There’s a lot to be said about the Supreme Court’s recent confirmation of the plain language of the 14th Amendment–and most of it has been said in the wake of the decision in Trump v. Barbara, a case that should never have been accepted by the highest court in the nation. Every lower court that heard the argument against birthright citizenship had found the challenge facially unconstitutional; even judges appointed by Reagan and Trump described the contrived arguments as ridiculous and expressed disbelief that the administration had even found lawyers willing to file the case.
The language of the Fourteenth Amendment isn’t vague: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Period.
The fact that four Supreme Court Justices refused to say that an attack on the clear meaning of that language was blatantly unconstitutional should terrify us. (Kavanaugh upheld birthright citizenship because he said the Executive Order ran afoul of a statute–and that Congress could decide to change the statute.) Somehow, the obvious import of constitutional language sufficient to persuade every other judge who ruled on the matter was insufficient to persuade Alito, Thomas, Gorsuch and Kavanaugh.
I’ve posted before about the enormous practical problems that would arise if birthright citizenship was overruled, but a recent essay in The Bulwark points to an even more foundational issue: Which comes first, the people or the government?
Democracy rests upon the idea that the people come before the government. First comes society, then comes the state. You may recognize this idea from the phrase “That to secure . . . rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
Now, maybe that’s a fiction bequeathed to us by Hobbes and Locke and Rawls and the rest of them. Clearly, sometimes states make peoples rather than the other way around. But even if it’s not, ya know, historically and anthropologically true, it’s still a useful idea for understanding the relationship between people and their government. It’s the people’s government—not the government’s people.
As the essay points out, if we were to adopt the dissenter’s position and ignore the clear language of the 14th Amendment, it would fall to “some combination of the legislature and the executive to decide which people born in the United States are citizens and which are not.” When both the legislative and executive branches were under the control of the same party, that party could decide “that citizenship means whatever they want. Only people who own land can be citizens. Or only people who own trucks. Only people who own guns. Only left-handed people. Only the kinds of people who tend to vote for the party in power.”
But even if we’re not talking about a situation where hundreds of millions of people are un-citizened, we are talking about a situation where, over time, the electoral majority could push to ensure that its people are citizens and the people in the electoral minority are not—even if the electoral majority is in the numerical minority.
Four Supreme Court justices are at least open to this kind of theory.
The fact that those four Justices didn’t prevail–that ignoring the clear and unequivocal language of the 14th Amendment was a bridge too far even for John Roberts–is a relief, but the shock of these blatantly anti-constitutional dissents has increased the ranks of the lawyers and legal scholars who insist that this rogue Court must be reformed.
We have watched as ideologues in robes have enabled Trump in his racist pronouncements and financial grifts, allowing him to exert authority no other President has been allowed to exercise, and shielding him from criminal accountability. We have cringed as intellectually-dishonest Justices have ignored and overturned long-standing precedents with which they disagreed, heedless of the consequences. We have discovered that, for years, Thomas and Alito accepted undisclosed gifts and trips from moneyed interests with cases before the Court.
Calling this Court corrupt is not hyperbole.
This Court has done inestimable damage to the very concept of the rule of law. And as we have just seen, four of the current Justices are willing to go even further. (The irony of Justices who claim to be “textualists” ignoring the clear meaning of the constitutional text is gobsmacking…)
There is no longer any persuasive argument for the status quo, because there are no longer any functioning checks and balances.
Spot on!
Our government remains completely beholden to a wealthy ruling class. We celebrate our independence from King George and the Church of England, but it’s worth asking: who actually won that freedom?
History shows that the Revolutionary War merely liberated the era’s oligarchs. If you watch the gymnastics of the Supreme Court over the years, it’s clear they operate less as an independent branch and more as employees of this entrenched oligarchic system. We didn’t truly escape tyranny; we just traded British rulers for American ones.
Look at our current state and federal governments—it is impossible to argue we are a truly free people. This “250-year-old experiment” missed its mark from day one, and citizens have been fighting for real freedom ever since.
We see this exact dynamic playing out locally, too. Look at how local elites just tried to ram an $11.5 million fire station deal down the throats of Muncie residents, expecting the City Council to simply rubber-stamp another Bose McKinney contract. Thankfully, a packed public attendance emboldened the City Council to push back, sending the deal to a public committee meeting—much to the dismay of Republican leadership.
Will the administration show up for the next public meeting? Will they be able to answer questions on a deal not created by them, but by an “alternative government” within our community?
P.S. This is the first time I’ve witnessed republicans and democrats reject a deal prepared by the oligarchy. Just to clarify, republicans have a 5-4 advantage.
the guardian, today
Bruce Schneier,Jon Penney
AI surveillance is being supercharged,and it will chill social progress….
if ya wonder how deep this may get. im asking why do we need this. and how to opt out.again,the tech billionaires have bought and sold this. and will make the free lives of anyone under a microscope. the chinese part in this piece will chill to the bone. because its already in use. now comes the maga regime,the evangelico brats and whoever is anointed by said,er taught to AI selective services.we the people, doesnt seem to be in our future
These four in-justices, and much too often Roberts, need to be made irrelevant, with an increased number of legitimate judges on the bench.
And, if one, or two of them are planning to retire during Trump’s tenure, his ability to push congress to accept his nominations needs to be intensely resisted.
Thank you for addressing the most disheartening positive outcome of any case ever before the court. It was an abomination that the court took up this case. Normally the court doesn’t hear cases that don’t have any conflicting outcomes in the lower courts. The fact that it came down to a 5.5 to 3.5 majority is astonishing, to say the least. Reform can’t come fast enough!
THINK,
VOTE!!!!!
SCOTUS and the 14th Amendment were not in my mind when Trump, who lost his bid to end birthright citizenship, jumped on that benefit to enter the FIFA situation to use the SCOTUS win to maintain one player’s birthright citizenship on the US team. They lost to Belgium 4-1 and what has Trump had to say about that loss? He Trumped his own ass with that bid to boost his ego to what he believed would be a US FIFA win.
More important; what effect did his unwarranted interference have on the player, the US team, the FIFA organization and what sportsmanship used to mean to this country?
“We have watched as ideologues in robes have enabled Trump in his racist pronouncements and financial grifts, allowing him to exert authority no other President has been allowed to exercise, and shielding him from criminal accountability.”
Will the global level sports world have an effect where others have failed?
It’s the women justices of the Supreme Court that voted to hold to the Constitution and not allow the advancement of male white supremacy and wealth to rule. Amy Coney Barrett who is reported to be a textualist, and from an authoritarian religious background held firm. This macho, tough, rich guy making all the rules syndrome isn’t good for We (all) the people and needs to be harnessed. Rebuilding and enforcing checks and balances has to be at the forefront as the power shifts.
The hubris and disdain that the 4 dissenters have for the Constitution and the people it protects from government overreach shows just how powerful the anti-New Deal forces have become at the cost to millions.
Those of us who are first generation or even second generation have to realize that leaving the decisions about who is or who is not a citizen to politicians could very well become the same kind of litmus test that produced the one-drop rule in the Jim Crow South. How far back in the lineage would you have to go to establish citizenship?
Reform must include strictly enforced ethics standards, first and foremost.
The mess we are in now has to be cleaned up as soon as possible. No going back to the way things were before. The flaws are clear. If left unaddressed, think Ford’s pardon of Nixon, the tests by the right have given them a blueprint for future actions. Kavanaugh’s dissent is a perfect example. He has given instructions to insure the outcome he and his accomplices want when the case come up again. And we already know that is the intention of the fascists running things.
When he is gone, by death or otherwise, it is clear that plans for the continuation of our decline into corporatism or worse will not stop. The courts are just part of the problem.
To quote Pogo, “we have met the enemy and he is us”.
RESIST.
VOTE.
While we still can.
I would like someone to explain to me how someone can be both considered “illegal” and “not subject to the jurisdiction” of the government. Isn’t the jurisdiction of the government establishing the illegal status?