At Legal Theory Blog, Lawrence Solum: The Role of Originalism in Trump v. Barbara. From the introduction:
This Legal Theory Blog post examines the role that originalism plays in the opinions in Trump v. Barbara. What does today’s decision tell us about the role that originalism is playing on the Supreme Court? That question has several dimensions. One dimension is theoretical: does the reasoning of the Justices indicate a commitment to the originalist idea that the original public meaning of the constitutional text is binding? Or is the opinion instead an example of constitutional pluralism that treats text (and hence the original public meaning of the text) as one of multiple modalities of constitutional argument—along with precedent, historical practice, and perhaps others? A second dimension is methodological: does the opinion (whether originalist or pluralist in theory) employ adequate originalist methodology, analyzing the meaning (semantic content) of the text as disambiguated by context, taking all the evidence into account, and addressing the originalist scholarship?
These two dimensions are independent. An opinion can be pluralist in theory and still do excellent originalist work on its textual modality; an opinion can claim the originalist mantle and do the work poorly, or selectively.
One more thing: this post does not take a stand on the substance of the original public meaning question. Some readers may be disappointed in my failure to reach a conclusion about which side was correct in its originalist analysis. But opining on that question would be a breach of my duty of epistemic responsibility. I am generally familiar with the secondary literature, but I have not read all of that and I have only read a smattering of the primary sources. As readers undoubtedly know, some very strong opinions have been expressed on these questions but in my view many of these opinions are quite obviously being put forth by scholars who have not even read the secondary literature with care. No serious scholar should be expressing a scholarly judgment about the merits of the birthright citizenship question if they haven’t done at least a moderately deep dive into the primary sources. Of course, we can express opinions based on incomplete evidence, but those are just opinions and should be identified as not fully informed.
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The constitutional question in Barbara can be approached from an originalist perspective. Simplifying, there were two readings of the Clause: a broad reading that supported the majority’s decision and a narrow reading reflected in Justice Thomas’s dissent. By the time the case was argued, there was a substantial body of originalist scholarship, some from before the executive order was issued but much more that appeared very recently.
The narrow reading—that the Clause withholds citizenship from the children of those not lawfully and permanently present—had been defended on originalist grounds by Kurt Lash and Ilan Wurman, who argued, for different reasons and with different theories, that the phrase “subject to the jurisdiction thereof” demanded an allegiance or domicile that temporary and unlawful presence could not supply. The broad reading—that the Clause reaches nearly all children born on American soil—had been defended on equally originalist grounds, and by Michael Ramsey, by Keith Whittington (with James Heilpern as coauthor on the linguistic question), by James Ho in an essay written years before the controversy was politically live, and by Akhil and Vikram Amar. There is other scholarship, but I am focusing here on originalist scholarship by originalists. At the level of the scholarship, then, there was a contest among originalists.
This post has three parts: (1) I analyze the opinions and/or votes of each Justice for what they reveal about the Justice’s orientation towards originalism; (2) I then produce a tally that summarizes that analysis; and (3) I reflect on the implications of Barbara for a broader question about the role of originalism on the Supreme Court.
Professor Solum’s close analyses of originalism in Supreme Court opinions are a magnificent new feature on Legal Theory Blog (see also here on Trump v. Slaughter and Trump v. Cook), and are impressive for their depth and speed of response. Here’s hoping he continues this new feature!
But I’m puzzled by one claim he makes here. In his view, the majority opinion by Chief Justice Roberts should be classified as pluralist rather than originalist. Here’s his assessment:
[T]he [majority] opinion does not stop with the text, and that is what makes it pluralist. It adds a second modality, post-ratification practice: for nearly two decades after ratification the Executive Branch and the lower courts treated the Clause as an affirmance of the common law—Secretary Fish’s 1871 memorandum, Attorney General Williams’s 1872 recognition of a child born to temporarily resident Austrian parents, and the decisions in McKay, Look Tin Sing, and Chin King—with the contrary practice after 1884 dismissed as a later development, born of Chinese-exclusion politics and the Wharton-Morse international-law theory, that came too late to bear on meaning. It adds a third modality, precedent: Wong Kim Ark, read both as evidence of original meaning (the 1898 Court’s reading of the Clause as declaratory of the common law) and as binding authority confirmed by more than a century of consistent application in Hintopoulos and Rios-Pineda, with Slaughter-House in support for the point that residence attaches to state and not national citizenship. The common law, which I have grouped with the text, in fact does work of its own as a fourth strand, supplying the background rule against which the words were chosen. Four modalities, developed and convergent: that is the structure of a pluralist opinion, not an originalist one. Originalism proper would have rested on the dictionaries and Schooner Exchange and treated the rest as makeweight. The Chief Justice instead offers the linguistic argument as an alternative ground—reaching the result “even putting the common law to one side”—and then declines to let it stand alone, precisely because he does not need it to.
I’m inclined to respectfully disagree. First, post-ratification practice — particularly when it is close to the time of enactment — is a common element of originalist analysis. I’ve used it in many articles that I consider originalist: for example, The Executive Power in Foreign Affairs relies in significant part on post-ratification practice in the Washington administration, in addition to textual analysis and pre-ratification usage. Used properly, post-ratification practice can be indicative of original meaning (though it’s important that it be used carefully). My article on the original meaning of the citizenship clause and prominent originalist scholarship on the other side by Kurt Lash and Ilan Wurman discuss post-ratification evidence. (In the Barbara case, my view is that the post-ratification evidence is conflicted and inconclusive; I think the majority opinion overstates the extent to which it supports the majority’s conclusion. But that does not make the majority opinion nonoriginalist).
Second, I think the majority’s emphasis on the pre-Amendment common law is fully consistent with originalism. The common law of citizenship establishes the background context for the clause. That’s especially true because the Amendment’s drafters said repeatedly that they intended to constitutionalize the common law of citizenship. My article discusses the pre-Amendment common law, as do the articles by Professors Wurman and Lash. And prominent originalist scholar Keith Whittington’s main article on the citizenship clause is largely focused on the pre-Amendment common law. I agree (see here) that the majority opinion would read better from an originalist perspective if it started with the text and then discussed the historical common law background, instead of taking those points in the opposite order. But that’s a quibble on emphasis that doesn’t undermine the originalist nature of the majority opinion.
Third, I partly agree that the majority’s arguments from precedent are distinct from originalism. I say partly, because the principal precedent — Wong Kim Ark — may have originalist significance. It was decided in 1898, thirty years after ratification (about the same distance as McCulloch v. Maryland is from ratification of the original Constitution). Some of the Justices — notably Justice Gray, who wrote the majority — were prominent lawyers or judges at the time of ratification. And the Wong Kim Ark majority opinion itself is overtly originalist in methodology. So consideration of Wong Kim Ark is a plausible part of an originalist analysis.
But even leaving that point aside, most originalist scholars and judges (even Justice Thomas) think that originalist judging (as opposed to originalist academic scholarship) should consider precedent as a potential limit on application of the Constitution’s original meaning. Thus it’s entirely appropriate for an originalist opinion in Barbara to consider whether its conclusion is consistent with or in tension with precedent. If considering precedent makes an opinion nonoriginalist, there are very few originalist opinions.
Finally, the majority opinion does not engage (very much) in the types of reasoning associated with living constitutionalism (and Professor Solum doesn’t say otherwise). He says it is nonoriginalist because it emphasizes post-ratification history, pre-ratification common law, and precedent in addition to textual meaning. But I think all of those considerations are properly part of an originalist judicial analysis.
So in sum, in my view the majority opinion is fairly characterized as an originalist opinion (and a persuasive one too). I only wish more originalists had joined it.
Posted at 6:05 AM