The words of the Constitution are not raw material for executive convenience

National Review reports that the Trump administration's latest birthright citizenship orders represent "a more serious effort to work within existing law while pushing its borders" — a description that is, I confess, precisely the kind of framing that ought to put careful lawyers on notice. To work within the law is one thing; to push its borders by executive decree is quite another.

The Fourteenth Amendment — which I could not have known in my own time, having departed this world in 1829 — is, by every account available to me, a clause of deliberate breadth: all persons born on the soil of the United States and subject to its jurisdiction are citizens. The dispute turns on that second clause. What does "subject to the jurisdiction" mean, and who holds authority to define it?

Here I speak from settled principle, not from recollection. The construction of constitutional language is not a power the executive branch may exercise unilaterally and expect to bind the courts. When I wrote Federalist No. 64, I observed that the interpretation of our fundamental obligations requires a body insulated from popular passion — a judiciary, not a presidency. An executive order that re-reads a constitutional guarantee to produce a narrower class of citizens is an assertion of interpretive power the Constitution does not grant to that branch.

National Review notes — and I treat this as the lead's fair summary — that there is "no guarantee" these orders will survive judicial scrutiny. That is the correct framing. The orders should be tested, and tested promptly, in the courts properly constituted to decide such questions. The role of the judiciary here is not to be hostile to the administration, nor to be accommodating of it; it is to say, with precision and without political coloring, what the Amendment's ratifiers understood those words to mean.

I would add only this: the question of who belongs to the political community of a republic is among the most consequential any government can answer. I spent the better part of my life arguing that the unfinished moral question of this Republic — the subordination of persons on the basis of birth and ancestry — demanded resolution by principle, not expedience. The Fourteenth Amendment was precisely such a resolution. It ought not be narrowed by the instrument of a single officer's decree. Let the courts read, and let them speak plainly. That is the task for which they exist.