fbpx

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on November 08, 2018 at 14:39:57 pm

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.

[T]his much I think I do know--that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

Learned Hand, The Contribution of an Independent Judiciary to Civilization, 1942.

In other news, Kellyanne Conway’s husband is spouting off again. This time he’s citing Clarence Thomas for the proposition that the Constitution forbids Executive Branch “superior officers” from exercising power before confirmation following advice and consent of the Senate, and thus there’s no such thing as an “acting” attorney general.

I knew you originalists would want to opine on this.

read full comment
Image of nobody.really
nobody.really
on November 08, 2018 at 14:41:52 pm

All of the above rests upon an unstated presumption that *originalsim* supports birthright citizenship.

Many would, and do, differ with Weiner on this issue; so let us , for the moment, at least concede that The Trumpster may be correct regarding *birthright* citizenship guarantees - or he could be wrong.

Weiner argues that:

a) Each respective Branch of government does have, and must act upon, it's own *originalist* sense of the constitution.
He has done so consistently on these e-pages, and properly I would add. Yet, now he urges us to contest Trumps "originalist" interpretation of the Citizenship Clause. Is it because , he is Trump and owing to his unPresidential behavior, he is not to be owed deference? What specifically is it that The Trumpster has done that precludes a fair assessment of his view of the requirements of the Citizenship Clause. In this interpretation, he is joined by a number of noted legal academics AND I may add by a majority of the American people.
b) Weiner also alleges that long historical practice and precedent would indicate that this is a "settled matter" and should not be altered. If settled, 1) why is there still considerable and informed debate about Wong Kim Ark?, 2) why does not a majority of the American citizenry support birthright citizenship. Should not one look to the "public" to ascertain "public meaning"? Clearly, Weiner assumes too much when he claims both a legal and a cultural stare decisis.
c) Weiner also asserts that HOW something is done is as important, perhaps more so, than what is done.
Has Weiner, unlike the rest of us, reviewed the contemplated Executive Order? How is it to be dome? Weiner is satisfied to allow precedent to be controlling. Is it not within the power of Executive Agencies and the Executive to determine enforcement actions? Given the vagueness of the text (in the minds of some) "jurisdiction thereof" is it not within the power of the Executive to define for enforcement purposes of the relevant immigration statues when and how a person has freely and fully submitted themselves to the jurisdiction thereof? (Hypotheticals here, kiddies). Was not something akin to this the basis for Obama's DACA changes?

My own preference is that the Legislative address the issue and define the meaning of "jurisdiction thereof" and that that determination exclude illegal aliens.
Absent that let us employ the device provided in Art V.

My preference is that The Trumpster not take any *EXTRA*- constitutional actions.
The question, of course, is this: Is an EO technically within the discretion permitted within a statute, on a matter where agreement is not to be had among the separate Branches and / or where the plain text is (now alleged to be) ambiguous, to be construed as an EXTRA Constitutional exercise of Executive Authority.

Again, Weiner argument rests upon the premise that birthright citizenship is originalist. Quite the presumption, Greg!

read full comment
Image of gabe
gabe
on November 08, 2018 at 14:49:42 pm

Clever - if somewhat selective assessment of the case.
In any event, Thomas's concurrence is not controlling.

read full comment
Image of gabe
gabe
on November 09, 2018 at 09:07:21 am

The presumption that birthright citizenship is "originalist" depends on the original distinction (first made at the beginning of the Articles of Confederation, in a way that has never been changed) between "United States of America ( the union of the now-50 states) and "United States" (the federal government as a separate entity with its own territorial jurisdiction -- over D.C., U.S. territories, military bases, and (for a decade or so after the Civil War) the vanquished Confederacy (but NOT the four slave states that remained loyal to the Union, for an extra wrinkle that often goes un-noticed when evaluating how " United States" citizenship elevated the status of black people).

There is no clear body of case law on this all-important distinction between "United States" and "United States of America, and I am given to understand that federal judges are inclined to take "silent judicial notice" of this distinction so as to not cause an avalanch that would unravel the whole shaky edifice of Supreme Court decisions using the 14th Amendment to apply the Bill of Rights to the state governments.

If I am not mistaken, the President has much broader authority regarding an executive order that applies exclusively to matters under federal (and not state) jurisdiction, such as any matter that affects the "United States" (as opposed to the "United States of America). I suppose it's well past time for the Supreme Court to test that one, with the Court having within its power a sweeping melt-down and re-structuring of power sharing between the federal government and the governments of the 50 states.

read full comment
Image of John Schmeeckle
John Schmeeckle
on November 10, 2018 at 08:22:28 am

[…] Read more: lawliberty.org […]

read full comment
Image of Political Originalism and the Problem of Power - Trump Gawker
Political Originalism and the Problem of Power - Trump Gawker
on November 10, 2018 at 12:33:17 pm

Hey nobody - NOW HEAR THIS:

https://originalismblog.typepad.com/the-originalism-blog/2018/11/is-the-federal-vacancies-reform-act-constitutional-following-up-on-mike-ramseys-a-hrefhttpsoriginalismblogtype.html

wherein it is shown that The Executive may legitimately "temporarily" appoint a principal officer.

Hmmm! Caught again regurgitating the latest leftists pap!

read full comment
Image of gabe
gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.