Advocates and opponents of birthright citizenship are stuck in a dilemma: originalism binds us to accept it, nonoriginalism offers room to deny it.
While the original Constitution certainly had some defects — especially that it allowed slavery — it was in many ways an amazingly protective document. It was a classical liberal document that strongly defended many individual rights.
This fact is often obscured by today’s debates. Take gay marriage. The normal take — which may be wrong — is that the Constitution’s original meaning does not protect gay marriage, and therefore courts needed to invent rights to protect it. Thus, people often view originalism as insufficiently protecting rights and nonoriginalism as providing the needed protection.
But that view misunderstands the Constitution and constitutional interpretation. Nonoriginalism is not necessarily more protective of rights. It can also choose not to protect certain rights — namely, those in the Constitution. For example, the Supreme Court continues to inadequately protect rights under the Contracts Clause. Another example is Plessy v. Ferguson, where the Supreme Court allowed a state law segregating railroad cars to be enforced, even though the much better reading of the Constitution was that the contract rights at issue could not be constitutionally infringed by a race based law.
Another example involves the Korematsu case, which concerned the internment of Japanese-Americans during World War II. One common way of viewing the internment is that it involved a violation of the Equal Protection Clause, because a racial/ethnic group was targeted. But a little reading shows that the Equal Protection Clause does not apply against the federal government. And therefore it seems that the Constitution’s original meaning did not protect individual rights, whereas a more enlightened nonoriginalism would have done the trick.
But that view is mistaken. In a new book, entitled Habeas Corpus in Wartime, Amanda Tyler recovers the history of the Habeas Corpus Suspension Clause and offers a persuasive account of its original meaning.* Tyler argues that the Clause is implicated whenever the government infringes on the liberty of citizens without going through the normal judicial process. Thus, the internment of Japanese-American implicated their Habeas Corpus rights.
The Constitution does allow Congress to suspend “the privilege of the writ of habeas corpus” in “cases of rebellion or invasion” when “the public safety may require it.” But this authority does not justify the internment. First, Congress did not purport to suspend the writ. And second, there was not on the west coast of the United States either a rebellion or invasion. Hence, the internment was unconstitutional under the Constitution’s original meaning.
Thus, Korematsu is not a case where nonoriginalism was needed to protect individual rights. Instead, the original meaning would have been sufficient. And it was only because the Supreme Court and the federal government ignored that original meaning that the government was allowed to perpetrate a horrible injustice.
*While I have not read most of the book, Tyler gave a presentation at my school, which was quite persuasive and has led me to place the book on my reading list.