Trump v. Barbara: "A Rare Species of Victory?"

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I was fortunate enough to be invited to speak in Washington, D.C. earlier this week at a gathering focused on what to do in wake of Trump v. Barbara. It was an enjoyable event with a wide-ranging set of ideas about various policy and legal solutions to the problems of illegal immigration and the version of birthright citizenship endorsed by the majority in Barbara. The Federalist reported on the event here, in a piece worth reading.

One particular snippet that made the reporting were the comments that Barbara isn’t “going to erode our republic, like Griswold led to Roe and led to Lawrence v. Texas and Obergefell,” and further, that Barbara “was an originalist debate, which is a victory in itself.” I have the greatest respect and admiration for the fellow panelists at this conference (which they know). But as I said in my comments at a later panel—comments that were not reported on, but which I will summarize and expand upon a bit here—I see things differently.

The panel on which I sat was entitled, “Barbar[ians] at the Gate.” I began by suggesting that the panel should have been called, not “Barbarians at the Gate,” but “The call is coming from inside the house.” After making a proposal that I suspect all or nearly all would be supportive of (that Afroyim v. Rusk has to be overruled), I informed the audience that I thought it was now time to take the medicine: Neither the situation of the Postnati in Scotland, nor Calvin’s Case, nor Wong Kim Ark, nor detailed concepts of allegiance or domicile, nor the common law rule of jus soli did or even could ultimately resolve Trump v. Barbara.

No one who framed our Constitution or its Fourteenth Amendment could have imagined or planned for what we know today as illegal immigration and the ease with which our immigration laws are flouted. The 1790 census counted just shy of 4 million people in the United States, including slaves. In 1868 when the Fourteenth Amendment was ratified, our estimated population was around 37 million. Today, the estimate number of illegal aliens are around 15 million—more than three times the total population at the founding, and 40% of the total population at the time of the Civil War. As many commentators at the conference pointed out, it is ludicrous to believe that those who ratified the Fourteenth Amendment believed they were creating a scheme that would bestow citizenship on the children of these people. But originalism is not even in principle capable of telling us that this fact resolves the legal dispute about what “subject to the jurisdiction thereof” means. The theory cannot resolve interpretive choices about the appropriate level of generality at which one views historical evidence, or even determines what is the thing that the law “fixed” in the first place (e.g., “original public meaning” or “original methods” or “original intent” or “original law” or any of the other half dozen and counting recondite academic theories of “originalism”).

Only principles of political morality, ones that are properly internal to law, can resolve such choices, and the task of identifying those kinds of principles is at the heart of what it even means to be a judge, a iudex, he who speaks justice. There happens to be a millennia-old legal tradition that tells us what kinds of principles are internal to law. The conservative legal movement needs to move past its fascination with “originalism” which does not restrain judges (I don’t think any theory of interpretation can), and puts its proponents in the strange position of having to claim success in the face of crushing defeat. I reiterated what I said in these pages when Barbara came down: “what Bostock v. Clayton County started, Trump v. Barbara has finished—the end of originalism.” This time, rather than Neil Gorsuch as the originalist standard-bearer flanked by non-originalists, it is Amy Coney Barrett. So in response to the idea that it at least it “was an originalist debate,” I cannot help but think of Cato’s retort to Pompey in HBO’s miniseries Rome, after Pompey tries to justify his decision to abandon Rome to Caesar: “So in fact, this is not a humiliating defeat at all, but a rare species of victory?”

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