How Da Vinci Code 'Originalism' Misreads the Citizenship Clause

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A selective reading of the Constitution lets politicians find meaning where there is none

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Last month I asked a group of Arizona legislators what would happen if Maricopa County Sheriff Joe Arpaio stopped a driver for speeding, and the driver refused to produce ID on the grounds that, as an undocumented alien, he was not "subject to the jurisdiction" of the United States. That question answered itself. 

Some constitutional questions are that easy. But "originalism," as many politicians practice it today, has little to do with what the Constitution actually says. It's really a set of techniques designed to replace clarity with confusion. America gave the world The Da Vinci Code; to us, the idea that Leonardo "intended" merely to paint a masterpiece is BO-ring. He must have really "intended" to refer to a relatively mediocre line of Frankish monarchs.

Where the text is clear, the Da Vinci "originalist" suggests secret meanings. Where the drafting history is clear, he or she changes the subject to Locke, Machiavelli, or Blackstone. Where the evidence is really thin, well, he or she raises a pinky and suggests that those who disagree are simply too stupid to understand the lost symbol.

Where the evidence is really thin, well, he or she raises a pinky and suggests that those who disagree are simply too stupid to understand the lost symbol.

I encountered all these rhetorical moves in a recent online debate on the meaning of the Citizenship Clause of the Fourteenth Amendment. My position is that the text, drafting history, overall structure, historical background, and constitutional values of the Clause all point to one meaning; that's the Sheriff Arpaio meaning, the one written on its face: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States." At the time it was written, that meant everyone born in the U.S. except foreign diplomats and members of Indian tribes. Both groups had a limited immunity from the laws and courts of the U.S. It meant then, as it means now, anybody who is subject to U.S. law.

My opponent, Prof. Edward Erler of California State University, San Bernardino, and the Claremont Institute, was so put off by my naïve reading of the words that he suggested that, "Epps seems to be wholly unacquainted with the foundations of the American Constitution."

I will refrain from a detailed recap of this academic slapfest. I will, however, note that much of the evidence that Erler and other proponents of a restrictive reading of the Clause rely on is simply phony. A few heavily edited quotes that make the rounds, with no attempt to put them in context. Here's an example. Erler quoted Sen. Lyman Trumbull, chair of the Senate Judiciary Committee, as saying during the debate on the Clause that "subject to the jurisdiction thereof" meant "not owing allegiance to anybody else ... subject to the complete jurisdiction of the United States." He added that none of the sponsors "ever said that 'subject to the jurisdiction' meant merely subject to the laws or the courts."

But Trumbull did say exactly that. He said it in the precise quotation Erler was citing. Look at the parts that Erler and others on his side edit out (the parts he included are in italics; the omitted parts I consider relevant are underlined):

What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court?Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.

This quarrel wouldn't be worth rehashing if it weren't a key piece of evidence relied on by those busily working to trash the current meaning of the Clause. Virtually all of the evidence for the "originalist" reading of the Clause is as flimsy as the quote from Trumbull.  

Today, the Da Vinci reading has been embraced by some of those who are loudest in their claims of constitutional principle. Earlier this month, Sens. Paul Vitter (R-LA), Mike Lee (R-UT), Rand Paul (R-KY), and Jerry Moran (R-KS) introduced the somewhat deceptively entitled "Birthright Citizenship Act of 2011" (deceptive because its intent is to limit birthright citizenship). This bill would gut birthright citizenship by defining "subject to the jurisdiction" to mean "born in the United States of parents, one of whom is--(1) a citizen or national of the United States; (2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or (3) an alien performing active service in the armed forces." Don't worry: children of the undocumented would still be subject to Sheriff Arpaio's nightstick; but like Humpty Dumpty in Through the Looking-Glass, Congress would have stripped them of their birthright though verbal sleight of hand.  

Unprincipled posturing is bad enough when we academics do it. When Senators preen as originalists, they ought to mean it. 

Consider Mike Lee: "If I can't imagine myself explaining to James Madison with a straight face why what I was doing was consistent with the text and history of the constitution as it's been amended all 27 times, I'll vote no," he told a Federalist Society gathering last November. "I'll do it every single time regardless of what the precedent says or can get away with."

But that was then. Now this brave "originalist" has got some innocent children to hurt.

Image credit: Wikimedia Commons

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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