Trump’s Supreme Court Gamble Has a DARK History

The 1850 Fugitive Slave Act created a system where commissioners were incentivized ($10 vs. $5) to rule individuals as slaves, denying alleged slaves the right to testify in their own defense. This act essentially declared black people outside the 'civil condition,' subject to force rather than law.

The Fugitive Slave Act of 1850 coerced northerners to participate in recapturing alleged slaves, established commissioners paid $10 to rule someone a slave and $5 to rule them free, and denied alleged slaves the right to testify (03:02). Charles Langston argued this left people to their 'natural rights' – meaning force – when legal remedies were denied (05:51).

Contemporary mass deportations, particularly under the Alien Enemies Act, replicate the Fugitive Slave Act's denial of due process. Individuals are deported without proper legal recourse, often based on arbitrary interpretations (e.g., ICE officers interpreting tattoos as gang affiliation), and sent to 'maximum security torture prisons' run by foreign dictators.

The Alien Enemies Act deportations ordered by Mr. Trump involved people alleged to be Venezuelans, offered no process to prove otherwise, and were sometimes based on arbitrary interpretations of tattoos by ICE officers. These individuals were deported to 'maximum security torture prisons run by a foreign dictator,' mirroring the Fugitive Slave Act's abandonment of legal rights (07:30).

Throughout American history, classifying certain groups as 'foreign' or 'national security' concerns has been a consistent method to strip them of legitimate civic interests and legal rights. This was evident in slavery (where blackness implied foreignness and impossibility of citizenship, as in Dread Scott) and continues in modern immigration law.

American history shows a 'troubling' pattern of classifying some people's interests as 'foreign' or 'national security' matters, to be disposed of arbitrarily by executive officials. John Locke's defense of slavery, the 17th-century Virginia court case denying property rights to a freed black person, and the Dread Scott decision all assimilated blackness to 'foreignness' to deny citizenship and rights (14:00).

Creating 'outlaw castes' or 'legal black holes' for specific groups (like slaves or undocumented immigrants) inevitably leads to the expansion of rightslessness. This 'viral quality' compromises the freedoms of more people and the scope of rights, demonstrating how tyranny inflicted on 'others' boomerangs back.

The 'slave power' thesis understood slavery's expansive quality, compromising freedoms in the North to sustain it. Similarly, institutions like ICE and Border Patrol, and legal ideas like the 'border exception' for racial profiling, created for 'foreign' contexts, are now being 'imported back to the homeland,' deploying brutality in American cities (18:00).

Interpreting the Constitution requires acknowledging the 'two-pronged argument' of the excluded: demanding inclusion while asserting pre-existing entitlement to membership. Relying solely on the views of 'slaveholders' for 'history and tradition' ignores the 'black cosmopolitanism' and bids for inclusion that shaped the 14th Amendment and the vision of a 'composite nation.'

The 'fundamental problem' of MAGA and attacks on birthright citizenship is the impulse to define America for 'these people' (white, Christian). Black advocacy consistently argued for legal inclusion while asserting prior entitlement to membership. Frederick Douglass's Fourth of July speech exemplifies this dual perspective. Ignoring black voices in interpreting the 14th Amendment, as some conservative originalists do, 'makes the constitution itself illegitimate' (24:47).

Despite efforts by some right-wing scholars to challenge it, the principle of birthright citizenship (under the 14th Amendment's 'subject to the jurisdiction thereof' clause) has been the unbroken view of legal experts for over 150 years. Gorsuch, a textualist, and other conservative justices (Roberts, Barrett, Kavanaugh) are likely to uphold it, potentially through statutory interpretation to avoid constitutional issues.

Professor Gouter predicts a '7-2 decision' upholding birthright citizenship, calling it an 'incredibly easy case.' He notes it's been the 'unbroken view' since *Wong Kim Ark* and that 'even a bunch of conservative originalists' support it. He expects Gorsuch, Roberts, Barrett, and Kavanaugh to side with upholding it, leaving only Alito and Thomas as dissenters (41:16).

Laws that are 'odious to the people' cannot be effectively enforced by force alone. Historical examples like the Stamp Act and the Shadrach rescue demonstrate that when the 'moral sense' of the people is against a law, shows of force are futile. This principle applies to modern resistance against mass deportations.

Senator Hail's response to Henry Clay's outrage over the Shadrach rescue highlighted that attempts to enforce 'odious' laws like the Stamp Act failed because the 'moral sense of the people' was against it. He stated, 'No sir, such is not the foundation on which our institutions rest. They rest on the moral sentiments and judgments of the people.' This is seen in cities 'chasing ICE out of their cities' (47:53).