Constitutional Action

[What follows is a transcript. Please excuse errors.]It’s a great day to talk about the Constitution — because today, apparently, we get to hear whether Ketanji Brown Jackson and Amy Coney Barrett think that we should have a country.EXIT is a fraternity dedicated to shorting managerial systems and building the human institutions that come next. Learn more here:They’re ruling today on whether or not a Chinese Communist Party senior official can ejaculate into a cup, have that cup flown to Saipan, impregnate 10 or 20 or 50 surrogates (this is a real thing that happens), have those surrogates give birth on Saipan Island, then immediately fly all 10 or 20 or 50 children back to China as full American citizens. American as you and me.And Justice Jackson has made the elegant argument that if she were to steal a wallet in Japan, that she would be subject to Japanese law, which is, in her words, “in a sense, allegiance.”If you steal a wallet in Japan and you are arrested by the Japanese authorities and sentenced by a Japanese judge, you are essentially Japanese.Amy Coney Barrett says we can’t strike down birthright citizenship for illegal migrants because what if you don’t know who the parents are? How can you prove that they’re not citizens? American citizenship is the default position: everyone’s an American until proven otherwise.Which, of course, these arguments are absurd on their face. It takes like five seconds to figure out how they’re terminally unworkable. But Amy Coney Barrett and Ketanji Brown Jackson don’t have to win an argument.Paid subscribers receive access to full recordings of EXIT Q&As, and invites to EXIT cocktail hours. Free subscribers receive weekly news and updates via email.Kagan and Barrett and Sotomayor and Jackson — our gay race communists — they’re going to vote against restrictions on immigration no matter what, because they don’t believe America should be a country. To the extent that they have any patriotic feeling toward America whatsoever, it’s as a void of nationhood, as the opposite of a nation.A place where anybody can come and be anything, or just more accurately as a vehicle for communism and Barrett is maybe less ideological, but in terms of her emotional orientation, it all leads to the same place. She may not actively hate and want to destroy America, but any of the things that we could do to protect it are going to make her sad: and if it makes her sad, she’s going to vote against it.So, in practical terms, that’s the state of constitutional law in America.You got four judges who are pretty much always going to vote one way. You got four other judges who are pretty much always going to vote the other way, and the bottom line is just which direction makes Amy Coney Barrett feel less sad.A lot of the criticism around this and other Supreme Court decisions has been that these women are stupid. I don’t necessarily think that’s true — or, at least, I don’t think they need to be stupid to behave the way they’re behaving. I don’t think if you sat them down and had this conversation, and you walked them through the logic of why it’s obviously silly to argue that “stealing a wallet in Japan makes you Japanese,” or “everyone’s an American until proven otherwise,” I don’t think they would be confused by the logic. I don’t think they would be flummoxed.Instead, what’s happening here is they’ve got an object level moral outcome that they think is the right outcome, and there has to be some fig leaf of textual interpretation to get to that moral outcome, so they’re just backing into it. They’re just saying whatever they need to say to get to where they want to go.The problem, if you are a textual constitutionalist like Mike Lee or Thomas Massie or Rand Paul, is that all the proper procedures were followed in putting these women in the chair.You are morally and ideologically committed to a captured process, a process that is in the hands of people who don’t care about it.You have no grounds from inside the frame of your own ideology to criticize that. Particularly if you believe that this construct of procedure and law is what makes Americans Americans, it’s what makes you you, then you’re in a really serious situation — because the people in control of this system don’t just lack respect for that procedure; they lack respect for that identity — and they have a completely different notion, in fact, a hostile notion of what America is and who Americans are.So it’s not just that they disagree with you as a matter of ideology: they feel no kinship with you, and so your ideology requires you to subject yourself essentially to foreign occupation people who regard themselves as foreign to you and hostile to your interests.About a month ago, Ben Wilson from How