John Roberts, Birthright Citizenship, and Our Constitutional Straitjacket

What is a Robertsism? It’s a term I like to use to describe memorable quotes from Chief Justice John Roberts that infuriate the right and leave one wondering whether Roberts really believes what he is saying. For example, during Trump’s first term, Roberts famously rebuked the president for calling out “Obama judges” as political actors. Roberts insisted that federal judges were nonpolitical: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Similarly, during the oral arguments in the vital case of Trump v. Barbara in April, he uttered another one: “It’s a new world, but it’s the same Constitution.”

What Roberts meant is that the Constitution is the same one that existed in 1868, the year the 14^th Amendment was adopted, and that while the world and circumstances may change, the words of the Constitution do not. If you were looking for a signal as to how Roberts is going to rule, there it is. Even when circumstances have changed from the time of this amendment—when it is applied to people not then envisioned, or it is inconvenient or impolitic to gift the rights of citizenship to the children of resident aliens, illegal aliens, tourists, students, or all of the above—that is not the Court’s business, according to Roberts. The Constitution speaks plainly on this matter, and we justices are constrained by it.

But they are not restrained by it. And it is not the same Constitution. It has changed radically and fundamentally since 1868, and I do not mean by amendment. It has been changed, unconstitutionally, I would argue, by the courts themselves. The Supreme Court, early in the 20^th century, began “incorporating” the first 10 amendments of the Constitution, the Bill of Rights, by applying them against the states even though their original purpose—followed for more than 100 years—was to limit the power and jurisdiction of the federal government only. Incorporation was followed by “the procedural due-process revolution” in the middle of the 20^th century, and the practice of “sociological jurisprudence.” By means of these judicial innovations, the courts expanded their jurisdiction and became more powerful.

But the letter of the Constitution somehow remains the same. Hearing Roberts make that claim brought to my mind the American writer William T. Vollmann, who observed of our fundamental and highest law, “A Constitution is one of those magic exemplars of crockeryware whose beauty remains untouched for those who break them.” Indeed.