As you’ve seen, the Supreme Court upheld the constitutionality of birthright citizenship by a 6 — or perhaps 5 1/2 — vote margin. See Kate Riga’s report on the majority decision and Josh Kovensky’s piece on the dissenters’ goal of doing away with birthright citizenship. I repeat my point from yesterday which is that the occasional non-corrupt decision doesn’t make the Court any less corrupt or in need of reform. In this case, in a sane world, the dissents from Neil Gorsuch, Samuel Alito and Clarence Thomas would on their own be sufficient basis for impeachment and removal from office. One might as well believe or pretend to believe that the federal senate is unconstitutional despite its being unambiguously written into the structure of the document itself. The level of abuse of power that is the basis of these dissents can only be seen as criminal in nature and grows from the culture of corruption and impunity that now reigns on the Court.
The landmark case on this question is United States v. Wong Kim Ark from 1898. In many ways it is itself the most powerful validator of the argument. That is not because it has been the guiding precedent from over a century but the simple fact that it was decided the way that it was. It is very difficult to grasp how deeply racist a country the United States was at the tale end of the 19th century, in both a “hard” biological sense as well as a looser cultural one. It is not that anti-Asian racism was worth or more virulent than other forms of racism, though that’s arguable. But it had a particular character. For most white Americans, it would simply have been obvious that of course Chinese people could have no place in America, perhaps even more than Black Americans, though of course plenty thought the same about Black Americans. They were simply from this totally different part of the world and had no connection or place in a country that still saw itself — and to a great extent remained — a cultural outpost of Western Europe.
The problem was that the simple language of the Constitution was simply too clear-cut. There was no avoiding its meaning. Many of the authors of the 14th Amendment were also still alive, though that same Court was in the process of gutting the Civil War amendments. Plessy was two years earlier. The language is simply too clear. There’s no getting around the plain meaning, the obvious intent, the specific meanings of the phrases used to craft it. It’s safe to say that some or all of the justices didn’t want it to mean what it did. But again, the simple text was too clear-cut to leave any doubt. Indeed, the two dissenters struggled to say anything really different. They were reduced to arguments that amounted to … well, this would be super weird, or most of our history says otherwise. In other words, they half argued that even if the 14th amendment did say what it said, there were just too many other factors saying otherwise. If I recall correctly, they even argued that statute law might trump the Constitution. In other words, they had no good arguments.
It is no deliverance that this decision came down as it did. It is a reminder of the profound corruption at the heart of this Court and the absolute necessity of reform if democratic self-government has any future in the United States.