Is the 14th amendment unconstitutional? Views differ

But the thing is: Views do differ on this question, although almost nobody who functionally answers “yes” has either the mental clarity or courage of their convictions to do so openly and directly.

What I mean by this is that there are two fundamentally incompatible views of the American project. The first is reflected by, among many other things, Roger Taney’s opinion in Dred Scott, by the successful century-long terrorist attack on Reconstruction, and by Donald Trump’s Make America Great Again movement. That view is simply this: America is a country founded by white people, for white people. Non-whites can be in a limited sense members of the polity, but only to the extent that their presence and actions do not threaten the constituent nature of the nation, which is unalterably white supremacist.

I’m drawing here on the legal theoretical distinction between the constituent political power and the constituted power. The constituent power is the basically metaphysical concept that there is some trans-legal entity — in this specific case, “the People,” who constitute the nation. The constituted power is made up of the legal documents and institutions that express the constituent power in the course of the functioning of ordinary legality. Within such a frame, the idea of substantively unconstitutional amendment is perfectly coherent: such an amendment would be one that overthrows the constituent power — “the People” — and replaces it with another one. This is, on these terms, revolution rather than amendment.

Here for example is an article from no less an eminent source than the Harvard Law Review, arguing that the 15th amendment, which purportedly took away from states and the federal government the right to deny non-white Americans the vote, may not actually be constitutional, because the right of the white man to control the franchise is at the core of the original Constitution itself, and to deny him that right is to essentially overthrow rather than amend that document, in the same sense that an amendment creating a hereditary aristocracy to rule the nation would be unconstitutional. Structurally similar arguments have been made in exactly the opposite direction, claiming that a constitutional amendment enshrining white supremacy would be unconstitutional, because it would violate the fundamental core principle of the constituent power, which is that all men are created equal, not just white men. (For what should be obvious reasons I’m using the term “men” rather than “people” here intentionally). It’s been argued that a constitutional amendment revoking the free speech clause would be similarly unconstitutional.

The point is that we can and do have meta-interpretive arguments about what underlying fundamental political principles that make the Constitution fundamental law are. And here it’s critical to distinguish between historical and, narrowly defined, “legal” argument. The answer to the historical question of whether the Constitution is a white supremacist charter, or ultimately rejects white supremacism, is “yes.” That of course can’t be the technical legal answer, because as a functional matter law has to be a lot less complicated than history.

Which brings me to my real point here, which is that arguments about things like birthright citizenship are ultimately really arguments about whether the Constitution should be interpreted as a white supremacist charter, or a rejection of that fundamental interpretive understanding of the meaning of America. And it should be unnecessary to point out that any strictly formal legal answer to that question is necessarily a form of question-begging, since it attempts to enlist norms of formal legal description for normative rather than descriptive ends.

And this is a fancy way of saying that anybody who makes a historical argument for the claim that the 14th amendment doesn’t legalize birthright citizenship is, as a practical political matter, making an argument for white supremacy. Saying “I’m not arguing for white supremacy, I’m arguing for historical truth,” doesn’t get the putatively non-white supremacist legal historian out of this dilemma, because the question of which historical constitutional vision one is advancing, that is, one that is white supremacist or anti-supremacist, is not itself a historical question, but a question of political commitment and its attendant moral consequences.

For politics is not like the nursery; in politics obedience and Support are the same.

Hannah Arendt, Eichmann in Jerusalem

Update: The oral argument is pointing to a 7-2 or even an 8-1 loss for the administration (Sammy the 14th century Papal Bull in dissent). This would be a really striking variation on Juan Linz’s argument about the perils of presidential systems, which is that there’s always the lurking risk of a legitimacy crisis because sovereignty can be claimed by both the executive and the legislative branches. Here the legitimacy struggle is between the presidency and the courts, and it’s very real.