The US Supreme Court has agreed to hear arguments about whether the Citizenship Clause of the 14th Amendment means what it says, that “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.” When the Court accepts a case most people probably assume that it has yet to decide and is just waiting to hear arguments. But the rule on the Court is that it takes four votes to put a case on the Court’s docket and hear arguments. That usually means there are already four votes to reverse – four votes to overturn what the lower courts did.
In this case the lower courts consistently held that if you’re born in the US, you’re a citizen, just as the language of the 14th Amendment says. But by voting to hear the case they indicated that in all probability there are already four votes to overturn. And, predictably, the majority of cases that the Court takes result in overturning the lower courts. Otherwise why take the case?
Some people feel confident because members of the Court describe themselves as textualists, as guided by the language of the law. But their much vaunted textualism doesn’t explain or justify their decisions. Some of the Court’s most questionable constitutional decisions have been decided by so-called textualists.
Citizens United v. FCC extended the first amendment to corporate treasuries. Corporations at the Founding were rare government privileges filled with limitations. Nothing in the constitutional text made that extension clear.
Shelby Co. v. Holder repealed crucial enforcement provisions of the Civil Rights Act by raising the court created notion of equal state sovereignty over the constitutionally explicit protection for the equal rights of citizens – nothing in the Constitution or the statutes required the Court to gut the enforcement of the Act. It also said federal enforcement had been so successful that it was no longer necessary. Justice Ruth Bader Ginsburg noted in dissent that argument was as smart as “throwing away your umbrella in a rainstorm because you are not getting wet.”
Connick v. Thompson – held that no prosecutor could be held accountable for suppressing evidence of innocence and keeping an innocent man in prison for decades, a judicially created rule that owed nothing to the Constitution and everything to the Court.
The Court went further in Trump v. United States (2024), holding Trump was immune from prosecution for a wide range of actions despite the threat to American constitutional government. Presidents can only be removed from office by impeachment but no language in the Constitution provides permanent immunity from criminal or civil liability.
Cases like that don’t give me a lot of confidence.
Now let’s understand the citizenship clause. When that language was written, slaves were not considered citizens. If parental citizenship were required none of their children would be either as a result of the infamous 1857 decision in Dred Scott v. Sandford. Congress knew what it was doing; it didn’t leave an out.
But at least four of the nine members of this untrustworthy Court think birthright citizenship is questionable.
I would rather deport those members of the Court than any of the people whose citizenship they are trying to question. And a president who has no respect for due process is not entitled to any process, let alone immunity for his repeated misbehavior.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran. He enjoys the help of his editor, Jeanette Gottlieb
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