The Poor Caribbean Court of Justice (CCJ)

THIS WAS BOUND TO OCCUR: NONE OF OUR COURTS ARE RESPECTED IN OUR HOME JURISDICTIONS.  THEY ORIGINATED BY ACCIDENT OR CIRCUMSTANCE AND THE CARIBBEAN COURT (CARICOM COURT) IS A WORSE VERSION OF OUR POORLY STRUCTURED NATIONAL COURTS!  AND SADLY - DESPITE OUR HABIT IN THE CARIBBEAN OF JUST CLAIMING SOMEONE IS A GREAT JUDGE - NO ONE ON THAT COURT HAS THE GRAVITAS TO HEAL THIS SITUATION BECAUSE NONE HAVE ARCHIVED ANYTHING UPON WHICH THE PUBLIC CAN ANCHOR SUFFICIENT INSTITUTIONAL TRUST!

POLICY ADVICE NOTE 304-26 Re: THE PROPER ESTABLISHMENT OF REGIONAL COURTS

By Professor Gilbert Morris

The eastern Caribbean court has distinguished itself as productive of insight judgements of superior judicial integrity.  The Caribbean court - a creature of CARICOM has not!

Why?

 

Both courts were poorly established:

1. In CARICOM, there is no a single member state in which the courts are regarded highly by citizens

2. The mantra for establishment was not we have a new judicial insight…so let’s build a court on that.  Rather it was a negative default posture that said, instead of the Privy Council, let’s establish a court!

3. But that is not a proper philosophical or rational ground upon which to establish a court; as a default mode from the colonial system.

4. What is CARICOM Jurisprudence…what is the new philosophical thinking and what are its 3 or 5 principles that - as a starting point - distinguishes it from what was there before?

The reason CARICOM could not distinguish a new jurisprudential model is that in none of the 15 member states have the national courts established a judicial mantra that is distinct.  There are no distinct, law journal articles or law books in the region of sufficient depth to initiate and announce a new jurisprudence.

Mr Justice Benjamin Cardozo of the U.S. Supreme Court 1932-1938, wrote “The Nature of the Judicial Process” extended from his Yale Lectures, where he outlined four modes for judicial interpretation:

The Four Methods of Interpretation

1. Method of Philosophy: Follows the path of logical progression and legal consistency, extending past rules to their logical conclusions.

2. Method of History: Traces the historical origin and evolution of a legal rule to see how past traditions should guide current meaning.

3. Method of Custom: Looks at community habits, social standards, and business practices to shape rules that reflect everyday behavior.

4. Method of Sociology: Prioritizes social justice, community welfare, and public utility, allowing the judge to act somewhat like a legislator when filling gaps in the law.

Before that, Blacks Law Dictionary in the English Legal Tradition was the foundational test for English law.

Where is our text that gathers up our experience and judicial insights in a single or series of documents?

What judicial philosophy are we following and what judicial formulas are we cultivating in our judgements?

We have no clue!

We just wanted a court based on racial ideology and this is exposed in the shocking irony that we establish a court merely to reject the British Privy Council, but in the new court our judges carry British titles.

Therefore, we want to reject the British courts but we are not sufficiently confident to establish our own titles to the extent that we need them, which exposes a fundamental insecurity to the point of schizophrenia!

We know that in CARICOM member states, 90 plus percentage of cases against governments fail, the opposite of what happens in the legitimate system like New Zealand, which has the finest court system in earth followed by Australia.

In our systems, governments ignore the courts, there is no leverage for the courts to compel compliance because of our corrupt systems and the citizen is thus disadvantaged by a government that disobeys the courts.

What if instead, before we established courts like the Caribbean Court of Justice (it should be “CARICOM Court of Justice”), we:

1. Commissioned an audit of the court systems of the 15 member states…so that the clams, complaints and concerns of citizens are assessed transparently?  That would have generated an immediate trust factor for the courts.

2. Commissioned a series of forensic articles on the assessment and a theory of CARICOM constitutional law and Jurisprudence?

3. Collected those articles into a book and follow that by inviting CARICOM graduate scholars to write research papers on those papers and the book.  That would have produced a deep intellectual foundation for a CARICOM Court of Justice”

4. Now imagine we established at UWI, a CARICOM judicial college, at which all those articles, books and research papers became the curriculum?  That would unify a judicial philosophy as the foundation of a new court system based on a CARICOM social and institutional perspective, rooted in the citizen’s experience with our judicial culture: that is literally the meaning of “jurisprudence”.  Failing to do that means we are just hacking through with no anthropological or cultural foundation to our institutional basis for the court except we want our own tings…and yet with British titles.

5. If we followed my proscription, when it was time to seek judges for the ‘CARICOM Court of Justice’, we would cross examine them in some CARICOM wide judicial hearing, determining whether they adhered to our judicial philosophy and how they adhered.  This cultivates trust in the institution and by this means, the CARICOM Court feels owned by CARICOM citizens.  We failed to take this approach because of our slapdash method of doing things, which is a reprobate and retrograde approach to institutional establishment.

I’ll not entertain the nonsense we usually prattle in which we say “oh I know judge so and so, he’s my friend and I can speak for him”.  How the devil is your private perspective or delusion sociology?  It is exactly that character of institutions that they don’t depend upon and cannot be defended by personal opinion.

CARICOM member politics is strickened by patronage, partisanship, economic oligarchy and plutocracy.

We are a series of cronyocracies!

As such, and implicitly, any legitimate CARICOM court would almost necessarily begin with astonishingly clarifying rulings against our governments, clearing out the old plantation structures which we never changed and constituent with a new judicial thinking…founded on our own texts and philosophical writings…we would remaking CARICOM societies according to a new judicial model as happened in the U.K. in the Somerset Case in 1772 and in the U.S. in Marbury V. Madison 1803.

Until we learn the meaning of institutional development and the process of anthropologising our institutional establishment, we’ll merely copycat existing institutions by default, right down to copying their titles. 

Professor Gilbert Morris

Source / Comment

The concurrence of Justice Brett Kavanaugh in Trump v. Barbara (2026)

JUSTICE BRETT KAVANAUGH’S TEASE: THE ILLUSION OF STATUTORY SUFFICIENCY

Justice Kavanaugh's Concurrence in Trump v. Barbara and the Structural Limits of Legislative Power Over the Citizenship Clause

By: Professor Gilbert N.M.O. Morris
Nassau, N.P., The Bahamas

Constitutional Jurisprudence Series

Abstract

This article examines the concurrence of Justice Brett Kavanaugh in Trump v. Barbara (2026), decided by the Supreme Court of the United States on June 30, 2026, and the popular misreading of that concurrence as a legislative shortcut around the Fourteenth Amendment's Citizenship Clause.(1)  The prevailing account, circulated widely in political commentary following the decision, holds that Congress may now, by ordinary statute, narrow birthright citizenship without recourse to Article V.  This article argues that such an account confuses three distinct constitutional operations, that Justice Kavanaugh's own language forecloses the reading given it, and that the arithmetic of the Court's five-justice constitutional majority renders any statute of the kind proposed presently unsustainable.

I. Axiom

A constitutional command operates as the ground upon which all statutes stands.  It is not one enactment among the many that Congress may set beside it, but the condition of their validity.  Where a statute contradicts a constitutional norm, the statute is void from its inception to the extent of the contradiction and its logical linguistic entrails, and no legislative majority, however durable, converts an ultra vires enactment into law by the mere act of passing it.

This axiom is not original to the present inquiry.  It is the axiom of Marbury v. Madison (1803), and it governs every subordinate question that follows.(2)

II. Definition

Three operations must be held apart, since the commentary surrounding Trump v. Barbara collapses them into a single undifferentiated act of "legislating on citizenship.

The first is the amending of a constitutional norm, reserved by Article V to two-thirds of both Houses of Congress and three-quarters of the states.

The second is the judicial construction of a norm's scope, which the Constitution commits to the courts alone (per Marbury aforementioned), and which the Supreme Court exercised in both the majority and the dissenting opinions of Trump v. Barbara.

The third is legislative implementation of a norm's non-self-executing particulars, exemplified by the citizenship statute Congress first codified in 1940 and carried into the Immigration and Nationality Act of 1952, presently codified at 8 U.S.C. - 1401(a), which gives procedural body to a substantive guarantee already complete in the constitutional text.(3)  The distinction between the second and third operations is the axis on which the entire controversy turns, for a statute enacted under the third power remains at all times subject to testing under the second.

III. Proposition

The proposition advanced by the circulated commentary is that Justice Kavanaugh's concurrence supplies Congress with authority, exercised through ordinary statute, to establish exceptions to birthright citizenship for children of parents unlawfully or temporarily present, and that this authority requires no constitutional amendment.  This article's counter-proposition is narrower and, I submit, more faithful to the opinion itself.

Justice Kavanaugh reasoned that the executive order failed under 1401(a) rather than under the Fourteenth Amendment, and stated that Congress could amend the statute or enact new legislation establishing such exceptions.(4)  The qualifying condition attached to that proposal is decisive. The new legislation, in his own formulation, must remain consistent with the Fourteenth Amendment.(4)

Whilst I have my own questions concerning Justice Kavanaugh’s jurisprudence, the opinion does not propose that ordinary statute may contradict the Amendment.  It proposes that the Amendment's own historical exceptions, the four exceptions recognized in United States v. Wong Kim Ark (1898), ought not be treated as fixed at 1868, since treating them as a closed set is, in his words, inconsistent with the Court's longstanding approach to constitutional interpretation.(5)

A statute drafted on this theory does not override the Amendment. It attempts to occupy a category the Amendment, properly construed, is argued already to contain.

IV. Proof

The distinction bears immediately upon the arithmetic invoked by proponents of the legislative-shortcut reading.  The vote in Trump v. Barbara was six to three as to invalidating the executive order, and five to four as to the constitutional ground for doing so.(6)  The five justices sustaining the constitutional holding, Chief Justice Roberts writing for Justices Kagan, Sotomayor, Barrett, and Jackson, form a majority against any exception-expanding theory whatsoever.  Justice Jackson wrote separately for the express purpose of rejecting a race-limited construction of the Fourteenth Amendment, arguing that the Reconstruction Amendments function as a civilisational reset rather than a race-specific remedy.(7)

Justice Kavanaugh's opinion, by contrast, stands alone in its structure, concurring in the judgment while dissenting from the constitutional reasoning.(8)  Justice Thomas, joined in part by Justice Gorsuch, argued a domicile theory holding that the Fourteenth Amendment extends citizenship only to those permanently domiciled within the United States, a broader and structurally distinct claim from Justice Kavanaugh's narrower test of exceptions relevantly similar to those already recognized.(9)  A future statute seeking constitutional sanction under Justice Kavanaugh's theory would therefore require the reconciliation of two dissenting positions that do not share a common doctrinal logic, and would require, further, the conversion of a single justice's concurrence into a majority holding, since a concurrence in judgment establishes no precedent binding a later panel.

V. Argument

What is noteworthy is the commentary under review - accusing Kavanaugh of holding a latch door open - performs the conflation the definitional section above was constructed to prevent.  It treats a single justice's hypothesis about a future controversy, a hypothesis contingent on litigation not yet filed and votes not yet secured, as an operative grant of legislative authority already completed.  This is a recognisable pattern in political rhetoric under conditions of urgency, wherein contingency is narrated in the grammar of accomplishment.  The declarative structure of the Citizenship Clause itself supplies the answer the commentary elides.  Chief Justice Roberts, writing for the majority, found no textual or historical warrant for reading a domicile limitation into the Clause's declarative grammar, observing that the Court's exhaustive review of the Clause's text and history identified no evidence that its ratifiers intended such a limitation.(10)  Justice Kavanaugh did not dispute this reading of the Clause's declarative force.  His disagreement is confined entirely to the closed-set question, a narrower terrain that leaves the sentence, ‘all persons born are citizens’, untouched as a governing rule, and contested only as to the outer boundary of its historical exceptions.

VI. Corollary

It follows that the phrase circulating in political commentary, that no constitutional amendment is necessary, is true only within the bounds of Justice Kavanaugh's own unadopted theory, and that theory has not commanded a Court.  It follows further that any statute enacted on the strength of this theory would arrive before the judiciary as an open constitutional question rather than as settled legislative territory, and would face, at minimum, the five-justice constitutional majority already on record against exception-expansion, together with the structural incompatibility between Justice Kavanaugh's relevantly-similar test and Justice Thomas' domicile theory, which cannot be harmonized into a single five-vote coalition without one side abandoning its own reasoning; a fear which seems to lie at the feet of Chief Justice Roberts…who has built a reputation of incongruent rulings, coming into coherence only after some unthinkable justice mischief has been done…such as gutting the Voting Rights Act or ceding disfiguring immunities to the Executive.

VII. Measured Restatement

Congress retains no power, under any opinion issued in Trump v. Barbara, to enact a statute directly contradicting the Fourteenth Amendment's guarantee of citizenship to persons born within the jurisdiction of the United States.  What Justice Kavanaugh's concurrence opens is a narrower and considerably more precarious avenue: legislation framed as an extension of the Wong Kim Ark exceptions, sustainable only if a future Court, differently constituted in its reasoning from the present one, adopts his characterisation of those exceptions as an open rather than closed category.

This is a wager upon future adjudication.  It is not a completed transfer of constitutional authority to the legislature.

VIII. Conclusion

Justice Kavanaugh's concurrence supplies a fourth analytical strand for the constitutional jurisprudence of Trump v. Barbara, distinct from Justice Thomas's domicile theory and Justice Jackson's genealogical method, and it exhibits, in miniature, the pattern this author has identified elsewhere in Chief Justice Roberts's jurisprudence this term: formal resolution of the judgment before the parties, joined to an unresolved structural lacuna, here the undefined boundary of the phrase relevantly similar, left open for future litigation to fill.  The lacuna is not a defect of careless draftsmanship.  It is the characteristic form by which this Roberts Court, term after term, resolves the case before it whilst declining to resolve the doctrine beneath it, a form worth naming; since a jurisprudence built upon the studied deferral of its own foundational questions is a jurisprudence that governs the present at the cost of cogency in the present and the coherence of the it’s constitutional future.

References

1. Trump v. Barbara, No. 25A-___ (U.S. June 30, 2026) (slip op.), as reported in "Trump v. Barbara," https://en.wikipedia.org/wiki/Trump_v._Barbara (accessed July 3, 2026)

2. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

3. 8 U.S.C. § 1401(a); Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163; Nationality Act of 1940, Pub. L. No. 76-853, 54 Stat. 1137.

4. Scott Bomboy, "Supreme Court Strikes Down Trump's Birthright Citizenship Executive Order in Landmark Decision," National Constitution Center (June 2026), https://constitutioncenter.org/blog/supreme-court-strikes-down-trumps-birthright-citizenship-executive-order-in-landmark-decision

5. "The Alarming Split in the Supreme Court's Birthright Citizenship Ruling," Salon (July 2, 2026), https://www.salon.com/2026/07/02/the-alarming-split-in-the-supreme-courts-birthright-citizenship-ruling/.

6. "Trump v. Barbara," supra note 1.

7. "Supreme Court Reaffirms Birthright Citizenship Under the 14th Amendment in Trump v. Barbara," FindLaw (June/July 2026), https://www.findlaw.com/legalblogs/supreme-court/supreme-court-reaffirms-birthright-citizenship-under-the-14th-amendment-in-trump-v-barbara/.

8. "Trump v. Barbara," supra note 1; SCOTUSblog, "Breaking Down the Birthright-Citizenship Decision" (2026), https://www.scotusblog.com/2026/06/breaking-down-the-birthright-citizenship-decision/.

9. FindLaw, supra note 7.

10.National Constitution Center-supranote 4

11.National Constitution Center, supra note 4 (reporting the decision's length at 194 pages).

Source / Comment