Professor Linda Denno believes that the Supreme Court has profoundly erred in Trump v. Barbara and hopes that either it, or Congress, will reverse it. That will not happen any time soon. This is not just because the Court almost never reverses itself soon after issuing a major precedent. It is not even because Congress lacks the power under Section 5 of the Fourteenth Amendment to change the substance of a Court ruling. I tend to think Congress’s Section 5 powers are broader than admitted by City of Boerne v. Flores, even though Congress itself does not seem to believe it.
Instead, the Court will not reverse Barbara because the majority made no mistakes that demand it. The majority and dissent differ on the best method to answer a constitutional question on which the text is not clear. The majority used standard approaches to answer the question whether the Fourteenth Amendment changed the standard for recognizing birthright citizenship. The dissent reads the historical record differently, but seems to agree with the majority that the original understanding of the constitutional text should govern. Professor Denno, however, would fill this constitutional ambiguity with a political philosophy that does not govern legal interpretation.
To begin, I assume that Professor Denno agrees that policy concerns should not dictate the answer to the question of constitutional interpretation. . . .
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