Our Revolutionary Birthright

Trump v. Barbara and its Meaning

Today is the 4th, and this past week, we saw the meaning of America questioned, affirmed, but possibly forever changed.

The essence of the Trump phenomenon is an attack on the American idea of citizenship; it’s the bright red thread that runs from “birtherism” to Barbara, it is why Trump felt the need to show up at the Court for this case, and it is why his minions now raise a great hue and cry against a decision that just a few years ago would have been regarded as common sense.

The Trump v. Barbara decision is confusing: Is it a decisive win for birthright citizenship or a bare and fragile victory that is just the opening salvo in a generations-long war on the idea of America itself? It’s too soon to tell, but I think Roe-type campaign on the 14th would be a harder battle for the right; the implied right of privacy in Roe v. Wade was more tenuous ground than the text of the 14th Amendment and all the historical documentation that supports its plain meaning.

With that being said, Kavanaugh’s narrow dissent-concurrence that splits the difference and says that Trump’s executive order was against the law but not the Constitution creates an opening for aggressive Republican legislators to test the bounds of birthright. The right doesn't need the Dobbs path because Kavanaugh built them a shorter one, and it's worth spelling out its arithmetic. If Congress amends §1401(a), Kavanaugh's ground for invalidation evaporates by his own explicit terms. The question then returns to the Court as purely constitutional, where the margin is 5–4, and the five are Roberts, Sotomayor, Kagan, Barrett, and Jackson. So, then the war on birthright citizenship, post-Barbara, requires two things: one law and one seat on the court.

Some conservative and libertarian commentators have pointed out that if read carefully, no justice’s reasoning supports the Executive Order in full. Here’s David J. Bier for the Cato Institute:

1. Despite their votes, no justice agreed with the executive order in full.

   • Justice Clarence Thomas asserts that citizenship should be based on where someone’s parent is domiciled and on their intent to remain. But the executive order is based on legal status, not residence.

   • As fellow dissenter Neil Gorsuch notes, this rule would grant citizenship to domiciled illegal immigrants, which he doesn’t rule out. In the absence of a congressional statute, it would also seemingly limit citizenship for children born to US citizens in the United States when their parents’ residence is abroad.

   • Justice Alito thinks it should be based on whether the child gets citizenship from a foreign country at birth, but he admits that this would grant citizenship to some children of illegal immigrants. Alito seems to acknowledge that this interpretation could affect the citizenship of some children of naturalized citizens as well.

   • Only Justice Kavanaugh defends the scope of the executive order itself, but then finds that it violates Congress’s statute. I think they’re all in conflict because their underlying theory has no historical, legal, or textual basis.

Ed Whelan in The National Review:

At bottom: Six justices hold that every child born of parents unlawfully or temporarily present in the United States is a citizen—five under the Citizenship Clause, one (Justice Kavanaugh) under federal immigration law. Perhaps less noticed is that two other justices (Justice Thomas and Justice Gorsuch) leave open the possibility that massive numbers of babies born to illegal aliens are birthright citizens, and the approach of the ninth justice (Justice Alito) means that some difficult-to-quantify (but potentially very large) number of babies born to illegal aliens also are.

This raises the question, then, of why the ruling wasn’t at least 7-2 or even 8-1.

I think, on some level, the conservative justices wanted to help the administration, and therefore their "side,” save face: they gave cover and legitimacy to absurd arguments to prevent total humiliation. By doing so they have created a gap that the right will attempt to pry open. Besides, the spirit of party that led them to this was just the habit of their profession, which is that of sophistry. I was just reading William Hazlitt’s Political Essays, and came across this from the “Illustrations in the Times Newspaper,” which seems apt:

A lawyer is a sophist by profession ; that is, a person who barters his opinion, and speaks what he knows to be false in defence of wrong, and to the prejudice of right. Not only the confirmed habit of looking at any side of a question with a view to make the worse appear the better reason, from a motive always foreign to the question itself, must make truth and falsehood sit loose upon him, and lead him to look on both indifferently, as his convenience prompts ; but the quibbles and quillets of the law give a handle to all that is petty and perverse in his understanding, and enable him to tamper with his principles with impunity….The bent of a lawyer’s mind is to pervert his talents, if he has any, and to keep down his feelings, if they are at all in his way. He lives by forging and uttering counterfeit pretexts; he says not what he believes to be true, but any thing that by any trick or sleight he can make others believe ; and the more petty, artificial, and farfetched the contrivance, the more low, contemptible, and desperate the shift, the more is he admired and cried up in his profession.

The handle that the "quibbles and quillets of the law" gave them here is the facial-challenge standard. The plaintiffs attacked the order on its face—strike it for everyone, before it operates on anyone. Under Salerno (1987), such a challenge fails unless “no set of circumstances exists” in which the order could lawfully apply. One valid application saves the whole thing. For Thomas and Gorsuch, that one application was “the birth tourist.” Their domicile theory condemns the order in the vast majority of its real uses—most children of undocumented parents are children of domiciled parents—but it permits the order to operate on children of true transients. One valid application; challenge fails; they vote to uphold the order entire, including everything their own theory forbids. Gorsuch admits it: the order is “lawful at least as applied to children of temporary visitors.” At least as applied to does all the work. Had they prevailed, the millions of children their theory calls citizens would have been left proving domicile, family by family, before the Social Security Administration. Here and throughout the case, the conservative justices were acting as Trump believes they should, as his lawyers, rather than the judges he must prove his case to.

There are many ironies surrounding Trump v. Barbara, but the greatest irony, the master irony that controls the rest, is the reversal of the position of “conservative.” Barbara preserves the fundamental law of the land that has prevailed for 160 years and was reaffirmed 130 years ago in United States v. Wong Kim Ark. But to judge by the reaction of the right-wing commentariat, the court handed down a wild innovation that breaks radically with tradition. The caterwauling of the conservatives is ridiculous but also somewhat frightening, because they are attempting a total revision of the country’s history and customs while pretending to be its custodians. This is why I’ve always thought it right to apply the labels “fascist” or even “totalitarian” to this movement: it is an attempt to alter the character of the country through the force of shrill and screeching propaganda.

The ironic reversal of conservative and revolutionary positions can be found in the opinions themselves. The majority uses the particular to derive the universal; the minority attempts to use the universal to derive the particular. Roberts is performing what the great scholar J.G.A Pocock called the “common-law mind” in his book The Ancient Constitution and the Feudal Law: the insistence that contemporary rights had their origins in a customary order that reached back to “time out of mind.” Roberts’s opinion treats jus soli as an immemorial custom—Calvin's Case, Blackstone, Kent, an unbroken chain, with the 14th Amendment merely "declaratory" of what was always the law. Roberts presents the 14th as part of what Edmund Burke would call “the entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity.” For Roberts, the Dred Scott decision is something like the “Norman Yoke” was to the common lawyers of the 17th century—the regrettable, illegitimate interruption of ancient liberty. If this is tendentious mythmaking, it is tendentious mythmaking with a great American pedigree: it would have been familiar to the Revolutionary generation, who began by insisting on their “rights as Englishmen.”

Clarence Thomas’s arguments correspond to the other part of Pocock’s work. In the 17th century, antiquarians discovered that the “ancient” Anglo-Saxon custom was nothing of the sort: it was actually the feudal law imposed by the Normans; parliament and the courts did not derive from the concrete utopia of pre-Conquest days, but from the rule of William the Conqueror. This gave the monarchists an invaluable weapon against parliamentarians: they could debunk the “ancient right” arguments and show that the legal order derived from the King. In like manner, Thomas points to jus soli as a feudal relic, born of medieval subjection to the king—"the darkness of the Middle Ages," as he writes. Also in like manner to the King of England’s lawyers, Thomas is providing legal support for a would-be absolutist. But while Thomas is playing historian, the counter-history he develops is itself no less an act of tendentious mythmaking, carefully avoiding the documentation that would clearly refute his position. He has to completely excise ratification record: namely, the exchange in which Senator Cowan objected that the Clause would confer citizenship on the children of Chinese immigrants and Gypsies, the era's bywords for the unassimilable and the transient, and Senator Conness, speaking for the Clause, accepted the implication outright. The framers were confronted with precisely the objection Thomas raises, and enacted the Clause anyway.

Justice Jackson’s opinion situates birthright citizenship in the historical substance of the United States in a much more concrete and less mythological way than Roberts’s common-law approach. For Jackson, the 14th Amendment is the product of the “Second Founding” of Reconstruction, which has the virtue of being literally true. While Thomas attempts to construct the 14th Amendment as a narrow remedy for the formerly enslaved, Jackson quickly and easily demolishes this contention by showing the clear universalistic intent on the part of its framers. And she points to another underlying irony of the case:

…the ultimate irony is that for all the talk about the detestable Dred Scott decision, the Government and the principal dissent propose a return to its core tenet. Their bottom line is that, for certain people, being born on American soil will not suffice to confer citizenship. It is that odious conclusion that the Citizenship Clause plainly rejects, as the Court explains.

I think Jackson’s most powerful words are about the place of historical record and memory:

…[F]ading memories are not the only danger. The distortion of historical facts—retellings that reimagine and repurpose past events to lend credence to misbegotten aims—may be an even greater threat. Yet here we are. The Government, the principal dissent, and a handful of revisionist commentators now vigorously promote an interpretation of the Citizenship Clause that diverges sharply not only from what the text says, but also from the historical record as interpreted by the keepers of “the call of remembrance” (trained historians). What is more, this alternative account pitches Black Americans against immigrants when the advocates who promoted the Fourteenth Amendment did no such thing. Freed Blacks fought for the shared humanity of all people. And the Great Emancipator eventually foresaw that the only path forward that could prevent a return—in any form—to slavery and race-based subordination was to link the fates of all.

Again, the great irony of Barbara is that “liberals” uphold our tradition—a revolutionary tradition as both Jackson and Roberts emphasize in different ways—while the “conservatives” attempt a revolution against tradition. The curious dialectic of Enlightenment here is worth pointing out: the dissenterse dissenters take up the Enlightenment's weapons—contract theory, “the consent of the governed,” and the debunking of "feudal" superstition—and turn them against the Enlightenment's result. Consent was the principle that freed men from inherited status and gave them rights; here, it is used in an attempt to strip rights from infants. The "feudal relic" they're debunking is the actual instrument of equality. Abstract principle becomes exclusionary, while inherited custom is emancipatory. This is perhaps what it means to live in a revolutionary society: the tradition we conserve is the revolution itself. As Langston Hughes wrote, we must “Let America be America again…

The land that never has been yet—

And yet must be—the land where every man is free.