“Conservative” Textualists

If Antonin Scalia did nothing else in his longish, misbegotten life, he made his preferred mode of statutory and constitutional interpretation fashionable among good “conservatives.” He called it “textualism,” and all good “conservatives” at least pay it lip service, although they may not much adhere to it beyond that.

According to Scalia, too many judges were too quick to abandon the specific text of laws and the Constitution in favor of their personal preferences. Judges, according to Scalia, should seek the original meaning of the law in whatever form (the Constitution is just the law that prescribes how we will make all subsidiary laws in the United States).

This is usually a highly academic debate that only legal scholars pay much attention to. It has recently vaulted into the public discourse more generally, although no one has much noticed. The vehicle for its newfound quasi popularity is the claim by President Trump that he can end birthright citizenship, a principle that the Fourteenth Amendment to the U.S. Constitution states in the United States.

In typical Trump fashion, he claims that “Many legal scholars agree” with him that he can end it by executive order. Of course, he never tells us who any of these alleged legal scholars are.

This is entirely preposterous. The executive branch of government only exists because the Constitution defines it and brings it into existence. The principle of judicial review, which Trump also does not seem to understand — see “so called judge” — rests on the entirely logical observation that, in any contest between a statute and the Constitution, the Constitution has to prevail or there is no point in having a constitution.

Or, it is patently obvious that the president may not alter or abolish a Constitutional amendment with an executive order.

As usual, “conservatives” are desperate to come up with arguments to make Trump’s claim sound reasonable. Mark Sanford, member of the House of Representatives from South Carolina — the first state to secede — has stated in public that the rights the Fourteenth Amendment guarantees should apply only to former slaves, and presumably to their descendants.

Um, whoops. So much for textualism as the prevailing approach to interpreting the Constitution among “conservatives.” The Amendment itself states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Note: “persons.” In terms of Scalia’s search for the “original meaning” of the words, there is no good reason to think the meaning of “person” has changed much since 1868.

One might argue that the men who wrote that really meant for it to apply only to the freed slaves, who were undoubtedly the primary concern on everyone’s mind at the time, but only used imprecise language.

The obvious problem with that argument is that, not long after the Fourteenth Amendment, effectively the same group of men wrote and secured ratification of the Fifteenth Amendment, which prohibits states from infringing the right to vote on the basis of “race, color, or previous condition of servitude,” which shows that they were perfectly capable of specifying freed slaves in a constitutional amendment if they saw the need to do so. This alone is a highly compelling historical argument for reading the Fourteenth Amendment in a “textualist” way to mean what it says — that it applies to all “persons.”