Common Sense is a new series in which I will channel Thomas Paine’s passion into the modern era. This week we talk about Birthright Citizenship post Trump v. Barbara. Read more about Common Sense here.
INTRODUCTION
The contributions of Thomas Paine to the movement in favor of independence from Great Britain are settled by history. He defined the issue in existential terms, looking to the future of a potentially great nation united in freedom and based upon Enlightenment principles. The message pulled the undecided loyalists into the cause in enough numbers that the colonies, through the Continental Congress, eventually cemented that opportunity. We are potentially on the verge of another revolution as the principles of freedom, meritocracy, and our structure of government are under siege. On the fence, independents need to see this looming threat. The so-called Democratic Socialism movement is not the clown show of the early 20th century. Using Trojan horse methods, these haters of Western civilization promise what they and history have and will fail to deliver. Notwithstanding these lessons, the young voters are buying this snake oil and are all too willing to embrace what was heretofore seen as lunacy—seize wealth, elevate equity over equality, nationalize industries and defund law enforcement, while destroying borders and dismantling immigration law and, last but not least, abolishing prisons. They are winning actual political power, and their cheerleaders like Bernie and Liz have created nothing but class warfare ideology. They invented nothing and would be challenged by running a profitable lemonade stand. They became wealthy by creating nothing but the politics of begrudgery. Their wealth is untouchable, but Musk and Bezos stand by. The platforms are there to read. Do away with the branches of government in favor of an all-powerful Congress. The end of federalism in favor of central planning from Washington. End the Presidency and the Supreme Court. If they gain power, actual societal breakdown is probable. It cannot happen.
It is time for us to understand these implications and to urge the normal hard-working members of society to heed the words of common sense. Paine said the following to Americans in all corners of the colonies:
In the following pages I offer nothing more than simple facts, plain arguments, and common sense: and have no other preliminaries to settle with the reader, than that he will divest himself of prejudice and prepossession, and suffer his reason and his feelings to determine for themselves: that he will put on, or rather that he will not put off, the true character of a man, and generously enlarge his views beyond the present day.
My goal is to explore this in these humble pages. I start with birthright citizenship and its impact on our collective common sense. I will apply these principles to future issues of law and politics. The dust is settling on a decision that was certainly anticipated but not reaching as far as Justice Roberts allowed it to go. The prudent course would have been to strike down the Executive Order on statutory grounds and give Congress cover to fix what many of us know is broken by reserving the constitutional issue. It may be too late, but I believe Justice Kavanaugh left room for common sense and a Congressional fix. The Fourteenth Amendment, as interpreted by the Supreme Court in the much-discussed 1898 case of Wong Kim Ark, is flexible enough to have been interpreted as incorporating that case’s core instructive principles to deny the gift of citizenship to those who violate our borders and live in the shadows and bear children here. It is not a quantum leap to modernize the core exceptions to birthright citizenship in that case to meet the challenges of mass immigration unknown to the Court at the end of the nineteenth century.
IN A CLOSE 5-4 DECISION, DID JUSTICE KAVANAUGH OFFER A CONGRESSIONAL FIX, OR DID THE MAJORITY RULING FORECLOSE ANY CONGRESSIONAL ACTION GOING FORWARD?
Some constitutional scholars have opined that the airtight ruling that children born on United States soil are citizens at birth regardless of their legal status would render any Congressional action to address its older codifications of the Fourteenth Amendment dead on arrival. We are at present stuck with a reboot of Wong Kim Ark for another century when the facts of that case bore no relationship to what we face here with birth tourism and illegals having children to hedge against removal. Wong Kim Ark was born here and domiciled here, and he and his parents lived in San Francisco. If those scholars are correct, the current options are limited to aggressive entry enforcement, visa selectivity, and aggressive removals when consistent with law. I believe that Justice Kavanaugh was, in his part concurrence, part dissent, not musing out loud about what Congress could have done but stating that if Congress prospectively acts, it might be 5-4 in favor of a statutory and logical extension of the Wong Kim Ark exceptions. His reasoning is laid out here:
The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles—both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the “meaning of rules is constant. Only their application to new situations presents a novelty.”
He then explores the exceptions noted by the Court in a historically distant 1868:
The Court’s 1898 decision in Wong Kim Ark recognized four exceptions that existed as of the Fourteenth Amendment’s ratification in 1868. Therefore, under basic tenets of constitutional interpretation, other exceptions can be recognized when the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the four previously recognized Wong Kim Ark exceptions.
Here, that interpretive principle would support additional exceptions for children born to foreign citizens unlawfully or temporarily in the country. First, significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated. And the Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to (i) those foreign citizens who violate U. S. immigration law and illegally enter or overstay and then have children in the United States…
…and then the part that speaks to prospective action, or does it?
All of that said, as noted above, Congress in 1940 and 1952 enacted a statute, §1401(a), that at the time and since has always been understood to authorize only the four Wong Kim Ark exceptions. If Congress amends §1401(a) or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country, such a statute, as I see it, would pass constitutional muster.
It has been noted that all Justice Kavanaugh was saying is that the Executive Order may not have clearly run afoul of the command of the Fourteenth Amendment and that he disagrees with the majority on that distinct ground. I believe the plain meaning of his words would give a bold Congress cover to carefully use its power to determine immigration law and define who is a citizen in a manner that would not be stricken down. Unlikely. There would be a willing majority to uphold such an amendment as Justices Gorsuch, Alito, and Thomas joined in a legal and historical retort to Justice Roberts’s embrace of obsolete English common law in a series of dissents that will outlast the majority in legal history. Justice Thomas stated that the decision will not survive the test of time. I do not believe it survives the test of common sense and will coalesce many independents who have been disillusioned by some of Trump’s policies, but who would want a strong Congress to protect our institutions from abuse and fraud. The answer is not a Democrat majority in either chamber of Congress, particularly if polluted by an ever-expanding Squad.
CONCLUSION
The Democratic Socialists speak of “revolution.” A majority of us see their platforms as a poison pill to the formative principles of the Republic. Common Sense—the pamphlets once propelled a revolution; this call to embrace real common sense can prevent a new destructive one. It is time that Republicans see the coming storm and use the tools of communication to frame the issues in a way that turns back a tide that history has long condemned. This isn’t just about free health care (an achievable bipartisan goal at least in part); it is about the dismantling of a carefully crafted framework of government. Beware of the Trojan Horse and never abandon that precious common sense.
Mike Imprevento
July 6th, 2026
COMMON SENSE
I have always been fascinated by the transformative effect Thomas Paine’s Common Sense had on colonial sentiment toward independence between 1775 and 1776. These times demand a modern version of that same clarity — a way to alert Americans to the coming storm of political doctrines that threaten the Republic and its structures. In future editions of Into the Weeds, I will examine these issues through the lens of common sense, with the humble goal of exposing the true danger the new Left poses. An informed mind will reject the dismantling of our constitutional structure and the threats to freedom we face in this new political era.
