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  • Writer's pictureMario Nicolais

Cynical, 'politicist' readings of Constitution substitute sound bites for consistency

Donald Trump stumbled across another political powder keg last week and couldn’t help himself from lighting a match. Again.

In an interview with Bill O’Reilly, Trump challenged the 14th Amendment provision that makes anyone born on American soil a U.S. citizen. Almost 150 years after Republicans pushed through passage of the amendment, the current Republican front-runner blasted the policy in his typical bombastic, irreverent style.

“Birthright citizenship” immediately became a touchstone for every candidate in the GOP primary. The media dutifully sorted candidates between categories “with Trump,” “against Trump,” and “astounded we are even having this conversation.” Talking heads and pundits staked their ground. And then the shouting masses of social media began opining.

What got entirely skipped over was any discussion about constitutional interpretation and judicial philosophies. As candidates and their supporters — from every party — more regularly claim the Constitution as their own, they less regularly discuss any consistent philosophies through which it must operate.

Legal scholars and judges adopt interpretive philosophies such as textualism, originalism, structuralism, pragmatism or strict constructionism. They review any constitutional or statutory provision through their preferred prism and come to a conclusion. While a textualist might look only at the written text itself and come to one conclusion, an originalist could look to the intent of the same clause and arrive at an opposite conclusion. But both will follow their exact same process when reviewing different clauses. It is the process of interpretation that is important, not the conclusion.

The furor from all sides over the 14th Amendment demonstrates how modern politics has flipped that equation. The process is now subservient to the ultimate conclusion.

Cynically, that seems to be the very point. Because the conclusion comes first, candidates and activists pick the most politically advantageous conclusion and work backward, applying whatever philosophy can root the conclusion in the Constitution.

I’m going to call this new approach to interpretation “politicism.”

Applying politicism, candidates like Donald Trump and Hillary Clinton can champion conclusions supported by their political bases without concern for consistency.

Trump can claim the original intent of the 14th Amendment does not cover children born in the country only after their parents “move over here for a couple days,” despite the text reading “All persons born … in the United States.” Simultaneously, he could support gun rights based solely on the text of the Second Amendment, that “the right of the people to keep and bear arms shall not be infringed.” Similarly, Clinton will cloak support for birthright citizenship within the 14th Amendment’s actual words at one moment while at the next moment citing the extra-textual penumbra of privacy to protect abortion rights (and, apparently, her email server).

Not only is such politicism less than intellectually rigorous, it is corrupt.

By putting political expediency before principled interpretation, campaigns like the current presidential frontrunners’ threaten to strip consistency and process from our laws, substituting good sound bites and polling data. One can only hope voters will see through this ruse and demand more before Election Day.

Mario Nicolais is an attorney and legal scholar at the Denver law firm of Hackstaff & Snow LLC.

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