The Favourites
We’re All Denizens Now
Dear Reader,
In 2019, English newcomer Olivia Colman became an unintentional beneficiary of American misogyny when she robbed American icon Glenn Close at the Academy Awards. Close’s near-flawless portrayal of Meg Wolitzer’s character Joan Castleman in The Wife was a far more interesting (and better acted) discourse on female power than Colman’s portrayal of Queen Anne in The Favourite, because The Wife was a vignette of a talented woman who actually deserved her prestige. Unlike The Favourite, Wolitzer’s revelation of Ms. Castleman exposed the American Patriarchy’s paradoxical strategy of propping itself up with the significant talents of women.
The Academy’s snub of Close’s work in Wolitzer’s challenging critique of female power in a man’s world in The Wife, covered for The Favourite’s patronizing retelling of an age old myth that women in traditionally male positions of power will magically redeem the Patriarchy of misogyny. Due partially to the Academy’s blessing, the “gut-level” misogyny in The Favourite went almost without comment, while mainstream movie critics raved about The Favourite as a “triumph” featuring a “refreshing lack of misogyny.” All The Favourite proved was that abusing the crown to cover up weak analysis and bad storytelling that favors injustice is a global problem that is not merely or primarily English.
The American tendency of using British elitism as a foil to ignore America’s problems is particularly reflected in the U.S. Judiciary. Starting with the Slaughter-House Cases, the Court copied the British strategy in Thomas v. Sorrell of extending the errors that caused the Civil War as though the Court had no part in causing the Civil War. In Sorrell, the English Court scandalously extended the very Star Chamber injustices that caused the English Civil War, which the Slaughter-House Court candidly joined when it distinguished the great Case of Monopolies to narrow the protections of the postbellum Amendments of the U.S. Constitution with these words:
But we think it may be safely affirmed that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies of this country, have, from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges -- privileges denied to other citizens -- privileges which come within any just definition of the word monopoly, as much as those now under consideration, and that the power to do this has never been questioned or denied.[1]
As I have repeatedly noted in other publications, this sentence is a totalitarian error that elides the people with the state as symbolized in the frontispiece of Hobbes’ Leviathan. Others have explained how the noxious error of confounding the sovereign people with their representatives in Slaughter-House was carried forward by Hans v. Louisiana, according to the Court’s willful ignorance of Chisholm v. Georgia’s clear rejection of the old English qualified immunity decision in The Bankers’ Case. This confusion of the people and their governments, that originated in anti-American feudal law, was originally delineated as the first “degree of perversion” by Justice Wilson that began in the “old world” of Europe and yet found it was still “prevalent, even in the several States of which our union is composed.” Despite Wilson’s attempt to warn America of this Hobbesian perversion of sovereignty, it nevertheless became U.S. law for the first time in Trump v. United States and Seila Law LLC v. CFPB, according to the Court’s novel theory that the President is the people through direct democratic processes that are anathema to the U.S. Constitution.
In fact, the theory that the President is the people through direct democracy paradoxically arose from Justice Story’s invention of the plenary power doctrine in Houston v. Moore as extended in McPherson v. Blacker, which was vociferously asserted in the “kraken” law suits brought by now disgraced lawyers Sidney Powell and John C. Eastman to support the January 6, 2021 insurrection. This theory of plenary powers was extended in Prigg v. Pennsylvania to destroy birthright citizenship of freeborn Black Americans in Pennsylvania. After Story’s critical error in Prigg became the foundation of Immigration Law in The Chinese Exclusion Case and beyond (see my last post about this topic),[2] the Court has been asked to repeat this error as to potentially all Americans in Trump v. CASA, Inc. and Trump v. Barbara.
The common despair felt by both Republicans and Democrats in America is visible in the nearly unanimous political support for America’s royalist denization system that began in 1924 when Congress enacted the nation’s first visa program.[3] The Immigration Act of 1924 generally excluded all immigrants for the first time, and provided grounds for treating all the inhabitants in America as denizens. Ever since, the American people trusted in the goodness of each successive President not to use this power to occupy cities and localities with standing troops in times of peace despite the Posse Comitatus Act.
Few have hinted to the immigration law’s suspect constitutional underpinnings, while most blindly celebrate it as an achievement for social justice.[4] The Immigration & Nationality Act was always eugenic, the updates made in 1965 were candidly white supremacist, and the implied plenary power to exclude that still animates it should be found unconstitutional under McCulloch v. Maryland’s liberal standard. Yet, most Americans seem to believe that anything that happened in the 1960s was unquestionably liberal, and even The 1619 Project claimed credit on behalf of Black America for the racist 1965 updates to the law.[5]
Even though the Court could easily venerate the racist statutes before it, with the support of liberal outfits like The 1619 Project, the Court seems poised to take power for itself by unilaterally administering immigration law through feudalism. As such, the Court appears ready to extend the concept of enemy alien infidels from Lord Coke’s complicated opinion in Calvin’s Case as though Justice Wilson never reformed that decision to favor immigrants as friends in America.[6] And the President is clearly asking the Court to upend the statutes, however racist and awful, to give him the power to do whatever he wants to both immigrants and U.S. citizens.
To be clear, the President wants to administer pure injustice through the genre of judicial prophecies originally proposed by Thomas Hobbes so that he no longer has to consult the laws of Congress at all.[7] For example, in Trump’s first term Trump claimed that he enacted health, internet, and immigration law through Executive papers that were then laughed off as absurd. If the Court legitimizes the President’s unilateral legislative powers, Congress’s laws can be dispensed with as the king once did in Godden v. Hales and Thomas v. Sorrell according to Professor Holly Brewer’s recent analysis.
The most fascinating development in the Roberts Court is its sheer denial of the feudalistic nature of President Trump’s activism in the Court. Due to the Court’s sheer cognitive dissonance, the President can pursue radical transformations of the law while the Court precludes private litigants from making proper arguments against them. America could fall under the sway of a pretender king according to Supreme Court decisions that preclude private lawyers from arguing in defense of popular sovereignty and against the reemergence of feudalism.
Critically, the United States was the first nation to officially call bullsh** on the British Empire’s claims of legitimacy. From the Revolution of 1776 to the present day, Americans still agree with our favorite British transplant, Thomas Paine, that British monarchism was a sin. This is presumably why Solicitor D. John Sauer disclaimed any feudal basis for ending birthright citizenship in Trump v. Barbara in his oral argument.
But Sauer’s argument was to refashion Calvin’s Case to maximize feudalism by treating all the inhabitants of the United States as enemy aliens until the President exempts them as denizens in the very style of the British monarch. In short, Sauer attempted to use the anti-monarchical sentiment of America to oust the common law in Calvin’s Case as though its expression of the common law was feudal, so that Calvin’s Case’s expression of feudalism could be maxed out in America. The ACLU lawyer, acting as Sauer’s primary opposition, failed to explain the sophistication of Solicitor Sauer’s corrupt argument for feudalism by dressing the President up as anti-feudal and further mischaracterized Calvin’s Case as though it were purely common law when it was a problematic mixture of common and feudal laws.
In Calvin’s Case, Lord Coke decided that anyone born in the king’s dominions was a British subject according to a presumption of alien friendship. But, the common law of birthright citizenship derived from Calvin’s Case in America was limited by Lord Coke to only extend to Christians, and by the designation of feudal subject rather than full citizen. Ironically, Coke’s analysis would have precluded the very origin of Coke’s rule in Paul’s appeal to pagan Rome as a foreign Jew, emphasizing feudalism’s penchant for arbitrary self-contradiction.
The feudal limits of Calvin’s Case were tested in several cases implicating the American Revolution. These cases included Sir Thomas Grantham’s Case, Rex v. Cowle, Campbell v. Hall, and the celebrated Somerset’s Case, which ultimately resulted in the Revolution of 1776 that vindicated the common law from Calvin’s Case while surgically removing the dross of its feudalism.[8] The disagreement of the United States with its mother country on this topic was re-litigated in 2008 when the U.S. Supreme Court distinguished Rex v. Cowle, while the House of Lords simultaneously extended Campbell v. Hall.
Nevertheless, after the former British American colonies unanimously intended to ipso facto extend U.S. citizenship to all British inhabitants, Black and white, man and woman, the dross of Calvin’s Case’s feudal enemy alien idea crept back into the South. Specifically, its concept of being able to keep an infidel as a chattel slave, as was extended in Sir Thomas Grantham’s Case, was cited by the Supreme Court of Alabama in Atwood’s Heirs as the basis for its chattel slavery system. The complete failure of the United States to hold Phillis Wheatley’s “the heaven defended line” of ipso facto equal rights of citizens in the United States is the only foundation for the peculiar institution of chattel slavery that eventually sank the nation in a costly, bloody, and entirely avoidable Civil War.
The errors of Calvin’s Case were forcefully addressed in the lectures of the Signatory of the Declaration of Independence, Framer of the U.S. Constitution, and Inaugural U.S. Supreme Court Justice James Wilson, as well as in John Adams’ Novangelus letters.[9] Wilson noted that denization is a royal power disclaimed in America, and that in America all aliens must be presumed friends unless they are citizens of a nation that is actually at war with the United States.[10] To support this position, Wilson vigorously attacked Coke’s use of Christianity as a basis to justify the king’s power to disrespect aliens as conquered infidels that may be lawfully put to death or banished by the crown’s inherent powers as sovereign.[11]
Wilson’s careful extraction of the common law from Calvin’s Case, without its feudal exclusion of infidels like Muslims and Jews, created the American basis of birthright citizenship. Following Wilson, the Americans preserved the common law cited by Coke that began with the apostle Paul’s appeal to Rome as a foreign Jew according to his birth in Cilicia.[12] However, it removed the dross of Coke’s definition of enemy aliens as infidels, which would be an unconstitutional establishment of religion if it were ever made law in the United States.
In Barbara, Solicitor Sauer proposed that the Court reject Coke’s definition in the opposite direction of Wilson’s corrective, to surgically remove the common law so that all that remains is the feudal cancer. Sauer basically appeared to argue that all U.S. inhabitants should be presumed enemy aliens unless or until the President exempts them as denizens. This solution to the infidel problem in Calvin’s Case, redefines citizens as denizens and erases the constitutional basis for Congress’s concurrent power of naturalization by placing that power exclusively in the President by inferring the king’s powers into Article II of the Constitution.
Instead of requesting that the statute giving citizenship to all individuals born in the United States be struck down, Sauer argued that Wong Kim Ark be reinterpreted so that the statute becomes a nullity. Again, the ACLU lawyer on the other side failed to explain this danger to the Court. Instead of emphasizing the importance of the Court’s upholding the statute as the proper expression of legislative power to enact an uncontroversial representation of the American constitutional view of Calvin’s Case according to the Citizenship Clause, the ACLU asked the Court to reaffirm Wong Kim Ark — which opened the door to Sauer’s proposed solution.
Solicitor Sauer is in the unenviable position of knowing that his client is, basically, a feudalist in a nation that overwhelmingly rejects feudalism. Royalism and feudalism were not only rejected unanimously as a political aspiration throughout American history, but they are also structurally rejected in America’s forms of government. The laws and constitutions of America explicitly state in several places that there shall be no titles of nobility, and that the people give form to their governments through constitutions made and ratified by the people rather than by a royal institution like the British crown.
It will be a spectacle if President Trump is able to maintain his claims of feudal power in Supreme Court litigation aimed at turning the common law into feudal law sub silentio. The writers of history will revel in the paradox of it. And American lawyers will suffer under the stupidity of it, while being called upon by the world to explain how the words in our laws do not mean anything meaningful without the President’s assent as though he were our king.
Yours Cordially,
Joshua J. Schroeder, Esq.
[1] Slaughter-House Cases, 83 U.S. 36, 66 (1873).
[2] Joshua J. Schroeder, We Will All Be Free Or None Will Be: Why Federal Power is Not Plenary, but Limited and Supreme, 27 Tex. Hisp. J. L. Pol’y 1, 33 (2021).
[3] Immigration Act of 1924, Pub. L. 68–139, 43 Stat. 153; cf. 2 Wilson, supra note 1, at 1050 (“The power of denization is a high and incommunicable portion of the prerogative royal.”).
[4] See, e.g., Joshua J. Schroeder, A Candle in the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus After DHS v. Thuraissigiam, 49 Hastings Const. L.Q. 237, 275 (2022) (containing a non-exhaustive list of reasons why “EOIR structurally fails to secure common law due process”); cf. Mary Holper, Unzipping Detention from Deportation, Research Paper 634, at 3–4 (2024).
[5] Nikole Hannah-Jones, Democracy, in The 1619 Project: A New Origin Story 33 (2021) (claiming credit on behalf of all Black Americans for the candidly racist 1965 immigration law).
[6] Calvin’s Case (1608) 7 Co. Rep. 1a, 24a (Eng.), corrected by 2 Wilson, supra note 1, at 1046–49 (“In ancient times, every alien was considered as an enemy. The rule, I think, should be reversed.”). James Wilson specifically criticized the branch of feudal law that allowed kings to make denizens and treated it as dead on arrival in the anti-royal United States. Id. at 1050; cf. Tanya Golash-Boza, Feeling Like a Citizen, Living As a Denizen: Deportees’ Sense of Belonging, 60 Am. Behavioral Scientist 1, 2 (2016).
[7] Thomas Hobbes, Leviathan 316 (A.R. Waller ed., 1904) (defining “the Civill Soveraign” as a prophet).
[8] 2 Wilson, supra note 1, at 1049 (criticizing Calvin’s Case as the “bastard mother” of a portion of William Blackstone’s Commentaries that proposed to exclude the Americans from their legal rights by treating them as enemy alien infidels); Sir Thomas Grantham’s Case (1687) 87 Eng. Rep. 77, 3 Mod. 120 (Eng.), in John Baker, Sources of English Legal History: Public Law to 1750, at 453 (2024).
[9] 2 Wilson, supra note 1, at 1049; see also John Adams & Jonathan Sewall, Novanglus and Massachusettensis 129–30 (1819) (explaining the crown’s attempt to destroy the rights of all Americans by treating them as enemy alien infidels through feudal cases like Rex v. Cowle).
[10] 2 Wilson, supra note 1, at 1050.
[11] Id. at 1049 (noting how Coke “fortifies the favourite sentiment by a pleonasm” and “attempts to fortify it [farther] by the language, tortured surely, of christianity itself”).
[12] See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 769 (1950) (“Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship, nor have they sapped the vitality of a citizen’s claims upon his government for protection.”).