Advocates and opponents of birthright citizenship are stuck in a dilemma: originalism binds us to accept it, nonoriginalism offers room to deny it.
Elizabeth Price Foley’s study of the constitutional basis for the Tea Party’s opposition to the Obama administration is an eye opener, particularly for those who have been listening to the mainstream media and national press. One comes away from her defense of “three principles,” namely, limited government, national sovereignty and originalism, with respect for Foley’s debating skills. One is even more struck, however, by the fallacious reasoning of Harvard Law professors who seem to have lost their mental acuity in becoming advocates for the administration. My own favorite illustration of legal babble is from Harvard professor Laurence Tribe in the New York Times, explaining why the Commerce Clause (Article One, Section 8, Clause 3) should be stretched in a way that would force each person to buy health coverage: Those judges who suggest that Obamacare is unconstitutional and that people “have a right not to purchase what one wishes not to purchase” are refusing to recognize the “reach of legislative power in a world where no man is an island.” Apparently Tribe believes this plagiarized rhetoric is the equivalent of constitutional reasoning. It may well be in his classes.
Foley goes after an equally ludicrous statement by Tribe in a New York Times op-ed piece in February 2011, that “health care law is little different from Social Security.” Unlike health care, according to Foley, Social Security “doesn’t have to provide an opt-out because it’s an exercise of the taxing and spending power.” Foley is pointing out the obvious here: Congress is not exercising its taxing power when it requires us to buy health care. She also understands the “necessary and proper clause” in Article One of the Constitution, which is not open-ended. The enabling power given to Congress was not to permit this august body to do whatever it wants in order to advance the general welfare. Rather its scope of activity is limited to the express, enumerated powers in Section Eight, which, contrary to the wish of Obama’s advisors, are not infinitely elastic.
Foley addresses other dubious constitutional interpretations used to promote Obama’s agenda: e.g., claiming that Congress’s right to tax includes a power to fine those who won’t pay for health care; that inactivity by those who don’t buy health care is a form of activity covered by the Commerce Clause, (allowing the federal government to regulate commerce among the several states); and that states have no rights to monitor illegal immigrants who enter their territory in violation of federal laws. Looking at Foley, who directs the Florida operation of the Institute for Justice and is a professor of law at Florida International University, tear into the obtuse reasoning of pompous Ivy League law professors, one gets a sense of what counts for those on the other side. It is defending the leftist party line unconditionally. Foley to her credit, however, dares to think through Obama’s policy positions and to notice their glaring flaws.
It would be ridiculous to assume that every Tea Party protestor has considered constitutional questions with Foley’s thoroughness. The protestors may understand, however, that there is a serious threat to their already eroded freedom that has resulted from the Obama-presidency. Foley is providing the constitutional clothing for their collective anxieties. Armed with her critical arguments, they could acquit themselves effectively if required to justify their resistance to the administration.
My own problem with this hopeful approach is that the resistance is coming late in the game. Having devoted several books, like After Liberalism (Princeton, 1999), to outlining our political-psychological situation, I feel eminently qualified to speak to this point. For a long time, and with increasing consequence since the 1960s, the feds have been into behavior modification, usually for the announced purpose of fighting discrimination but often for other reasons. Americans are accustomed to having the federal and state governments modify their behavior, and they submit, gladly or just meekly, to multicultural and feminist indoctrination in the workplace and in academic institutions. From this historical perspective it would seem that Obama’s policies are simply one more step in a long process of social engineering being carried out by judges and public administration.
One might also ask whether the close identification of the Tea Partiers with the Republican Party, a connection that Foley considers to be useful, is really a plus. Admittedly it is advantageous, as Foley states, for the Tea Partiers to be able to occupy a national party that is already in place. This opposition is thereby spared the labor of going the third party route. In 2010 the GOP affiliation was helpful in allowing Tea Partiers to gain supporters in Congress through Republican electoral victories. But this connection has a downside. The fact that the vast majority of Tea Partiers are declared Republicans, who voted for George W. Bush and John McCain (who were hardly paragons of small-government conservatism) and that Tea Partiers were not loudly protesting government spending under Republicans, has given rise to the suspicion that these activists are the foot-soldiers of the GOP out of power. Whether or not this accusation is consistently true, it does not help the Tea Party to have every leftover from the Bush administration, plus establishment Republicans like John McCain, addressing its crowds about runaway government.
Finally I would raise some mild criticism of Foley’s attempted defense of originalist interpretations of the Fourteenth Amendment. Foley is justly critical of both the Plessy v. Ferguson decision (1896), treating segregated institutions as constitutionally permissible if based on separate but equal arrangements, and Brown v. Education (1954), which bans segregation in public education. In both cases, the legal reasoning brought up irrelevant arguments, in the older case arguing from “deference” for existing social patterns, and in the second case from sociological studies indicating that black students suffered low esteem because of their separation from white students. Foley maintains that if the courts wished to remove segregation, they could have underscored the clear intent of the Reconstruction Congress that drafted the Fourteenth Amendment. Among the implied rights the framers of that amendment were conferring on black Freemen was desegregated access to public education. Thus if the Supreme Court in 1954 wished to supply an originalist interpretation in challenging Plessy, it might have gone back to what the authors of the Fourteenth Amendment truly intended.
Foley bases her argument on an article published in the Virginia Law Review in 1995, which supposedly demonstrates that the Thirty-Ninth Congress that passed the Fourteenth Amendment in 1866 “intended the Equal Protection Clause to outlaw racial segregation.” Although Congress in 1875 passed a far-ranging civil rights act that covered access to public accommodations, which was struck down by the Supreme Court, there is no conclusive evidence that the Equal Protection Clause was meant to outlaw segregation in all forms. In fact the magnum opus of that distinguished Harvard jurist Raoul Berger, The Fourteenth Amendment and the Bill of Rights, shows exactly the opposite. Most members of Congress in 1866 did not call for an end to segregated education, which still existed in some Northern states. The Equal Protection Clause went no further than a civil rights bill passed by Congress several months earlier, a law that protected the property rights and rights of person of former slaves.
This, by the way, is not an indirect justification of power being seized by agenda-driven courts in the name of the “living constitution.” Foley is justifiably contemptuous of this bogus constitutionalism. In 1954 the courts could have persisted in an older strategy of pushing segregationist states into desegregating schools, by insisting that the requirement of “separate but equal” was not being met. Even by the old rules under Plessy, the funds and equipment awarded to black schools was disproportionately small, although in the then impoverished Deep South, the allocations for white schools were probably almost as meager. It would have been costly to create truly equal educational facilities for both races in areas that could ill afforded this luxury. I would also note that Brown’s success in swaying judges and the public with sociological evidence about the psychic effects of groups being separated fueled later experiments in government social engineering. The implications by now have extended well beyond the issue of racial segregation.