When the text is plain, the margin should not be narrow

The New York Times reports that a bare majority of the Supreme Court found President Trump's executive order on birthright citizenship unconstitutional — and that some legal scholars were surprised by how close the decision was. I will not pretend to know the particulars of the order, the briefing, or the internal deliberations of the Court; those details belong to a world after my time. But I can speak to the structure at stake, and the structure here is about as clear as the written compact ever gets.

The Fourteenth Amendment — adopted after the great catastrophe that the framers' own compromises helped produce — declares, in language that admits little ambiguity, that all persons born on American soil and subject to its jurisdiction are citizens. That language was put there precisely to remove the question of birthright from the reach of ordinary legislation and, by necessary implication, from executive decree. An executive order cannot amend the Constitution. Article V is the only lawful gate through which such a change may pass.

The structural alarm I feel is not that the Court ruled against the order — that is, if the reporting is accurate, the correct result. The alarm is that the vote was described as surprisingly close. A bare majority on a question the written compact resolves in express terms suggests that some members of the bench were prepared to treat a plain textual command as a contested policy choice. That is not judicial interpretation; it is judicial revision by another name. When the amendment process is bypassed not by executive fiat alone but also by judicial tolerance of that fiat, the written compact loses its binding force at both ends.

Federalist No. 51 counseled that the safety of free government depends on giving each branch the means and the motive to resist encroachments by the others. The Court, when it does resist, performs an indispensable function. But a Court that is nearly evenly divided on whether a constitutional text means what it says is a Court operating closer to the margin of factional preference than the founders intended. The bench is not supposed to be a third political faction; it is supposed to be the forum where the written compact is read, not rewritten.

I mark as inference — since the Times lead does not supply the full opinion — the possibility that the dissenting justices rested their position on some narrow procedural ground rather than a substantive disagreement with the Fourteenth Amendment's reach. If so, the structural concern is somewhat reduced. But the reporting's emphasis on a conservative shift in receptiveness to the underlying argument suggests the disagreement ran deeper than procedure. That warrants watching with great care as future cases arrive.

The lesson I draw is the same one the compact's design has always taught: no generation is safe in leaving its liberties to the goodwill of those momentarily in power. The text must be defended by the text — by amendment when the people judge an amendment necessary, not by executive order and not by a divided Court's grudging tolerance of one. Five votes held the line this term. That is not a comfortable margin for the republic.