At Civitas Outlook, Elias Neibart (Harvard Law School JD ’25): Originalism and the ‘Barbara’ Dissenters. From the introduction:
This essay is not about whether the Court [in Trump v. Barbara] got the case right or wrong. Instead, it addresses a recent methodological criticism of the Barbara dissents—most notably Justice Kavanaugh’s dissent in part. Everyone agrees that at the time of the Fourteenth Amendment’s ratification, there were certain exceptions to the general rule that those born in the United States were citizens. (For instance, though born on American soil, the children of ambassadors, of “enemies within and during a hostile occupation of part of our territory,” and “of members of the Indian tribes” were not considered citizens by birth.) But the dissenters didn’t view those exceptions as a closed set. Instead, they derived a legal rule from the constitutional language (“subject to the jurisdiction”), and applied that rule to a different class of people (those unlawfully or temporarily present). Was that tack—figuring out the legal rule the text created and applying it to new circumstances—an unoriginalist one?
Some have said so. One well-known legal podcast called Justice Kavanaugh “a living constitutionalist,” arguing that the Justice was “inviting himself to make open-ended judicial exceptions to the Constitution based on policy considerations.” Another prominent podcast quipped that Justice Thomas’s dissent exemplified the “de-emphasis of text in the originalist project.” One commentator argued that “Kavanaugh’s conclusion doesn’t just defy the text of the Constitution itself; it also defies [Justice] Scalia’s principle that constitutional meaning is fixed.” Justice Kavanaugh’s opinion, he continued, suggests that originalists think that “living constitutionalism is good now, so long as it aligns with the Republican Party’s shifting values.” Another commentator has argued that the dissenters—and Justice Kavanaugh in particular—were not engaging in run-of-the-mill originalism. Rather, they were employing a form of originalism that might make them appear to be “Living Common Goodist[s].”
I disagree. The Barbara dissenters broke no new methodological ground. First, they recognized that the constitutional text was fixed. So, their analysis was consistent with the “fixation thesis,” a foundational principle—embraced by both public-meaning and original-law originalists alike—that “[t]he meaning of the constitutional text is fixed when each provision is framed and ratified.” Second, they appreciated that, though the fixed text could not change, the legal rule the fixed text created can—and must—apply to circumstances and facts unforeseen at the time of ratification. This is standard-fare originalism.
Though not by name, the dissenters invoked originalism’s “sense-reference distinction.” In an important 2006 Article, Professor Christopher Green argued that constitutional interpreters need to distinguish between the “meaning historically expressed by constitutional language” (its sense) and “the objects in the world to which the term refers” (its reference). Simply put, “the sense of a constitutional expression is fixed at the time of the framing, but the reference is not, because it depends on the facts about the world, which can change.” After all, “no reasonable theorist will contend … that everything about the Constitution—everything relevant for constitutional law—is fixed at the time of the framing.”
Posted at 6:06 AM