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Birthright Citizenship, Unwritten Constitutionalism, and the Nature of the Union
Mikhail, John
Mikhail, John
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Abstract
In the Introduction of his outstanding new book, Against Constitutional Originalism, Jonathan Gienapp explains that its exclusive focus is “Founding-era history,” that is, “the broad period that runs from the mid-eighteenth century to the early nineteenth century, during which time the United States earned its independence and constructed the nation’s constitutional order.” Gienapp notes that originalists have recently devoted substantial attention to the Reconstruction amendments, “rightfully recognizing that many fundamental constitutional rights are properly traced to the original meaning of those amendments.” And he names “birthright citizenship” as one of these fundamental rights.
Elsewhere in the book, Gienapp traces the founders’ ideas about unwritten constitutionalism, nationalism, and the nature of the Union. Among other things, he emphasizes that “the root of the problem” with originalism and “the source of the deepest and most consequential misunderstanding” is its preoccupation with “constitutional writtenness”—that is, the basic premise that the Constitution is a “written text” whose content “is distinctively textual in nature.” Gienapp rejects this premise, along with the interrelated ideas that “by virtue of being written, the Constitution automatically provides an account of its own content and how that content is communicated,” that it “comes hardwired with a model of constitutional communication, one that assumes that the Constitution acquires and communicates its content solely through text,” and that its content “is thus the set of propositions communicated by its text.” Against all of these claims, Gienapp insists that the founders themselves were not textualists. Under the influence of British constitutionalism, fundamental law, and social contract theory, they were not fixated on written law in the way most originalists are and “did not wield a clear distinction between written and unwritten meaning.”
Finally, in two sections of the book with particular relevance to current debates over birthright citizenship—”What You See is What You Get” and “What the Text Could Not Resolve: Debating the Nature of the Polity,” Gienapp responds to the argument that indexical phrases such as “this Constitution,” which pervade the written instrument, can be used to settle whether the Constitution is simply the text that was drafted in 1787 or amended in 1791. Pushing back on this claim, Gienapp writes:
Set in the foundational context of social contract theory, “this Constitution” described the entwined relationship between the formation of a political community and the constitution of government that followed. The latter could not be read independently of the terms of the social contract. What the Constitution said was a function of the kind of people and union for which it spoke. And the constitutional text could not resolve these foundational issues; it could not, on its own, specify what kind of federal union stood beneath it. The document’s meaning was shaped by the nature of the polity, and the nature of the polity could not be derived from the document—no matter how hard some today might be inclined to try . . . .To know what the Constitution communicated necessarily required a theory of constitutional union and sovereignty derived from history, sociology, and political theory, not law or text.