Supreme Court’s Blunder on Birthright Citizenship

The Supreme Court just blundered badly on birthright citizenship, undermining the credibility of the Court while devaluing American citizenship. By a mere 5-4 majority, the Court declared a new constitutional right to citizenship for millions of children of illegal aliens, tourists, and those on worker visas, which was never intended by anyone who wrote the U.S. Constitution.

This decision suddenly grants a future right to vote to millions of illegal aliens, tilting the outcomes of elections away from the candidates preferred by native-born or naturalized American citizens. Chief Justice John Roberts, who is on the Court only because millions of illegal aliens were not allowed to vote in 2004, wrote a decision that hands the future of the United States over to the children of illegal aliens and other foreign citizens.

The notion that the 14th Amendment, which was ratified nearly 160 years ago in response to the Civil War, somehow requires this result is unfathomable. As Justice Thomas explained in his 91-page dissent, this is another judicial distortion of the meaning of a constitutional amendment whose purpose was “to secure equal rights for the freed blacks.”

No Republican will be electable as president in a decade if this decision stands, because of the millions of children born to illegal aliens allowed in during the Clinton, Obama and Biden Administrations. In Republican states flooded with illegal aliens, such as Arizona and Texas, the voting power of these illegal alien children as newly declared American citizens virtually ensures a future Democrat takeover.

“I am not sure that today’s opinion will stand the test of time,” dissented Justice Thomas in his modest style. Justice Alito dissented by observing the Court “confers citizenship on virtually everyone who happens to be born in this country, including the children of ‘birth tourists,’ women who come here solely for the purpose of giving birth to a child and then promptly return home.”

Now the millions of illegal aliens who have been persuaded by the Trump Administration to return voluntarily home have a strong incentive to stay long enough to give birth to another child. Those children will then automatically have a right to vote in our elections and to legalize their lawbreaking parents.

Roberts’ decision was made possible only by the support of Justice Amy Coney Barrett, who has repeatedly given a one-vote majority to Roberts’ coalition with the three liberal justices. Barrett seems to cling increasingly to Roberts, perhaps overwhelmed by the liberal D.C. culture while taken in by Roberts’ superficial reasoning.

Dating back to his politically tinged memos as a D.C.-based government attorney in the 1980s, Roberts has always been more interested in politics than scholarship. Roberts just outdid prior liberal judicial activists by diluting the future voting power of all rightful American citizens.

This Court decision devalues American citizenship for all. No longer is citizenship reserved to the children of Americans and those who went through the rigorous process of naturalization, but now it includes anyone born in the United States to a mother who was here illegally or who traveled here for school, work, or tourism.

American citizenship now includes many millions who have no known allegiance to the United States. Many illegal aliens demonstrate their hostility to the values of our country by their criminal conduct and failure to assimilate, but the Supreme Court just prevented deportation of millions of them by declaring them to be citizens.

The response to this needs to be, as to prior calamitous mistakes by the Supreme Court, clear and unequivocal. As the future president Abraham Lincoln stated in his immediate response to the Dred Scott decision in favor of slavery in 1857, “We know the court that made it has often overruled its own decisions, and we shall do what we can to have it to overrule this.”

The Republican Party was built on opposition to the Dred Scott decision, which was decided with a larger majority (7-2) than this birthright citizenship decision. In both cases, the Court went far beyond what was needed to decide the controversy before it, as Justice Kavanaugh pointed out in his concurrence explaining that a 1940 law, which Congress can change, should have been the sole basis for this citizenship decision.

Instead of Justice Kavanaugh’s judicial restraint, the Court’s 5-member majority issued a ruling that only a constitutional amendment can change. Such an amendment on this issue would be nearly impossible, but Congress could deny any appropriations to enforce this decision as Congress did in response to court decisions to remove the Mojave Desert Cross from federal land.

Pew Research reports that American adults (who include non-voters) are evenly divided, 50-49%, on the question of whether illegal immigrants’ children born in the United States should be automatically granted American citizenship. This 49% is greater public support than Republicans have on other topics, and should become a campaign issue.         

John and Andy Schlafly are sons of Phyllis Schlafly (1924-2016) and lead the continuing Phyllis Schlafly Eagles organizations with writing and policy