Pranjal Drall and Samuel Moyn
There they go again. The litigation over Donald Trump’s executive order ending birthright citizenship has so far followed a familiar script. And liberals, especially lawyers among them, have played their appointed role, as if there were no other—even in the age of an openly reactionary Supreme Court majority.
First,
liberals denied and even ridiculed the possibility of reading the Fourteenth
Amendment Trump’s way. But subsequently, they have taken many steps to help
normalize that very reading, by consenting to struggle on the terrain of their
enemies.
After their
loss in the general election produced Trump’s executive order, liberals hope to
win at the Supreme Court. If they do, it will be because the politics of
interpreting law favored their side, not because of the quality of their legal
work. In cases such as this, legal arguments merely facilitate and rationalize outcomes
reached for other reasons. Yet it is precisely here—on legal work, and most
especially leaning into originalist methods and the virtues of American
traditions—that the legalistic opponents of Trump’s new policy have
concentrated exclusively.
Welcome to
the spectacle of liberal constitutionalism in 2026, which obscures what we are
doing, including to ourselves—a mistake for which we have paid an enormous
price before.
In the face
of a hegemonic and overwhelming discourse focused on what the Fourteenth
Amendment really meant and means, we argue in this post for changing the
subject. Unlike in the close parallel of NFIB v. Sebelius, where a
similar campaign to radically shift constitutional meaning succeeded, liberals
might win in Trump v. Barbara. If they do, it’s not going to be because
they were “correct” about the law—even if they are. It will be because the
political dynamics, having favored unexpected constitutional change unthinkable
before in the prior case, stopped it in this one.
Therefore,
the right question to ask all along, and openly, wasn’t just what the
Constitution means. It is whether the constitutional terrain beckons as
strategically opportune, and if so, why it could favor defenders of birthright
citizenship in this case. Merely inquiring into what the Framers really
believed and insisting one more time that the Constitution was born liberal, are
inadequate—unless doing so is our best or sole option strategically.
Many years
ago, Jack Balkin observed
the great importance of analyzing constraints in legal interpretation. The
central suggestion of the critical legal studies movement (of which he was then
a member) was not that law is “indeterminate.” But the movement could reveal
that ideological forces artificially constrained the range of interpretations
of one or another piece of law. And it could better explain than rival
frameworks how, under some conditions, the meaning of law could change
radically. In subsequent work, Balkin highlighted
the importance of who occupies important “nodes of power” in pushing for some
meanings rather than others—and, of course, who has succeeded in the quest to
control the apex sites of interpretation as the essential determinant of legal
meaning when consensus breaks down.
In Balkin’s writings,
the most famous
example of these dynamics was how the Commerce Clause of the U.S. Constitution
was, almost overnight, subjected to a campaign to undo the ideological
consensus, that had held since the 1930s, that it imposed next to no limits on
Congressional power. A reactionary claim that Barack Obama’s new health care
plan in the Affordable Care Act was beyond the legislative authority granted by
the Constitution gained traction and then, rather suddenly became the law of
the land in NFIB v.
Sebelius.
Once “off the
wall,” in Balkin’s folksy redescription of the terms of his own earlier
approach, the right-wing claim became credible or “on the wall.” Nothing about
the Constitution changed. Old precedents remained in force. But enough elements
of the ideological constraint were lifted that the new outcome become plausible.
The result was devastating: though Chief Justice John Roberts found
the saving construction of upholding much of Obama’s law under Congress’s tax
power, millions of poor Americans lost the Medicaid expansion that Congress had
decided to grant them.
The left
pursues its own constitutional agendas of mainstreaming unlikely interpretive
propositions, albeit with much less success—think of the attempt to dust off
the Fourteenth Amendment’s second section in the litigation to keep Trump off
the presidential ballot in 2024. But right now, it is urgent to address how
Balkin’s model might help analyze the potential transformation of the
amendment’s first section.
Yet legal
discourse in the face of Trump’s Day-one executive order rescinding birthright
citizenship has been overwhelmingly legalist, indeed originalist, without any
hint of the ideological or political focus that Balkin’s model would demand.
Liberals are LARPing, not strategizing—at least not openly.
If the executive
order goes down, it is not going to be either because of the Constitution’s
text or history, nor because of precedents that interpret either. It is because
the ongoing right-wing campaign to undo a prior ideological consensus fails.
And that reality raises the necessary question of whether playing along with—or
into—the legalist and originalist strategies of lifting interpretive
constraints of the right is the best move for the left, especially when those
strategies on their own will not cast the die for the future of American
citizenship.
In our next
post, we chronicle the trajectory of this interpretation of the Fourteenth
Amendment’s Citizenship Clause as a once fruitless project of constitutional
transformation that found more fecund soil in our time—and how liberals and
progressives have ended up helping to till it. A final post reflects on the
politics of constitutional law, once the birthright citizenship saga is
examined from a strategic, rather than legalist, point of view.
Pranjal
Drall is a J.D./Ph.D. student at Yale University. Samuel Moyn, Kent Professor
of Law and History there, is author of “Gerontocracy
in America: How the Old Are Hoarding Power and Wealth—and What to Do
About It.”