I am still seeing some insist, with an unwarranted air of sanctimony, that "the Court simply continued interpreting the citizenship clause as it has for 140 years." That is a lie.
Clarence Thomas notes in his dissent what the rest of us who've studied this have also known for decades: "The Citizenship Clause was consistently interpreted not to apply to the children of foreign temporary visitors, who were by definition not domiciled in the United States.” “Regardless of administration or party, the Federal Government for decades after ratification regularly denied claims to citizenship by children who were born in the United States but not domiciled here.” Roberts had to ignore this for to do otherwise would undermine his argument. But we don't have to play along.
Some are saying, relax, there are statutory fixes. There are no statutory fixes to birthright citizenship per se, certainly not now, since the Court just constitutionalized the practice. A statute cannot fundamentally cure this. And there will not be a constitutional amendment as long as there are Democrats in Congress and RINOs to support them.
Well, the issue was a close call, we are lectured. No, it was not. Not if you are thoroughly familiar with it. It was actually straightforward and relatively simply. Read Roberts's opinion. He mostly ignores the contemporary record at the time, which is loaded with statements by relevant congressmen and senators rejecting the entire notion of birthright citizenship, the context of the citizenship clause (even excluding Indians because of dual loyalty), and on and on. There is not a definitive piece of actual historical evidence of any kind supporting the interpretation Roberts and the Majority embrace. Hence, they go to 17th century Britain and power of Kings over servants. The irony is lost on the 250th anniversary of our independence.
We are told, look, the border is secure, the damage is limited, there are a number of executive and administrative decisions that can be made to help control this. Tell me, folks, when the Democrats are back in power, why wouldn't they undo every executive and administrative effort to limit the damage since they caused most of it in the first place, and why wouldn't they throw open the immigration doors even more enthusiastically knowing they've the birthright citizenship decision behind them.
It is one thing to say don't be hysterical and another to be damn near braindead to what just happened. There is cause for alarm. This isn't some manufactured concern. There's a revolution by immigration. It is swallowing Europe; it is swallowing parts of our country right now. That's precisely why President Trump acted. The Court's ruling has removed one of the most important constitutional and societal tools we have for fending off this crusade, and the Democrat Party's lawlessness in stoking it. The fact that the 14th amendment has been used to promote birthright citizenship for multiple decades is not a rational defense of its constitutionality. The fact that there are other ways to try to deal with this, with varying degrees of effectiveness, is not the point and not relevant to what the Court did. The Court has constitutionalized a policy without a real constitutional, factual, or historical basis. That is what Roberts's opinion demonstrates, and the dissent highlights. It was raised now because President Trump saw what had and was transpiring, including through the abuses of the amendment, took executive action to stop it, and lawsuits were brought to block his action. And what was and is happening is the abuse of birthright citizenship as never before.
Thomas and Alito went to great lengths to explain our history and that of the amendment, spending much time correcting Roberts's deceit. And they were blunt about their frustration. So, too, were they emphatic about the dire consequences of the decision.
Thomas and Alito are right. I have spent more than half-a-century studying, discussing, and writing about Supreme Court arguments and decisions, etc. I have also participated in several very big issues before the Court. I predict the dissenting opinions will be cited, studied, and praised by scholars and historians long after the Roberts Court is gone, whereas the Roberts opinion will be dismissed as a hodgepodge of mostly gibberish.
What was intended to be an amendment to the Constitution to protect the civil liberties and rights of newly freed Black slaves and their progeny, has been turned into a legal absurdity -- a spigot to justify granting citizenship to aliens who have entered our country in violation of federal law and, who in turn, are rewarded with American-citizen babies. The entire purpose of immigration laws used to destroy immigration laws, along with our national security, cultural and societal assimilation, economic determinations, electoral processes, etc. Who knew this was all intended when, in 1868, the 14th amendment was drafted, adopted by Congress, and ratified by the states? Certainly, its authors and the elected federal and state representatives who debated it and approved it had no idea. And I doubt the British monarchy in the 1600s would've approved, either.