A Republic, If You Can Keep It
Birthright Citizenship & Proceduralism's Open Facade
As the makeshift gallows erected in the gymnasium of the Zellengefängnis Nürnberg (prison) sounded their last crack of judgment in the early hours of October 16, 1946, European legal philosophers faced a seemingly uncomfortable question: hadn’t these Nazi leader’s actions been technically legal? Unless some universal notion of justice inherently pervaded law such that all German statutes contravening human dignity were thus facially invalid, did not these executions amount to retroactive criminal punishment in contravention of among our most cherished legal principles, the rejection of ex post facto laws?
A fun question, amenable to goodhearted debate for the entirety of the fifteen-week academic semester, but ultimately the wrong one. Law, and politics for that matter, either work, or they don’t. Or, as Leo Strauss taught, justice is either durable, or is no justice at all. There is no categorical command but justice, the common good. Principles, even timeless ones, offer only general guidance, because justice lies in the particular. Rules beget exceptions, and “the exceptions are as just as the rules.”
For it is not possible to define precisely what constitutes an extreme situation in contradisctinction to a normal situation. Every dangerous external or internal enemy is inventive to the extent that he is capable of transforming what, on the basis of previous experience, could reasonably be regarded as a normal situation into an extreme situation. Natural right must be mutable in order to cope with the inventiveness of wickedness.
To be sure, the exception must be recognized as such—not as license to depart from our usual norms, as a measured, even reluctance, responsibility to. And so, practical judgment always requires both our good sense and no small degree of critical self-reflection, “the objective discrimination between extreme actions which were just and extreme actions which were unjust is one of the noblest duties of the historian.” Thus we grapple with our incapacity to bring back four millions human lives, and even tragedy of adding another to the count, as we deliberately and carefully snap Hans Frank’s neck to ensure: never again. In short, if there be justice, we must by extraordinary means eradicate fascism. If not, we may choose to. Either way, hang the fuckers.
Yesterday, by a six-to-three vote, the Supreme Court of the United States permitted President Donald Trump to move forward with an executive order purporting to strip many of the blessings of birthright citizenship guaranteed by at least the Fourteenth Amendment and the blood of more than six hundred thousand Americans on the logic that the courts of the United States Federal Judiciary lack the authority to enjoin the full effect of unlawful action by the Executive. I may in future posts unpack the errors of constitutional interpretation, historical literacy, and basic civil procedure contained within Friday’s ruling in Trump v. CASA. But those must be seen as secondary.
Even assuming the accuracy of Justice Amy Coney Barrett’s opinion regarding the history, tradition, and general rules surrounding “universal” injunctions, the case asked a simpler question: what is more important to us? Birthright citizenship or civil procedure. Shall the promise of multiracial democracy and the blessings of equal justice under law triumph or bend to the minutiae of numerosity, commonality, typicality, and adequicity and their accompanying notes of decision prescribed in little pamphlets that only truly sick people carry in their pockets? Shall the contravention of our greatest declaration, that “all men are created equal” be subjected to the arcane writs and bills cognizable before the Hanoverian King’s Court of Chancery? Once we might have trusted the Court to know better. Even the arch-conservative Justice Lewis Powell recognized in 1973’s Chambers v. Mississippi, that even so foundational and respected law as the prohibition against hearsay “may not be applied mechanistically to defeat the ends of justice”—affording a defendant the right to present a full and cogent defense. Today, according to this Court—according to this mother of naturalized citizens—for the sake of the red hand illuminated on the pedestrian walk sign we may step not one foot into the street to aid a child.
It is the domain of the charlatan to present the law as theory instead of practice, as pure reason rather than real-world effects. A law student can check boxes on “settled” law; a jurist is expected to possess the judgment to recognize and resolve extraordinary cases. No tribunal which subordinates bedrock Constitutitonal principles to formalist hurdles on account of racial animus—and make no mistake, that is again the driver here—is entitled to institutional respect or personal obedience. In the coming months and years, as has already begun, the dignity of our fellow Americans, citizens or not, will rest ever more on our individual and communal action and our unreserved dedication to the principle of birthright citizenship. “[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased[] to be their own rulers.” Amy has made her decision. Now let her enforce it.