Ideally, Constitutional Originalism is a legal philosophy that is meant to ensure that judges interpret the text of the Constitution faithfully without inserting their own personal thoughts about what the text should mean. In practice this often means obtuse, superficial readings of the text in an attempt to dodge its plain meaning in order to achieve a desired outcome. Other times, it rests on divining the "original intent" of the Founders or authors of a constitutional amendment, which is problematic because judges don't have magic powers and because societies change in ways the original authors of a particular amendment couldn't have imagined. Egregious abuse of the latter concept is what I call "Ouija Board Originalism."
Conservatives attempting to deny citizenship to the native-born American children of mostly Latino undocumented immigrants are attempting nothing less than an end run around the 14th Amendment, which grants citizenship to anyone born on American soil. Their argument is that once you polish the crystal ball and get everyone to hold hands, you'll see that the authors of the 14th Amendment didn't mean to grant citizenship to the children of illegal immigrants. This has been on the conservative agenda for a while, but since the passage of Arizona's draconian immigration law, efforts to get such laws passed by state legislatures have been ramped up, and conservatives have begun honing their legal arguments:
But the federal courts have never specifically addressed the question of whether children born to those in the country illegally should be entitled to citizenship, says Michael M. Hethmon, general counsel of the Immigration Law Reform Institute, which favors tighter restrictions on immigration and has advised the state legislators on their efforts.
Berman says the 14th Amendment was meant to clarify the status of freedmen and "does not apply to foreigners. The 14th Amendment, which is being used to provide citizenship, is the last thing that should be used."
So if you ignore the plain language of the Constitution ("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 favor of what the Originalist ouija board says, then the idea of selectively stripping native-born Americans of their citizenship sounds less unconstitutional. The rhetoric of the nullifiers also makes it clear that they're not concerned about an influx of Canadians or Irish.
Of course there's something creepy about this idea in the first place, given that the point of the 14th Amendment was to overturn the Dred Scott decision that denied citizenship to slaves and their children. Surely, conservatives are saying, the authors of the 14th Amendment didn't mean for citizenship to be extended to the descendants of an essential and exploited work force whose language, background, and culture are "foreign" to the majority of Americans.
-- A. Serwer
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