ESSAY: Citizenship & the Constitution

Thoughts on Trump's attempt to sharpie our foundational document.

NOTE: We’re in Chicago visiting the daughter. I assumed immigration stuff was going to go down and I would make that the prime story of my weekly newsletter. That hasn’t happened yet, as described in the newsletter I finished earlier. The girls (surprise!) went to bed earlier than me, and I felt the need to get this off my chest. Not my plan to do this often, but I liked the balance of the newsletter, and still wanted to get this out. I only read this once, so apologies for more than the usual typos and stoopid mistakes…

It only took two days for a federal judge to smack down Trump’s executive order on birthright citizenship which strips out part of the 14^th Amendment to the Constitution. The Reagan-appointed judge wasn’t fucking around in his opinion.

I’ll let it speak for itself:

“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is,” U.S. District Judge John Coughenour told a Justice Department attorney. “This is a blatantly unconstitutional order.”

In case you don’t know, the 14^th Amendment was ratified in 1869. The post-Civil War amendment was instigated to make sure that that the children of former slaves born in the United States had all the legal protection of every other citizen. there was a lot of funky shit going on during Reconstruction, the remnants of which lasted for generations.

Until recently it was never really seriously questioned in “mainstream” circles. And birthright citizenship isn’t some anomaly of our original sin of slavery — it’s the law in 30+ countries around the world. It’s globally more the norm in developed countries than not.

The ruling by the U.S. District Judge was treated with gleeful snickers in progressive circles — something to hang onto with Trump coming back into office. Everyone who knows these things knows you can Executive Order away ANY part of the Constitution.

Changing the Constitution requires a two-thirds vote in both the House and Senate, followed by ratification by three-fourths of state legislatures.

Yes, there was a technical, non-controversial amendment that passed in 1992 on Congressional pay raises — but the last one anyone knew much of anything about was the lowering the voting age from 21 to 18 which passed in 1971.

So, this whole Trump exercise has been treated pretty much like a joke that he’s doing for MAGA optics. Changing the Constitution is clear as day. It’s in the damn Constitution. It’s not up for debate or digging through The Federalist Papers to know where our Founders stood on it.

But should we treat it like a joke?

I don’t think so.

Laughing All the Way to Dictatorship

There’s no doubt this case is going to the Supreme Court.

And before last year (even with this court majority) most everyone would think it would be summarily ignored, rejected, or laughed out of the building with a 9-0 opinion.

But, given the Trump Immunity decision, nothing is certain.

That case was such a wildly radical screed that it took most court scholars of all stripes by surprise. And contrary to their confirmation hearings, a majority of the Court had no problem scrapping Roe v. Wade even if they called it precedent and settled law.

The fact that a bare 5/4 majority allowed Trump’s Hush Money/Election Interference sentencing go forward when the crime began before Trump became POTUS tells you just how willing at least four member of this radical court are willing to go.

The question becomes, is Trump not doing this just for MAGA optics but also to bend the Court to his will?

Given the almost absolute criminal immunity they’ve given him, the logical answer is why wouldn’t he?

Constitution aside, I guarantee you there are five, maybe six justices who agree with Trump on the issue, aside from that silly foundational document.

I can see a majority going two ways:

1. They just agree with Trump. That’s not a crazy thought. At least four of these people are all in on damn near anything. And if there’s anything we’ve learned lately, it’s that these justices don’t match any previous Conservative ideological ideal — they are true believers in the same MAGA bubble as any politician.

2. They attempt some one time only ruling like Bush v. Gore in 2000. They claim that the immigration crisis gives POTUS special powers in this case only.

Let me be really, really clear: If EITHER of these outcomes happen the United States is no longer a Constitutional Republic.

Seriously.

Our Democracy is dead.

No matter how narrowly defined, giving any president the power to unilaterally alter the Constitution DESTROYS our system of checks and balances and ushers in a full-on Dictatorship.

Flip It and Reverse It

That’s scary, right?

Damn right it is.

But. There’s another just as scary road we may go down.

There are going to be tons of cases going to the Supreme Court fighting any number of Trump actions beyond birthright citizenship.

What if the Court does the right thing and starts knocking down a bunch of shit Trump is trying to do? Add in the insult of Republicans in Congress not being able to pass big chunks of his legislative priorities.

What does Trump do then?

As you may know, there’s nothing in the Constitution that requires a specific number of people on the Supreme Court. That number (especially in the 1800s) changed multiple times. The last real attempt was by FDR to “pack” the Court to get his full New Deal legislation through a Democratic Congress.

That has been viewed by history as the big mistake by FDR, and it has scared every president since from trying something similar. Hell, Biden could barely even bring himself to “propose” some rules and regulations as all the craziness was happening.

Do you think Donald Trump is bound by any traditions or guardrails?

But, doesn’t the Senate have to confirm any Supreme Court Justice?

Sure.

But even if they don’t simply fold how do you stop a president from just appointing three (or six) new justices? And who rules on that if those new folks are fitted with robes and are in the damn building?

Likely? Probably not.

Possible? Very much so.

So, sit back and snicker at the abject stupidity of an Executive Order eliminating core shit from the Constitution like a sharpie altering the path of a hurricane.

But know that there’s nothing funny about any of this. And there’s multiple very, very real paths to Dictatorship.

Don’t turn away. This stuff is happening and all VERY possible.