What in the World Did Brett Kavanaugh Write on Birthright Citizenship?

To be fair to Kavanaugh, he is hardly the first or only originalist to stray from the faith in this case. Solicitor General D. John Sauer also claimed at oral arguments in Barbara that the president was responding to situations that the clause’s drafters did not anticipate. Roberts gave an originalist quip in response: “It’s a new world. It’s the same Constitution.”

Kavanaugh, perhaps anticipating this critique, argued that all of this is just normal constitutional interpretation. (Which, again, he claimed to not be doing at the outset.) “The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments,” he assured readers, before adding that it must be “faithfully applied” to “modern situations that were unknown or unanticipated by the Constitution’s Framers.”

“Therefore,” Kavanaugh concluded, “under basic tenets of constitutional interpretation, other exceptions can be recognized when the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the four previously recognized Wong Kim Ark exceptions.”