an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
For those who persevered through the full 3-hour slog Wednesday night, perhaps the saddest moment in the Republican presidential debate came at the end, when moderator Jake Tapper asked what he characterized as a “lighthearted” question: which woman should the Treasury department put on the $10 bill? This question is a softball; there are lots of reasonable answers. Several participants offered some—Rosa Parks [Marco Rubio and Ted Cruz], Susan B. Anthony [Rand Paul], Clara Barton, founder of the Red Cross [Scott Walker], even Abigail Adams [Chris Christie]. Oddly, Jeb Bush and John Kasich either could not come up with a deserving American woman, or are extremely cosmopolitan in their outlook on U.S. currency: they named, respectively, Margaret Thatcher and Mother Theresa. The two candidates currently at the top of the opinion polls, Ben Carson and Donald Trump, along with Mike Huckabee, suggested members of their families: Huckabee’s wife, Carson’s mother, and Trump’s daughter. On the $10 bill. Really? (Perhaps I am overthinking this, but I wondered whether perhaps some of these debaters had prepared an answer to a question calling for a woman, perhaps to talk about a woman who inspires you, something of that sort. Caught in the headlights and unable to summon up a plausible American woman worthy of being placed on the $10 bill—which by the way seems quite revealing and not in a good way—they instead offered up the women they’d talked about in debate prep.) At any rate, no harm done. It’s a very, very safe bet that Ivanka Trump’s visage is not going to be featured on the $10 bill.
You might think it would be equally safe to assume that Donald Trump’s comments in the debate are not going to be a source of constitutional meaning. But there, you would be wrong!
I am thinking specifically of Trump’s interpretation of Section One of the Fourteenth Amendment, with respect to birthright citizenship. The Amendment’s text reads:
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.
This powerful piece of constitutional text has ensured for 150 years that whatever else happens to people at the bottom rungs of American society, whose own legal status in our polity may be doubtful, their children, at least, are full legal citizens of the United States. Birthright citizenship is a deeply American idea. We do not have populations here like the Rohyinga of Myanmar, the Turks of Germany for much of the twentieth century, and so on—populations excluded from full citizenship despite living in a place for generations, by virtue of legal rules that visit the legal status of the parents onto their children. In the U.S., birthright citizenship predated the Fourteenth Amendment, but the Amendment is what made it a national, uniform, settled constitutional rule. Of course, in a democracy no constitutional question is ever completely settled. Today, as in other periods of nativist agitation such as the 1890s and 1920s, there is a non-trivial movement on the extreme anti-immigration right to question birthright citizenship. Some hope to find a way to read it out of the Fourteenth Amendment.
Enter Donald Trump. He is definitely not the first American to question birthright citizenship, but he does so loudly, a lot, and on a big stage. At Wednesday’s debate he argued: “I believe that a reading of the 14th Amendment allows you to have an interpretation where [birthright citizenship] is not legal.” In fact, pushing several extra steps (as always), he claimed the Fourteenth Amendment says “very, very clearly to a lot of great legal scholars — not television scholars, but legal scholars—that [the usual interpretation] is wrong.” Birthright citizenship “can be corrected with an Act of Congress,” he said, and “probably doesn’t even need that.” He allowed, “It’s probably going to have to . . . go through a process of court, probably ends up at the Supreme Court,” noting again, “some of the greatest scholars agree with me.” (Rand Paul then jumped aboard the train and filled out some specifics. He said that the application of the Fourteenth Amendment to the children of illegal immigrants “hasn’t really been completely adjudicated,” and offered a slender reed of an originalist argument that “the original author of the Fourteenth Amendment said on the Senate floor that this was applying to slaves, and did not apply to others.”)
So, the question is: is this crazy talk? Is this “off the wall,” in Jack’s extremely useful phrase?
Or, on the other hand, is there an argument here that constitutional lawyers and judges will soon take seriously, one that might in the not-too-distant future find its way to the Supreme Court, where some Justices will nod sagely and even decide they agree with it, conceivably even making it the law of the land?
Right now, this claim is crazy, not in the sense of being actually nuts (which it isn’t), but in the specific Balkinian sense of being an “off the wall” claim in our present constitutional order. In other words, current legal authority here is unambiguous and completely settled. The text quoted above means that if you are born here, you are a citizen. Of course, there is almost always some potential argument for why the settled understanding is wrong. This blog post is really not about the substance of the arguments against birthright citizenship—that's not my purpose here. But just to sketch the relevant points very briefly: the best point of entry for anti-immigration activists is the phrase “subject to the jurisdiction thereof.” This phrase has long been understood to refer to the children of foreign diplomats and soldiers. (It originally referred also to Native Americans, whose tribal autonomy it arguably aimed to protect. But Native Americans were brought into the fold of birthright citizenship in the 1920s.) Current anti-immigration activists claim that the phrase “subject to the jurisdiction thereof” is much broader. Some claim that it excludes anyone subject to the “jurisdiction” of a foreign power by virtue of being a citizen of someplace else. That claim proves way too much, and at that point the argument can get a little intricate: few question the U.S. citizenship of the children of legal immigrants; rather, the argument is about children born here to undocumented parents. The Supreme Court pretty conclusively shut down the argument for a broad reading of “subject to the jurisdiction thereof” in an 1898 case. But of course, a future Court that was so inclined could revisit and overrule that precedent and hold that the Fourteenth Amendment doesn’t mean what everyone now thinks it means, and in fact there is no birthright citizenship in the U.S. We could then have multi-generational populations excluded from full citizenship, as many other nations have.
Will the Court do this? Probably not. But you never know. And this is where I think it matters that arguments questioning birthright citizenship are not only being made by a bunch of obscure anti-immigration activists on the far-right fringe, plus a handful of law professors, who either are found on the furthest-right edges of academia (e.g. John Eastman, Lino Graglia) or are contrarians with more nuanced views who do not actually favor excluding most children of illegal immigrants from citizenship (e.g. Peter Schuck). It is not uncommon for “off the wall” arguments about constitutional meaning to percolate around either among activists or among academics, but that usually doesn’t get the arguments very far.
What is new now is that Donald Trump (and Rand Paul and Ted Cruz and others) are making the argument against birthright citizenship in the glare of the brightest spotlight of our national politics. This makes a difference. Trump, in particular, is many things, but he is not a “fringe” figure in our politics. He is simply too popular for that. His candidacy may crash and burn at any time, but over the past few months, he has convincingly proved that he is somewhere within the mainstream of today’s Republican party, as defined by the party-in-the-electorate.
When NFIB v. Sebelius was making its way up the chain of appellate review and ultimately to the Court, many liberals, law professors, and liberal law professors expressed confusion and incredulity that this novel claim, about a newly-invented activity/inactivity distinction constraining the Commerce Clause, was worth taking seriously. Early predictions tended to assume that the case was either “frivolous” or at least would come out 9-0; later, 8-1; eventually it became clear that it would end up closer to 5-4. The idea there could ultimately be five votes for the proposition (even in dicta) that the commerce clause does not reach a health insurance mandate seemed at first literally incredible, in the sense of “not credible.” But, it happened.
How did so many smart people get it so wrong? With the benefit of hindsight, the answer is pretty straightforward and in some ways ironic. Liberals and other observers failed to take popular constitutionalism seriously enough. They assumed that the meaning of the Commerce Clause in NFIB v. Sebelius would be determined through the ordinary science of reading constitutional meaning, with tools such as constitutional text and history and (especially) precedent. That is usually a sensible assumption. The Court doesn’t make radical changes to constitutional law lightly or often. From within the four walls of the court system, there was no good reason to expect a completely novel principle, never seen before and perhaps never to be seen again, to show up as a fundamental new limit on the Commerce power.
But these walls are very porous. Constitutional law is not “just” politics, but neither is it separate from politics. What so many observers of Sebelius did not understand until fairly late in the game was just how much the claim about the activity/inactivity distinction was alive outside the courts, threaded through the more general opposition to Obamacare on the right. It was not just a few iconoclastic law professors (although that is where the claim started, and their role, especially Randy Barnett’s, was crucial). It was not just a few disgruntled Tea Partiers and Birthers. It was a claim that won the enthusiastic embrace of at first a few, then many, and ultimately most of the leading figures in the Republican Party. Jack has argued persuasively that the support of these Republican party leaders was really the key. That is what made the argument seem serious and plausible to conservative elites, to a series of lower court judges, and ultimately, to five justices of the Supreme Court.
That’s why we have to take Donald Trump’s claims about the Fourteenth Amendment seriously. I mean “seriously” here in a specific sense. It’s true that these claims are not, as of now, anything like winning constitutional claims. But they might be soon. Our constitutional culture, especially in this partisan age, is one in which the leading figures of a political party can turbocharge a constitutional argument’s journey from crazy, to vaguely plausible, to serious, to convincing, and finally, maybe, to the United States Reports. In a moment of deep partisanship, in a polity where apparently Donald Trump must be taken seriously as a popular figure within the Republican Party, this argument about the Fourteenth Amendment might be on the verge of takeoff—whether Trump’s own candidacy continues into the stratosphere or collapses next week.
In his usual shambolic way, Trump actually seemed to state the way constitutional change works in the current legal and political environment better than some of his colleagues and some constitutional lawyers. Several seats away from him, way off to one side at Wednesday night’s debate, Mike Huckabee railed against the Supreme Court’s same-sex marriage decision, offering a departmentalist constitutional vision that would allow other branches to block the Court: “I thought we had three branches of government, they were all equal to each other, we have separation of powers, and we have checks and balances. If the court can just make a decision and we just all surrender to it, we have what Jefferson said was judicial tyranny!” Huckabee is old school. He’s singing a few bars of a tune that is very familiar to all those who were part of the resistance to the Supreme Court’s decisions on school prayer, busing, and so on.
Trump’s approach is different. His picture of constitutional change begins by acknowledging two things: the role of experts and the ultimate authority of the Court. Despite FDR’s great Constitution Day speech on this point, much constitutional argument today seems to be about a lawyer’s contract, not a layman’s document. There are often many layers of doctrine that seem to require expert interpretation. That means that constitutional meaning is crucially bound up with the expertise and authority of elite lawyers and legal scholars. This is why Trump is standing up there on the debate stage invoking “legal scholars.” (And all of us in the academy should take heart that he further identifies a sort of hierarchy, in which actual “legal scholars” rank above “television scholars.”) Meanwhile, contra Huckabee, he acknowledges that this debate about constitutional meaning takes place in the shadow of the ultimate authority of the Supreme Court: “It’s probably going to have to . . . go through a process of court, probably ends up at the Supreme Court.” In other words, the mechanism of constitutional change he imagines looks nothing like a constitutional amendment, and nothing like direct defiance of the Supreme Court. It is change through the Court.
Trump is embracing a mechanism of constitutional change that is in some ways perfectly suited to him, because it involves a good deal of bluster. Essentially, the idea is that you assert the plausibility of a new reading, a fresh reading, let’s call it, of the Fourteenth Amendment. You assert it clearly and loudly, claiming much supporting authority, until you convince many people that this new, fresh reading is what a large proportion of reputable experts think. Pretty soon you get the television and radio pundits on your side, amplifying your message. Then many ordinary voters embrace this story, which is a nice complement to their political views on immigration. With the voters come the other Republican politicians. They will jump aboard the no-birthright-citizenship train before it leaves them at the station. Then, soon enough, you’ll find a judge somewhere who agrees that, on reflection, this fresh reading of the Fourteenth Amendment actually seems quite plausible. And from there… well, just look at what happened to that activity/inactivity distinction.
This process is already gathering steam. Ted Cruz, who is second to no one when it comes to embracing edgy proposals for rightward constitutional change, said in 2011 that “As much as someone may dislike the policy of birthright citizenship, it's in the U.S. Constitution.” He said challenging birthright citizenship would be a “mistake” and a waste of time because, as he put it, “I’ve looked at the legal arguments against it, and I will tell you as a Supreme Court litigator, those arguments are not very good.” That was then. These days those same arguments are looking much better! In Trump’s wake, Cruz now says he “absolutely” favors ending birthright citizenship, whether by constitutional amendment or by creative reinterpretation of the Fourteenth—and as to the latter approach (which is the real approach), Cruz said recently, “there’s a good faith argument on both sides.”
In the debate Wednesday night it almost seemed as though we were watching this train roll out and gather speed in real time. Carly Fiorina has apparently stood by the view that it would take a constitutional amendment to undo the Fourteenth Amendment’s grant of birthright citizenship (i.e. she agrees with the current conventional/correct legal view). She said so again Wednesday night, hedging ever so slightly. But in the face of Trump’s bald assertions that no such amendment is required, because the “greatest scholars” all read the Fourteenth Amendment Trump’s way, Fiorina was reduced to responding, “you would stipulate, Mr. Trump, [that] not everyone agrees with you.”
He did so stipulate, and seemed happy to do it. Not everyone agrees! That means this is an active arena of constitutional debate, one with fair arguments on both sides, just as Ted Cruz (now) says. That’s not too shabby. Indeed it’s a pit stop roughly midway between zero and victory. Like any good dealmaker, Trump will take that—and the anti-immigration activists will too. For now. Posted
by Joseph Fishkin [link]