This weekend the Center for the Study of Constitutional Originalism will be holding its Ninth Annual Originalism Works-in-Progress Conference.
The debate on birthright citizenship continues. But I find it frustrating in two ways. First, nonoriginalists continue to ignore that there is a very reasonable case to be made that nonoriginalism denies birthright citizenship. Second, some critics of birthright citizenship, who purport to write from an originalist perspective, continue to argue that the original meaning does not protect birthright citizenship.
Let’s start with the nonoriginalists. Sometimes I think that nonoriginalism actually is what it is caricatured to be: a method of reaching decisions according to the moral values of the interpreter. Some nonoriginalists are simply asserting that birthright citizenship is the meaning of the Constitution and that anyone who claims otherwise is simply ignorant and morally depraved. But such vehemence does not prove that these nonoriginalists are right or consistent.
Nonoriginalism does not do what many nonoriginalists think it does. Nonoriginalism is a methodology that often leads to significant uncertainty. While that means that you can often argue for the result that you like, it also means that you do not have a strong argument against people who interpret the Constitution to mean something you don’t like. The uncertainty of nonoriginalism means that lots of results become permissible. Simply ignoring this aspect of nonoriginalism does not make it go away. If you are a nonoriginalist, you don’t have a strong principled argument against people who interpret the Constitution to deny birthright citizenship.
Now on to those marching under the banner of originalism. Andrew McCarthy, following Lino Graglia, claims that the Fourteenth Amendment Citizenship Clause does not confer birthright citizenship. Instead, the Constitution only confers citizenship on the children of American citizens (and some legal resident aliens). But this argument is not the best reading of the evidence and turns on some problematic originalist methodology.
Graglia, upon whom McCarthy relies, argues that the meaning of “subject to the jurisdiction” of the United States in the Fourteenth Amendment gets its meaning from the Civil Rights Act, which was passed two years before Congress passed the Amendment. Graglia notes that the Civil Rights Act had different language, which provided that “[A]ll persons born in the United States, and not subject to any foreign power,” were citizens. I agree there is a strong argument that this language of the Civil Rights Act does not confer birthright citizenship, but that does not support Graglia or McCarthy’s argument. The Amendment changed the Civil Rights Act’s language. The natural inference is that it did so for a reason. One cannot simply claim, as Graglia does, that it does not appear that this change in the language changed the meaning of the provision. If the better reading of the Fourteenth Amendment’s actual language is to confer birthright citizenship, then that is what one goes with.
I don’t mean to suggest that that the history here is a slam dunk. I myself have argued that there is some uncertainty as to the full meaning of “subject to the jurisdiction” of the United States. But the argument for birthright citizenship is still much stronger than the alternative.
In the end, advocates and opponents of birthright citizenship are stuck in a dilemma. The advocates tend to be nonoriginalists, but that methodology does not provide them with a strong case against those who deny birthright citizenship. The opponents tend to be originalists, but originalism is more determinate than nonoriginalism and provides strong support for birthright citizenship.