Saturday, November 7, 2026

WHERE DO WE GO FROM HERE? The Texas Blue Tsunami and the Crisis of Conservatism

 


WHERE DO WE GO FROM HERE?

The Texas Blue Tsunami and the Crisis of Conservatism

By James Scott Trimm

On November 3, 2026, something happened in Texas that many Republicans had convinced themselves could never happen.

Texas went blue.

Not just a little blue. Not merely a handful of competitive districts changing hands. We witnessed a political earthquake that swept Democrats into statewide offices Republicans had controlled for decades.

Greg Abbott lost the governorship to Gina Hinojosa. Dan Patrick lost the lieutenant governorship to Vikki Goodwin. Republicans lost the race for attorney general, and James Talarico defeated Ken Paxton for the United States Senate.

According to the Texas Secretary of State's unofficial election results, Hinojosa received approximately 5.23 million votes to Abbott's 4.52 million. Talarico received approximately 5.44 million votes to Paxton's 4.25 million.

See my recent analysis We Cannot Learn From a Defeat We Refuse to Acknowledge

These were not narrow victories that could be explained away by a few questionable ballots.

They were decisive defeats.

And yet, almost immediately, I began seeing fellow Republicans constructing elaborate theories about election fraud rather than confronting what happened.

I understand the disappointment. I share it.

But we cannot analyze what went wrong, reflect upon our mistakes, and determine how to succeed in the future if we refuse to acknowledge that we lost.

As a conservative, a former Texas legislative staffer, and someone who has worked within Republican politics, I believe we need to have a serious conversation.

Not merely about how Republicans lost an election, but about what has happened to the conservative movement itself.

Because I suspect that the two questions are closely related.


I. Did Texas Really Become More Liberal?

The first mistake we could make would be to assume that millions of Texans suddenly underwent an ideological transformation.

Did Texans suddenly embrace progressive economics, expansive government, and the entire Democratic platform?

I doubt it.

There is another possibility, and one that deserves serious consideration.

Perhaps Texas did not become dramatically more liberal.

Perhaps Republicans became less appealing to voters who still consider themselves conservative, moderate, independent, or libertarian.

Perhaps some voters who ordinarily support Republicans voted Democratic as a protest.

Perhaps others simply stayed home.

Perhaps Democrats treated this like a Presidential election, while Republicans treated it like just another midterms. 

And perhaps Democrats did a better job of motivating their voters to participate.

These possibilities are not mutually exclusive.

Indeed, I suspect that several things happened simultaneously.

To understand the election, we need to distinguish between two very different questions.

Why did some voters turn against Republicans?

And:

Why did some traditional Republican voters lack the enthusiasm to show up?

Those questions lead us toward a third, more uncomfortable question:

Has the Republican Party departed from the principles that once made it attractive to conservatives?


II. Why Did Voters Turn Against Republicans?

The Economy: The Cost of Living

There is an old political saying: It's the economy.

And while economic indicators can tell us one story, the family budget often tells us another.

Texans have faced years of rising costs.

Groceries, housing, insurance, electricity, and property taxes have placed enormous pressure on ordinary households.

Politicians may celebrate declining inflation, but declining inflation does not mean declining prices. It means prices are increasing more slowly.

For a family struggling to pay rent, buy groceries, or keep the electricity connected, that distinction matters.

And when voters are unhappy with economic conditions, they frequently hold the party in power responsible.

That does not necessarily mean the governing party caused every problem. It means voters expect results.

This economic frustration was undoubtedly part of the political environment in which Republicans entered the 2026 election.

But economics alone does not explain everything.

Public Education and School Vouchers

The school voucher controversy may also have contributed to Republican difficulties.  This was a policy that was even unpopular among many Republicans who feared it would come with more government regulation of private and homeschools.

Texas Republicans spent years fighting to establish an education savings account program, arguing that parents should have greater control over their children's education.

There is a legitimate conservative argument for educational choice.

But there were also concerns about the program's effect on public schools, particularly in rural communities where private educational alternatives may be limited or nonexistent.

Teachers, school employees, and parents concerned about public school funding had reasons to question the priorities of Republican leadership.

The political problem was not necessarily that these voters had become liberal.

Some may simply have concluded that Republican leaders were not adequately addressing their educational concerns.

The Delta-8 Controversy: Whatever Happened to Personal Liberty?

Another issue that deserves examination is the effort to restrict Delta-8 and other hemp-derived THC products.

Lieutenant Governor Dan Patrick became closely associated with efforts to prohibit these products.

Whatever one thinks about cannabis, the controversy raises a fundamental conservative question.

What business does government have dictating what an informed adult may choose to consume?

I understand the government's responsibility to prevent fraud, protect children, and ensure that products are accurately labeled.

But that is different from treating competent adults as though they are incapable of making their own decisions.

For chronic pain patients and others who use these products, restrictions can have very real consequences.

For small businesses operating within the existing legal framework, the threat of prohibition creates uncertainty and potential financial ruin.

And for libertarian-minded conservatives, the issue raises a familiar concern: nanny state-ism.

It is entirely possible that some voters who supported Republicans on taxes, firearms, and other issues became disillusioned when Republican leaders began restricting their personal choices and their relief from chronic pain.

Christian Nationalism and Religious Liberty

Another development within the contemporary right is the growing prominence of Christian Nationalism.

I am a religious man. My faith informs my understanding of morality, justice, and the proper relationship between individuals and government.

But religious conviction and government-imposed religion are not the same thing.

Conservatives have traditionally defended religious liberty.

That liberty belongs to everyone, including those whose religious beliefs differ from those of the political majority.

When government begins promoting particular religious doctrines, mandating religious displays, or using public institutions to advance a preferred religious identity, it raises questions about the proper limits of government.

Consider the controversy surrounding displaying the Ten Commandments in public schools.

Which Ten Commandments?

The Jewish numbering differs from some Christian traditions, and Christian denominations themselves do not all number them identically.

Who gets to decide which religious tradition the government will favor?

Texas Republicans did, when they passed a law requiring that a unique version of the Ten Commandments be placed in Texas classrooms and that no other version was valid.  They literally passed a law that makes it illegal to display the King James Version of the Ten Commandments in a Texas classroom, because it is not the State approved version. 

A government powerful enough to promote your religion today may be powerful enough to promote someone else's tomorrow.

Religious liberty means something more than freedom for whichever religious group happens to control the government.

The Rise of the Woke Right

For years, conservatives criticized the political left for identity politics, cancel culture, ideological conformity, and collective blame.

Yet some elements of the contemporary right have increasingly embraced similar methods.

This phenomenon has come to be called the Woke Right.

Instead of judging individuals by their character and conduct, some activists increasingly judge them by racial, ethnic, or religious identity.

Instead of defending freedom of speech, they seek to silence those who disagree.

Instead of opposing cancel culture, they practice their own version of it.

And perhaps most disturbing is the growing visibility of antisemitic conspiracy theories within certain far-right circles.

This is not conservatism as I understand it.

Individual responsibility means judging individuals as individuals.

Freedom of speech means defending the right to speak even when we dislike what is being said.

And equality before the law cannot coexist with racial or religious collectivism.

If these practices were objectionable when associated with the political left, they do not become acceptable merely because they are now being practiced by people who call themselves conservatives.

Perceived Corruption and the Trump Administration

Another possible source of voter dissatisfaction was the perception of corruption and conflicts of interest within the Trump administration.

Trump originally campaigned on promises to clean up Washington.

Yet his second administration became associated with controversies involving family business interests, cryptocurrency ventures, possible conflicts of interest, and questions about government oversight.

The administration and its defenders have disputed allegations of improper conduct.

And allegations, of course, are not proof of criminal wrongdoing.

But public trust does not depend exclusively on criminal convictions.

The appearance of conflicts of interest can itself damage confidence in government.

Conservatives have traditionally insisted that public officials must be accountable to the people.

That standard cannot depend on party affiliation.

If we would condemn questionable conduct by a Democratic president, we should be willing to scrutinize comparable conduct by a Republican president.

Otherwise, our concern is not government accountability.

It is partisan loyalty.

Republican Infighting and Political Exhaustion

Republican politics has also become increasingly dominated by internal conflicts, personality disputes, and accusations of ideological disloyalty.

Instead of debating policy, activists often find themselves debating whether someone is sufficiently loyal to a particular politician.

Instead of building consensus around conservative principles, factions compete to define who is a legitimate Republican.

This can exhaust ordinary voters.

Not everyone wants politics to become a permanent civil war.

And not everyone who disagrees with a Republican officeholder is a liberal, a RINO, or a traitor to the movement.

Sometimes disagreement is simply disagreement.

Sometimes it is a matter of principle.


III. Abbott's Endless Campaign Promises

There is another issue that I believe deserves special attention.

For years, Governor Greg Abbott repeatedly campaigned on major initiatives that seemed never to reach the finish line.

Consider the Texas border wall.

Abbott made construction of a Texas border wall a signature political issue.

There has been construction, and substantial public money has been spent.

But the wall remains far from the comprehensive barrier that many voters imagined when the project was announced.

Then there are property taxes.

How many election cycles have Texans heard promises of dramatic property tax relief?

How many times have we heard proposals that seemed to suggest property taxes might finally be eliminated?

And yet homeowners continue receiving substantial property tax bills.

To be fair, the Legislature has enacted significant property tax relief measures.

But reducing a tax burden is not the same as eliminating it.

In late 2025, as Abbott began another reelection campaign, he again advanced a proposal to abolish school property taxes on homeowners.

An election approaches.

A major conservative objective becomes the centerpiece of the campaign.

Promises are made.

The election passes.

The objective remains unfinished.

Then another election approaches, and the cycle begins again.

At some point, voters begin asking whether they are being offered a serious plan or another campaign slogan.

Republicans have controlled Texas government for decades.

How long should voters be expected to wait for results?

A political party cannot indefinitely campaign as though it were the opposition when it has been the governing party for a generation.

Eventually, it must be judged by what it has accomplished.


IV. Tarrant County: When Constitutional Principles Collide With Party Loyalty

Perhaps nowhere is the conflict between conservative principles and Republican partisanship more clearly illustrated than in my own county.

Tarrant County Judge Tim O'Hare became embroiled in a series of controversies involving restrictions on public comments at Commissioners Court meetings.

Citizens were removed from meetings. Some were arrested. Lawsuits were filed alleging violations of constitutional rights.

O'Hare defended the need for orderly public meetings, and government bodies do have authority to establish reasonable rules governing public participation.

But that authority is not unlimited.

The First Amendment does not disappear when a citizen enters a government meeting.

The controversy became particularly significant because opposition to O'Hare did not come exclusively from Democrats.

CJ Grisham: A Conservative Endorses a Democrat

Conservative gun-rights activist and attorney CJ Grisham filed a federal civil-rights lawsuit against O'Hare and Tarrant County.

His lawsuit alleged violations of constitutional rights arising from his treatment at Commissioners Court meetings.

The federal district court dismissed his lawsuit in April 2026, and Grisham appealed.

But Grisham did something else that illustrates the larger political problem.

He publicly endorsed O'Hare's Democratic opponent, Alisa Simmons.


 

In a Facebook statement, Grisham wrote:

“I am endorsing Alisa Simmons for Tarrant County Judge. She is the only one willing to stand up to the current Tarrant County Judge Tim O'hare.”

He then acknowledged something important.

He knew Simmons was a Democrat.

He did not agree with all her political positions.

But he believed her actions were more consistent with his understanding of constitutional rights than O'Hare's.

Grisham specifically cited his objections to O'Hare's treatment of First and Second Amendment rights.

Think about the significance of that.

Here was a conservative Second Amendment activist, someone deeply involved in defending constitutional rights, publicly supporting a Democrat over a Republican incumbent.

Not because he had suddenly embraced progressive ideology.

Not because he had abandoned the Second Amendment.

But because he believed a Republican officeholder had failed to respect constitutional principles.

That is Grisham's assessment, and his allegations against O'Hare should not be confused with established judicial findings.

Nevertheless, the political significance of the endorsement is unmistakable.

It demonstrates that at least some conservatives were willing to cross party lines over disputes involving constitutional rights.

And on November 3, Alisa Simmons defeated Tim O'Hare.

We cannot know from this example alone how many voters shared Grisham's reasoning.

But it illustrates something that Republicans would be foolish to ignore.

Being a conservative and being a loyal Republican are not necessarily the same thing.

A political party cannot assume that conservatives will support its candidates regardless of how those candidates govern.


V. Why Did Traditional Republican Voters Stay Home?

So far, we have considered reasons some voters may have turned against Republican candidates.

But that is only half the story.

The other question is why some traditional Republican voters may have lacked the enthusiasm to participate.

Trump Voters Are Not Necessarily Republican Voters

Donald Trump developed a political following that extends beyond traditional Republican Party loyalty.

Some people vote because Trump is on the ballot.

That does not necessarily mean they will show up for every Republican candidate in every election.

In 2024, Trump received more than six million votes in Texas.

In 2026, Republican statewide candidates received substantially fewer.

Those numbers cannot establish precisely how many Trump voters stayed home, because different elections have different electorates and turnout patterns.

But they demonstrate why Republicans must examine turnout rather than simply assume that everyone who voted for Trump will automatically vote Republican.

A political movement built around a personality may discover that enthusiasm for the personality does not automatically transfer to the party.

The Pro-Life Movement and Abortion Abolitionists

Another source of potential dissatisfaction lies within the pro-life movement.

For decades, the Republican Party presented itself as the political home of Americans committed to protecting unborn human life.

Yet the 2024 Republican National Platform substantially changed the party's traditional language on abortion.

The explicit call for a Human Life Amendment disappeared.

The platform emphasized state authority and expressed opposition to late-term abortion while supporting access to contraception and IVF.

For some pro-life activists, particularly abortion abolitionists, this represented a retreat from longstanding commitments.

Abortion abolitionists generally seek legal recognition and equal protection for unborn human life from conception.

They may regard a political platform that focuses primarily on late-term abortion as an unacceptable compromise.

I am not suggesting that such voters suddenly became Democrats.

The more relevant question is whether they remained sufficiently enthusiastic to participate.

A voter who believes his party has abandoned an essential principle may not switch parties.

He may simply stay home.

Second Amendment Voters

Something similar may have happened among gun-rights activists.

The 2024 Republican National Platform affirmed the right to keep and bear arms, but offered relatively little detail concerning additional firearms legislation.

For voters who had spent years advocating broader Second Amendment protections, that may have been disappointing.

Texas already has permitless carry, and some activists may have concluded that the Republican Party was offering little new progress.

Again, this is a hypothesis requiring further evidence.

But it raises an important question.

What happens when a political party assumes that its traditional supporters have nowhere else to go?

Some may vote for another party.

Others may stop participating.

And still others may become politically active against Republican incumbents, as CJ Grisham's example demonstrates.

Complacency

For decades, Republicans could generally assume that Texas would remain red.

That assumption may have become one of their greatest weaknesses.

When political leaders believe victory is inevitable, they may stop listening.

When activists believe their votes are taken for granted, they may stop showing up.

And when a political party begins treating its traditional constituencies as captive voters, it risks discovering that loyalty has limits.


VI. Has the Republican Party Lost Its Conservative Principles?

This brings me to what I believe is the deeper issue.

The election may have been about more than individual candidates, unpopular policies, or economic dissatisfaction.

It may also have exposed a growing philosophical contradiction within the Republican Party.

I became a conservative because I believe in certain principles.

Limited government.

Individual liberty.

Personal responsibility.

Fiscal restraint.

Free enterprise.

Constitutional government.

Separation of powers.

Freedom of speech and conscience.

Religious liberty.

Equality before the law.

These are not merely campaign slogans.

They are the philosophical foundation of conservatism as I understand it.

And they should not change depending on which political party controls the government.

Yet increasingly, I see Republicans defending policies that appear inconsistent with the principles they once championed.

From Personal Responsibility to Government Paternalism

I remember Rush Limbaugh criticizing government efforts to dictate how Americans should live in regards to health when certain blue jurisdiction sought to regulate a limit on the size of fountain drinks.

Whether it involved smoking, diet, or other personal decisions, the underlying conservative argument was that adults should be responsible for their own choices; Personal Responsibility.

Government could inform people about risks.

But it should not assume responsibility for making every citizen live according to an officially approved lifestyle.

Now we have the Make America Healthy Again (MAHA) movement, brought into the Republican coalition by Robert F. Kennedy Jr.

Let us remember that Kennedy originally ran for president as a Democrat. He subsequently became an independent before endorsing Donald Trump and joining his administration.

There is nothing inherently wrong with welcoming former Democrats into the Republican coalition. Nor does someone's former party affiliation automatically invalidate his ideas.

But we should ask whether those ideas are consistent with the conservative principles we claim to defend.

There are legitimate public health concerns involving food safety, transparency, environmental hazards, and misleading information.

But there is a fundamental difference between ensuring that Americans can make informed decisions and using government power to make those decisions for them.

The same principle applies to the Delta-8 controversy.

At what point did the nanny state become a conservative virtue?

If personal responsibility means anything, it must include the freedom to make personal decisions that government officials may consider unwise.

From Fiscal Conservatism to Trillion-Dollar Deficits

Republicans spent decades criticizing "tax and spend" Democrats for excessive spending and increasing the national debt.

Fiscal responsibility was supposed to be one of the defining characteristics of the conservative movement.

Then came the One Big Beautiful Bill.

Whatever its merits in other areas, the legislation carried enormous fiscal consequences.

The Congressional Budget Office estimated that the 2025 reconciliation law would increase federal deficits by trillions of dollars over the following decade.

Republicans may argue that tax reductions encourage economic growth or that particular spending priorities are justified.

Those arguments deserve consideration.

But fiscal responsibility cannot mean opposing deficits only when Democrats are responsible for them.

The national debt does not become less dangerous because a Republican president signs the legislation.

If we believe that government should live within its means, that principle must apply regardless of who occupies the White House.

From Free Trade to Protectionism

For much of the modern conservative movement, free enterprise and free trade were central economic principles.

Ronald Reagan generally defended international trade and warned against protectionism, although his administration sometimes adopted trade restrictions.

The Republican Party's earlier history included a strong protectionist tradition, but the Reagan-era conservative movement generally emphasized competition and open markets.

Now tariffs have become a centerpiece of Republican economic policy.

A tariff is a tax on imported goods, generally paid initially by the American importer.

The economic burden may then be distributed among businesses, consumers, and foreign producers.

Tariffs can sometimes serve strategic or national-security purposes.

But broad protectionism raises fundamental questions about the proper role of government in the economy.

If conservatives oppose government picking winners and losers, why should Washington decide which industries deserve protection from foreign competition?

If conservatives oppose higher taxes, why should taxes on imports be treated differently?

And if affordability is a major concern among voters, should Republicans not examine whether their own trade policies are contributing to higher costs?

Economic nationalism and free-market conservatism are not necessarily the same philosophy.

We should be willing to acknowledge the difference.

From Constitutional Restraint to Executive Government

I remember Republicans criticizing Barack Obama for attempting to govern through executive orders.

The argument was straightforward.

Congress makes the laws.

The president executes them.

The Constitution establishes a separation of powers precisely to prevent excessive concentration of authority.

Yet many of the same Republicans who criticized Obama now celebrate Trump's extensive use of executive orders.

Not every executive order is unconstitutional.

Presidents possess legitimate executive authority, and executive orders can be appropriate instruments for administering existing law.

The issue is whether executive action exceeds constitutional or statutory limits.

But the standard should be consistent.

If unilateral executive policymaking was objectionable under Obama, it should be objectionable under Trump.

Constitutional principles do not change when the presidency changes hands.

From Religious Liberty to Christian Nationalism

Conservatives have long defended religious liberty against government interference.

But religious liberty is not the same as government-sponsored religion.

The state should protect the right of individuals and religious communities to practice their faith.

It should not determine which religious tradition deserves government preference.

A government powerful enough to favor Christianity today may be powerful enough to favor another religion tomorrow.

Or to suppress religious practices altogether.

The conservative answer to religious diversity should not be government coercion.

It should be religious liberty.

From Individualism to the Woke Right

Conservatives traditionally rejected identity politics because it treats people as members of groups rather than as individuals.

Yet portions of the contemporary right have embraced racial and religious collectivism, ideological purity tests, and cancel culture.

Some have even entertained antisemitic conspiracy theories.

These developments deserve criticism on their own terms.

But they also reveal a philosophical inconsistency.

If we believe individuals should be judged by their conduct rather than their ancestry, that principle must apply universally.

If we believe in freedom of speech, we must defend it even for people with whom we disagree.

And if we oppose collective blame, we cannot make exceptions for groups we happen to dislike.

The principles either apply to everyone or they are not principles at all.

From Government Accountability to Partisan Loyalty

Perhaps the most troubling development is the tendency to treat criticism of Republican officials as disloyalty.

A Republican president can be criticized.

A Republican governor can be criticized.

A Republican county judge can be criticized.

Their party affiliation does not exempt them from constitutional limitations, ethical standards, or public accountability.

The example of CJ Grisham and Tim O'Hare is particularly instructive.

Grisham's public endorsement of a Democrat did not require him to renounce his conservative principles.

In his view, it was precisely those principles that motivated his decision.

One may agree or disagree with his assessment.

But the broader question remains.

Are we loyal to principles?

Or are we loyal to politicians?


VII. Where Do We Go From Here?

I do not believe the answer is to abandon conservatism.

Quite the opposite.

I believe the first task is to distinguish conservatism from Republican partisanship.

The Republican Party is a political organization.

Conservatism is a political philosophy.

The two have often been closely associated, but they are not identical.

A political party is a vehicle for advancing principles.

It is not an end in itself.

When the vehicle begins moving in a direction inconsistent with its stated purpose, the appropriate response is to examine the direction.

That does not mean every conservative must agree on every policy.

Conservatives can reasonably disagree about the best methods of achieving legitimate objectives.

But there must be a recognizable philosophical foundation.

Limited government cannot mean limited government only when Democrats are in power.

Fiscal responsibility cannot mean opposing deficits only when Democrats propose them.

Freedom of speech cannot mean protecting speech only when Republicans approve of the speaker.

Religious liberty cannot mean liberty only for the politically favored religion.

Free enterprise cannot mean free markets only when government approves of the results.

And individual responsibility cannot mean personal freedom only when government approves of the choices individuals make.

These principles are not negotiable.

They are what make conservatism conservatism.

We Must Be Willing to Examine Our Own Leadership

One of the most destructive habits in contemporary politics is the assumption that criticizing one's own party helps the opposition.

Sometimes criticism is necessary precisely because we care about the principles the party claims to represent.

Republican leaders should be judged by their actions.

Not their speeches.

Not their campaign advertisements.

Not their promises.

And certainly not merely by the letter following their names on the ballot.

If a governor repeatedly promises to eliminate property taxes, voters are entitled to ask what has actually been accomplished.

If a county judge claims to defend constitutional rights, citizens are entitled to scrutinize how he treats people who criticize him.

If a president promises fiscal responsibility, voters are entitled to examine the fiscal consequences of his legislation.

And if a political party claims to stand for limited government, its supporters are entitled to question policies that expand government authority over individual decisions.

That is not disloyalty.

That is accountability.

We Must Understand the Republican Coalition

The Republican Party has long included several different philosophical constituencies.

Economic conservatives.

Social conservatives.

Libertarians.

Religious conservatives.

Constitutional conservatives.

National-security conservatives.

And, increasingly, populists and economic nationalists.

These groups do not always agree.

Indeed, some of their fundamental assumptions about government's proper role are in tension.

The challenge is not merely finding campaign slogans broad enough to appeal to everyone.

It is determining which principles genuinely unite the coalition and where its members disagree.

Those disagreements should be discussed openly.

A coalition held together only by opposition to Democrats may find itself struggling to explain what it actually stands for.

And a movement defined primarily by loyalty to a political personality may find that its support does not transfer automatically to other candidates.

We Must Stop Taking Voters for Granted

Republican leaders should not assume that conservatives will vote Republican simply because the alternative is a Democrat.

That assumption may have worked for a long time.

But political loyalty is not unlimited.

Voters expect their elected officials to represent their principles, address their concerns, and deliver results.

Some voters may express dissatisfaction by changing parties.

Others may support particular candidates across party lines.

Still others may simply stay home.

The election results alone cannot tell us precisely how many voters acted for each reason.

But the possibility that Republicans alienated portions of their own coalition deserves serious examination.

We Must Become the Adults in the Room

There is something else we need to do, and perhaps it is long overdue.

We need to become the adults in the room.

Frankly, too much of our political behavior has resembled that of twelve-year-olds.

Somewhere along the way, we allowed our political priorities to shift from defending limited government, individual liberty, and constitutional principles to simply “sticking it to the libs.”

And that is not a political philosophy. It is a playground mentality.

When Democrats governed through executive orders, we condemned executive overreach. But when our own president does the same thing, too many of us respond with the political equivalent of a twelve-year-old saying, “Well, they started it!”

Since when did someone else's misconduct become a justification for abandoning our own principles?

If executive overreach is wrong, it is wrong regardless of who occupies the White House.

If excessive government spending is wrong, it is wrong regardless of which party controls Congress.

If government censorship is wrong, it is wrong regardless of whether the people being silenced are conservatives or liberals.

And when we lose an election, what do we do?

Too often, rather than examining why voters rejected our candidates, we behave like sore losers on a playground, pointing at the other team and shouting, “He cheated!”

Certainly, credible allegations of election irregularities should be investigated. But allegations require evidence. Losing an election is not itself evidence of fraud.

We cannot learn from defeat if we refuse to acknowledge it.

We cannot correct our mistakes if we insist that we made none.

And we cannot expect voters to take us seriously if we behave as though political victory is more important than the principles we claim to defend.

Conservatism is supposed to be about limiting government, not about getting even with liberals.

The purpose of winning an election should not be to acquire the power to do unto our political opponents what we complained they did unto us.

It should be to govern according to the principles we profess.

That requires maturity. It requires consistency. And sometimes it requires the courage to tell people on our own side that they are wrong.

We do not need to become better at playing the same partisan games.

We need to grow up and remember what we believed in before politics became a contest to see who could stick it to the other side.


VIII. Principles or Party?

The 2026 election was a political earthquake.

Texas Republicans lost offices they had controlled for decades.

There will be endless debate about the reasons.

Some will blame the economy.

Some will blame Trump.

Some will blame particular candidates.

Some will blame Republican infighting.

Some will blame Israel or the Jews. 

Others will point to unpopular policies, demographic changes, Democratic mobilization, or Republican complacency.

There may be truth in several of these explanations.

But I believe we should also confront a deeper question.

What does it mean to be a conservative?

Is conservatism a commitment to limited government, individual liberty, personal responsibility, fiscal restraint, free enterprise, and constitutional government?

Or has it become little more than a political identity defined by opposition to Democrats and loyalty to Republican politicians?

I know where I stand.

I was a conservative before many of today's Republican leaders entered politics.

My principles did not originate with Donald Trump, Greg Abbott, Dan Patrick, or any other elected official.

And they will not change because those officials win or lose an election.

The Republican Party has been an important political vehicle for advancing conservative principles.

But the party is not the principles.

And if we confuse the two, we risk sacrificing the very things that made us conservatives in the first place.

So where do we go from here?

Before we can answer that question, we must be willing to ask another.

Are we committed to conservative principles, or are we merely committed to the Republican Party?

Because if our principles change depending on who holds political power, they were never really principles to begin with.

 

 

------ 

Thursday, November 5, 2026

We Cannot Learn From a Defeat We Refuse to Acknowledge

 

 


We Cannot Learn From a Defeat We Refuse to Acknowledge

by James Scott Trimm 

I am seeing far too many of my fellow Republicans responding to the Blue Tsunami in Texas by constructing conspiracy theories about election fraud rather than confronting what actually happened.

One popular claim is that Democrats somehow manufactured 5.2 million votes because Democratic gubernatorial candidates received only about 3.5 million votes in both 2018 and 2022.

But that argument conveniently ignores the fact that Joe Biden received 5,259,126 votes in Texas in 2020. There was never a 3.5-million-vote ceiling for Democrats in Texas.

Texas also entered the 2026 election with a record 19 million registered voters, approximately 1.36 million more than in 2022.

But there is another important factor that deserves attention: What happened to the Republican voters who turned out for Donald Trump in 2024?

Consider these numbers:

2024 Presidential Election

  • Donald Trump: 6,393,597 votes

  • Kamala Harris: 4,835,250 votes

2026 Gubernatorial Election (reported totals)

  • Greg Abbott: 4,456,531 votes

  • Gina Hinojosa: 5,177,452 votes

The difference is revealing:

  • Republican candidate: 1,937,066 fewer votes

  • Democratic candidate: 342,202 more votes

  • Combined two-candidate turnout: 1,594,864 fewer votes

Think about that.

Abbott received nearly TWO MILLION fewer votes than Trump received just two years earlier!

Now, presidential elections typically attract more voters than gubernatorial elections, and we cannot assume that every Trump voter would necessarily vote for Abbott. Nor can we determine from these totals alone exactly how many Trump voters stayed home.

Nevertheless, the enormous difference between Trump's 2024 vote total and Abbott's 2026 vote total raises serious questions about Republican turnout.

Meanwhile, the Democratic gubernatorial candidate received only about 342,000 more votes than Harris received in 2024.

The Republican decline was more than five times the size of the Democratic increase.

These are the kinds of numbers we should be examining rather than immediately assuming election fraud.

I have spent decades working in Republican politics, including serving on a legislative staff. I understand that winning elections requires hard work, effective strategy, and an honest assessment of the political landscape.

We need to ask difficult questions.

Why did the Republican gubernatorial candidate receive so many fewer votes than Trump? How much of that difference was ordinary midterm turnout decline? How many voters stayed home? How many changed their votes? What issues motivated the electorate?

These are questions that require serious analysis, not conspiracy theories.

We cannot analyze what went wrong, reflect upon our mistakes, and develop a strategy for future success if we refuse to acknowledge that we lost.

Blaming election fraud without evidence may make some people feel better about the outcome, but it does nothing to help us understand it.

You cannot correct a problem you refuse to recognize.

-James Scott Trimm 

Friday, August 7, 2026

The Surveillance State and the Fourth Amendment: Big Brother is Already Here

 

 

The Surveillance State and the Fourth Amendment: Big Brother is Already Here

By James Scott Trimm

George Orwell's 1984 introduced the world to the chilling phrase, "Big Brother is watching you." For decades many dismissed Orwell's vision as a warning about distant totalitarian regimes. Yet today the question is no longer whether government possesses the ability to monitor nearly every aspect of our lives. It does.

The real question is whether the Constitution still places meaningful limits on that power.

A recent Supreme Court decision involving digital location data signals that the Court is beginning to recognize a reality the Founders could never have imagined: modern technology has made it possible for government to reconstruct the private lives of ordinary citizens with unprecedented precision.

From General Warrants to Digital Databases

The Fourth Amendment was born out of the Founders' hatred of British "general warrants" and "writs of assistance," which allowed officials to search broadly without individualized suspicion.

The Framers answered with a simple constitutional principle:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...."

The Founders never envisioned smartphones, GPS satellites, artificial intelligence, or cloud databases.

But they understood something timeless:

Unchecked government power always seeks more power.

Today's equivalent of the general warrant is no longer a British customs officer searching your home.

It is a government official typing your name into a computer.

The New Surveillance State

Modern technology has quietly created a surveillance network unlike anything in human history.

Today government can often determine:

  • Where you drive through automated license plate reader systems.

  • Where your cellphone has traveled.

  • Your financial transactions.

  • Your internet activity.

  • Who you communicate with.

  • Your controlled-substance prescription history.

Each program is usually defended separately.

"We're only tracking stolen cars."

"We're only monitoring controlled substances."

"We're only collecting metadata."

"We're only fighting fraud."

But these systems are not isolated.

Together they create something far more powerful.

They create a digital biography of your life.

The Whole Is Greater Than the Parts

Seeing one car pass a traffic camera reveals very little.

Seeing every place that same vehicle has traveled over the last two years reveals almost everything.

Likewise, knowing that a patient filled one prescription tells little.

Knowing every controlled-substance prescription that patient has received for years reveals intimate details about chronic illness, disability, pain management, mental health treatment, surgeries, injuries, and more.

Modern surveillance is not dangerous because of any one observation.

It is dangerous because computers can combine millions of observations into a comprehensive portrait of an individual's life.

When Even Your Dog Becomes Part of Your Government File

Perhaps one of the least-known aspects of the surveillance state is that, in many states, controlled-substance prescriptions written for your pet are reported to the state's Prescription Drug Monitoring Program using the owner's identifying information. National best-practice guidance acknowledges that veterinary prescriptions are often linked to the owner's identity and recommends safeguards because those prescriptions can otherwise become associated with the owner's prescription history.

Think about that for a moment.

Medication prescribed for your dog or cat can become associated with your government profile.

National guidance even recommends excluding veterinary prescriptions from opioid risk scores, MME calculations, and automated clinical alerts because they can otherwise distort the owner's record. The fact that such guidance is necessary demonstrates that the risk is real enough to require formal recognition.

I am personally aware of a heartbreaking case in which a dog suffering from severe pain could not obtain appropriate controlled medication because the owner was a chronic pain patient themselves already having a legitimate opioid prescription. The animal ultimately had to be euthanized.

Whether such cases are common or rare is almost beside the point.

Even one such tragedy should force us to ask whether these surveillance systems have exceeded their proper constitutional limits.

If a government database cannot reliably distinguish between medication prescribed for me and medication prescribed for my dog, how much confidence should we place in that database when it influences healthcare decisions?

The Threat to Chronic Pain Patients

Those of us who work to defend the rights of chronic pain patients have watched the growth of government prescription surveillance with increasing concern.

Prescription Drug Monitoring Programs were created to combat diversion and doctor shopping.

That may or may not have been a legitimate objective.

But the existence of a legitimate objective does not eliminate constitutional limits.

Every prescription.

Every physician.

Every pharmacy.

Every refill.

Every dosage adjustment.

Over time, these databases accumulate some of the most intimate information imaginable about a person's life.

This is not merely medical information.

It is behavioral information.

It reveals where you sought treatment, when your pain worsened, when you underwent surgery, when you changed physicians, and sometimes even where you traveled.

It is a remarkably detailed window into a person's private life.

Privacy Is Not About Hiding Wrongdoing

Whenever concerns about surveillance are raised, someone inevitably says:

"If you have nothing to hide, you have nothing to fear."

That argument misunderstands liberty itself.

Privacy is not secrecy.

Privacy is freedom.

We close the curtains in our homes not because we are criminals, but because free people are not expected to live every moment under observation.

The Fourth Amendment exists to protect innocent citizens from unnecessary government intrusion.

It does not exist to protect criminals.

The Jeffersonian Warning

Thomas Jefferson repeatedly warned that liberty is rarely lost all at once.

It disappears gradually.

One surveillance program seems reasonable.

One database seems harmless.

One exception to the warrant requirement appears justified.

But eventually government acquires the ability to reconstruct nearly every aspect of every citizen's life.

History teaches us that powers granted for one purpose are eventually used for others.

The danger is not merely today's officials.

The danger is tomorrow's.

Big Brother Is Already Watching

George Orwell imagined giant television screens observing every citizen.

Reality has become even more sophisticated.

Today we voluntarily carry tracking devices in our pockets.

Our automobiles announce where they travel.

Our purchases become permanent records.

Our prescriptions become searchable databases.

Even medication prescribed for our pets can become associated with our personal government profile.

Big Brother no longer needs cameras inside our living rooms.

He simply needs enough databases to assemble the puzzle.

The Constitutional Question

Technology undoubtedly makes law enforcement more efficient.

Efficiency, however, is not the highest constitutional value.

Liberty is.

The Supreme Court has begun recognizing that the Fourth Amendment must retain real meaning in the digital age.

The same constitutional principles that protect our location history should also cause us to ask difficult questions about mass surveillance through prescription databases, automated license plate readers, financial monitoring, and countless other forms of digital tracking.

The Founders rejected general warrants because they understood a timeless truth:

Government should never possess unlimited authority to reconstruct the private lives of free citizens without meaningful constitutional safeguards.

George Orwell warned that Big Brother would watch us.

Perhaps the greater danger is that we have become so accustomed to being watched that we no longer think to ask whether a free people should tolerate it at all.

 Constitutional rights are rarely surrendered in one dramatic moment. They are eroded gradually, one "reasonable" exception at a time.

Trading Liberty for Security

Throughout history, governments have almost always justified expanding their powers in the name of security.

We are told surveillance is necessary to stop crime.

To fight terrorism.

To prevent fraud.

To stop drug diversion.

To protect children.

To keep us safe.

The objectives may be sincere. Some are unquestionably legitimate. But history teaches that every expansion of government power carries with it the potential for abuse.

There is an old warning, often attributed to Benjamin Franklin:

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

Whether or not Franklin intended those words to apply to every circumstance in which they are quoted today, they express a principle that lies at the heart of the American constitutional tradition.

Freedom and security are not opposing values. A constitutional republic exists to preserve both. But when government pursues security by steadily eroding constitutional protections, it eventually undermines the very liberty it was created to defend.

A people who accept constant surveillance in exchange for promises of greater safety often discover that they have gained neither.

The surveillance expands.

The databases grow.

The exceptions to the Fourth Amendment multiply.

Yet crime persists.

The promise of perfect security is never fulfilled because perfect security is impossible.

What is lost, however, is very real.

Every warrantless search normalized.

Every new database created.

Every new exception carved into the Bill of Rights.

Every assumption that "if you have nothing to hide, you have nothing to fear."

Each one chips away at the freedom of ordinary citizens while offering no guarantee that society will actually become safer.

The Founders understood something that remains true today: liberty is not preserved by trusting those in power. It is preserved by limiting their power.

If we sacrifice freedom for the promise of security, history suggests we will ultimately lose both.

The Fourth Amendment was never intended merely to protect our homes from physical intrusion. It protects something even more fundamental: the right of a free people to live their lives without the government compiling a permanent dossier on their movements, associations, finances, medical care, and daily activities absent individualized suspicion and meaningful judicial oversight. In the digital age, the "papers and effects" of the Founding Era have become databases, servers, and cloud storage. The principle, however, has not changed.

For once the government acquires extraordinary powers over its citizens, those powers are rarely surrendered voluntarily. Once government possesses the power to watch everyone, it no longer needs to prove why it is watching anyone. That is precisely the kind of arbitrary power the Fourth Amendment was written to prevent. If we fail to defend that principle today, we should not be surprised to awaken tomorrow and discover that Big Brother is no longer a warning from fiction, but a description of reality.

 

Saturday, June 13, 2026

P.A.R.T. Texas and Chronic Pain Patients Score Major Victories in the New Texas GOP Platform

 


P.A.R.T. Texas and Chronic Pain Patients Score Major Victories in the New Texas GOP Platform

By James Scott Trimm

The 2026 Texas Republican Convention concluded with significant victories for chronic pain patients, physicians, and medical freedom advocates across the state.

Among the thousands of delegates gathered to shape the future of the Texas Republican Party, a growing grassroots movement ensured that the voices of chronic pain patients were heard.

Just ten months after its founding, P.A.R.T. Texas (Pain Awareness Right to Treatment) successfully organized patients, educated delegates, worked with convention participants, and helped secure platform language supporting the rights of chronic pain patients and the physicians who treat them.

The result is the strongest pro-patient, pro-physician language ever included in a Texas Republican Party Platform.

For years, chronic pain patients have faced growing obstacles to care. Physicians have practiced under increasing regulatory pressure. Medication shortages have disrupted treatment plans and left patients struggling to obtain medicines they have taken safely and successfully for years.

At this year's convention, delegates recognized these concerns and adopted platform language that directly addresses many of the issues affecting both patients and physicians.

Protecting Physicians from Government Interference

One of the most important victories appears in Plank 132 of the Texas Republican Party Platform.

The platform now calls for protecting physicians from interference by the Texas Medical Board, the Texas State Board of Pharmacy, and the federal government in their treatment plans and prescribing decisions.

P.A.R.T. Texas played a direct role in securing this victory.

During the platform process, advocates successfully worked to amend the language so that it included protection from interference by the federal government. This addition expanded the plank beyond state regulatory reform and affirmed a broader principle: medical decisions should be made by doctors and patients, not government bureaucracies.

For chronic pain patients, this language recognizes a reality that has become impossible to ignore. Many physicians increasingly report that fear of government scrutiny influences treatment decisions. The platform now acknowledges that physician autonomy and the doctor-patient relationship deserve protection.

Due Process Protections for Physicians

Plank 132 also calls for significant reforms to Texas Medical Board procedures, including:

  • Eliminating confidential complaints against physicians.

  • Eliminating anonymous medical witnesses.

  • Mandating legal due process.

  • Allowing physicians to have complaints heard in state district court.

  • Preventing conflicts of interest among board members.

  • Prohibiting intimidation tactics by board attorneys.

These reforms help ensure that physicians can practice medicine without fear of unfair or politically motivated proceedings.

Patients benefit when physicians can exercise independent medical judgment without unnecessary regulatory intimidation.

A Major Victory for the Break the Bottleneck Act

Another important victory appears in Plank 133, which encourages Texas to promote pharmaceutical manufacturing, supply chains, storage, and availability of medical products within the state.

This plank closely aligns with the goals of the Break the Bottleneck Act, legislation developed by P.A.R.T. Texas to address medication shortages affecting chronic pain patients and others who depend upon medically necessary treatments.

The legislation would encourage pharmaceutical manufacturing within Texas and strengthen the state's medical supply infrastructure, helping reduce shortages and improve access to needed medications.

By adopting Plank 133, convention delegates recognized the importance of expanding pharmaceutical production and strengthening Texas' ability to meet the medical needs of its citizens.

Grassroots Advocacy Works

Perhaps the most remarkable aspect of these victories is how quickly they were achieved.

P.A.R.T. Texas was founded less than a year ago.

In just ten months, the organization has grown from a new advocacy effort into a recognized voice for chronic pain patients and physicians. Through grassroots organizing, patient engagement, delegate education, and direct participation in the convention process, P.A.R.T. Texas helped ensure that chronic pain patients were represented in the policy discussions that shape the future of Texas.

These platform victories demonstrate that when patients organize, educate, and participate in the political process, they can make a difference.

The Next Step

A party platform is not legislation.

The next challenge is transforming these principles into public policy.

The inclusion of these planks gives legislators a clear signal that Texas Republicans support physician autonomy, due process, pharmaceutical manufacturing expansion, supply-chain resilience, and policies that protect access to medically necessary treatment.

P.A.R.T. Texas intends to continue working with lawmakers, physicians, and patients to turn these platform principles into legislative action.

The convention is over.

The legislative fight begins.

And thanks to the efforts of dedicated patients, physicians, delegates, and advocates, chronic pain patients enter that fight with important new allies and significant victories already on the board.

 

Chronic Pain Should Not Be a Partisan Issue

While we are encouraged by the actions taken at the Texas Republican Convention, chronic pain is not a Republican issue, a Democratic issue, or an Independent issue.

Chronic pain is a human issue.

People living with severe chronic pain come from every political background, every faith, every race, every income level, and every community in Texas. Pain does not ask whether someone is a Republican or a Democrat before it enters their life.

P.A.R.T. Texas is grateful to the delegates and leaders of the Texas Republican Party who listened to the concerns of chronic pain patients and adopted platform language supporting physician autonomy, patient access to care, due process, and medication availability.

At the same time, we believe that protecting the rights of chronic pain patients and the physicians who treat them should unite Americans rather than divide them.

As the Texas Democratic Party prepares to hold its convention later this month, we hope Democratic delegates will likewise consider adopting platform language supporting the doctor-patient relationship, access to medically necessary treatment, physician autonomy, and policies that prevent unnecessary suffering for Texans living with chronic pain.

Patients deserve advocates in both parties.

The challenges facing chronic pain patients are too important to become casualties of partisan politics.

P.A.R.T. Texas stands ready to work with anyone—Republican, Democrat, Independent, or otherwise—who is willing to support policies that protect patients, respect physicians, and ensure that Texans living with chronic pain are treated with dignity, compassion, and common sense.

Disclosure: The author, James Scott Trimm, serves as President of P.A.R.T. Texas (Pain Awareness Right to Treatment) and P.A.R.T. USA, 501(c)4 nonprofit advocacy organizations dedicated to protecting the rights of chronic pain patients and the physicians who treat them. He has been actively involved in the efforts discussed in this article, including advocacy related to the Texas Republican Party Platform and proposed legislation affecting chronic pain patients.

 

Saturday, April 11, 2026

The Case for Overturning Plyler v. Doe Starts with the Constitution’s “Invasion” Clause

 

 

The Case for Overturning Plyler v. Doe Starts with the Constitution’s “Invasion” Clause

By James Scott Trimm 

 

For more than forty years, one Supreme Court decision has quietly shaped a major part of American public policy:

Plyler v. Doe.

In that case, the Court held that states must provide public education to children who are in the country unlawfully, based on the Equal Protection Clause of the Fourteenth Amendment.

That ruling has long been treated as settled law—untouchable, unquestioned, and inevitable.

But what if it rests on an assumption the Court never actually examined?


The Hidden Assumption Behind Plyler

Plyler depends on a simple premise:

Anyone physically present within a state is “within its jurisdiction” under the Fourteenth Amendment.

That premise sounds straightforward. It also sounds intuitive.

But it is not as absolute as it appears.

Because the Supreme Court itself has already said otherwise.


What the Court Has Already Recognized

In United States v. Wong Kim Ark, the Court explained that jurisdiction under the Fourteenth Amendment is not purely geographic.

It incorporates longstanding principles from the common law.

And those principles include exceptions.

Among them:

  • children of foreign diplomats
  • children born on foreign public ships
  • and most importantly—
  • those born to “enemies within… during a hostile occupation”

That language matters.

Because it tells us something the Court in Plyler never fully addressed:

Jurisdiction has limits.


The Constitution’s Forgotten Clause

Now consider something else the Constitution says.

Article I, Section 10 provides that a State may not engage in war unless:

it is “actually invaded”

That phrase is not symbolic.

It is not rhetorical.

It is a constitutional condition—one that carries legal consequences.

And it raises a critical question:

What happens to the Constitution when that condition exists?


A Question the Court Has Never Answered

Here’s the key point:

The Supreme Court has never answered that question.

It has:

  • recognized that invasion and hostile occupation limit jurisdiction
  • recognized that the Constitution itself uses the concept of invasion

But it has never brought those two ideas together.

It has never asked:

If the Constitution recognizes invasion…
and the common law says invasion limits jurisdiction…
then what happens to Fourteenth Amendment jurisdiction when invasion conditions exist?


The Role of the States

The Constitution doesn’t leave this entirely abstract.

Article I, Section 10 allows states to act when they are “actually invaded.”

That only makes sense if states can determine, in real time, whether those conditions exist.

In other words:

The Constitution assumes that states can recognize invasion conditions—even without waiting for federal approval.

That’s not a political claim.

That’s a structural necessity.

If states could not do that, the clause would be meaningless.


Who Bears the Cost?

There is also a reality that cannot be ignored.

In Texas, public education is funded largely through property taxes. Those taxes are not abstract. They are paid by homeowners, small businesses, and families across the state.

And for many Texans, they are becoming unsustainable.

People are struggling to keep up with rising property tax bills. Some are being forced to sell homes they have lived in for years—sometimes decades—because the cost of staying has simply become too high.

Against that backdrop, the question becomes unavoidable:

What is the constitutional basis for requiring Texas taxpayers to fund the education of those who are in the country unlawfully?

This is not a question of compassion. It is a question of constitutional limits and public obligation.

If the Fourteenth Amendment truly requires it, then that is one thing.

But if that requirement rests on an incomplete or overly broad interpretation of “jurisdiction,” then taxpayers are being compelled to bear a burden that the Constitution itself may not impose.

And that matters.

Because constitutional interpretation is not just an academic exercise. It has real consequences—paid for in real dollars—by real people.


Why This Question Matters

The issue, then, is not simply immigration policy.

It is not simply education policy.

It is a question of whether the Constitution has been interpreted in a way that:

  • expands obligations beyond its original limits
  • ignores recognized exceptions to jurisdiction
  • and imposes costs on citizens that may not be constitutionally required

If that is the case, then the issue is not just legal.

It is structural.


The Logical Consequence

If the Constitution is read as a coherent whole, the answer cannot be:

“Nothing.”

Because we already know:

  • The common law recognizes that invasion changes jurisdiction
  • The Supreme Court has adopted that principle
  • The Constitution explicitly recognizes invasion as a condition

Those three facts cannot all be true—and yet have no legal effect.


What This Means for Plyler v. Doe

The ruling in Plyler rests on the assumption that jurisdiction is universal for anyone physically present.

But if invasion conditions alter jurisdiction—as the Court has already acknowledged in principle—then that assumption cannot be absolute.

That doesn’t automatically overturn Plyler.

But it does something just as important:

It exposes the boundary the Court never examined.

And once that boundary is examined, the foundation of Plyler begins to shift.


The Argument in Full

What I have outlined here is not a political slogan.

It is a constitutional argument grounded in:

  • the text of the Constitution
  • the structure of Article I, Section 10
  • the common law principles recognized in Wong Kim Ark
  • and the unresolved tension between those principles and Plyler

Because this issue deserves to be addressed carefully and rigorously, I have set out the full legal argument in the appendix that follows.

It is written in the form of a formal legal brief:

Brief on the Constitutional Meaning of “Invasion” and Its Effect on Fourteenth Amendment Jurisdiction

ARGUMENT

I. The Fourteenth Amendment’s Concept of “Jurisdiction” Incorporates Established Common Law Limitations

The Citizenship Clause of the Fourteenth Amendment applies only to those “subject to the jurisdiction thereof.” This limitation is not merely geographic. The Supreme Court has made clear that the phrase incorporates longstanding principles derived from the common law and the law of nations.

In United States v. Wong Kim Ark, the Court undertook an extensive review of English common law, including the Commentaries of Blackstone, and concluded that birthright citizenship is subject to historically recognized exceptions. 169 U.S. 649, 654–68 (1898). Among those exceptions are children born to foreign diplomats, children born on foreign public ships, and those born to “enemies within” during a “hostile occupation.” Id. at 658–59, 693.

These exceptions were not created by the Court. Rather, they reflect preexisting common-law limitations on jurisdiction. As Blackstone explained, while birth within the sovereign’s dominion generally confers allegiance, that rule does not extend to “the children of enemies, born here during and in consequence of a hostile occupation.” 1 William Blackstone, Commentaries on the Laws of England 366 (1765).

Similarly, Vattel recognized that ordinary rules of allegiance and citizenship are displaced under conditions of enemy occupation. Emer de Vattel, The Law of Nations bk. I, § 212 (1758). Although the Court in Wong Kim Ark ultimately grounded its holding in English common law rather than Vattel’s formulation, it acknowledged these authorities as part of the broader law-of-nations framework. 169 U.S. at 667–68.

Accordingly, the Fourteenth Amendment must be understood to incorporate these common-law limitations, including those arising under conditions of invasion or hostile incursion.


II. The Constitution Recognizes “Actual Invasion” as a Legally Operative Condition

Article I, Section 10 provides that a State may not “engage in war” unless “actually invaded” or in such imminent danger as will not admit of delay. This provision is not merely a restriction; it is also a recognition of a constitutional condition—“actual invasion”—that carries legal consequences.

The historical record confirms that this clause was adopted with deliberate attention to the need for States to respond to immediate threats. As Madison explained, the limitation on State war powers was adopted “with great deliberation,” and qualified to allow State action when “actually invaded” or in imminent danger. The Federalist No. 43, at 293 (James Madison) (Clinton Rossiter ed., 1961).

This clause would have little practical effect if States lacked the ability to recognize when such a condition exists. The more coherent reading is that the Constitution contemplates that States may determine, in the first instance, whether conditions amount to an “actual invasion,” at least for purposes of exercising the powers conditioned on that determination.


III. The State of Texas Has Invoked the Constitution’s Invasion Provision

The State of Texas has invoked Article I, Section 10’s “actual invasion” provision in response to conditions along its southern border. In litigation, Texas has asserted that it is acting pursuant to its constitutional authority to respond to an invasion. See United States v. Abbott, No. 23-50632 (5th Cir. 2023).

Although the courts in that case did not resolve the merits of Texas’s invasion claim, they acknowledged its presentation and declined to adjudicate it in that context. As a result, the constitutional meaning and implications of “invasion” remain unresolved at their outer boundaries.

Importantly, the existence of a constitutional condition does not depend upon prior judicial declaration. Article I, Section 10 recognizes invasion as a condition that may arise in fact and be acted upon by a State when circumstances require.


IV. The Original Constitutional Structure Presupposes a State Role as First-Instance Fact-Finder

The original structure of the Constitution reflects the Framers’ intent that States retain the ability to respond independently to conditions of invasion or imminent danger. Article I, Section 10 does not merely restrict State authority; it creates a conditional exception permitting States to act when such conditions exist.

That structure necessarily presupposes that States would determine, in the first instance, whether those conditions are present, because the exercise of the powers granted by the clause depends upon that determination. To require prior federal or judicial recognition would render the clause ineffective in precisely those circumstances—disagreement or delay—for which it was designed.

In this respect, the State functions as a first-instance finder of fact as to the existence of invasion conditions. This role does not displace judicial review, but reflects the original constitutional design, in which States were expected to respond to immediate threats without awaiting federal confirmation.

The Tenth Amendment confirms this structure by reserving to the States those powers not exclusively delegated to the federal government. Because the Constitution does not assign the determination of invasion solely to the federal government—and instead conditions State action upon it—the States necessarily retain this fact-finding role within the original constitutional framework.


V. The Constitutional Recognition of Invasion Must Inform the Scope of Fourteenth Amendment Jurisdiction

Because the Fourteenth Amendment incorporates common-law limitations on jurisdiction, and because invasion is a condition historically associated with such limitations, the Constitution’s recognition of invasion must inform the scope of jurisdiction under the Fourteenth Amendment.

At common law, as recognized in Wong Kim Ark, persons present during conditions of hostile occupation were not fully subject to the sovereign’s jurisdiction. 169 U.S. at 658–59, 693. This principle reflects the understanding that extraordinary conditions—such as invasion—alter the ordinary legal relationship between individuals and the sovereign.

Article I, Section 10 provides the constitutional mechanism for identifying when such extraordinary conditions exist. Where a State has invoked that provision, it has recognized the presence of a condition that is functionally analogous to the “hostile occupation” described in Wong Kim Ark.

The Constitution should be interpreted as a coherent whole. It would be inconsistent to recognize invasion as a condition that alters the distribution of governmental power while simultaneously holding that it has no effect on the scope of jurisdiction under the Fourteenth Amendment.


VI. Persons Present Under Conditions of Constitutionally Recognized Invasion Fall Outside the Full Scope of Fourteenth Amendment Jurisdiction

Where individuals are present under conditions that a State has constitutionally recognized as an “actual invasion,” they are not situated in the same manner as persons present under ordinary conditions. Rather, they are present within a context that the Constitution itself identifies as extraordinary.

Under the common-law principles incorporated into the Fourteenth Amendment, such conditions give rise to limitations on jurisdiction. As a result, persons present under conditions of constitutionally recognized invasion fall outside the full scope of “jurisdiction” contemplated by the Fourteenth Amendment.

This conclusion does not require the Court to redefine immigration law or to overturn existing precedent wholesale. Instead, it requires only that the Court recognize the interaction between two established principles:

  1. The Fourteenth Amendment incorporates common-law limitations on jurisdiction; and
  2. The Constitution recognizes invasion as a legally significant condition.

VII. This Case Presents a Distinct Question Not Resolved by Existing Precedent

The rule articulated in Plyler v. Doe, 457 U.S. 202 (1982), presumes ordinary territorial jurisdiction. It does not address the distinct question presented here—whether persons present under conditions of constitutionally recognized invasion fall within the same jurisdictional category.

Accordingly, this case does not require the Court to reject Plyler, but rather to determine the outer boundary of the jurisdiction that Plyler presumes.


CONCLUSION

The Constitution recognizes “actual invasion” as a condition with legal consequences. The Supreme Court has recognized that such conditions historically limit the scope of jurisdiction. These principles must be read together.

Where a State has invoked the Constitution’s invasion provision, the resulting condition must inform the scope of “jurisdiction” under the Fourteenth Amendment. Persons present under such conditions therefore fall outside the full scope of constitutional jurisdiction.

The Court should so hold.

 


A Final Thought

The Constitution is not a blank check.

It defines both rights and limits—and when those limits are ignored, the cost does not disappear. It is simply shifted onto someone else.

For decades, Plyler v. Doe has been treated as settled law, based on an assumption about “jurisdiction” that was never tested against the Constitution’s own recognition of invasion or the common-law limits the Supreme Court itself has already acknowledged.

If that assumption is incomplete, then the obligation built on it is as well.

And that means Texas taxpayers may be carrying a burden the Constitution never required them to bear.

At some point, that question has to be faced.

Not politically.
Not emotionally.

But constitutionally.

Because if the Constitution still means what it says—then its limits matter just as much as its promises.

And when those limits are restored, the law must follow.