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PaperclipPerfector  1mo ago (text post)   35100 thread views

Culture War Roundup for the week of March 3, 2025

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Reasoning backward and forward: Birthright citizenship and the horseshoe

Appellate litigator (and former Scalia clerk) Adam Unikowsky explains why expansive jus soli birthright citizenship is the "correct" interpretation of the constitution... and also the plausibility/challenge of reasoning backwards to expanding exceptions:

Well, I am happy to entertain living-constitution arguments. Some of my best friends are living-constitutionalists! But I wouldn’t choose this case to get behind living-constitutionalism. Imagine telling someone: “You were born here. You went to school here. You’ve never been to China. You don’t know anyone in China. You don’t speak Chinese. The Fourteenth Amendment’s text says that you’re a U.S. citizen. The Supreme Court held in 1898 that you’re a U.S. citizen. But too bad, you’re being deported to China because the Constitution has undergone an epigenetic shift, like the Moirans in Seveneves.” I just don’t think it’s a very attractive argument.

...

Most judges profess to use the balls-and-strikes approach. One notable exception was Richard Posner, who described his method of judging this way:

My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or problems presented by the case. Once having found what I think is the sensible solution I ask whether it’s blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it’s not blocked (usually it’s not—usually it can be got around by hook or by crook), I say fine—let’s go with the commonsense solution.

Few judges are as open about reasoning backward as Judge Posner. But any lawyer will tell you that it sometimes happens behind the scenes.

Judge Posner applies that form of reasoning in a concurring opinion opposing birthright citizenship. He first opines that there’s too much birth tourism, and then says: “We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. … A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.” In other words, he starts from the premise that birthright citizenship is bad, and then optimistically conjectures that there must be some way to get it done legally.

He concludes with a section on legal horseshoe theory. I thought it was a good post - I didn't know just how clear Wong Kim Ark was on the breadth of jus soli birthright citizenship, prior to reading this. I previously wondered if Congress could statutorily define the aliens whose children would be citizens, since a statute had extended birthright citizenship to all American Indians, but I'm now convinced it would take a constitutional amendment. (Unless five SCOTUS justices are motivated to do some pretty extreme mental gymnastics and/or be openly activist.)

Personally I find the "we've always done it this way" pretty compelling.

Set aside for a moment the question of what the 14th amendment means, who it grants citizenship to. Whatever it means, that meaning is not open to change by executive order. If the 14th amendment granted (or not) citizenship to some group of people it did so whether or not Trump ever signed his executive order. Then either:

1. The understanding of the 14th amendment that's prevailed for the last century and change is correct. In which case Trump's executive order is unconstitutional. OR

2. The meaning of the 14th amendment implied by Trump's executive order is correct. In which case there is some unknown population (probably numbering at least millions) of people who the government has been treating like citizens (voting, passports) but aren't and never have been.

The Trump EO tries to sidestep the problems in (2) by purporting to be prospective only but that's not how the constitution works!

I think it's pretty easy to sidestep this--just say the former process of granting citizenship was unconstitutional, but we're not going to go back and revoke it.

We already do this sort of thing in other areas. Generally, when a law is declared unconstitutional, its effects are not reversed--it's just cancelled going forward.

I'm aware this is common practice at the supreme court but I think that practice is quite bad. It's also totally contradictory with any theory of constitutional interpretation other than a "living constitution" one.

Declaring a law unconstitutional doesn't retroactively cancel it or mean it was never actually in force. The law was still standing law regardless of its unconstitutionality--that's just a fact.

I don't see how this is incompatible with any theory of the constitution. The constitution itself doesn't even say anything about judicial review.

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