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So it's been one week since the Supreme Court voted to uphold birthright citizenship and Republicans are frustrated, understandably so. Justice Alito said, "This is one of the most important decisions in the history of the court, and in my judgment, the court has made a serious mistake." Justice Thomas echoed that, saying, "I'm not sure that today's opinion will stand the test of time." It didn't take long for Justice Katanji Brown Jackson to read Thomas' dissent, then accuse him of racism. Of course, the ultimate irony is that for all the talk about the detestable Dred Scott decision, the government and Thomas propose a return to its core tenant. It wasn't just Jackson, the entire Democrat-based dogpiled on Justice Thomas, calling him a DEI hire. When he was appointed to the Supreme Court, there's no way in hell he should have got that job. He's literally a DEI hire, and now a man like that who knows that, who feels, you know, who feels mediocre, who feels small, is going to exact that against everybody, and that's just kind of what's happening now. There's nothing you're going to ask him to do that would hurt black or brown people or women he wouldn't do. How do you think he looks in the mirror or sleeps at night? Probably very well, I guess, I guess. I think Clarence Thomas, if he looks in the mirror and gets up in the middle of the night and sees a black man in the mirror, he'll call him a police. Disgusting. Democrats are pressed over the Supreme Court allowing states to ban men from women's sports, and Republicans are frustrated over the court upholding birthright citizenship. Both parties lost, and both parties won last week. And now, both parties want to change in the Supreme Court. Republicans have a plan. When one justice resigns, they replace that justice with a new one. He's done a wonderful job as a senator, I highly respect it. In fact, somebody said, would you ever appoint him to the United States Supreme Court? Because he's a brilliant lawyer. No, if I was having a hard time with getting the votes, I would appoint Ted Cruz. I get 100% guarantee. Democrats, they want to pack the court. They want to trash the whole system. We talk about the idea of Supreme Court reform, which includes expanding the Supreme Court. I do believe if you combine term limits on the court and the expansion of the court, where every president gets two appointees, you would depoliticize this. The Republicans stole two Supreme Court seats in 2016 and 2020. That's what's giving them their supermajority. The only way to solve this problem in a very short period of time is expand the Supreme Court. Neither party is satisfied with last week's decisions, but it's a reminder the Supreme Court was never created to serve a political party. It's meant to uphold the Constitution, and that's exactly what it's doing.

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You know, ladies and gentlemen, this is my pocket copy of the U.S. Constitution and the Declaration of Independence. Now, in the last half century, I've probably read this a thousand times. I've looked around it, those who wrote it, the history at the time, what they meant, depending on which words, which phrase, which section, which clause we're dealing with. And I went back and I took a look earlier today, and I cannot find this phrase, birthright citizenship. I have looked everywhere. I've looked in the penumbras and emanations, and I can't find it. I've looked at the invisible ink. I can't find it. Birthright citizenship. And yet, last week, there was a big argument in front of the Supreme Court. And the justices, a couple of them were really wise, but most of them were like, kind of strange, getting into policy and politics and quirky examples and things of that sort. So I thought I'd bring us back down to earth and deal with this, because sometimes lawyers, particularly lawyers with black robes, who think they're really smart, they get carried away with themselves. Let's get back to brass tacks here. Let's get back to the facts. You ready? We have this Dred Scott decision in 1857. It was a diabolical decision. And it held in short that blacks, whether enslaved or free, were not US citizens. Now the court led by Chief Justice Roger Taney ruled that black people, descendants of imported slaves, were not included in the citizenship definition of the Constitution. And I quote, had no rights which the white man was bound to respect. Now that was a seven to two decision and the decision helped trigger the Civil War, our costliest war with over 700,000 casualties that almost destroyed the country. That war was fought for two reasons, to keep the union together and to eliminate slavery. So following the Civil War, after these horrendous battles and these horrendous casualties and so forth, certain formally Confederate states, they passed restrictive laws called Black Codes. Now what did these Black Codes do? They limited the freedoms of former slaves. Despite the Civil War, it was also a time when the Klan came into being founded by former Confederate generals and so forth. Well, Congress had already adopted the 13th Amendment in 1865, right at the end of the Civil War, that formally abolished slavery throughout the country. But they determined that the 13th Amendment alone was obviously not enough to guarantee freed slaves their civil liberties, including citizenship and equal rights and equal protection and due process. So Congress took action, after all it was controlled by the Republicans. So Congress in 1866 passed our first Civil Rights Act, the Civil Rights Act of 1866. Now that act formally declared that all persons born in the United States, anywhere in the United States except Indians, were citizens, granting them equal protection under federal law. Why not Indians or Native Americans? Because in many cases the tribes were considered their own nations, their own nations. You could be a citizen of two nations at the same time, especially within the Americas. So they passed that. Now what did it state in relevant part? The Civil Rights Act of 1866, which is crucially relevant to this discussion. "Be it enacted that all persons born in the United States and not subject to any foreign power." In other words, not a citizen of another country. "Excluding Indians not taxed are hereby declared to be citizens of the United States." This again was aimed at what? At the former slaves, their family, their children, their future children, and the black codes in these southern states that were preventing the implementation of equal rights and citizenship. "And such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every state and territory in the United States, to make and enforce contracts, to sue, to be parties, and give evidence, to inherit, to purchase, to sell, to hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings, for the security of every person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other any law, statute, ordinance, regulation, or custom to the contrary notwithstanding." A complete repudiation of the Dred Scott and a complete repudiation of the black codes. So this act was intended to reverse the Supreme Court's decision and eliminate these black codes. So they passed the Civil Rights Act of 1866 and the overwhelmingly Republican Congress. And what happens? Well, the bill goes to a Democrat by the name of Andrew Johnson, who'd been Vice President, but became President on the assassination of Abraham Lincoln. He was a Democrat from Tennessee. So President Johnson vetoed the Civil Rights Act of 1866. But there were enough Republicans in Congress to override his veto, so it remained the law. But the Republican Congress was concerned about the ease with which a law could be changed. It even eliminated down the road. They saw what Johnson tried to do. Thus was born the impetus for the 14th Amendment. Their purpose was to constitutionalize the Civil Rights Act of 1866. How do we know this? Because they told us this. John A. Bingham, B-I-N-G-H-A-M, these are great patriots. He was a House Republican from Ohio. In the House, he was the main drafter considered the Madison of the 14th Amendment of the language in Section 1 of the 14th Amendment, which includes the Citizenship Clause. He was a member of the Joint Committee on Reconstruction in the 39th Congress, which formulated the amendment to provide a constitutional basis for civil rights following the Civil War. That is the constitutionalization of the 1866 Civil Rights Act. Thaddeus Stevens of Pennsylvania, a well-known, famous, so-called radical Republican and Republican leader in the House, helped him draft the amendment and helped him usher it through the committee. On the other side of the Capitol, on the Senate, Senator Lyman Trumbull, a Republican of Illinois, notice they're all Republicans, he had drafted the 13th Amendment that had been passed in 1865, abolishing slavery formally, and was a contributor, if not the main writer, of the Civil Rights Act of 1866. He was a key figure also in drafting that process of drafting of the 14th Amendment to the Constitution. Trumbull. Then we have Senator Jacob Howard, a Republican of Michigan, who introduced the amendment in the Senate, declaring, among other things, it would extend the Bill of Rights to the states, every state. Now what exactly does Section 1 of the 14th Amendment say? The language that is being debated, that was heard in front of the Supreme Court, which they say gave birth to birthright citizenship. Well, we know it doesn't say that. What exactly does it say? Quote, right here, in my little pocket Constitution, "All persons born or naturalized in the United States, born or naturalized in the United States, and subject to the jurisdiction thereof." Remember, in the Civil Rights Act a few years earlier, which is intended to constitutionalize, it talked about having no allegiance to a foreign country or foreign nation. Here, they basically implement that by saying subject to the jurisdiction thereof, meaning subject to the United States and the jurisdiction of the United States. "Are citizens of the United States and the state wherein they reside?" Remember, they're doing this because of these black codes in these formerly Confederate states. "They're citizens of the United States and of the citizen wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law or denied to any person within its jurisdiction the equal protection of the laws." Boy, that doesn't sound like it has a lot to do with immigration, let alone illegal immigrants, let alone the children of illegal immigrants in the United States, because it didn't.

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about birth tourism. It's booming. In 2023, over 300,000 babies were born to unauthorized or legal temporary immigrant mothers. Add that in total. It's 9% of the US births in that given year. When we look at how that shakes out over time, a clear spike in the number of births to unauthorized immigrant mothers in the United States from 2019 to 2023. That's unprecedented. It's unforeseen. It's undeniable. But Chief Justice Roberts, I'm convinced. It certainly wasn't a problem in the 19th century. No, but of course, we're in a new world now, as Justice Alita pointed out, to where 8 billion people are one plane ride away from having a child as a US citizen. Well, it's a new world. It's the same constitution.

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Let's bring in Mark Smith, a constitutional attorney and a member of the Supreme Court bar. Are you making any predictions, Mark, about how the Supreme Court will see this case and rule on it? I think there's an excellent chance this is going to be the biggest victory of Donald Trump's career as a politician, frankly, to actually fix a constitutional wrong that has been a wrong for over a hundred years, largely because no one has had standing to sue over it until Donald Trump's brilliant move to enact this executive order, which finally, finally gave rise to the opportunity to get this issue before the U.S. Supreme Court. Up until that time, people did not have standing to sue because the only people that sort of got directly impacted by this, if you're born in the America, you're automatically an American citizen, they were beneficiary. So they obviously were not going to sue over this. And now because of Donald Trump, we're in front of the Supreme Court and hopefully we're going to get a good outcome in favor of the Constitution. John Dupree was on Fox News Sunday earlier today. He had this to say about how he sees the case. Listen. The birthright citizenship, like it or not, is enshrined in the Constitution. So I do think that the administration is going to have a bit of an uphill battle. But I will say this, having read the briefs, looked at what the administration is arguing, they have presented a much stronger, more compelling argument against birthright citizenship than I had thought coming into this. I don't know that it's going to be enough to get five votes in their favor, but they've made it a close case. Wasn't birthright citizenship originally supposed to help those who were slaves or children of slaves be recognized as U.S. citizens? That's right, John. The reality is that after the Civil War, the United States adopted the 14th Amendment. In the 14th Amendment's text, literally in the text, John, there's two components that have to be satisfied for you to be a citizen. The first is, yes, you have to be born in the United States, physically born in the United States. That's step one. But that's not the only step. You also have to be what's known as subject to the jurisdiction thereof. That is the text of the 14th Amendment that the left in America likes to pretend is nothing more than an inkblot. But the reality is that subject to the jurisdiction thereof, John, is very important because what it says is if you're born, you have to be born in the United States and you have to be loyal to the United States, which means you're not loyal to a foreign power. Now, if you're the child of illegal aliens or if your parents bring you here on a holiday and you're born here while your parents intend to go back to China, let's say, you're not loyal to the United States as understood by the law. You're beholden to another foreign country. And that is going all the way back, which, by the way, is why Native Americans were not citizens under the 14th Amendment. It required a change in the statutory law in the 20th century, John, to make Native Americans lawful U.S. citizens because although they were in the United States at the time of the 1868 14th Amendment, they were not loyal to the United States because they were loyal to their respective tribes. Jonathan Turley is a Fox News contributor, also a George Washington University law professor. Here's how he sees the argument. When the 14th Amendment was drafted, some of the drafters said explicitly that it does not allow for birthright citizenship. The problem are these six words, this clause, put in the middle of an otherwise clear sentence. But the key is that those words were not in that sentence in the original draft. They were intentionally inserted. So you can't just treat them as superfluous. They were inserted for a reason. And I think that there are compelling arguments on both sides here. So he seems to say that the drafters of the 14th Amendment made it pretty clear. Well, I think it's even clearer that in favor of Donald Trump, because in 1866, John, there was something called the Civil Rights Act passed by Congress. In it, it says to be a U.S. citizen, you have to be born in the United States and you cannot be beholden to a foreign power. After that law was passed, Congress realized that another Congress could come down the pike and change the law, basically making African-American, former African-American slaves no longer citizens. So to make sure that did not happen, they decided to take that Civil Rights Act of 1866 and enshrined it in the Constitution. And that is what the 14th Amendment became, which is why the phrase subject to the jurisdiction thereof is essentially embraced or comes out of that Civil Rights Act of 1866 that literally says you cannot be subject to a foreign power. It all turns on, are you and your parents loyal to the United States? And if you're just passing through on the way to Hawaii for fun or you're broke into the country illegally, that does not make you loyal to the United States. And therefore you're not subject to the jurisdiction of the United States. And thus you're not a citizen under the text of the 14th Amendment. And I think that's what the Supreme Court is going to say. And the only reason, John, that we haven't said it before is because there's never been an opportunity to get in front of the courts because no one had standing to raise these kinds of arguments until now. Jonathan Turley says that virtually no nation in Europe allows birthright citizenship. Are you aware of any country in the world that does aside from ours? No, of course not. The most valuable asset on the planet period is becoming a United States citizen. You will get to be a citizen of the greatest country that has ever existed in mankind's history. Right. That's the reality of it. So to think that you would hand these out just because you happen to be born here because your parents broke into the country is simply absurd. You know, U.S. citizenship is a lot more than just taking free candy at the doctor's office. It requires a lot more than that. Specifically, it requires loyalty to the country. This is your home. And it can't just be that your parents are passing through illegally or otherwise, and you happen to get born here. That is simply not enough to give you U.S. citizenship. And the text of the 14th Amendment sort of proves that out, as does the history. We'll see what the Supreme Court decides. It's going to be a fascinating week and a fascinating term. Mark Smith, thank you.

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