I have watched many of my fellow conservatives react to the Supreme Court’s birthright citizenship decision with frustration and disappointment. I understand that reaction. I have previously written that, in my view, the doctrine of birthright citizenship had been extended beyond its original understanding, that those who created it could not anticipate our modern challenges, and that there was a persuasive constitutional argument that the Fourteenth Amendment should not be interpreted to confer automatic citizenship upon the children of those who entered this country unlawfully, at least prospectively. I continue to believe that was a reasonable position.
What concerns me, however, is not that conservatives lost this case. It is the suggestion from some quarters that the Court somehow failed simply because it did not reach the conclusion we preferred. That is not how constitutional government works, and it is certainly not how conservatives should think about the judiciary.
The truth is that there was always another serious constitutional argument, even a conservative one held by other conservatives. The Fourteenth Amendment provides that all persons born in the United States, and subject to the jurisdiction thereof, are citizens. It is entirely reasonable to read that language as an amendment of inclusion rather than exclusion. In other words, it applies to everyone except an extraordinarily narrow class of people, such as the children of foreign diplomats or hostile occupying forces, rather than applying only to those whom we would affirmatively choose to include. Whether one ultimately agrees with that interpretation or not, it has long been a serious legal position, advanced in good faith by respected jurists and scholars. This was never a frivolous argument invented for political convenience.
Reasonable people disagreed. We made our best constitutional arguments, and we lost. That happens. The Left has lost countless constitutional battles before this Court over the last decade, just as conservatives have lost important cases throughout our nation’s history. Losing a constitutional argument does not mean the Republic has failed. It means the constitutional process has functioned exactly as it was designed to function.
Indeed, one of the defining characteristics of conservatism is a respect for institutions, particularly those established by the Constitution itself. We have rightly criticized those on the Left (meaning “all of them”) who respond to adverse Supreme Court decisions by questioning the Court’s legitimacy, attacking the justices personally, and insisting that the Constitution should simply yield to contemporary political preferences. We cannot now turn around and take the same positions as they do merely because the outcome happens to disappoint us. Principles are tested precisely when they become inconvenient.
Nor should we expect the Supreme Court to accomplish through constitutional interpretation what is, in reality, a legislative objective. Judges are not policymakers. They are not elected to deliver political victories to one side or the other. If the Constitution, as interpreted by the Court, does not permit the result we seek, then the proper response is not to demand that judges become legislators. The proper response is to legislate where legislation is possible, to amend the Constitution where amendment is necessary, and, where neither is attainable, to accept that the Constitution sometimes produces outcomes we would not have chosen ourselves.
None of this means the underlying concerns disappear. Birthright tourism is a legitimate problem. Illegal immigration is unquestionably a serious national problem. Both deserve thoughtful legislative solutions. If the American people ultimately conclude that the Constitution itself should be amended to address these issues, Article V provides the mechanism for doing exactly that. Our constitutional system has always contained the means to correct itself without abandoning the rule of law.
This Supreme Court has delivered conservatives some of the most significant constitutional victories in generations. It has restored important limits on the administrative state, strengthened religious liberty, reaffirmed the Second Amendment, returned contentious social questions to the democratic process where appropriate, defended common sense in a time of absurdity, and repeatedly insisted that the Constitution means what it says rather than what judges wish it had said. To suggest that this Court has somehow betrayed conservatism because it reached a different conclusion in one difficult constitutional case is neither fair nor historically accurate.
Our commitment should never be to winning every case. It should be to preserving a constitutional order in which difficult questions are resolved through law rather than political passion. Sometimes that means celebrating a decision. Sometimes it means accepting one we dislike. Either way, fidelity to the Constitution requires the same response: respect the process, accept the judgment, and continue making your case through the democratic institutions the Constitution provides.
That is not weakness or surrender. It is what it means to believe that the rule of law is far preferable to the alternative, and that is the very heart of conservatism. In that respect, we might do well to remember, and indeed adopt, the words of some unlikely modern philosophers, who, setting aside some of their less edifying observations, reminded us that, “You can’t always get what you want, but if you try sometimes, you just might find, you get what you need.”
You may also be interested in:
- Birthright Citizenship and Illegal Immigration Myths – Conservative Opinion
- Immigration Reform: Why Enforcement and Empathy Must Coexist – Conservative Opinion
- Conservatism Demands Due Process, Even for Illegal Immigrants – Conservative Opinion
- Stopping Illegal Immigration: A Call to Action – Conservative Opinion
- It’s About Time Someone Acknowledged the Border Crisis as a National Emergency! – Conservative Opinion
