Challenges to President Trump’s Executive Order banning birthright citizenship have reached the US Supreme Court.  The Executive argues that times and context have changed since the liberation of the slaves, that there are new social problems and imperatives.  Therefore, a new racial, cultural and social context means that the interpretation of birthright provision should be revised.

As background, consider that parliamentary or legislative protections of human rights have proven to be unreliable, limited and temporary.  The failure of Diefenbaker’s Bill of Rights to be an effective interpretive tool demonstrated that more than legislative power was required to protect human rights.  Constitutional entrenchment is the maximal legal protection for rights.  Hence our Charter of Rights and Freedoms in the Constitution of Canada.

But it is in the nature of Constitutions to be static, to be fixed and literal.  So it is difficult for Constitutional interpretations to follow racial, societal, cultural or technical change.  In practice, constitutional decisions have reflected technological change, but have been less responsive to racial, social and cultural change.  One can argue that this is entirely appropriate because, while technological changes are a fait accompli, racial, social and cultural policies are in the authority of legislatures not courts. 

It is fair to argue that social and cultural and public policy considerations have significantly changed since the 14^th Amendment was accepted.  However, the core principle remains the same: birthright citizenship.  Indeed, that core principle was reaffirmed by the Supreme Court in 1898.  The potential for abuses is a public policy issue, as are the practices of other countries.

When both the Courts and the Legislature agree, it is a powerful weapon against the ‘diktats’ of the Executive.  In this context, Congress passed its own law mandating birthright citizenship in language compatible with the Amendment.

An originalist interpretation of the 14^th Amendment is entirely justified, whether the court cites legislative or constitutional authority.