On birthright citizenship, Supreme Court ‘originalists’ are split

WASHINGTON— The Supreme Court’s conservative justices say they decide cases based on the Constitution’s words and original history, not their personal or political views.

Following the lead of the late Justice Antonin Scalia, they say they see history and “originality” as a guiding principle to prevent justices from amending the Constitution to accommodate new and changing times.

This approach to text and history is said to contrast with the evolving or “living Constitution” favored by progressives and liberal activists.

But this year we have witnessed something of a shift in birthright citizenship.

Leading conservatives agreed with President Trump that the increase in illegal immigration requires a reconsideration of the promise of citizenship at birth set out in the 14th Amendment of 1868.

Justice Samuel A. Alito Jr. “The number of illegal immigrants in this country has exploded in recent years,” he wrote in his dissenting article. He added that the citizenship at birth rule provides “a strong incentive to enter or remain in this country illegally.”

“The Constitution is an enduring document,” Justice Brett M. Kavanaugh wrote, but its rules and meaning must adapt to “modern circumstances unknown or unforeseen by the framers of the Constitution.”

In the same opinion, he said that “significant illegal immigration into the United States was a new condition, largely unknown as of 1868.”

There were no federal immigration laws in the mid-19th century, but this was a period when Irish immigrants settled on the East Coast and large numbers of Chinese immigrants came to California.

According to the law, their children are considered citizens at birth.

Among conservative originalists, only Justice Amy Coney Barrett has signed on majority opinion This is Chief Justice John G. Roberts Jr. It was written by and carried out with the participation of three liberals.

The opening words of the 14th Amendment of 1868 state: “Everyone born or naturalized in the United States, and subject to the jurisdiction thereof, is a citizen of the United States.”

In 1898, the Supreme Court upheld the birthright citizenship rule in the case of Wong Kim Ark, who was born in San Francisco to Chinese parents.

In an executive order, Trump proposed ending birthright citizenship for newborns whose parents are in the country illegally or temporarily.

The chief justice, writing for the court, said the words of the 14th Amendment were clear and clearly understood at the time. He rejected the “dramatic revisionist view” recently expressed.

Kavanaugh voted with the majority to block Trump’s order from going into effect. He did this because Congress had adopted birthright citizenship in a 1952 law.

“Consistent with the 14th Amendment, Congress … may enact new law providing exceptions to birthright citizenship,” he wrote.

Justices Clarence Thomas and Alito wrote lengthy dissenters, arguing that the framers of the 14th Amendment did not or would not support birthright citizenship.

They noted that recent research by law professors raises questions about the accepted understanding of the 14th Amendment and the citizenship rule.

Thomas said the child’s citizenship should depend on whether his parents have “domicile” in the country. Enslaved black people undoubtedly resided here, but the same is not true of temporary visitors.

Justice Neil M. Gorsuch agreed in part with Thomas and questioned whether temporary visitors’ newborns should be considered citizens at birth.

Many court commentators were surprised by the close 5-4 split on the constitutional issue.

“Given how clear the language was, I expected it to be 7 to 2,” said New York University law professor Melissa Murray. “I literally took my breath away when I saw it was 5-4. This hasn’t been resolved yet. We’re not done with this argument.”

“Authenticity is getting more and more confused. History either matters or it doesn’t,” said podcaster and SCOTUSblog analyst Sarah Isgur.

But he agreed with Kavanaugh’s approach of leaving reconsideration of the issue to Congress.

Not all originalists are conservatives.

Constitutional historian Yale Law Professor Akhil Amar has argued that the history of birthright citizenship is clear and not subject to revisionist thought. He said the Reconstruction Congress adopted the principle of birthright citizenship and stated this intention in clear terms in the 14th Amendment.

“When a baby is born on American soil and an American flag flies over it, that baby has the birthright of citizenship, as Reconstruction Republicans across the country understand it,” he wrote in February. This rule “has almost nothing to do with the baby’s parents.”

He was mostly pleased with the court’s decision last week.

“This is a victory, but it should have been 9-0,” Amar said in a SCOTUSblog-sponsored review of the trial period. “Shame on the opponents, they did not even give the address of the charter” and its text.

But the majority led by Roberts “clearly confirmed the plain meaning of the constitutional text and its history. And that’s a win,” he said.

History has a recurring role on the Supreme Court.

Isgur said the court will hear arguments in the fall on whether the 2nd Amendment of 1791 gives gun owners the right to own “assault weapons” such as AR-15 rifles.

He said the court would then decide between the date and the changed circumstances.

The question is whether these modern rapid-fire rifles comply with the history of gun rights protected by the 2nd Amendment, or whether they pose a new and dangerous threat to public safety that was unknown in 1791.

Scalia’s opinion Protecting gun rights in 2008 He is often cited as a model of originalism, but he, too, emerged from a court divided 5-4.

The 2nd Amendment states: “The right of the people to keep and bear Arms, shall not be violated, a well regulated Militia being necessary to the security of a free state.”

For decades, the Supreme Court has all but ignored the 2nd Amendment, viewing it as a somewhat antiquated provision involving militias, similar to the 3rd Amendment. It prohibits soldiers from being “accommodated in any home in time of peace.”

In 2008, four liberal dissenters said the court should uphold this understanding of history.

Justice John Paul Stevens said the 2nd Amendment was added to the Constitution to protect state militias from federal interference. He also said that the phrase “carrying weapons” indicates that it is related to militias.

But Scalia’s opinion is precedent-setting and dissenters have completely misunderstood history, he said.

The right to own a gun for self-defense originated in England and came to the American colonies. “At the time of its founding, the right to own arms had become fundamental for British subjects,” he wrote.

He said the 2nd Amendment does not create any new rights. Rather, it “codified a pre-existing right.” [of] owning and using a weapon to protect oneself [defense]” he wrote.

“There is no doubt to us, both textually and historically, that the 2nd Amendment gave the individual the right to keep and bear arms,” Scalia wrote.