Trump v. Barbara and the End of Originalism

The Supreme Court’s decision in Trump v. Barbara, holding that the Trump Administration’s attempts to redefine the scope of birthright citizenship via Executive Order violated the Fourteenth Amendment’s Citizenship Clause, will continue to be a flashpoint for the foreseeable future. But I think one of its enduring legacies may be this: what Bostock v. Clayton County started, Trump v. Barbara has finished—the end of originalism.

“But Professor Christiansen, isn’t Trump v. Barbara an illustration of the vitality of originalism because it shows that those are the terms of the debate now?” I want to stake out a contrary position.

First, a practical point. The “Conservative Legal Movement” knows well that for the last six or so years, it has been losing and continues to lose young conservative lawyers to alternative conceptions of law and justice, such as those represented by the editors and contributors to the New Digest. Bostock was a major inflection point, in which one of the arch-originalists declared that Title VII’s reference to “sex” includes homosexuality and transgenderism. To be sure, the Court this term continues to do damage control by writing Bostock off (as they should), but Justice Gorsuch remains intransigent; he was merely doing the job of a good textualist (see West Virginia v. B.P.J. (Gorsuch, J., concurring). I can personally attest that for many young conservative lawyers, law clerks, etc., Bostock was a breaking point, but at minimum represented a willingness to consider whether the intellectual project of Conservative Inc. had a fundamental problem. In my view, Trump v. Barbara will have as big of an effect (if not bigger) on the next generation of young conservatives, who are told that our fundamental law, to which they swear allegiance as lawyers, not merely stands mute but affirmatively guarantees the most precious of all rights enumerated in our Constitution to the children of spies swearing allegiance to hostile foreign powers who come here with the express purpose of harming our great Nation. This is the original public meaning of our Constitution, the greatest Constitution in the history of the world. I can forgive young conservatives for not being persuaded by a rule that led to this. The breach between young conservatives and institutions like the Federalist Society (which will rightly be seen as responsible for things like this, given Justice Barrett’s decisive vote as to the constitutional question in Barbara) will continue to widen at a rapid pace. Predictions are risky, but I am willing to make this one.

Second, more importantly from my own perspective, Trump v. Barbara, much like Bostock, keenly illustrates the theoretical problems of originalism. Some examples:

• Determinacy: A key presupposition of originalism’s rhetorical persuasiveness is originalism’s determinacy. Without overstating my case (as no originalist I am aware of claims that originalism will answer all questions determinately), I believe originalists, even cautious ones, greatly overstate the determinacy that originalism is capable of providing. “Subject to the jurisdiction thereof.” What does that mean? If you asked the gang of conservative academics who harangued Professor Ilan Wurman for daring to propose a contrary position (at least if you asked them before last week), this is an easy case. 8-1 or 9-0. The Trump Administration’s position is ridiculous! Sanctionable! Then why did this case generate six opinions. Why did the self-avowed originalists (Barrett, Thomas, and Gorsuch) all take materially different views? Originalists scholars themselves were bitterly divided on the issue. As Justice Kavanaugh, who deserves a lot of credit for his intellectual honesty, put it: “As revealed by the Court’s opinion with its detailed account of history and precedent, and by the weighty and thoughtful dissents, the constitutional issue is far more complicated than the statutory issue. After reading those scholarly opinions, one thing seems evident: The constitutional issue is not straightforward, much as we might want it to be.” In the end, I think Barbara and the pre-SCOTUS-litigation rhetoric go a long way to refuting the rhetorical claim of originalism to actually provide answers to the Constitution’s most difficult questions.

• Political Morality: Another of originalism’s claims to fame is that it eschews the imposition of principles of political morality held by the deciding judges onto the democratic public. “We are just interpreting the law! If you don’t like it, change the law!” But how plausible is it that the Justices are not referring to principles of political morality when deciding which history to credit, how clear is sufficiently clear, what inferences to draw from that murky mess? Consider this. Do any of the great defenders of originalism think Chief Justice Roberts decided this case without reference to any broader principle of political morality? Be real about this.¹ How about Justices Kagan, Sotomayor, and Jackson? No originalist actually thinks that the latter three decided this case because of “history and tradition.” So it turns out that four fifths of the majority opinion (authored by a non-originalist who is routinely motivated by principles of political morality in decision-making) likely rests on underlying reasons originalists would find objectionable. Conversely, why do the originalists think Justices Thomas and Gorsuch came to the conclusions they came to? If it was purely by-the-book originalism, then the point of indeterminacy is just made all the more clear. But do they think it was something else? Whatever else Justices Thomas and Alito said they would embrace or save for another day (including on whether illegal alien children have citizenship rights), they would have reversed the judgment! Criticism of Alito, Thomas, and Gorsuch from originalists (who thought this was an easy question a week ago) has been strangely muted. To be clear, I’m being a bit reductionist here on purpose, because those are the terms that originalism operates in. It creates a false dichotomy between “law” and a “judge’s personal preferences” with no other options, and so it is forced to speak in these ways, creating uncomfortable moments for itself. I do not think Justices Barrett, Thomas, and Alito, and heck, even Justice Gorsuch, for instance, have engaged in bad faith about their originalist principles or the like or were merely searching for outcomes. But I do think they are, respectfully, blinded to the fact that they are indeed relying on principles of political morality in sorting through the messiness of history dating back to Calvin’s Case.

  As I have long stated, it is not the case that principles of political morality are per se extra-legal. Rather, it is the case that one must have some rationale for why some are internal to the law and others are not. That is the discussion I hope can eventually emerge in conservative legal circles. But we first have to stop deluding ourselves by insisting that what textualism and originalism propose is actually going on. I think Barbara advances that cause by putting on rather full display the improbability that “originalism” is what is fully driving the judgements of the Court in these cases.

• Justice Kavanaugh and the Once and Future Constitution: Back to Justice Kavanaugh for a moment, whose opinion is one of the more fascinating. Justice Kavanaugh would have struck down the Executive Order, but dissented on the constitutional issue. In particular, Justice Kavanaugh rejected the idea that the Supreme Court’s decision in Wong Kim Ark created “a closed set” of “four exceptions” to the general principle of jus soli citizenship. “Considering the four exceptions as a permanently frozen or closed set as of the Fourteenth Amendment’s ratification in 1868—such that there can be no subsequent exceptions recognized based on new developments after 1868—is inconsistent with the Court’s longstanding approach to constitutional interpretation in a variety of areas.” He continues:

  To spell that out: The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the “meaning of rules is constant. Only their application to new situations presents a novelty.” A. Scalia & B. Garner, Reading Law 86 (2012);

  Hold on! What did he just say? I think Judge William Pryor needs to speak with Justice Kavanaugh to remind him not to be a Living Common Goodist! Yet Justice Kavanaugh’s point, including by his subsequent citation to numerous instances of the Court applying legal principles from or derived from the Constitution’s text to new circumstances, demonstrates the obtuseness of objections like those of Judge Pryor: one can indeed have a coherent theory of law, even embrace the “fixation thesis” of the originalists, yet not believe that fixation entails things like arbitrarily choosing to limit the law to four-then-existing exceptions. (For what it is worth, this is the classical conception of the law. It is fixed. It is determinate, but not always ex ante. And the application of law to fact is part of the discovery of the determinacy of law, fixed in the first place). Just yesterday, the Court granted certiorari to consider whether AR-15s are protected by the Second Amendment. I suspect we will see Justice Kavanaugh’s principle above on full display, as he notes in Barbara that the Second Amendment is just one such area where the Court’s constitutional interpretation has refused to be frozen to particular historical categories, but develops by applying enduring legal principles to new situations (see Kavanaugh, J., concurring in the judgment and dissenting in part (“In Second Amendment cases, this Court applise the Amendment to semi-automatic handguns even though those did not exist in 1791 or 1868. From the other direction, moreover, this Court recognizes constitutional exceptions based on new circumstances when the new exception is relevantly similar to those exceptions that existed in 1791 or 1868. This Court’s constitutional precedents do not treat the 1791 or 1868 exceptions as a closed set ‘trapped in amber.’”). And none of this has anything to do with “living constitutionalism,” which should be rather obvious at this point.

  What Justice Kavanagh misses, or rather comes just shy of, is the role of political morality. As Professor Vermeule asked rhetorically on X in response to Justice’s Kavanaugh’s argument that the majority in Barbara had not provided any reason for fixing the four exceptions: “Thank you Justice Kavanagh for raising the question: what rational principle explains which exceptions the Court allows and which it does not?” To answer the question would put originalists in the uncomfortable position of having to articulate the very principles of political morality they insist are absent from their decision-making. This episode demonstrates Dworkin’s main argument against originalism handily. As to these four exceptions, originalism actually doesn’t tell us anything about whether they are four fixed scenarios or whether they represent an underlying principle, yet the Justices must choose and must have reasons for choosing, and originalism does not supply those reasons. Broader legal principles of political morality can and do.

Much more could be said, but I think this is sufficient. In an important way, Barbara is the bookend for Bostock as far as originalism goes. For both practical and theoretical reasons, the decision will precipitate the end of originalism as we know it. To be sure, I don’t think the term “originalism” is going anywhere any time soon. But the push to redefine originalism into something more robust, more substantive, and more coherent will accelerate from this point on, to the point where people may say “originalism” but mean something quite closer to what we here at the New Digest have been arguing for all along.

1. Today, Professor Larry Solum published an originalist analysis of the various Trump v. Barbara opinions. As to the majority opinion of Chief Justice Roberts, Professor Solum concludes, ultimately, it is a “pluralist” opinion, that is, while it emphasizes certain originalist modalities, it “adds” other modalities that seem equally as decisive. Professor Solum finds Justice Thomas’s dissenting opinion to come “closer than anyone on the Court to writing an originalist opinion the strict sense,” but “methodological[ly],” Solum finds the opinion “vulnerable … in how it locates meaning and in which scholarship it consents to engage.” While Solum ultimately concludes that Thomas’s opinion is an “adequate originalist methodology,” one can’t help be see this as damning with faint praise. So I suppose one rejoinder to my entire argument here is, “We’ve never truly done originalism.” I will let that speak for itself.