Clarence Thomas is to the Supreme Court what 47 is to the presidency: the wrong person for the wrong time, in fact for any time at all. He just doesn't get it. He never has.
The other day, he moved to declare part of the Constitution, an amendment that we have utilized to give rights to millions, to be in fact unconstitutional (a neat trick) and should lose the meaning which it's inherited over the last 150 years. That's kind of like saying that Santa Claus shouldn't have anything to do with Christmas anymore.
Work with me here: Santa Claus was added to Christmas because he's part of the spirit of Christmas and part of the joy that Christmas is supposed to bring. But I could say, if I were someone's stooge, that because Santa Claus was added to Christmas hundreds of years after Christmas first happened, it shouldn't be included as a celebration of Christmas any longer.
I could say that. And you could dismiss me as dizzy-headed, incredibly backwards, and beyond fuddy-duddyness.
And you'd be right. Because to suddenly declare Santa Claus null and void would be ridiculous. Santa's not only not hurting anyone, but makes Christmas far more enjoyable. It allows parents to work with Christmas, turning it into something larger than it is, modernizing it and allowing it to be adaptable in whatever time you're living.
So, too, with the Fourteenth Amendment, which the Supreme Court was asked to rule, or perhaps, re-rule, upon the other day. The plain wording of that amendment allows any person, indeed every single person, born on American soil to be a citizen of the United States, and of the state in which they reside, for life.
That's what the words say. Period, end of story. But the racists within the 47 regime want to reverse that, as if they actually could because, they say, there are too many non-citizen, non-white mothers who are infiltrating across national lines in Texas, California, New Mexico, and Arizona, who dare to either get pregnant or conclude their pregnancies the natural way, with childbirth (and who don't prefer, can't afford, or get in too late to have an abortion, in a part of the discussion that's never brought up). That way, they fulfill a promise they've obviously made to themselves: to start families with the kinds of opportunities they either never had or are lunging to realize in the best place to do it, the good old USA. If not that, now, since they're hunted like animals by ICE, at least to leave their children in the land of, uh, milk and honey.
Instead of a joyous victory, this has been a growing disaster for 47's tribe. They can't stop the flow at the border, hard as they may try, so they round up whoever looks like they'd potentially be vagrants and/or fugitives from another government's inadequacies and shove them into barbed-wired hog pens en route to, well, somewhere else.
Not that that matters much to them. They promised to be complete bastards to those straining to start new lives, and complete bastards they are.
Suffice it to say that this is one bad look. Three would-be protectors of migrants have been murdered so far, and heaven knows how many more will take place. Worse, ICE and 47 have figured out that their best work be done surreptitiously to skip organizing meant to stop, delay or otherwise deter it.
So Clarence Thomas wants to interrupt that social justice movement by declaring that babies born of non-citizens on American soil are not, in fact, citizens and, I suppose, go through the paperwork, the classes, and the angst of trying to naturalize themselves. So he's not saying that they can't be citizens: he's saying that they have to get in a new kind of line--one that will take at least 18 years to find the front of. So, you know, why bother?
The other irony in his reasoning is that, since the original (huge word there) purpose of the Fourteenth Amendment was to grant the freed slaves their citizenship, that amendment should be obsolete, since its purpose has been fulfilled. There are no more freed slaves alive, so that amendment should be relegated to the ranks of the Three-Fifths Clause and the Twenty-One Years Clause, both relating to the status of slaves. Simple as that, with a swipe of the hands to clean it up. Done.
But that denies the jurisprudence that has resulted in the Fourteenth Amendment's expansion: extensive and flexible utilization of the "equal protection" clause; the "privileges and immunities" clause; and what is called the incorporation of the amendment to cover all protection of the Bill of Rights to every person (not only citizens) who needs it in the U.S. Though the realization of incorporation didn't demonstrably take place until the Warren Court brought it assertively forward in the '50s and '60s, the concept was being worked on in the Supreme Court by the likes of such jurists as Louis Brandeis and Hugo Black, starting in the 1930s. Brandeis, a Jew from Boston, started the tag-team and passed it on to Black, from Alabama and briefly a member of the Ku Klux Klan before FDR snuck him in the back door of nomination during a Senate break one year.
That incorporation is how we have the need for all those accused to get a lawyer (Gideon v. Wainwright); and the idea of being told you can have one, entering a new word into the dictionary: 'mirandized' and its ultimate meaning of having your rights read to you upon arrest (Miranda v. Arizona, in which Miranda was re-tried and found guilty anyhow). And those rights are for everyone, new and old alike.
If those two giants of legal history, from entirely different backgrounds, can agree on that concept, it would take a complete damn fool to try to undo it. It was nearly done on a 5-4 decision though. Clarence Thomas tried, but his opinion is so narrow as to almost pre-empt utilization. Brett Kavanaugh, though, suggested that Congress--nudge, nudge; hint-hint--could pass laws to get around the Fourteenth Amendment.
I suppose it could. It wasn't too long after the Fourteenth Amendment was adopted that the Chinese Exclusion Act was passed (1883), which forbade the emigration of that ethnic group in one of the more blatantly racist acts of Congressional history.
Thanks, Brett, for that encouragement. You'll be remembered. Too.
In the end, incorporation ran into stupidized originalism, and survived. Barely. It is another comment upon the twisted status of this Supreme Court majority's march back into an abandoned past. Sam Alito, it is said, will now bow out and retire just in time for someone of like silliness to replace him--the ultimate MAGA team player ascendant (as opposed to Breyer and Ginsberg, who had the temerity to retire when they damn well pleased, the former's retirement setting up Mitch McConnell's underhanded ruse in 2016). This way, 47 can nominate someone even worse to replace him. Oh, joy. Onward we stumble, lying in wait for November. Oh, and Merry Christmas.
Be well. Be careful. With some luck, I'll see you down the road.
Mister Mark
No comments:
Post a Comment