The Constitution Speaks With Richard Wilson

Hot Topic Bold Talk | Richard Wilson | Constitution

Every generation inherits the Constitution.

But every generation must also decide whether it truly understands it.

Few Supreme Court decisions in recent memory have generated as much public attention—or as much misunderstanding—as Trump v. Barbara. Headlines quickly reduced the case to a debate over birthright citizenship. Political commentators rushed to declare winners and losers. Social media transformed a complex constitutional decision into competing sound bites.

Yet beneath the politics lies something far more important.

This case is ultimately about how we interpret the Constitution itself.

What did the authors of the Fourteenth Amendment actually intend?

What does the phrase “subject to the jurisdiction thereof” really mean?

Can history, precedent, and constitutional text still guide the Court in an era of intense political division?

And why did five Justices reach one conclusion while four believed history demanded another?

In this episode of Hot Topic, Bold Talk, Dr. Jackalyn Rainosek welcomes attorney Richard G. Wilson for an in-depth examination of one of the most significant constitutional decisions of our time.

Rather than approaching the case as a political controversy, they invite listeners into the remarkable history behind the Supreme Court’s opinion. Their conversation traces the origins of birthright citizenship from English common law through the founding of the Republic, the tragedy of Dred Scott v. Sandford, the Civil Rights Act of 1866, the adoption of the Fourteenth Amendment, and the landmark decision in United States v. Wong Kim Ark. Along the way, they examine how those historical foundations shaped the Court’s decision in Trump v. Barbara.

The discussion also explores the questions that make this decision so fascinating.

Why did the Court conclude that children born in the United States to parents who are temporarily or unlawfully present are citizens under the Fourteenth Amendment? What historical evidence persuaded the majority? Why did the dissenting Justices rely upon the concept of domicile, and where did that interpretation originate? If the constitutional language appears straightforward, why was the Court divided by a narrow 5–4 vote? And what insights can be drawn from Justice Jackson’s separate opinion and Justice Kavanaugh’s concurrence?

Throughout the episode, Richard Wilson explains the legal principles with clarity and precision, while Dr. Rainosek asks the thoughtful questions that many Americans are asking themselves. Together, they transform a complex Supreme Court opinion into a conversation that is engaging, understandable, and deeply relevant to every citizen.

This is not a podcast about political parties.

It is not a debate about personalities.

It is an exploration of constitutional history, judicial reasoning, and the enduring principles that define American citizenship.

Whether you agree with the Court’s decision or not, understanding the legal reasoning behind it is essential for anyone who values constitutional government.

Because the Constitution belongs to every American.

And every American deserves the opportunity to understand how it continues to shape our nation.

Join Dr. Jackalyn Rainosek and attorney Richard G. Wilson for Podcast 183 as they explore Trump v. Barbara—a decision that reaches beyond today’s headlines to examine the history, meaning, and future of one of our nation’s most important constitutional guarantees.

Some Supreme Court decisions resolve legal disputes.

Others become part of American history.

This is one of them.

Episode Summary Points:

  • The 2025 Executive Order: We analyze the January 20th Executive Order that attempted to restrict birthright citizenship for children of undocumented immigrants and the immediate legal challenges that followed.
  • The Barbara v. Trump Case: Explore how this landmark lawsuit challenged the executive order, arguing that it violated both the 14th Amendment to the Constitution and the Immigration and Nationality Act.
  • Understanding “Subject to the Jurisdiction”: We break down the precise constitutional language that guarantees birthright citizenship and why legal experts argue it is unambiguous, regardless of parental status or documentation.
  • Historical Roots of Jus Soli: Richard Wilson discusses Chief Justice Roberts’s historical analysis, tracing the principle of “right of the soil” from English common law to its fundamental place in the American Republic.
  • A Fragile Precedent: While the Supreme Court ruled 5-4 in favor of birthright citizenship, we discuss why the fragility of this decision remains a concern, given the Court’s recent trend of overturning long-standing precedents.
  • The Concurring Opinion: We highlight the importance of Justice Jackson and Justice Sotomayor’s concurring opinion, which provides a vital counter-perspective on the 14th Amendment’s intent to protect all minorities.

—

Watch the episode here

Listen to the podcast here

The Constitution Speaks With Richard Wilson

What The Supreme Court’s Birthright Citizenship Decision Really Means For America

The Legal Battle Over Birthright Citizenship

I’m so happy to have my friend, Richard Wilson on with me because he’s the one that’s going to help you understand what happened with the Supreme Court with the birthright case. It has a lot of history to it and a number of things, which I know he’s going to talk about. You’ll have a much better understanding. We’re going to talk about the dissent and some of the things that we’ve realized about what’s going on. Richard, what I want you to do is just start out and give us some background for Barbara versus Trump.

Thank you for having me on. The very first day President Trump was in office for a second term on January 20th at the 2025, he signed an Executive Order. The order reads in part, “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States.”

“When that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said persons birth or when that person’s mother’s presence in the United States, at the time of said birth, was lawful but temporary such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

The whole concept or idea behind this order and it was to apply to children born 30 days after the date of the order, was going forward to eliminate citizenship for the children of undocumented immigrants who were born in the United States. That was the intention of the executive order. As soon as the order was signed, multiple lawsuits were filed. The State of Washington filed a lawsuit against the federal government seeking to hold that executive order unconstitutional.

The State of Massachusetts similarly filed a lawsuit seeking to hold that executive order unconstitutional, which was joined by several other states. In particular, Barbara v. Trump involved, I believe it is a Honduran woman, who was using her first name only for safety reasons. For fear that she might be subject to violence if people knew who she was. It basically concerned women who were pregnant or women of children born more than 30 days after the order went into effect who would be affected by the order.

Hot Topic Bold Talk | Richard Wilson | Constitution

They were suing on behalf of their children. What the lawsuit alleged there was that Trump’s executive order violated both the 14th Amendment to the United States Constitution, as well as the Immigration and Nationality Act. Which is a law passed in this country. It’s 8 USC § 1401a. That’s how we got to this. The court granted it with Barbara for legal reasons we won’t get into here. The plan sought class certification for all individuals affected by the order, which the court granted and the court then entered a temporary injunction.

I want to deviate for a moment because I thought it was interesting. I want to mention, is she part of the case in the New Hampshire-Indonesia community support case?

That is a separate case, but here was another case. If I recall the history correctly, in that case, the judge entered an injunction applying to all people affected by the executive order. That case had previously gone up to the Supreme Court and under the shadow docket. Which you and I previously discussed. The Supreme Court set aside that injunction saying, “Injunctions can only apply to the parties to the litigation.”

Interestingly enough, in that order, Kavanaugh wrote that class actions would certify a class of all people affected by the order. Everyone’s complaining about the multiple lawsuits that would have to be filed to make this be effective in all 50 states. Class certification under rule 23 would be a method to accomplish the same result as the court tried to in the New Hampshire case. Ultimately, the Barbara was a separate case but they both concerned the executive order and Birthright citizenship under the 14th Amendment.

Thank you. They both were concerned about the fact that there was some people in their community that were pregnant and were not citizens of the United States. They were immigrants and they lived here for a while. They were worried about their children, what the impact would be. There’s something important and I know that you can explain this.

The language in the 14th Amendment supposedly is different from the law that you just mentioned. Could you read the law to us the 14th Amendment and talk about it? To me, some of the justices that have been in dissent seem to be messing with the language when I don’t think it’s that complex. Please, Richard, give us some understanding.

Decoding The 14th Amendment And Modern Law

Let’s work our way up to the most important stuff. I’ll start with the law. Essentially, the law and the language in that law have been modeled after the 14th Amendment. 1401a reads, “The following shall be Nationals and citizens of the United States at Birth. A) A person born in the United States and subject to the jurisdiction thereof.” The 14th Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The words aren’t in exactly the same order, but the operating language of both the law and the 14th Amendment of the Constitution are the same. As I read it, the operative terms are the same. Both read persons born in the United States and both read subject to the jurisdiction thereof. Both the statute and the 14th Amendment make those people citizens of the United States. To me, the operative language is the same. I don’t see a difference in it at all.

I was just saying that it seems to me, the only thing I see added is naturalized in the 14th Amendment that’s not in the law itself. This has been common practice since the start of our country. In many ways, it’s very difficult to imagine someone who wants to take this away from people that are now living in the United States no matter what their status is.

That’s largely what they were trying to do. With Trump v. Barbara, the way it came to be the Supreme Court, the names were changed. Barbara filed the lawsuit in District Court. In District Court, as I mentioned, the judge granted the injunction temporary relief. It’s just like the Illinois National Guard case. Once again, we’re dealing with a temporary order and not a final judgment. What happened in the Barbara case is when the class was certified and the judge put into effect an injunction, which completely kept the executive order from having any operative effect. Trump then appealed that order directly to the Supreme Court.

He asked the Supreme Court to take it up immediately without going to an intermediate court of appeals and the Supreme Court did so. We talked about other cases. To me, probably the best opinion explaining why children born to undocumented immigrants would be citizens of the United States is the opinion from New Hampshire. The one you referred to a while ago. Again, we’re talking about not even a full sentence, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

The court in that New Hampshire case explained that there is no reason to delve into the amendments in Acton history or is explained below section 1401’s legislative history or to employ other tools of interpretation to discern that subject to the jurisdiction thereof, refers to all babies born on US soil aside from the enumerated exceptions because the amendment and statute do so unambiguously. The idea under the law is, if something is ambiguous, you go to other sources outside of that document to try to interpret it.

What the court in New Hampshire was saying and I agree with it wholeheartedly is, “We don’t have to go to history. We don’t have to go to legislative debate when the amendment was put into effect. We don’t have to look at any of this because there’s only one basic common sense meaning to this sentence or partial sentence. We’re not going to delve into all of history. We’re telling you now that children born in the United States to undocumented immigrants are citizens of the United States.” To me, it is that simple. Although, while it is that simple, Roberts, nonetheless and his majority opinion, took 26 pages, in my opinion, to state the obvious.

[bctt tweet=”We don’t have to go to history. We don’t have to go to legislative debate. We’re telling you now that children born in the United States to undocumented immigrants are citizens of the United States.” via=”no”]

Something that I thought of while reading all the documents you sent me and going through the very details of Barbara versus Trump. Do you think it’s important to look at what Robert did as far as the historical analysis he did? I think Richard gave me at least a better understanding of what was happening? I’m not an expert in English common law, but what I read made a lot of sense. I’m asking you to start and let’s do a little historical analysis because he starts on page one.

I’m going to give it to you to explain the English common law and so forth or you can add do when I’m reading children. He said, “Children born in the United States to parents unlawfully or temporarily present are subject to the jurisdiction of the United States and are citizens at birth under the 14th Amendments as citizen clause.” Now, he goes in and he states that very clearly. Then, he goes in to his historical analysis.

I appreciated all the stories that he told about English common law and how it came to the United States and it has been a part of our Republic ever since we started. To have someone questioned the birthright of people that are on this Earth and are born here is appalling to me. Would you explain some of the English common law? It will be helpful to the audience to understand it.

English Common Law And The Foundations Of Citizenship

Without explaining all 10 or 15 pages where Justice Roberts does so, because then we would end up cutting off the episode without us getting to the point. I will try and summarize it. English common law, when you get down to it, in some aspects serves as the foundation of the American form of government and the Constitution. A lot of the basic principles that gave birth to this country were first enunciated in the Magna Carta several years ago.

While there are some principles of English common law from that age that obviously were not the most prudent ideas, concepts of women as property and things of that nature. What I’m saying is, not all English common law was necessarily good. There were some good aspects to it. The one that Roberts explores the most is the idea that, “If I am born in a country, I am a citizen of that country. I owe something to that country. It comes not because my parents are citizens of that country but because I was born on the soil of that country. The place of my birth fixes the place of my citizenship.”

[bctt tweet=”If I am born in a country, I am a citizen of that country. It comes not because my parents are citizens of that country but because I was born on the soil of that country. The place of my birth fixes the place of my citizenship.” via=”no”]

It’s that particular aspect of the English common law that Roberts goes into much greater detail explaining. He takes that up through other circumstances where, in the past, this country has varied or attempted to diverge from that basic concept. The contrary, in particular, with the 14th Amendment has embedded that concept into our constitution.

Before we go on to some other things that we’ve discussed and are going to talk about. It’s very important maybe now if you could talk about jurisdiction and you may want to get into it later. If I am born in the State of Texas, I am a US citizen. It so happens my mother’s family was an immigrant from England and Scotland many years ago. The thing is, I am responsible for the country where I’m born in. At some point I would like for you to go into more about that and I think you will as we go later on, but you can do it now or later.

Let’s talk about it, and I touched upon that, the soil or Jus soli. Again, the concept is one of citizenship attached based on being born in or on the land. It proves to be very important when you look at ways, in the past, people in this country have tried to move away from that concept and moved to concepts regarding the granting of rights independent of where you were born. That concept of the location of birth is very important for two reasons. First, it doesn’t have a skin color.

The ground is the ground. I know people can say, “It can be sand. It could be dirt. It could be grass.” The point is, it doesn’t matter what your skin color is so long as you were born in this country. Several years ago, the country tried to make a big deal of that, of whether or not when you were born, your parents possessed certain rights and were citizens, which were then conferred to you. That brings me to the second important aspect of the concept of the soil as opposed to the individual.

That’s why it focuses on to me what’s most important. We’re determining the citizenship of the child. This concept focuses on the child. The location of the child’s birth. It doesn’t focus on the parents or the parent’s intent. To take it to the extreme. Let’s say you have two children that are born here. One child’s parents leave and return to the country from which they came. The other child’s parents remain here for eighteen years.

What you’re doing through this concept of rights or is the dissent focuses on domicile, an intent to be subject to the laws of that country. You’re imposing the citizenship or non-citizenship of the child based upon decisions they have no part in, decisions their parents make. That’s the second aspect of citizenship traveling with the land. We’re not focusing on the intent of someone other than the child and on anything else like nationality or skin color. That second aspect is important when you look at the Dred Scott case.

Historical Lessons: From Dred Scott To The 14th Amendment

The whole concept they are was that, since Scott was deemed to be property under the laws of a particular state. He was not a citizen. As a result, he could not sue for his freedom in the courts. It is considered by pretty much any law student to be the worst Supreme Court case ever to decide it. Whatever the political intentions may have been of the court at that time, everyone realizes and acknowledges now that that case was wrong.

[bctt tweet=”Whatever the political intentions may have been of the court at that time, everyone realizes and acknowledges now that the Dred Scott case was wrong.” via=”no”]

I would also point out and I’m not going to defend that court or Justice Taney. We also have to remember that the language of the Constitution has changed over time. One of those changes was brought about by the 14th Amendment. Before the 14th Amendment in Article 1 Section 2 of the Constitution, the third clause of the Constitution used to read in determining how many members of Congress particular States would get, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

All other persons to whom the original Constitution referred were slaves. Originally in the Constitution, when you determined representative membership, you didn’t count slaves as a full person. To get back to it after the Dred Scott opinion and after the Civil War, Congress initially passed a law to determine the citizenship of people in the country who were citizens of the country. The ideal was to try to put Dred Scott into the past. The law was enacted and people began to raise questions about the language used in that statute.

One of the one of the Constitutional law professors pointed out that the language used there focused on things like residents. The other issue was, if we’ve got a supreme court opinion saying this. Is the court just going to tell us that our law and statute is unconstitutional? The remedy to that was the 14th Amendment. While the 14th Amendment includes so much more than this citizenship requirement, it starts with this citizenship requirement. That’s how that all came about. Again, it finds its origins in being with the soil as opposed to some other requirement that could be massaged to exclude people based upon their race. Several years ago, it was the color of your skin. It was being Black. Now, with this executive order, the focus is shifted more towards Hispanics.

Also, the shift has been dramatic about making judgments about any immigrants. There is one thing that I thought was interesting in his history. Was that Robert said, “The Congress adopts, bates ideas and puts it into the Civil Rights Act of 1966.” I think that particular act is important because it clarifies. I don’t know whether you’re saying this act in particular is one that some legal experts have concerns about what was put in that.

What I’m talking about is the statute that predated the 14th Amendment after the end of the Civil War. What I’m talking about is a statute from 160 years ago. Not the statue that was being interpreted by the courts in the opinion yesterday.

That’s very true. I do think that in his history, he does talk about the Civil Rights Act of 1866 and that becomes a part of Wong Kim Ark. I’m not sure, but in his explanations on page 6 and 7, Robert does something. Do you need to add any more about what he was saying there?

I’m looking at it. The common law made no distinction on account of race or color, which is what we’ve been talking about. As the Civil War approached, more and more Southern states sought to deny citizenship to Black Americans and openly rejected the common law to achieve that result. It was not the place of a man’s birth that made him a citizen, but the rights and privileges he might be entitled to enjoy. That’s exactly what we’ve discussed. That was the concept behind Dred Scott. It was because he was born into a state where he was a slave and not a free man under the Constitution. He wasn’t a citizen. He didn’t count.

I’m very thankful that the 14th Amendment exists now because it’s very clear. I also think the Dred Scott case was a real effort for the Southern states to maintain slavery. What we should do though because the Wong Kim Ark is a case that certainly moves the history for us about birthright for children.

The Legacy Of Wong Kim Ark And Precedent

I agree with you. The obvious thing with Wong Kim Ark is, you’re dealing with the application there of the 14th Amendment to someone who said, “I’m a citizen. I was born in the country,” but he’s someone who was not a former slave or not the child of parents who were former slaves. Wong Kim Ark was born in the West to Chinese immigrants who were in the country. He left the country and attempted to return and was denied re-entry based on the allegation that he wasn’t a citizen.

His whole point was, “It’s clear I was born here. I was raised here. I’ve lived here. I’m a citizen.” In that case, the United States Supreme Court interpreted the very same amendment to the Constitution. Mind you, that was almost 130 years ago. They said, “Wong Kim Ark is a citizen.” In discussing the 14th Amendment, they pointed out that there were certain exceptions to people that were citizens. One of them were Native Americans born on tribal lands. Another example was the children of diplomats, children born to an occupying force that had invaded the country during a time of war and the children born in the occupied territory.

An additional example might have been, a child born on a ship in territorial waters. Each of those four examples, I don’t know that they would be all inclusive of exceptions subject to the jurisdiction thereof. With each of those examples, if you’ve got children born on tribal lands and they are raised on tribal lands under tribal law, the impediment there becomes subject to the jurisdiction thereof. It would be the same with children of ambassadors. If you visit the Mexican Consulate or the British Consulate or the French Consulate, when you step through the gate, you are stepping onto foreign territory. The consulate occupied is deemed to be France or England or Mexico.

Each of these examples involve circumstances where the individual would not be subject to the jurisdiction of the United States. That’s the clear example or the clear basis for those distinctions that the justice made in the Wong Kim Ark case. Interestingly enough, the way it’s been explained to me is that the 14th Amendment is this minimum of people that are citizens. Ultimately, Congress can expand who was a citizen through statute. The Congress and the President can’t contract it below that minimum guarantee in the 14th Amendment, but they can make additional people outside of that scope citizens.

[bctt tweet=”The 14th Amendment is this minimum of people that are citizens. Ultimately, Congress can expand who was a citizen through statute, but the Congress and the President can’t contract it below that minimum guarantee.” via=”no”]

Through one of the later immigration laws, it has been determined or declared that children born on tribal lands are US citizens. That would be an example under Wong Kim Ark that’s arguably no longer applicable. They are citizens, although the distinction would be their citizens under a law that expanded the scope of citizenship. It did not look to contract or change the 14th Amendment. In that case, dealing with an American of Chinese dissent born in the country and not of African-American dissent. The court decided pretty clearly that he is a citizen of the United States.

That’s the important thing. One of the shocking things about Trump’s executive order is, there has never been a president of the United States that’s ever questioned his birthright. It’s concerning but yet, we do have an opinion. My question to you is, what surprised you about this opinion and then we’ll go back and talk about the opinion.

Analyzing The 5-4 Ruling And Political Agendas

With regard to your prior statement, I would agree with you in relation to presidents of modern times. Let’s go ahead and carve out the 18th and early 19th centuries prior. Again, I focused on that short simple language from the New Hampshire opinion. What shocks me the most is that this was a 5-4 decision in favor of birthright citizenship under the 14th Amendment of the Constitution. Now, our readers are learning that it’s a 6-3 opinion. Kavanaugh voted with the majority but Kavanaugh voted with the majority only with respect to the Immigration and Naturalization Act.

Kavanaugh, when touching upon the Constitution, disagrees with the majority about the 14th Amendment establishing birthright citizenship. It shocks me that something that should be so simple was a 5-4 opinion by the justices of this country’s highest court. What we’re talking about here is, you lose one judge in the majority and you have an ultra conservative judge appointed in that individual’s place and they could very well go back. A year or two from now, if the court changed in a certain way, they might very well go back and say, “We got it wrong. The 14th Amendment of the Constitution doesn’t provide for Birthright Citizenship to everyone born on the soil in the United States.”

The subject to the jurisdiction thereof means something else and were overruling Barbara. The current composition of this court has got done away with quite a few very old historical opinions that legally were seen as being stared decisive. They were opinions that stand and must be followed by the courts. Dobbs overruled Roe v. Wade. In 2025, the court did away with Chevron deference, where we’re supposed to respect the authority of experts within the executive branch when they make determination.

The court over ruled a 100-year-old case called Humphreys executor, which understood that certain executive appointments because their nature was more legislative in acting rules and regulations that determines how businesses can operate in the United States and things of that nature. Humphries executors said that the president can’t just remove executive appointments for any reason or whatsoever. That’s not the case anymore.

In the slaughter case, the court overruled Humphrey’s executor and said, “The President can terminate executive appointments at will,” with the one exception being Lisa Cook’s case. The court said, “The Federal Reserve Bank is an independent agency and the President can’t remove Federal Reserve Governors at will. It’s got to be for a cause. It has to follow due process.” Essentially, the court has done away with all of this established case law that has determined rulings in this country, in some cases, for 100 years.

It also has determined the nature in which laws are written with these basic understandings that are being pulled right out from under us. The point with it being 5-4 is with one particular change of a justice that makes up the majority of this court. We could be looking at revisiting this issue in a couple of years. That’s frightening to me. It’s upsetting to me that something I view as so basic, something so simple, something that the court in New Hampshire said, “It’s unambiguous. We don’t need to delve into legislative history to determine the meaning of these words.”

I’m supporting you in all you’re saying because my concern is, we have never had some of these outrageous decisions that have taken away 100 years of ruling by one swift statement or by an opinion of the Supreme Court except under Trump. We have not had that thing happen before. There’s a lot more power being given to the President of the United States to make decisions. It’s dangerous to do that. I’m glad you’re talking about it and it is a concern for me as well. What do you think is the impact of this opinion twenty years from now?

As it stands now, assuming the issue doesn’t get revisited. Obviously, the majority of opinions for Justice Roberts will be the President that the country follows. Go figure that in a case this important, with many of the cases that were decided in the last week of the Court, where Robert is in the majority as the Chief Justice of the Supreme Court, he can tap himself to write what he may view as historical or important opinions. The opinion that will be the best over the next twenty years is the concurring opinion by Justice Jackson. Justice Sotomayor joins us in part one in the introduction to Justice Jackson’s opinion.

I’d like for you to go into that because I was extremely appreciative of a number of points that Justice Jackson as well as Justice Sotomayor supported. I would like for you to go into those because they’re so important.

The Importance Of The Concurring Opinion

There are a couple things here. I have no way of knowing this. This is what I would characterize as an uneducated guess, honesty. The only two justices joining in this concurring opinion are Justice Jackson and Justice Sotomayor as to part one. Who knows? Perhaps Justice Kagan disagrees with the opinion. Perhaps she agrees with all of it but, to me, it’s important that the two justices in this opinion as part one and the introduction are minorities.

We have an African-American Justice and we have a Justice of Latino or Hispanic origin in Justice Sotomayor. Justice Jackson’s opinion in part one focuses on certain historical aspects. Pardon me, but focus on how the impact and the idea of distinguishing one group from another is being applied in a different way. She points out that Justice Alito and Thomas in particular have said on multiple occasions in their opinions that the Constitution is colorblind.

Yet, she points out in Justice Thomas’s opinion, he focuses on the historical nature of the 14th Amendment and its application to Blacks, to slaves born in the United States and tries to limit the effect of the 14th Amendment based on that historical concept. Justice Jackson in part one explains how the 14th Amendment and the laws that were put into effect were not done solely for Blacks. This was not something where the people that created the 14th Amendment and put these laws into effect were so short sighted as to only give it a narrow focus as to African-Americans.

She says, “Indeed around the time they gained their freedom, former slaves faced a crisis similar in relevant respect to the American immigrant experience,” which is what we’re dealing with now. In part one, she discusses that and Justice Sotomayor joins her in that respect. In part two, a lot of the concepts are the same as colorblind. Part two touches upon the speeches of Frederick Douglass. It touches upon, in particular, the African-American experience in this country after the Civil War. She mentions that she takes issue with the attempts to read the 14th Amendment in a narrow fashion that essentially you would pit African-Americans against immigrants because the 14th Amendment would be read to apply to one minority group but not another.

I think that the way her opinion is structured, it is much more effective in making the point that Justice Roberts makes historically in the majority of opinion. Ultimately, what this comes down to me, there’s a talk of justices being strict constructionists. Nobody is a strict constructionist. Thomas and Alito want to tell us the Constitution is colorblind but then in his dissent in 91 pages, Thomas wants to focus on and distinguish why the 14th Amendment isn’t color blind. That, in fact, it’s only for Blacks.

[bctt tweet=”Thomas and Alito want to tell us the Constitution is colorblind. It’s colorblind except when you don’t want it to be colorblind. Except when seeing our Constitution will fit your purpose and your goals.” via=”no”]

I’m paraphrasing it and I apologize that people are taking offense to the nature in which I’m doing so. Her point is, “It’s colorblind except when you don’t want it to be colorblind. Except when seeing our constitution will fit your purpose and your goals.” Ultimately, that’s what it comes down to. In large part, the way the dissents tried to distinguish the 14th Amendment is they look at the phrase subject to the jurisdiction thereof. They say that phrase imputes domicile. Meaning where do you choose to live and whose laws do you choose to live under?

In using that language, unfortunately, they’re defining a broad concept but they’re not giving us any strict parameters at what level does domicile make you a citizen. At what level does domicile make you a non-citizen and an immigrant? They do not try at all to define that. In fact, in a footnote, Justice Thomas says, “That decision needs to be left to another day. That’s not something we need to decide today.” It’s problematic to me because when he’s interpreting the 2nd Amendment, Justice Thomas is real quick to focus on the language in the constitution.

People refer to Justice Gorsuch as a strict constructionist but here, they’re attempting to construct a meaning for the 14th Amendment using a term domicile that is nowhere in the 14th Amendment. It doesn’t talk about residents. It doesn’t talk about domicile. It talks about being subject to the jurisdiction thereof. Let me give you a simple example. Roberts touches upon it.

That’s an important thing because the way they’ve constructed the dissent brings questions but they have no substance or no legal status that they name or establish for their one word they’re using to try to create a difficulty.

Practical Implications: Jurisdiction, Domicile, And Deportation

Here’s the sentence. It comes near the end of Robert’s opinion in relation to subject to the jurisdiction thereof. “The question is whether a person is subject to the jurisdiction of the government of a country in which he is physically present. Even if he is only there temporarily, period.” He is, period. The point here, let me give you an example. Two children were born in a hospital. They are both the children of undocumented immigrants. One child is then taken by ICE and deported.

Clearly, he’s subject to the jurisdiction. If the country can use deportation proceedings to remove that child and his mother from the country, how can they not be subject to the jurisdiction of the United States? How can they not be subject to the laws of the United States? To take this example further, the second child of undocumented immigrants, his parents avoid being taken into custody and deported. Because of their good fortune of being able to remain here for fifteen years without deportation proceedings, that suddenly gives him a domicile.

As the dissent would like to view it, we’re going to give one child citizenship because they’ve lived in this country under its laws. They’ve been domiciled here for fifteen years but the other child because they were deported shortly after being born is not a citizen. There are so many ridiculous outcomes to what the dissents proposed. That’s just a very simple example, but getting back to those two senators. I agree with Justice Roberts. If I am born in this country, this country’s laws can be imposed against me. If I’m going to have to register and obtain a birth certificate or my mother has to do so for the fact that I was born here. Clearly, I’m subject to the jurisdiction thereof or of the United States.

One of the things that I do appreciate is they throw a simplistic analysis of the history, the laws, and the 14th amendment that Roberts did. A lot of times, I’m very upset with him about things he’s done like the slaughter case. I was pleased to see how he thoroughly covered it. The Congress does establish laws. There’s a question whether they can establish a law that would possibly eliminate what is given in the 14th Amendment. To me, from what I’ve studied, I’m not a lawyer, but what I have spent a lot of time looking at with the legal aspects is that they would take another amendment to the constitution before something like that could happen. Now, I may be wrong, but that’s what I’ve read several times.

I agree with you. As I explained, the 14th Amendment creates the smaller subset. Let’s call it a flower. Congress can add more petals to the flower. Congressman can remove the existing pedals off of the flower. Kavanaugh and his dissent goes into this distinction. This bothers me, too. Kavanaugh wants to tell us that children born to undocumented immigrants would be citizens of the United States under the Immigration and Naturalization Act but they would not be citizens of the United States under the 14th Amendment.

His explanation for that is, the idea or the concept that we are taught in law school that the constitution is a living document. The language that was used as malleable enough that it transforms defeat each age in which it finds itself. The problem for me is, the constitution of the law is both made up of words and they’re both using the same words. If the constitution under Kavanaugh’s reading, could be interpreted to impose the concept of domicile and to subject to the jurisdiction thereof. Deprive the children of undocumented immigrants of their citizenship. How exactly is it that the Immigration and Naturalization Act, which is also in effect at this very same time and uses the same words, does not all do so? It’s nonsensical.

In ending this particular discussion of this case Barbara versus Trump. Why don’t you end it by saying exactly what Robert has said about birthright in America.

To paraphrase it, to condense 26 pages down to one sentence if you’re born on the soil of the United States and you are subject to the laws of the United States. You’re a citizen of the United States.

It doesn’t matter who your parents are.

It doesn’t matter if your mother is here legally or illegally. It doesn’t matter whether your mother is here temporarily or permanently. If you were born in the United States, you are a citizen of the United States. Again, the United States would not include a ship flying under the Bohemian flag. It would not include the Indian territories, which are recognized as their own separate tribal nations. It would not include ambassadors and their children, which are not subject to United States laws because of their ambassadorship. Those are the only real exceptions.

I’m glad we’d least got this decision, the Supreme Court decision no matter what happened with all of it. I would encourage my audience. Jackson’s concurring opinion with Sotomayor is something people should read. It is a fascinating presentation of what it means for somebody to be a citizen of the United States. That’s my last comment, Richard. How would you like to end this?

I couldn’t agree with you more. Being a White Anglo-Saxon protestant male, I am going to make it clear that I cannot relate to Justice Jackson’s experience in her upbringing in this country or to Sotomayor’s but that’s why I appreciate her opinion so much. It does make that point. Several years ago, it was African-Americans. Now, it’s undocumented immigrants. The majority of whom are Hispanic.

In Alito’s opinion, he basically talks about the five countries with the most number of undocumented immigrants. Four of them are Latin American countries. A lot of the language being used is code but ultimately, the intention here is to try and exclude from citizenship. Honestly, based on the color of their skin even though the executive order doesn’t come out and say that.

We all know something. This whole process has been one in which Trump nor Thomas and Alito have done most of the dissents. It’s very apparent to me that there is a political agenda rather than looking at the Constitution, the 14th Amendment and the various acts that have occurred to determine the decision.

I don’t think I’m wrong in saying that because many times, prior to even having you on my show, I have continued to read Supreme Court decisions and other things through other things that I do and read and listen to and whatever. They’re the ones that keep having a political agenda throughout many of them. I want to thank you for going through and taking all your time because this took a lot of time on both our part to give this information.

I look forward to it. I want to thank the audience because it’s apparent to me that you appreciate what Richard and I are doing. When I look at my analysis, you often have this particular show near the top of the analysis that I receive about the show. I want to thank the audience and I encourage you to continue to tune in to the show. Thank you very much, Richard.

Thank you.

References

About Richard Wilson

Hot Topic Bold Talk | Richard Wilson | Constitution Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.

For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.

During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.

His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.

Richard G. Wilson

KERR WILSON, P.C.

16676 Northchase Drive, Suite 450

Houston, Texas 77060

(281) 260-6304

EDUCATION

University of Texas at Austin, J.D., 1995

Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

State Bar of Texas

  1. S. District Courts for the Eastern, Northern, and Southern Districts of Texas
  2. S. Court of Appeals for the Fifth Circuit
PROFESSIONAL EXPERIENCE

Kerr Wilson Houston, Texas

Shareholder 2008- present

  • Represented clients in breach of contract, tort, employment, and insurance cases
  • First chair trial experience
  • Lead counsel in multiple appeals in both state and federal appellate courts
  • Advisor for small and mid-sized businesses in the energy industry
  • Responsible for all facets of managing and operating a law office

McFall, Breitbeil & Shults Houston, Texas

Associate & Shareholder 2001- 2008

  • Represented clients in breach of contract, tort, employment, and insurance cases
  • First chair trial experience
  • Lead counsel in multiple appeals in both state and federal appellate courts
  • Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Houston, Texas

Associate 1997-2001

Hirsch, Robinson, Sheiness & Glover Houston, Texas

Associate 1995-1997

ACHIEVEMENTS
  • First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases
  • Appeals to the Fifth Circuit and Texas appellate courts
  • AV Rated by Martindale-Hubbell
PUBLISHED CASES
  • Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)
  • O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
  • Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
  • Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)
  • Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
  • Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)
  • Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)
  • Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)
  • Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
  • Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)
  • Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
  • Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
  • Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)
  • King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)
PUBLICATIONS
  • Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)
  • Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17

(cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))

  • Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements
  • Co-author, Recent Legislation Concerning Attorneys

Texas Lawyers’ Insurance Exchange Newsletter

  • Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party?

Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE
  • Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.
  • Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.
  • Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.
  • After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.
  • Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.
  • Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.
  • After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.
  • Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.