Andrew L. Urban
“It’s a new world. It’s the same Constitution.” Coming from the Chief Justice of the US Supreme Court in the context of the consequential birthright citizenship debate, this is disturbingly lacking common sense. Arguably the best definition of common sense is basic intelligence which allows for plain understanding and without which good decisions or judgments cannot be made.
Justice John Roberts’ words came as a retort to an argument from Solicitor General John Sauer, who sought to defend President Trump’s executive order in the face of the Constitution, the law and precedent that have long stood for a basic premise of American life: If you’re born in America, you’re a citizen … even the child of an illegal immigrant gang member or a Chinese birthing tourist.
The context of the words of Justice Roberts is relevant: it was put to the Supreme Court during oral argument the other day (April 1, 2026) that the constitution gave birthright privileges to the newly freed slaves, in a very different world, before illegal migration and before (lucrative) birthright tourism – both phenomena new to America in the recent past. Dismissing the context of the original intent, Justice Roberts rejects common sense and with that, good judgement.
The solicitor general turned to citing “media reports” that estimate more than 1 million people coming from China, as well as a congressional report about “Russian elites” going to Miami through “birth tourism companies.” He said the “media reported” that “based on Chinese media reports,” there have been at least 500 such companies in China.
“Having said all that,” Roberts replied, “you do agree that that has no impact on the legal analysis before us?”
That’s a judicial way of saying it’s irrelevant. But, with respect to his learned Honour, it is very relevant indeed. It is the result of the constitution’s original intent on this matter having been usurped by change. It is the very reason the President wants to end birthright citizenship.
We are not picking on Justice Roberts, but are prompted by his retort, which reveals an underlying lack of common sense. Sadly, judges’ decisions are too often characterised by the failure of the required fusion of law and common sense – ‘without which good judgements cannot be made’. Let’s grab a few more examples.
Judge Oliver Wendell Holmes Jr. stressed that legal reasoning must reflect real life. His classic observation “The life of the law has not been logic; it has been experience,” is one of the most famous in American jurisprudence and highlights the importance of practical reasoning over abstract doctrine.
Judge Robert H. Jackson criticised convoluted legal reasoning used to admit unreliable evidence. “The naïve assumption that prejudicial effects can be overcome by instructions to the jury… all practicing lawyers know to be unmitigated fiction.” This quote is often cited when courts assume juries can ignore damaging evidence simply because a judge tells them to.
Two of the most famous Australian cases where common sense was held at bay are those of Lindy Chamberlain and Cardinal George Pell.
In the latter, after a jury found Pell guilty of historical sexual abuse in the aftermath of a cathedral mass, appeal judge Mark Weinberg issued a dissenting opinion saying that the alleged events were so improbable in the circumstances that a jury should have had reasonable doubt. He stressed that the alleged offences occurred in a busy cathedral environment and numerous witnesses contradicted the possibility of the scenario.
He wrote that the evidence should be tested against “the probabilities and the common sense of the matter.” The conviction was later unanimously quashed by the High Court, reinforcing the concerns raised in the dissent, using the words that “a jury acting rationally…”
In the Lindy Chamberlain case, Murphy J criticised the conviction as resting on speculative forensic evidence and reasoning that ignored the realistic possibility of a dingo attack.
His dissent suggested the verdict did not accord with rational inference from the evidence. The conviction was later quashed and the Chamberlains exonerated.
In the older case of Andrew Mallard, earlier courts accepted a supposed confession that was actually a speculative reconstruction suggested by police. When the case reached the High Court, the judges indicated that no rational jury should have treated the statement as a genuine confession.
Legal commentators often cite the case as an example where earlier judicial reasoning failed basic common-sense interpretation of evidence.
The wondrously named US judge Felix Frankfurter wrote that constitutional interpretation must not descend into “A wooden application of technical rules divorced from common sense.”
Frankfurter argued that the law risks becoming mechanical and irrational when doctrine overrides practical reasoning.
In my latest book, Frank Valentine Guilty by Say-So, I report how the judge in his trial, Noman J, refused to accept actual evidence from the defence (regarding a summer camp being false) and chose to believe the contrary allegation of a complainant .
While judge-bashing, remember the Australian High Court’s decision last month, known as EGH19, is the latest in a string of defeats for the government over its attempts to protect the community from foreign criminals who are in this country unlawfully. The ruling in EGH19 struck down the latest regulation imposing ankle bracelets and curfews. But the seven judges produced six separate judgments that ran to 153 pages, including the two dissents.
The issue itself (foreign criminals in this country unlawfully) is outside our remit and we’re only referring to the decision to highlight how different judges can form very different opinions even in the crucial area of national security.
It should be noted that sometimes it’s more than just a failure of common sense and more a case of abject stupidity.
At the Central Park Five trial in New York, the confessions of the accused were accepted even though they contradicted each other and the physical evidence.
Later courts vacated the convictions after another man confessed and DNA evidence confirmed it. Judges reviewing the case noted the logical inconsistency of the original evidence.
But never mind Chief Justice Roberts, the cake in common sense deficiency was taken by his colleague who can’t define a woman, Ketanji Brown Jackson, who really did say during that oral argument: “I was thinking, I, a U.S. citizen, am visiting Japan. And what it means is that if I steal someone’s wallet in Japan, the Japanese authorities can arrest me and prosecute me,” Jackson began. “It’s allegiance, meaning can they control you as a matter of law.”
She continued, “I can rely on them if my wallet is stolen to, under Japanese law, go and prosecute that person who had stolen it. So there’s this relationship, even though I’m just a temporary traveller, I’m just on vacation in Japan, I’m still locally owing allegiance in that sense.”
So by committing a crime, tourists owe allegiance ….?
I rest my case, Your Honours…