We have a new living constitutionalist gun-slinger in town, and he’s gonna tell us what’s in the Constitution and how it should be applied in this modern day and age when we’ve got problems the framers could not have foreseen. So, bye-bye textualism and bye-bye originalism, c’mon over here and meet ol’ Six-Pack himself, Brett Kavanaugh.
I read this idiot’s birthright citizenship concurrence and dissent. It reads like it was written by someone so arrogant, he doesn’t expect anyone to look up his recitation of bullshit and see if any of it comports with reality or history or anything else, for that matter.
Kavanaugh has succeeded in making himself famous for voting with the majority to overturn Trump’s executive order on birthright citizenship, but not because it violates the 14th Amendment. No, our Brett-boy has found himself a couple of obscure federal laws from the 1940’s and 1950’s that he says are violated by Trump’s order, and because Trump broke the law but did not violate the Constitution, his executive order should be made null and void.
Kavanaugh wants us to believe that the 14th Amendment doesn’t mean what it clearly states: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. There is a lot of stuff in the Constitution that isn’t very clearly stated. Even the First Amendment’s guarantee of freedom of religion is quibbled over between the “free exercise” clause and the “establishment clause” and what they mean. But to say straight up that if you’re born in this country or have been naturalized, you are a citizen…what’s the problem with that, Brett?
Lots of problems, says the man who has shed his previous belief in textualism, the theory holding that the words in the Constitution as written are what matter, and his belief in originalism, that the meaning of the Constitution should reflect the beliefs and circumstances of the Constitution when it was written. Hell, Kavanaugh eagerly signed onto his pal Clarence Thomas’ decision in the big Second Amendment case, New York State Rifle & Pistol Association, Inc. v. Bruen, that we shouldn’t have any laws that don’t follow the so-called “history and tradition” of the laws at the time that the Second Amendment was written.
Got that? These fuckers are saying they’re so in love with the original meaning of the Constitution that they’re not going to put up with any laws that aren’t exactly like the laws were in 1791, when the Bill of Rights was added to the Constitution.
But then along comes Donald Trump and his obsession with what he and his brown-people-remover Stephen Miller call “illegal immigration,” and so Trump just up and says the 14th Amendment doesn’t apply to kids whose parents are not either citizens themselves or in this country with some sort of “legal status.”
Kavanaugh says, yep, that’s right: the 14th Amendment doesn’t apply because “significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868.” Of course it was, you drooling doofus. There weren’t any laws making immigration “illegal” in 1868 because we had open borders and we were taking anyone who wanted to come to these shores and work hard and pitch in and help us expand the country. No less than 12 of the states that currently have stars on the flag didn’t even exist in 1868. We needed people to populate the virgin territories and start businesses and plow fields and harvest crops…if only because after 1865, we didn’t have slaves to do that hard work anymore.
Kavanaugh dives into a couple of cases to show how the Supreme Court has read the Constitution to go along with the changes of the modern world. Why, goodness, Supreme Court justices had to find a way to interpret how the Fourth Amendment applied to searches of cars, because there weren’t any cars in 1791 or 1868! I’m not kidding. You have to read this shit to believe it. Listen to this quote from Kavanaugh: “In First Amendment cases, courts apply free speech protections to the Internet notwithstanding that the Internet did not exist in 1791 or 1868.”
Really, Brett? There was no internet when the First Amendment was written, so the Supreme Court had to read the Constitution in such a way as to take into account all this modern shit that’s come along? He even quotes a case from 2024 cautioning that we can’t allow our Constitution to be “trapped in amber.”
What happened to Thomas’ amber guns of 1791, Brett? Or Alito’s “amber” that the word “abortion” isn’t found in the Constitution, and there were anti-abortion laws on the books back in the day when the 14th Amendment’s “equal protection of the laws” was written?
All that’s out the door for our Brett-boy, so he can come down on the side of the man who appointed ol’ Six-Pack to the court on the birthright citizenship issue. Kavanaugh tells us that birthright citizenship doesn’t apply to children born to illegal immigrants because “Framers of the Fourteenth Amendment could not have fully anticipated” all these brown people coming across the border. He even tells us that the framers would have seen it as an “odd result” for citizenship to be granted to “foreigners” who have children in the United States.
No, you blathering, dissembling liar. Everyone was a “foreigner” in 1868, unless you were a native American. The framers of the 14th Amendment were themselves the descendants of “foreigners” who came to these shores from other lands. That’s why they wrote the opening words of the 14th Amendment. They wrote “all persons,” on purpose. They didn’t write “the following persons,” or “the persons of whom we approve,” or “the persons with this skin color but not that one.” Kavanaugh even says that “changes in travel” couldn’t have been foreseen by the framers, so that makes everything different today. They can fly on jets across oceans! They can drive cars across borders! The framers couldn’t have seen that coming!
Kavanaugh, and the rest of the right wingers who have had their undies in a wad over the court’s interpretation of the 14th Amendment to mean exactly what it says, want it both ways. They want no abortion now, because it was illegal then. They want no gun control laws now, because there weren’t any gun control laws then. But when it comes to babies born in this country to people who are here on temporary visas or no visas at all, they don’t want ‘em. That the babies themselves didn’t have any say in the matter about where they were born doesn’t concern these so-called “conservatives.” To them, fetuses have a “right to life,” but babies born to immigrants or even to temporary visa holders don’t have the rights granted to them in our own Constitution.
This is pure fascism. It is exactly what Hitler did in Germany in the 1930’s. He was the one who said who could be citizens of Germany and who couldn’t, who had rights and who didn’t. It’s exactly what Stephen Miller and Trump want. They want to be the ones who get to say “we will allow the following people into our country.” Look who they define as refugees they will admit to this country. White South Africans and nobody else. Not Black South Africans. Not real refugees from places like Haiti and Somalia. But white people who come from a country that oppressed an entire people for centuries? Hey, come on in! You’re our kind of folks!
Some of the experts in the legal community are calling Kavanaugh’s “concurrence with exceptions” an invitation to revisit the birthright citizenship issue in the future. His refusal to read the 14th Amendment to say what it so clearly says created a decision with a 6-3 majority to overturn Trump’s executive order, but only a 5-4 majority to do so on Constitutional terms according to the way the document was written. This is going to turn into another campaign like the one they launched against abortion. It took them 50 years to get a Supreme Court that would give them the Dobbs decision saying there is no constitutional right for women to control their own bodies. It may take them another 50 years to get a court that will effectively amend the Constitution so the 14th Amendment isn’t a part of it anymore. They would like nothing better than to go after the 14th Amendment’s guarantee of due process and equal protection of the laws. That would be the way they could overturn Brown v. Board of Education, which they’ve wanted to do since the day the decision came down in 1954.
This country will not survive the Supreme Court as it is presently constituted. The 6-3 majority will go after every law passed by a Congress and a President from the Democratic Party when they are in power. If Democrats want their party, and our democracy for that matter, to survive into the next century, they’re going to have to expand the court to 15 justices, and they’re going to have to write laws that constrain the court using other powers granted to the Congress under Article III. That won’t guarantee that the Republicans won’t get elected and tilt-a-whirl the Supreme Court back the other way, but it would be a start.






