Yesterday the Birthright Citizenship case was argued before the SCOTUS. Trump was in attendance. In my opinion this is a very important case, but lots was going on in geopolitics so I wasn’t able to follow the arguments. I still don’t have that amount of time, but I did see that Jonathan Turley’s takeaway was that there didn’t appear to be a clear majority. This is understandable. Notions of citizenship have deep roots in history, but the age of easy travel has changed a lot of things. I’m not suggesting that we should ignore Common Law notions of citizenship and sovereignty but, by the same token, we can’t ignore developments in travel. The history of constitutional amendments should also suggest to us that treating amendments that were passed in the immediate aftermath of the Civil War as dispositive for large issues of citizenship is probably misguided. In general, these matters are probably best left to the Legislative and Executive branches, in principle—no matter how they’ve screwed these things up in the past.

The Federalist ran two articles yesterday that may be useful resources for readers on this issue, at least as starting points.

In the first article, Clarence Thomas offers some common sense on the appropriate weight the Court should place on what the 14th Amendment has to say. It’s true that the 14th has traditionally been interpreted—for 150 years or so—to allow birthright citizenship. But reasonable people should be able to see that that is not a self evident interpretation:

If SCOTUS Upholds ‘Birthright Citizenship,’ It Will Do So At Its Own Peril

The U.S. Supreme Court heard oral arguments Wednesday on the Trump administration’s challenge to the decades-long practice of interpreting the 14th Amendment to allow foreigners to obtain American citizenship simply by being born within the boundaries of the country. If the Supreme Court rules in favor of this view, allowing any foreigner circumstantially (or intentionally) born on U.S. soil to be automatically adopted into the Union as a citizen, it will mean the end of actual American citizens taking the high court seriously.

As Justice Clarence Thomas pointed out, the purpose of the 14th Amendment was to grant citizenship to black people and freed slaves after the Civil War. Making the point further, Thomas asked, “How much of the debates around the 14th Amendment had anything to do with immigration?” U.S. Solicitor General John Sauer noted that there was very little, if any, which suggests that the intent of the 14th Amendment was never to be the international migration boondoggle it has become.

While Thomas appeared to recognize that reality, it was difficult to tell where the rest of the court stood on the issue at times — except for the other reliable conservative, Justice Samuel Alito.

The emancipation of African American slaves—non-citizens who had been present in the US for generations—presented an obvious and urgent problem. The same can hardly be said for modern birthright citizens.

The second article references the SCOTUS case that is usually claimed to be definitive: Wong Kim Ark (1898). It also takes John Roberts to task for an ill considered quip, while offering what I consider to be an intelligent critique. The exchange between U.S. Solicitor General John Sauer went approximately like this:

Sauer: The 14th Amendment world is not the same world that currently exists. “Eight billion people are one plane ride away from having a child who is a U.S. citizen.”

Roberts: It may be a “new world, it’s the same Constitution.”

Dear Justice Roberts: The ‘Same Constitution’ Would Never Authorize Anchor Babies

Originalists are supposed to ask what the Constitution’s words were understood to mean at the time they were adopted. The idea that the framers of the 14th Amendment would have understood the amendment to grant birthright citizenship to children of illegal aliens or customers of a birthright tourism company is risible because such problems did not exist — they are indeed part of a new world. Retrofitting the 14th Amendment to cover unprecedented circumstances is not originalist.

A few decades after the ratification of the 14th Amendment, the Supreme Court issued a decision in United States v. Wong Kim Ark. The case involved a man born in the United States to Chinese parents who were not citizens but were legally residing in the United States. The court ruled in his favor. But the case did not rule on whether children born to parents illegally residing in the country are granted citizenship, nor did it rule on whether the children of temporary visitors who come to the U.S. via birth tourism companies to give birth and then return to their native countries satisfy the criteria for citizenship under the 14th Amendment.

Extending the 14th Amendment — or Wong Kim Ark’s holding — to apply to millions of illegal aliens’ children is not originalist by any standard. If the original meaning of the text is supposed to be the guide — and the original text did not in any way foresee mass illegal migration or birth tourism — then it’s not originalist to broaden the scope of the amendment to fit the current political circumstances.

The Constitution has not changed — nor is that the debate. The debate is whether the current application of the Constitution reflects what the framers originally had in mind when drafting it.

There are multiple complicated factual issues involved in immigration law. That’s exactly why the SCOTUS should not be in the business of applying broad brush, ideologically inspired—with little grounding in history—one size fits all “solutions”. For better and/or worse, that should be the province of the elected representatives of American citizens—which SCOTUS justices are not.