Scotus justices flay birthright citizenship claim, echo dred scott

WASHINGTON — Justice Clarence Thomas ignited a firestorm during oral arguments in Trump v. Barbara on Tuesday, sharply questioning the foundation of birthright citizenship as guaranteed by the 14th Amendment. His pointed inquiries, centered on the historical precedent of Dred Scott v. Sandford, suggest a potential dismantling of a cornerstone of American citizenship.

Court questions 14th amendment's core

The case challenges a presidential executive order seeking to limit birthright citizenship, arguing that the 14th Amendment’s guarantee applied only to the children of formerly enslaved people. Solicitor General D. John Sauer, defending the order, struggled to articulate a coherent defense against the justices' relentless scrutiny.

Justice Thomas’s opening line, a direct reference to Dred Scott, immediately cast a longshadow over the proceedings. The 1857 Supreme Court decision declared that enslaved people and their descendants were not citizens and had no rights under the Constitution, setting a chilling precedent. The echoes of that ruling were palpable, particularly given the current political climate.

“Would we have two separate citizenships?” Thomas asked, a seemingly simple question that opened a Pandora’s Box of legal and philosophical implications. Chief Justice John Roberts, visibly displeased with Sauer’s arguments, repeatedly challenged the government’s position. Justice Elena Kagan, in a particularly sharp exchange, noted that the government’s request effectively sought to rewrite a principle understood for over a century.

Sauer’s attempt to deflect concerns about potential “birthright tourism” – the argument that the number of births to non-citizens in the U.S. each year is excessive – fell flat. Roberts countered with a blunt reminder: “We’re in a new world. It’s the same Constitution.” The justices were equally critical of Cecillia Wang, the ACLU lawyer representing those defending birthright citizenship.

Wang, herself a beneficiary of the principle, passionately defended the concept, emphasizing the diverse origins of American identity. “I walked into the room today with all of you. I felt your emanations. Also, with all of our ancestors, whether you are an indigenous American, or you are descended from African-Americans who were enslaved and freed, or whether you are the descendant of someone who came on the Mayflower, or someone who arrived just before your birth—we are all Americans,” she declared.

The justices’ skepticism, however, appears to be coalescing into a 6-3 or even 7-2 decision in favor of upholding birthright citizenship, contingent on Justice Brett Kavanaugh’s vote. The implications are staggering: millions of American-born citizens could be stripped of their status, effectively rendering them stateless. The notion is not merely legal; it strikes at the very core of the American identity, a concept forged in the fires of revolution and sustained by generations of immigrants.

The court’s deliberations underscore a fundamental question about the enduring principles of the Constitution and the fragility of rights. The legacy of Dred Scott looms large, a stark reminder that the fight for equality and citizenship is far from over.

The echoes of Shane MacGowan’s lament, “Fare thee well, gone away, there’s nothing left to say,” resonate with a chilling resonance.