Yesterday the Supreme Court took up a case with potentially enormous originalist implications — Trump v. Barbara, the birthright citizenship case. The Trump administration’s petition, which relies heavily on originalist sources relating to the Fourteenth Amendment, frames the question presented as:
Whether Executive Order No. 14,160 complies on its face with the citizenship clause of the 14th Amendment and with 8 U.S.C. § 1401(a), which codifies that clause.
But this framing conflates two separate questions — the meaning of the Constitution, and the meaning of the statute. (Respondent’s brief in opposition to cert made this point.) And that raises an interesting question of originalist methodology.
Section 1401, adopted in 1940, describes ways a person can become a U.S. citizen. Section 1401(a) uses the same language as the citizenship clause of the Fourteenth Amendment (“born … in the United States and subject to the jurisdiction thereof”). The petition is surely correct that Congress intended to codify the citizenship clause. But what is the original meaning of Section 1401(a)? Is it the meaning the citizenship clause was understood to have in 1940 when Section 1401 was enacted? Or is it the actual 1868 original meaning of the citizenship clause, even if that is different from what people thought it was in 1940?
Respondent in the Supreme Court case argues that in 1940 everyone understood the citizenship clause to have a broad meaning that included as birth citizens the categories of people now at issue — children of temporary visitors and of persons not lawfully present in the United States. Suppose the Trump administration is correct that the actual original meaning of the clause is narrower. Does that mean the statute must be read narrowly as well, even though that’s not how people understood it when it was enacted? Congress obviously has power under the naturalization clause to convey birth citizenship to people not covered by the citizenship clause (such as those born abroad to U.S. citizen parents.) So even if the citizenship clause has the narrow original meaning the Trump administration claims, the statute could have the broad meaning.
It’s not obvious to me how originalist methodology deals with this problem. Perhaps the original meaning of the statute is simply what people thought it meant in 1940 (that is, the broad meaning). But perhaps people in 1940 really thought the statute meant what the citizenship clause meant, whatever that was. The difficulty is that people in 1940 likely didn’t recognize that these could be two different things (especially if the meaning in 1940 was not seriously contested, as respondent argues).
In any event, it seems that the Court could decide that the original meaning of the statute is the broad meaning, regardless of what the Amendment meant. This would have the advantage of avoiding the constitutional question and leaving it open for Congress to reconsider the matter if it chose. It would have the disadvantage, though, of making my scholarship a lot less relevant.
Posted at 6:08 AM