Don’t you wish that hypocrisy was a crime? This occurred to me most recently upon hearing the view of some self-proclaimed “constitutionalists” or “strict constructionists” regarding ending birthright citizenship in the United States.
You will recall that, whatever they call themselves, all of these people supposedly share a deeply ingrained respect for the precise wording of the Constitution. Hardly a day goes by when you don’t hear from one of them criticizing some supposedly liberal judge who takes a more expansive view of constitutional rights. Some of these judges believe that where the wording of the Constitution is not clear, it is wise to examine the values embodied in the constitutional rights at issue and apply those values to modern day society.
But “no,” say the strict constructionists. “We need certainty, we don’t want judges reading and interpreting the Constitution beyond its literal textual meaning. Judges should not decide cases based on policies they favor or disfavor but on the precise wording of the Constitution.” Before they started attacking everyone who raised doubts about Brett Kavanaugh’s sexual history, proponents of his nomination to the Supreme Court, such as President Donald Trump and Sen. Lindsey Graham, lauded the judge’s strict adherence to the Constitution. He was not going to be one of those judges who acts in contravention of the very words of the Constitution just because he likes or does not like a certain policy.
So now President Trump declares that he has been told that, by executive order, he can end the right of those born in this country to be declared American citizens. The first sentence of the 14th Amendment to the Constitution reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside”. Now, I don’t claim to be a strict constructionist, but I do know what “all” means, I do know what “born” means, and I do know what “citizen” means. He who supposedly nominates only judges who abide strictly by the wording of the Constitution now proposes that, by a stroke of his pen, he can change the 14th Amendment. Go figure.
Lindsey Graham apparently thinks Congress can change the Constitution with legislation and said he will propose a bill that ends birthright citizenship. Sorry, you cannot change the Constitution that way, either. Only another constitutional amendment can do that.
Some have claimed the 14th Amendment did not intend to cover those who enter the country unlawfully. I will not dwell on the utter lack of support for this argument but instead on how hypocritical it is when coming from those who swear fealty to the Constitution’s precise wording. Surely those who wrote the amendment could have included such language had they wished to. To allow for an interpretation that permits adding lawful entry as a condition would allow for adding all sorts of other conditions to birthright citizenship not contained in the actual text. How about an interpretation that limits birthright citizenship to those whose parents lived in the country for a year prior to giving birth? Some might advocate the reasonableness of such a policy, but none can responsibly argue that such a proposal would not unconstitutionally limit the wording of the 14th Amendment.
President Trump claimed that we are the only country that has this birthright citizenship. Actually, and this will no doubt shock you, what Mr. Trump said is factually quite wrong. Over 30 countries have birthright citizenship, it’s been reported, but Mr. Trump can be excused for getting it wrong since some of those countries are as far away as — wait for it — Canada and Mexico.
Reasonable people can differ on the wisdom of allowing everyone born in this country to be declared a citizen. But the wisdom of the policy is a discussion for another time. What matters now is that an executive order cannot change the Constitution and that anyone who favors strictly interpreting the wording of the Constitution who argues otherwise should be embarrassed and charged with Hypocrisy in the First Degree.
Steven P. Grossman is the Dean Julius Isaacson Professor at the University of Baltimore School of Law; his email is firstname.lastname@example.org.