Recent Supreme Court appointees Neil Gorsuch and Brett Kavanaugh each declared he would be politically impartial while on our highest court. Each stated he is a judicial conservative: a jurist who professes to interpret the Constitution according to its plain language and original intent.
Antonin Scalia, a champion for this approach, explained what this means: “(F)irst, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not-and especially if a good reason for the ordinary meaning appears plain-we apply that ordinary meaning.”
Ann Coulter’s recent (11/3/18) column informs us that a new Republican Party stance is that the president, or Congress, can abrogate citizenship by birth; no Constitutional amendment is required.
Should this question come before the Supreme Court, we can see whether the Trump appointees are truly judicial conservatives, or continue to be the Republican stalwarts they were before their judicial roles commenced.
Be suspicious when a lawyer, like Coulter, discusses a legal provision without first fully reciting it. The relevant Constitutional provision is the first section of the Fourteenth Amendment. Coulter’s strenuous attempts to imbue it with ambiguity and a meaning restricted to freed slaves are futile, because its language and meaning are straightforward, plain and ordinary:
“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.”
The reason the Fourteenth Amendment didn’t make citizens of Native Americans isn’t because the Amendment was limited to freed slaves, as Coulter avers; it is because Indians, as members of sovereign tribes, were legally not “subject to the jurisdiction” of the United States. Coulter knows that, since the case she discusses, Elk v. Wilkins, 112 U.S. 94 (1884) is all about the “subject to the jurisdiction” issue, and says nothing about limiting the Amendment to freed slaves. “Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”
Children of immigrants, however, are fully subject to our jurisdiction; for them, no exception to birth citizenship exists. Birthright citizenship is an inescapable conclusion from a plain reading of the Constitution, not a bizarre interpretation, as Coulter contends, only by “liberal zealot” justices.
Coulter is ridiculous when she argues that Congress and the ratifying states (mainly those of the Union) didn’t consider the Amendment’s relationship to immigration: the Civil War, fought significantly by the Union with immigrants (over 350,000 immigrant soldiers) enlisted literally right off the boats, was barely over; it was obvious to all the ratifying Congressmen and state legislators that the wives of those immigrants would bear American citizen children under this provision.
Despite Coulter’s disbelief, Congress at the time was also quite competent to use language limiting Constitutional amendments to freed slaves, when that was intended; witness the contemporaneous Fifteenth Amendment, which prohibited limiting suffrage by reason of “race, color, or previous condition of servitude.”
That citizenship by birth is a constitutional right is not fairly subject to legal debate, Coulter notwithstanding. It is thus beyond the power of the president, or even Congress, to change this; a Constitutional amendment would be necessary.
Should Justice Kavanaugh or Gorsuch ignore the plain language of the Fourteenth Amendment and conclude otherwise, it would be proof positive that their professed judicial conservatism is a facade.
Place your bets: principled judicial conservatives, or Republican Party hacks? This issue will help sort it out.
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Jed Somit is a Kapaa resident.
