[Ed.: We’re lifting the birthright citizenship moratorium briefly in light of the importance of the linked post.]
At Legal Theory Blog, Lawrence Solum: Six Thoughts on Originalism and the Birthright Citizenship Clause.
Here is the first one:
First Thought: Party Presentation Has Focused on the Original Meaning of the Clause
Sometimes, the Supreme Court decides a constitutional question on the basis of nonoriginalist precedent because the parties have not raised originalist arguments, but that is not the case here. Instead, the parties have made originalist arguments and cited the scholarly literature. Of course, it simply isn’t possible for either the briefs or oral argument to explore all of the most important evidence of original meaning, but originalists should not understand the party presentation principle to require the Justices to limit their judgments about the original meaning of the clause to statements quoted in the party’s briefs: raising the constitutional issue satisfies the Party Presentation Principle—as Randy Barnett and I have argued in “Making the Party Presentation Principle Safe for Originalism” Both the Citizenship Clause and its original meaning have been raised by the parties.
Agreed, and I think one could further emphasize the extent to which both sides have made originalist arguments the centerpiece of their respective cases.
This one is interesting on an issue beyond the particular case:
Fifth Thought: The Court Should Think Carefully Before Taking the Statutory Offramp
There is a possible statutory offramp in Trump v. Barbara. The Court might decide the case on the basis of a federal statutory provision with language that parallels the constitutional text but was enacted in 1952 (8 USC §1401(a)). It has been argued that the meaning of the statute was fixed in that year and that the current conventional wisdom about “subject to the jurisdiction thereof” was the predominant understanding of that phrase at the time of enactment and promulgation. Of course, originalists accept the Fixation Thesis (which is sometimes expressed as the Fixity Canon), but that does not settle the question. Why not? Because the reenactment of old language raises a question about the second-order communicative intentions of the Congress that did the enacting. Congress might have had a second-order communicative intention to adopt the communicative content of the Fourteenth Amendment—to leave it unchanged. Or Congress might have wanted to convey the meaning as it would have been understood at the date of enactment—and hence to change the meaning if there had been linguistic drift. This is a tricky issue, and the Court must resolve it if the Court decides it wants to take the offramp.
Agreed. As I’ve noted before, I’m not sure what I think about it. I’d like to know what Professor Solum thinks.
Of course I agree with the third thought (and I would add the articles by Keith Whittington and Ilan Wurman.) But I don’t agree entirely with this one:
Second Thought: The Justices Must Decide Whether “Subject to the Jurisdiction Thereof” Has an Ordinary Meaning or a Technical Meaning
One of the central ideas of Public Meaning Originalism is that the original meaning of the constitutional text is its original public meaning—a meaning that is either understood by or accessible to the public, ordinary citizens. But the Constitution sometimes uses technical language, phrases like “Letters of Marque and Reprisal.” Was “subject to the jurisdiction thereof” a technical phrase, the meaning of which depended on the common law of natural born subjects in England? Or was the phrase intended to have an ordinary meaning, based on the way that ordinary citizens would understand “subject to the jurisdiction”? From an originalist perspective, the key question is this: “Would citizens in 1868 have understood the phrase as technical language or would they have understood the phrase to have ordinary meaning?” Public Meaning Originalism embraces technical meaning, but only when that meaning is accessible to the public. Secret technical meaning is antithetical to the notion that the Constitution was a public document, written for the people, and intended to have a meaning that was access to us, that is to “We the People.”
That is, I agree with essentially everything in the paragraph as a general matter, but I do not agree that this particular case requires a choice between ordinary meaning and technical meaning. In my view, under either approach the outcome is clear. Advocates of a narrow meaning of the phrase have not made a persuasive case that there was a narrow technical meaning. Whether considered as an ordinary phrase or as a legal phrase, “subject to the jurisdiction” meant “under sovereign authority.” That is the way it was used both in common dictionaries and in legal treatises.
Posted at 6:28 AM