Just How “Original” Are The Supreme Court’s Originalists?

Supreme Court of the United States

Trump administration is testing that question in a couple of challenges

One of the things President Trump likes to say the most when he brags about the three Supreme Court Justices he’s gotten to appoint during his term, is that they “interpret the Constitution as written”.

Yet, as is typical with Trump, he is at the same time pursuing at least two actions that would require giving him permission to interpret the Constitution precisely not as written, in order for him to have his way.

This week, the Supreme Court heard arguments on the President’s intention to remove people who are not authorized to be in the U.S. but nonetheless are living here, from the U.S. Census count. This would presumably reduce the number of seats in the House for several large states with large immigrant populations, like California, New York and Illinois. Also Texas and Florida. Still, on balance Trump must believe the move will benefit Republicans more than Democrats. Or he just doesn’t care: he just wants to deny federal programs, money and services to big cities that typically don’t vote for him. Which is true even in many of the red states he sometimes wins.

Except if you go by “the Constitution as it is written”, it says this (Article 1, Section 2):

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”

Now, you might say the U.S. population was small at the time, so counting people was easier to manage, so they didn’t worry about it too much.

Not true: the people involved in putting the Constitution together were very specific about who wasn’t to be counted in the census as you can see: “Indians not taxed” didn’t count, and very notoriously, slaves only counted as 3/5ths of a person each.

So if they’d wanted to not count non-citizens, considering that level of specificity, why didn’t they? At least in part because they knew they needed immigrants to come if the country was going to grow.

And already, there were tons of non-citizens living in the U.S., with wave after wave of immigrants still to come. In fact, states often competed to attract immigrants in order to boost their economic output, but also to raise their representation in Washington. Yes, most of them came legally, but not all. There have always been a lot of people from overseas who simply “overstay.”

So now Trump’s trying to undo this centuries-old way of counting, not by directly arguing that the Constitution doesn’t say what it says, but by saying he has the right as the nation’s Chief Executive to interpret those words in the Constitution any way he wants. Saying which residents of a state are actually “inhabitants” is something that “requires the exercise of judgment” on the part of the nation’s Chief Executive. Trump cites as an example that people in the U.S. as tourists, would not be counted even though they might be in a particular state on a particular date. (Seems pretty thin to me, but I’m not a lawyer.)

Also “as written” in the Constitution, are not only those words from Article 1, but also these, in the 14th Amendment, Section 2:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”

Now, this was reemphasized at the time, which was the late 1800’s, to ensure former slaves were not denied representation. And some scholars argue that was not just its primary, but only intention. But again, the authors also make a point of saying who’s excluded, and it doesn’t include immigrants.

So if you’re self-professed as being in the business of “interpreting the Constitution as written”, there’s a couple of major substantial statements in there.

Any kind of other interpretation would involve some version of “They said X, but by that they meant Y”, or an explanation of how circumstances were different then and now. But that’s what Conservatives always accuse Liberal Justices of.

Trump thinks he’s found a clever loophole: he’s not directly asking the court to determine precisely what “whole number of persons” means, he’s asking the Justices to conclude he has the power to make it mean whatever he wants.

For practical purposes, how would the number of non-citizens now being counted that shouldn’t, according to the President, even be determined?

Trump thought he had an answer to that: add in a question to this year’s Census asking “are you a U.S. citizen”? And then presumably, if you’re not, or even if you have family members that aren’t, you wouldn’t be inclined to complete your census form at all. So the “problem” takes care of itself.

Problem is, in 2019, the Supreme Court ruled against the President’s attempt to include the citizenship question. Not because they said he couldn’t. But because they said his administration lied about why they wanted it in.

So now the President is trying to figure out a way of coming up with a number that’s separate from the Census count.

And that became the central focus of most of the Justices’ questions this week. How would that number be determined? Would it just be illegal immigrants currently in ICE custody? Would it include everybody protected by DACA? Some other way? The administration’s lawyer said he didn’t know. Trump’s directive says only to provide information to the President about the number of illegal immigrants in various places within the U.S.:

To the extent practicable“.

So could be the Supreme Court just waits to see what the President comes up with, because it could be a lot of people, or it could end up being not a lot.  In which case, the Court might be able to avoid ruling on the broader issue at all.

Trump is also trying to take a run at the part of the 14th Amendment that states:

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.”

Again, he believes he can do that due to his power as the nation’s top executive. But again, the people who put together the country’s bedrock legal foundations very specifically laid out who they determined doesn’t automatically get citizenship: the offspring of foreign diplomats. If there were other categories of people they wanted to exclude they didn’t say it.

So is the President interpreting “the Constitution as it is written” with any kind of precision? Not even close. What it is, however, is a challenge to the Justices to stand up for what they purport to they believe in, and that’s a strict interpretation of the Constitution. Is it changeable to the extent Trump wants by the will of the Executive? In a manner no Supreme Court has determined it to be in more than 200 years? We’ll see…

Sorry for the delay in delivering this today. I have no good excuse