President Trump recently announced his intention to issue an executive order that would deny United States citizenship to children born in this country to illegal immigrants. Whether this is a serious proposal or simply a pre-election political ploy remains to be seen. Regardless, it provides a useful case study in two contrasting theories of constitutional interpretation: “originalism” and “living constitutionalism.” “Originalists” (usually conservatives) believe that the Constitution should be interpreted and applied in accordance with the generally understood meaning of its language at the time of its adoption. They view the Constitution as a document whose provisions, as thus understood, are enduring law and can be changed only by formal amendment. By contrast, “living constitutionalists” (usually liberals) tend to view the Constitution as a fluid and malleable document whose meaning can change over time, without amendment, in order to accommodate evolving societal values, norms and conditions.
The Constitution’s birthright citizenship provision is set forth in the opening sentence of the Fourteenth Amendment, ratified in 1868, as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” On its face, this language clearly covers the American-born offspring of illegal immigrants. They are in fact born in the United States and are subject to its jurisdiction, i.e., its judicial authority and laws. The original understanding of the provision is consistent with its plain language. Its main purpose was to overturn the Supreme Court’s infamous Dred Scott decision and grant citizenship to African-Americans born in the United States. However, the congressional debates on the proposed constitutional amendment make clear that the language was viewed as all-encompassing with the sole exception of persons not “subject to the jurisdiction” of the U.S. Government. This exception, in turn, was understood to apply only to children of foreign diplomats and children of the members of certain Native American tribes which were not considered subject to U.S. law at that time. (A later law made all Native Americans citizens at birth.)
Given the above, it’s hard to see how any self-respecting originalist could support Trump’s proposal. If he implements it, the originalist majority on the current Supreme Court will undoubtedly rule against him in the event the proposal survives judicial challenge long enough to reach the high court.
It’s less certain that judges espousing the living Constitution theory of interpretation, and thus feeling less constrained by the original meaning of the constitutional language, would come out the same way. Living constitutionalists might reason that the framers of the Fourteenth Amendment never considered illegal immigrants, particularly at their current volumes, and could not have intended to confer automatic citizenship on all their children. Accordingly, they might well conclude that a broader, evolutionary reading of the “subject to the jurisdiction” exception would better serve contemporary conditions and needs—i.e., a reading that extends the exception to cover those in the country illegally who owe no allegiance to the United States.
I’d submit that the above analysis offers three cautions for those inclined to prefer living constitutionalism over originalism: (1) While originalism may be regarded as a conservative legal approach, it can produce liberal policy results. (2) The notion that the Constitution “evolves” does not necessarily mean that it evolves only in the direction of expanding constitutional rights; it can just as easily evolve to restrict such rights. (3) If judicial interpretation of the Constitution is not anchored to its text as originally understood, there are no objective criteria to constrain judges. They are left free to act on their own subjective views of how best to mold the Constitution to fit contemporary needs and values as they see them.