The Supreme Court has ruled: Birthright citizenship under the Fourteenth Amendment is constitutional. Therefore, it’s going to forever be the law of the land until the Constitution is amended, which isn’t very likely in today’s political environment. Right?
Well, not so fast. One Supreme Court justice, Brett Kavanaugh, may have provided a roadmap for some legislative fixes that would pass muster with the nation’s highest court:
Justice Brett Kavanaugh joined the majority in striking down President Trump’s executive order but wrote separately in partial dissent. He concluded the order conflicted with existing federal law, not that it was unconstitutional. In his opinion, he also outlined a framework for addressing concerns surrounding birthright citizenship through legislation, making clear that any path to lasting change would likely require an act of Congress.
“Significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated,” Justice Kavanaugh wrote. “And the Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to (i) those foreign citizens who violate U. S. immigration law and illegally enter or overstay and then have children in the United States over (ii) those foreign citizens who follow U. S. immigration law and have children in their home countries while seeking to lawfully immigrate to the United States.
“Nor presumably would they have wanted to grant constitutional birthright citizenship to children of foreign citizens unlawfully in the country while simultaneously denying constitutional birthright citizenship to children of tribal American Indians,” he added.
Here’s the good part: “Consistent with the Fourteenth Amendment, Congress could amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.”
Is this ‘the fix’ we’re looking for? Maybe. Maybe not. Even if Congress took up the issue and adopted legislation that incorporated Kavanaugh’s suggestion, you just know the left would judge shop again and get the law thrown out, meaning it would eventually end back up at the Supreme Court.
If that were to happen, we know Justices Alito, Thomas, Gorsuch and Kavanaugh would sign on – but would Chief Justice Roberts or Justice Barrett change their decision from today? It’s possible. It’s certainly worth a shot. And, as conservative columnist and decades-long attorney Kurt Schlichter wrote earlier today at Townhall, there is every reason to hope the current thinking on the 14th Amendment is changing:
Let’s understand how the courts work. They don’t like changing things. They revere precedent. It takes a lot to get a new understanding of the Constitution to become the mainstream interpretation. Look at the Second Amendment. For a century, it was understood to allow pretty much any regulation of guns, as long as the regulation was “reasonable,” which it always ended up being in the eyes of the courts.
The Heller decision completely changed that, and that decision was based on new scholarship. That’s the same process as we’re going through with birthright citizenship. We’re challenging something that’s been established, and you need to understand that our constitutional system is designed to make that hard.
Yeah, we lost today—barely. And that “barely” part is the good news. This was a 5–4 decision on the constitutional issue. Obviously, the three liberals voted against it because they will always vote the way that they perceive helps leftism. If illegal alien kids were believed to be aspiring Republicans, they would’ve been on the other side. None of these legal arguments that I’m talking about apply to them; they are hacks, and they don’t vote on principle.
Chief Justice Roberts and Justice Barrett do vote on principle; their vote was entirely predictable to anyone familiar with how the courts work. It’s just that their principle is wrong, reflecting the old and established view of the 14th Amendment that we are currently challenging with new scholarship. Lots of people are wrong, and it doesn’t make them the antichrist. Yes, I know all the arguments in favor of changing the understanding of birthright citizenship, and we don’t need to relitigate them here.
Just understand that in any case, both sides believe in their arguments. What we need to do is make an effort to get folks nominated to SCOTUS who are more open to new challenges to old thinking because we are making a lot of new challenges to old thinking.
I expected a 7–2 ruling with Justice Alito and Justice Thomas in dissent. What we got was Justice Kavanaugh and Justice Gorsuch both stepping in and accepting, at least to some extent, the new thinking on the 14th Amendment citizenship clause.
This is huge, people.
So, let’s not lose our minds here like the left always does. There is hope that this battle isn’t over, but just beginning. And we should honestly thank President Trump for setting this process in motion with his Day 1 executive order.
