The Supreme Court’s Biggest Case of the Term Shows Popular Constitutionalism in Action
Slate · L · trust 42/100
This is part of Amicus and Slate’s “ By the People ” series, exploring how the American people can reclaim the Constitution—and the law—from this monarchic Supreme Court.
Every summer, the nation waits to hear the Supreme Court announce, case by case, what the law is. This end-of-term ritual presents the court as settling the Constitution’s meaning. Yes, the court settles disputes between parties. At the same time, Americans who oppose the court’s decisions can challenge the principles on which the decisions rest, and they have done so for a very long time, in some instances ultimately succeeding in changing the law.
The birthright citizenship case the Supreme Court just decided demonstrates how deep-rooted this practice is, particularly in the conservative legal movement. The court closed its term in Trump v. Barbara announcing that birthright citizenship continues to extend to children of undocumented persons if those children were born on United States soil. Conservative critics immediately greeted the 5–4 decision by asking longingly, “ Is Trump v. Barbara the New Roe ? ,” denouncing Justice Amy Coney Barrett for joining the majority, and urging Americans to overturn the decision: “The formidable resources of the conservative legal movement—from its theorists to its jurists—must be trained on sending Trump v. Barbara to the ash heap of judicial excess.”
Conservative legal scholars now seem to understand this truth better than progressives: The Supreme Court does not have the final word, if there is sufficient popular momentum against a decision.
The conservative legal movement honed its skills attacking decisions of the Warren and Burger courts. It developed originalist arguments against Brown and Roe , and used these arguments and judicial appointments to overturn the abortion right —and to build the originalist case for gun rights and for fetal personhood under the Constitution.
This strategy of mobilizing against court decisions is not owned by the right. Constitutional law was reshaped by the campaign to outlaw segregation , by the campaign for the Equal Rights Amendment , and by the campaign for constitutionally protected same-sex marriage . Nor are campaigns against the court new. Constitutional law has also been shaped by movements for women’s right to vote and against Comstockery —obscenity laws restricting sexual and reproductive freedom.
In fact, as Trump v. Barbara shows, democratic constitutionalism of this kind is as old as the American constitutional order. Birthright citizenship was the focus of early interpretive rivalries between American citizens and the Supreme Court rooted in the debate over abolishing slavery—a constitutional dispute rooted in the founding itself.
The majority’s decision in Barbara recounts how before the 14 th Amendment’s ratification, Americans followed the long-standing common-law rule making persons born on American soil citizens by birth. In the 1850s, in the midst of disputes whether Black people were equal citizens, the Supreme Court decided in the infamous Dred Scott case that citizenship did not extend to the descendants of enslaved people—that freedmen born in the country were “not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.” As Chief Justice John Roberts summed up that cataclysmic ruling, “for them, blood, not soil, was made the rule.” This decision inflamed conflicts that soon led to the Civil War. At the war’s end, Americans ratified the 14 th Amendment, whose first sentence overturned Dred Scott and reinstated birthright citizenship, providing, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
In recounting this history, Roberts recognized that the American people had struggled with each other and with the court over the Constitution’s meaning—and, for the first time ever, recognized Frederick Douglass—an escaped slave and prominent spokesperson for the abolitionist cause—as an author of the 14 th Amendment: “The Court had overruled the common law, but the people—eventually—would overrule the Court. It took more than a decade—and the addition of names such as Antietam, Gettysburg, and Chancellorsville to our national canon—but Douglass’s vision of ‘our common humanity’ would be fulfilled.” This recognizes Douglass as one of the earliest and most prominent popular constitutionalists.
Justice Ketanji Brown Jackson, a member of the Barbara majority, wrote separately to emphasize the significance of the court recognizing Black participation in the Reconstruction of citizenship, explaining “the importance of ensuring that Black experiences and perspectives ‘are not (here again) excluded from’ our analysis of the relevant history.” Douglass may not have held a role as a judge, legislator, or even enfranchised citizen, yet he nonetheless played a pivotal role in shaping the nation’s understanding of equal citizenship in the Civil War era. Typically, “the Court’s cases neither name nor quote the disfranchised, erasing their voices from law’s past .” When the court recognizes Douglass as an author of the Reconstruction Amendments in Barbara , the court is “ democratizing constitutional memory .”
But how can Americans who disagree with the court move new ideas about the Constitution from the margins to the center? One pathway is to make claims on a shared past. That, of course, is the path that conservatives took when they attacked Brown and Roe as contrary to the original understanding . Black abolitionists made a similar move when they argued that slavery was contrary to the Declaration of Independence, as increasing numbers did in the decade before the Civil War, a story I tell in forthcoming work on constitutional memory and the declaration.
Douglass himself had an acute sense of the politics of memory. In 1852, speaking as a Black man to a white audience,…
Read the original at Slate →
Open in TruthVane →