How Da Vinci Code 'Originalism' Misreads the Citizenship Clause

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."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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