What is Roberts Up To?

 

That image you've seen that makes the Obama Presidential Center look flanked by some kind of reflecting pool, as if on purpose to madden Trump, isn't, but a much more natural-looking feature, a piece of the Jackson Park Lagoons, part of the original design of the park by Frederick Law Olmsted and Calvert Vaux (same architects as Manhattan's Central and Riverside Parks). Image by Obama Foundation.

I briefly entertained an idea that Trump might have heard rumors of a reflecting pool on the Obama Center campus and lost his mind in the desire to have his own, and that's where his own pool project must have come from. That's plainly not true, but I think it likely is true that he's been driven wild with jealousy of Obama's monument, which he's been screaming about for more than a year:

"I mean look, President Obama — and if he wanted help, I'd give him help because I build on time and on budget — he's building his presidential library in Chicago. It's a disaster," Mr. Trump said. "And he said something to the effect, 'I only want DEI, I only want woke.' He wants woke people to build it. Well, he got woke people and they have massive cost overruns, the job is stopped. I don't know, it's a disaster.... millions of dollars, like many, many — I mean, really, millions of dollars over budget," and said the problems were because Pres. Obama "wanted to be very politically correct and he didn't use good, hard, tough, mean construction workers that I love."

There's no evidence that he builds "on time and on budget". Also, it's so cute that he loves them because he believes they're "mean", though I don't know how he could knos that. They've surely never been mean to him or more important his father; I mean they may have contemptuously ignored him on one project and another but they wouldn't have wanted him to see them doing it.

Anyway, the success of Obama's opening, with its entertainment by Stevie Wonder and Bruce Springsteen, Bono and The Edge, Jennifer Hudson, John Legend, Common, Eddie Vedder joining the Chicago-based cooperative Guitars Over Guns, and The Roots, while he couldn't even get an appearance by the surviving half of lip-synch act Milli Vanilli, not to mention the audience that never showed up for his stupid-looking spectacle, may have really driven him to insanity.

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Photo by Bob Donnan/Imagn Images via FanSided.

I'm obviously glad the Supreme Court found (in the opinion released today on Trump v. Barbara) that people born in the United States are citizens of the United States, as they basically always have been, and certainly have been since the ratification of the 14th Amendment in 1868 (except when it seemed that might not be true for people of Chinese ethnicity, as could have eventuated in the last couple of decades of the 19th century, but didn't), but a little annoyed, along with a lot of people who are, unlike me, experts, at the stinkbomb tossed into the mix by Justice Brett Kavanaugh, who found that birthright citizenship indeed exists, but not by the constitutional mandate of the 14th Amendment—rather, he says it's only a violation of the omnium-gatherum U.S.C. § 1401(a), passed in 1952, which attempts to sweeps up all the hard possible cases that the 14th Amendment doesn't clearly cover (e.g., a foundling who was under the age of 5 when discovered on US territory becomes a citizen when he turns 21 if nobody has determined in the interim that he was born in some other country), setting up the possibility that some fool Republican congressmember will try to eliminate birthright citizenship through legislation and the Court could decide to put up with it, in spite of the 5-4 majority (Roberts, who wrote the opinion, Bryant, Kagan, Sotomayor, and Jackson) that just ruled the opposite way.

Birthright Citizenship Redux

Wong Kim Ark, from a 1904 US immigration document, via Wikimedia Commons. 

Revised and expanded from the post of January 26, with what I think is a somewhat new argument up in front, inspired immediately by an irritating Bluesky post. 

Maybe the birthright citizenship order will ultimately be held unconstitutional, but I find it highly embarrassing for a judge to say something so unequivocally at a preliminary stage without the slightest acknowledgement that there is an entire literature that disagrees. 1/2 pic.twitter.com/2R4OE9lT8a

— Ilan Wurman (@ilan_wurman) January 23, 2025

The "entire literature" (which seems to consist of a single book by Peter Shuck and Rogers Smith, Citizenship without Consent: Illegal Aliens in the American Polity, Yale University Press, 1985, and its brief recap in the American Enterprise Institute's magazine National Affairs, summer 2018, presumably published in the hope of attracting attention from President Trump and his factotum Stephen Miller), is fatally flawed by its failure to recognize the significance of an obvious fact: there were no "illegal aliens" in the United States at the time the 14th Amendment passed Congress in 1866 and was ratified two years later, only millions of immigrants who might or might not choose to be naturalized (white immigrants, that is, under the terms of the Naturalization Acts of 1798 and 1802).

And when those immigrants had children, as they often did, no reason to question their citizenship or "naturalize" them; as affirmed in an 1844 New York state case, Lynch v. Clarke, in which a state judge held that a woman born in New York City, of alien parents temporarily sojourning there, was a U.S. citizen. They were "natural" already; for the children of immigrants, birthright citizenship was the universal norm (local governments could order the deportation of obnoxious individual immigrants, but there wasn't a national policy). Miller's scenario is completely irrelevant to the realities of the time when the 14th Amendment was written.

The hard cases before 1866-68 were not immigrants, but people whose parents were born within the borders of the US: citizens of the Indigenous nations, and the freed descendants of enslaved Africans.