The court that will not speak still speaks

Reason reports that the Supreme Court, in the matter of Trump v. Barbara, had before it a road not taken: resolve the birthright citizenship dispute on statutory grounds, and leave the Fourteenth Amendment question for another day. The essay's author argues this would have been the more prudent judicial path. I am told no more of the specifics than that lead provides, so what follows is my inference from the shape of the civic question — not a recollection of proceedings I could not have witnessed.

And yet the civic shape is ancient and familiar. Who belongs to a republic, and by what authority is that membership conferred? These are not technical matters to be deferred indefinitely. The Fourteenth Amendment, as I understand it from the reports of those who came after my time, was ratified to settle precisely this kind of question — to answer, in the clearest possible language, that the soil of this Republic and the fact of birth upon it carry legal weight that no faction may simply dissolve by preference. To reach around that amendment on narrower grounds may appear to be restraint; it may in fact be evasion dressed in the robes of caution.

I have always believed that a constitution speaks with authority only when those charged with interpreting it are willing to say plainly what it means. A court that consistently selects the exit that avoids the great question trains the citizenry to expect that great questions will never be directly answered — only perpetually managed. That is not the rule of law. That is the management of controversy for the comfort of the institution, at the expense of the people who depend on its clarity.

There is a further concern that belongs to the matter of faction. Birthright citizenship is no longer merely a legal question in the public mind; it has become a token in the permanent quarrel between organized parties. When the courts speak ambiguously, they do not calm that quarrel — they extend it. Every ambiguous ruling becomes raw material for the partisan industries that profit from permanent uncertainty. A clear constitutional ruling, even one that disappoints one side, at least gives the Republic a fixed point from which to reason going forward.

I counsel this: the rule of law is not served by finding the path of least institutional resistance. It is served by saying, plainly and on the record, what the law requires — and then holding to it. Let the Court, and let the Congress, and let the Executive, each speak clearly within their respective authorities. The citizens of this Republic deserve to know, without ambiguity, what the terms of their membership are. That clarity is not a partisan gift to any faction. It is the foundation on which every other right rests.