I think there’s a lot at stake for originalism here, beyond the particular issue of the case. Trump v. Barbara has been argued expressly on originalist grounds by both sides. Both sides are supported by sophisticated scholarship of dedicated academic originalists. As Larry Solum writes in his important post on the case, the originalist position on both sides is fully developed and presented in briefs and scholarship
Especially in this context, a ruling against the administration by the originalist-oriented Justices would signal that judicial originalism does not uniformly lead to conservative legal outcomes, and especially that it’s not just a cover for policy outcomes preferred by the conservative legal movement. Of course, originalist-oriented Justices should follow originalism wherever it leads them. But in my view, as I’ve tried to express perhaps at too great length, the originalist case against the administration is by far the stronger side. It is the side most closely tied to the text and most directly derived from the common original meaning — in ordinary dictionaries and in legal discourse — of the key phrase actually used by the text. It does not depend — as the other side principally does — on extrapolations from ambiguous statements by particular drafters. It is thus most in accord with textualist originalist methodology.
This is not to say that the administration’s arguments are entirely without weight. Commentators have made that charge, often intemperately (and, not infrequently, commentators who in other contexts insist that historical meaning is messy and perhaps unknowable). But very serious originalist scholars have taken the administration’s side, at least in part, after careful examination of the history. As is often the case, the originalist evidence is not all on one side. But this why in my view the question of originalist methodology should be most in the forefront.
I’ll add that as a policy matter the particular question in the case seems quite a close one, at least in modern circumstances. The administration and conservative commentators raise important concerns about the effect of broad birthright citizenship on the national polity. And the drafters and ratifiers of the Fourteenth Amendment did not envision modern circumstances; any speculation about what they would think about those circumstances is only that: speculation. But originalism asks us to put outcomes aside and accept the rules validly enacted, until they are validly changed. To return to my opening thought, an originalist rejection of the administration position, if that is where originalism leads, is important even if — and perhaps especially if — one thinks (as I do) that the administration has some policy considerations in its favor. Originalism, unlike other approaches, requires us sometimes to accept unfavorable outcomes. That’s its strength, and its weakness.
UPDATE: On the methodological point, this is an important new paper from Keith Whittington and James Heilpern: “Subject To The Jurisdiction” As Legal Text. Here is the abstract:
The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to all persons born in the United States and “subject to the jurisdiction thereof.” This Article challenges the allegiance-based model by applying an original public meaning framework to the Citizenship Clause. Drawing on mid-nineteenth-century legal and legislative sources, the Article demonstrates that “subject to the jurisdiction” was a conventional legal term of art signifying that an individual was within the governing authority and protection of the sovereign. The Article concludes that the original meaning of the Fourteenth Amendment reinforces a broad, territorial rule of birthright citizenship that is independent of parental allegiance or immigration status.
Posted at 6:08 AM