To those familiar with constitutional history, it may seem trite to observe that the meaning of the Constitution is contested. Yet many contemporary political commentators treat the Constitution as a document whose meaning is plain and obvious. An op-ed in the New York Times, criticizing President Donald Trump’s attempt to end birthright citizenship, informs us that “Trump doesn’t get to decide what the Constitution means.” The writer argues that the meaning of the Fourteenth Amendment is plain: “Virtually everyone born in America would be an American, end of story.” In his view, by stating that children born to illegal immigrants are not US citizens, “The Trump administration is wrong.” After setting out the terms of Trump’s Executive Order, the writer asks “How could this be possible, given the plain text of the amendment?” He adds that “every plain reading of the amendment comes to the same conclusion,” namely his own conclusion.
The aim of this article is not to settle the contested meaning of the Fourteenth Amendment, but to highlight a different problem: the fact that both sides of the debate view the matter as so clear as to be beyond debate. The argument advanced here is that where the meaning of the Constitution is contested, as it often is, the readiness of both parties to deny that the meaning is contested is a problem in itself. A contested issue cannot be resolved when the protagonists deny that there is anything that needs to be resolved in the first place.
Some of the federal judges who have issued temporary injunctions against the Executive Order seem to regard the issue as clear beyond the scope of doubt or debate. A federal judge in Seattle described the Executive Order as “blatantly unconstitutional,” observing for good measure that “I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is.” He put it to the Department of Justice attorney that, “I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order” to which counsel’s response was that he “absolutely” viewed the order as constitutional. Many people who support the Executive Order have argued that the federal courts issuing these injunctions are quite obviously reading the Constitution “wrong”—perhaps, it is often suggested, they are Democrat appointees and therefore reading everything wrong. If read “correctly,” so the argument goes, the opposite meaning is “absolutely” plain to see.
To the NYT claim that, “Virtually everyone born in America would be an American, end of story,” one could respond in the same dismissive terms that “anchor babies are not Americans, end of story.” But this is a childish way to approach interpretation of the Fourteenth Amendment. Those who approach the debate in that way have failed to acknowledge that there is a serious dispute as to the “correct” meaning of the Fourteenth Amendment, including a fundamental dispute over whether this is a valid constitutional amendment in the first place as it was only ratified by the Southern States at the point of the bayonet. In an article titled “Was the Fourteenth Amendment Constitutionally Adopted?” Forrest McDonald cites a very good point put forward by Walter J. Suthon, Jr.—that “the intent of the framers was irrelevant, for the whole proceeding, start to finish, was unconstitutional.” Indeed, going back into the earlier history, the war of 1861-1865 was in very large part a war over the “correct” meaning of the Constitution.
Those who argue that the meaning of the Constitution is plain on any honest reading of it are merely begging the question: after all, the meaning seems “plain” to all the feuding parties. This is a case of all warring factions denying that there is anything to war about. By contrast, most philosophical discussions of constructive disagreement and fruitful debate presume that both parties are at least aware of the existence of a disagreement. They contemplate cases where neither party to the disagreement denies that there is a disagreement. For example, the Stanford Encyclopedia entry on disagreement opens as follows:
We often find ourselves in disagreement with others. You may think nuclear energy is so volatile that no nuclear energy plants should be built anytime soon. But you are aware that there are many people who disagree with you on that very question. (emphasis added)
In such cases the premise is that there is a disagreement. Neither party claims that there is no debate; on the contrary, the formal set up of any debate inherently makes it clear that there is an opposing view. They are debating who has the better arguments, or whose view should prevail. In the typical example, neither party sets up their own view as “plainly correct,” and it is clear that each party sees his or her own subjective view of the matter as one that requires substantiation or explanation in order to persuade the opposing party to acquiesce. This example is given in the article “Argumentation and Persistent Disagreement”:
(1) Gina: “John, I really don’t want to invite Thomas to the party; you know how much I dislike his girlfriend.”
(2) John: “But Thomas is one of my best friends! Is it so hard to tolerate his girlfriend for a couple of hours?”
This typical example implicitly acknowledges that there is a contested issue to be debated in the first place: neither side claims there is nothing to debate as that would amount to rejecting the very premise of how they frame the debate. To illustrate this, we could amend the given example to read:
(1) Gina: “John, you must not invite Thomas to the party; I forbid it.
(2) John: I will invite whomever I decree, end of story.
In the amended example, where Gina and John are issuing orders and decrees to each other, that cannot reasonably be described as a “debate.” There may sometimes be good reasons to reject the notion of debate altogether, a good example being when courts in South Africa invited Boers to “debate” with those chanting “Kill the Boer” as to the pros and cons of such death chants. The premise to be “debated” is so outrageous that it is easy to see why such “debates” are rejected out of hand.
Debating the Constitution
Matters are different when it comes to the Constitution. Even in the context of deep disagreement such as that preceding the war of 1861-1865, the protagonists joined issue on the debates as questions important enough to debate. Leaving aside those who reject the Constitution altogether, anyone who acknowledges the importance of a constitution should recognize that its meaning is contested and is therefore the appropriate subject of debate. If each side of a constitutional debate supposes that there is nothing to debate, merely an “obviously correct” position and troublemakers rejecting the “obviously correct” position for nefarious reasons, there can be no peaceful resolution of any constitutional debate.
To argue that “everyone who disagrees with my obviously correct reading of the Constitution is simply being dishonest” or “everyone who is honest must agree with my obviously correct reading of the Constitution” would itself be a dishonest position to take in a formal debate because it rejects the very premise of the word “debate.” It amounts to each side saying that nothing is contested, everything is as each faction declares it to be, and there are no arguments on the other side other than perhaps sham arguments. But the fact that each faction is absolutely convinced of the correctness of its own constitutional interpretation does not mean there is no dispute—on the contrary, that is precisely why the matter is in dispute.
In the debate over the birthright citizenship clause, the dispute concerns what each side of the debate describes as the “plain meaning” of the phrase, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Some argue that “subject to the jurisdiction thereof” plainly means only legal immigrants, while others, for example, the NYT article cited above, rely on the 1898 Supreme Court case of United States v. Wong Kim Ark which held that birthright citizenship includes “all children here born of resident aliens” and only excludes,
…children of foreign sovereign or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
The court went on to rule that, “The amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States” (emphasis added).
One could respond by arguing that the case of Wong Kim Ark was “plainly” wrongly decided, or that it can “plainly” be distinguished on its facts, or that there are other important aspects of the case to consider—but to mount such arguments is necessarily to acknowledge that the meaning of the contested provision is not “plain.” The meaning is contested.
Leaving aside those who argue that the Supreme Court should simply be ignored when it gets things “plainly wrong,” debating what is meant by a Supreme Court case, whether it was correctly decided, and whether it applies to the current situation is precisely what is meant by describing an issue as contested. That raises further constitutional questions as to whether the courts have jurisdiction to injunct the government merely because an issue is contested.
In an era governed largely by false and confected “consensus,” it is paradoxical that many people think that if the meaning of a disputed issue seems plain to them and their political friends, it follows that the issue is not disputed. On the contrary, two opposing and mutually exclusive “plain” views of any matter (i.e., each view is plainly correct to those who hold that view and plainly wrong to those who reject that view) signify precisely the opposite—that the matter is in dispute. A society addicted to “consensus” seemingly finds it hard to grasp the concept of an issue being contested, and responds by declaring that there is no contested issue. We are now in a situation where the meaning of complex legal issues is always stated by all warring factions to be “plain”—which is precisely what has happened in all the Fourteenth Amendment debates.
Murray Rothbard argues that ambiguity in constitutional provisions is a weakness inherent in the Constitution as written, due to “its inherently broad powers and elastic clauses.” As Rothbard also points out, the Constitution establishes the Supreme Court as the final arbiter of such disputes, but there we come upon the same problem – judges who disagree as to the plain meaning of the Constitution. Rothbard explains:
It is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. (emphasis added)
Ultimately, two warring parties who have both arrived at the conclusion that they are not warring at all, while each is convinced of the plain correctness of his position, are left with only one recourse, and that is endless warring (unless they wish to separate). Resolving a dispute requires, at the very minimum, that both sides acknowledge that there is in fact a dispute that needs to be resolved.
