At The New Digest, Jeremy Christiansen (Regent): Trump v. Barbara and the End of Originalism. From the introduction:
The Supreme Court’s decision in Trump v. Barbara, holding that the Trump Administration’s attempts to redefine the scope of birthright citizenship via Executive Order violated the Fourteenth Amendment’s Citizenship Clause, will continue to be a flashpoint for the foreseeable future. But I think one of its enduring legacies may be this: what Bostock v. Clayton County started, Trump v. Barbara has finished—the end of originalism.
“But Professor Christiansen, isn’t Trump v. Barbara an illustration of the vitality of originalism because it shows that those are the terms of the debate now?” I want to stake out a contrary position.
First, a practical point. The “Conservative Legal Movement” knows well that for the last six or so years, it has been losing and continues to lose young conservative lawyers to alternative conceptions of law and justice, such as those represented by the editors and contributors to the New Digest. Bostock was a major inflection point, in which one of the arch-originalists declared that Title VII’s reference to “sex” includes homosexuality and transgenderism. To be sure, the Court this term continues to do damage control by writing Bostock off (as they should), but Justice Gorsuch remains intransigent; he was merely doing the job of a good textualist (see West Virginia v. B.P.J. (Gorsuch, J., concurring). I can personally attest that for many young conservative lawyers, law clerks, etc., Bostock was a breaking point, but at minimum represented a willingness to consider whether the intellectual project of Conservative Inc. had a fundamental problem. In my view, Trump v. Barbara will have as big of an effect (if not bigger) on the next generation of young conservatives, who are told that our fundamental law, to which they swear allegiance as lawyers, not merely stands mute but affirmatively guarantees the most precious of all rights enumerated in our Constitution to the children of spies swearing allegiance to hostile foreign powers who come here with the express purpose of harming our great Nation. This is the original public meaning of our Constitution, the greatest Constitution in the history of the world. I can forgive young conservatives for not being persuaded by a rule that led to this. The breach between young conservatives and institutions like the Federalist Society (which will rightly be seen as responsible for things like this, given Justice Barrett’s decisive vote as to the constitutional question in Barbara) will continue to widen at a rapid pace. Predictions are risky, but I am willing to make this one.
Second, more importantly from my own perspective, Trump v. Barbara, much like Bostock, keenly illustrates the theoretical problems of originalism. …
And in conclusion:
In an important way, Barbara is the bookend for Bostock as far as originalism goes. For both practical and theoretical reasons, the decision will precipitate the end of originalism as we know it. To be sure, I don’t think the term “originalism” is going anywhere any time soon. But the push to redefine originalism into something more robust, more substantive, and more coherent will accelerate from this point on, to the point where people may say “originalism” but mean something quite closer to what we here at the New Digest have been arguing for all along.
Related, from the same author: Hey Hey, Ho Ho, Afroyim Has Got to Go! From the introduction:
Having made my prediction about the impact of Trump v. Barbara on the originalist project, I’d like to turn my attention to what I see as an imperative for the conservative legal movement in the wake of Barbara.
Commentators have already begun to note political fall out, and various calls (here and here) comparing Barbara to Roe v. Wade in certain respects, including that it should serve as a rallying cry for conservatives until the makeup of the Supreme Court changes and the decision can be reversed. I want to suggest something else that probably needs to be done first, especially if we think Barbara could be on the books for a decade or more (which is likely): overrule Afroyim v. Rusk.
Decided in 1967 by the ever-stalwart rule-of-law enjoyers Hugo Black, Earl Warren, Abe Fortas, William Douglas, and William Brennan, Afroyim held that Section 401(e) of the Nationality Act of 1940 was unconstitutional. Section 401(e) provided that a person could be stripped of citizenship involuntarily by, e.g., voting in foreign elections or dodging the draft under certain conditions. Mr. Afroyim traveled abroad and voted in a foreign election and then when he tried to renew his passport some years later, the State Department refused on the grounds that he had forfeited his citizenship by voting in the foreign election. Notably, only a decade prior, the Court had faced the same legal issue in Perez v. Brownell, but upheld the constitutionality of Section 401(e) in an opinion authored by Justice Frankfurter, joined by Justices Burton, Clark, Harlan, Brennan, and Whittaker. Justice Brennan would soon after join in a chorus of one-off invalidations of statutes aimed at expatriation and the like, voicing some “concerns” about his decision to join Perez, ultimately switching his vote on a Court that had lost several members of the Perez majority by the time Afroyim came up. (A meta-lesson for the future of Trump v. Barbara in itself).
…
Justice Frankfurter’s majority opinion in Perez, as well as the dissent in Afroyim, exhaustively lay out why Afroyim was wrongly decided, in particular, decimating Afroyim’s “originalist” cherry-picking of sources that even the majority had to admit were at best ambiguous and not the ground of the decision. The Afroyim majority, after making this concession, ultimately held that its ruling rested upon “the principles of liberty and equal justice” behind the Fourteenth Amendment. Not exactly the kind of thing most of the Court’s current originalists or conservatives believe a viable legal principle, at least at the high level of generality in which Afroyim expressed and deployed it.
While I don’t agree with Professor Christiansen about originalism, he might have a point about Afroyim, at least as an originalist project.
Posted at 6:03 AM