The Court Has Made a Serious Mistake

What now after the Supreme Court upheld birthright citizenship?

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“This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake.”

You can say that again.

That was Supreme Court Justice Samuel Alito last week, dissenting against the 6-3 majority decision to uphold so-called “birthright citizenship,” which means children born on American soil, regardless of their parents’ immigration status, automatically become American citizens—with red, white and blue in their veins.

Or that’s the theory, anyway, because we know what the reality looks like. We’re also possessed of the common sense, or some of us anyway, to know that a dog born in a stable is not a horse. (I once made a girlfriend of mine cry, during an after-dinner argument about immigration, by saying just that. The logic was so simple, so crystalline, so alien to her soft feminine mind that she had no option but to do what women always do in that situation—open the floodgates. Needless to say, ours was not a long-lived relationship.)

On his first day back in office, President Trump issued an Executive Order to end birthright citizenship, which relies on a very particular interpretation of the Fourteenth Amendment. The Fourteenth was passed in the aftermath of the Civil War to guarantee the rights of the newly emancipated slaves against prejudicial laws being passed by the Southern states. Despite a veto from President Andrew Jackson, the Amendment passed.

In the decades that followed, however, the Amendment took on a life and a logic of its own. Provisions that were obviously intended only to apply to America’s slaves and the descendants of her slaves, suddenly came to apply to—everyone in the world. Literally. Everyone in the world. If you could just get to America and give birth, your child would be an American. You could come by plane or you could cross the Bering Strait in fur boots like an ancient hunter-gatherer—you could ride a giant fly like in one of those new Gigachad edits—but so long as you arrived on American soil and crapped out a live baby, that baby would be American. And then that made getting American citizenship yourself—and for your entire clan back in Squatemala—a whole lot easier. That’s chain migration, or as I like to call it, ball-and-chain migration, but it’s America that ends up in fetters.

The irony of this situation was not lost on Justice Clarence Thomas, himself the descendant of freed slaves. He offered a dissent tinged with both anger and sadness.

“The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens… In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”

“Blacks were entitled to citizenship because they were Americans,” Thomas continued.

“They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority.”

Anyway, no use crying over spilt milk. Birthright citizenship stands. Children born in the United States, simply by virtue of being born there and not in El Salvador, Uganda or China, are US citizens. The framers of the 14th Amendment, and the Founding Fathers themselves, are still spinning in their graves, as they have been for decades if not the better part of a century—maybe even 250 years. They’re unlikely to stop rotating any time soon.

In the long run, of course, if America is to be saved, something has to be done. Birthright citizenship has to be struck down. As long as America still cleaves to the “magical soil” idea of nationhood, it will be impossible to avert demographic disaster and ensure a future for… you know what I mean.

The world’s entire population simply cannot be Americans-in-waiting, whatever a bunch of men and women in silly robes have to say about it.

In the meantime, there are things the Trump administration can do to mitigate this unfortunate decision.

President Trump has actually been quite sanguine. In a post on Truth Social, Trump wrote, “The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship! They will have my Complete and Total support!”

One thing the Trump administration is apparently planning to do is to prevent the arrival in the US of pregnant women from foreign countries. This is the most brazen kind of birthright citizenship scam—it’s often referred to as “birthright tourism”—and in recent years there’s been intense focus on schemes set up specifically to catapult pregnant women into the US to claim citizenship for their offspring, especially from China.

One well-publicized case involved 100 Chinese nationals who maintained apartments in California that were used by other Chinese nationals to give birth. The scheme is believed to have served at least 500 customers, who were each charged as much as $80,000. Another birthright-tourism scheme may have provided services to 8,000 women; half were from China.

Nobody knows exactly how many babies are born this way each year. It’s probably tens of thousands. Maybe more. Peter Schweizer, author of The Invisible Coup: How American Elites and Foreign Powers Use Immigration as a Weapon, reckons 100,000 Chinese babies have been born in the US each year for the last 13 years.

Other estimates suggest the figure is about 26,000 foreign babies.

Either way, the figure should be as close to zero as possible, and the Department of Homeland Security and the State Department have all the means necessary to prevent birthright scams, whether they involve organized groups or individuals. As Stephen Miller told Jesse Watters on Tuesday, the admin will be scrutinizing visa applications even harder. Pregnant women might even be barred from entering the US altogether. Why not?

A legislative route to repeal is unlikely to succeed, as is a constitutional amendment. In the end, what’s most likely to happen is that four, eight or 12 years down the line another challenge to this insane interpretation of the Fourteenth Amendment will come before the Supreme Court. By that time, there will be fresh bums on the bench, hopefully conservative ones. Hopefully better than Trump’s unreliable picks, especially Amy Coney Barrett, who has decided to make herself a rod for Trump’s back—for reasons known only to her.