Reading the Supreme Court decisions is getting to feel like living in the movie Groundhog Day. For the second consecutive day, you can cheer and cry at the same time. We have good, and we have bad. And the bad is very bad, to the point that in the few hours since it’s release, many are declaring the birthright citizenship decision “the end of America.”
So let’s start with that one today, and unlike yesterday we’ll end on a good note. In a decision from which only Justices Thomas, Alito, and Gorsuch fully dissented, Chief Justice John Roberts handed President Trump what is arguably his largest defeat across two terms, striking down his executive order that sought to end birthright citizenship. The Fourteenth Amendment, Roberts declared, was intended to enshrine the English “common law of citizenship—known as jus soli, or right of the soil.” Justice Roberts spent a considerable amount of space in Trump v. Barbara detailing that common law history and its purported preservation throughout American history, especially in the years leading up to the passage of the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment’s citizenship clause, which were both responses to the Supreme Court’s ignominious decision in Dred Scott v. Sandford, 19 How. 393 (1857), that denied citizenship to slaves and their descendants.
No rational person today would dispute that Dred Scott was wrongly decided, and that people brought to this country against their will and forced to live and work in this country should enjoy citizenship and all of the benefits that come with it. But a person forced to be here against their will but with the permission of the government is worlds apart from a person who enters this country illegally and with the clearly expressed opposition of the government. And to reward such individuals by granting their children automatic citizenship just for being born on American soil seems preposterous not only to a large proportion of Americans, but to most of the rest of the world, where unconditional birthright citizenship is unheard of.
But of course, my argument is never that we shouldn’t allow something just because most of the rest of the world doesn’t allow it. After all, most of the rest of the world doesn’t have anything remotely resembling a Second Amendment, either. The real issue lies with the text of the Fourteenth Amendment’s citizenship clause, particularly the words “subject to the jurisdiction thereof”:
“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.”
It’s amazing that this one sentence - and actually, just those five words - could form the basis of 194 pages of opinion, concurrences, and dissents (Justice Thomas’s dissent alone was 90 pages). But that’s a byproduct of the fact that it’s taken the Court 158 years to address the issue head on. A lot has happened in that time to muddy the waters. While I don’t question the accuracy of Justice Roberts’s history that portrays an America where alien visitors traveling to the United States, whether for “business or pleasure,” were subject to its jurisdiction, I don’t quite grasp how it logically follows that all children born here are automatically citizens. If that was the intent of the citizenship clause, why wouldn’t its authors have written something like, “All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside”? Why include a phrase about being subject to the jurisdiction of our nation if everyone physically present here is automatically subject to its jurisdiction?
What’s even more perplexing is that Justice Roberts criticizes Justices Thomas and Alito for focusing much of their attention on the Civil Rights Act of 1866 passed two years before the ratification of the Fourteenth Amendment, while at the same time forming the basis of his interpretation of the “subject to the jurisdiction thereof” clause on Chief Justice John Marshall’s opinion in Schooner Exchange v. McFaddon, 11 U.S. 116 (1812) - a Supreme Court decision issued 56 years before the ratification of the Fourteenth Amendment.
More puzzling still is that in that opinion Justice Marshall clearly delineated the limits of a nation’s jurisdiction along the boundaries of that nation’s consent: “All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.” Id. at 136. How, exactly, are persons who enter this country illegally here with the nation’s consent?
Now to be fair, the focus of much of this analysis was directed to so-called “anchor babies,” born to women who travel to the United States legally (for business or pleasure) and give birth while here. But again, can it properly be said that this nation gave them consent to give birth within its borders, or to travel here for that purpose? Does giving birth really fit into the category of business, or of pleasure? Don’t come at me, ladies. I’m sure all of you define giving birth as nothing other than a pleasurable experience. But it seems pretty obvious to me that Justice Roberts, and the drafters of the Fourteenth Amendment would define business as work and pleasure as vacation. So what about this third category, birth? Can he find anything in our history or in common law that would address the jurisdiction of a country over someone entering primarily for the purpose of giving birth?
Yes, women come here from China and elsewhere to stay at resorts and have a “vacation” before giving birth. But let’s call a spade a spade. They’re here for one reason and one reason only: to give birth to an American citizen baby.
I could say a lot more, but I want to save at least a little space for today’s good news. Before I move on, though, I’ll just say one more thing: as Justice Kavanaugh pointed out in his dissent, Congress could amend federal law to include additional exceptions to the citizenship clause other than the four that the Court has consistently viewed as a “closed set” articulated in United States v. Wong Kim Ark, 169 U.S. 649 (1898), i.e., for: “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 “children of members of the Indian tribes.”
Justice Kavanaugh paints this pathway to a Congressional retort to the Court’s affirmation of unconditional birthright citizenship:
“All of that said, as noted above, Congress in 1940 and 1952 enacted a statute, §1401(a), that at the time and since has always been understood to authorize only the four Wong Kim Ark exceptions. If Congress amends §1401(a) or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country, such a statute, as I see it, would pass constitutional muster.”
The other “big” decision making waves after its release today was West Virginia v. B.P.J., which upheld statutes in West Virginia and Idaho that prohibit biological males from participating in women’s sports. The judgment - from which no Justice fully dissented - firmly establishes the ability of states to pass laws that keep biological men out of women’s sports. But importantly, today’s ruling does NOT mean that states cannot enact laws allowing biological males to participate in female athletics. That’s because the question before the court was simply whether Title IX - the federal law that mandates equal opportunities for women in college sports (and other education programs and activities) - and the Equal Protection Clause of the Fourteenth Amendment allow states and schools to ban biological men from women’s sports. Today, the Supreme Court answered a definitive “yes.”
And, like the decision discussed above, it’s a bit baffling that we needed 77 pages of opinions to decide what should be a simple question. Even without the Fourteenth Amendment or Title IX, of course biological men should be banned from women’s sports. Common sense and basic biology provide a readily-apparent answer, even in the absence of courts and constitutions. But then again, as I reminded you recently, we live in an age when a Supreme Court Justice can’t define what a woman is because she’s “not a biologist.” Heaven help us all.
The question of whether states are permitted to force schools to allow biological males to participate in female athletics should also be easy to answer, but something tells me it won’t be. In any event, it hasn’t yet been addressed by the Supreme Court. And that’s why it’s so important that we here at We The Patriots USA continue fighting for your most basic and fundamental rights. If you live in a state where schools force women and girls to compete with and against biological males, and you happen to know a parent or adult female athlete who would like to challenge this in court, please tell them to reach out to us at info@wethepatriotsusa.org. We are dedicated to providing the highest quality legal representation to our clients completely free of charge (pro bono).
And of course, we need your support to continue doing that. As a nonprofit public interest law firm, we rely entirely on charitable contributions to survive and thrive. We have set a goal of raising $250,000 by our nation’s 250th birthday on July 4, 2026. And with just days left to that date, we still have a lot of work to do. If you are able to make a gift of any amount to our Mission 250 Campaign, we’d be sincerely grateful. Gifts to We The Patriots USA are tax-deductible within the guidelines of U.S. tax law. We thank you in advance for your generosity!
Comments
Nothing yet. Say the first thing.
Sign in to join the conversation.