When Originalism meets UET

I was not surprised the Court ruled that children born in the U.S. are citizens under the Fourteenth Amendment.   I was dismayed by the 5-4 ruling.  How could four members of the Court feel the president of the United States through executive order enact a line-item veto to the U.S. Constitution?

 

The four dissenting justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh are beholden to an originalist philosophy in a wayward and destructive manner.  The ruling in Trump v. Barbara indicates the danger to democracy when originalism is combined with the Unitary Executive Theory (UET).  

 

While originalism has variations, it is largely understood as interpreting the Constitution based on the original public meaning of its text at the time it was ratified. The Unitary Executive Theory is a concept asserting that Article II of the U.S. Constitution grants the President total, uncontrollable authority over the entire executive branch, including all federal agencies, regulatory bodies, and executive officers.

 If the meaning of the Constitution is fixed and should not be altered by modern interpretations or societal changes, as originalists hold, is that not arbitrarily holding the nation’s progress in arrested development?

Though originalism has infiltrated constitutional interpretation, it is to jurisprudence what the Lost Cause of the Confederacy myth is to America’s historical canon, an inaccurate belief that the nation’s governing document could be cryogenically frozen by an 18th century worldview.

 The problem for originalists, it is impossible to maintain a rigged ideology against the mores embedded in the Declaration of Independence and the Constitution.  Justice Thomas argued that the 14^th Amendment was narrowly written for the formerly enslaved and should not be applied broadly in a contemporary context.

 The legitimacy of Thomas’ thinking holds until one takes the time to read the 14^th Amendment.

 Section One 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.”

Thomas’ narrow interpretation is countered by the first word of the text, “all” as in “all persons.”  Aside from conveniently ignoring the most inclusive word in the English lexicon, Thomas seeks to enter into the minds of the artisans of the 14^th Amendment.

There’s little doubt the 14^th Amendment was the result of the Civil War.  It addressed Lincoln’s call at Gettysburg for “new birth of freedom” by placing language of the Declaration of Independence into the Constitution.  What Thomas cannot reconcile was that it was not until the 13^th Amendment that slavery was mentioned.  Given it was the next amendment, wouldn’t enslavement have been mentioned if the 14^th Amendment held the narrow focus that Thomas subscribes?

Alito, in his dissenting opinion opined that conferring citizenship on anyone who is born here is a “serious mistake.”  Alito’s rant seems better suited prior to the 14^th Amendment’s adoption in 1868 or some right-wing cable news program, but it hardly seems appropriate for a member of the Supreme Court.

The Court is the ultimate interpreter of the Constitution, not a passive arbiter that renders decisions based on feelings.  Alito’s analysis runs against judicial review established in Marbury v. Madison (1803). 

Kavanaugh found the president’s executive order did not violate the 14^th Amendment but a federal statute that grants citizenship to immigrants’ offspring. Kavanaugh also suggested Congress could “amend” the existing statute.

For the 44 percent of the Court that, in various ways, found subjectivity in a core principle of the 14^th Amendment, all roads lead to UET.   This muscular understanding of the presidency, which has been a conservative stalking horse for decades, is a veiled attempt to transform three co-equal branches of government into one tenured branch (the presidency) and two adjunct branches (congress and judiciary). 

The 14^th Amendment fundamentally changed the nation.  It was created in response to enslavement, but in order for the nation to move closer to what it committed in 1776.  By expressly stating the Declaration’s key principles (liberty and equality), the birthright citizenship clause affirms the American ideal.  

 American citizenry is not riveted to familial lineage but to ideals; not to blood but soil.  Citizenship is affirmed by jus soli, or right of the soil.  As the 14^th Amendment’s inclusive language states, those born or naturalized and “subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.”

The 14^th Amendment became the catalyst to America's diverse demographic; it fuels the nation's creativity, propels its innovation, profoundly impacts the culture, and contributes to its economic vitality.

Four members of the Court believed it possible that the president of the United States possessed the power to return to a portion of the infamous Dred Scott decision with a stroke of his pen.  It is an attempt to rob the nation of its memory—the most egregious infraction to a free people.

Though the outcome was what most expected, the country was one vote away from being permanently hamstrung by jingoism masquerading as constitutional acumen.

Byron Williams is author of the recently released Liberty and Equality in America: Examining the Radical and Paradoxical Legacy of the Declaration of Independence.