It's Alive!!

I was struck by a recent letter to the editor in the September 26, 2011 issue of The New Yorker.  In response to Jeffrey Toobin's profile of Virginia and Clarence Thomas, Albion M. Urdank of Los Angeles wrote in to criticize Thomas's originalist method of interpreting the Constitution:

In determining how many representatives Southern states might send to Congress, the [Constitution] provides that a black person, although disenfranchised, counts as three-fifths of a person.  To think that we are required to pay deference to the founders' views on this subject is absurd.  The Thirteenth Amendment, which abolished slavery, represents an updating of the Constitution in the light of history and experience. [Not to mention war. -- Mr. Torvik]  Amendments don't just complicate originalism; they refute it by establishing that the Constitution is a living document.

Perhaps you can explain this to me, Mr. Gillette, because I'm befuddled by it.  The idea of a "living Constitution," as I understand it, is that we can use interpretive methods to proactively update the meaning of the constitution to keep up with the times without the need for formal amendments.  I completely fail to understand how the 13th, 14th, and 15th Amendments "refute" originalism.  Indeed, if the Constitution were really a "living document," surely those Amendments would have been unnecessary, as the Constitution would have simply "grown" to leave slavery and the three-fifths clause behind after the searing national tragedy that was the Civil War.

Right?

A rant

On Slate, Dahlia Lithwick reviews Justice Breyer's new book, Active Liberty Making Our Democracy Work.  I found it to be a frustrating review, mainly because Lithwick advances a thesis--that Breyer and Scalia are more similar than you might imagine--that she actively contradicts.  There is also some sloppy, hard-to-understand writing.  The version of the article I read contained two glaring typos (since fixed), making me wonder if I was reading a blog post rather than a published article.  (Fyi, typos are perfectly acceptable in blog posts.)  The article also contains this indecipherable paragraph:

Just a little more on birthright citizenship

The relevant portion of the 14th Amendment defines a US citizen as anyone "born or naturalized in the United States, and subject to the jurisdiction thereof."  Is there an argument that the children of illegal immigrants do not qualify as citizens under this clause because they are not "subject to the jurisdiction" of the US?

Over at Balkinization, Professor Mark Tushnet argues that the answer is at least non-obvious.  He acknowledges that "the Supreme Court said 'No' in Wong Kim Ark (1898), but, notably, over two dissents."  Of further note, I think, is that this same Supreme Court decided Plessy v. Ferguson just two years earlier (with Justice Harlan famously dissenting in that case as well).  So maybe they were just in a rut.  Tushnet's broader point is seems to be that liberals shouldn't invoke the "living constitution" only when it suits their ends, but should apply the same interpretive analysis in every case.  Which means that "subject to the jurisdiction" might have some bearing on birthright citizenship after all.


Indeed, much has changed since 1868 (when the 14th amendment was ratified) and 1898 (when Wong Kim Ark came down).  For one thing, we have an enormous welfare state that has drastically altered the relationship between the individual and the state.  The availability of welfare benefits provides perhaps too much incentive for the poor huddled masses to flock to our shores.  This is one reason, clearly, that we restrict immigration more than we used to, as a policy matter.  To someone who believes in a living constitution, it should probably affect the interpretation of the 14th Amendment as well.

(Tushnet's point brings up a point that has always bothered me:  it seems that if the constitution is living, it is hanging out in Manhattan, where it "do[es]n't know one Bush supporter."  Shouldn't we have to worry that, like many other living Americans, the constitution might shrug off its youthful naivete and become a conservative in its dotage?  And if the constitution really changes with the times, how can anyone criticize President Bush for working to expand executive power after 9/11 changed everything?)


While I'm finishing up on this topic, here are a couple other interesting links:


1)  The New York Times does one of its "Room for Debate" things on birthright citizenship.  Except that apparently there is no room for debate on this one, because all four contributors say basically the same thing.  (The commentators are probably all buddies of Arthur Miller.)  (CORRECTION:  since I read the piece earlier today, they have added a dissenting voice (Mr. Camarota).)

2)  Over on PrawfsBlawg, Rick Hills and Peter Schuck (whose op-ed I posted about the other day) have a spirited exchange on the topic.