The Patriot Post® · The Scales of Justice

Our U.S. Constitution prescribes a very simple governmental structure: The executive and legislative branches are charged with getting things done, and the judicial branch is charged with making sure that the other two follow the rules. Chief Justice John Roberts once equated his Supreme Court’s job to “calling balls and strikes.”

That system has been working for 250 years and continues to do so today, plowing through the never-ending sea of churn and chaos in this country and around the world.

The judicial branch is a convenient target for criticism from both sides of the political aisle.

These days, much of the flak comes from the Democrats who complain bitterly about the conservative bias of the Supreme Court of the United States (SCOTUS) — and in fact, six of the nine jurists currently serving were appointed by Republican presidents.

Democrats routinely promise (threaten, actually) to pack the Court with progressives at the next opportunity, and I’ve no doubt they will try to do so. But while criticizing the judiciary, they use it quite effectively to blunt President Donald Trump’s agenda by enlisting the help of left-leaning federal judges willing to block Trump’s executive actions. Recently, the president quipped wryly that he keeps “forgetting” to clear his executive decisions in advance with all 870 federal judges.

Through it all, SCOTUS keeps soldiering on, seemingly ignoring the slings and arrows. Theirs is an extraordinarily demanding, under-appreciated and under-compensated job, and it comes with lifetime tenure — which for most must sometimes feel like a lifetime sentence to hard labor. We owe them respect and gratitude.

But sometimes they get it flagrantly wrong, as I believe they did last week with their ruling that in nearly all cases, U.S. citizenship is guaranteed by the 14th Amendment to any person who happens to be born on U.S. soil.

The Court’s action was a direct consequence of President Trump’s initiative to remedy what many believe is an obvious misreading of the 14th Amendment through an executive order imposing new limits on birthright citizenship. Conservatives applauded the Trump order, and as expected, progressives objected strenuously. Several federal courts moved to block its implementation, and the matter quickly worked its way up to the Supreme Court for resolution — exactly as it should.

In making determinations of constitutionality, individual Supreme Court justices tend to look at such issues in different ways. As a rule, conservative jurists place very heavy emphasis on “originalism” or “textualist” interpretations of the Constitution to ensure that rulings are faithful to our founders’ underlying intent and the actual words of the Constitution. Progressive jurists, on the other hand, generally place higher importance on the “living Constitution” philosophy, supporting rulings that adapt the Constitution to meet the needs of a nation very different from the one that existed 250 years ago when that document was written.

As a practical matter, both philosophies have merit; they are not mutually exclusive, and both should be considered by every jurist in every ruling. And in my view, both lines of thinking argue for a very different conclusion than that reached by SCOTUS last week.

From the originalist standpoint, the case is murky, primarily because there is no mention of birthright citizenship (or anything like it) in the Constitution. The matter did not come up until the close of the Civil War, nearly a century after the Constitution was adopted, and then only in the specific and very narrow context of how to ensure that freed slaves and their progeny would be granted the full rights of American citizenship.

While the wording of the 14th Amendment, created primarily to achieve that objective, is somewhat ambiguous, the circumstances that led to its passage are well known, and the intent of those who framed it — and surely the understanding of the legislators and people who approved it — is clear.

The “living Constitution” perspective is even more compelling. In short, it is very difficult to comprehend how any of the nine SCOTUS jurists — irrespective of their political views, and including the three progressives — could conclude that a blanket award of U.S. citizenship to any child who happens to be born on U.S. territory is in our nation’s best interest, today or in the future.

Consider the unavoidable implications of last week’s ruling.

Arguably, it is not even an “interpretation” of the 14th Amendment; rather, it is a deliberate repurposing of it. That’s what Justice Clarence Thomas asserted in his scathing dissent from last week’s ruling. It now has applications never imagined by the people who wrote it or by the vast majority of Americans who voted for it in 1868.

It dramatically intensifies the magnet of illegal immigration, so tempting to those on the political left, but which has proven to have catastrophic consequences, particularly in terms of public safety and security. In effect, the Court’s decision announces loud and clear to anyone in the world who wants to become an American: “just find a way to get here, legally or not, have a baby in this country, and bingo, you’re in! (They’re called anchor babies for good reason.)

It completely validates the "birth tourism” scheme, a rapidly expanding cottage industry whereby wealthy expectant mothers from other countries (primarily China and Russia) arrange to travel to the U.S. for the sole purpose of delivering their child here and thus becoming the parent of an American citizen. Can we even imagine Thomas Jefferson or James Madison conceiving of, let alone endorsing, such a practice?

It completely changes the equation on how we deal with the tens of millions of illegal immigrants already residing here. The president’s aggressive deportation stance is already controversial. The now Supreme Court-endorsed prospect of allowing the Biden-era immigration debacle to produce hundreds of thousands of new citizens, born to unvetted and potentially dangerous illegal immigrants, argues for more aggressive efforts to find and deport those here illegally, not less.

Along with strong disagreement with this particular SCOTUS ruling, let’s not miss the point it shows: once again, our Supreme Court is a deliberative, open-minded body, not a rubber stamp for the Trump agenda. Surely, Justices John Roberts and Amy Coney Barrett, and to a lesser extent Brett Kavanaugh, were keenly aware that their votes on the matter would outrage many with whom they often agree. Hats off to them for the courage to follow their convictions, regardless of political implications.

But unfortunately, last week’s ruling also demonstrates that the majority opinion of a court of nine knowledgeable, thoughtful, and dedicated public servants does not always get it right. And in my (notably non-lawyer) opinion, this time they missed by a mile.

This one will need to be fixed. The clean approach would be to amend the Constitution, but doing so in our sharply divided country anytime in the foreseeable future is clearly impossible. Continued laser-sharp attention to maintaining a secure border, along with possible legislative actions to preclude abuses (birth tourism, as one example), will help, but will not eliminate the fundamental mistake of allowing the location of a child’s birth to dictate his or her citizenship and that of their future generations.

The only viable remedy in my view would be to find a path (perhaps via a carefully considered executive action) to prompt another hard look by the Supreme Court. That wouldn’t be the first time SCOTUS would have to reconsider years-old rulings. The last such occasion was Roe v. Wade, and we’re still reeling from that one — but ultimately, via the process afforded by our magnificent U.S. Constitution, they (and we) got it right.

Seat belts on, folks, time to take on another one!