This was intended to be the first of a handful of topics for
Curmie to discuss with a paragraph or two devoted to each story. It kinda took on a life of its own: enough to
be a stand-alone piece. Curmie will (or
perhaps won’t) write about those other issues in due course. Anyway…
The SCOTUS ruling on birthright citizenship was both welcome and disturbing. It is
troubling that the court even looked at Dear Leader’s strained argument; that
the decision was less than unanimous is unconscionable. Of course, Alito and Thomas are nothing if
not corrupt partisan hacks; Curmie expected better from Gorsuch, though. (Kavanaugh’s partial dissent is at least pretty
much coherent even if Curmie disagrees with his conclusions; that’s the highest
praise Curmie has ever given Kavanaugh, btw.)
The 14th Amendment is strikingly clear: “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.”
The pseudo-Christian right offers objections: that somehow babies born to mothers in the country temporarily or illegally are not “subject to the jurisdiction” of the US, and that the world has changed since 1868. The first argument is patently absurd (the fact that Folarin Balogun, the leading US goal-scorer in this year’s World Cup, was born to such a “temporary” resident makes Curmie smirk a little). The second claim is both self-evident and irrelevant to the Trump v. Barbara judgment. Well, there’s a third argument that we’ll get to in a moment.
We’ll leave aside Trump’s own rhetoric, both the nationalist/racist stuff about protecting American values and the outright lies about being the only country in the world to have birthright citizenship, and move on to the real issues.
The 14th Amendment, written in the wake of the horrific Dred
Scott decision, was intended primarily to ensure the rights of newly-freed
slaves and their descendants. The
“subject to the jurisdiction” business was clarified in US v. Wong Kim Ark in 1898. Basing their decision largely
on English common law, the court declared the only exceptions to be “children
of foreign sovereigns or their ministers, or born on foreign public ships, or
of enemies within and during a hostile occupation of part of our territory,”
and “Indians not taxed.” In the
absence of a renunciation of American citizenship or the declaration of loyalty
to some other nation, everyone else born in the US is a citizen thereof. It’s time for Curmie to repeat that he’s not a
lawyer, but all this seems pretty straightforward, and indeed every subsequent case
has been decided on similar grounds.
To be fair, the left’s sniping that Marco Rubio and three of
Trump’s children would be denied citizenship by Trump’s policy is a cheap shot. Executive Order 14160 specifically states that “Nothing in this order shall be construed to affect
the entitlement of other individuals, including children of lawful permanent
residents, to obtain documentation of their United States citizenship.” Granted, too, it’s certainly possible for one
SCOTUS to overturn the ruling of an earlier version. US v. Ark is itself a good example. In more recent times, Brown v. Topeka
overturned Plessy v. Ferguson; the Dobbs decision overturned Roe v. Wade. So it’s possible for this SCOTUS to reverse
some or all of the US v. Ark findings. But
the Constitution itself cannot be overturned by SCOTUS, only by amendment or a
Constitutional Convention.
It’s interesting, too, that opponents of birthright
citizenship want to quibble over a phrase in the 14th Amendment, but a lot of those
same people pretend that a much stronger case about the 2nd doesn’t exist. Curmie thinks the right to bear arms, as
described in that amendment, seems to exist primarily to support “a
well-regulated militia.” There’s
obviously room for debate here, and there’s no conceivable way the fledgling
government of the late 18th century would have attempted to take guns away from
hunters or westward explorers and settlers.
But there’s a lot stronger constitutional authority for some form of gun
control than for denying birthright citizenship. (Curmie also notes here, as he’s done before,
that personal ownership of some weapons is indeed illegal. We’re not talking about drawing a line that’s
never existed; it’s about possibly moving one that’s already there.)
Considerations of the 2nd Amendment and the debate over gun
control also lead us inexorably to the argument that… wait for it… times have
changed. Weaponry is a lot different now
than in was in the late 18th century.
The revolver as we now think of it wasn’t invented until 45 years after
the Bill of Rights was ratified. The
enclosed cartridge didn’t come along for another 18 years (a little longer than
that for an American-made version). Even
in all those Old West movies set in the late 19th century, where the good guy
and the bad guy both carried a pair of six-shooters, you get 12 shots and then
have to re-load, one bullet at a time.
That’s a far cry from what a currently completely legal semi-automatic
rifle can do today. “Things have
changed” arguments are either legitimate or they’re not. Both sides want to be able to use that argument themselves but deny
it to the opposition.
As is perhaps inevitable, the concept of “original intent”
appears in this debate. It is certainly
true that the 14th Amendment was in many ways a rebuttal to Dred Scott, but,
Justice Thomas’s argument to the contrary notwithstanding, it was not only
that, and Supreme Courts have ruled accordingly on several occasions over the
last century and a half. One of the more
interesting, not to be confused with intelligent, arguments against the
SCOTUS decision comes from Texas Racist-in-Chief Governor Greg Abbott. He calls the 6-3 decision “a missed
opportunity,” “a powerful magnet for illegal immigration,” “an absurdity that
was never contemplated by our Constitution nor agreed to by the American
people.”
He’s even partially correct: the idea that children born to
people in the country illegally should be granted citizenship would indeed have
been alien to the framers of the Constitution or the 14th Amendment. That’s because the concept of someone being
in the country illegally didn’t exist. It
wasn’t until the Chinese Exclusion Act of 1882 that there was anything
approaching closed national borders. That’s
14 years after the ratification of the 14th Amendment.
The other part of Abbott’s plaint, that unrestricted birthright
citizenship encourages illegal immigration, is not without its merits. “Anchor babies” do exist; a little over a quarter of a million babies are born each year to parents in the country illegally. Curmie completely
understands the impulse to end the current practice. But the point is this: that’s irrelevant to
the SCOTUS decision. It is not the job
of the Supreme Court to opt for what they consider to be the “best” option, but
to consider only the constitutionality of a law or an action. Thus, Curmie can be a supporter of abortion rights
and still think Roe v. Wade was a bad decision.
There are plenty of “the ends justify the means” folks out there. Most politicians on either side of the aisle
fit that paradigm. Curmie does not.
It may indeed be the case that the country would be better
off if Trump’s Executive Order were allowed to stand. What matters is that the Constitution won’t
allow it. Governor Abbott and his ideological
kinfolk are free to attempt to amend the Constitution; the 21st Amendment
repealed the 18th, after all. Yes, that
will take time and effort; just ask the proponents of the Equal Rights
Amendment, which may or may not be the 28th Amendment.
But the avenue is there, and it seems more reasonable than
allowing a mentally incompetent jackass who happens to be President to ignore
what the Constitution says and unilaterally decide the matter based on nothing
but his own xenophobia. Of course, being
a narcissistic idiot, Dear Leader is now calling on Congress to pass a law
eliminating birthright citizenship. Uh,
Donny Boy, it would still be unconstitutional if Congress did do so. But wasting time and money on a frivolous and
arguably racist crusade sure does play to the base, and it’s a lot easier than
actually governing.
La la, how the life goes on.
