I had meant to write a column about Independence Day today, but I’m going to put that off until Monday, partly because I’d like to comment on what happens during the big 250th, and partly because of the SCOTUS rulings that came down this week. I think those are worth some more reflection.
On Sunday night I wrote about how SCOTUS has been doing a pretty good job lately, and how originalist judges have been so much better at sticking to interpreting the law rather than legislating, and how their judgments usually have the mark of common sense in them.
Annnnnddddd… SCOTUS just made one very bad ruling and a couple of other shaky ones that might make it appear as if I’m a dope who doesn’t know his Schumer from a hole in the ground.
In my defense, I did say that I expected that we’d get a bad ruling on the birthright citizenship issue, and I hate having gotten that one right. The ruling that states didn’t have to count only ballots cast or received by election day was wrong-headed, but not a huge deal, IMHO. It said that a ballot that was postmarked on or before election day and received within 5 days after election day could be counted.
That’s dumb, because giving an extra week for the ballots to come in does open the possibility for cheating, unless the state scrupulously and competently examines all ballots for authenticity and postmark. (Good luck, if you live in a blue state.) Besides, there’s an easy way to both allow mail-in ballots and day-of election ballots on equal terms: require that if you want to mail your ballot, you have to do so 5 days before election day.
If you bumble around and miss that deadline, or can’t decide who to vote for until election day, just vote on that day, the way everyone in the country did for more than two centuries, until a few years ago!
At least SCOTUS got the “no dudes in women’s sports” case right. But even that one was a little weak, since they just granted states the right to protect female athletes in that way, rather than requiring that all states do so.
The birth right citizenship case was the big one, and it really hurt. I’ve got 5 thoughts on that, in no particular order:
First, we could have afforded to lose one of the supposedly originalist/conservative justices, but both Roberts and Coney-Barrett did the wrong thing. (The definition of “doing the wrong” thing in legal circles is “joining Ketanji, Sotomayor and Kagan on any opinion!”) Roberts has been disappointing for a long time, but Amy Coney-Barrett was supposed to be different and better, and she’s been mediocre at best, and has dropped the ball on some really big cases. (I hope this doesn’t mean she’s drifting to the left – a la Souter, Anthony Kennedy, Sandra Day O’Conner, and many others.)
Second, it’s very frustrating that only GOP-nominated justices do this. The lefties on the court are picked by leftist presidents to predictably rule in partisan leftist ways, and they always do. Or at least almost always. The rare exceptions are when a case is 9-0 or 8-1, so they’ll vote with the conservatives. But that’s only when the case is so obvious that nobody can make an even quasi-reasonable case otherwise, and/or when the outcome is so certain that their vote could not possibly make a difference.
But I can’t think of an important case that was closely decided – 6-3, or especially 5-4 – when a leftist judge found with conservatives, in a way that set back the leftist political agenda. Maybe some of you out there can point to one?
Third, that point actually puts the lie to the partisan leftists who are always ranting about a corrupt, right-wing court, even though that court finds against conservative causes or positions on a fairly regular basis. (As it did here, on a huge issue that Trump and conservatives badly wanted.) Again, the mark of a truly partisan, politically compromised court would be one that always went for the outcome that confirmed and advanced their political priors. And that is obviously true of many members of SCOTUS in recent decades…ALL of them on the left.
Fourth, Roberts and Barrett’s reasoning was tortured. They had to acknowledge the importance of the key legal phrase from the 14th amendment – that citizenship automatically goes to those who are born in the US and “are subjection to the jurisdiction thereof” – but they argued that the meaning of that phrase is defined by the British idea (in Latin, “jus soli,” or “right of the soil”) of people being subjects of the king, which they claim that we borrowed and retained from them.
(By the way, it’s awfully ironic that the same leftist crowd hollering about wanting “No kings!” are today happily adopting the most anti-democratic, pro-kings interpretation of all time… because in this context, it greatly increases their own political power.)
Fifth, Thomas and Alito were deft and masterfully scathing in dissent, pointing out all the factually wrong assertions and mistaken interpretations that Roberts and Barrett made. Thomas is usually the most concise of the justices, with his opinions averaging only a few pages; this time he wrote 91 pages, debunking in detail the errors of the majority.
He and Alito pointed out that the 14th amendment was narrowly tailored to apply to the children of former slaves, and that it did not apply to those with loyalties to other nations, the two best examples being American Indians, and the offspring of foreign diplomats. (The Indians were later granted birthright citizenship through the Indian Citizenship Act in 1924; diplomats’ kids have never had it, and still don’t.)
The British themselves got rid of the principle of jus soli in 1981, and no other nation on earth grants unconditional birthright citizenship to the children of illegal parents. Except, tragically, and until we can find some way to overturn this erroneous ruling, the United States.
So again we come back to common sense, in addition to all the legal language and precedents and prior interpretations. Does it make ANY sense to say that the children of upstanding, legal residents working and residing legally in America (i.e. diplomats) are NOT given citizenship, while the children born to foreigners who broke our laws to get here and are here illegally (and thus subject to deportation themselves) ARE given citizenship?! It’s a ridiculous outcome, in a way that I think is parallel to the other huge political problem of our day: voting fraud.
In both cases, the left is making facially absurd arguments to cover up the most transparently self-serving and illicit power grab imaginable. They push for a basket of shady voting rules – ubiquitous mail-in balloting, ballot harvesting, same day registration, no ID or proof of citizenship to vote, and ballot counting that can take weeks – and coincidentally, every single one of those makes fraudulent voting much, much easier. Just like allowing birth-tourism and anchor babies creates a huge influx of otherwise illegal voters that will eventually rob indigenous American citizens of the political power they are entitled to.
Ugh. With justices like the GOP-appointed Roberts and Barrett, why would the Left need to try to pack the court?
But we’re cautious optimists around here, and the Simpson family motto is “nil desperandum” (never despair). So what’s the bright side, and what can we do now?
To begin with, we need to remember that common sense is still the hallmark of our philosophy, and kryptonite to the left. And the fact that Roberts and Barrett departed from common sense to vote with the three partisan leftist justices is an indictment of them, not of our ideas.
And that’s an easy case to make to the everyday (non-lawyer) American people. Consider these simple questions that have come out of recent high-profile SCOTUS decisions:
Are people “in” the country when they’ve arrived at – but are still on the Mexican side of — the southern border?
Does “election day” mean “election week or election month?” Or, you know, “election day?”
Is “Temporary Protected Status” a temporary status, or a permanent status?
Are males different than females, and should they be able to play on female teams against females?
Should a foreigner come here illegally, give birth, and have that child automatically become an American citizen?
The answers are obvious, and we are on the right side of every one of them.
We should let these election day and birthright citizenship decisions light a fire under us in exactly the same way the Dobbs decision to reverse Roe v Wade lit a fire under the pro-abortion Left. (Except that we’ll be motivated to correct some terrible mistakes, while the Dems were motivated to…continue aborting babies.)
The ridiculously obvious cheating in California’s recent primaries illustrated how important clean elections are, and allowing a flood of illegals and counting votes for weeks threaten our confidence in the system. We should use that issue to hammer the Dems in light blue, purple and red states (the deep blue states are beyond saving on this issue, at least for now), and to push for the Save Act, even if we can’t get it before the mid-terms. It’s an 80-20 issue, and it should help us in the 2028 cycle, and it might even help us eke out a win in the mid-terms if we’re even close to striking distance of the Dems.
And a closed border and deporting illegals are popular too (even if not as popular as they should be), and they’ll become even more so as more progress is made, and more terrible stories come out about new crimes perpetrated by illegals against citizens.
In the last several days I’ve heard a new idea that I love: Trump should write an Executive Order —I’d love a law on this, but it would never get through this congress – banning the entrance of any pregnant female foreigner into the US or any US territories! People who legitimately want to visit the United States are now going to be inconvenienced by needing to provide proof that any birthing-aged female who wants to enter is not currently pregnant.
Chinese birth-tourism schemes alone have created an estimated 1.5 million Chinese “American citizens,” none of whom has any connection to this nation at all. Their moms came to the US or an American territory under false pretenses, gave birth and yoinked a set of citizen papers from cowed bureaucrats, then went straight back to China. So now there is a voting bloc under the control of the CCP that could legally steal any election in which the margin of legitimate victory is less than 1.5 million votes! Not to mention the millions of children whose illegal parents are using them as pawns to get their own citizenship from the next feckless Dem president who gets into the White House.
This cannot go on.
Publicize these infuriating examples, run nationwide ads, and push that EO. Say that we’d prefer not to do this, but this SCOTUS ruling gives us no choice. If birthright citizenship is going to be forced on us in ways that prevent American citizens from determining who will become their fellow citizens, our national sovereignty and security are threatened, so we must act!
This is one more 80-20 issue that we can run on, in the midterms, and in 2028.
Let’s go! And happy Independence Day!
Que Mala/Crockett, 2028!
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Martin Simpson 