Trump v. Barbara is a fundamental disaster for American territorial integrity, and therefore for what America is. It constitutionalizes what was previously undecided, and does so in the worst way. In context (given today’s era of mass migration), it basically says that two plus two equals five. In a way, the question at the heart of Barbara not only was long undecided but was necessarily undecided in the relevant period, from 1866 to 1965. This is because it didn’t have to be decided until the era of mass migration arose. Mass migration didn’t become a thing until recent decades, and, in particular, mass illegal immigration from Mexico didn’t occur until the 1960s. The new phenomenon of mass migration, including illegal immigration, is why Barbara is important, and also why it was wrongly decided.

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The Supreme Court danced gingerly around the issue of mass migration (especially but not only illegal immigration), in the sense that it failed to reckon with it altogether, or even to directly mention it. The closest the Court comes to confronting the issue is to repeatedly reference an opinion by Chief Justice John Marshall, who, of course, lived 150 years before mass migration inhabited anyone’s living consciousness.

14th Amendment birthright citizenship is an inheritance of the English common law. Back then, the King always needed more subjects because he needed more soldiers for his army. The common law of jus soli obviously enabled this, whatever else it enabled. What we now call birthright citizenship is, in part, the fruit of imperial ambitions. Bringing us to the present, the Court’s analysis of birthright citizenship depends substantially on the role played by “aliens.” But the Court takes no account, as far as I can see, of the current reality on the ground. “Alien” necessarily signifies something different in an era of mass migration than it does in a pre-mass migration era, such as is found in the long period of common law from which birthright citizenship descends. If it’s true, as the Court appears to suggest, that in American constitutional law “alien” means “alien,” full stop, then the law is “a ass and a idiot” (Charles Dickens), and it needs reforming in the same manner as Bentham successfully urged the reform of various aspects of the common law in the early 19th Century.

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When the Court gave birth to Barbara, it ignored common sense and logic. I believe that Justice Barrett will sooner or later understand the fundamental problems with broad birthright citizenship, and come to regret joining the chief and the three liberals in Barbara’s invitation to America to commit suicide. You’ve heard of “suicide by cop.” Well, Trump v. Barbara is suicide by cop-out.

The above external or sociological considerations aren’t as paramount for visa-holding legal immigrants and foreign students as they are for illegals, though they’re hardly irrelevant to the former because of the shape-shifting convenience of air travel for legal immigrants. For these invited visitors, internal or doctrinal considerations regarding “complete jurisdiction” create the clarity needed for avoiding national suicide. Temporary visitors, such as foreign students and H1-B visa holders, aren’t under complete jurisdiction. The latter can’t be under such jurisdiction insofar as they lack the employment and movement rights that American citizens importantly have under their complete jurisdiction. When H1-B visa holders can have their very own unions, then maybe we can talk about complete jurisdiction.

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To this, the Supreme Court all but says, “Na, na, na, can’t hear you.” It’s ridiculous. On this matter, Trump and not John Roberts is the adult in the room. Adults are supposed to recognize reality. Regarding birthright citizenship, Trump has more affinity with the deliverances of reason than the American legal establishment does.

The dissents recognize reality, whether implicitly or (especially with Justice Alito’s dissent) explicitly. Not to be missed, I must add, is footnote 9 of Alito’s dissent, which made me smile and think that to the victor indeed goes the spoils -- the argumentation victor, in this case.

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More than ever, Congress needs to step up, as President Trump urged it to do right after Barbara was handed down (buttressed by Kavanaugh’s partial dissent). By next January, Congress should pass legislation comprised of three things:

The narrowing of birthright citizenship so as to exclude illegal immigrants and birth tourists, and also visa-holders and foreign students of under ten years of residence.

Making all parts of the bill retroactive for a reasonable minimal period, say six years for every immigrant.

A voluminous appendix offering an in-depth history lesson, aimed at the public, about mass migration and its philosophical and cultural significance in our time, and its difference from the time of the Framers of the 14th Amendment (not to mention the original Framers).

Barbara’s failure to seriously consider how mass migration might affect birthright citizenship makes such a statute relevant, but of course also ripe for adjudication, while pressuring Justices Roberts and Barrett to grapple with the gorilla in the room when, not if, such legislation comes before the Court -- and all the while raising public awareness of the ultimate issue presented, which is whether the era of mass migration requires curtailing birthright citizenship.

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Given that the current Majority Leader is a notable squish, such legislation might be unavailing. But the White House should immediately draw up a sample birthright citizenship bill, without the appendix, there being no time for that, and ask Republicans campaigning for Congress to brandish it about on the campaign trail. This will be politically educative and a boon to the public.

This sample legislation, bearing the imprimatur of President Trump, will help Americans see that we’re a land of immigrants in the rear-view mirror, but viewed through the windshield, and peering ahead at a long road only partly traveled, we’re a land of settlers. As Frederick Jackson Turner’s The Frontier in American History indicates, the immigrants of the mid-to-late 19th Century to the early 20th Century were semi-settlers (the term is mine, not Turner’s). They weren’t immigrants in the sense familiar to us today, both because of the way the modern welfare state distorts natural immigration dynamics, and because of the conjunction of proximity to Mexico with the Hart-Celler Act (1965) -- legislation which single-handedly but (supposedly) unintentionally created mass illegal immigration on our southern border.

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My personal advice? It’s to Trump. Mr. President, pick up Frederick Jackson Turner’s famous book. Read it. Quote it. Share your thoughts about what you read there with the American people. For the next six months, keep talking about the Everyman historian of America’s great period of growth -- and what that historical experience implies for immigration and birthright citizenship. If your enemies want to think you’re being indecently Machiavellian by reading a book, let them. Someday it will be clear to everyone that the proponents of broad birthright citizenship are on the wrong side of history. We can only hope that by then it won’t be too late.

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