Wednesday, October 31, 2018

All That is Solid Melts Into Air

Joseph Fishkin

I woke up yesterday and saw a New York Times news alert on my phone. It read, in full, as follows:
  • Trump Wants to End Birthright Citizenship. President Trump said he was preparing an executive order to end birthright citizenship in the United States. It’s unclear if he can do so unilaterally.
The initial Times report contained little more than this squib. (It was updated in the hours that followed.) But it turned out to be pretty typical.  Much of the news coverage throughout the day treated the legal question here as one whose answer is “unclear,” “much debated,” and generally full of doubt.

When I read the alert, my first thoughts ran to media criticism. How can the Times possibly be so irresponsible as to suggest that it is “unclear,” or in any respect a close question, whether President Trump has the power through executive order to abrogate the bedrock guarantee of birthright citizenship codified in the Fourteenth Amendment?  A reader inclined to be generous to the Times might observe that “unclear” here may function as a sort of journalistic term of art to describe the existence of a disagreement. In other words: Some say the earth is warming, some say it isn’t; perhaps on one (seemingly rather prevalent) view of journalistic craft, a journalist ought therefore to describe it as “unclear” whether the earth is warming.

That view tends to obscure the place where the main action is. Disagreement, yes, but disagreement among whom? For any belief, no matter how crazy or off the wall, there’s likely someone who believes it. It’s not that hard to find people who believe the earth is flat. An underrated but central part of the job of a journalist—I actually think it is one of the most important parts of the job of a journalist—is to perform a credentialing function, separating the mainstream speakers from the cranks and in that way orienting readers. Thus, a good journalist is obligated to make it plain that in the case of global warming, there is disagreement, and that disagreement consists of an overwhelming, near-unanimous scientific consensus on one side and a crew on the other side consisting of a mixture of well-paid professional obfuscators and a few contrarian cranks. (Plus most of a major American political party, for what it’s worth, which on scientific matters is not much.) This framing is controversial; it is also correct. Why? The justification is actually rather complex and has to do with a larger and well-founded background belief in the enterprise of science itself and the internal norms of the scientific community as a powerful method of gaining knowledge about objective reality. Such a background belief doesn’t mean a journalist should uncritically accept everything a scientist says about a scientific topic. But it does help with judgments of credibility. In Jack Balkin’s ever-more-relevant formulation, it helps us make judgments about what’s “off the wall” and what’s “on the wall.” Basically it helps separate the mainstream speakers from the cranks.

With the Constitution this is not so easy. Both climate change and constitutional law are subjects of hot political debate. (Earth shape, less so.) Climate change, the shape of the earth, and constitutional law are also subjects about which some speakers—scientists on the one hand, lawyers, judges, and legal academics and commentators on the other—have role-based claims to various degrees of expert knowledge and authority. The challenge for journalists in reporting on constitutional controversies in our time is that the methods one would typically use to confidently isolate the flat-earthers and the climate skeptics—to show your readers that these people are cranks—do not work in the same way in constitutional law, because they rest ultimately on foundations that are not available in constitutional law.

Imagine that many powerful people decide that the earth is flat. Suppose a powerful social movement advances this view, takes over a major political party and a major cable news network, and gains the power to appoint public officials and others who share the view. A lot of Americans would likely come to agree that the earth is flat. But here’s the thing: They’d still be cranks. Whatever any authority says, the earth is still round. The climate is still changing. You see the problem. Constitutional law, unlike the physical earth, is a human creation whose substance can and does change in significant ways as a result of complex political-legal-sociological processes of constitutional change.  This creates special challenges for journalists covering controversies in constitutional law.

Many terrific books and articles have been written in an effort to understand the dynamics of the processes of constitutional change: the relative roles of judges, lawyers of different stripes, political parties, social movements outside of partisan politics, and so on. For purposes of this blog post we can ignore all that. All I need here is the simple idea that if many people believe in some claim about constitutional law, and perhaps if those people gain various positions of authority, including as justices on the Supreme Court, then it is possible for a view of constitutional law that was once “off the wall”—the view that the Second Amendment protects an individual right to carry a gun, for instance, or that the Equal Protection Clause protects a right to marry a person regardless of sex—can become a plausible, “on the wall” view—and not only that, it can actually become the law as enforced by courts. Any reader of this blog knows that this happens pretty often in our constitutional system.

Because of this, it is not unreasonable for journalists to back into a kind of authority-based rule of thumb that no matter how wacky a view of the Constitution, if it could plausibly get five votes on the Supreme Court, its advocates are not cranks. To be clear: they may be wrong. There is no convincing reason to adhere to the ultra-Realist view that the best reading of the Constitution is simply and necessarily whatever five Justices currently say. But if the Court has adopted your view, while you (and the Court) may well be wrong, you’re not a crank. Indeed, if your otherwise-wacky-sounding view can obtain some indicia of legal assent well short of five votes on the Supreme Court—perhaps a couple of votes on the Court, perhaps a holding by a lower court, etc.—you have at least a colorable claim to being a mainstream voice rather than a crank. Once again, you may be wrong. You may be extremely wrong. But you would seem to be a voice within the mainstream of the American political-legal-sociological processes by which constitutional meaning is constantly remade, and by which the boundaries of what’s “off the wall” are being constantly revised. You can’t be dismissed as a mere crank.

It follows that if a political or ideological movement can stack the courts with enough bold partisans, they can move Jack’s “wall.” They can turn their crankiest ideas into things that journalists, and to some degree all of us, will feel obliged to view as mainstream. Wrong, perhaps, but mainstream. The resulting media reports, which treat the formerly wacky views as mainstream, tend to advance those views and further mainstream them.

Those of us who watched with horror and wonder as the activity/inactivity distinction went from “off the wall” to the pages of the U.S. Reports can basically game out what happens from here on out. Yesterday morning, Trump proposed a flagrantly unconstitutional plan to take away the U.S. citizenship of many future children born in the United States, based on the immigration status (or lack thereof) of their parents, through an executive order. By the afternoon, many conservative speakers were wavering, seemingly unsure which way their party’s train was headed: “obviously” it’s “unconstitutional,” House Speaker Paul Ryan said, suggesting that a constitutional amendment would be needed to make this change before adding the kicker: “At the very least it would have to be statutory through Congress.” The flagrant unconstitutionality of the executive-order position opens up space for the more moderate view that Congress can change birthright citizenship by statute.

And so a debate is joined. On Team Birthright, you have the plain text of the Fourteenth Amendment, which reads: “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” You have the central purpose of this part of the Fourteenth Amendment, which was not only to codify the longstanding constitutional practice of birthright citizenship, but also, and more pointedly, to make it plain that no Congress or state would ever again have the power to carve people out, limiting birthright citizenship on grounds such as race. The “subject to the jurisdiction thereof” language was the only carve-out allowed, and it was primarily about sovereign Indian nations. (It also meant that the children of diplomats—the folks who need not even pay parking tickets in New York City because they are in various respects partially immune from American law—were carved out.)  But the Fourteenth Amendment flatly prohibited all further carve-outs. “All persons” meant not just white ones, but all. The make America white again crowd of that era was determined to carve black people out of the set of “persons born” with birthright citizenship. The Fourteenth Amendment put a stop to that.

On Team Carve-Out, almost all the arguments hang their hat on the phrase “subject to the jurisdiction thereof.” It’s all they’ve got: if you’re not going to claim that illegal immigrants’ kids are not “persons,” and you’re not going to claim they’re not “born,” you’re left with the “subject to the jurisdiction” phrase to play with. Here’s how it will go. The arguments will work in a sort of tag-team format. 

Out in the political realm, from the far right, we have the “invasion” argument. There is a claim, heavily amplified by Fox News in recent days, that the so-called caravan of would-be immigrants winding its way through Mexico at the moment is actually an “invasion.” What this means is not entirely clear, but it’s certainly a powerful message for those who feel viscerally that white America is under threat. (This claim of “invasion” held considerable and specific appeal, for instance, to the guy who just massacred Jews at the synagogue in Pittsburgh.) There is a sort of theoretical argument out there that if an actual military invasion of the United States occurred, so that the United States were literally occupied by a foreign army, that army would not be “subject to the jurisdiction” of the United States. So therefore, this argument runs, since illegal immigrants are an invasion, their kids can be carved out of birthright citizenship. QED.

The invasion argument will function like the broccoli argument in the health care case: it does more work in politics than in court, but it looms behind the arguments in court. The main arguments in court will be subtler attempts to thread a massive population of undocumented immigrants through the eye of a needle meant to apply to sovereign Indian tribes. The most academically serious of these arguments will be the ones advanced by Peter Schuck and Rogers Smith.  They will play the crucial “eventheliberal” role in this debate that Sandy Levinson, among others, once played in the long popular-constitutionalist struggle to reinterpret the Second Amendment as an individual right of self-defense.  The main arguments of Schuck and Smith have to do with conceptions of sovereignty and consent: specifically the idea that the United States need not make citizens of the children of people to whose presence it did not consent.  There are good reasons to question the force of these arguments.  In 1868, there were no immigration restrictions and thus no category of people especially analogous to the undocumented population today. It is implausible to imagine that the framers of the Fourteenth Amendment, who insisted that their birthright citizenship clause would cover even the children of Chinese people (who were already the subject of significant xenophobic hatred among white Americans), would have countenanced the creation of a permanent underclass of hereditary non-citizen children born in the United States. But this is not the place to get deep into these weeds. Journalists won’t get far into them either. Instead, arguments like those of Schuck and Smith, which might eventually get some play in court, will first play the important role (by their mere existence, regardless of their content) of providing academic cover for simpler and more visceral arguments such as the invasion argument, along with various policy arguments against birthright citizenship, out in politics. After all, before any actual executive order is likely to appear (and I have some doubt that it ever will), there are elections to be won.

So where does that leave journalists covering controversies like this one? Not in a very good place. The first step serious journalists need to take is to understand their own important role in the machinery of constitutional change. When an argument moves from the off-the-wall fringe to the apparent mainstream, it does so on the backs of (and on the credibility of) journalists and politicians, not just lawyers and judges. When you report that an off-the-wall claim is “much debated,” you are making it so. You are being used as an instrument by advocates. That may be fine with you. But do it with both eyes open. Don’t hide behind unarticulated rules that suggest that as long as the President and some unnamed hack in the White House Counsel’s office believe something, it must already be mainstream. That approach would enable much more than an executive order abrogating birthright citizenship.  It would tend to enable the destruction of almost any component of our constitutional order.

We like to think we live in a constitutional republic where the Constitution sets the boundaries of politics. But that does not describe reality. We actually live in a republic whose rules, values, traditions, and bedrock assumptions, up to and including important pillars of our constitutional order such as birthright citizenship, are perpetually subject to potential revision through constitutional politics. If a revolutionary party with sufficient political strength is really willing to destabilize some core element of our constitutional order and tradition, they might be able to do it. On Fox News, arguments can catapult from off-the-wall to on-the-wall in minutes and twice again after a commercial break. In the age of a party as revolutionary in its approach as the Trumpist Republican party—an anti-Burkean party that views destroying norms as a kind of virtue—little in our constitutional order is really entirely secure.

And so one thing that a journalist ought to say explicitly about the new birthright citizenship controversy is that, assuming it turns out to be anything more than an election-eve ploy, it will present both Republican legislators and (especially) Republican-appointed judges with a kind of test. Just how willing are they to discard important principles of our existing constitutional order, codified in Amendments such as the Fourteenth, and entrenched by longstanding constitutional practice, in order to achieve the goals of the Trumpist revolution? Will judges in particular find ways to buy the novel claims the revolutionaries have begun to advance? As much as anything else, this will be a test of judicial role-morality. Judges are not often the vanguard of a revolution, but they have been before in the United States. Perhaps they will soon be again. However, revolutions are no good for law. Law depends on the norms and order that the gyre of Trumpist politics tends to corrode and destroy. All that is solid melts into air, all that is holy is profaned, and we’re at last compelled to face with sober sense our real conditions of life. Those conditions are perilous, and courts by themselves are unlikely to save us. The only real way to defeat a revolutionary political movement is through politics itself.

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