There is a wonderful scene early in the classic Western television miniseries Lonesome Dove. The two principal heroes of the story, legendary Texas Rangers Augustus McCrae and Woodrow F. Call, along with several others of their outfit, butcher American history over dinner.
Bolivar, the Mexican cook takes issue with Gus griping about his ringing of the dinner bell. “Robert E. Lee freed the slaves, complains Bolivar, “I can whack that bell if I want to.” “It was Abe Lincoln who freed the slaves,” corrects Gus, followed by Pea Eye Parker, a loyal but not particularly razor sharp cow hand, who adds … “he didn’t free Mexicans anyway, Bol… it was Americans he freed.”
At this point Gus decides to set the record straight while grabbing yet another opportunity to rib his buddy Woodrow. “You’re in over your head, Pea,” Gus explains, “…it was a bunch of Africans Lincoln freed, no more American than Call over there.” Woodrow immediately swallows the bait and pronounces “l’m American, by God.” But Gus continues to needle him. “You were born in Scotland as I recall,” he jibes, “still dragging on the teat when they brought you over here.” To which a now exasperated Woodrow declares before leaving the table “I reckon I’m as American as anyone from Tennessee!”
A compelling argument can be made that the 14th Amendment is foundational to post-Civil War America and its national identity. After all, it’s core clauses: citizenship, immunities, due process and and equal protection form the nexus of not only the freedoms our society enjoys, but the very composition of our citizenry. As bad as Reconstruction and Jim Crow were for black society, without the codification of their citizenship, no alternate scenario is to bleak to envision.
With regard to judicial precedents, one simply can’t find anything more rock solid and enduring than what was ratified in 1868. The very concept of stare decisis (“to stand by things decided”) seems illegitimate if the 14th Amendment’s guidance is open to be challenged. To take issue with it would be like being the sport’s writer who voted against Willie Mays’ induction into the Hall of Fame. There is no reasonable explanation for doing so.
“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.” This is about as clear as the English language gets. Equally straightforward is the section that declares it unlawful to “deprive any person of life, liberty, or property, without due process of law.” Taken together these passages are far more determinative than, say, the stipulations of the 2nd Amendment, which the entire MAGA ecosystem demands leave no room for interpretation.
Of course, our President couldn’t care less what’s in the Constitution; he’s been clear on that since he became politically relevant and began to torment us. But Supreme Court Justices are obligated to demure to the nation’s most sacred document. At least that’s what we have been led to believe and what each one swears an oath to assiduously abide.
Regrettably, after this week’s SCOTUS ruling reaffirming birthright citizenship, we can be certain that, like Trump, three highest-court justices have other priorities that subordinate even the most no-brainer allegiance to the Constitution and the rule of law it informs. That so many of us feared the worst and, more than breathing a sigh of relief, rejoiced and thanked the good Lord after the 6-3 decision was made public, clarifies the crisis we currently experience.
Kavanaugh and Coney-Barrett may have been pleasant surprises by not meeting our worst expectations, but the fact Alito, Thomas and Gorsuch did so means we can be certain one-third of this court have no problem supporting a position that can only be justified with Fox/Am fiction. What each had to say in dissent only reinforces that, when it comes to applying the freedoms our constitution conveys, immigrants are outside looking in, which is exactly where this trio wants to keep them. Even tenuous legal ground be damned.
Most credible researchers contend that birth tourism is not a statistically relevant issue. The most alarmist numbers cited don’t exceed 25,000 per year. Two to three thousand or less is what most reliable data supports. Yet and still, Clarence Thomas sees a crisis worth overturning more than a century of precedent to address. Declaring dead certainty that the citizenship clause was meant to enfranchise only freed slaves, Thomas bemoaned that “foreign birth tourists and illegal aliens” will continue to benefit from protections only real U.S. citizens should enjoy.
Alito sounded like he was going to cry about the “terrible mistake” the court has made. That’s probably not too surprising from someone who actually flew his American flag upside down during Biden’s presidency. Many don’t remember that Alito was not W’s first choice for the slot he ended up in. Harriet Meiers was initially chosen, but was forced to withdraw her name when Democrats piled on her lack of judicial acumen and declared victory in the fight against cronyism when she was replaced. Put that one squarely in the “careful what you wish for” category.
Alito is not aging well. The overt bias of his dissenting comments here portends that, like Trump, he will become meaner and less reasonable during his twilight days. Time will not be friendly to his judicial temperament.
Perhaps no SCOTUS nominee ever spent more time at their confirmation hearing promising to respect stare decisis than Neal Gorsuch. Over and over he swore that precedent would always have its say when he decided cases. Overturning birthright citizenship has never even been seriously considered by the Supreme Court. After all, as Ronald Reagan himself proclaimed, America “is that city on the hill.” Until very recently our entire national brand was tied in with the immigrant experience and the freedom our nation offered. More than precedent, birthright citizenship has been an American guarantee.
Yet and still, Gorsuch wasn’t having it. While not plunging down the Thomas-Alito rabbit hole, he seized on “reside,” the one word in the birthright clause open to any degree of interpretation. Gorsuch was not as hysterical as Thomas, but his reasoning was clear: there are enough transient immigrant babies born to justify wiping out the citizenship status of the vast majority who have set down roots that firmly establish them as residents of whatever state they are in, and the country as a whole.
That specious logic has been the hub of the GOP immigrant narrative for decades. Condemning a crime committed by one undocumented immigrant to slime them all has become the wheelhouse of virtually all of the GOP rank and file. Gorsuch was simply more “nuanced” than Thomas and Alito in his expression of that fear and loathing. Stealing basic constitutional freedoms from millions is a price he’s willing to pay if it stops even one enemy prego from slipping into our borders and dumping a future MS-13er on us.
Many Texans will tell you that no literary character ever captured the essence of America’s spirit more than Captain Woodrow F. Call. Ask each how Call’s immigrant experience differs from the millions they currently are hell bent to disenfranchise and it’s likely very little of their reasoning will make much sense. As if that hypocrisy isn’t depressing enough, we can now be certain that one-third of the Supreme Court shares it. But take heart, we can still go ring the dinner bell if we want to, even in Tennessee… at least for now. BC