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Birthright Citizenship and the Conservative Living Constitution (Updated)
Michael Ramsey

In last week's Washington Post, former presidential advisor Michael Anton argues that the Fourteenth Amendment's guarantee of U.S. citizenship to persons born in the United States should not extend to children of aliens not lawfully present (and perhaps not to persons only transitorally present in the US): Citizenship shouldn’t be a birthright.

Gerard Magliocca (Balkinization) and Jonathan Adler (Volokh Conspiracy) object on originalist grounds, relying in part on scholarship by now-Judge James Ho (5th Circuit).

I agree with Professors Magliocca and Adler and Judge Ho.  I looked a this issue closely in connection with a possible law review article, which I instead turned into a series of blog posts -- see here (part 1), here (part 2), here (part 3) and here (reprise a few years later).  There are some serious originalist scholars on the other side (discussed in my prior posts) but with all respect to them I don't think it's a close question so long as we are employing an original public meaning analysis.  

The topic highlights a broader point.  In connection with Judge Kavanaugh's nomination to the Supreme Court, some commentators have basically equated textualist originalism with conservative results.  I think that is in part because they have not fully appreciated the power (or threat, depending on how one looks at it) of a conservative living constitution.

Anton's argument is weak on originalist grounds, but as a living constitution argument it's likely to have considerable attraction.  See this post by Mike Rappaport: A Nonoriginalist Challenge to Birthright Citizenship for Illegals: Nonoriginalist Arguments (aside: Professor Rappaport, however, agrees with me and others on the originalist reading).  To the three arguments Professor Rappaport makes, I'd also add one of judicial deference: if it seems a close question on pragmatic/normative grounds how citizenship should be awarded, and if the framers did not have the issue clearly in mind in drafting the constitutional rules, perhaps the issue is best left to Congress and the President as the institutions most able to balance the competing considerations.

With a hypothetical five-Justice conservative living constitution majority on the Court, the prospect for dilution of the birthright citizenship rule would, I think, be substantial.  It's a recurring theme in some conservative circles; and the fact that the U.S. is the substantial minority in the world in recognizing nearly unlimited territorial birthright citizenship provides moral "cover".

But with an originalist (or partly originalist, or originalist-oriented) Court, I think there is little prospect of a change.  The originalist arguments are too strong.  Not all  originalists will be persuaded, but enough will be that it will be hard to prevail.

Perhaps this is a naive view -- proponents of the originalism-equals-conservative results-assessment will say so.  But I think they underestimate the power of a judge's overt commitment to originalism as a methodology.  

It's common to think of the"great divide" (as Justice Scalia put it) in constitutional interpretation as the divide between originalism and living constitutionalism.  As a matter of theory, that's true.  But -- as birthright citizenship illustrates -- as a matter of practical outcomes, originalism is actually a middle ground between liberal living constitutionalism and conservative living constitutionalism.

UPDATE:  Michael Anton has a long response to critics here, with more originalist arguments (via Powerline).  But his arguments are only fragments of the congressional debates and don't effectively grapple with the text or the pre-drafting history.

Garrett Epps (Baltimore) has a good lengthy account of the debates here (from 2011).