* * *
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.