On whom the law's protection extends

The Guardian reports that the Supreme Court is expected to rule on two matters at once: the president's desire to withhold birthright citizenship from those born on American soil, and the question of trans athletes in competitive sport. I will not presume to speak to the second matter, which is properly one of medical and sporting judgment beyond my station. But the first — the terms on which persons born within a sovereign's territory may claim the protection of its laws — is the precise question on which I must speak, because it is the question on which all else depends.

I argued, in a context now long past, that the unfree laborer is less productive than the free one, not because of any deficiency of nature, but because the person who cannot own the fruits of their labor cannot be motivated by anything except fear. The argument extends further than its original application: any person who cannot be certain of their legal standing — who does not know whether the law will honor their contract, protect their property, or recognize their very membership in the polity — is a person whose productive energies are perpetually diverted toward the anxious task of self-preservation. That is a dead loss to commerce and to society alike.

Birthright citizenship is not a sentimental gesture. It is an institutional commitment that says: persons born within this jurisdiction are, from the first moment, entitled to the law's protection on equal terms. The merchant who employs such a person, the landlord who rents to them, the bank that lends to them — all of these exchanges rest, at the bottom, on the assumption that the law will enforce the agreement. Strip away the citizenship, and you strip away the legal personality; strip away the legal personality, and you strip away the foundation of contract itself.

I am also struck, as The Guardian notes, by the anger that has greeted a prior ruling expanding the executive's power to remove and replace regulatory agency heads. Here I must speak with some care, since the precise architecture of modern regulatory agencies was unknown in my day. But I observe — as inference, not recollection — that the concern is a familiar one: when the power to discipline commerce is concentrated in a single hand, without the check of independent institutions, it becomes indistinguishable from the power to favor. The merchant who captures the regulator has accomplished, by a modern method, exactly what the old East India Company accomplished by royal charter: the privatization of public authority for private gain.

The invisible hand, I must again insist, works only within a framework of laws honestly enforced. It is not a machine that runs without fuel; the fuel is the confidence of every party to an exchange that the law stands behind the agreement regardless of who holds office this season. When citizenship itself becomes a discretionary grant of the executive, that confidence is corroded at its root. The proper corrective is precisely what the Supreme Court exists to supply: a determination of what the law says, independent of what the sovereign wishes it to say. Whatever the outcome, the institutional act of judicial review is, on its face, the framework working as it ought.