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Political Originalism and the Problem of Power

For those outraged by President Trump’s proposal to end birthright citizenship by executive order, a good mantra would be: “And to those Members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill.” President Obama said that in 2014 when he asserted the authority to impose his DACA program. An equally good refrain for those who have now switched sides and welcome President Trump’s unilateralism would be the response to Obama delivered by Rep. Steve King, the Iowa Republican: “This is not rocket science. Are we going to allow the president to violate the Constitution?”

Trump’s forthcoming executive order is a compelling reminder of two facts. One is that “power is of an encroaching nature.” By taking on the constitutional text, the president has notched matters up, though no more than those who once said with straight faces that the Fourteenth Amendment could be used to raise the debt ceiling. As Bertrand de Jouvenel reminds us, it is in the nature of power to augment itself, so it is no surprise that President Trump would invoke and arguably expand the authorities his predecessor asserted.

The second fact is the key one: fidelity to the original meaning of the Constitution cannot be outsourced to the courts while the political branches test the extreme boundaries of their powers. What Edmund Burke wrote of the revolutionary French Assembly has become true of the presidency, and often of Congress, under both parties: “Their idea of their powers is always taken at the utmost stretch of legislative competency, and their examples for common cases, from the exceptions of the most urgent necessity.”

What we need instead is a political originalism that recognizes the authority of all three branches of government to interpret the Constitution but also their concomitant responsibility both to accept and to follow a constitutionally proper understanding of their own authority. Regarding originalism as a theory of judicial method alone misses its power and, crucially, its meaning. It would be anti-originalist to shove originalism to one side—the judicial side—while the other branches roam free in an effort to see what they can get away with.

One fear of originalists who opposed President Trump was that, despite his promise to appoint originalist judges—a promise he has to his credit fulfilled—he would undermine the constitutional order by eroding norms of presidential behavior and bulldozing limits on his authority. (Yes, President Obama’s Constitution was anti-originalist; yes, yours truly called him out on it here, here and elsewhere; no, he is not president right now.)

The proposed executive order is an instance of bulldozing. It is questionable whether Congress could do what President Trump proposes but utterly clear that a unilateral executive cannot, at least in keeping with any semblance of the original meaning of Articles I and II, not to mention the text of the Fourteenth Amendment.

To be sure, it is unclear that those who framed and ratified that amendment intended to endorse birthright citizenship in the form in which it exists today. Such was not on their minds. But originalists have generally viewed the constitutional text as dispositive where it is clear.

The text is reasonably clear in this case. The amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” There may be originalist arguments to be made on both sides—see, for example, here and here—but there are two reasons for caution. One is that evidence of original public meaning is, again, most relevant for clarifying textual ambiguity. The second and most dispositive is that even compelling originalist arguments should not, like the reasonable case that the Framers intended to inhibit paper money, dislodge durable constitutional practice.

This sudden discovery that birthright citizenship is a myth flies in the face of longstanding and settled constitutional practice, which ought to create a conservative presumption against it. Madison, whose originalist credentials generally command respect, acceded to the constitutionality of the National Bank he had bitterly opposed because of the generational assent it had received—which at that point had been roughly a single generation, far less than the practice of birthright citizenship.

President Trump asserts that no other country grants citizenship by dint of geographical birth. This is wrong but irrelevant. The United States does many things other countries do not do. The larger point is that if there is sustained consensus against birthright citizenship—which, judging by the need for a unilateral executive order, there apparently is not—the Constitution provides a mechanism for amendment.

In this sense, originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change: namely, by what Federalist 63 calls “the cool and deliberate sense of the community.” But this approach to constitutional change is sustainable only if the political branches are as committed to originalism as the courts. The outsourcing model, perhaps better understood as confining originalism to a judicial ghetto, is hospitable to exactly the wrong kind of constitutional change. It is consequently regrettable that President Trump, as part of a tweetstorm apparently prompted by House Speaker Paul Ryan’s observation that birthright citizenship could not be ended be executive order, declared that the case would “be settled by the United States Supreme Court.” That is exactly the wrong way to settle it. It should be settled by combat between the political branches, thinking both institutionally and constitutionally.

To say all branches of government should have a view of their constitutional powers is not to rely on their self-restraint. “Ambition must be made to counteract ambition,” with respect to the political branches and the courts alike. But just as judges are selected based on their understanding of their proper constitutional role, political originalism would expect elected officials to have and hew to a similar, and one hopes limited, view of their authority.

This is wholly unsatisfying to those who would like to see birthright citizenship ended as soon as possible. (I am not one, but I have also been critical on constitutional grounds of other policies with which I did agree.) But the Constitution understood originally does not operate on an ASAP timetable, especially with respect to changing its own text. Originalists have generally agreed that how something happens, not just what happens, matters in constitutional politics. If he abandons that principle, President Trump will still deserve credit for his judges. But make no mistake: He will have undermined originalism.

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