Wednesday, October 31, 2018

Originalism, Living Constitutionalism, and Birthright Citizenship

Richard Primus

The point of departure for this post is a comment that Keith Whittington made on the subject of the current shouting over birthright citizenship.  I thank Whittington for making suggestions about this post before it was posted.

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In a contribution to the collective discussion provoked by the President’s attack on birthright citizenship, Whittington tweeted the following thought:

“I suppose if you are a living constitutionalist, you might think birthright citizenship is up for grabs. If you are an originalist, however, it is not.”

Whittington is a thoughtful scholar, and I read him here to be saying two things.  One is that it is unprincipled for self-described originalists (say, the Vice President) to say that the Fourteenth Amendment does not, or might not, provide for birthright citizenship, either generally or over the range of cases that inspire the current unpleasantness.  That’s because original meanings are what they are, and the original meaning of the Fourteenth Amendment provides for birthright citizenship. 

The other thing I take Whittington to be saying is that living constitutionalism is susceptible to undesirable changes in constitutional doctrine in a way that originalism is not.  I understand “up for grabs” in Whittington’s tweet to mean “open to legitimate contestation in the here and now.”  On that understanding, the idea on offer is that living constitutionalism is open to change through reinterpretation, so it must be open to contestation over constitutional meaning.  And the results of that contestation will sometimes be unfortunate.  Originalism isn’t open to change through reinterpretation, so it avoids that risk.

To be careful: Whittington doesn’t say that living constitutionalists must think birthright citizenship is up for grabs.  He says a living constitutionalist might think it’s up for grabs.  That’s an important distinction.  Living constitutionalism doesn’t suggest that everything is up for grabs at all times any more than evolutionary conceptions of language suggest that any speaker at any moment can utter any string of words and have them convey any possible meaning.  Most things are settled most of the time.  For most living constitutionalists today, birthright citizenship is pretty settled.

So as relevant here, the difference between originalism and living constitutionalism isn’t that everything is constantly up for grabs in one paradigm but not in the other.  It’s that living constitutionalism recognizes more mechanisms for moving a proposition of law from the category of “settled” to the category of “unsettled” or “changed” than originalism does.  But that doesn’t mean that living constitutionalists necessarily confront a more up-for-grabs landscape than originalists do.  Common-law constitutionalism, which is a leading form of living constitutionalism, regards settlement as a central virtue and emphasizes precedent precisely because it believes precedent does a better job of settling things than many other methods—including originalist methods—do. 

That last point brings me to a respect in which I disagree with Whittington.  Just as being a living constitutionalist doesn’t necessarily mean that one must regard birthright citizenship as up for grabs, being an originalist doesn’t necessarily mean that one must regard birthright citizenship as settled. 

Originalists often change their minds about what the original meanings of constitutional provisions are or require.  Once upon a time, the predominant originalist view was that the Fourteenth Amendment permitted racial segregation and the Second Amendment did not protect an individual right.  Most originalists today think otherwise.  From an internal point of view, the process of change came about as many originalists carefully considered the relevant historical sources and came to the view that the previous interpretations had been wrong.  From some external points of view, that process was helped along by changes in the substantive values of many originalists—that is, by a change in what many originalists thought the answers ought to be, as well as by changes in the intensity of their sense that the Fourteenth and Second Amendments ought to provide this rather than that. 

Either way, the process by which originalists (collectively or singly—originalism is an internally diverse camp) shed one understanding of the relevant provisions and adopt another one is a process of reinterpretation.  As that process of reinterpretation proceeds, there is a moment, or perhaps a period, when the legal force of a provision is open to legitimate contestation in the here and now—that is, when it is “up for grabs.”  And in the actual practice of originalist interpretation, a fair amount of what originalist lawyers (including theorists and judges) do is unsettle understandings of legal meaning, including the understandings held by other originalists, by suggesting that original meanings should be understood in some new way.

An originalist might say that what is up for grabs during that process of reinterpretation isn’t whether the Constitution protects birthright citizenship (or whatever else is at stake).  It’s just whether the community of interpreters and/or enforcers recognizes and acts upon the correct answer to that question.  Our interpretation may be up for grabs, but the right answer is not, because the right answer is constant.  That way of looking at things has its appeal.  But to the extent that what matters is how constitutional law will be implemented—a pretty considerable extent, in my view—the idea that all that is changing is what people think the Constitution means doesn’t make much difference.  To the extent that constitutional decisionmakers understand themselves to be acting on original meanings, what they act on is what they think the original meanings are, whether those thoughts are historically accurate, or contestable, or anything else.  That is, constitutional decisionmaking proceeds on the bases of operative original meanings, not actual original meanings, whenever the two diverge.  And operative original meanings change over time.

So to come back to birthright citizenship: Whittington takes the view that the original meaning of the Fourteenth Amendment, properly understood, settles the birthright citizenship question in a particular way.  To the extent that he’s making a historical claim about the meaning of the Fourteenth Amendment in 1868, I’ll stipulate here that he’s right.  But it doesn’t follow that real-life originalists can’t or won’t regard the question as unsettled—nor that they won’t reach a different conclusion from Whittington’s.  Indeed, part of what happens when leading figures who are identified as originalists (say the President, by his own estimation, or Mike Pence, Lindsay Graham, and a few law professors) say that a constitutional provision doesn’t mean what it was previously thought to mean is that the door is opened for people to use the tools of originalist inquiry to advance innovative interpretations.  So far, the President and those who echo him have done little or nothing in the way of good-faith reexaminations of historical sources.  That’s not really their line of work.  But as with any constitutional provision whose meaning becomes a subject of political contest, there is no way to rule out the coming of others who will dive into the sources and return with surprising interpretations—in the present case, interpretations that people who are comfortable with the substance of the President’s bigotry might be primed to receive favorably.   No, they can’t change history.  But they can change how constitutional lawyers understand history.  And that is what it takes to unsettle a legal proposition and put things up for grabs.  The successful grabber is the one who persuades enough of the right people that his interpretation—originalist or otherwise—is best.

All of which is to say that in fact, an originalist can regard the birthright citizenship question as up for grabs.  And some apparently do. 

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