A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part III: A Nonoriginalist Interpretation

In my prior two posts, I argued 1) for a large amount of legal immigration and 2) that the original meaning of the Fourteenth Amendment confers birthright citizenship, even on  the children of illegal immigrants.

Here, though, I want to present a nonoriginalist interpretation of the Fourteenth Amendment’s Citizenship Clause – one that would deny birthright citizenship to the children of illegal aliens. My principal aim in this exercise is to make a point about nonoriginalism: while many advocates of nonoriginalism seem to believe that nonoriginalism only leads to more rights of the type that they like, this is not true. While most advocates of nonoriginalism probably favor birthright citizenship, nonoriginalists should see that the original meaning here supports a result they like, whereas nonoriginalism allows a strong argument for a result they dislike. (It is also worth noting to originalists that nonoriginalism may sometimes support results they like.)

While the language “subject to the jurisdiction thereof” might have the original meaning as I mentioned in my previous post, it could also be understood as meaning  “subject to the exclusive jurisdiction of the United States.” Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world, but of noncitizens mainly in their own territories. Thus, the children of solely American citizens born in the United States are exclusively subject to the jurisdiction of the United States. No other country has jurisdiction over them. By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country. This interpretation, then, has the consequence that the children of foreign citizens, both legal and illegal, would not be citizens at birth under the Fourteenth Amendment.

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Against Judicial Minimalism

At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . .  insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”

So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.

Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible!

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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part II: The Original Meaning

Having stated my political view that the United States should allow a large amount of legal immigration, I now turn to birthright citizenship: the idea that any person born in the United States should automatically be a United States citizen. While I will develop this point later, it should be noted at the beginning that these two issues do not necessarily coincide. One can favor immigration, even illegal immigration, and still be against birthright citizenship. As I will explain later, I hold a version of this position. Similarly, one could favor birthright citizenship and be against much immigration. The first sentence of…

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Don’t Further Politicize the Court

Rick Hasen has called for making Supreme Court appointments  an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court.  He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.

Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if  it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.

Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution.  But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results.

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The Horror of Morrison v. Olson — Part I: The Supreme Court’s Felt Necessities

Back when I first read Morrison v. Olson—the case on the constitutionality of the independent counsel statute—in 1988, I thought it was a horrible opinion. Back then I was at the Office of Legal Counsel and had a pretty strong bias in favor of the executive. But even though my views on executive power have changed significantly since then, I still believe the decision is just awful. I thought I would write a couple of posts on what is so wrong with Morrison.

Morrison involved a constitutional challenge on separation of powers grounds to the independent counsel statute. Under the statute, when there was evidence of wrongdoing on the part of the President or one of his advisers that could not be clearly ruled out as insignificant, the Attorney General was required to seek the appointment of an independent counsel from a federal court. The independent counsel was essentially independent of both the Attorney General and the President, although the Attorney General could remove the IC for cause.

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A Neo Dworkinian Argument for Originalism

A while back I did a bunch of posts on the relationship between positivism and originalism.  At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it.  I am finally doing the post.

Dworkin favored an interpretive theory of law that attempted to interpret or give an account of a legal practice by considering the criteria of fit and justification.  Under this view, one would first consider the actual legal practice – in the constitutional area, the actual Constitution and the judicial (and other) decisions interpreting it.  One would seek a constitutional interpretation that “fits” with these legal materials – that is consistent with the practice.  But one would also seek a constitutional interpretation that is justified – that renders the actual practice to be the best that it can be on normative grounds.  The overall best interpretation would be based on both fit and justification.

Under these criteria, I believe there is a strong argument for originalism – especially the type of originalism that John McGinnis and I have developed.  This type of originalism is both attractive normatively and does a reasonable job of fitting the practice. 

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Appointing an Originalist Supreme Court Justice

In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment.

Whelan largely agrees with this, but he points out that only certain Presidents will be willing to incur those costs. That is certainly true. I would assume that both sides believe that it is important to elect a President who is committed to originalism and lawfulness, and therefore who would be willing to fight the good fight on this issue.

2. Paper trails are an asset, not a disqualification.

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Some Examples of the General Common Law

In my last post, I noted that there has been a growing acceptance of the general common law among originalists.  One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.

Let me explore a number of cases where the common law has been recognized as legitimate by some originalists.  Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction.  The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.

But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law.  Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law.  He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.”  It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.

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The New Originalism: The Emergence of the General Common Law

Recent years has seen significant discussion about the “New Originalism,” a term which is often associated with several different trends in originalist thought.  One is the shift from original intent to original public meaning.  Another is the shift from a focus on constraint to other justifications for originalism.  And a third is the acceptance by some of a construction zone.

I am not a fan of the way the term “the New Originalism” is used, in part because it focuses only on a few aspects of the changes in Originalist Theory.  But let’s accept the term.  There is one aspect of the New Originalism – of recent trends in Originalist Theory – that is not usually recognized: the emergence of a belief in the general common law.  This emergence relates to some of the other themes of the New Originalism – in particular a shift from a focus on constraint to accuracy about the original meaning.

Back in the 1980s, there was a leading view among originalists about the federal common law: it was unconstitutional.  This view was applied to the federal common law of Swift v. Tyson that was eliminated by Erie v. Tompkins.  This view was also applied to the “new” federal common law that emerged with Erie.  Both of these applications were justified by plausible readings of the constitutional text and connected up with the old originalism’s distrust of judicial discretion, which federal common law provides.  While Justice Scalia was one of the leaders of this approach, he was not consistent about it; I can still remember discussing with others our disappointment that the Justice had written a federal common law opinion in Boyle v. United Technologies.

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More on Construction: A Response to Larry Solum

In my previous post, I raised a question about originalist theories that employ the concept of construction.  I wrote:

The existence of construction raises an important textual question.  If a matter is within the construction zone – and there is no original meaning on the question – then is it part of the Constitution?  Put differently, if a judge employs values that are outside the Constitution to decide a matter, is he deciding the matter based on the Constitution?

And then I continued:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land (since only the Constitution, federal statutes and federal treaties are supreme law of the land).  Decisions within the construction zone would arguably not be entitled to displace either state law or federal statutes.

In the remainder of the post, I explored some possible ways that those who employ construction might address this issue.

In response, my friend Larry Solum has written a helpful response.  I would recommend that readers take a look at Larry’s post, which is interesting and constructive.  Here I certainly can’t capture all of the subtleties of Larry’s view or post. 

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