Ignoring History and Tradition

Spectator

The Supreme Court of the United States (SCOTUS) recently ruled on the 14th Amendment’s birthright citizenship clause. The surprise was not that it was upheld but that several justices thought otherwise. We’ll get to that later.

At least four members of the current court describe themselves as literalists or originalists or constructionists—they can’t seem to decide on the right word. Basically, they believe the U.S. Constitution means exactly and literally what it says and nothing more. Or that it means what the authors intended and meant based on their writings and comments at the time. This dovetails into their more recent insistence that precedent somehow reflect the history and tradition of the questions at hand.

The result is they have been uprooting past court decisions fairly regularly.

Most of us were first alarmed by this trend in 2010 when SCOTUS decided corporations are people, too, and entitled to First Amendment rights including making unlimited contributions to political campaigns. That’s counterintuitive since most of us know corporations are not people, but that die was cast well before the 2010 Citizens United case.

In 1868, that court decided in a case pitting a California county against the Southern Pacific Railroad, that corporations are entitled to the equal protections of the 14th Amendment. The court actually tried to avoid the question entirely, instead basing their decision on a technical taxation issue, but the notion of corporate personhood had begun and was the foundation which helped construct the 2010 decision.

SCOTUS also recently ruled political parties, previously limited to how much they could involve themselves in individual campaigns, are now free to coordinate fundraising and messaging with candidates. Apparently the influence of outside money wasn’t yet sufficient for SCOTUS, so they have now removed the last hurdle.

Sometimes their decision-making has been just a pure take-away of individual rights. When SCOTUS overturned Roe v. Wade, they took reproductive decision-making away from women, in whose bodies it occurs, and gave that power to state legislators, 67 percent of whom are men.

Other times they simply make decisions completely counter to what the Constitution appears to say. The First Amendment prohibits the establishment of a religion, but the court decided a football coach saying “voluntary” Christian prayers on the 50-yard line of a public high school football field was just fine because it was private and voluntary. Right, private in the middle of a public (government) field after a public school (government) contest in front of everyone in attendance. Voluntary? Apparently none of the justices has ever participated in the “voluntary” activities of high school football.

They have allowed the president to remove people from boards and commissions Congress made independent by statute and which history and tradition have followed forever but no more. SCOTUS says that usurps presidential power and is a conflict with the Executive Branch.

This court believes the president should have nearly limitless power, the so-called “unitary president” favored by Chief Justice John Roberts and others. They say he is immune to criminal charges and prosecution, though the court’s hardcore originalists will find no such thing anywhere in the Constitution.

They’ve allowed outrageous gerrymandering by both parties saying, hey, as long as the new districts aren't driven specifically by race, it isn’t the court’s job to stop them.

Actually, Justices Alito and Thomas have both said, one way or another in various forums, they believe the constitution is colorblind, which means they must not have read Article I, Section 2. It is neither race nor gender neutral, which is why amendments had to fix its overt racism and sexism.

Which brings us to the 14th Amendment. The very first sentence of Section 1 says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” We have followed the very clear language of that amendment since it was ratified in 1868. Yes, it made sure freed slaves, who were considered property not citizens, were eligible for citizenship. But it had been tried in courts multiple times for other reasons since then and had always been upheld because the language is crystal clear.

The current administration, in a frenzy to deport particular groups of people, especially those whose mother was not a legal resident and, more especially, those who may be from a minority majority country, was aghast SCOTUS left things as they are.

If you are born here, you are a citizen exactly as the Constitution promises and has been accepted for more than 150 years. Somehow, four justices thought overturning that precedent, and the history and tradition of birthright citizenship, was a swell idea.

They were wrong, and at least one part of the Constitution was protected.

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