The flip side of judicial activism

Donald Trump is proving to be an extremely … interesting presidential candidate.

Case in point: In bringing up the heretofore-taboo subject of illegal immigration, Donald Trump has also managed to revive the debate over “birthright citizenship” and the 14th Amendment.

Now, growing up, I was always told that this was a settled question in American law. The 14th Amendment said that anybody born in the United States was a U.S. citizen — end of discussion.

Clearly, this presents a problem when it comes to the issue of illegal immigration. As traditionally interpreted, birthright citizenship — a concept which is rare in industrialized countries — acts as a magnet, leading to the problem of so-called “anchor babies” and, at the higher end of the income scale, “birth tourism.” Both these phrases refer to situations where women who are not legal citizens more or less intentionally arrange to give birth in the U.S., so that their children are immediately granted all the benefits of U.S. citizenship and, presumably, they can eventually spread these benefits to their extended families via “chain migration.” (Since U.S. immigration policy is heavily weighted in favor of family reunification, many immigrant groups have exploited this to bring over large numbers of their extended family through a “chain” of reunification claims.)

If “birthright citizenship” is a constitutional requirement, then presumably it can only be ended by the process of constitutional amendment. Indeed, that represents the consensus view of the legal profession. Many GOP leaders, including Senator Ted Cruz, favor such a drastic course of action, though others have argued persuasively that the problems created by birthright citizenship could be addressed through legislative tweaks, without resorting to a constitutional amendment.

What I didn’t know, until Trump started talking about it, is that the notion that birthright citizenship is a constitutional mandate is not the only view. Indeed, there is a respectable minority opinion, endorsed by many formidable legal scholars, that birthright citizenship is not required by the Constitution, and can be abolished with a simple act of Congress.

Despite the fact that this idea has a respectable intellectual pedigree (even John Yoo, the former Deputy Assistant U.S. Attorney General for the Bush administration who has led the charge against Trump’s position, has admitted as much), many in the media and the political establishment in general have reacted with derision and mockery to Trump’s suggestion that birthright citizenship has no constitutional basis.

But why?

Earlier this year, the Supreme Court ruled that the same 14th Amendment which allegedly mandates birthright citizenship also requires the state to legally recognize gay marriage — a notion that, as Justice Antonin Scalia pointed out, would have seemed utterly absurd to the people who drafted and adopted the 14th Amendment. Most liberal legal scholars didn’t bat an eyelash at that decision; in their view, the Constitution is a “living document” whose interpretation must be constantly revised in light of changing circumstances. It’s only fuddy-duddies like me who insist on a fidelity to the actual written words of the text.

Well, what makes the Left think this logic couldn’t be applied to birthright citizenship? Simply saying “the Constitution commands it” evades the question of whether or not birthright citizenship is a good thing. And based on their own statements, liberals are quite happy to see courts toss aside the text of the Constitution in order to advance what they view as wise policy goals.

What got me thinking about this was this bracing rant by Charles C.W. Cooke about liberals who go on about how the Second Amendment is an antiquated relic that needs to be discarded. Cooke essentially challenges them to have the courage of their convictions, and do the hard work that would be necessary to repeal the text of the Second Amendment and then follow it up with federal legislation to outlaw firearms.

Except, as Cooke is surely aware, most liberals don’t actually want to repeal the Second Amendment — or specifically, they see no reason to repeal it. Oh, they’d probably repeal it if they could. But since that’s too hard, they’re happy to resort to the long liberal tradition of simply bending the plain words of the law whenever those words would frustrate liberal intentions. And as the Obergefell decision on gay marriage shows, they are frequently able to convince the courts to agree to their “creative” readings.

Conservative legal scholars like Scalia often make careful distinctions between what they view as constitutional policy and what they view as good policy. This indifference to real-world outcomes was most famously expressed by justice Oliver Wendell Holmes, who said that when it came to interpreting the law, “if my fellow citizens want to go to Hell, I will help them. It’s my job.” (Ironically, Holmes is not generally seen as a conservative.) Scalia, who is famously opposed to abortion, has said he sees nothing in the Constitution which would allow him as a judge to simply outlaw abortion, even though he regards that as a laudable goal. He believes the Constitution simply has nothing to say about the issue either way, and thus the question is entirely in the hands of elected legislators.

But as best I can tell, liberals seem to think the only relevant test for constitutionality is whether a particular policy is desirable for liberals: If liberals want it, the Constitution is at least OK with it, if it doesn’t actually require it; if liberals hate it, the Constitution absolutely forbids it. Based on this, I can only conclude that the reason the Left is so defensive about the constitutional basis of birthright citizenship is because they view it as a good thing. Trump obviously doesn’t agree, and instead of addressing the question directly, the response of his liberal critics (and some of his conservative critics) has been to hide behind the Constitution.

Well, I call shenanigans. By their own admission, liberals believe that the Constitution means whatever they want it to mean. If the Left decided tomorrow that birthright citizenship was a terrible idea, I have no doubt that liberal judges would find some way to erase it from the text of the Constitution through creative legal reasoning, obviating the need to go through the hard work of actually amending the document. So if they think birthright citizenship is smart policy, they should be intellectually honest enough to defend it on its merits.

On a broader note, though, I find it curious how liberals seem to take it for granted that the arsenal of legal weapons they’ve developed could never, ever be used against them. They constantly mock Trump for his crazy statements — his boast that he’s going to “build a wall and make Mexico pay for it” comes to mind — yet Trump is merely applying the legal and political logic of the Left to right-wing goals and policies.

“I begin by taking,” Frederick the Great supposedly said. “I shall find scholars later to demonstrate my perfect right.” Or as Richard Nixon put it in an American context, “when the President does it, that means that it is not illegal.”

Both Frederick and Nixon were expressing a deep truth which has been embraced by the Obama administration, and has been the theme of much liberal legal theory and practice: Power is ultimately stronger than paper and ink. The written law only matters to the extent that those in power agree to abide by it. Thus far, conservatives in the U.S. have been loath to embrace this kind of cynical legal nihilism, but Trump has embraced it with gusto, and the warmth with which he’s been received suggests that the Right might be coming around to this kind of strategy.

“Look,” Trump is saying, “I don’t care if the Constitution mandates birthright citizenship. I want it gone, and when I’m president, I’ll make it happen. What are you gonna do to stop me, once I’m in the White House?” Liberals might bewail this as a turn towards dictatorship, but it’s hard for me to take them seriously after they’ve spent seven years defending this sort of thing from a president who uses it to advance their agenda.

If conservatives choose to go down this road, I think it would be a tremendous loss for the country — it essentially abandons any remaining faith in the promise of America. But I don’t think conservatives should allow themselves to be wiped out merely by standing on principle, either.

It’s possible that the drift towards Caesarism is inevitable, just as it was for ancient Rome. And if we are going to abandon the idea of law as an objective standard — if the law is to become nothing more than a tool of raw political power — why shouldn’t conservatives use that for their own ends? And why should the Left think this approach will fail? It’s worked just fine for them.

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