My Georgetown Law colleague John Mikhail has posted Birthright Citizenship, Unwritten Constitutionalism, and the Nature of the Union, which is forthcoming in the Yale Journal of Law & the Humanities:
Many of Jonathan Gienapp’s core arguments in his outstanding new book, Against Constitutional Originalism, are well-taken, and they represent important challenges to any theory that focuses unduly on the text of the Constitution at the expense of other, non-textual considerations. Yet readers familiar with the history of birthright citizenship might recognize problems lurking on the horizon. A useful way to appreciate the main problem is to recall how Roger Taney approached the topic of American citizenship in Dred Scott v. Sandford. According to Taney, the text of the Constitution could not resolve this foundational issue because it could not, on its own, specify what kind of federal union stood beneath it. Instead, what was required was a proper understanding of the nature of the political community that formed the "People of the United States” in the first place. Much like Gienapp does, Taney insisted that the Constitution’s meaning was shaped by the nature of the polity, and the nature of the polity could not be derived from the written instrument alone, but required an appeal to history, sociology, and political theory. Or as Taney put the point in a famous passage: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government, through their representatives. They are what we familiarly call ‘the sovereign people,’ and every citizen is one of this people and a constituent member of this sovereignty.”
So, do Jonathan Gienapp and Roger Taney see eye-to-eye when it comes to the need for constitutional interpreters to go beyond the text to theories of union and sovereignty? Is there a convergence here that might teach us something about the risks of appealing to concepts such as “social contract theory,” “unwritten constitutionalism,” and “the nature of the Union” as a counterpoint to originalism and the written Constitution? And what precisely are the implications of Against Constitutional Originalism—and of originalism itself—for the birthright citizenship debate? This invited essay on Gienapp's stimulating book does not seek to answer all of these questions directly, but to begin laying the groundwork for doing so by exploring two topics that bear on them: citizenship in the original Constitution, as interpreted in Dred Scott, and birthright citizenship, as defined in the Fourteenth Amendment and interpreted in Elk v. Wilkins. Both of these cases involve race, racism, and unwritten constitutionalism, and both of them turn on tacit theories of union, sovereignty, and the American polity. After discussing these topics, the Essay concludes with a few additional reflections on the government's legal defenses of the president’s Executive Order on birthright citizenship.
--Dan Ernst
