Judges today are regularly chastised from both the left and right for deciding cases based on their personal or political biases rather than “the law.” Two closely related guardrails to help keep them focused on the legal merits are “textualism” and “originalism.”
Textualism simply recognizes the obvious fact that when interpreting a legal document (statute or constitution), the law is what the text says it is; thus, the answer must be embodied in or at least anchored in the text. Originalism holds that legal text must be interpreted in accordance with how its meaning was publicly understood at the time of its enactment. Attaching a new and different meaning to the text amounts in effect to amending the law, which is a job for elected legislators not unelected judges.[1]See here and here for background.
While textualism and originalism are usually associated with conservative judges, they are fundamentally sound interpretive approaches in theory and should be followed whenever possible. Their only real limitation is practical rather than conceptual: The legal text often does not provide a clear original public meaning even after applying the standard interpretive tools available to judges. This tends to be particularly true of cases that reach the upper levels of judicial review.
One would think, therefore, that when a rare ideal case comes along judges who claim to be textualists/originalists would make short work of it. This brings us to Trump v. Barbara, the birthright citizenship case just decided by the Supreme Court. The issue was whether an executive order by President Trump that attempts to deny U.S. citizenship to offspring of illegal immigrants and some others born in the United States violates the Fourteenth Amendment, which provides:
“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.”
When Trump originally proposed this executive order, I was confident that ruling against it would be a slam-dunk for the courts, including SCOTUS if the case got that far. After all, the children are indisputably born in the United States, and they are clearly subject to its “jurisdiction” in the obvious sense of being required to comply with its laws and powers. Indeed, the exception for those not subject to U.S. jurisdiction was understood to apply only to children of foreign diplomats and a few other narrow categories of people such as members of certain Indian tribes who were considered exempt from U.S. sovereignity at the time the Fourteenth Amendment was adopted.
SCOTUS did ultimately declare the executive order unconstitutional, as had every other court that considered it. However, the decision was essentially 5-4 with only two of the Court’s six conservative justices joining the three liberals to rule against it.[2]Justice Kavanaugh disagreed with the majority’s constitutional analysis but technically concurred in the result on the grounds that the executive order violated a similarly worded statute. Moreover, the various opinions consume almost 200 pages delving into a wide range of common law, legislative, judicial, and historical sources discussing different approaches to establishing citizenship as well as exploring policy considerations.
Chief Justice Roberts’ relatively brief 26-page majority opinion notes (pp. 10-11) that the Fourteenth Amendment’s key phrase “subject to [U.S.] jurisdiction” required the result the Court reached since it “uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.” The dissents discuss at length concepts and terms the drafters of the Fourteenth Amendment could have used but didn’t. However, as Roberts pointedly observes (p.22), they have “little to say” about the operative legal text—“subject to the jurisdiction” of the United States—that the drafters actually did use.
The dissents also emphasize that the drafters of the Fourteenth Amendment did not confront the issues the Nation now faces over widespread illegal immigration, “anchor babies,” and “birth tourism.” This is certainly true, and they might well have adopted different language if faced with current conditions. However, as any textualist/originalist worth their salt would insist, the remedy in such cases is not to judicially adopt a “revisionist” interpretation (as Roberts puts it) to update the meaning of the text but rather to amend the law through the appropriate legislative process.
Five justices did the right thing here, but this should have been a much shorter and straightforward 9-0 decision. How can the four dissenting conservative justices maintain their credibility as textualists/originalists when they abandon these principles in a tailor-made case like this?
Henry, I can’t tell you how much your articles mean to me ! Thank you so much!