Originalism and Birthright Citizenship: Solid Ground in an America Unmoored (Part 2 of 2)

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Before beginning a discussion of how the Court’s Justices might respond to such arguments—and the role that their philosophies of Constitutional interpretation would play—we should first establish a common understanding of textualism, originalism, and pragmatism. Textualism is what it sounds like: an approach to the Constitution and the law that adheres closely to textual interpretation. As Scalia wrote in A Matter of Interpretation: Federal Courts and the Law, “The text is the law, and it is the text that must be observed.” Originalism, on the other hand, is a method of interpretation pioneered by Robert Bork—a former solicitor general and professor at Yale Law School—and popularized by Justice Antonin Scalia which emphasizes not only the meaning of the text, but the historical context and intent behind the law when it was written. When Justice Scalia was appointed to the Supreme Court in 1986, originalism was considered practically obsolete. 

“Living constitutionalism,” on the other hand, had dominated since the heyday of the activist Warren Court in the 1960s. Justices and judges alike had pushed through massive civil rights reforms, guaranteed the right to abortion, and radically changed American society. Many Americans felt it was all for the best. The social and racial paroxysms that had convulsed America for decades were resolved with the mere bang of a gavel—but merely on the surface. Without a doubt, American society rapidly became more equal and freer. Law schools, courts, and lawyers across the country were firmly in the grip of a “living constitution,” which, as Earl Warren so eloquently wrote in Trop v. Dulles, “[drew] its meaning from the evolving standards of decency that mark the progress of a maturing society.” However, to Scalia and other originalists who took issue with many of the Warren Court’s rulings, the issue lay not with the legal changes themselves, but rather the mechanism used to create them: an unelected Judiciary. As judicial doctrines like living constitutionalism generate new rights and laws with their rulings, it seems natural that their implications necessitate politicizing and polarizing the appointment process. Burdened with the new responsibility of acting as a democratic mechanism by the rulings of the Warren Court, prospective appointees would be evaluated not for their legal expertise or integrity, but rather on the basis of their ability to translate America’s “evolving standards” into law and represent the ideology of the party responsible for their selection.

Therefore, by unmooring the Constitution from both its textual meaning and historical intent, Scalia argued that the Warren Court had profoundly weakened American democracy. Citizens no longer felt that elections, bills, or ratified amendments needed to effect change commensurate with America’s advancing values. Judges could do it for them, taking the pulse of the nation’s majority and reading the Constitution as they saw fit. The pragmatist judge would be even further empowered. Rather than depending on textual interpretation, historical intent, or majoritarian values, the pragmatist judge tailors his rulings so as to extract the desired effect. These changes, Scalia posited, transformed the Judiciary into an inherently political branch while marring the once-coherent system of American law with nonsensical interpretation and invented rights: after all, if Judges could alter the Constitution’s meaning based on the preferences of the public—not the words of the text or the original intent behind them—why shouldn’t citizens feel that Judges should be democratically elected? It is not hard to see why “living constitutionalism” is innately seductive to the judge, as it magnifies his powers while exalting his wisdom and virtue. As Scalia argued in a speech at the Woodrow Wilson Center in 2005, “The Living Constitution judge is a happy fellow because the Constitution means exactly what he thinks it ought to mean.” 

If this is the picture of the living constitutionalist, then we can imagine the originalist a solemn yet unhappy fellow—often in spite of his own values, the originalist issues rulings as guided by text and history alike out of a profound reverence for the mechanisms actually permitted to create affirmative change: the Congress and the amendment process. The Judiciary, conversely, enacts change only through negation—by halting unconstitutional and illegal practices and bringing them into accord with American values crystallized in the law, not the discourse. It is through “living constitutionalism” and pragmatism’s permanence on the Court, not conservative philosophies such as originalism, that the “proclivities of individuals rule,” and Justices are subjected to trial-by-fire confirmations and presumptive political allegiances on both sides. 

It is in this political climate and with these interpretive philosophies that the Justices will likely rule on the constitutionality of Executive Order 14160 and its extraordinarily narrow interpretation of the Fourteenth Amendment. Armed with our understanding of originalism and pragmatism, however, one sees that pragmatism and living constitutionalism counterintuitively align with Trump’s argument for a narrow interpretation of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause far better than originalism or textualism does. If the majority of the Justices took an absolutist approach to pragmatism and reviewed Trump’s argument, it might meet their criteria. Firstly, Trump purports to speak for the American majority that elected him in November of 2024—meaning that Justices might be altering the Constitution to better accord with Americans’ beliefs—and secondly, dismantling birthright citizenship is undeniably practical for the aims of Trump administration, as it would reduce incentives for illegal immigration and reduce the need for more forceful measures required to arrest or detain migrants in the present and future. For a politically-neutral pragmatist, these arguments could be sufficient to compel a novel interpretation of the Fourteenth Amendment. If pragmatist or living constitutionalist Justices, however, were bound to stare decisis, the Trump administration might offer them an out by arguing that such a massive influx of illegal migrants in essence constitutes the very “invasion” that Gray wrote of in Wong Kim Ark. 

To the originalist, on the other hand, these arguments are at best flimsy and at worst laughable. Trump’s argument that “the Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof[,]’” masks the fact that Executive Order 14160 silently proposes a new category for exclusion in direct defiance of Wong Kim Ark and stare decisis: the children of illegal immigrants. If Trump’s attorneys attempt to evade Wong Kim Ark and stare decisis by asserting that—unlike a mere individual—the children of migrants now constitute the “invasion” mentioned by Justice Gray, for the originalist, they now collide headlong with history and intent. The Constitution already furnishes the careful reader with a concrete definition of the behavior expected during invasion and occupation in the Third Amendment: the quartering of soldiers in homes. Such quartering signaled the nature of the invasion the founders described: an organized military effort by another state with the intent to dismantle and destroy American independence and its political structures, not merely an influx of foreign migrants and their children. Moreover, Gray’s opinion in Wong Kim Ark was written after American fears of invasion had materialized during the War of 1812, when British troops captured Washington and burned the Capitol to ash. It was clearly Gray’s intent—and that of the citizens who ratified the Fourteenth Amendment—to withhold citizenship from the children of those agents of concentrated occupation and invasion by another state, not migrants. The potential “invasion” argument regarding citizenship also stumbles due to inconsistencies in its application: if a single pair of illegal immigrants had a child, that could in no way be construed as an invasion and citizenship would be granted, while in times when many illegal immigrants arriving from the same foreign states are having children, they could be considered an “invasion” and have citizenship withheld. It is these very inconsistencies and atextual ambiguities that originalism seeks to prevent.

Thus, it is the originalist, not the pragmatist, who is compelled to hold Executive Order 14160 unconstitutional on the merits. While one can presume that most pragmatists would oppose the order on ideological grounds—due to their traditional liberal bent—the philosophy offers no well-defined legal argument against such policies in itself. The originalist, on the other hand, can rebut attacks on birthright citizenship with firmness, relying not on the vicissitudes of his opinion or that of the people, but rather on the values democratically ossified in the Constitution and other statutes. When the Court hears oral arguments on Trump v. CASA, Inc., Trump v. Washington, and Trump v. New Jersey on May 15th, the Court—led by its textualist and originalist conservative bloc—will in all likelihood hand down a harsh rebuke of an argument that contradicts precedent, concocts ill-reasoned interpretations of the text, and conflicts with historical intent. If that ruling ever comes to pass, its political implications will surpass even the significance of birthright citizenship; it will vindicate Chief Justice Robert’s rebuke to Trump’s suggestion of impeachment for judges who deny his administration’s policies: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges…What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” Contrary to public opinion, our Judiciary remains largely independent from both the interference of political beliefs and the pollution of executive coercion, due not to its pragmatism or its belief in a “living constitution,” but rather because textualism and originalism irrevocably adhere to the enduring values enshrined in the Constitution. 

In defending birthright citizenship, the Court will not merely vindicate a longstanding constitutional guarantee—it will reaffirm the integrity of our judicial system itself. Contrary to popular belief, it is not politics that has preserved the independence of the Judiciary, but the steady disciplines of textualism and originalism: methods that tie judges to the Constitution’s words and the historical meaning behind them. Yet a judiciary faithful to law alone demands more from the people. If the Court refuses to twist old phrases into new rights, it falls to the citizenry to forge those rights themselves—through ballots cast, legislation debated, and amendments ratified. The burdens of democracy, once softened by judicial activism, must be shouldered anew. The originalist revival, then, is not a retreat into the past but a call to courage: a reminder that the American experiment was always premised on a people willing to govern themselves, not to be governed by nine black robes. If Americans hope to preserve an independent Judiciary, they must first revive the independent spirit of their own democracy. Ultimately, the Constitution belongs not to the courts, but to the people.

Will Vogel is a junior at Brown University studying Political Science and International and Public Affairs. He is a writer for the Brown Undergraduate Law Review and can be contacted at william_vogel@brown.edu.

Veronica Dickstein is a junior at Brown University studying International and Public Affairs. She is an editor for the Brown Undergraduate Law Review and can be contacted at veronica_dickstein@brown.edu.