The Contested Meaning of the Constitution
To those familiar with constitutional history, it may seem trite to observe that the meaning of the Constitution is contested. Yet many contemporary political commentators treat the Constitution as a document whose meaning is plain and obvious. An op-ed in the New York Times, criticizing President Donald Trump’s attempt to end birthright citizenship, informs us that “Trump doesn’t get to decide what the Constitution means.” The writer argues that the meaning of the Fourteenth Amendment is plain: “Virtually everyone born in America would be an American, end of story.” In his view, by stating that children born to illegal immigrants are not US citizens, “The Trump administration is wrong.” After setting out the terms of Trump’s Executive Order, the writer asks “How could this be possible, given the plain text of the amendment?” He adds that “every plain reading of the amendment comes to the same conclusion,” namely his own conclusion.
The aim of this article is not to settle the contested meaning of the Fourteenth Amendment, but to highlight a different problem: the fact that both sides of the debate view the matter as so clear as to be beyond debate. The argument advanced here is that where the meaning of the Constitution is contested, as it often is, the readiness of both parties to deny that the meaning is contested is a problem in itself. A contested issue cannot be resolved when the protagonists deny that there is anything that needs to be resolved in the first place.
Some of the federal judges who have issued temporary injunctions against the Executive Order seem to regard the issue as clear beyond the scope of doubt or debate. A federal judge in Seattle described the Executive Order as “blatantly unconstitutional,” observing for good measure that “I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is.” He put it to the Department of Justice attorney that, “I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order” to which counsel’s response was that he “absolutely” viewed the order as constitutional. Many people who support the Executive Order have argued that the federal courts issuing these injunctions are quite obviously reading the Constitution “wrong”—perhaps, it is often suggested, they are Democrat appointees and therefore reading everything wrong. If read “correctly,” so the argument goes, the opposite meaning is “absolutely” plain to see.
To the NYT claim that, “Virtually everyone born in America would be an American, end of story,” one could respond in the same dismissive terms that “anchor babies are not Americans, end of story.” But this is a childish way to approach interpretation of the Fourteenth Amendment. Those who approach the debate in that way have failed to acknowledge that there is a serious dispute as to the “correct” meaning of the Fourteenth Amendment, including a fundamental dispute over whether this is a valid constitutional amendment in the first place as it was only ratified by the Southern States at the point of the bayonet. In an article titled “Was the Fourteenth Amendment Constitutionally Adopted?” Forrest McDonald cites a very good point put forward by Walter J. Suthon, Jr.—that “the intent of the framers was irrelevant, for the whole proceeding, start to finish, was unconstitutional.” Indeed, going back into the earlier history, the war of 1861-1865 was in very large part a war
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LewRockwell.com is a libertarian website that publishes articles, essays, and blog posts advocating for minimal government, free markets, and individual liberty. The site was founded by Lew Rockwell, an American libertarian political commentator, activist, and former congressional staffer. The website often features content that is critical of mainstream politics, state intervention, and foreign policy, among other topics. It is a platform frequently used to disseminate Austrian economics, a school of economic thought that is popular among some libertarians.
