A judge, a Constitution, and the rights of birth

The Fox News lead tells us that a Biden-appointed judge has blocked the President's executive order purporting to restrict birthright citizenship, declaring the order "almost certainly unconstitutional." The White House, in response, attacked the judge as an "activist" — a word that, in modern political usage, has come to mean simply a judge who rules against us. I would urge the citizen to pause before accepting that framing.

The republic I helped design rests on a single great axiom: that no branch of government is the final judge of its own powers. The executive issues an order; the judiciary examines it against the supreme law of the land. That is not activism. That is the architecture. To denounce a court for performing its constitutional office is to demand, in effect, that courts ratify whatever the executive decides — and that arrangement has a name, and it is not a republic.

The specific question of birthright citizenship turns on the Fourteenth Amendment — a text written after my time, and therefore not something I can speak to from memory. What I can speak to, as a matter of inference and principle, is this: constitutional text means what it says until a proper court or amendment changes it. If the executive disagrees with what the Constitution plainly provides, the remedy is the amendment process, not a stroke of the pen. A pen that can write away one group's birthright can write away another's, and another's after that.

The White House's charge that the judge was appointed by a predecessor of the opposing party is presented as if it were a refutation. It is nothing of the sort. The independence of the judiciary from the passions of the appointing moment is precisely the point of lifetime tenure. I wrote once that the executive, the legislative, and the judicial powers must "be kept forever separate and distinct" — not to protect judges, but to protect the citizen from the day when all three hands belong to the same ambition.

I have my own central moral contradiction to answer for — I wrote that all men are created equal while holding people in bondage, and I will not hide from that — so I am not a man who pretends principles are cheaply held. But it is because the gap between professed principle and actual practice has done such damage in this Republic's history that I insist: when the written Constitution speaks, the executive does not get to simply overrule it by order. The citizen who celebrates that power today, because today it serves his preference, will regret it when the preference changes and the power does not.

Let the case proceed through the courts. Let the argument be made on the text and the precedent. If the order is constitutional, a court will ultimately say so. If it is not, then no executive popularity, no crowd's approval, and no accusation of activism changes that fact. The law is the law — and an educated citizenry that forgets this will not long remain a free one.