SCOTUS Doesn't Have The Final Word On Birthplace Citizenship
The Supreme Court has spoken. Now what?
That question has confronted the nation before. In 1857, the Supreme Court believed it had settled one of the most consequential constitutional controversies in American history. In Dred Scott v. Sandford, Chief Justice Roger Taney declared that persons of African descent could never become citizens of the United States and that Congress lacked authority to prohibit slavery in the territories. Many believed the court had spoken the final constitutional word.
Abraham Lincoln disagreed.
In 1862... Congress passed, and Lincoln signed into law, An Act to secure Freedom to all Persons within the Territories of the United States, which prohibited slavery in the territories notwithstanding Dred Scott’s contrary constitutional holding...
But constitutional government does not - or at least should not - end when the Supreme Court issues an opinion...
One feature of the decision has received surprisingly little attention. Justice Brett Kavanaugh, writing separately, emphasized that “Congress could - consistent with the Fourteenth Amendment - amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”...
It is promising because it reminds us that the Constitution creates three coordinate branches of government, not one. Congress is not merely an observer of constitutional development. It possesses independent constitutional responsibilities, and its members take the same oath to support the Constitution as do federal judges...
Today, too many Americans assume that once the Supreme Court decides a constitutional question, the debate is over. Yet our constitutional history tells a different story...
Originalism rejects the notion that constitutional meaning evolves merely because judges’ preferences change. But it does not require accepting judicial supremacy...
The Supreme Court has spoken. Our constitutional conversation should not end there...
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