“Well, it’s a new world. It’s the same Constitution.”
Those words from Chief Justice John Roberts during this week’s oral arguments signaled that the conservative justices are unlikely to reject birthright citizenship. Of course, nothing is certain until this summer when the Court issues its opinion in Trump v. Barbara. However, we need to consider the need for a 28th Amendment to reaffirm the meaning of citizenship.
As some of us stressed before the oral argument, the odds were against the administration prevailing in the case, given more than a century of countervailing precedent. There are good-faith arguments against reading the 14th Amendment as supporting citizenship for any child born in this country. It is doubtful that the drafters of the 14th Amendment could have envisioned millions of births to illegal aliens. They surely did not imagine foreigners coming to this country for the purpose of giving birth — or even, without ever entering the U.S., contracting multiple U.S. residents to carry babies to term for them as surrogates.
The historical record is highly conflicted. Some drafters expressly denied that they intended for birthright citizenship to be covered by the 14th Amendment.
The rampant abuse in this country and the widespread rejection of birthright citizenship by other countries (including some that once followed it) did not seem to impress the conservative justices. Roberts’s statement was in response to Solicitor General John Sauer’s argument that “We’re in a new world now … where eight billion people are one plane ride away from having a child who’s a U.S. citizen.”
Although President Trump has lashed out with personal attacks on the conservative justices as “disloyal” and “stupid,” they are doing what they are bound by oath to do: apply the law without political favor or interest. I expect most of the justices agree with the vast majority of countries — and the president — that birthright citizenship is a foolish and harmful policy. But they are not legislators; they are jurists tasked with constitutional interpretation.
Trump appointed three principled justices to the court. To their (and to his) credit, Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett have proven that they are driven by the underlying law, not the ultimate outcome of cases.
For conservatives, constitutional interpretations offer less leeway than their liberal colleagues or believers in the “living constitution.” If you believe in continually updating the Constitution from the bench to meet contemporary demands, constitutional language is barely a speed bump on your path to the preferred outcome in any given case.
In my Supreme Court class, I call this a “default case” in which justices tend to run home. When a record or the law is uncertain, conservative justices tend to avoid expansive, new interpretations. That was precisely what Trump said he wanted in nominees.
These justices are not being “disloyal” to him, but rather loyal to what they view as the meaning of the Constitution. I have at times disagreed with their view of the law, but I have never questioned their integrity.
None of this means we should accept the expected outcome in this case as the final word on birthright citizenship. Justice Robert Jackson once observed that he and his colleagues “are not final because we are infallible, we are infallible because we are final.”
The final word actually rests with the public. We can amend the Constitution to join most of the world in barring birthright citizenship. There is no more important question in a republic than the definition of citizenship.
We are becoming a virtual mockery as we watch millions game the birthright citizenship system. China alone has hundreds of tourism firms that have made fortunes in arranging for Chinese citizens to come to U.S. territory to give birth and then return home.
No republic can last without controlling its borders and the qualifications for citizenship. We have allowed U.S. citizenship to become a mere commodity for the most affluent or unscrupulous among us.
The combination of open borders and open-ended citizenship is an existential threat to this Republic.
The U.S. is and will remain a nation of immigrants. We welcome lawful immigrants who come to this country to embrace our values and our common identity. But being a nation of immigrants does not mean that we are a nation of chumps.
In my book, “Rage and the Republic: The Unfinished Story of the American Revolution,” I discuss the foundations of our republic and the world’s fascination with it. After our Revolution, one leading Frenchman known as John Hector St. John wrote a popular book that asked: “What then is the American, this new man?”
The answer to that question was obvious at our founding. We were the world’s first true enlightenment revolution — a republic founded on natural rights that came not from the government but God. We did not have a shared bond of land, culture, religion, or history. We were a people founded on a legacy of ideas; a people joined by common articles of faith in natural, unalienable rights.
The question is whether we can answer St. John’s challenge today. “What then is this American” if citizenship can be based on as little as a tourist visa or an illegal crossing?
There would be no better time to reaffirm the meaning of citizenship than the 250th anniversary of our Constitution. Roberts is correct: “It is the same Constitution” that created this republic, but we are the same people vested with the responsibility, as Benjamin Franklin put it, “to keep it.”
It is time to reclaim both the Constitution and our common identity. As a free people joined by a common faith in natural rights, it is our own birthright.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
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