Originalism and Accidental Outcomes
In my final guest post, I’ll turn to the implications of the original meaning of the citizenship clause for originalism and modern law. Before I do, I want again to thank Eugene Volokh and the Volokh Conspiracy for inviting me, and to thank everyone for your comments and criticisms. The discussion may continue over at my regular blog, The Originalism Blog.
With some oversimplification, originalism is the view that the Constitution’s original meaning should bind modern governmental actors (what Lawrence Solum calls the constraint principle). As described in prior posts, the original meaning indicates that persons born in U.S. overseas territories are born “in” the United States and that U.S.-born children of people not lawfully present in the U.S. are born “subject to the jurisdiction” of the United States. Originalism’s constraint principle would require modern governmental actors to recognize people in these categories as U.S. citizens.
This originalist outcome may seem odd, though. The clause’s enactors likely did not foresee that their constitutional language would resolve either question. Neither question was part of the 1866-1868 citizenship debates. The U.S. didn’t have material overseas territories until 1898. Materially restrictive federal immigration law didn’t begin until the 1880s. The originalist resolution is therefore accidental: the enactors could have chosen other language to accomplish their goals that might have affected these modern debates differently. What justifications for originalism explain enforcing outcomes that the enactors could not contemplate?
Several common justifications seem unhelpful here. One is that modern law should respect the wisdom of the framers. A related idea invokes the framework in which the Constitution was adopted. John McGinnis and Michael Rappaport argue that the supermajority process required to adopt constitutional provisions tends to produce good results. Similarly, it’s said that adopting or amending a Constitution occurs in an atmosphere in which people undertake unusually thoughtful reflection on long-term goals and structures, in contrast to ordinary short-term political thinking.
Article from Latest – Reason.com