For decades, political conservatives have been clamoring for “originalist” and “textualist” interpretations of the U.S. Constitution because they want to conserve the frozen-in-time ideals of the Founders.
This is why they loved former Supreme Court Justice Antonin Scalia, who was a bulwark for this kind of interpretation.
So consider the irony when current Speaker of the House Mike Johnson denounced the June 30 Supreme Court ruling upholding birthright citizenship because the court took a “textualist, originalist view” that upset him and other racist immigrant haters.
Mark Wingfield
It’s been obvious all along that President Donald Trump’s executive order overturning birthright citizenship was illegal and unconstitutional and racist and cruel. A sixth-grade civics student could figure that out.
The 14th Amendment is crystal clear about the citizenship rights of children born in the United States, regardless of what citizenship their parents hold. And conservative Chief Justice John Roberts confirmed that clear reading of original intent in his majority opinion in Trump v. Barbara.
Then suddenly, Mike Johnson says an “originalist” interpretation of the Bill of Rights is dangerous and must be corrected. As I have written before, MAGA conservatives are nothing if not hypocritical.
The original meaning of the text has been “grossly abused” by “birth tourism,” Johnson said.
This is a good time to review some talking points of The Heritage Foundation and its extolling of “originalism” in court rulings: “American conservatism needs originalism because originalism is conservative in how it interprets the Constitution. Originalism also generally leads to relatively conservative legal propositions and gives conservatism an essential component of a successful movement. But the most powerful reason for conservatism to continue its alliance with originalism is that originalism is the correct way to interpret our Constitution.”
“Then suddenly, Mike Johnson says an ‘originalist’ interpretation of the Bill of Rights is dangerous and must be corrected.”
Except when originalism gives you an outcome you don’t like.
This reminds me of all the conservative local politicians in Texas 30 years ago who were advocates of local rule because they said the state government didn’t understand their local conservative values. Until those same conservative local leaders got elected to state office and — all of a sudden — they were fighting for the state to dictate policies to municipalities.
This is 100% about power and control. For political and theological conservatives, gaining the power to force their will on everyone else is the main objective. It never was about originalism. It was about power.
The same was true in the conservative takeover of the Southern Baptist Convention. Their rallying cry was biblical inerrancy — a theological form of originalism. As we quickly discovered, the would-be leaders of the SBC only appealed to inerrancy when it served their interpretive causes.
The list of other such hypocritical terms is long but includes “states’ rights,” “parental rights” and “biblical worldview.”
There’s more unsettling irony in the Supreme Court ruling, and that is the dissenting conservative minority — Clarence Thomas, Samuel Alito and Neil Gorsuch — who said the provision of birthright citizenship was intended only for the children of African slaves and should apply only to those children under U.S. jurisdiction at the time of birth.
These justices are the very ones who want to deny the horrific legacy of slavery and who have gutted the Voting Rights Act to restrict minority voting. Yet they want to create their own originalist view of the 14th Amendment that defies history.
So, Mike Johnson can flail his arms all he wants, and Donald Trump can prevaricate ad nauseum, but they will not get a constitutional amendment passed to end birthright citizenship. This is a case where a majority of Americans agree with the Founders.
In the meantime, it sure is fun to watch originalists squirm over an originalist interpretation of the Constitution.
Mark Wingfield serves as executive director and publisher of Baptist News Global.