, revealed its crucial weaknesses.
Commentators on the establishment right and beyond were quite taken with Roberts’ dedication to an unchanging Constitution and the Court’s enforcement of it. David French of The New York Times wrote on X,
In that one moment you saw the contrast between the MAGA legal philosophy and the legal philosophy of most of the justices. MAGA wants specific results, the justices interpret texts. And when MAGA’s argument contradicts the constitutional text, it’s almost always going to lose — as it has lost time and again before this court.
Putting aside the hasty idea of a “MAGA legal philosophy,” we can see that French’s emphasis here is on the preeminence of the text and of a written constitution.
Generally, legal conservatives are rigidly attached to a fixed Constitution, as suggested by Roberts’ one-liner. Decades ago, when the Federalist Society was still emerging as a force and legal conservatism nascent, the debate on the right concerning the Constitution centered around judicial restraint and the limitations that should be placed upon the weakest branch. Robert Bork, for instance, found himself in a bitter debate with Harry Jaffa in National Review over the judicial application of natural law. Jaffa believed natural law to be incorporated as part of the positive law of the Constitution. Bork rejected that view, opposing the notion that justices should enforce abstract and eternal moral principles rather than following the text according to the understanding of its authors.
Among the complaints Bork listed in 1990 about the Supreme Court were the
aggrandizement of judicial power; changes in established law to benefit favored racial groups; selective application of the free-speech clause of the First Amendment to disadvantage certain groups in the political process; and a reliance on abstractions at the expense of both history and contemporary reality.]
The Marxist historian of the Supreme Court, Louis Boudin, offered a new term in 1932 to capture the problem: government by judiciary. Fifty years ago, the American legal scholar Philip Kurland argued that “we have become a society overburdened by laws” and that, contrary to the spirit of 1776, an imperial judiciary provided “legislation without representation.”
Relatedly, conservative thinkers of the period, including L. Brent Bozell Jr. and Russell Kirk, wrote often about the underlying ethical order which superintended the written text. Kirk, in his classic The Roots of American Order, wrote in Burkean language that
The true constitution of any political state is not merely a piece of parchment, but rather a body of fundamental laws and customs that join together the various regions and classes and interests of a country, in a political pattern that is just.
In the American Republic as in the British system, such thinkers believed, the written Constitution was an expression of a pre-existing constitutional order. The very purpose of the Constitution was to maintain that order and, as Kirk warned, other written constitutions in the 19th century modeled after ours failed precisely because
sometimes they were too rigid and too detailed to survive when circumstances altered; sometimes they did not succeed in attracting the support and trust of the people whose fundamental instruments of government they were supposed to be.
Bozell, a founding editor of National Review and William F. Buckley Jr.’s brother-in-law, came to a similar conclusion in his 1966 analysis of the Warren Court, The Warren Revolution: Reflections on a Consensus Society. Bozell, in defining what makes a constitution, highlighted that it constitutes a society’s “internal treaty of peace” and embodies an “understanding among the society’s members about the kind of society it is.”
He added that not only is there a written and unwritten constitution—what he calls the “fixed” and “fluid” constitutions—but that some significant questions “appear to be dealt with, and settled, by our written Constitution, but in point of fact are not settled by it.” While Bozell uses the example of the First Amendment and free speech, which he says was “recognizably unserviceable as a working constitutional directive” and thus needed a social consensus to become actionable, the underlying point is critical to the birthright citizenship case.
Roberts and other mainstream legal conservatives assume that the language of section one of the Fourteenth Amendment—that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof”—implies an absolute settlement of the birthright citizenship question. Bozell reminds us the importance of not being so formalist as to miss when the text references an ideal, like that of free speech, which is not inherently useful as a constitutional standard. Ignoring this nuance can disturb the internal peace of the country and compromise the very purposes of the Constitution, as laid out in the preamble:
To form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.
The criticisms of the Supreme Court by erudite conservative thinkers like Kirk, Bork, and Bozell contained a fundamental lesson for conservatives today and going forward. Bork was right, over 35 years ago, when he complained about the Court’s penchant in First Amendment cases for making the sort of decisions which sought to “extrapolate an abstract principle without regard to the understanding of those who framed the First Amendment or those who lived with it for two centuries.”
Likewise, with birthright citizenship, too many on the right are proclaiming the Fourteenth Amendment to be rigidly attached to juris solis, considered as an abstract and eternal principle. They are ignoring the experience of Americans in the wake of the Civil War who had more concrete wishes and intentions: to overturn Dred Scott and formally recognize the citizenship of African-Americans. As scholars like Kurt Lash, Randy Barnett, Ilan Wurman, Philip Hamburger and others have shown, the framers of the amendment were clear that the citizenship clause was not intended to protect the children of temporary sojourners. Andrew Day justly reminded conservatives last year that liberals are anxious for a judicial settlement of the citizenship question that President Trump had properly returned to the political arena.
Further, the case reflects an underlying problem with the formalism of those in the conservative legal movement who have not heeded the lessons of prior generations as to the danger of the imperial judiciary and of placing abstractions over the customs, traditions, and ethical order which underpin the very Constitution they seek to conserve. Robert’s riposte is, thus, a sign of decay and an inability to recognize what has ailed the fixed Constitution for decades. It also signals an unwillingness to restore that unwritten constitution which made our cherished Constitution possible nearly 239 years ago.
The post The True Constitution Doesn’t Grant Universal Birthright Citizenship appeared first on The American Conservative.
Chinese humanoid robots have taken part in a half-marathon race in Beijing, and they’ve whizzed past mere humans.
EXCLUSIVE: 
