Podbit · The Megyn Kelly Show
Mike Davis and Megyn Kelly questioned how Amy Coney Barrett, who was sold as the next Justice Scalia, ended up siding with liberals on birthright citizenship. Davis raised the possibility she was intimidated during the Dobbs fallout; Kelly floated her husband's theory that attractive justices get drawn into the Georgetown approval circuit.
Where this was said
At 20:36 · chapter starts 13:00
With the two guests now on, Megyn Kelly moderates a high-voltage debate. Mike Davis [1] — Mike Davis "Mike Davis called the birthright citizenship ruling the most lawless Supreme Court decision in decades. He argued the majority effectively …" 12:32 delivers his sharpest verdict: the majority scratched out the 14th Amendment's 'subject to jurisdiction' clause, handing birthright citizenship to Chinese birth tourists, human traffickers, and illegal aliens. Alan Dershowitz [2] — Alan Dershowitz "Alan Dershowitz called birthright citizenship 'stupid, stupid, stupid' but argued the real fix lies with Congress, not the courts. Because …" 14:30 agrees the policy is idiotic but draws a careful distinction: a genuine textualist could read the Constitution's plain language as requiring birthright citizenship, and he isn't certain Scalia would have dissented. Davis pushes back by citing the American Indian citizenship precedent — the Supreme Court previously held that tribal Indians weren't covered, and Congress fixed that by statute in 1924. Dershowitz counters that Scalia dismissed legislative history and would have focused narrowly on the text. The section closes on a frank discussion of how Amy Coney Barrett went wrong, with Davis raising the Dobbs intimidation theory and Kelly floating her husband's 'Georgetown approval circuit' hypothesis.
Alan Dershowitz called birthright citizenship 'stupid, stupid, stupid' but argued the real fix lies with Congress, not the courts. Because the Supreme Court's remarks about legislative remedies are merely dictum, Congress could still pass a statute redefining who is 'subject to the jurisdiction' of the United States.
To amend the Constitution and change the birthright citizenship ruling would require a two-thirds vote in both houses of Congress and ratification by 38 states.
Davis argued Scalia would have sided with the dissenters, pointing to precedent that American Indians were not covered by the 14th Amendment's citizenship clause. Dershowitz countered that Scalia was a strict textualist and might have found the constitutional text itself compelled birthright citizenship, regardless of how dumb he thought the policy was.
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