I’m amused to see people dragging out the 14th Amendment in response to President Trump’s suggestion that he’ll unilaterally end ‘birthright citizenship’ through executive action.
For example, a recent piece in Reason ends this way: ‘The original meaning of the 14th Amendment has been clear since 1866. If Trump proceeds with his unconstitutional executive order attacking birthright citizenship, he deserves to be laughed out of court.’
What the author fails to realize is that the words of the 14th Amendment aren’t any more meaningful, to the Supreme Court, than the words of the 1st Amendment, or the 2nd Amendment, or the 4th Amendment, or any of the other words in the Constitution.
Do we have laws, passed by Congress, abridging freedom of speech? Yes. Do we have laws infringing the right to keep and bear arms? Yes. Do we have laws allowing government agents to search people without probable cause? Yes. Do the words of the Constitution allow any of those? No. Has the Court unilaterally amended the Constitution to allow all of them? Yup.
In the case of the 14th Amendment, less than a decade after it was ratified, the Court eviscerated its ‘original meaning’, which it has since tried to partially restore, one small piece at a time, through the oxymoronic ‘incorporation’ doctrine. The result is that current ‘meaning’ (according to the Court) is nowhere near its original meaning, and in some ways, is more nearly the opposite of that meaning.
In particular, part of the original meaning of the 14th Amendment was that the Bill of Rights applied to both the federal government and your state government. The Court-amended meaning is that it doesn’t actually apply to either, except where the rights concerned are ‘implicit in the concept of ordered liberty’, and not outweighed by a ‘compelling government interest’. That is, you have a right only to the extent that the Court says you have it, regardless of what words are in the written document.
So where the 14th Amendment is concerned, it’s the Court that needs to be laughed… or simply dragged… out of court.
This isn’t to say that Trump is right. It’s just to say that people who think the text of the Constitution is considered, by the Court, to be anything more than a suggestion are deluded. The Court could, and might, decide that this is something that can be done by executive order. Or it might decide to redefine ‘born’, or some of the other words in the Amendment, as it originally redefined the phrase ‘privileges and immunities’ to mean almost nothing.
Or it could take the path they’ve already been going down for 150 years, and say that birthright citizenship is not ‘implicit in the concept of ordered liberty’ (kind of like saying that the right to say certain kinds of things at a polling place, and to own certain kinds of firearms, and to refuse warrantless searches at certain places, are not ‘implicit in the concept of ordered liberty’, and therefore not constitutionally protected), or that it is outweighed by a ‘compelling government interest’ (like ‘securing our borders’, or ‘ensuring the integrity of our welfare systems’).
As Charles Evans Hughes said, ‘We are under a Constitution, but the Constitution is what the judges say it is’. You can’t put it more plainly than that. And the 14th Amendment, which was created to shore up protection for constitutional rights, has become the Court’s principal weapon for paring them down.
It’s ironic that people cheer when the Court does exactly the kind of thing that Trump wants to do, but recoil in horror when a President wants to do it. As if the Court has any more power to unilaterally amend the Constitution than the President, or Congress. Either they all have none, or each has as much as it can get away with. Ultimately, it’s up to the people to decide.
But one thing is for sure — we don’t get to pick and choose. Either Article V is the only way to amend the Constitution, or the whole thing is up for grabs by all the branches of government.
Love him or hate him, we should all thank the President for providing us with this critically important ‘teachable moment’. What remains to be seen is whether we’ll learn anything from it.
