With a hearing on the constitutionality of birthright citizenship now on the calendar, I want to return to a basic point we’ve discussed several times over the last year. Given our experience living mostly in “normal” times, many of us are used to the idea that the law evolves over time. When judges create new case law, the law evolves and changes. And we accept that it has “changed” — in a certain meaning of the word — even when we may not agree with the change. But with so many other things that have changed slowly since 2016 and then rapidly from early 2025, these are outdated ideas, outdated understandings of how the world and the law works.
Birthright citizenship is a key example of this.
Birthright citizenship is clearly, explicitly and incontestably written into the U.S. Constitution. It’s the country’s fundamental law and more than 150 years of American history have been lived on that basis. There’s a reason why no one has doubted this over all those years even if many have opposed it.
A huge amount of the conservative legal movement, especially but not solely in its post-2012 and increasingly Trumpy variant, has been based on changing legal analysis and interpretation, turning it into a choose-your-own-adventure exercise in which you say, What could this law or constitutional passage require if we start from the premise that words and phrases have no established meaning? If the Supreme Court decides that the Fourteenth Amendment doesn’t exist or doesn’t count, that won’t change its established meaning. It will have vast real-world implications in the short term — and what counts as the short term isn’t entirely clear. But the actual law and Constitution will not have changed; what it says will not have changed.
This may be a subtle point and more importantly the relevance of this point may not be immediately clear. But it’s actually quite important. Constitutional government in the United States is largely in abeyance and has been for roughly a year. Whether it returns is not yet clear. In the old times, we accepted Supreme Court decisions because there was a broadly held view that the Court was operating on good-faith jurisprudence even if it was a jurisprudence we ourselves didn’t agree with. That’s no longer the case. What we have is a corrupt Court making war on the constitutional order. Its decisions have no legitimacy. We may choose, as a pragmatic decision, to operate within them. But that doesn’t mean they’re legitimate or have any claim on us. It’s the same as the role of the states and state sovereignty in a time of constitutional crisis. Small-d democratic legitimacy now exists in the free states. And it’s the responsibility of the free states to resist the power of a renegade presidency making war on the Constitution as well as they can while the forces of civic democracy regroup and prepare to reassert their power.
Along these lines, I’ve been I’ve been pleasantly surprised at how states — now only with small steps — are moving forward into this role. TPM alum Brian Beutler published his conversation today with California Attorney General Rob Bonta, who has set up a portal for citizens, state officials and law enforcement to report and save evidence of ICE crimes. Later I learned that New Jersey Governor Sherrill is doing the same thing.
We’re not in normal times. The national citadel has been captured and free states have to fill the void until it can be reclaimed. Here is an analogy that clarifies my meaning as it relates to the Court.
Earlier this week, Donald Trump got the FBI to seize voting machines in Georgia in his continuing quest to deny he lost the 2020 or claim for whatever it’s worth in his degenerate mind that he won the 2020 election. If Donald Trump gets someone at DOJ to say that Donald Trump won the 2020 election that won’t change what happened. Even if he got Nicolas Maduro to “admit” he rigged the election, still nothing will have changed. If he convicts those two election workers in Georgia based on Maduro’s testinomy … nope, what happened will still be what happened. It will just be more criminal conduct by a corrupt executive.
The Supreme Court is no different, an equally corrupt institution operating outside the constitutional order. We have to grapple with its decisions just as we have to grapple Trump’s actions. But that doesn’t make them real. They can’t make two plus two equal five anymore than anyone else can.