We’re getting to that cherished time of year when lilacs are blooming, black flies have all been swatted, and the Supreme Court will be leaving their marble edifice and be largely unable to do any further damage until October.
The trouble is that last one, because this is also the moment each year when the justices-for-life (at least it seems that way) issue opinions in the most momentous cases they’ve heard and then slink out of town for several months, hoping no one will remember the devastating outcomes they’ve perpetrated by the time they return. The trouble is, we do – because who will ever forget what they’ve already done, now several times, to the Voting Rights Act.
This time one of the biggies will be to determine whether the 14th Amendment really means what it says about everyone born or naturalized here being a US citizen. You’d think that was pretty clear language and that even the “originalists” who want to give the words their original meaning would be on board to exclaim a resounding “YES”. However, you overlook the silver-tongued skill of lawyers who managed to persuade the Court for more than 50 years that “separate but equal” was just fine and who even convinced a whole jury that OJ was not guilty.
But let’s go inside the secret conference room where the justices gather in street clothes to chew over these cases and argue over their decisions. The conversation might go like this: “Sure, the amendment says what it says, but it also says those people have to be ‘subject to the jurisdiction’ of the United States and how can that be if their parents are here illegally and are still under the jurisdiction of their corrupt and repressive homelands? I mean, their parents broke the law in coming here and now we’re going to reward their children with the greatest benefit we can bestow! Shouldn’t they have to go back home and then apply for citizenship like every other lawful immigrant – instead of winning that precious status just because their parents managed to sneak under a fence or wade across a river in the dark?”
Don’t laugh; there are justices in the room who could latch onto that thinking like a tick in your garden. But let’s also consider the consequences of yet another 6-3 decision that the words don’t apply to what’s going on these days, “with thousands of baby mommas coming here while pregnant and hoping to have their children born in a detention center before they get bussed back across the border. Is that really how we want to confer all our rights of citizenship?”
Still, let’s also consider this consequence: If only citizens can legally vote here, and if a US birth certificate is no longer ironclad proof of citizenship, then how does anyone who doesn’t already have a passport prove his or her citizenship? After all, you need that certificate when you apply for a passport, so if it’s no longer authoritative proof of citizenship, then I guess those passport-less folks are all undocumented and they’d better be on the lookout for masked ICE agents lurking in the neighborhood – not to mention being unable to register to vote. Over time that could dramatically shorten the lines at the polls, and not just for people with funny accents who arrived on a raft, but for those whose ancestors came over on the Mayflower.
So, please, you justices, before heading off for the summer to speak at symposia in Bali or Fiji or to cruise the Mediterranean with colleagues from the Federalist Society, please consider the potential consequences of your votes – and then give those few critical constitutional words the plain meanings they’ve had since the beginning.
L. Phillips Runyon III has practiced law in Peterborough for 50 years and was the presiding justice of the 8th Circuit Court for 27 years.
