Ep. 2456 - LIVE: Ben Breaks Down SCOTUS on Birthright Citizenship

The Ben Shapiro Show

Ben Shapiro critiques the Supreme Court's latest ruling affirming birthright citizenship under the 14th Amendment, arguing it misinterprets historical precedent and enables exploitation through illegal immigration. He di

Key takeaways

• Court reaffirms birthright citizenship via 14th Amendment

Transcript preview

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Go and you can also get free meat with every order on top of the $50 off if you decide if you decide to start a plan to start a plan to start a plan to start a plan today to start a plan today to start a plan today Good Ranchers.com. American Meat Delivered. The Supreme Court has ruled if you are born in the United States you are a citizen and if your parents traveled here to drop a baby you are still a citizen and if you spend five minutes here your entire life after your parents drop you here and then take you home you are still a citizen we'll dive into one of the most important rulings in the history of the Supreme Court in just one moment plus we'll get to major Supreme Court rulings on the weed-kill round up whether boys can play against girls and campaign finance spending a huge legal day here at the Ben Shapiro show let's get into it live a horrible pick for Chief Justice. I warned you of this when he was selected by George W Bush. I was maybe the only conservative columnist in America who said that Justice Roberts would not be good. This makes yet another terrible Chief Justice Roberts decision because again, remember he's the guy who said Obamacare was totally legal. Now he along with the liberals on the court is claiming that the Constitution of the United States under the 14th Amendment mandates, mandates that if you're born in the United States under the 14th you automatically become a citizen. Now I understand that we've been living with that rule in the United States for a very very long time that is how the legal authorities have interpreted citizenship in the United States but the real answer here is that the Constitution never never contemplated that the 14th Amendment never contemplated that the equal protection clause never contemplated that the birthright citizenship clause the citizenship clause never contemplated that the birthright citizenship clause the citizenship clause never contemplated that the reality the again because what has happened with illegal immigration is absolutely unprecedented over the course of the last few decades in American life and just underscores how much this bad legal take on what citizenship amounts to has totally screwed America Congress abdicated multiple presidents abdicated and so when you let in literally millions maybe tens of millions of people who then have babies in the United States who are then citizens you totally radically change the composition of the country because of bad legal interpretation like birthright citizenship. All right, so let's get into the actual opinion. The opinion by Justice Roberts here, which again is joined by the liberals on the court, is a bad opinion. It is a bad opinion because it is rooted in a really bizarre interpretation of how citizenship has worked historically in the United States. It's a narrative that starts in Britain and then takes a weird detour. in the reconstruction era and then goes back to the British view after Wankham Arc in 1898 it doesn't make a lot of legal sense so to start at the very beginning the governing law when it comes to citizenship in the United States is the 14th amendment it provides quote 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 and now the key phrase we'll talk about in a moment is subject to the jurisdiction thereof it superfluous, does it not? If we just want to say that if you are born or naturalized in the US, you are therefore a citizen, then you don't need the phrase, and subject to the jurisdiction thereof. It's totally unnecessary. I already said if you're born in the United States, you're a citizen. But then it says, and subject to the jurisdiction thereof. So what exactly does that mean? That is the subject of the case. While on January 20th, on his first day in office, President Trump issued Executive Order number 14 160, it was titled, it was titled protecting and the order provided that's children born of persons unlawfully or temporarily present in the United States are not subject to the jurisdiction of the United States and do not qualify for citizenship under the 14th Amendment or the Immigration and Nationality Act. Okay so here's where we get into the very weird history told by Justice Robert. So he is trying to ground his version of birthright citizenship in sort of ancient practice and as you'll see Thomas Alito they just rip him stem to stern on this. They just take him stern on this. him absolutely apart. Again the reason that we're going live about an hour after the release of all these opinions is yes I did read through every single Supreme Court opinion this morning which amounts to there are three major opinions it amounts to something like 275 pages of text so yeah that's the thing we do here we actually read the opinions when we break them down so justice Roberts says quote the story of citizenship in the United States begin with the English common law before the like all in the British Empire were considered subject of the sovereign because the sovereign's power and thus his duty was limited in various respects so too was the scope of this rule he could not demand allegiance from for he could not protect those born in lands he did not control in all other respects however the sovereigns power and his claim to the people's allegiance was complete a foreign mother could enter the British Isles give birth and leave with her child the very next day and that child would remain a British subject. Okay there's one problem with this as justices Thomas and alito note The American Revolution does not believe in the idea that the king has dominance over his subjects because again we are citizens not in fact subjects and the basic idea of being a subject of the British Empire is a different thing than American citizenship we had a whole revolution that we fought in order to not be British but back to Robert's opinion he says no no no we actually imbibed from the British well and we took their rule and then we applied it here at home He says, this view crossed the Atlantic with the colonists and was adopted with little fanfare after the revolution as subjects of the sovereign became citizens of the state. He says it's the same thing. Being subject of the king, meaning the king's property essentially, is the same thing as being a citizen of the state. That is totally wrong. It is absolutely wrong. This common law of citizenship known as Jusoli, or the right of the soil, prevailed, in quote, each and all of the states after American independence and continue to emphasize reciprocal allegiance and And he says in a nation of immigrants, an asylum for mankind in Thomas Payne's words, Zeus Solis, that means rule of the soil, broad scope to con particular importance. Okay, fast forward to Dreadscot versus Sanford. So Dreadscot versus Sanford, one of the most famous cases in Supreme Court history, maybe the most famous case in Supreme Court history, the darkest case in Supreme Court history, that is the case in which Justice Tawney prior to the Civil War said that black Americans born on American soil were not, were not, in fact citizens because the citizens, didn't mean black people, right? That is Dred Scott. According to Justice Roberts, in the odious decision of Dred Scott versus Sanford, this court imposed the southern state's beliefs onto the nation. Chief Justice Tawney, writing for the court concluded that the words people of the United States and citizens, had an unexpressed racial component, one that excluded all those descended from slaves. The court had overruled the common law, but the people eventually would overrule the court. It took more than a decade and the Civil War. But the Civil War. But Frederick Douglass. But Frederick Douglass's and humanity would be fulfilled. Okay, so again the idea here is that there was this rule of Jus O'ley if you were born on American soil you were a citizen. Dreadscot cut against that because it wrongly said that didn't apply to black people and then the Civil War was fought to re-establish the idea that it belonged to everybody. And then in the aftermath of the Civil War two key pieces of legislation, one a piece of legislation and one a constitutional amendment. The key piece of legislation was the Civil Rights Act of 18 of the United States, which was originally passed in 1868. So, says the court and Justice Roberts, the Act, like the Act, the Civil Rights Act, the 14th Amendment was intended to repudiate Dread Scott. The goal was grand to put the great question of citizenship beyond the legislative power altogether to settle the issue once and for all. The clause starts like the common law with territory. A child must be born in the United States, not elsewhere. And the clause ends again like the common law with sovereign power. A child must be subject of the United States, unlike, say, the families of foreign ministers, a child born on American soil and subject to American law was made an American citizen. Okay, so the question becomes, as we said, right at the top, what does it mean subject to the jurisdiction to the jurisdiction there up? What does it mean to be subject to American law? So he says, to be subject to the jurisdiction of the United States is to live under its dominion. The citizenship clause uses jurisdiction in its ordinary sense referring to the power of the United States to govern those within its territory. But that of that of that of that of that of it becomes completely sort of like who living in the United States would not be subjected to the jurisdiction thereof aside from maybe foreign diplomats what would happen what would happen if you were temporarily here were you subjected to the jurisdiction of American law like what did that mean what did it add to born here because if you just mean born here just mean born here just say born here you don't need subject to the jurisdiction thereof says the ordinary legal meaning of the text of the clause captures the common law rule with its broad reach and narrow exceptions. The groups included and excluded and excluded by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers because presumably they were not subject to American law and members of 19th century Indian tribes over whom the United States had seated a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign or quasi-sovere. Okay, but here is where the court's runs into a bunch of trouble. During reconstruction, right, in the aftermath of the Civil Rights Act of 1866 and the 14th Amendment, courts for several decades interpret this to mean that you actually had to be domiciled in the United States, meaning that you had to be a subject of the United States. You could not be, say, a foreign citizen in the United States and also an American citizen. Or drop a baby and that baby would not be considered an American citizen. So what the court is. has to claim is that basically there is a consistent through line from British citizenship, Jusoli, all the way up until reconstruction and then there was sort of a detour and then in the late 19th century with Wong-Kim Arc, we went back to the British rule. So quote, the new theory after reconstruction focused on the parents' status not the child's. Now again, as Justice Thomas is going to point out, this is nonsensical. Every immigration status question focuses on the status of the parents. Quite obviously. a child of a foreign ambassador. We are not focused on your status, we are focused on your parents status. So this is a nonsensical critique, but he says. It was only if a child's parents were domiciled in the United States, they argued, that the child was internationally subject to the jurisdiction of the United States as citizenship clause. In Wong Kim Arks, is a very, very famous case. Wong-Kamark, kind of the most prominent precedent in terms of birthright citizenship. The court rejected that view, concluding no rule of international. law had qualified the ancient rule of citizenship by birth within the Dominion. Justice Gray, who wrote that decision, explained the 14th Amendment was merely declaratory of the fundamental rule of citizenship by birth that prevailed at common law. That same rule he wrote was a force in all the English colonies and continued to prevail under the Constitution. What the court held, according to Justice Roberts, in Wam-Kamark, which is supposedly the governing precedent here, was simple. The citizenship clause incorporated the common law and granted citizenship to born in the United States. Not surprisingly then in the 128 years since, we have repeatedly understood the rule of Wongam Arc to guarantee citizenship to all children born in the United States and subject to its power. Okay, so the dissent written by Justice Thomas says no, no, no, no, no, no. The whole idea here is that you have to have allegiance to the United States. When it says subject to the jurisdiction thereof, you have to be what we'll get to in his dissent, domiciled in the United States in the United States. The United States. You have to owe you have to owe you have to owe you have to owe you have to owe you have to owe you have to owe you have to owe you have to owe United States. No foreign allegiance. Okay, so at some point, according to Thomas, the idea of citizenship broke from that of Great Britain. Robert says no. He says, the trouble is there a scant evidence for this dramatically revisionist view. Certainly no one said that such a change had occurred. For a Congress intent on putting the question of citizenship once and forever to rest. A domicile-based qualification would have introduced significant uncertainty, unlike the easy to apply common law. it would be difficult if not impossible to lay down any general rule of domicile-based citizenship as domicile often depends upon the circumstances of each case the combinations of which are infinite. The Civil Rights Act made citizens of all person born in the United States and not subject to any power and the principal dissent says that a person is not subject to any power only if he is domiciled in the United States because if you're domiciled in the United States, because if you're domiciled in the US then you are not subject to the law, then you are not subject to the law Justice Alito says a person is not subject to any foreign power if and only if no other country would automatically make him a national. Justice Roberts says no, actually you can be subject to two governments at once. Okay, so that is the that is the opinion of the court. The opinion of the court is that essentially you're born in the US. That means that you're a citizen, and that goes all the way back to the British. Empire because we basically just picked up the British idea of citizenship and dumped it wholesale into American law. As we'll see in Justice Thomas's dissent, this is just a terrible take on the history and it's a terrible take on the law. It is a bad take. We'll get to Justice Thomas's dissent in just a second which is masterful and quite lengthy. We'll get to that in a moment because it really explains where everything is going wrong because it absolutely is. Well speaking of things going wrong, here is the reality. a business, you don't have time to waste your time and waste your money. You don't. And when it comes to looking at the various systems of insurance that you have in place, that can waste your time and waste your money in both directions. 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And the dreadscot decision had said black people born in the United States who had no other domicile, right, who had allegiance to the United States, they were not. They were not. They were not subject, they were not. They were not. nothing like that were they citizens or were they not. Dred Scott said no and then the Civil Rights Act of 1866 and the 14th amendment of the Constitution were designed to make sure that blacks were treated as citizens as they should have always been. So he says blacks were entitled to citizenship because they were Americans. They had no other homeland owed no allegiance to any foreign power and were subject to no other authority. They fought and bled in the same battles, gained and gloried in the same victories and were liable to be called upon to defend America in a time war The citizenship clause thus guaranteed them the dignity and glory of American citizenship so as to ensure they would never be treated as second-class under the law. He says the same could not be said for the children of foreign temporary visitors. Foreign temporary visitors were attached to their home country. They lacked similar bonds to this country. They would not be called upon in time of war. Americans consistent with their settler ethos, believed that citizens were the people who called a place home. Accordingly, domicile, a person's legal home played a key role in both state and national citizenship in America in America. person was a citizen of the state where he had his domicile. So none of this, you're born here, you're here for five seconds, you leave, and you're an American citizen. No jus solely, because you're not subject to the king. The way that you become a citizen is you are born here in the United States, or naturalized here in the United States, and you are subject to the jurisdiction thereof, you have domicile in the United States, according to a foreign land, meaning that you are a Mexican citizen, you are a Mexican citizen, you come across the border illegally you drop a baby well you are considered as much a stranger to the country as the father the baby is because on what basis are you American precisely other than you were just born here and again born is not enough and subject to the jurisdiction thereof is the phrase in the 14th amendment he points out the civil rights act again passed before the 14th amendment and saying the same thing because it was passed by the same Congress guaranteed citizenship to persons who were both born in the United States and relevant here not subject to any foreign power. The phrase not subject to any foreign power excluded from citizenship children of foreign temporary visitors were subject to the power of their home nation. Says Justice Thomas, the citizenship clause was consistently interpreted not to apply to the children of foreign temporary visitors who were by definition not domiciled in the United States. Regardless of administration or party, the federal government for decades after ratification regularly denied claims to citizenship by children were born in the United States, When a child was born in the US to parents domiciled abroad, he was not therefore under the statute and the Constitution a citizen of the United States by birth. Again, so that is the case. The case is that actually the United States never adopted the Jusoli British common law rule of citizenship. It never adopted that. It had a failing with regard to its perception of citizenship with regard to black citizens because of slavery that was rectified by the civil civil. Rights Act of 1866 and the 14th Amendment. And then the court just got it wrong in Wong-Kimark. But even there, they didn't really get it wrong. They actually are just being misinterpreted, is the case that Justice Thomas is going to make. And he rips into the court. He says, with due respect, which is always a sign that he's going to now give no due respect. The court's account is not historically accurate. The court says, the citizenship clause incorporated the English feudal principle that subjects owed owed lifetime servitude to the king, who the king, who the king, who the king, who the king, who the king, who the king, who the king, who the king, who the king, who the Americans, unsurprisingly, rejected this futile principle. The court's theory of American citizenship is based on the opinion of a New York assistant vice chancellor in an inheritance dispute called Lynch versus Clark 1844. But the assistant vice chancellor's reasoning, whatever it was worth, was not even