Judicial Fiat and the 14th Amendment

That which may be done with the stroke of a pen may be undone with the stroke of a pen. 

This simple maxim is, in its two separate clauses, the nursery and the gallows of every piece of progressive judicial activism that has ever been forced upon an unwitting populace. Social change that is founded solely upon the whims of judges may be undone by the whims of contrary judges and there is no legitimate reason to gainsay the reaction.

The left loves judicial progressivism because it is a method tailor-made to enforce social engineering from the top down. This is always the primary means of social engineering, but when social engineering is done by things like a monarch’s religious conversion, as was the reason for the adoption of Christianity by tribes wholesale, or legislation, as was the case with things like the Civil Rights Act, there is a sense of legitimacy. There’s a feeling that the wheels of state are turning how they are supposed to. The sovereign is acting in its sovereign capacity and making decisions.

But with judicial activism, you don’t have this veneer of legitimacy because courts are not and never have been sovereign in any society. Power is sovereign. Whether power resides in the popular will or the divine mandate of kings, it doesn’t reside on the bench. United States President Andrew Jackson noted quite correctly when he stated, “[The chief justice] has his decision, now let him enforce it,” that rulings issued must be carried out, and judges don’t take their robes off to see their orders executed. And when one court issues an order, a new court can simply undo it using the exact same powers as the first did to enact it.

With President-elect Donald Trump’s second victory, he will almost certainly have the opportunity to appoint at least one, but likely more, Supreme Court justices during this next term. Some of the elderly conservative judges will likely retire to make sure there’s no chance of a Democrat appointing their successor, as Supreme Court Justice Ruth Bader Ginsburg so critically erred in not doing so before her death. There may be some opportune vacancies among the liberal judges, who are no spring chickens, either.

What will be done with these spoils of victory? I think two things that are likely to be dispensed with are Obergefell v. Hodges, the case that enacted nationwide gay marriage, and the assumption that the 14th Amendment provides for birthright citizenship to all persons born upon the US’s magic dirt.

Obliterating Obergefell v. Hodges

Obergefell v. Hodges is an easy one to dismantle. The decision is ludicrous in its reasoning and was meant to be a progressive high-watermark of the Barack Obama administration’s attempts to remake the country. Finding a fundamental right to homosexual marriage in the US Constitution is simple wishing. It was not based on the much more procedurally solid grounds of building out full faith and credit requirements to all other states based upon the states that had already enacted homosexual marriage in 2015; it was based on a desire to find a “fundamental right” no one ever knew of before 2015.

That is, there is a requirement already in the Constitution that each state give “full faith and credit” to the rulings, licenses, orders etc, of every other state. By 2015, 37 states had already legalized homosexual marriage through their regular lawmaking process. Instead of determining that because of this, all states must give full faith and credit to homosexual marriages enacted in the states that allowed them, and recognize the marriages, the Court got hasty. In its scramble to signal its progressive bonafides, it determined that there was a fundamental right hidden in the Constitution that no one had ever noticed before.

How will this be undone? Simple: The second Trump Court will get a case challenging Obergefell v. Hodges and the justices now will say, “No, there clearly isn’t a hidden right.” Wash hands, go home, have dinner, done.

Setting the record straight on the 14th Amendment

The presumption that the 14th Amendment provides for birthright citizenship will be tougher because it has more than a decade of inertia behind it. But where there’s the will — and there appears to be — there’s a way. But what is that way? The amendment says, “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.” Seems clear, doesn’t it? If you’re born under the jurisdiction of the US, you’re a citizen, end of story.

Except no, of course it isn’t. It wasn’t that way for three-quarters of a century in practice. That pesky subordinate clause, “and subject to the jurisdiction thereof,” may seem like it just means that if the US can impose its law upon you, you’re qualified.

It didn’t mean that way at the time, however. It didn’t mean that until the executive agencies, that pesky administrative state I’ve opined on at length numerous times, began actually issuing citizenship papers to anchor babies in 1929. What the hell was going on before then? Well, the US was doing exactly what every state had been doing since time immemorial and gatekeeping citizenship to its own people, that’s what.

Senator Lyman Trumbull, one of the key framers of the 14th Amendment, was exceptionally clear that its intention was to give the assurance of citizenship to freed black slaves in the South, and not just anyone who happened by, because “subject to the jurisdiction of” meant owing allegiance to. A freed black slave whose ancestors had been in the US for 300 years owed allegiance in a way that a Mexican illegal immigrant today simply does not.

United States v. Wong Kim Ark, often cited as the case that defined birthright citizenship, was not decided for another 30 years. When it was, its result was decided because Wong, the son of Chinese legal residents, did not owe allegiance to the Empire of China any longer. 

Even this decision did not grant citizenship to the children of Native American tribes, which happened by special legislation in 1924. Why? Because tribes are sovereigns; their members do not first owe loyalty to the US, but to their tribe. This is why the major Native American tribes have also seen fit to issue their own declarations of war when the US has gone to war against, say, Germany in 1918.

So even today, a Native American is not a citizen of the US as well as a citizen of their tribe because of the 14th Amendment or because of United States v. Wong Kim Ark. Rather, they are because of special legislation that allows the children of a subsidiary sovereign, a vassal, to also be a citizen of the country. The 14th Amendment’s supposed provision of birthright citizenship to illegal aliens and foreigners is not nearly as ironclad as popular leftist publications and commenters would have you think.

And why should it be? Even today, it does not apply to the children of foreign ambassadors who happen to be born in the US during their parents’ tenure. Why? Because their parents do not owe this country loyalty and thus are not subject to its jurisdiction. But based on the popular maximalist take on the 14th Amendment, it should.

Birthright citizenship must end

Consider the absurdity that is nested in such a maximalist position. Let’s suppose that an actual invading army lands on US shores and sets up a beachhead base. Within that army’s camp followers, they have intentionally brought 10,000 heavily pregnant women. Once established, they induce labor, causing each woman to give birth. Under the current liberal understanding of the 14th Amendment, that enemy camp now has at least 10,000 US citizens in it. They were born here illegally, yes, but they were still born here regardless. They’re on our soil, and thus are subject to our laws. They’re citizens.

Can we attack that armed camp? Remember, a US citizen cannot be deprived of life by the government without due process of law. Will we refuse to attack the army occupying our soil because it has within it US citizens? Or will we understand that they’re not US citizens, and infants or not, they’re manipulation tactics meant to facilitate the extraction and expropriation of resources from the native populace? Let the reader understand here.

Birthright citizenship will end because it is not the intention of the text. It will end because it must end. In the opposite direction of repealing birthright citizenship is, ultimately, the necessary conclusion: Every person on the planet is a US citizen that simply doesn’t know it yet or simply hasn’t had the correct paperwork done yet. It’s not even that wild of an argument to make.

For the better part of the last century and all of the current one, we’ve been enforcing US laws and interests around the globe. So in a very real way, based on the current liberal understanding, all of the planet is subject to US jurisdiction and thus every person is a US citizen-in-waiting.

Is the US a nation that, like every other nation that has ever existed, is made up of a particular people with a particular culture occupying a particular place? Or is it an economic zone that you just need the right papers and stamps to be legal in, thus giving you the same right to the bounty as those whose ancestors tamed the land and built it? This is a critical question that the second Trump administration must answer decisively by heavily curtailing the ability for just anyone to be grafted into this vine. 

I hope he has the constitution for it.

[Lee Thompson-Kolar edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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