Kavanaugh's dissent is kinda hilarious in this context.
> The original
constitutional principles do not change absent a
constitutional amendment, but the relevant principles—
both the rules and exceptions alike—must be faithfully
applied not only to circumstances as they existed in 1787,
1791, and 1868, for example, but also to modern situations
that were unknown or unanticipated by the Constitution’s
Framers.
I've laughed ever since United States v. Jones (2012), the GPS tracker-stuck-to-vehicle case.
The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. This prompted the famous hypothetical of an officer secretly squeezing into the trunk of a horse-drawn carriage to track someone's movements over several days.
The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
> no practical way to ever update the Bill of Rights in the 21st century
What on earth do you mean? The practical way is the same as it always was: subsequent amendment. The fact that it requires consensus is a feature.
This reads the same way as people who say things like “we just have to accept that Congress is broken and can’t pass new legislation.” Like hell we do!
This. Getting enough states to agree on a change would be a fool's errand I think. It seems like the reds and blues can't agree on anything at all any longer.
I agree 99% with you, except when it comes to these enormous data centers. When you look at the local zoning committee meetings, you're seeing Reds, Blues and Ind mostly calling for a moratorium on build sites in their communities.
>The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791.
Redcoats in your home, comparing notes with all the other redcoats who live in your buddies house and hassle your bartender, watch the comings and goings of everyone else around town, etc, etc.
The slow pace of change is a feature, not a bug. It's fine to wait decades or centuries until we have broad consensus before making amendments. While this might seem maddeningly frustrating or unjust in the short term, in the long term it makes our republic more stable. The USA has had an uninterrupted system of government since 1789. How many other major countries can say the same?
In what sense has it ground to a halt? Eight amendments have been ratified in the past 100 years. I think some people are taking a very short-term view here and lack a historical perspective.
Let's see how those other countries are doing 100 years from now.
A government structure that changes isn’t inherently bad. The US has gone through multiple iterations just by reinterpreting a document. Other countries tend to be a bit more explicit in this.
The US in 2026 operates fundamentally differently than in 1910, and both are unrecognizable to 1801.
The document was written when there were 13 states, and at best, appetite for a mere handful of others to join. For example, the degree of the weaponization of state-carving in the mid-19th century wasn’t in the cards. A 26 member upper legislature operates substantially different than one comprised of 100 members.
The scaling laws involved here are worth precise study.
A high majority requirement seems reasonable as you have less and less members. It prevents one person from coming in and convincing two other people to completely change how things operate.
But the optimal majority requirement which balances rigidness and flexibility certainly trends downward as an organization grows. By how much? I'd like to know.
> The USA has had an uninterrupted system of government since 1789.
Sort of. We had a civil war. We had a second founding. Then we had violent overthrowing of the reconstruction governments in the south. It has been less than 100 years since the US has provided the franchise to everybody, and even then this is a bit questionable.
Instead of constitutional amendments we get aggressive reinterpretation of the text by politically motivated efforts to change the courts. Despite no change to the constitution itself we've created criminal immunity for presidents and overturned interpretations regarding separation of powers than have been in place for a century.
Well it's a feature in that the ratification rules were part of an intentional illicit rewrite of the constitution. We could make it easier to modify like other nations, but that also makes it easier to repeal.
I think the fix is to require more political parties to be involved, so a 51% majority of a single party can't remove federal laws whenever they have a majority. Then you wouldn't need an amendment to solve controversial problems.
Anything requiring bipartisanship can be gamed with synthetic parties, the legitimacy of which will surely be deemed a nonjusticiable political question.
> The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
Of course there is, it is just being done - the constitution is being rewritten out right now by supreme court. All you need is a majority on a 9 person commission.
That said, breech loaders were used by the British during the Revolutionary War (the Ferguson Rifle) and multiple shots from a single barrel using multiple "touch holes" was well known.
> The U.S. has the 28th-highest rate of deaths from gun violence in the world: 4.31 deaths per 100,000 people in 2021. That was more than seven times as high as the rate in Canada, which had 0.57 deaths per 100,000 people — and about 340 times higher than in the United Kingdom, which had 0.013 deaths per 100,000.
> US homicide rates were 7.0 times higher than in other high-income countries, driven by a gun homicide rate that was 25.2 times higher. For 15- to 24-year-olds, the gun homicide rate in the United States was 49.0 times higher. Firearm-related suicide rates were 8.0 times higher in the United States, but the overall suicide rates were average. Unintentional firearm deaths were 6.2 times higher in the United States. The overall firearm death rate in the United States from all causes was 10.0 times higher. Ninety percent of women, 91% of children aged 0 to 14 years, 92% of youth aged 15 to 24 years, and 82% of all people killed by firearms were from the United States.
We have more firearm homicides per capita than other prosperous countries have total homicides via all methods.
> Because words have meaning, and ‘handgun’ can mean anything from a muzzle loading musket to a literal MAC-10 that can fire 1800 rounds per minute.
Yes, that's what this thread's about. You argued Gatling guns being legal makes gun control overall silly; someone else noted that the theoetical regulatory gap exists because in practice no one uses Gatling guns in crimes.
> And if you can’t understand or articulate what is going on, then good luck doing anything about it?
I think 25x the gun homicide rate effectively articulates what's going on. Do you disagree?
And for any given thing that meets the criteria for ‘handgun’, what percentage do you think has ever been used in any significant number of crimes or accidents? I’m guessing way less than 1%.
Either by make/model, or by individual items. Statistically, by item, it’s likely .001% territory.
So again, care to make your screaming more coherent? Right now you seem to be doing the equivalent of screaming about ‘cars kill people’. When, okay, there are a lot of car accidents. Plenty of people murdering each other with cars too!
But how does that add anything to the conversation?
and I gave an example of a historically high power piece of military equipment that would still strike fear in anyone on the other side of it - that is also completely legal to own in even a high ‘ban’ state like California - and apparently also not ‘causing a lot of crime’. there are new manufacture ones out there. they are pretty cool! [https://tippmannordnance.com/gatling-guns/].
Fully automatic guns maybe not, but the founding fathers definitely knew about repeating firearms, they had more than a few offers to purchase them, both for military uses and as private citizens. They just denied to because it was expensive to purchase and maintain.
No. While originalists and textualists purport to refuse to extend any principle into the modern day ("no right to privacy in 3A, 4A, etc"), one they do is that 2A doesn't merely apply to arms of the day, but also to modern arms. It's... pretty blatant.
Electric presses seem to be covered by the 1st amendment, and there's a much bigger "output" difference between electric presses and manual presses than there is between machine guns and flintlocks. (Not to mention that flintlocks weren't the most sophisticated personal firearms in the 1770s, just the most common.)
Trump v. United States tells you everything you need to know about the jurists who claim to follow those doctrines. There isn’t a shred of originalism or textualism supporting it.
The NRA has a lot of overlap, but Reagan was never particularly pro-gun - he was literally a California Actor, and it was under him that most federal gun laws were passed. (1984 GCA being huge)
In many ways, he was just really good at pretending to be/pushing folks on the rights buttons, while being a smokescreen for all the other laws that people needed to pass. In that way, a lot like Trump is right now.
Notably, Reagan also had dimentia/Alzheimer’s through a large portion of his terms, not that it is related to our current situation at all…
Depending upon whether or not you think the Constitution is a living document, a modern reading of 2A could reasonably include things like explosives, drones, radar, etc., but maybe exclude things like nukes, fighter jets, biochemical weapons, other purely offensive things. I'm very pro-gun regulation, but I think this would be a fine reading as long as we're doing the same thing across the Constitution, i.e. substantive due process.
But while conservatives love modern readings of 2A, they deny modern readings of anything else. So they have to find some way to fit their desired outcomes into originals/textualism, leading to absurd dilemmas like "either the founders meant muskets or they meant nukes", or tortured standards like scanning all firearm or self-defense laws in effect around the late 18th century to discern intent, which predictably do not emerge from consistent foundational principles because their authorship is scattered across space and time and thus really are no help... unless of course you cherry pick shamelessly.
It's an interesting legal question. Around the time that the US Constitution was written there were private citizens who owned artillery pieces and even entire warships.
If you can afford either of those you have enough invested in the system that you probably won't use it lightly and if you don't you should and that's kind of the system's problem.
This is true, but then one should be able to assume that the justice wouldn't neatly fall along partisan lines whenever they choose to be an originalist or not. When it always toggles on and off ever so conveniently along partisan boundaries, that's when it looks dubious.
There's a difference between textualist and originalist. There isn't a dichotomy between textualist and living-constitutionalist frameworks only but the two former may overlap. Also the same reasoning you are using applies to people who are living-constitutionalists and suddenly become textualists.
My favorite argument (presented by a constitutional scholar) against originalism is that a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person.
Edit: the scholar is Kate Shaw. She presents her arguments a lot more coherently than me, seeing as it’s her life’s work. I advise you read her scholarly work or watch her interviews especially on Originalism rather than try to squeeze an argument out of me.
Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?
You misunderstand, or I didn’t explain it well, because you’re making the same argument that the constitutional scholar is making against originalists.
By narrowly interpreting the text exactly as a WL18CWM would have interpreted it (e.g. black people are not people), they’re not leaving room for interpretations of the constitution that would provide equal rights to people who are not WL18CWM:
- The constitution grants rights
- The authors have a bias (WL18CWM)
- Originalists essentially ignore this bias, leading to fewer or restricted rights to people who are less similar to WL18CWM
>If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible?
An entirely fair law might not be possible, at least as long as people with specific class/race/gender interests overwhelmingly influence it. But a somewhat fair law or a law fairer than another, is.
And, at least as I understand it, the scholar doesn't say that nobody is ever "capable of reasoning outside of their class/race/gender/etc position" in general. Just that those making the constitution weren't that good at it.
> Just that those making the constitution weren't that good at it.
They were exceedingly good at it. In my country’s constitution we have all sorts of things from the american constitution, like due process, because we literally have no indigenous words for these concepts.
They were extremely good, but they were not near angelic geniuses gathered together and possessed of greater wisdom and capacity by virtue of that gathering than any people ever before or since, which is what many people who like to talk up the founding fathers would have.
They wrote the most influential constitution in the world which has governed the longest-lived extant republic. Most who claim to be smarter have offered mere ideas, never implemented in a real country. Such academic notions often self-destruct when confronted with reality. (I’m reminded of Ashraf Ghani, the professor who “wrote the book” on “Fixing Failed States.” When he was elected President of Afghanistan to actually put his ideas into practice, it was a disaster and resulted in the Taliban reconquering the country. Ideas without implementation are worth nothing.)
And some other country might be liking those Founding Fathers concepts' even more.
So? Doesn't change the fact that they weren't very good with not letting class/race/gender/etc position influence their policy making.
And that's the claim we're discussing whether they've been good at, not whether they came up with some good new concepts like "due process" and "the right to free speech".
They had "due process" but they also had slavery.
They had "equal rights" and voting but not for poor not land-owning plebes or women.
They had "free speech" but also McCarthyism.
Their constitution didn't prevent laws describing how e.g. blacks can't sleep in the same hotels or go to the same schools as whites to be applied and be considered compatible with it.
And didn't prevent a globally huge per capita prison system, primarily targeting blacks, even today.
> Such mass fratricide for the sake of non-kin was completely unprecedented in history. Africans never did that. Middle Easterners never did that. Asians never did that.
That also means that only in America brother fought against brother to preserve slavery. Not something to brag about.
Most of these other countries were able to abolish slavery* without having half their population preferring fratricide over freeing their slaves.
> One where (mostly British) Americans killed hundreds of thousands of their own cousins to free enslaved people belonging an entirely different ethnic group
A quote from The Great Emancipator's inaugural address: "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so." [1]
Abolition wasn't the war aim at the outset. Preserving the Union was Lincoln's goal. He did everything he could to prevent the slave states from seceding.
Abolition became a goal halfway through the war.
"The abolition of slavery became a Union war goal on January 1, 1863, when Lincoln issued the Emancipation Proclamation, which declared all slaves in rebel states to be free". [2]
Which makes sense. If half your countrymen are driven to take up arms against the other half just to keep some people in bondage, you may as well end that evil institution. Otherwise they're bound to try again.
*With varying degrees of success in the actual implementation.
You're ignoring the context of the point--it's not about "bragging." We were discussing the quote above that someone is "disenfranchised" by adhering to the original meaning of the constitution "roughly in proportion to how much they share in common with" "white men." But following that logic to its conclusion leads to absurd results.
By that logic, non-white people would have been less "disenfranchised" if the constitution had been written by people who matched their skin color. But, in fact, that's not true! Slavery was abolished in Africa by force by the British Empire, or else in the 20th century due to international pressure. Those societies never developed large-scale indigenous movements to abolish slavery. So if you were an enslaved person in America, you would have been worse off if the constitution had been written by people from your country of origin! Your best-case scenario would have been to have more of the colonies be populated by Puritans and Quakers, who ultimately proved willing to kill other British people to end the practice of slavery. But Puritans and Quakers were "white" too!
The point is that principles transcend race, and focusing on skin color similarity with the founders (or lack thereof) is sophomoric. The constitution was written by "white" men, but the people living under it today are the spiritual and cultural descendants of those men--even the ones who superficially resemble the African and Middle Eastern counterparts of the American founders.
I didn't really follow the long discussion thread y'all were having. I just dislike Civil War revisionism and interjected with a correction.
For me, the British Empire's battle against the Atlantic Slave trade is a worthier example of Western (and especially Anglo) abolition efforts than your example of the American Civil War.
Your second paragraph does not make the argument you seem to intend. Most other places in the world did not require an incredibly bloody civil war in order to (partially) abolish slavery.
Southern antebellum culture was so beyond the pale it not only “didn’t think slavery was wrong,” it thought slavery was so good and so fundamental to its way of life that “mass fratricide,” as you put it, was preferable to abolition.
What’s the endgame of your argument here? It reeks of American exceptionalism of the type where its citizenry is not allowed to critically assess the effectiveness of its systems because other systems are somehow worse in some facets. This entire response is whataboutism.
Should disenfranchised Americans simply roll over because there are people more disenfranchised in other places in the world? Are some forms of disenfranchisement more acceptable than others? E.g. as long as we can narrowly interpret the words of the founding fathers (originalism) to be in favor of it?
>You’re complaining about where the founders didn’t follow their principles to their logical conclusions. But you overlook that you’re using the founders’ own principles to criticize how they fell short
Which is irrelevant, since it's not their influence on modern principles and their related concepts that's in question, but to whether "a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person.
It's precisely to the degree we don't interpet the consitution "as written by wealthy, landed 18th century white men", and, for example, extend it to women, blacks, the non land-owning poor, etc, that's
So, again: if you lived in a place that interpreted the constitution exactly in the way the "wealthy, landed 18th century white men" wrote it and interpreted it, e.g. as not incompatible with no-universal vote, few women rights, slavery and seggregation, and no free-speed by the way, would you be disenfrancized or not?
It's not the "Fathers" that de-disenfranchized the modern masses. It's people (including blacks) fighting, establishing newer protections, ammendments, and laxer interpretations, contrary to what the "wealthy, landed 18th century white men" constitutional practice was.
> You can’t even articulate the complaints you’re making using concepts indigenous to Asia, Africa, or the Middle East.
Ah, moving the goalposts again, from just the Constitution to also including Europe (which hopefully I established did many of these things first, and some better, and some much much earlier), the new ask being to find similar things "indigenous to Asia, Africa, or the Middle East".
Which exist. Even in ancient practices. And not just Greeks and Romans. Public deliberation, assemblies, and criticism of those in power have been found as practices all around the world, from egalitarian indigenous societies, even when not having a shorthand rallying cry like "free speech".
>You talk about slavery. But the countries those slaves were from enslaved their own people and sold them to America. Those cultures didn’t think slavery was wrong.
That's not an argument about how those "wealthy, landed 18th century white men" didn't still disenfrachize slaves. It's an excuse about how some other groups did it too. It might have been relevant response, had I claimed those other groups didn't disenfrachize slaves. But I didn't.
>It was the “0 to 1” step that was the hard one from which everything else followed.
Finally, that's an actual argument to the issue under discussion.
May I paraphrase it as "Sure, the founding fathers e.g. disenfrachized blacks etc, but their principles created the foundations for e.g. eventually abolishing slavery (that's an important 0 to 1 step)"?
And yet, tons of other places have either abolished, or practically zeroed, slavery, long before the Constitution was created. Didn't take a whole bloody war to achieve that either.
And we have no reason to believe the same modern changes wouldn't have happened without the Constitution, since parallel developments happened anyway, from Swiss cantons to the British Magna Carta, Bill of Rights, and the rest.
If anything the US in 1787 weren't ahead of the global curve. They were behind the other emerging constitutional states in accepting and even actively establishing constitutional support for slavery (like with the Three-fifths compromise and the Fugitive Slave clause). Even Japan had abolished slavery earlier!
> it's not their influence on modern principles and their related concepts that's in question
No, that’s exactly the question. You’re saying that the constitution protects non-white people less because it was written by white people. The logical follow-up is to ask what the constitution would look like if it had been written by non-white people. That would solve the problem, right? In that scenario, people would share more “in common” with the hypothetical non-white framers, right? That would mean they would be more enfranchised, right?
For example, what if the framers had been Bangladeshis like me? Under your logic, I’d be more enfranchised by such a constitution, because I share more “in common” with those hypothetical Bangladeshi framers. But in reality, I’d be less franchised! Because we had no indigenous notions of democracy, civil rights, due process, free speech, etc. I’m actually better off that the framers were white British people than I would have been if the framers had been my own ancestors! Similarly, what if the constitution had been written by people from west africa? The people enslaved during the founding would have been enslaved under that constitution as well!
So the original premise is false. If you’re Asian, or African, or Middle Eastern, you wouldn’t be more franchised in a counterfactual scenario where your ancestors wrote the constitution according to the precepts that prevailed in your own ancestral lands.
Also there’s the difference between intention and interpretation. The authors may have been extremely well-intentioned with regards to the fairness of their laws by writing broadly, but interpreting their writing narrowly robs the authors of their intentions. Ironically, originalists may be less fair than the original authors.
Yeah... It all falls apart under the bare minimum observation that woman and non-white people were property. And that even white men who did not own land were treated as second-class citizens.
We have no concept of free speech, due process, or individual rights in Asia where I’m from. Where I’m from, if the community doesn’t like you, we can just drive you out of the community. Am I “disenfranchised” by having to live in a liberal democracy created by white men?
Well, the same white men created Jim Crow and seggregation.
If you were a black man would you have been disenfranchised when those laws were in force?
I'd say yes.
The fact that it was/is worse elsewhere, e.g. in some places in Asia, doesn't make the critique (of how white Constitutional/law makers historically disenfranchised certain demographics in the US) invalid.
> you were a black man would you have been disenfranchised when those laws were in force?
In a counter-factual world where the founders hadn’t exported their ideas all over the world, I’d be disenfranchised in my own home country! Because everyone was disenfranchised. Everyone was a serf.
In the real world, as a black, you would be disenfranchised in the US, even into the 1960s (and even now in certain systemic aspects), and the Constitution didn't prevent that. In fact it was written by people owning slaces or disenfranchizing blacks, the poor, and women, themselves.
And what we're debating in this subthread, is whether "a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person".
The fact that the constitution inspired changes "all over the world" doesn't change that fact.
Regarding slavery, which is something somewhat major you'd agree, the Constitution didn't even inspire enough within the US itself, since it took until the Civil War (and, more importantly, it took a civil war) to get it abolished.
>Because everyone was disenfranchised. Everyone was a serf.
You try to paint it as some unique development, but things like Magna Carta and habeas corpus (and even a bill of rights) already existed, as you're aware, the Swiss cantons had democratic (even direct democratic) institutions and the landsgemeinde system, and other such developments.
Slavery too had already disappeared in practice in western europe, but also many other places, centuries earlier. Which is likely why you had to change it to "serfdom", but even that wasn't applicable. The British, the Dutch, and other peoples had also quit (or effectively quit) serfdom as well, before the Constitution. Why, even russia (famous for its miserable serfdom system) had abolished serfdom right about before the Civil War!
Those rights came to exist in the west in response to kings and tyrants doing whatever they wanted at the expense of their subjects. Also because communities sometimes do bad things to people not able to simply drive away. Pretty sure Asia has had it's share of human rights abuses.
You are disenfranchised when your judicial branch interprets law in a way that disproportionately benefits only the people who are most similar to the authors.
Also, how wealthy are you? Why did you bring up your race instead of how much land you own? Why pull the culture war into this? Certain interpretations of the constitution disproportionately benefit people who own a lot of land.
You seem to lack an understanding of technical legal terms in US courts, which is frankly pretty usual even for US citizens.
"Franchise" is the right to vote. Disenfranchisement is legal prohibition against voting. Social behaviors have nothing to do with it.
"Jus soli" is a legal term in English, defined by the chief authority (Black's Dictionary of Legal Terms) as rights achieved by one's place of birth (instead of by one's parentage).
Diplomats are only partially subject to civil law as you have claimed. There is also no practical leverage available to the courts if their funds are not stored in places subject to US jurisdiction. So, a minor backing for your claim, but one that is not in practice applied, nor considered relevant by precedent in regards to the XIVth.
I'm sorry you're being attacked so vociferously in this thread, as you are arguing in good faith with the knowledge you have, but your knowledge base is insufficient for the confidence you show.
You don't have to be a constitutional scholar to see it's bullshit.
Just the fact that originalism implies an ability to perfectly know what the dead from 1788 meant with each word in every situation. It's a ludicrous proposition.
They are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period. The fact all of that was predictable makes it just so frustrating to see it play out in real time
The problem with the US balkanizing is that there's not really any such thing as a 'red state' or a 'blue state'. Every 'red state' has some blue cities, and every 'blue state' has some red rural areas. Pretty sure California has more Republican voters than any state except Texas. So partitioning on state lines doesn't really work. Maybe over time people could migrate, but using South Carolina as an example, the two largest cities in the state would largely have to empty out. The state would cease to function.
When I see all the rot on the news I really wonder what the alternative is. It’s all so absurd I just wonder if there is a point where people just move on and form a new country / government and let the other country do ufc on the lawn or whatever.
Did you mean to write "America" instead of "the United States"? Because when the continent had only American Indians, there was no United States. And in fact for a long while after it was founded, they were excluded from citizenship.
Regardless, I'm sure we both agree that European conquest and colonization represented a giant change. It's false to imply that another such change isn't a change, by virtue of it happening once before already. Or to imply that therefore, the country is compelled to submit to such a change.
Four of the justices dissented on something that by any reasonable reading should have been a unanimous decision. That is a BIG problem because that means that almost half of the Supreme Court are off their rockers.
> hey are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period.
Why the scaremongering? What are "they" waiting for?
Without saying I believe the statement above, boiling the frog is a legitimate tactic. Think of all the things considered normal now that would have been absurd before 2016.
Thanks for posting that link. I read part of it and their reasoning strikes me as contortionist. Good then that after decades, as you point out, that argument has not won out.
I would love to actually debate this issue with someone who does believe birthright citizenship is not a thing.
It’s not an ominous “they”, it’s a very well understood patchwork of actors who have been pushing for the end of American democratic, liberal system. The heritage foundation is an important component, but you can add the Thiel fellows, the GOP, evangelical fundamentalists, the right wing media ecosystem, and quite a lot more. They’ve spent multiple decades developing an interconnected infrastructure of think tank, media groups, legal advocacy groups, donor networks, political organizations. They are all working to reshape American institutions away from liberal democratic norms, towards an autocratic conservative governance model.
It’s not a new thing or something discussed in underground circles. They have been very vocal and open about their goals, and you can find a lot of investigative work in that whole movement.
Their most obvious victory so far has been the complete take over of the Supreme Court, allowing the realization of the idiotic, fascist “Unitary executive theory” concept.
It's worse than that. The text of the statute is literally the same as the text of the 14th amendment's birthright clause. So he's basically saying the text means one thing when it's a statute, but the exact same words might allow exceptions in the context of the Constitution.
What does "subject to the jurisdiction" "obviously" mean, keeping in mind that everyone agrees children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
In general countries have jurisdiction over anyone inside their territory unless there is some exception.
As far as I know the only exceptions at the time the 14th was drafted and ratified would have been people with diplomatic immunity or similar due to treaties and international agreements.
Immediate families of diplomats living with the diplomat are included in diplomatic immunity, hence their children born here would not become citizens.
Those situations you mention where US court do have jurisdiction over diplomats are: private real estate disputes; wills and inheritance; business activity of diplomats that are running a side business or practicing a profession in the US that is not part of their official duties; lawsuits initiated by the diplomat.
Even if becoming subject to such limited jurisdiction counted as being "subject to the jurisdiction" for purposes of the 14th Amendment it would not matter because newborns are not involved in those things, and so newborn children of diplomats have their full diplomatic immunity.
The exception listed in Wong Kim Ark are: Indian tribes, children of diplomats, births on public foreign ships, and children of enemy occupiers. These were basically well-understood exceptions under common law and most were discussed during Congressional debate on the 14th.
The text that SCOTUS put out today discusses this in great detail. You might agree or disagree with their reasoning, but they consider what "obvious" means in light of the text and the writings of the time plus references to old commentary like Blackstones. Maybe better to read that and assume in good faith that this is what the commenter is referring to?
> […] children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
AIUI, IANAL, US courts and law do not have jurisdiction over diplomats. When a diplomat the 'hosting' government agrees to immunity, so cannot be prosecuted. E.g.:
> The collision caused diplomatic tension between British and US officials. [Anne] Sacoolas fled Britain soon after the incident, and claimed diplomatic immunity with US support.
If the diplomat put the baby up as collateral on a loan, prior to their birth, then I think they have to be in order for the US to be able to enforce contract law relevant to the loan.
Well we know “subject to the jurisdiction” is not equivalent to “is a citizen”, otherwise they would’ve used that term instead of being cute with it and leaving excess room for interpretation. If congress wants to define what “subject to jurisdiction” means, then they have every opportunity to.
Given that the most universally agreed to counter examples are diplomats and invading armies, I'd say a reasonable non-lawyer interpretation is that "subject to the jurisdiction" excludes people who are in some way under the authority or control of a foreign government even while in the US. They may be physically here, but they're presence is on behalf of a foreign government that has jurisdiction over them even while in the US. US law might apply to them in varying ways depending on their status, but there is still a distinction that does not exist for other visitors. Maybe less about the question of whether US law applies at all and more about if US law applies equally beyond the 14th amendment and if any other government can lay claim to authority.
You could potentially apply this to temporary tourists as well, but the linkage between them and the government of the country they are coming from is much weaker since their presence typically doesn't have them acting on behalf of the foreign government or with any special legal distinction.
I'd also pose the same question back to you, what's a reasonable definition of "subject to the jurisdiction" that excludes everyone except US citizens, as many conservatives want, or at least only extends to legal permanent residents?
Any interpretation that excludes non-citizens leaves us in a situation where we've disclaimed legal jurisdiction over the behavior of those individuals. The reductio ad absurdum there would be that they aren't subject to any laws of our country anymore.
>Which is is fine, you can change the constitution, but thats for parliament to do.
To which Constitution are you referring? And which "parliament"?
The US Constitution can only be changed by votes by both supermajorities in both houses (House of Representatives and Senate) of Congress and the legislatures of 3/4 of the several states. We don't have a "parliament."
Are you referring to Canada's Constitution? Australia's? AFAIK, the UK has no Constitution and changes to Ireland's Constitution requires a national referendum.
I don't think it's obvious. Like why do you think the dissenters are wrong to question what is meant about being "subject to the jurisdiction thereof"? The intention was to prevent former slaves from being deprived of citizenship so what is an argument to say this obviously includes someone who arrives for birth tourism? Why doesn't this include children of diplomats, as one example, if it's such an all encompassing law?
Because when you are in a country, you are subject to it’s jurisdiction. Can you be arrested for petty crimes? Yes? Then you’re under that country’s jurisdiction.
That's what the justices said. That has generally been how modern courts interpret it, with a textualist interpretation. But that was not the original intention of the law which I already stated. So to go back to my original point, it's not an obvious conclusion.
> But that was not the original intention of the law which I already stated
You've stated it, but not evidenced it. This is certainly the right-wing talking point, but never strongly sourced. The meaning of this phrase was viciously debated. Would it surprise you to know that many in Congress hated it for similar reasons as nationalists today?
Let me say this again: the meaning of this phrase was openly and viciously debated in the public record! Senator Cowan thought the phrasing created a loophole for birthright citizenship, and the amendment creators explicitly, overtly, repeatedly agreed with his interpretation of the phrasing and defended it as deliberate policy.
It must be that the Gypsy element is to be added to our political
agitation, so that hereafter the Negro alone shall not claim our entire
attention.
As I said, the 14th Amendment Clause 1 was primarily centered around whether enslaved people and their children were citizens and it seems the question of whether literally anyone born here was not taken very seriously. This question actually came up in a later case a few decades later and the court affirmed it. But I don't think there is any evidence the people who wrote this ever expected large numbers of "anchor babies". They literally dismissed that scenario as a way to prevent formerly enslaved people from being citizens.
So then it just depends how you want to interpret the meaning of this law under the present. The UK, with common law tradition, abolished birthright citizenship decades ago to combat exactly the problems we are having with it now. So what was intended by jus soli birthright citizenship in 1866 could be viewed differently now.
Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court - and that's the mission of the Supreme Court, to interpret all the various situations for these cases and how they apply constitutionally.
Here is the full text of the relevant section of the 14th:
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Please point to the section where it says "this only applies if the parents are citizens".
The reading which the court affirmed is incredibly obvious. Republicans and xenophobes like to pretend it isn't, but the text is very simple.
The word jurisdiction is where it gets confusing. The meaning of that word does not map 1:1 to its modern usage.
To wit, if we read it as "subject to the laws of the land", then the invading army exception does not make sense, invading soldiers are subject to the laws of the United States and have been tried and convinced of violating them. Note, diplomat exception still makes sense, they _are not_ subject to the laws of the land.
So, how do you define jurisdiction in this amendment in a way that covers both invading soldiers and diplomats? I don't think it is super straightforward.
To put good faith on the table, I ultimately agree with your opinion here that birthright citizenship is settled and the vast majority of folks arguing against it are doing so in bad faith. But I also recognize the text of the amendment has holes to my eyes and could be updated for clarity.
> To wit, if we read it as "subject to the laws of the land", then the invading army exception does not make sense, invading soldiers are subject to the laws of the United States and have been tried and convinced of violating them. Note, diplomat exception still makes sense, they _are not_ subject to the laws of the land.
I don't agree with your assertion here. Do you have more details on the claim that "invading soldiers [...] have been tried and convinced of violating them [US Laws]"?
As I understand it, invading soldiers are not subject to the laws of the United States nor are they protected by the bill of rights - instead they are enemy combatants and subject to military force. You don't arrest and charge active combatants, you fight them. If they surrender they become prisoners of war and would be covered under the treaties that apply to POWs, not civilian laws. They don't become citizens by surrendering.
I suspect the gray area would be around terrorists and stateless combatants, but the general principle that "people who are operating under the orders of a foreign government are not subject to the laws of the united states, but rather bound by the treaties between the US and their foreign state" would still apply.
> I suspect the gray area would be around terrorists
Maybe this is a gray area in theory, but practically speaking I don't think it matters. The child has nothing to do with the parent's choices in life, do they deserve to be treated any differently than any other child born in the US?
In my view: the lack of engagement with the historical record. This topic - and the meaning and expected outcomes of the wording for the amendment - were discussed and debated as part of the open record. Senator Cowan thought the phrasing created a loophole for birthright citizenship, and the amendment creators explicitly, overtly, repeatedly agreed with his interpretation of the phrasing and defended it as deliberate policy.
Members of American Indian tribes were born in the United States after the 14th amendment was passed but it took an act of Congress to make them citizens. The question of jurisdiction is a very real one that isn’t nearly as cut and dry as you’re implying it to be.
You're trying to impute complexity to a thing in order to achieve a goal that is not achievable. The 1866 Congress that debated the amendment understood and intended that Indian tribal nations would not be covered by the clause because they were separate nations not under the jurisdiction of US law. Here's an example of the debate [1] where they discuss it. Far from making your point, examples like this make it obvious that everyone involved in framing the amendment thought deeply about what "jurisdiction" meant, which is why you can't just assign new meaning like "yeah it means parents have to be citizens."
I really urge you to read the original debate. It isn't like the handwritten notes we get from the 1700s; it's typewritten and the Senators are so thoughtful and utterly precise about what they meant. It's ELI12.
I'm not taking a side here, but it injects a couple more words that could imply something else:
[Mr. Howard] (Sen. from MI)
"This amendment which I have offered is simply declaratory as what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.
It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."
(Apologies for any typos as this was hand written.)
What are the confusing words? You gave a quote that sums up the long-accepted understanding of who's exempt from the citizenship clause:
"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons."
They don't mention Indian tribes in that quote, but they mention it elsewhere. Seems completely clear to me.
I kept reading pages, and there's plenty of other questionable conclusions:
[Mr. Conness] (Sen. CA)
(Acclaimed for his pro-Chinese immigration views.
Wiki: "In the Senate debate on the 14th Amendment, Conness said “We are entirely ready to accept the provision proposed in this constitutional amendment, that the children begotten of Chinese parents in California … shall be citizens.”
from the link:
"Now, I will say, for the benefit of my friend, that he may know something about the Chinese in future, that this portion of our population, namely, the children of Mongolian parentage, born in California, is very small indeed, and never promises to be large, notwithstanding our near neighborhood to the Celestial land. The habits of those people, and their religion, appear to demand that they all return to their own country at some time or other, either alive or dead. There are, perhaps, in California today about forty thousand Chinese--from forty to forty-five thousand. Those persons return invariably, while others take their places, and, as I before observed, if they do not return alive their bones are carefully gathered up and sent back to the Flowery Land. It is not an unusual circumstance that the clipper ships trading between San Francisco and China carry at a time three or four hundred human remains of these Chinese. When interred in our State they are not interred deep in the earth, but laid very near the surface, and then mounds of earth are laid over them, so that the process of dis-interment is very easy. That is their habit and custom; and as soon as they are fit for transmission to their own country they are taken up with great regularly and sent there. None of the bones are allowed to remain. They will return, then, either living or dead. "
There's nothing terribly confusing here. In fact it's a helpful set of quotes. This is one Senator saying "hey, second-generation Chinese immigrants will be citizens. And that's fine because I don't think there will be too many of them."
An additional section from the page provided that I found odd:
[Mr. Cowan] (Sen from PA)
"So far as the courts and the administration of the laws are concerned, I have supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection; but in so far as the right to hold property, particularity the right to acquire title to real estate, was concerned, that was a subject entirely within the control of the States.
It has been so considered in the state of Pennsylvania; and aliens and those who acknowledge no other allegiance, either to the State, or to the General Government, may be limited and circumscribed in that manner.
I have supposed, further, that it was essential to the existence of society itself, and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them."
Sure, I already did explain it. They explicitly said that "not under the jurisdiction" would cover children belonging to Indian tribes, the children of ambassadors, and they discussed the need to be able to expel occupying armies. Someone said "what about the kids of Chinese people" and the sponsors said "yep, if we adopt this language they'll get to be citizens too".
None of it's complicated. You could read this as an 8th grader and have no doubt what they were trying to do.
Most of the discussion was of the form "hey, could we add an exception to exclude even more people from citizenship" and then the sponsors would say something like, "yes, we agree that those people aren't excluded under the current language; that adding extra language could exclude those people; and that we don't want to exclude those people or change the language." And then Congress voted for the language exactly as it was originally proposed.
Not one of these words holds meaning in context. If it were only the phrases, there might be some grounded message. Each word and phrase seems to be code for a concept attached to your specific mental model.
People tend not to have discussions with other people who cannot grasp what they are, or are not, saying. I would guess and engage further, but assuming what you are saying is unfair and leads to the tired case of Humpty Dumpty versus Alice. Words mean what one side says they do, as a way to avoid exchange.
I agree with the phenomenon but dont thinnk that is the case here. I know lots of people that have no issue loudly oposing demograpic change that still stumble on the issue of how to read constitutional text.
My point is that I don't think anyone would be focusing on this particular constitutional text if the underlying reason they are focused on it were allowed to be discussed in the open. It sounds like you don't disagree with that? Do you logically agree but you feel like it must be wrong somehow? Moral programming do be like that.
I agree that people use convouted rationalizations to justify the outcomes they want when their actual preferences are taboo to state outright. I thought you were accusing the SCOTUS of doing that, which I disagreed with.
I agree the public discussion is more charged and less coherent because some people are trying to project their taboo moral stances on to dry and boring question of textual interpretation.
That said, I think this case isnt the best example. I think there are lots of people who question if children of tourists or illegal enterants of the US should be given automatic citizenship, even without buying into demographic preferences.
> My views are something like what the average American believed in 1910. Were they literally Hitler also?
That's not really a great counterpoint considering how much inspiration Nazi Germany took from the amazing levels of racism the US had. Jim Crow, miscegenation, segregation, citizenship…
The average American in 1910 wasn't a little Hitler, he was a Big Hitler. Hitler's father, even.
Good try, though, eierkuchen. I can see past you and so can everyone else.
“Average”, son. Was the average American a fascist in the early 1900s?
The fascist party in the early 1900s was a fringe party. It existed and was considered a legitimate opinion, fine, but don’t act like the average American was anywhere near fascist.
What in gods name would blood and soil even mean when you’ve got Italians living next to Irish living next to Poles living next to English? You haven’t got any blood to fascism about!
That's not a good characterization. All of he lower courts basically laughed it out of the court room. The fact that the Supreme Court even took the case on is pretty questionable.
The Trump administration found not one judge or panel of judges who agreed with their opinion ... until SCOTUS, where it found three.
Including Clarence, whose "hilarious" dissent says that undocumented persons are not subject to the jurisdiction of the United States, which might be of note to ICE.
“Unperson” vibes. If their existence is illegal, then they have no rights. Clarence would never consider that the definition of who is or is not legal would expand, though. Too busy driving his RV to the airport to fly to an island retreat.
It is totally obvious: every single court told the Trump administration to go f* themselves, and Trump appealed and appealed again until it reached the Supreme Court.
> Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court
Every single court on the way to SCOTUS correctly said "the fuck?!"
> Federal judges in each of the district courts issued preliminary injunctions to block the order from taking effect anywhere in the country. Judge John C. Coughenour, presiding over Washington v. Trump, called the order "blatantly unconstitutional". Government appeals challenging the injunctions were rejected by the Court of Appeals for the Ninth Circuit, the Court of Appeals for the Fourth Circuit, and the Court of Appeals for the First Circuit.
It's tricky because dissenting doesn't necessarily mean you'd reach the opposite conclusion in every respect.
In this case, I really doubt even the most conservative justices believe "birthright citizenship means whatever an Executive Order says it does." At a minimum, we know they aren't signing on to the reasoning the 5 in the majority used. And then we can learn whatever they feel like saying in the dissent, but a dissent is just an essay with no force of law.
But since we have the dissent opinions, it's not tricky at all to see why they are dissenting.
Alito and Thomas straight up believe that the constitution does not provide birthright citizenship and the executive order is valid. Gorsuch mostly agrees but makes an exception if the parents plan to stay in the US. Kavanaugh agrees that birthright citizenship is not provided by the constitution, instead he argues its a federal statute that congress can overturn (but the president cannot)
Thomas and Alito complained that they were being impeded from setting executive policy. Very easy to understand the argument that this court is too small.
The joke that Supreme Court judges are high priests interpreting the constitution as if it was holy scripture was in fact accurate description all along
> The Court today takes the extraordinary step of holding
facially unconstitutional the President’s Order excluding
from citizenship the children of foreign temporary visitors
and illegal aliens.
The crazy thing here is that 4 supposedly conservative Supreme Court justices wanted to overturn over a century of precedent on how the constitution was interpreted.
The poor and rich alike have a deep-seated cultural aversion to poor people. It's no use warning about inequality when a sleazy billionaire wins the popular vote. Nobody is listening. They have to experience the bad results first-hand.
Our entire history of a nation is the people fighting against the ruling minority of tyrants. Look at how fast SCOTUS struck down the civil rights act of 1875 (only 8 years).
Look at how quickly slavers used the federal government to uphold slavery, the fugitive slave act was one of the first things Congress signed and took zero time enforcing against the will of the people.
Look at how quickly business leaders fought against Americans trying to better their working conditions.
The US constitution was designed to impede societal progress by stripping power from the people. The "reverance" people have for the "founders" doesn't help either, acting like a document written to embolden slavers as sacrosanct is beyond pathetic.
You need to ask a real question because I have no idea what you are trying to say by beating around the bush, this is about the SCOTUS which is a US branch for the US government.
You can be pro/fine with legal immigration (and moderate/non-partisan) and still not think birthright citizenship is a good idea (like I do).
Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
Reminds me of legal abortion: practically everywhere in the world has it. If you are not in that vast majority you should be taking a very close look at yourself/things.
So yes, let's amend the constitution. It's been a while and we do it on average every ten years or so. I have personally not ever been involved in one.
It's not really a question of what's a good idea. It is in the text of the Constitution, about as plain as it can possibly be. If you want to change it, you have to change the Constitition.
Ironically, the same Court members who most often claim the plain text of the Constitution to support their ideas are the ones who put the most effort into finding a tortured reading of the 14th Amendment.
I thought so too. Then I read the arguments about the passage of the amendment. The people passing clearly stated that, say, the children of ambassadors wouldn't be eligible. It was mainly aimed at clearing up the questions about the various Native Americans who may have considered themselves independent. It wasn't about opening the doors to anyone.
it was not (solely) about slaves; this was debated in Congress during the process of drafting the amendment and resoundingly put down by contemporary legislators.
from Justice Jackson’s concurring opinion:
> Senator Edgar Cowan, for example, argued that German immigrants’ children born in Pennsylvania should be citizens, but Chinese immigrants’ children should not—because Germans and Chinese were different. In response, Senator Trumbull emphasized
that the law he had drafted drew no such distinctions.
Undeterred, Senator Cowan would warn again—this time during debates on the Fourteenth Amendment—that the Citizenship Clause would let Chinese immigrants “overrun” California and “double or treble the population” of that State. Senator John Conness of California, where anti-Chinese sentiment was arguably most pronounced, responded that “the children begotten of Chinese parents in California . . . shall be citizens.” In fact, he said, the Civil Rights Act had already declared “that the children of all parentage whatever . . . should be regarded and treated as citizens of the United States.” No Senator rose to agree with Senator Cowan or dispute what Senator Conness had said. And no Senator said what the principal dissent says today: that the text at issue conferred citizenship only on freed Blacks and those in analogous situations.
- - -
further down, Justice Jackson cites the most forthright example of how blisteringly ahistorical the Republican party’s arguments are on this topic:
> During the ratification debates, Senator Cowan took aim at the Roma people too, characterizing them as undeserving of birthright citizenship because they “wander[ed] in gangs,” “infest[ed] society,” and “impos[ed] upon the simple and weak everywhere.” And again, Senator Conness dismissed Senator Cowan’s prejudices: “The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels [at Gettysburg].”
No, it wasn't. I had it in there from the get go. I did not edit my comment for any reason, I don't think at least. Like I said in the original comment, you can be moderate/non-partisan and think this is a bad idea. You can think Trump's an idiot and still think birthright citizenship is a bad idea. That's all.
SCOTUS has not had anything remotely close to a plain text reading since the 1930s and probably longer. "Shall not be infringed" was changed to "if an infantry rifle was made after 1986 then magically it can be infringed" and (until about a week ago when it was overturned) "if you smoke a left-handed cigarette actually the second amendment doesn't exist." The 1st amendment protects freedom of speech but yet it's legal to ban appeals to "prurient interest" even though no such exemption is mentioned. "Interstate commerce" has been changed to mean basically "commerce" and interstate is now interpreted as if it was put there for funsies since everything can be construed as affecting something else in the universe even though the historical context makes clear that's not how the text was interpreted by the writers.
Every other amendment including the 1st, 2nd, etc even when explicitly spelled out the courts magically pull something out of their ass to "torture it." Yet the 14th amendment birthright citizenship, who's "history and tradition" was to right the wrongs of slavery, somehow has to be read absolutely in black and white.
Personally I am amenable to the plain text interpretation of the 14th, 1st, and 2nd, but lets not pretend that is the game SCOTUS or even most of government and society is playing. The constitution is referenced more as a religious document by all the above to mean whatever it is they say it means.
Give me a plain-text explanation as to why a well-regulated militia can be infringed from having a 1987 select fire infantry rifle but not a 1985 one, both of which are probably the most bread and butter arms you could possibly consider as part of a well-regulated militia. (This despite the plain-text ascribes the right to "people" not the militia, and in any case US code defines virtually every able bodied citizen male as part of the militia). The NFA determinations by SCOTUS don't make sense even if the amendment said it was the militia's right rather than the people's.
Sure, one could make the argument that "shall not be infringed" is pretty cut-and-dry. I'm just not sure how one could make that argument while at the same time yadda-yaddaing the militia part, which is often what actually happens.
Anyway, I'm not sure I have a disagreement with your original point. It just seemed a bit funny to use the second amendment as an example of a thing that (supposedly) has unambiguous meaning, but gets interpreted politically by the courts. I'd argue that the ambiguity of that amendment is one of the most notorious things about it!
Congress defines most every able body male as part of the unorganized militia and there is no public armory for them to store their arms (this only available to organized militia) at or use leaving only a private armory (consistent with historical at time of founding where private persons stored their militia weapon at home), so I'm not sure it makes much difference in practice whether the right ascribed to the people be connected to being a militia servicemember or not for the purposes of the example of owning a select fire infantry weapon.
Probably the main effect is to grant women and the more elderly the right to bear arms as well.
===== re: below due to throttling =======
>Congress defines… historical precedent… but we were talking about a plain-text reading of the Constitution.
That makes it easy then.
The plain text ascribes the right to the people not the militia so it's moot whether they're in the militia or not in such case to have the right to keep and bear arms.
We weren't, if we were this conversation couldn't get here. If we were you couldn't play the militia fuck fuck game, since the right to keep and bear arms is ascribed to the people and not the militia.
The answer is easy in the plain-text case, whether you are associated with the militia is moot, as the plain text unambiguously says the right of the people to keep and bear arms.
It's only in the non plaintext case can you start handwaving that right is restricted to militia yada yada.
> Until the late 20th century, there was little scholarly commentary of the Second Amendment. In the latter half of the 20th century, there was considerable debate over whether the Second Amendment protected an individual right or a collective right. The debate centered on whether the prefatory clause ("A well regulated militia being necessary to the security of a free State") declared the amendment's only purpose or merely announced a purpose to introduce the operative clause ("the right of the People to keep and bear arms shall not be infringed"). Scholars advanced three competing theoretical models for how the prefatory clause should be interpreted...
Until the 1930s you could mail a machine gun straight to your door with no scrutiny. What point was there in arguing an individual right in the early 20th century when you could mail order a machine gun or TNT with no background check straight to your personal collection and people were literally inventing the precursor to the M1 Carbine in prison with the blessing of the warden. If you want to go back further to the 19th century, privately owned warships with cannons were owned, gattling guns, and everything under the sun by individuals (the main laws, were on storage of explosives/powder -- interestingly even up to this very day it's legal to possess but not freely store high explosives without any license).
You can point out certain collective broad groups like blacks didn't get a collective nor individual legal access to arms, but given how racist the courts and "scholarly" academic institutions were at that time it's no surprise they spent little time covering it and found little representation in the legal system and little scholarly commentary.
It was after the passage of the NFA and the GCA, the main gun control acts of the US, which happened in the mid 20th century, where suddenly all these militia fuck fuck games started to enter the chat (at one point, SCOTUS claiming short-barrel shotguns taxed by the NFA not being protected because the military didn't use them -- they were wrong but the defendant was a dead guy with no representation so it was a poisoned appeal case to set precedent and no one was there to show the light infantry at the time were actively using them).
Note: There are ~30ish countries that provide citizenship to anyone born within their national borders (many with restrictions, for whatever that may mean). Largely, this covers a spotting of countries across the globe, but is almost universally true within the Americas.
As far as I can see it is almost entirely countries in the Americas plus Pakistan that have real birthright citizenship. Everywhere else has some restriction such as stateless parents, or multiple generations born in the country, or a minimum period of residence or similar https://en.wikipedia.org/wiki/Jus_soli
Hate to be that guy, but this a pet peeve of mine that pisses me of...
The term "birthright" means "a right that is derived from the circumstances of your birth". Virtually ALL countries grant citizenship by consequence of the circumstances of birth, but what circumstances they consider vary. For some countries, the circumstance is "birth happened in the soil of the country" (jus soli), for others, it's "birth was to parents who are citizens of our country".
I said "virtually", because there is one SINGLE exception. The Vatican. Ok, there's the SMOM, but do they even count?
It matters. Because if the proposed executive order were to prevail, the US would effectively drastically change its citizenship assignment system, but it would still hinge on a right derived from a circumstance of your birth - a birthright. Essentially, it would move from "you are a citizen if you were _born_ in the country" to "you are a citizen if you were _born_ to a citizen".
Yes it matters, because jus sanguinis is also a birthright and therefore "birthright citizenship" despite having no relevance to where you were born (jus soli)
And how many of those countries have an illegal immigration problem? I bet that most of them would quickly remove that loophole if people actually started to exploit it.
Root cause it. The USA does not have an illegal immigration problem. It has a "huge, slow immigration bureaucracy" problem that makes the legal path so slow and difficult that people are incentivized to gamble on illegal paths.
Not even this. The USA has a labor shortage that is filled by workers who used to migrate seasonally until it was no longer allowed, thus creating a perverse system that encouraged business owners to look the other way and immigrants to stay instead of leave.
A long time ago, the southwestern part of the USA was Mexico, but a certain destiny manifested itself and changed that. It seems like this didn't affect day-to-day life due to a generous treaty for a while until some Americans decided they deserved the land there more than the people who were there.
Obviously, the people who were kicked out were performing some useful economic function, so the USA decided to have it both ways: The Bracero program. https://en.wikipedia.org/wiki/Bracero_Program
This program of importing cheap labor had an expiration date, and it was allowed to expire in the 60s. Guess what happened then?
> Despite the forced removal of Mexicans during the 1930s, as soon as the United States entered the Second World War, authorities approached Mexico to negotiate a binational treaty that arranged for the annual entry of legal workers for seasonal labor in U.S. agriculture (Galarza 1964; Calavita 1992). The resulting Bracero Program lasted from 1942 through 1964, and its effect on the likelihood of migration is readily apparent in Figure 3. Between 1940 and 1945 the probability of U.S. migration rose nearly seven times, going from 0.003 to 0.020 before leveling off briefly and then rising to new plateau of 0.029 from 1956 to 1959. In 1960 Congress began to phase out the Bracero Program, finally letting it expire at the end of 1964, bringing the probability of migration down to 0.017.
Why did they let it expire? presumably to increase demand for American labor. A laudable goal to be sure, but is that really what happened? Surely people stopped crossing the border to do labor here and Americans started getting hired more.
This whole thing is beyond messed up and the fact that this history is essentially erased (I wasn't taught this in school) absolutely boils my blood.
There exist a large number of legal pathways to permanent residency in the US, some of which do take unreasonably long; employment-based green card applications for Indian nationals famously have a decade-long waiting period. They should be reformed and improved.
But a big part of the problem is that many people do not have a legal pathway available to them, and either don't believe that or don't wish to accept it. So they spend years carefully pursuing every bit of due process they're entitled to, and those stories become part of the "slow immigration bureaucracy", regardless of whether the result was ever really in question. This is where immigration reform proposals have generally gotten bogged down; some people strongly feel we should resolve this by creating a general legal pathway, others feel we should resolve it by expediting removals, and both groups are very hesitant to agree to a proposal that doesn't resolve it at all.
> There exist a large number of legal pathways to permanent residency in the US, some of which do take unreasonably long; employment-based green card applications for Indian nationals famously have a decade-long waiting period. They should be reformed and improved.
> But a big part of the problem is that many people do not have a legal pathway available to them, and either don't believe that or don't wish to accept it.
Even worse, there exist illegal to legal pathways, that come with risk but appeal: I came here on a K-1 fiance visa. A few years later, with my immigration attorney, as we compiled some documentation, I lamented the amount of money it had taken and she noted that it would have been both quicker, and cheaper, for me to come here on the VWP (Visa Waiver Program), which requires you to attest that you will not get married, get married anyway, and then work with an attorney to say "Oops, my bad, can I stay anyway".
That's just one example, just for my visa class. But there are absolutely many perverse incentives throughout the INS/USCIS/DHS quagmire.
> a big part of the problem is that many people do not have a legal pathway available to them
I have no legal pathway to own the moon. That does not mean I get to just take it. Just cause you want something does not mean there must exist a way for you to get it...
Having a difficult and selective immigration process that rejects the vast majority of applicants is not a problem. It is exactly how an immigration system should work. We want the best.
I'm personally happy to welcome anyone who's willing to come, work hard, pay taxes, and support democratic ideals. This is how most of our ancestors got here, and it seems fair to me that we continue to extend that offer to other would-be immigrants.
Worth noting that the economic literature also shows that this is firmly in our best interests, and immigrants and their children more than pay their way in future taxes and future entrepreneurship.
The US didn't even have a particularly selective immigration process for the first century. It was only after a big influx of Chinese immigrants (and a corresponding backlash) that we enacted our first immigration controls, limiting how many immigrants could come from a given country each year. The aptly-named "Chinese Exclusion Act" of 1882.
The US today has the highest percentage of foreign born population since 1850 (I can't find numbers before that). If the US had truly open immigration we'd probably see several hundred million migrate and probably in the billions. What laws do today practicality did before.
Sure, let's have that debate then. I think what frustrates many US citizens is immigration is clearly broken but for various political reasons, Congress won't touch it. It's clear the system is at the breaking point.
>and immigrants and their children more than pay their way in future taxes and future entrepreneurship.
As someone who is involved in local politics, and encourages more people to be, this is true in long run BUT not in short term. This causes a ton of friction since localities which don't have unlimited debt power ends up eating the cost of this immigration.
"Broken borders" is an oxymoron. Something we cannot tolerate. Borders, by their nature, are our definition as a nation and our protection as a country. Broken borders do not exist. We cannot tolerate them. Strong border control must be part and the first part of any comprehensive immigration reform. It's the obligation of our elected officials to keep the American people safe, and our borders are one of our early lines of defense to do that. It used to be our first and only line of defense, but in this age of technology, more is possible.
> it's the obligation of our elected officials to keep the American people safe
So if it's the main goal to keep people safe, we need to ban unhealthy foods and massively restrict the operation of automobiles. We need to massively increase regulations on air and water pollution. These things will do far more to save American lives than any number of foreigners we lock up in prisons.
> It's the obligation of our elected officials to keep the American people safe, and our borders are one of our early lines of defense to do that.
Against an invading army, sure. Against the cartel and drug-running, ok, I can see some reasoning there, although I'm not sure we're ever going to win the War on Drugs. But with regards to immigration, I don't see a solid argument that we need strong border control in order to "keep Americans safe". Studies show that immigrants commit crime at a lower rate, right? So how would stronger border control keep us safe? Economically, immigration helps us, enriches us. Culturally, also.
People joke "yep, gotta protect us from that Mexican grandma selling tamales out of her car", and I didn't want to throw that at you. But I don't think it's entirely that far from the truth.
There is a long and storied history of humans being afraid of foreigners. "They speak different, they have different values, they worship a different god. How can I know they're safe?"
But we humans often have more in common than differences, and cultural differences usually soften after a few decades in this big Melting Pot.
There are people who have interest in selling fear and distrust, even if that fear and distrust ends up hurting us as a society. When I hang out with people from other countries, I don't see this fear justified. Usually, I just see other people, who want to work and live and create art and fall in love and have a family, just like the rest of us. And if you've got legitimate fears, please bring 'em.. just do try to be careful that the fear is solidly based in reality, not just something sold by Fox News.
The system that we had up until the late 1800s had a natural rate limiter in that the technology of the time made international travel so time consuming and expensive that immigration was simply an impossible pipe dream for the vast majority. It was also limited in impact on the native population because there were no welfare programs of any kind at the time, so an immigrant was never an expense item on the budget.
It may be your personal opinion that we should have the open borders policy you describe, and you are perfectly entitled to that, but here is mine. Your idea is borderline insane. Putting bleeding hearts in charge, who will allow things like this out of some compulsion that fairness demands we have the same immigration policy now as we did in the 1800s, is national suicide. I will continue to vote for anyone besides your side, even right wingers that I find repulsive, because I fear that someone on the left who lacks fundamental self preservation instincts will put in place policies like the ones you support.
1800s? We had actual open borders with the rest of the Americas until, like, the 1950s.
Farmers at the time were super-worried about the shift, since they already relied heavily on immigrant labor. Their concerns didn't manifest as major problems for them mostly because until very-recently enforcement was (pretty much intentionally) half-assed, such that the border remained de facto kinda open for immigrant farm labor (even, and especially, the illegal kind).
Now that situation's arguably not good for a bunch of reasons, but we've never had a strongly-enforced border, and in fact didn't regulate Western hemisphere immigration to any meaningful degree within living memory. Changing that to a highly-selective system with strong enforcement of immigration laws to keep out a large majority of prospective illegal immigrants would be a totally novel approach to US immigration. (Good or bad, either way, you can't really appeal to US history in its defense, and "without it the country will be destroyed by immigration!" demands an answer for why that didn't already happen, to remain a viable point)
Why do you think that? The same thing was said about the Chinese, Italians, Polish, etc... when they all came here. Instead they helped make the country what it is today.
I also don't see anyone arguing for open borders, but straight forward paths for people to legally immigrate.
What do they say, "quantity has a quality all its own"?
I don't really have a strong opinion either way on it, but I think your question was addressed by the natural rate limiter mentioned in the comment you were replying to.
Just like I was happy to have a free blog without a robots.txt 5 years ago, but now with the AI crawler and other traffic I'm looking at using Cloudflare "are you a human" blocks or whatever.
No, I don't advocate for open borders. I'm fine with keeping out criminals, people who don't value our democratic system, or people who aren't interested in being productive members of society (e.g., NEETs - people not either working or getting educated).
> Your idea is borderline insane. ... someone on the left who lacks fundamental self preservation instincts ...
Huh. Well, checking, checking... I don't feel insane. I'm feeling pretty calm, rational, and evidence-driven.
The two big risks I see from large-scale immigration is this:
- people who don't agree with liberal secular democracy. E.g., religious fanatics who want to enact a theocracy. That's all good; I'm fine with screening those out.
- economic damage. But here, again, the economic data shows that immigration distinctly benefits the US, mostly through economies of scale, but also partly through higher-than-average rates of college attendance and entrepreneurship in 1st- and 2nd-generation immigrants, leading to higher earnings and innovation.
There definitely are also localized *negative* impacts from immigration, particularly for overwhelmed healthcare and education systems. These do not outweigh the national net benefits - meaning, the US still benefits as a whole - but I can understand that people living in those areas or culturally affiliated with them would be anti-immigration. But these are problems we could very much tackle if we wanted to: the federal government has more than enough resources to help these locales, while still getting the long-term and nation-wide benefits from increased immigration.
So: no, I flatly deny that I'm not concerned with self-preservation. Yes, I care about compassion and fairness, but it's quite reasonable to ask that fairness and compassion be balanced with self-preservation. And yet - even after considering self-preservation, we still benefit from increased immigration.
Most countries with a standard of living that even barely better than their neighbors have an immigration problem. There is a whole continent call Europe that is fighting off migrates and last I checked, birthright citizenship is not a thing there.
People who abuse birthright citizenships are, by definitions, not illegal immigrants. But even if you count all of them as 'unwanted' immigrants - how many % of total immigration to the US is result of those birthright laws?
You are wrong about that. If an illegal crosses while pregnant, gets detained, and then gives birth the day after while in detention, that baby is 100% a US citizen.
if baby is 100% US citizen then how is that an 'illegal immigrant'? Again, you may call them 'unwanted', and you have right to such opinion. But law is what is written, if they got citizenship then they aren't illegal
Think two steps ahead, people aren't born right out of the sky. It encourages people to illegally enter for their citizenship baby and the parents remain illegal until ~21 years later when they can have the kid sponsor them. In the meantime the parents get free WIC even if they're illegal.
No, the EO is dogshit malpractice of executive power. And the amendment is effectively impossible to amend in this day and age. We are stuck with birthright citizenship.
Realistically the only option we have that might work is shit-canning most welfare and incentives for non-productive immigrants to enter and make it pointless to pop out the kid unless you have a plan to make both them and yourselves productive members of society. Illegals showing up and popping out a kid and getting free WIC, claiming (stealing) the newborn citizen's welfare benefits, public schooling, chain migration via anchor baby etc are all going to have to be fixed through congress during some fluke period when the filabuster can be overcome.
> congress during some fluke period when the filabuster can be overcome.
If the clouds part and Jesus himself descended from the heavens, you'd ask him to ... discourage anchor babies? Surely there are better and more pressing uses of his power.
If you're asking me personally, on this topic? Wide open borders, not even a wall, zero employment eligibility checks, but no welfare. Only way to win is to also benefit others in voluntary trade or seek voluntary charity. I have no problem with "illegal" immigrants, only those who purposefully target and drain the coffers of Americans by popping in for a citizen-baby and then run every public benefit available with their anchor baby.
Part of the reason why immigrants were so successful and beneficial in the 1870-1920 era boom was that labor was so badly needed in the burgeoning age of industry. But really, the other half is there was no other option -- you did something productive or you were completely fucked.
I'm asking you, is this really such a big problem that it requires getting rid of welfare? Is the US financially in trouble because it pays out welfare to undeserving layabouts? I seriously doubt it.
Yes im absolutely certain the broken redistribution system is one of the most pressing problems in US, but of course its not the only one. Not because recipients dont "deserve" a living but rather it poisons the productive and it provides the wrong incentives to recipients while conditioning them to depend on a bloated government that now has total leverage on their life (and of course, virtually assured votes to whoever are bribing recipients with OPM redistributed away from the big bad other voter), all while speed running towards a ruinous national debt even if they deserved the moon and stars and were paid it.
Well, I do agree that the redistribution system is absolutely broken. Most welfare recipients do in fact work (and benefit others) but our capitalist redistribution system has decided that they don't deserve to live with dignity, leaving the centrally planned redistribution system to pick up the slack.
The fallacy here is you're trying to frame things in terms of "deserving." An African child deserves life and wealth as much as an American one. A guy slaving 16 hours a day ripping shingles off of roofs "deserves" a mansion and high-dollar escorts as much as the playboy heir of some mega-corp. Some starving African child probably deserves to rip the computer/tablet/phone you're writing this with out of your hand and sell it for a bucket of rice to feed his family. Play this fallacy out to its extension and the whole thing collapses in any system that's attempted to roll out the "deserve" system beyond a pretty constrained fraction of its GDP, and then both the deserving and undeserving end up worse off.
You're fixating on the word deserve in my post, but that's got nothing to do with my point. I'm saying that the market has decided that it doesn't have to pay a living wage since the government picks up the bill to keep things going. I think that's perverse.
I'm confused whether you want more welfare, or you're trying to ban jobs below a certain "living" wage floor (which are probably mostly occupied by the poorer).
There is a somewhat intermediate of this, proposed by Milton Friedman, called the negative income tax. I can't say I'm sold on the idea but it does solve some of the problems of the local maximums encountered that keep people trapped in the welfare system and from trying to get more lucrative income.
Probably some mixture of better statutory labor protections and more class solidarity (collective bargaining), but generally I don't know. It just boils my blood that Walmart can publish a document explaining to its employees how to apply for government food assistance (to buy food from Walmart itself) and this is business-as-usual in the USA.
I don't think we'll find a solution then. We'll argue about it until another country finds the solution for us in the form of superior economic success and then the illegal immigrants will start the cycle over there. Shit-canning welfare might be the easiest way to get rid of non-productive illegal immigrants but shit-canning your entire economy works to get rid of all new immigration and then it's not a concern anymore.
Imagine being 18 and suddenly discovering you have to prove the citizenship status of a parent you've never met or else you'll be deported to a country you've never been to and who's language you don't speak
Imagine a country extending citizenship to a whole group of people for no reason other than the location of their birth, and then allowing said people to access the benefits of citizenship, including the ability to receive welfare benefits, vote, and run for office.
That sounds like a great idea. The more citizens of your country the better. Note that US citizens pay taxes no matter where they live. So it's not a free ride by any means.
The fact that a guy like Trump was ever elected in the first place would imply it is not working fine. Half of the electorate supports his anti-immigration policies. In an alternate universe where immigration laws were properly enforced he may never have been elected.
Further, just because something has never been an issue in the past doesn’t mean it won’t be in the future. The US is an outlier in being the only large and wealthy country that does this. Not many people are flying to Pakistan to give birth to secure Pakistani citizenship for their children.
But his base is largely not people benefiting from birthright citizenship (at least, not recently).. so if anything Trump would be an indicator that we need more immigration to counter the homegrown, um, MAGAts
Are you saying birthright citizenship played a significant factor in getting Trump elected? Illegal immigration certainly did, but birthright citizenship played roughly no role from what I saw.
I'm not sure what you consider to qualify as large and wealthy, but most Western Hemisphere countries do it this way, including places like Canada, Argentina, and Brazil. If none of those qualify then you're getting awfully close to saying that the US is the only large and wealthy country, period.
You're right that it could have worked fine in the past but then become a problem. But if that's your argument, I'm going to need something a little more comprehensive than "imagine if things worked the way they actually do work in dozens of countries and have worked for longer than any of us have been alive."
A belief held by the majority does not make it better simply for that fact. Not that long ago, the majority view was that slavery was a great thing, so I think you should see that argument falls fairly flat.
Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
> Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
No arguments why its better, just stating it as if its fact.
Most countries do not have it because it creates many preverse incentives (such as anchor babies). This especially in countries which are targets of immigration (such as the US).
> Not that long ago, the majority view was that slavery was a great thing
A bit of a tangent, but is that actually the case? The highest estimate I have seen puts slave ownership at 5% of the population while the lowest puts it at 1%.
Obviously just because somebody doesn't own slaves doesn't mean they didn't support the system. There could be economic or legal reasons they couldn't own a slave.
I am just not sure that it was actually a majority view at any point in time in the US.
People are pretty expensive (they're literally worth a lifetime of free labor). 1 slave would've been like 3 complete years income for an average free white southerner to purchase, plus ongoing expenses obviously. So they basically end up in the hands of upper class people who have a steady need for lots of manual labor. Doesn't mean that everyone else around was not benefiting from the economic surplus, or was not supportive of the institution.
The US has always been a country of immigrants; the Constitution recognizes and enshrines this fact. Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment). Given how difficult it is to find consensus on even the most banal issue, it's unclear whether there would be sufficient support to ever amend.
> Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment).
This is actually just the first step - to propose an amendment.
To ratify it requires 3/4 of the state legislatures (or state “conventions”) to vote in favor.
As a non-US citizen, birthright citizenship has always struck me as strangely unique to America - in my mind it comes from a time when it was actively trying to populate the continent (something not a lot of countries have wanted to do, I guess).
Roll forward a few hundred years and the context has changed, so it seems reasonable that the law should too? But I guess it shouldn't be surprising that this is no bueno for SCOTUS, which has an infinite hard-on for Originalism [0] - I certainly can't imagine the conservative justices are ruling based on humanitarian grounds.
Most countries in North and South America have unconditional birthright citizenship for persons born in the country.
I take it you are not British? The British Empire had birthright citizenship, and up until 1948 (except for Ireland) citizens of all Commonwealth countries were simply British subjects.
Afterward it was possible to be, for example, a Canadian citizen, but it was still the case that "Prior to the [the British Nationality Act 1981] coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to [Citizenship of the United Kingdom and Colonies] status" - https://en.wikipedia.org/wiki/British_Nationality_Act_1981
I mean, it tracks with "no taxation without representation". Getting rid of birthright citizenship has the chance to create a separate *multi-generational* class of people that aren't given the same rights in society.
Most of the Americas for just that reason - and because the countries immigrants came from did not want their kids to have citizen ship and the right to come back.
Given the US is one of the most (the most?) successful countries in recent human history, shouldn't it be the other way around? Shouldn't the 95% be looking at the US and seeing what to copy?
To be fair a lot of it had also to do with the sheer immense amount of vast, mostly unused ,fertile land available in north America. I sincerely doubt the American experiment would have worked this well if they had rowdy neighbours and infighting due to resource constraints. For almost 200 years the solution to most things in the USA was to get a chunk of either their people or immigrant to move to the neck of the woods to find fortune
But the success hasn't ended since the unused land became taken; in fact, the US became a superpower after the westward expansion era. My point is that looking at conditions today, the US still continues to succeed (by some definition of success) and other countries should try to emulate the aspects of the country that leads to that success. IMO one of the big factors is how well immigrants assimilate in the country, and birthright citizenship is a part of that.
I do agree with you that US success in the 19th century was due to many factors that are not relevant today.
This exaggerated lie always gets posted, but it's entirely inaccurate.
The Indians were nomadic hunter-gatherers who were sparsely distributed around the US and moved seasonally. Diseases killed the majority. Inter-tribal warfare was the second leading cause of death (tribes that had been fighting for generations with rocks and sticks got access to horses, steel blades and guns and became much more lethal) and deaths attributable to European settlers were negligible compared to the first two causes.
yes, diseases killed the majority, but the diseases didn't come out of nowhere, they came from the European occupiers. and inter-tribal warfare killed plenty. but we're talking about theft of "available" land: the Europeans took the land from the remaining inhabitants, killing those who resisted, and deceiving those who submitted through treaties which they repeatedly broke, leaving the natives, by design, with the worst, most infertile land in the country
don't try to gloss it over and hand-wave it away -- yes, the natives were greatly diminished through the causes you mentioned, I never said the European occupiers killed them all, but it was genocide to finish them off and take all the land from anyone who resisted, effectively destroying their civilization
and stop calling them "settlers", they did not "settle" the land, they took it by force and deception
At a minimum, it's been a place that people wanted to come to, more than they wanted to come to anywhere else in the world. That's successful as measured by people.
(Or at least, people wanted to come until the last couple of years...)
I'm not sure it's true, that seems to be mostly for economic reasons (which might define success, arguably), but I bet a lot more people would dream about living let say in Thailand than in the US, they just can't because they don't have the means.
Fair point. Mainly I agree with the sibling comment: the revealed preference of many people around the world, including many people from the richest countries in Europe, is to move the United States and then settle permanently. I think that means a lot.
Obviously you can also say that the US is geopolitically successful because of its global military and diplomatic dominance, but I account zero value to this.
Despite all of those things people still travel across the world to give birth in US just so their posterity can become a part of our country. What other metric do you need?
Not everybody across the world is doing that in equal measure (I've not heard of a concerted effort by Europeans travelling to the US to give birth in contemporary times).
People migrate for economic opportunity. South Africa is not a rich country, but sees millions come in from the SADC for this reason, despite some pretty big social problems.
The US is nothing special, it's just a particularly large market of economic opportunity with a history of allowing in migrants. If China was significantly more migrant friendly, we'd see the same happen there. None of this specifies that the US has some secret recipe for success that papers over some of its obvious and glaring deficits.
We don't really amend the Constitution every ten years. We got 10 all at once, immediately after the Constitution was written. They were amendments only because there was debate about whether including them would deprive people of even more rights by omission.
Of the remaining ones, two cancel each other out, and several others (including the most recent) are trivial. The Constitution has not been meaningfully amended in half a century, and it seems wildly unlikely that it ever can be.
95% of countries weren't formed by settling on somebody else's land and excluding the original inhabitants from citizenship for several hundred years. The American project is what it is because of millions of migrants who settled there for the perverse incentives of free land via the Homestead Act.
The United States is different from 95% of countries. We're the place you are supposed to flee to when those other countries oppress you. That's just not the history of a place like Italy or Japan.
My great great grandparents left Quebec in search of a place where they could earn enough money to make it. They immigrated to America. They lived in communities of other Quebec emigrants and spoke French their whole lives. They never pursued American citizenship. Without birthright citizenship, would my great grandma have been American? OK then what about my grandpa? What about me? I'm not sure if any of my immigrant ancestors formally pursued American citizenship.
Let's put all of the cards on the table here. Are you white? As long as you and your family are white citizenship probably wouldn't ever be a problem for you, one way or the other.
Trump wants to get rid of birthright citizenship as a pretext to clean the country out of people from "shithole" countries. I don't think he sees Canada the same way he sees Mexico or Haiti.
Constitutional amendments are generally made with the purpose of granting rights to the people, not taking them away. The US once made the mistake of making an amendment to take away rights (banning alcohol), but then another amendment restored the right to get drunk.
Birthright citizenship is one of the best things we have going for us. I see no reason why we should treat people differently depending on whether or not they have an imaginary stamp labeling them as special (IE, as citizens). Birthright citizenship ensures the problem of unequal representation is fixed over time. A self-fixing function, if you will.
I think what you mean to say is that as a result of this ruling the voice of Americans can be diluted over time so that your preferred political outcomes can happen. Not everyone in my country believes that the concept of the nation state is stupid and should be done away with. I understand that there are many who do think this, and I have to live amicably among them, but it doesn't mean that I need to pretend that your ideas are good for me and my kin.
Sounds like you want to have unequal representation. Or rather, you want to keep your privilege by preventing other people from gaining equal footing. You are right that this is a pretty central element of American society. However, I think we're at our best when we concede that this sort of thinking is counter-productive in the end. Cooperation is really the core mechanism for societal growth, so any efforts to prevent cooperation (in this case, by creating a subclass) is eventually self-defeating
So, again, America seems to be the only country where everyone else claims a positive right to enter and dictate what we do. You do not have this right. It never existed. You were convinced that it existed by a combination of overly generous federal spending and the center-left boomer generation winning a few elections here.
>Cooperation is really the core mechanism for societal growth
This is an interesting claim to make when almost all of the leaps forward in technology advancement came either during a war, as part of the lead up to one, or within the context of a cold war. Similar to the entryist problem, everyone demands cooperation from the United States, no one asks for partnership.
>in this case, by creating a subclass
This is literally the point of the concept of the Citizen. A Citizen is prioritized in their own country. A non-Citizen is not. Something happened with education because it feels like we have to go back to deriving the point of the nation-state from first principles.
It does mean you need to pretend that. Reagan has a famous quote about it.
I mean, it's a free country, nobody can make you accept an idea you don't want to. But the nativist ideas you've adopted are not considered by most Americans to be acceptable. If you go around telling people that immigrants aren't real Americans, you will not be accepted even in many conservative circles. Even much of the Trump movement views nativists as useful dupes; the Vice President and Secretary of State, for example, clearly would not welcome your theories that their kin are diluting "the voice of Americans".
You are wrong. My ideas aren't "nativist", they are the mean feeling on this subject for 250 years in this country. It has taken a tremendous amount of effort to convince people that things like "borders", "state sovereignty", and "being discerning about who you let into the country" is bad, evil even. That's why you think you can throw around the word "nativist" as a pejorative. I don't like Ronald Reagan for many reasons, and I don't know which quote you are referring to (though I can venture a guess), so I'm not sure what the point of that appeal is. Like I said, if you think that it's good to dilute the voice of people whose families have been here for a dozen generations by pretending that people who got here 15 minutes ago have the same values that's fine. But you won't get me to agree with you. If you want the country to be more left wing and increasing immigration gets you closer to that goal, just say that, it's cleaner.
> if you think that it's good to dilute the voice of people whose families have been here for a dozen generations by pretending that people who got here 15 minutes ago have the same values that's fine.
That smacks of entitlement. Yes. I know that the other side of the argument also smacks of entitlement. But I believe I have the 14th amendment on my side.
Also, there are a lot of assumptions baked into your statement. If you think that everyone here who can trace their roots back "a dozen generations" has your ideals, well, I've got $24 worth of trinkets to sell you.
Conversely, if you think that everyone here who is newly immigrated does not share your ideals, well, I have more trinkets.
The Mythology of America that I bought into was that it was a welcoming place where you could re-invent yourself in a way that was rarely possible in the country your were leaving.
And yes. I know it's a mythology--with kernels of truth to it.
But you have your own Mythology--and I find it unpalatable, both to me and my immigrant parents.
Nothing I am saying conflicts with this mythology of yours. I think the part of mythology that does not get told often enough is that every instance of large scale immigration into this country has resulted in strife and violence. The Ellis island stories, for example, were largely embellished and were done so after the fact, and it took the Second World War to finally integrate the different groups that came here over the preceding decades. The problem I have with the immigration of today is that the levels of cultural distance are much, much higher than Ellis island. America is the only country in the world where people who do not live here and have no connection to it claim a positive right to enter. I don’t blame them for wanting to enter, and you should not blame me for having the disciple to say no.
> The problem I have with the immigration of today is that the levels of cultural distance are much, much higher than Ellis island.
Sounds like a good thing to me. More diversity means we can incorporate the best ideas from everyone, instead of a select few. But I suppose not everyone likes to try new things
There simply does not exist a substantial political movement of people whose families have been here for a dozen generations. It can't, because the vast majority of Americans do not satisfy this criterion. My own family is homegrown by any conceivable standard, but we've "only" been here for six generations, although perhaps we might go around telling people it's twelve if we didn't have the records.
And again, I'd really like you to consider the honesty of the people who've told you this is a thing. In your readings about this movement to protect the voices of people who've been here for a dozen generations, did they ever mention to you that the current President is a third-generation immigrant and the Secretary of State is second-generation? If not, why do you think they didn't?
I don’t understand your point. Is it that because Marco Rubio is Cuban I need to accept unlimited immigration, forever? This isn’t a position held by anyone in this administration, recent immigration history or not. My point is actually really narrow. The actual political movement with power and influence wishes to increase immigration to dilute the voice of the people already here, because the people already here do not vote in the way that the movement prefers and the immigrants do. Your condescending tone aside, I think it’s very easy to observe that my observation is correct because I can do things like “drive around my hometown” or “visit a major city” and the difference between today and, say, 1999 would make the conclusion obvious.
Because Marco Rubio is Cuban, you have to accept that dichotomy between "unlimited immigration forever" and "voice of a dozen generations" is false. The people in charge who you think agree with you do not agree; they're manipulating you for political convenience, and it's convenient for them for you to believe absolute nonsense so that nobody can reason with you. Nostalgia is a powerful force, so nobody will be able to make your hometown feel like it’s 1999 again no matter what immigration policy they enact.
Another thing I'd encourage you to think about: why do you think that the party in control of the White House and Congress wants you to believe that "the actual political movement with power and influence" is their opponents? Normally one would say that controlling the government makes you powerful and influential. Perhaps they're just very humble and self-effacing, or perhaps they don't want you asking too many questions about why their power and influence hasn't achieved what they told you it would.
Huh? The administration that has an entire police force larger than the United States Marine Corps solely dedicated to immigration enforcement doesn’t agree with me that there is a problem with immigration diluting the voice of Americans already here. Okay. That’s certainly a take that one can have. You should just plainly state your point and preferred policy outcome because when you wrap it up in your moralizing (“I’d encourage you to think about [irrelevant point X]”) it obscures what you’re actually trying to say. I think it’s that this WH is engaged in a vast conspiracy to trick people into thinking that immigration is a policy priority when in fact it’s not. But this is obviously not true.
My point about 1999 has nothing to do with nostalgia. It has everything to do with absolutely no one asking for entire neighborhoods and towns to be turned into impenetrable foreign countries. There is a stark difference between immigration that brought people like Rubio here and mass migration from e.g. Somalia, in terms of scale, context, and timeframe.
> Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
I typically find that the people using this logic don't seem to apply it to laws like universal healthcare, parental leave, or paid-time off. The lack of those benefits creates perverse incentives to already living citizens, not hypothetical future citizens. Why not focus on them?
> Also ~95% of countries don't have unconditional birthright citizenship.
Closer to 82% actually, depending on how you count countries. Almost every country in the Western hemisphere has it. https://en.wikipedia.org/wiki/Jus_soli
>Jus soli is the predominant rule in the Americas; explanations for this geographical phenomenon include the establishment of lenient laws by past European colonial powers to entice immigrants from the Old World and displace native populations in the New World, along with the emergence of successful wars of independence movements that widened the definition and granting of citizenship, as a prerequisite to the abolishment of slavery since the 19th century.[5]
>There are 35 countries that provide citizenship unconditionally to anyone born within their national borders.
Perhaps advantageous, America has been the product of these incentives and still sits atop the world on most hegemon metrics. It amazes me how many people complain about the post-WW2 world order America built and benefits from more than any other country.
The US is unlike most other countries in that it is built on the recent genocide of the native population, with ~most of the current population being immigrants in the last 400 years.
Under what moral rules do genocidaires get citizenship but not, say, refugees?
I, for one, believe in American exceptionalism. This country is different in many ways and its success is due to that difference. I don't think that the US should actively aim to "revert to the mean".
This has nothing to do with whether it is a good idea. The question is whether the 14th amendment plainly says that this is the law of the land in the US, which it plainly does.
That three Justices chose to attempt to gaslight us about this is a disgrace. I'll never trust their judgement again.
Its a terrible idea to give citizenship to the chidlren of birth tourist. It makes no sense that someone defrauds the US government to get their child citizenship then you do nothing about it.
Is it "defrauding" if someone's just following the rules, though? And, at that, is it worth building your citizenship rules around something incredibly rare? (Estimates seem to think it's something like 15k babies a year.)
Looking at the dissents (Justice Gorsuch) it appears that he would consider illegal immigrants’ kids are citizens, but kids of legal non-immigrants are not based on the fact that one is a temporary visitor and another is not!
Isn't this statement aimed at citizenship tourism or whatever its called?
I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
If people really want to stop this kind of birth citizenship tourism they must vote for people who will pledge to amend the constitution using the proper democratic process.
But today's climate is so hostile to any kind of rational discussion about how to change laws. One faction just wants to deny citizenship right now to any people they seem not "american enough" while the other faction cannot possibly entertain any change to the current system or else It would concede something to the populist faction
What change would you suggest? A minimum period of time in the country before birthright citizenship applies? What about people who enter the United States illegally and then have a child twenty years later? What about my ancestors, who entered the country legally but never pursued American citizenship?
The 14th amendment was written the way it was to create a bright line that was easy to implement. I'm sure they considered other ways of framing the issue. I think it's brilliant just the way it is.
I can imagine a compromise that exchanges a path to citizenship for DACA kids for restrictions on birthright citizenship.
What is missing from this debate is the practical side of things. On the one hand, a permanent underclass of non-voting second class citizens is probably not a stable long term equilibrium.
On the other hand, allowing anyone to visit the US to have their baby and automatically receive all the benefits of US citizenship is also not a stable long term equilibrium.
I had a friend from Shanghai who did this. It’s completely legal, you can have a proper tourist visa and be pregnant when you enter the USA, there are hospitals in SoCal that even cater to anchor babies and will express a passport for them so the parents can return with the baby shortly after birth.
That was back in the early 2010s, I don’t think it was prevalent then (I just had too many friends with the money to do that). I don’t think it is common now because Chinese citizens have more confidence about China and so aren’t looking for backup plans anymore.
Yes, the Justices in dissent have an ideological opposition to "citizenship tourism" and are working backward from that to find it to be out of scope of the Constitutional language. But that's wrong, that's not their job.
The question of whether babies born to foreign tourists are automatically citizens is separate from the question of whether this is desirable.
On the desirability side of things, it's been this way for the entire history of this country (the amendment just codified how things were already done) and it seems to have worked OK. But even if we were to decide that this is bad, it would need to be fixed with an amendment.
Solicitor General Sauer brought up the same point during oral arguments in this case, and he didn't seem to know how prevalent it was either. Seems like the kind of thing you should have figured out before making your case to the Supreme Court.
Well, it doesn't matter. If the SCOTUS decides that some people, in certain circumstances, are not in jurisdiction of US law, then they have to apply that notion everywhere.
They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.
As for whether people are really doing birth tourism: sure, there might be some cases, but well, they are using something that the legal system allows. If the country feels like it doesn't want that happening, it needs to amend the Constitution.
(Also, let's not kid ourselves that the birth tourism thing is what conservatives care about... People doing that kind of thing are usually rich. The real target are poor illegal immigrants giving birth in the country.)
> They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.
I mean, they shouldn't do this but clearly they can rule however they want with any pretext they want, because they answer to nobody but themselves. Who's going to tell them they can't do something? Who is left to appeal to?
It's a deeply corrupt and undemocratic institution, with virtually unchecked power to rewrite legislation and even the Constitution at a whim.
Jurisdiction is not some singular concept that means the same thing in every context. You can have jurisdiction over some things in some contexts and not have jurisdiction over other things in other contexts.
If you do crime, can you be arrested by the local police?
"I have diplomatic immunity! Also I live on a reservation with their own police force. So no."
It's pretty clear that's what the amendment means. The only ambiguous situation I've found is if you're born just inside American waters on your way between foreign countries, but that's a really narrow case.
In that case, the use of the word jurisdiction in the 14th Amendment is meaningless, too ambiguous to rely on. Unless we think the Constitution should be living, breathing, and adapt to the current political environment. Is that the current conservative viewpoint?
Not all originalists will hold the same views on how to deal with ambiguity in the same way not all on the living constitution side agree how ambiguity should be resolved. The takes are usually more on the "how to think about resolving the meaning" side than a "is there any meaning to resolve" side.
That said, the originalist viewpoint is usually more along the lines of "we should seek to resolve that ambiguity in context of when, why, and with which references the framers who wrote it had in mind". Most originalists are unlikely to care what an argument about the current political environment implies.
Well, a word can have different meanings in different contexts but still have a clear meanings in each particular context. But I agree that “jurisdiction” doesn’t have a well defined meaning in the context of individuals being subject to the jurisdiction of a nation.
In that case, the proper approach is to look at other evidence of what the drafters meant, which is what both the majority and dissents did.
This is obviously not true. Everyone always wants to say "my ideology is right and this is not contested anymore" and everyone is always wrong about that.
Insofar as originalism did “win,” it was only as a convenient signal to Mitch Mcconnell that a potential appointee would play ball.
As an academic legal theory it’s entirely sterile. There’s little actual content within it and it demonstrates almost no consistent application of its supposed principles. When it ceases to deliver conservatives relatively painless victories, they’ll move on to something else.
The fourteenth amendment doesn't say "within the jurisdiction" but "subject to the jurisdiction": if you break a window as a tourist, you expect to be prosecuted because you committed a crime within that jurisdiction, but you do not expect to be conscripted into military service or to pay income tax, because you are not subject to the jurisdiction.
Birth tourism is definitely an issue for conservatives worried about China. Here's a 2019 ICE press release on prosecuting someone who was running a birth tourism ring to benefit Chinese government officials: https://www.ice.gov/news/releases/chinese-national-pleads-gu...
The right is concerned that Chinese-American dual citizens born in the US but raised in China might, upon reaching adulthood, act with impunity as US-citizen agents of the Chinese Communist Party.
Even better, Chinese anchor babies born in the USA are subject to pay income tax on income they earn in China. It’s not even clear they can get out of it by renouncing their citizenship when they turn 18 to take Chinese citizenship instead (when they have to decide). I think it’s more trouble than it’s worth now.
Sorry, that makes zero sense. Why are you picking conscription into military service or obligation to pay income tax as the defining jurisdiction? Why those two things, and not something else?
Specifically, of those two things you selected: the first would be horrendously problematic as the defining jurisdiction, since it would exclude persons ineligible for conscription (women, disabled persons, etc), and the second wouldn't even have the effect you are suggesting, since persons on non-immigrant visas sometimes _are_ subject to income tax. Heck, I don't even reside in the US, am not a citizen, and I do pay income tax on my RSUs. What gives?
As for the Chinese spy/saboteur/etc: treason will still be treason, and it's not like your country was above internment camps.
What if you're in the US on a work visa, so you do expect to pay income tax but don't expect to be conscripted into military service? What's the correct preposition for that case?
Still "subject to the jurisdiction of". US law doesn't currently have a law allowing them to be conscripted, and it would be very ill-advised to do so and it would cause a lot of diplomatic backlash, but it certainly could pass such a law if it chose to.
So people on a work visa are "subject to", specifically because of two criteria (income tax and conscription) which must both hold, at least hypothetically? What if the US passes a constitutional amendment explicitly saying that foreigners on work visas cannot be conscripted, would that, by removing the hypothetical, have the implicit effect of making such people no longer "subject to" its jurisdiction?
I think your take on this is overly complex and silly.
I think this take is overly complex and silly. If you're subject to the laws, that's that. As an exercise, go read the Federal code and put each law that might potentially be applicable to people on a work visa into a pile. I guarantee that pile will be taller than you are by the time you're done. It will certainly be larger than two random examples.
Yes. You are correct. You completely missed the point of what this subthread is about, but yes. It's clear what "subject to the laws" means to normal people.
The thread was about someone misunderstanding what "subject to the jurisdiction" meant. Someone suggested that it meant subject to US laws including conscription and income tax, another person said "what if the law in question doesn't mandate conscription of foreigners" and then Telemakhos gave a pretty confusing answer to that. At some point you dropped in to make a further confusing and argumentative comment in response to that, so I tried to clear it up. If you were just disagreeing with Telemakhos, then I apologize for misunderstanding.
> The right is concerned that Chinese-American dual citizens born in the US but raised in China might, upon reaching adulthood, act with impunity as US-citizen agents of the Chinese Communist Party.
The US seems fully committed not to learn from its past. I suppose the expectations are for expulsions and/or west-coast internment camps for Chinese-Americans should there be a hot war between the US and China. It figures, since the MAGA is all for turning back the clock.
Citizen tourism is not a real concern; good grief why do people care about fringe issues that impacts no one instead of concentration of corporate power, consolidation of wealth, and decreasing rights for citizens?
Because the people in power don't believe those last things are problems, so they distract us with the former things which actually aren't problems that they present as problems.
> I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
As many as 26,000 mothers do it (birth tourism) every year.
CIS analyzed U.S. Census Bureau data to track the number of foreign-born mothers who gave birth in the United States. Researchers cross-referenced those births against federal figures of temporary visitors. They isolated foreign mothers who arrived on short-term visas, gave birth, and did not establish long-term residency in the U.S. CIS concluded that 20,000 to 26,000 births annually are attributable to women arriving on short-term tourist visas specifically to obtain citizenship for their children.
This "broad conception" is pretty well documented as what Congress wanted at the time of passage of 14th Amendment. It's been considered "settled law" for ages. The only real reason it's come to SCOTUS is that a particular political faction wants it to, and the media gives that particular faction more credence, and more coverage. So there's two things here:
Depending on how you count, something like 96%, 94%, 65% or 87% of mainstream media employees lean left. Of course this matters less and less as customers tune out and their influence wanes.
Yes, educated people tend to lean left, since the right is so anti-intellectual. But virtually all media in this country (both social and legacy) belongs to the far right pedophile oligarchs currently running this country to the ground to fatten their pockets.
This is a cherished American belief, but I don't think it's true after 2016, when NYT gave Trump a significant boost with their coverage of Clinton's emails, and continues to sanewash Trump, after 2024, when billionaires like Soon-Shiong and Bezoa personally directed their paper's editorial stance towards Harris, after Aksel Springer unveils a corporate conservative bias policy.
I think it's blatant now, but evidence suggests that "liberal bias" was never more than a partisan accusation.
35 countries in the world, most in the Americas, confer unconditional birthright citizenship (jus soli), regardless of their parents' nationality or immigration status.
If only because this would open up people born here to having their citizenship retroactively revoked.
The constitution is pretty clear. If you don't like it amend it.
If anything we need to expand it to include anyone who gives birth in this country. If you're willing to deal with our horrible maternity care system and help keep up our declining population, you deserve a blue passport.
The U.S. Constitution is very far from being clear. The whole purpose of the Supreme Court is to explain the meaning of what is written in the Constitution; there are 9 justices in the court and they often disagree on that.
Just look at the second amendment:
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
The "well regulated militia" phrase caused at least two very different opinions: United States v. Miller [1] in 1939 and District of Columbia v. Heller [2] in 2008, with very different results.
Just as the second amendment has this "militia" phrase that provokes arguments, the fourteenth amendment starts with
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside.
and the phrase "and subject to the jurisdiction thereof" is vague enough to trigger discussions about whether it applies to illegal immigrants or not.
The debate is whether the USA is a Jus Soli (no s) country.
Roberts claims Jus Soli applies to the USA by looking at historical concept of the words in the constitution and the king's obligations to those on his soil. He cites historical statements by founders.
Thomas and Gorsuch rejects Jus Soli applies since it is a concept from feudal lords and serfdom which the USA did not inherit. The cite historical statements by founders.
Kavanaugh thinks congress gets to decide the meaning (within reason), so he rejects Jus Soli as well.
Jackson worries about backsliding and using this to oppress people, unsure about her legal reasoning, but seems to guess at how authors of the amendment understood the words. I would still classify her as saying USA did not inherit Jus Soli, but later codified it via amendment.
I'm sorry, but it's simply insane to appeal to the founders over Jus Soli. The founders did not write the 14th amendment. Their opinions on the matter are irrelevant.
The 14th amendment grants Jus Soli. End of story. It doesn't matter if every single founder and their forefathers were opposed to that notion. The people who drafted the 14th and ratified it were in favor of Jus Soli. They were VERY explicit about that fact. There were active debates when the 14th was drafted if it should be drafted and if it should be as broad as it is.
Thomas, Gorsuch, Alito, and Kavanaugh are all hacks for going further back into history than the drafting of the 14th.
It would be like talking about what the founders thought about alcohol when discussing the 18th amendment. Nobody cares because that amendment was written long after the founders died.
> The 14th amendment grants Jus Soli. End of story.
But it isn't the end, it then qualifies who gets Jus Soli. And that is the debate.
> The people who drafted the 14th and ratified it were in favor of Jus Soli
Thomas cites Sen. Howard and Sen. Trumbull statements in support of the claim that the 14th amendment ratifiers did not intend to grant universal Jus Solis. Is he a liar?
> ... and Kavanaugh are all hacks for going further back into history than the drafting of the 14th
Kavanaugh doesn't go back further into history, it seems like you didn't read the opinion. He spends very little time on the constitutional question.
Yes, he's quote mining to try and argue that there was some sort of confusion about the implications of the amendment. This was part of the debate about the amendment and whether or not it should be reworded. In other words, Howard and Trumbull were raising the very issues with the text that Thomas wants to take issue with.
That discussion was one which shows that the implications of the text were understood and accepted as a result of debate. It cuts against Thomas's actual argument.
Thomas is a liar. Or at very least a dishonest in his characterization.
This is a great summary! This is a case where all the opinions are quite good. I quite like Jackson’s opinion here. The framers of the 14th amendment were radical egalitarians and we shouldn’t lose sight of that.
Nah, the conservative opinions in this case aren't even worth the paper they are printed on. Every single court that saw this case decided the same way: birthright citizenship was intended to work exactly as it has been applied since its inception.
The precedent was correctly decided, as affirmed in this decision. They left the precedent stand, since it was never up for debate for any serious legal scholars. Thus, the supreme court never needed to take up this case.
The only people entertaining a challenge to the previous decision are those who wish to ethnically cleanse the United States.
So what's Thomas's point then? Do they mean to say that jurisdiction attached to soil is a feudal concept? Wtf? What IS the US jurisdiction then? Is no one under jurisdiction because there are no feudal lords obliged to serfs? What a load of nonsense.
Jurisdiction has multiple concepts, you are thinking of territorial jurisdiction. There is also personal jurisdiction, feudal jurisdiction (serfdom), political jurisdiction.
Thomas is reacting to Roberts. Roberts spends time talking about the king's obligations to those born on their land. There is also each person's obligation to the king. Roberts wants to say "we inherited common law, and under common law everyone born on the king's land immediately came under his jurisdiction, the king owed things to these people immediately (and the people owed the king)". Thomas is saying "no kings".
> What a load of nonsense.
Or, this is a complicated, multi-layered concept that goes back through 500 years of common law. It will look messy.
And so we have the whole bench of 9 people guessing and discussing the intention of the lawmakers. Did they indeed mean diplomats when they wrote "subject of the jurisdiction thereof"? If a Martian lands on the US soil and gives birth, will the offspring immediately be "subject of the jurisdiction thereof"? What was the common meaning of the word "jurisdiction" in 1868? This kind of stuff.
Citizenship means having political rights. If it's decided at some point that a martian may have political rights...then yes, as it stands, their offspring would have citizenship upon birth/ejection/hatching/transmogrification or whatever means of reproduction they use.
This is really no different than if we decided that a dolphin or a naked mole rat are able to hold political rights. If an understanding that this is possible emerges, then as a logical consequence any dolphin or naked mole rat born in US jurisdiction would be a citizen.
You are surely oversimplifying it. The amendment clearly says "born or naturalized"; can hatching or transmogrification be considered a birth? We need to look at the original meaning of the word "born" in 1868.
Also, it does not say anything about having political rights, just about being a "person", which will surely start a separate debate :)
If you read Roberts's opinion he literally explains the definition of jurisdiction as it stood when the amendment was drafted (he cites three different dictionaries) and cites floor arguments directly from the Congressional record. It's not long, takes about 15 minutes to get through.
The rest of the documents are the concurrences (Jackson) and the three, frankly insane, dissents. Thomas's is 90 pages long somehow (I couldn't get through all that one, it's properly crazy).
Here's part of the Senate debate where they discuss it. It turns out that they were extremely precise about what it meant, and they described the exceptions in great detail. It's even typewritten. The downside: you can't come away from reading this stuff and pretend like there's some legal flexibility in the term. If that's important to you, you probably shouldn't click the link.
There are other people who can be within the territorial boundary of the US but not subject to its jurisdiction. An invading army, for example. It leaves some interpretation of this question but it does not leave unlimited interpretation to the President, or even to Congress. That is the understanding of Wong Kim Ark, which overturned the law Congress passed 14 years after the ratification of the 14th amendment.
We know that because jurisdiction is such a fundamental concept that it needs no further specification. It's fundamental to any system of laws, if a jurisdiction is not defined, the system of laws is useless. Running a legal system without a jurisdiction is like running computer code without memory space.
The US legal system defined everyone in its soil to be under its jurisdiction, _except diplomats_, because of diplomatoc norms.
If an illegal immigrant kills a person while in the US, they get tried according to US law. If a diplomat kills a person in the US, they do not get tried because the US has no jurisdiction over that diplomat.
> You’re saying we need to look to the international meaning of some Latin phrase (“jus soli”).
Discussion of law discussion that uses comparison with international standards is quite common in every legal system. The sentence regarding the murder of a relative of mine had citations of Italian law, German law, some Spanish doctrine. It was also peppered with Latin terms and expressions, because Roman law had quite an influence in all Western legal systems.
So yeah, sometimes discussions of law can be complicated. This one... Ain't.
> If an illegal immigrant kills a person while in the US, they get tried according to US law. If a diplomat kills a person in the US, they do not get tried because the US has no jurisdiction over that diplomat.
Diplomats have diplomatic immunity, which is not the same thing as jurisdiction. For example, diplomatic immunity doesn't extend to a diplomat's commercial activities: https://www.law.cornell.edu/wex/diplomatic_immunity. So if a diplomat sells you fake Hermes bags passing them off as the real thing, you can sue them in a U.S. court. And the U.S. court will have jurisdiction.
> Discussion of law discussion that uses comparison with international standards is quite common in every legal system... So yeah, sometimes discussions of law can be complicated. This one... Ain't.
We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
> We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
It really isn't, it's literally what lawyers do for a living.
Everyone on U.S. soil is subject to the law and rule of the courts to some extent, including diplomats. Diplomats are immune to prosecution for crimes, but that's different than being outside the jurisdiction of U.S. laws.
For example, in 2013 several Russian diplomats were indicted for Medicaid fraud: https://abcnews.com/US/russian-diplomats-scammed-medicaid-15.... They had diplomatic immunity, so the U.S. had to get the Russian government to waive the diplomatic immunity. But if Russia waived the immunity, the prosecution could proceed even though the diplomats had diplomatic immunity at the time the crime was committed.
Moreover, diplomats are subject to civil liability for commercial activities beyond their office: https://www.law.cornell.edu/wex/diplomatic_immunity. Diplomatic immunity doesn't protect them from suits in U.S. courts related to such activities.
So reading "subject to the jurisdiction thereof" to mean "subject to the law and the rule of the courts" proves too much. The U.S. and its courts have some level of jurisdiction over everyone and everything on U.S. soil. So that makes the phrase "born or naturalized in the United States, and subject to the jurisdiction thereof" redundant--the words "subject to the jurisdiction" aren't doing any work that the phrase "in the United States" isn't already doing.
A child of recognized foreign diplomat, if born in US soil, however, is not a US citizen at birth. And if they try to claim that later in life, it will be denied.
This has always been like that. All jus soli countries do it.
Correct. Children of diplomats born on U.S. soil aren’t covered by the 14th amendment, even though they are subject to U.S. law and can be sued in U.S. courts over many things notwithstanding diplomatic immunity.
Read Jackson’s opinion. The amendment was debated at the time and the history records show that at minimum it was intended to include all people living here who didn’t have permission to not follow laws like diplomats or invaders.
> who didn’t have permission to not follow laws like diplomats or invaders.
That doesn’t quite work, because diplomats and invaders do have to follow US laws and can be tried in U.S. courts. In Ex Parte Quirin, for example, nobody doubted that German saboteurs on U.S. soil could be prosecuted in civilian courts. And while diplomats have immunities in certain areas, they can be sued under U.S. law in U.S. courts for commercial activities conducted in the U.S.
If “subject to the jurisdiction” means the U.S. has some sort of jurisdiction over a foreign national, then children of ambassadors and foreign soldiers would have birthright citizenship. So there must be an additional step or wrinkle to get from the word “jurisdiction” to the exceptions that are recognized.
German saboteurs on us soil are certainly subject to us jurisdiction. If they had kids while here the kids would be citizens according to the 14th. Wong Kim talks of invaders who are working under a different set of laws because they’re part of a military invasion, not a clandestine operation. They can’t be tried because there is no American presence on the invaded territory. I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned. They’re not really subject to our jurisdiction. Being able to withdraw our invitation isn’t the same as having jurisdiction.
> Wong Kim talks of invaders who are working under a different set of laws because they’re part of a military invasion, not a clandestine operation. They can’t be tried because there is no American presence on the invaded territory.
Whether the U.S. has jurisdiction over territory has nothing to do with whether it can enforce its jurisdiction as a practical matter. If someone blew up a court in a particular district, that would not mean that the court, as a legal entity, ceased to have jurisdiction. By your reasoning, if Mexico invades Texas, children of Mexican servicemen born on U.S. soil would qualify as U.S. citizens. I don't think that's correct.
> I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned.
Being immune from prosecution is different from not being subject to the law. Diplomats are subject to the laws just like anyone else. They have immunity from prosecution for crimes. But the U.S. can request the immunity be revoked, and if that happens, they can be prosecuted for crimes that occurred while the had immunity.
And diplomats can be sued in civil cases in U.S. courts for their commercial activities. They are very much subject to the jurisdiction of U.S. courts, even if we can't always prosecute them for crimes.
"US jurisdiction" also includes foreign heads of state residing in, and present in, their own country. I don't think a theoretical definition of jurisdiction is tenable; only a realist one.
Illegal immigrants are also working under a different set of laws because they are citizens of another country. Ask yourself this: where would an illegal immigrant apply for a passport? Just like an invading army, citizens of other countries are obligated to follow the laws of the countries where they have citizenship in addition to any laws that may be imposed on them by being present in the US.
Diplomats are subject to the jurisdiction of the US, that's why we have immunity agreements and we can order them out of the country. We also don't recognize the children of invading armies as citizens. Native Americans don't automatically get citizenship from the constitution. They get it from an act of congress in 1924.
They are not subject to jurisdiction, where the hell did you get that idea? If a diplomat does something that would be a crime in the US, they are _asked_ to leave via diplomatic channels. They usually leave on their own. If they were under US jurisdiction, they could be TRIED in the US, but that basically never happens. The only few exceptions you will find to this were either cases where a) the person was not really immune to begin with b) their country waived the immunity or c) the immunity lapsed because the person did not leave the country in a reasonable timeframe after being asked to
If a diplomat is going on a shooting spree they can be shot and killed with no ensuing issues as a result of US law enforcement enforcing laws in the moment. If they are robbing a seven-eleven they can be arrested and held until arraignment. They can be ordered to remain in their home, aka house arrest. They can be ordered to leave and they have no option to remain in the country. The US constitution does not grant diplomats immunity it is something we have agreed to via treaty and law. They are 100% subject to our laws, that's why our law granting them immunity applies.
That flies in the face of what I understand is true about diplomatic immunity. Citation required.
As a less extreme example, diplomats can and DO park their vehicles illegally: in No Parking zones, Handicap Only zones, and blocking fire hydrants. Diplomat plates render the police unable to ticket them. It's civil not criminal courts, but for the exact reason that they are immune to our laws.
A diplomatic vehicle that is a safety hazard can be towed. A city/state cannot enforce any fines, but they can definitely clear any safety or traffic related issues.
I would start with Vienna Convention on Diplomatic Relations and go from there.
IANAL, but it seems to me like the US could totally pass laws regulating Germans on German soil. It just couldn't enforce them in US courts (short of kidnapping Germans from German soil, or luring them to the US somehow). So it would be mostly pointless but not impossible.
Also, multiple countries have laws claiming universal jurisdiction. As I understand it, French laws against genocide denial claim to apply universally.
From your own discussion, it seems like "subject to the jurisdiction" should be understood as "can be judged in court". Diplomat is immune = can't be judged = not subject to jurisdiction. Immunity lifted = can be judged = subject to jurisdiction.
And also, depending on the crime (and acknowledging it is easier in some cases than others), countries have often agreed to prosecute the diplomat in their home country.
There's also the fact that Diplomatic Immunity is also a lot narrower than people think. Consular Officers are generally not covered by it, but then you get in to the de facto. Okay, NYPD sees consular plates and doesn't ticket a vehicle. Or tickets it but there's no enforcement, because "maybe it's the Ambassador's vehicle". And then a city, state or country is generally not going to make a scene that affects ambassadorial relations over a few hundred, or thousand, dollars of parking tickets.
No it really isn’t. Immigrants are clearly subject to the jurisdiction of the United States. As Wong Kim stated the only way not to be is if the government has given you permission to be here without being under jurisdiction like a diplomat or if you’re part of an invading force. Every other person in the us is expected to follow us laws. Just because they don’t doesn’t mean the us doesn’t have jurisdiction.
Were you so sure yesterday that the Court would decide the way it did? I'm sure that with a different set of justices, the result could've been different.
A "clear" law would likely not result in a 6:3 vote. There are enough cases in the Supreme Court that get 9:0, those can probably be called "clear".
> more and more packed with dishonest, racist Republican political hacks
I'm not sure I see where the "more and more" is coming from.
Out of the three justices nominated by Trump, two (Barrett and Kavanaugh) voted in favor of birth citizenship rights; does it qualify them as dishonest racist Republican political hacks? The other two who dissented, Thomas and Alito, have been serving for 35 and 20 years respectively, so it's hardly about packing.
Also, while 3 of the 4 newest justices were indeed appointed by a Republican president and 1 by a Democrat, before that, we got 2 new justices appointed by Obama (Sotomayor and Kagan). Unless the Congress actually increases the number of justices, I would say the current system works just as designed.
I was sure that Thomas would come up with some bullshit that is completely divorced from the text and history of the constitution. The other 3 doing the same is a disappointment but not a huge surprise.
The problem is that the other half of the country will probably have something to say about activist leftist justices with their agenda. This is just not the constructive way of arguing.
Disclaimer: I'm a legal immigrant myself, and of course I appreciate the today's ruling in favor of jus soli.
What is the activist leftist agenda, anyway? Civil rights for everyone? Universal healthcare? The right wing activist agenda seems both better organized and universally punitive. One wants to force the government to help me, the other to punish me. And yet only the leftists are a danger to our country?
Just for the record, I was responding to the (now flagged) comment which used some similar meaningless name calling towards the dissenting justices, to which I responded that this name calling game can be played by both sides.
> And yet only the leftists are a danger to our country?
its more like a danger to capital interests (restricting what businesses can do, universal programs reducing markets etc)... and alot of people associate that freedom as fundamental as anything (i'm not arguing either way btw, just my understanding)
Aaaaand, there it is. If I disagree with a ruling, or with the politics of the president that appointed a judge that made a ruling, then the rulings are “illegitimate”.
Yes, justices who take bribes or whose spouses help to organize a coup and an insurrection against the United States are not legitimate (Thomas, Alito). I'm more apt to listen to Gorsuch, even though he was in the dissent here, because he seems like a legitimate thoughtful jurist.
This is why American Samoans aren't citizens. They aren't subject to the full jurisdiction of the USA even though they are born in the United States.
Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.
----- re: below due to throttling---------
>American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.
Unless you falsely believe PR or AS are not part of the United States, you are just agreeing with me with extra words regarding the jurisdictional differences. The only option for denying birthright citizenship would be not born in United States, or not subject to jurisdiction thereof.
See this excellent prior comment[] on why the difference between PR and AS is jurisdiction and not whether it is part of the US.
>This seems entirely subjective.
I'm not going to do a formal academic study with you, it's plainly obvious as of late you see far more headlines on hackernews (a search shows a single HN topic on AS citizenship in the history of HN, but full page+ of search results on the birthright citizenship issue at hand) and elsewhere regarding the birthright citizenship issue at hand and far more rarely the fact American Samoans don't get it.
American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.
> Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.
What a curiosity. It appears that other territories count by statute but for American Samoa the US national designation was created to give them similar rights to citizens but not voting or political office and in exchange the Samoans get some more self-determination than other territories. Cool!
Yes, lots of them don't want the 14th amendment. They have racist/ethnocentric land ownership laws that contradict the 14th amendment, the same one that creates birthright citizenship.
There are also allegedly some low quasi-government tribal positions in remote areas where women are effectively ineligible for office, though this one is less provable, it also would not be consistent with constitutional protections.
So many historical curiosities in this whole thing. Hawaii vs Puerto Rico, for instance, the latter having more people but not a state. I imagine we put up with the Samoan rules because we wanted the strategic base. My own citizenship rests on the fact that other territories have been included into birthright citizenship by statute.
Hawaii also bizarrely has 14th amendment violating land laws. There is a non-Indian-reservation, state owned land called the "Hawaiian Homelands" where only those of "the blood" of the right people can lease from. This violates the 14th amendment (SCOTUS has ruled Indians are exempted, but Hawaiians were determined in Rice v Cayetano to not be Indians) protections on equal protection under the law of different races to enjoyment of the public lands. No one has bothered to challenge it yet, but I expect especially under this SCOTUS the Homelands will get steamrolled if they do.
Hawaii's 14th and 15th amendment violating laws have slowly been getting flushed out. In ~2000 non "native" local voters could finally vote for all offices (RBG dissented, vouching for racist voting laws and against the 15th amendment), and IIRC not long after that it became possible for those with the wrong "blood" to hold all offices.
Fascinating. Another strategic base. It seems straightforwardly unconstitutional though I suppose it rests on this political vs racial classification. Though even that distinction has always felt dubious - being determined by ancestry rather than affiliation with a polity.
I can believe that there is a lot of variance in maternal care and obstetrics in the US, but my wife and I had a pretty good experience. Documented here in what detail I could muster in those days: https://wiki.roshangeorge.dev/w/Pregnancy
Not to mention the lack of maternity leave or real worker protections. A family member was fired for taking off time during a pregnancy. Everyone's fine now, but she definitely had a rough patch.
A big part of this comes down to the lack of any real safety net here.
The US's population is not declining. However, without immigration, our population growth would be very close to zero, and a yet lower rate of natural increase is locked in over the next couple of decades (more old people who will die than children).
And, I mean, it's obviously hard to predict beyond that, but it doesn't seem like anyone has any real clear answer to the trend of steadily decreasing TFR right now.
I suspect OP mean declining fertility rate. USA population is still increasing, but is slowing down, and will sharply drop if the fertility rate remains below replacement of ~2 children per woman.
I believe OP is referring to how immigration is the only known working solution to a decreasing population.
The US fertility rate is already 1.6 births per woman[0], and the population is only not decreasing because it still receives far more immigration than, say, Japan or South Korea.
This is not specific to the US. The US is on 147th position [1], right near a lot of European countries, and I don't think there are easy way to rollback the demographic transition.
> is the only known working solution to a decreasing population.
Which it obviously isn't a working solution in any nature of the word. Using arbitrary countries to avoid common mousetraps.
Hypothetically all women in Estonia suddenly opt out of having children for a variety of reasons. They had previously had no problems like this and enjoyed a high fertility rate up until now. The government of Estonia sees this and starts mass immigrating Japanese men and women and are able to stabilize their population. Though, the Japanese women also normalize to the same state of opting out after just one generation.
The government claims that this too is an emergency and seeks another seemingly arbitrary population of humans to import.
The nuance is ~71% of the world’s population now lives in countries with birth rates below the replacement level needed to maintain population size. US working age population cohort has likely peaked. The future of the developed world is fighting over global skilled workers and young potential immigrants who would settle and start families in your jurisdiction.
The birth rate correlates inversely with female earnings growth and correspondingly with male earnings growth; or, more to the point, declining birth rates correlates with the advancement of feminism (including birth rates approaching and then reaching zero.)
This is an observation and not a judgement. Take what you will with this information.
Yes, because of the outdated assumption that women take virtually all responsibility for childcare, which is damaging not just to women, but to men and children too, combined with the it becoming more difficult for families to manage on a single income.
It is not just an American problem. It is slowly changing, at least here in the UK: I see a lot more dads taking kids around these days. I have still found people were surprised that my daughter lived with me rather than her mother after divorce though.
It makes sense to me. When women have more choices, they tend to put off having kids or they raise their standards - for their economic situation before kids, for partners, etc.
I think this is good; insofar as women have children, it should be because they want to, not because they're pushed into it.
I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.
Slightly fewer is good. A rate of around 1.8 kids per woman seems slow but it's an exponential so it's still quite significant.
Parts of the world have reached 1.0 kids per woman, which is a halving of the population per generation, which will put a massive strain on our resources
> which will put a massive strain on our resources
True, but again, scientists are saying that we're already putting massive strain on our ecological resources, and the strain is only increasing. Not just climate change, but ocean acidification, modification of biogeochemical balances, habitat destruction, etc.
We are at genuine risk of accidentally wrecking the ecosystems we depend on.
Can you expand on the harm of degrowth? I usually see it framed in terms of "our state retirement system is an obvious pyramid scheme that is about to collapse, we need to keep the scam going as long as we can". Are there better reasons to worry?
> I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.
If you believed this, would you be against sterilizing third world populations to limit the overall population growth ( given those are the populations which continue to grow in this environment ) ? If not sterilizing - what about propagandizing their younger population to not reproduce? Would that be a net-good?
> If you believed this, would you be against sterilizing third world populations to limit the overall population growth ( given those are the populations which continue to grow in this environment ) ?
This is true, although I think it correlates more strongly with female participation in the workforce than earnings directly. And it's not a criticism of feminism, just a consequence that we should be aware of.
A material component of reduction in the US fertility rate has been avoided teen (15-19 cohort) pregnancies. ~40% of pregnancies both in the US and internationally, annually, are unintended (per the Guttmacher Institute and the UN, respectively).
There's No Mystery To America's Fertility Decline - https://ifstudies.org/blog/theres-no-mystery-to-americas-fer... - June 30th, 2026 (“The U.S. fertility decline is shaped by many forces, but the data point to one primary driver: the collapse of childbearing among women in their 20s.”)
That exception comes from the fact that, I'm guessing, no diplomat or their children have sued over it.
If they have, I'd love to see exactly where a prior SC decided that it's constitutional.
If you are an originalist, textualist, or even just standard jurisprudence believer then it's crystal clear what the 14th meant. The only reason for any question about it is because a large portion of people hate the fact that someone can get citizenship by being born here.
The dissents violate the supposed judicial theory of these justices. It shows naked partisanship.
So what does “subject to the jurisdiction” mean, from a textualist standpoint? The word “jurisdiction” in the law can have different meanings in different contexts. What does it mean here?
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Notice the "and" clause before the "subject to the jurisdiction". It means "everyone who is born in the united states and additionally everyone who is subject to a US jurisdiction". It's the clause which allows people born on US military bases to also be citizens of the US because that's a jurisdiction of the US. For example, Ted Cruz. It does not mean "Who are also"
And since this is a clause which additionally adds on people it's talking about, you could exclude it all together. "All persons born or naturalized in the United States ... are citizens of the United States".
No, the "and" functions the same way as in programming: "(born or naturalized in the U.S.) && (subject to the jurisdiction thereof)" requires both things to be true.
No it's not. And, as a prime example, this case which the supreme court does not and did not take that view. It's not even something the dissent argued. This is your own personal interpretation.
No, it’s the opposite. In this case, everyone agreed that the “and” means both conditions must hold. Everyone agrees that someone must be both (1) born in the US and (2) subject to the jurisdiction of the U.S.
Under your reading, the whole discussion about children of diplomats makes no sense. Under your reading, children of diplomats would automatically be U.S. citizens if born on U.S. soil. But everyone agrees that they’re not.
Diplomats have some immunities but are not categorically outside the jurisdiction of US laws. For example, they can be sued for “commercial activity” outside the scope of their duties. If a diplomat sells you fake Hermes bags passing them off as real, you can sue them under civil law.
This wouldn't really be applying laws retroactively, but deciding what the law has always meant. If the decided meaning is that children of illegal immigrants are not automatically citizens, that means they weren't automatically citizens beforehand. Thus there wouldn't really be anything to revoke, they just never were citizens in the first place.
The executive order that prompted this was only aimed at babies born after it went into effect, but I see no reason it would have to be that way.
Either laws work the way they're written and 4 members of the court disagree or they work the way the Supreme Court says they work and a worse ruling could threaten those citizens.
That's not how we have traditionally thought citizenship works, but that is exactly what the Trump administration would've gone for next if the supreme court had ruled in their favor in this instance, thereby setting up the _next_ supreme court case.
Sorry but I wanted to see a 9-0... There are 3, 4, that are just ignoring the constitution from what I read/saw. It is only a matter of time. A win for now but that is for now.
What is “a matter of time” exactly? I doubt the court wants to revisit this again any time soon. And two of the dissenters are probably the likeliest justices to be replaced next.
Trump and his cronies were never going to win that battle. Like many things he does, it serves as a dog whistle to nationalists and allows him to paint anyone who opposes him as somehow un-American and an enemy of the ‘people’.
Another bad decision that won't stand the test of time. The decision says more about the justices themselves than it does the decision. Voting the "right way" gets positive press attention, invites to the DC social circle, etc. Kavanaugh and Barrett are both attention seeking, weak willed individuals that Roberts plays like puppets. Personally, Trump should not have nominated either of them. And W's nomination and selection of Roberts over Scalia was appalling. Neither a textualist or an originalist could have ruled that way. And using the 14th Amendment as justification is historically disingenuous, as Clarence Thomas pointed out. Birth tourism will thrive.
This particular Supreme Court is out of control. The Roberts court will (IMHO) go down in history in the same cateogry as the Taney court that gave us such decisions as Dred Scott. Supreme Court justices have always been political actors, not some high-minded academics that come down from their ivory tower to hand down missives every now and again (as some imagine). But this is a step beyond anything we've seen in a long time. Here are some highlights:
- 4 justices in this decision rejected the plain text reading of the Citizenship clause of the 14th Amendment, which would've overturned over a century of precedent;
- They invented the "Major Questions Doctrine" that basically allows the Supreme Court to overrule the will of the executive and legislative branches if they deem the decision sufficiently weighty. It was invented and used to block significant legislation under the Biden administration;
- They invented the History and Traditions Test under the Biden administration to overturn Roe v. Wade with the Dobbs decision. This was in spite of abortion being not only legal but essentially unregulated at the founding. Famously, Ben Franklin published an at-home recipe for abortion [1];
- They have lied about the facts of cases to push a particular decision. One of the more notable cases was Kennedy v. Bremerton School District that allowed school prayer. The lie? That the coach was "quietly" praying. This was not true and was documented, including photos to the contrary;
- There are now essentially zero limits on campaign spending by anyone after today's decisions on PAC and campaign coordination and of course Citizens United;
- They decided that independent agencies set up by Congress are unconstitutional despite almost a century of precedent because of the separation of powers but this doesn't apply to the Federal Reserve for some reason;
- They overturneed 40 years of precedent of Chevron deference, a case that Gorsuch should've recused himself from since he was essentially avenging his mother's sacking as EPA administrator under Reagan in a case that became Chevron. 40 years of Congress and 7 presidents of both parties have written and signed laws with Chevron deference in mind;
- They invented presidential immunity out of whole cloth in a country that was founded rejecting monarchs who were above the law. All the insider trading and pardon selling of the current administration is a direct and foreseeable result of that decision;
- They decided that Federal regulations could essentially be challenged at any time instead of the previous six-year rule (ie Corner Post). This essentially allows you to challenge a 100 year old rule by setting up a situation where you're "harmed";
- Roberts has almost singlehandedly gutted the Voting Rights Act over several decisions. Previously he got rid of federal preclearance because of a history states had with discrimination and voter suppression. They immediately went back to discrimination and voter suppression. And then this year the court basically allowed racially-discriminated redistricting under the guise that it was "partisan" not "racist" unless you can prove beyond a shadow of a doubt that it's racist;
The inability of this court to see obvious racism harkens back to a famous decision called Cruikshank that decided private individuals couldn't be punished for civil rights violations (notably, hate crimes) in a response to the Colfax massacre. Additionally, Cruikshank stated that the Bill of Rights didn't apply to state governments. This was slowly dismantled by various opinions over the next century.
There were other cases of the Redeemer era (notably Plessy v. Ferguson that legalized segregation) where the court was completely unable to see racism and went out of its way to limit any effort to combat it. We're in one of those eras now (IMHO).
All of this is incremental too. So today two cases were decided that essentially allowed states to ban trans athletes. The next step here is that trans athlets must be banned. Those cases are already percolating through lower courts and we'll see them in the next term most likely.
> All of this is incremental too. So today two cases were decided that essentially allowed states to ban trans athletes. The next step here is that trans athlets must be banned. Those cases are already percolating through lower courts and we'll see them in the next term most likely.
Actually what today's decision does is uphold Title IX rights for women and girls. Have you considered how this decision benefits female athletes?
Hard to address everything wrong you wrote, but in particular major questions doctrine protects us from presidential overreach. It has been key in stopping some of Trump’s foolish policies like tariffs. So that is hardly something we should be criticizing. Biden’s student loan forgiveness was similarly illegal executive overreach. These sorts of major things should be passed by congress.
Yes and no. The tariffs decision was fractured. There were really two prats. The first was that a statutory interpretation of IEEPA didn't give the President the power to tax. That authority lies with Congress. The MQD, to me at least, felt shoe-horned in tehre, kind of to justify its existence. But a statutory interpretation was sufficient to rebuke the President's authority so why the rest? It feels like the court is saying "see? we use this on Trump too. We're not biased".
This is kind of crazy. The text of the amendment is as literal as it gets. If this had failed it would have basically meant emptying Congress of all of its powers, because now the executive can just pick whatever interpretation they deem fit to their goals and run with it.
The rule of courts of law is to interpret the law, not to pick new creative meanings out of them. That's the role of the legislative power - otherwise what's stopping a court to reinterpret the meaning of any word in any legal text and allow the executive to rule by decree
It has been clear to every single human being reading it for hundreds of years. It was never up to debate until some person of this administration decided to go and question the meaning of "jurisdiction thereof". Also saying that a foreign-born person isn't subject to the jurisdiction of the country they find themselves in opens a massive can of worms - like, if the State doesn't have jurisdiction over foreign nationals, does it imply it's not legally allowed to arrest them for instance? Two can play the same game and find infinite loopholes even in the clearest of texts.
This goes beyond the value of citizenship by birth, which I'm neither in favour nor against (personally I think that just sanguinis is nonsensical, but so is to automatically give citizenship even to accidental passer-bys), it's all about whether the law still carries any "evident" meaning or whether it can be spun around depending on political necessity, which is bad
You didn't read the decision, it was up for debate in 1898 Wong Kim Ark. Every justice cites it. Wong Kim Ark gives 4 exceptions, and it isn't clear if those exceptions are comprehensive or not.
And you didn't read the majority's breakdown of `subject to the jurisdiction`'s historical meaning, otherwise you would know that the power to arrest is not the same concept.
You have made false claims and appears you are commenting on something you haven't read.
Kavanaugh ruled that Trump's EO wasn't unconstitutional, just contrary to federal law, and Congress could change the law there if they wanted. So, this makes it only 5-4 upholding the 14th amendment.
Which is gods-damned crazy. We are that close to overturning major civil rights.
This would also overturn our ability to arrest or deport non-citizen, no? If the argument is that they are not under the jurisdiction of the US government, we cannot legally arrest or prosecute them?
This would create chaos. Not to mention the tens of millions of citizens retroactively turned into stateless people!
Sure, but it leads to allowing for the possibility of interpreting "..the right to bear arms.." as "you are allowed to own the limbs of an Ursus arctos".
There's plenty in the US constitution which is vaguely worded, but you have to twist its words an awful lot to deny birthright citizenship.
If we live in a world where words have no meaning and the definition of the Constitution can be interpreted to be literally anything depending on today's mood of the Supreme Court, why even bother writing a Constitution at all?
Why not get rid of the whole charade and just replace it with "whoever is appointed to the Supreme Court can make up any law as they feel like it"? It has the same meaning, but it's an awful lot clearer!
In fact, I think there's a term for a ruler with complete power who's there for life, something like an "absolute monarchy"?
And if they do enough of that, the other two branches might eventually be motivated to take action to counter it, like packing the courts or impeachments. Or telling SCOTUS to enforce it, as one president did.
The language couldn't be any clearer. The fact that it was questioned by people with a stated motive doesn't prove otherwise.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof ...
It's the second part that is in dispute and is not clear from the constitution's text what exactly it means and who it excludes. And yes, it has always excluded some people born within the borders, it is not a meaningless statement.
Well, no, but almost everyone inside US borders is subject to US laws. The exceptions are rare: people in foreign embassies (which is "foreign soil"), invading armies, and indigenous tribes on tribal land.
So if you follow the logic of this administration (which I don't) you can construe the illegal immigrants as an invasion. You would assume that if there was an invading army that got dispersed and the stragglers were hiding out for years after the state surrendered, like some Japanese soldiers after WW2, as the law enforcement was trying to find and remove them, the jurisdiction would not apply to them. Then, there could be a wartime state sponsored guerilla force. Then, allegedly state affiliated guerilla force infiltrating without an official conflict, like Russians in Donetsk in 2015. You have to draw a line somewhere, and in theory it could be pretty far either way
Anyone who does not have an explicit exclusion is under the jurisdiction of US laws while on US soil. There's zero room for ambiguity unless you're coming in bad faith with politically motivated intent. Or are you seriously arguing there's an interpretation where illegal immigrants can commit any crime they want and can't be deported?
"subject to jurisdiction" does not mean "has to follow US law", that is territorial jurisdiction. Subject to jurisdiction means political jurisdiction and allegiance. That is why children born to members of Native American tribes (no matter the location of birth) were considered not subject to jurisdiction because the parents held allegiance to their tribe. Read United States v. Wong Kim Ark (1898).
I don't have an opinion on the legally correct answer, reading the full decision and dissents I'd give a slight edge to the majority.
Where does it say "jurisdiction" only refers to criminal law? Diplomats aren't excluded from being subject to civil laws for "commercial activities," and U.S. courts have jurisdiction over diplomats in suits pertaining to such activities.
You are correct, but you will never sway the account you are replying to. Check their comment history.
They put a ton of effort into carrying water for conservative causes, even when there is no legal or logical backing for them. Just like the conservatives on the supreme court, they arrive at their desired results first and work backward to their justification.
POV: you're about to hear the dumbest takes on the internet.
/s
Seriously though, were the founding fathers just master ragebaiters or what? More ink has been spilled over these two lines than any other in modern history.
In the past decade, the Constitution hasn’t slowed down the courts from creatively interpreting its various clauses. Their decisions have effectively amended many of those fundamental (and arguably inalienable) rights. Repeatedly.
This trivial reading of the constitution doesn't align with the reality. Two simple exceptions and a third not so simple are children of diplomats, children of invading armies, and native americans, who required an act of congress to give citizenship at birth.
The supreme Court ruled that South Carolina could not secede from the Union because the Constitution was merely a continuation of the agreements under the articles of confederation even though all states had to withdraw from the confederation to get into the union.
After that bit of logic, nothing the supreme Court decides would surprise me
Maybe so, but it isn't any of the Supreme Court's business. The 14th amendment is very clear. And yep, if you don't like that amendment, you're free to advocate for a new amendment that says something different.
Maybe not that long, but at least as long as 90 years. Thomas cites examples of people being denied citizenship by the executive branch, but in almost all cases they did not sue and just accepted the denial.
It wasn't up to the Supreme Court to correct. It is very plainly written in the constitution. Sure you can disagree, but it is up to elected representatives in Congress to amend, not Trump or the Supreme Court.
Some woman who is 8 months pregnant comes to the US on a tourist visa and gives birth, then goes home with the baby. And then somehow that kid gets automatic US citizenship. And it applies even if the mother is not even legally allowed in the country. And you think that is not insane?
I think there would be a real problem with creating a class of people who live here their entire lives and aren't citizens. And then their children also live here and aren't citizens, and their grandchildren, etc.
It's not that birthright citizenship is ideal, but it prevents some other, bigger problems.
I'm not him, but it creates some perverse incentives (like chinese billionaires who pay american surrogates to get implanted with dozens of their kids who get american citizenship).
> Canada: Subsection 3(2) of the Citizenship Act states that Canadian citizenship by birth in Canada – including Canadian airspace and territorial waters – is granted to a child born in Canada even if neither parent was a Canadian citizen or permanent resident except if either parent was a diplomat, in service to a diplomat, or employed by an international agency of equal status to a diplomat. However, if neither parent was a diplomat, the nationality or immigration status of the parents does not matter.
This doesn't seem like a major problem. Immigration officials are already sensitive to birth-tourism and have had discretion to deny entry to obviously pregnant tourists even long before Trump.
Beyond that, if you're a billionaire you can just fast track a path to citizenship with a gold card.
Chinese billionaires are bound to do weird shit. I don't think we should amend our constitution to try to prevent that.
If the problem is 'birth tourism' and subsequent immigration visas for relatives of the US national child, changing the immigration policies seems like a better fix. Something like requiring a sponsoring citizen to reside in the US for a period before sponsorship. A citizen sponsoring a visa for a parent already has to be 21.
I'm not sure I can be that upset by people who want to immigrate, so they put a plan in motion that takes 21+ years to reach fruition. Although that does jump the line if you were eligible for F3 or F4 and your country of origin is Mexico... the priority date on those is currently 2001. [1]
I want more people in the US who can do long term planning, not less. :p
Truly insane that this is one of the most important founding aspects of the country. Without which most, if not all, the population wouldn't legally be allowed to live here. But yet, you don't understand that.
Most Americans conveniently forget the whole "nation of immigrants" thing once they are a few generations removed from the situation. Ladder kickers the lot of them.
I’m curious why you believe an amendment will help your situation.
This case (placed alongside many others in recent memory) demonstrates that no matter how clear and unequivocal a legal text you write, the textualists can find a way to overturn it.
So what specific legal text for this amendment of yours do you believe is immune from that degree of sophistry?
Yep. Could not be more disappointed in Gorsuch here. What is the point of writing things down in the Constitution if Justices are just going to vote for their preferred ideology and come up with embarrassingly thin justifications for whatever they think the document should say?
The number of times this happens in a year is negligible. It’s also quite difficult to do it safely: airlines won’t allow you to fly when heavily pregnant, and emergency deliveries are incredibly expensive due to the American healthcare system.
So you are suggesting abrogating rights based on an event that occurs with minuscule probability. Get a grip.
How many folks "on the right" would be willing to use similar logic to nullify amendments they tend to like?
E.G.: "US guns are stolen and exported to foreign gangs. Therefore, the text of the 2nd Amendment is entirely null and void and should be 'corrected' by the Supreme Court"
It is not be the job of the Supreme Court to "correct" Constitutional amendments!
the fact that birth tourism is a thing means the demand for us citizenship is way higher than supply, to the point people are willing to put their whole life savings and break the law just to have a shot at getting it through a complicated family route.
its easy to fix by making legal immigration cheap and reliable. its also great for the economy, a lot of undocumented immigrants work illegally dont pay taxes because they cant work normal jobs without getting deported.
legalizing their stay means more tax revenue, less crime and labor violations, lower costs for business and i would also say its kind of morally wrong for a rich country to buy cheap stuff made by workers in mexico or china and give none of the profits back. closed borders are glboal injustice.
Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't.
> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."
The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.
> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States
Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.
I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.
> Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
From today's decision:
> 2) In Wong Kim Ark, the Court held that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law, 169 U. S., at 688, excluding only those recognized as exempt “from the jurisdiction of this country”—the“children of ambassadors” and those born in the nations of Indian tribes, id., at 675, 681–683, 693.
That's a 1898 decision where the status of native tribes was not at issue, but was used as an example. But it's roughly contemporaneous with the 14th amendment and shows why an Indian Citizenship Act would be needed.
Edited to add: There's also Elk v Wilkins (1884) which specifically held that Indians born on reservations did not get automatic citizenship.
Yes, but my point is that Wong Kim Ark is internally inconsistent. It doesn’t explain how the exclusion of Indians follows from its idea of what “subject to the jurisdiction” means.
Let me put it this way. What is a definition of “subject to the jurisdiction” that excludes Indians, other than saying “well, Indians aren’t included?” It can’t be “people who aren’t subject to US laws,” because Indians have been subject to U.S. laws since 1817, even on tribal lands.
I added it late, but the real case to look at for Indians is Elk v Willkins...
The opinion in that case seems to be that Indian nations are sovereign and so an Indian born within an Indian nation is a citizen of that nation and not the US. This doesn't seem to be incompatible with the 14th Ammendment which mentions representation apportioned by whole persons, excluding Indians not taxed. US Citizenship of tribal members was also part of treaties between the US and the tribes.
That situation doesn't arise other than with Indians, because the US does not enter into treaties with any other groups formed within the boundaries of the US. Although the 1871 Indian Appropriation Act prohibited new treaties with Indian nations.
> What is a definition of “subject to the jurisdiction” that excludes Indians, other than saying “well, Indians aren’t included?”
This seems fairly simple; we made treaties with Native American tribes, up until 1871, and Article I says things like "excluding Indians" and "regulate Commerce with foreign nations and among the several states, and with the Indian tribes".
They clearly enjoy special (so to speak) status from day one.
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The dissents are worthless, like most of the opinions from Thomas and the other conservative "justices". None of this wording is tricky unless you are specifically trying to find ways to deny rights to american citizens based on their ethnic origin.
That question isn't really meaningful, because commission of a crime is a basis for jurisdiction.
Generally if party A commits a crime against party B jurisdiction can be claimed by (1) the country where the crime occurred, (2) the country A is a citizen of, and (3) the country B is a citizen of.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
They are not born/naturalized in the United States, but one of its territories. "Subject to the jurisdiction" is satisfied, but the other part is not.
(We can grant citizenship to territories by statute, like Puerto Rico, but the Constitution does not mandate it. American Samoa, thus far, doesn't seem to want it.)
>They are not born/naturalized in the United States
They are clearly born in the United States, the territories are part of the United States. The United States is the sovereign state of American Samoa.
The point you're making is exactly the point I was making. We define by statue and court precedent which territories are magically included in this. American Samoa was included and considered in the United States and "subject to the jurisdiction" as recently as 2019: https://www.courthousenews.com/federal-judge-rules-american-...
All it may take is for congress to pass a change to 8 U.S. Code § 1401 to deny birthright citizenship to illegal aliens. Trump's EO ran afoul of this according to the dissent.
The United States is made up of… states. The United States also posesses some territories, which are not states. This is why Puerto Ricans got their citizenship by statue in 1917, rather than via the Fourteenth Amendment.
> American Samoa was included and considered in the United States and "subject to the jurisdiction" as recently as 2019…
No, it wasn't. That case was overturned on appeal. It remains under US jurisdiction; its people remain nationals, not citizens.
> The United States appealed and in a 2–1 decision the United States Court of Appeals for the Tenth Circuit reversed the district court decision with Judge Bacharach dissenting. The court cited one of the Insular Cases, Downes v. Bidwell, as a Supreme Court Precedent not to affirm the lower court's decision. The Court of Appeals also denied an en banc hearing, over the dissent of Judges Bacharach and Moritz.
> A petition for writ of certiorari was filed in the United States Supreme Court on April 27 and was discussed in their conference on October 14, 2022 and decided to deny certiorari on October 17, 2022.
> The decision narrowly held that the Constitution does not necessarily apply to territories. Instead, the US Congress has jurisdiction to create law within territories in certain circumstances, particularly those dealing with revenue, which would not be allowed by the Constitution for US states.
And territories, minor outlying islands, and a federal district.
>No, it wasn't.
Yes it was, the opinion of the court held that those born in American Samoa were born in the United States.:
>“Plaintiffs, having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment,” Waddoups added.
It was eventually overturned, but the fact is a court's decision included American Samoa as "in the United States."
The point is courts can decide what is considered "under the jurisdiction there of" much as there can decide what is considered "in the United States." All it takes is another case to completely throw out the Insular Cases.
>In United States v. Vaello Madero, No. 20-303, 596 U.S. ___ (2022), Justice Neil Gorsuch concurred and noted that "The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law."[32] Gorsuch argues that the Court must find a case to overrule the Insular Cases which were "based on racist assumptions and imperial ambitions."
Downes v. Bidwell (1901) created a difference between 'incorporated territory' and 'unincorporated territory'
The Second Organic Act of 1912 explicitly extends the constitution (and the 14th amendment) to the Alaksa territory. Supreme court cases have established that the 14th amendment doesn't apply to unincorporated territories.
Unless you were snuffed out on federal land, I think state law would reign in this situation, and the states can have jurisdiction over you just by being on their territory. In fact, I seem to remember a time when you could be a citizen of a state, but not of the United States, to further complicate matters.
you are arguing with people who are being academic to a fault, unable to see how they've been co-opted. that said, i appreciate the commentary from real lawyers - i LIKE academic stuff even if the real, hard embodied politics of it all is straightforward.
That's not true. Even the liberal interpretation of this recognizes that some people within the geographic boundary are not subject to the jurisdiction. Diplomats and invading armies, for example.
I don't think the language is ambiguous at all, and I consider it shocking and beneath the dignity of the Court that this was not a unanimous decision (and that the case was taken at all).
I agree that it's worth reading the original source and encourage all to do so. My takeaway however was that the majority had a much stronger body of evidence than the dissenters.
> Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way.
This is a summary of Thomas’ dissent; the majority opinion is based on more than just “English common law.” Even Thomas acknowledged this.
Then you can the work to get Congress to ratify an amendment. Donate, campaign, maybe even run for office yourself! We still do things democratically, not by executive order. Authoritarians will always offer the easy way out.
Both sides of each case should really start doing this after any ruling. As we've seen dozens and dozens of times, there is nothing that says the Supreme Court will have the same interpretation of the same less-than-crystal-clear words 10 years from now. Their decisions in the meantime are also not really democratic yet trend consistently towards their (albeit, very well argued versions of) individual political views instead. It's a problem of the current court as much as it was a problem of the court 20, 40, or 60 years ago.
Do you have much evidence that this is a real problem on the scale of the US population? I would imagine a tiny percentage of citizens were anchor children (i.e. people whose parents came to the US purely to give birth to them, then left again)
Sources for your numbers? I'm curious to learn more about how widespread this issue is. I personally have heard of 2-3 cases in my small social circle, so to me it feels more common. But I am having trouble finding actual numbers.
If you shift from being a living constitutionalist to a strict textualist based on the case in question, then what you really are is a machiavellian.
Kavanaugh's dissent is kinda hilarious in this context.
> The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.
This, of course, doesn't include machine guns.
I've laughed ever since United States v. Jones (2012), the GPS tracker-stuck-to-vehicle case.
The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. This prompted the famous hypothetical of an officer secretly squeezing into the trunk of a horse-drawn carriage to track someone's movements over several days.
The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
This reads the same way as people who say things like “we just have to accept that Congress is broken and can’t pass new legislation.” Like hell we do!
They mean ‘have you seen congress? Good luck’, not that the mechanism is mechanically harder to use.
This. Getting enough states to agree on a change would be a fool's errand I think. It seems like the reds and blues can't agree on anything at all any longer.
I agree 99% with you, except when it comes to these enormous data centers. When you look at the local zoning committee meetings, you're seeing Reds, Blues and Ind mostly calling for a moratorium on build sites in their communities.
What does that have to do with anything that would plausibly be in the bill of rights?
I mean, after decades of manufactured cultural rifts, we're right where the powers that be want us to be. Disorganized and ripe for exploitation.
People in my country hate eachother yet nobody pretends it's still 1848- the year the Dutch constitution was written.
Count yourself lucky.
>The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791.
Redcoats in your home, comparing notes with all the other redcoats who live in your buddies house and hassle your bartender, watch the comings and goings of everyone else around town, etc, etc.
>The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
Given that this isn't an issue in any other modern democracy, I'd say "bug."
The slow pace of change is a feature, not a bug. It's fine to wait decades or centuries until we have broad consensus before making amendments. While this might seem maddeningly frustrating or unjust in the short term, in the long term it makes our republic more stable. The USA has had an uninterrupted system of government since 1789. How many other major countries can say the same?
> The slow pace of change is a feature, not a bug.
To a point. It seems to have ground to a halt.
> The USA has had an uninterrupted system of government since 1789. How many other major countries can say the same?
Quite a few of them can say "we took those good ideas and built on them".
In what sense has it ground to a halt? Eight amendments have been ratified in the past 100 years. I think some people are taking a very short-term view here and lack a historical perspective.
Let's see how those other countries are doing 100 years from now.
A government structure that changes isn’t inherently bad. The US has gone through multiple iterations just by reinterpreting a document. Other countries tend to be a bit more explicit in this.
The US in 2026 operates fundamentally differently than in 1910, and both are unrecognizable to 1801.
The document was written when there were 13 states, and at best, appetite for a mere handful of others to join. For example, the degree of the weaponization of state-carving in the mid-19th century wasn’t in the cards. A 26 member upper legislature operates substantially different than one comprised of 100 members.
The scaling laws involved here are worth precise study.
A high majority requirement seems reasonable as you have less and less members. It prevents one person from coming in and convincing two other people to completely change how things operate.
But the optimal majority requirement which balances rigidness and flexibility certainly trends downward as an organization grows. By how much? I'd like to know.
> The USA has had an uninterrupted system of government since 1789.
Sort of. We had a civil war. We had a second founding. Then we had violent overthrowing of the reconstruction governments in the south. It has been less than 100 years since the US has provided the franchise to everybody, and even then this is a bit questionable.
Instead of constitutional amendments we get aggressive reinterpretation of the text by politically motivated efforts to change the courts. Despite no change to the constitution itself we've created criminal immunity for presidents and overturned interpretations regarding separation of powers than have been in place for a century.
Ya, screw all those people who have to suffer in the short term!
‘No Way To Prevent This,’ Says Only Nation Where This Regularly Happens
https://theonion.com/no-way-to-prevent-this-says-only-nation...
Eh, since it would most likely be used to remove some key right….
Well it's a feature in that the ratification rules were part of an intentional illicit rewrite of the constitution. We could make it easier to modify like other nations, but that also makes it easier to repeal.
I think the fix is to require more political parties to be involved, so a 51% majority of a single party can't remove federal laws whenever they have a majority. Then you wouldn't need an amendment to solve controversial problems.
Anything requiring bipartisanship can be gamed with synthetic parties, the legitimacy of which will surely be deemed a nonjusticiable political question.
> The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
Of course there is, it is just being done - the constitution is being rewritten out right now by supreme court. All you need is a majority on a 9 person commission.
Radio, TV, cameras
That said, breech loaders were used by the British during the Revolutionary War (the Ferguson Rifle) and multiple shots from a single barrel using multiple "touch holes" was well known.
And then there's Puckle's gun.
The Gatling gun also predates any widespread gun control.
Notably, the Gatling gun is still legal almost everywhere, including California (lulz!).
If that is legal, what is the actual point of 99% if the rest of the bans, etc?
The main point is that there isn't an epidemic of gatling gun crimes in America.
There isn’t an epidemic of any other gun crime, by the numbers.
https://www.npr.org/sections/goatsandsoda/2023/10/31/1209683...
> The U.S. has the 28th-highest rate of deaths from gun violence in the world: 4.31 deaths per 100,000 people in 2021. That was more than seven times as high as the rate in Canada, which had 0.57 deaths per 100,000 people — and about 340 times higher than in the United Kingdom, which had 0.013 deaths per 100,000.
https://everytownresearch.org/graph/the-u-s-gun-homicide-rat...
> The US gun homicide rate is 26 times that of other high-income countries.
https://pubmed.ncbi.nlm.nih.gov/26551975/
> US homicide rates were 7.0 times higher than in other high-income countries, driven by a gun homicide rate that was 25.2 times higher. For 15- to 24-year-olds, the gun homicide rate in the United States was 49.0 times higher. Firearm-related suicide rates were 8.0 times higher in the United States, but the overall suicide rates were average. Unintentional firearm deaths were 6.2 times higher in the United States. The overall firearm death rate in the United States from all causes was 10.0 times higher. Ninety percent of women, 91% of children aged 0 to 14 years, 92% of youth aged 15 to 24 years, and 82% of all people killed by firearms were from the United States.
We have more firearm homicides per capita than other prosperous countries have total homicides via all methods.
We were talking specific models, yes?
You said "any other gun crime", so no?
How much do you think of this disparity is due to Gatling guns?
In reference to the ‘no epidemic of Gatling gun crime’ comment, yes.
What other epidemic of a specific type of gun crime is there, exactly? (And no, entire categories like ‘hand gun’ don’t count)
> entire categories like ‘hand gun’ don’t count
How convenient for your argument!
Why not? You aren't concerned that our murder rate is seven times that of other OECD nations, and 25x when limited to firearms?
Because words have meaning, and ‘handgun’ can mean anything from a muzzle loading musket to a literal MAC-10 that can fire 1800 rounds per minute.
And if you can’t understand or articulate what is going on, then good luck doing anything about it?
I provided a concise term that actually has a concrete meaning. That is the thread we are in.
Care to join? Or do you want to scream incoherently into the void more?
> Because words have meaning, and ‘handgun’ can mean anything from a muzzle loading musket to a literal MAC-10 that can fire 1800 rounds per minute.
Yes, that's what this thread's about. You argued Gatling guns being legal makes gun control overall silly; someone else noted that the theoetical regulatory gap exists because in practice no one uses Gatling guns in crimes.
> And if you can’t understand or articulate what is going on, then good luck doing anything about it?
I think 25x the gun homicide rate effectively articulates what's going on. Do you disagree?
And for any given thing that meets the criteria for ‘handgun’, what percentage do you think has ever been used in any significant number of crimes or accidents? I’m guessing way less than 1%.
Either by make/model, or by individual items. Statistically, by item, it’s likely .001% territory.
So again, care to make your screaming more coherent? Right now you seem to be doing the equivalent of screaming about ‘cars kill people’. When, okay, there are a lot of car accidents. Plenty of people murdering each other with cars too!
But how does that add anything to the conversation?
and I gave an example of a historically high power piece of military equipment that would still strike fear in anyone on the other side of it - that is also completely legal to own in even a high ‘ban’ state like California - and apparently also not ‘causing a lot of crime’. there are new manufacture ones out there. they are pretty cool! [https://tippmannordnance.com/gatling-guns/].
so what is the actual deal, eh?
Fully automatic guns maybe not, but the founding fathers definitely knew about repeating firearms, they had more than a few offers to purchase them, both for military uses and as private citizens. They just denied to because it was expensive to purchase and maintain.
No. While originalists and textualists purport to refuse to extend any principle into the modern day ("no right to privacy in 3A, 4A, etc"), one they do is that 2A doesn't merely apply to arms of the day, but also to modern arms. It's... pretty blatant.
Electric presses seem to be covered by the 1st amendment, and there's a much bigger "output" difference between electric presses and manual presses than there is between machine guns and flintlocks. (Not to mention that flintlocks weren't the most sophisticated personal firearms in the 1770s, just the most common.)
Trump v. United States tells you everything you need to know about the jurists who claim to follow those doctrines. There isn’t a shred of originalism or textualism supporting it.
Humans are rationalizing animals, not rational ones.
Machine guns are illegal in the US. SCOTUS has never ruled there is an individual right to own machine guns.
Yes, that's precisely the point.
The textualists turn out not to be so textualist when they feel like it.
How doesn’t include machine guns?
Keep reading!
> In Second Amendment cases, this Court applies the Amendment to semi-automatic handguns even though those did not exist in 1791 or 1868.
"Shall not be infringed" apparently applies to unimaginably better weaponry, but they couldn't have anticipated immigrants being pregnant.
Does the right to bear arms extend to stuff like MANPADS, tanks and fighter aircraft?
I think that’s the only logical conclusion of the “shall not be infringed” absolutists. They shy away from admitting it, though.
“Oh, those aren’t arms. They’re, uh, destructive devices!”
Most would be happy to allow them. Let god sort ‘em out, and all.
I tend to doubt it. Reagan and the NRA were quite happy to regulate guns when the Black Panthers showed up with them.
https://en.wikipedia.org/wiki/Mulford_Act
Hint: If someone says "yeah sure manpads are fine" they're not some fox news boomer who adores Reagan.
It's still very much a phenomenon. Look how the NRA and GOP handled the Philando Castile case (https://en.wikipedia.org/wiki/Killing_of_Philando_Castile), for example. Suspicious silence, for the most part.
The ‘right’ is a venn diagram, not a solid block.
The NRA has a lot of overlap, but Reagan was never particularly pro-gun - he was literally a California Actor, and it was under him that most federal gun laws were passed. (1984 GCA being huge)
In many ways, he was just really good at pretending to be/pushing folks on the rights buttons, while being a smokescreen for all the other laws that people needed to pass. In that way, a lot like Trump is right now.
Notably, Reagan also had dimentia/Alzheimer’s through a large portion of his terms, not that it is related to our current situation at all…
The motivations underlying 2A are:
Protection
Participation in military / national defense
Resistance of tyrannical government
Hunting
Depending upon whether or not you think the Constitution is a living document, a modern reading of 2A could reasonably include things like explosives, drones, radar, etc., but maybe exclude things like nukes, fighter jets, biochemical weapons, other purely offensive things. I'm very pro-gun regulation, but I think this would be a fine reading as long as we're doing the same thing across the Constitution, i.e. substantive due process.
But while conservatives love modern readings of 2A, they deny modern readings of anything else. So they have to find some way to fit their desired outcomes into originals/textualism, leading to absurd dilemmas like "either the founders meant muskets or they meant nukes", or tortured standards like scanning all firearm or self-defense laws in effect around the late 18th century to discern intent, which predictably do not emerge from consistent foundational principles because their authorship is scattered across space and time and thus really are no help... unless of course you cherry pick shamelessly.
It's an interesting legal question. Around the time that the US Constitution was written there were private citizens who owned artillery pieces and even entire warships.
It ought to.
If you can afford either of those you have enough invested in the system that you probably won't use it lightly and if you don't you should and that's kind of the system's problem.
Ah yes, that well-known link between having immense wealth and being characterized by restraint and regard for the well-being of others.
That's why Elon Musk is both the richest man in modern history and also the most upright, caring, and self-restrained one too!
It's not so clear cut to me (looking from outside).
It makes sense to interpret some cases in historical context and others not, because some cases are not as much affected by the difference in context.
That's not being machiavellian - that's avoiding an one size fits all approach.
This is true, but then one should be able to assume that the justice wouldn't neatly fall along partisan lines whenever they choose to be an originalist or not. When it always toggles on and off ever so conveniently along partisan boundaries, that's when it looks dubious.
There's a difference between textualist and originalist. There isn't a dichotomy between textualist and living-constitutionalist frameworks only but the two former may overlap. Also the same reasoning you are using applies to people who are living-constitutionalists and suddenly become textualists.
https://pacificlegal.org/originalism-vs-textualism-vs-living...
My favorite argument (presented by a constitutional scholar) against originalism is that a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person.
Edit: the scholar is Kate Shaw. She presents her arguments a lot more coherently than me, seeing as it’s her life’s work. I advise you read her scholarly work or watch her interviews especially on Originalism rather than try to squeeze an argument out of me.
Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?
You misunderstand, or I didn’t explain it well, because you’re making the same argument that the constitutional scholar is making against originalists.
By narrowly interpreting the text exactly as a WL18CWM would have interpreted it (e.g. black people are not people), they’re not leaving room for interpretations of the constitution that would provide equal rights to people who are not WL18CWM:
>If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible?
An entirely fair law might not be possible, at least as long as people with specific class/race/gender interests overwhelmingly influence it. But a somewhat fair law or a law fairer than another, is.
And, at least as I understand it, the scholar doesn't say that nobody is ever "capable of reasoning outside of their class/race/gender/etc position" in general. Just that those making the constitution weren't that good at it.
> Just that those making the constitution weren't that good at it.
They were exceedingly good at it. In my country’s constitution we have all sorts of things from the american constitution, like due process, because we literally have no indigenous words for these concepts.
They were extremely good, but they were not near angelic geniuses gathered together and possessed of greater wisdom and capacity by virtue of that gathering than any people ever before or since, which is what many people who like to talk up the founding fathers would have.
They wrote the most influential constitution in the world which has governed the longest-lived extant republic. Most who claim to be smarter have offered mere ideas, never implemented in a real country. Such academic notions often self-destruct when confronted with reality. (I’m reminded of Ashraf Ghani, the professor who “wrote the book” on “Fixing Failed States.” When he was elected President of Afghanistan to actually put his ideas into practice, it was a disaster and resulted in the Taliban reconquering the country. Ideas without implementation are worth nothing.)
And some other country might be liking those Founding Fathers concepts' even more.
So? Doesn't change the fact that they weren't very good with not letting class/race/gender/etc position influence their policy making.
And that's the claim we're discussing whether they've been good at, not whether they came up with some good new concepts like "due process" and "the right to free speech".
They had "due process" but they also had slavery.
They had "equal rights" and voting but not for poor not land-owning plebes or women.
They had "free speech" but also McCarthyism.
Their constitution didn't prevent laws describing how e.g. blacks can't sleep in the same hotels or go to the same schools as whites to be applied and be considered compatible with it.
And didn't prevent a globally huge per capita prison system, primarily targeting blacks, even today.
[flagged]
> Such mass fratricide for the sake of non-kin was completely unprecedented in history. Africans never did that. Middle Easterners never did that. Asians never did that.
That also means that only in America brother fought against brother to preserve slavery. Not something to brag about.
Most of these other countries were able to abolish slavery* without having half their population preferring fratricide over freeing their slaves.
Even in the New World other states just abolished slavery with far less bloodshed. Example A: https://en.wikipedia.org/wiki/Abolitionism_in_Brazil
> One where (mostly British) Americans killed hundreds of thousands of their own cousins to free enslaved people belonging an entirely different ethnic group
A quote from The Great Emancipator's inaugural address: "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so." [1]
Abolition wasn't the war aim at the outset. Preserving the Union was Lincoln's goal. He did everything he could to prevent the slave states from seceding.
Abolition became a goal halfway through the war.
"The abolition of slavery became a Union war goal on January 1, 1863, when Lincoln issued the Emancipation Proclamation, which declared all slaves in rebel states to be free". [2]
Which makes sense. If half your countrymen are driven to take up arms against the other half just to keep some people in bondage, you may as well end that evil institution. Otherwise they're bound to try again.
*With varying degrees of success in the actual implementation.
1. https://en.wikipedia.org/wiki/Abraham_Lincoln#Secession_and_...
2. https://en.wikipedia.org/wiki/American_Civil_War
You're ignoring the context of the point--it's not about "bragging." We were discussing the quote above that someone is "disenfranchised" by adhering to the original meaning of the constitution "roughly in proportion to how much they share in common with" "white men." But following that logic to its conclusion leads to absurd results.
By that logic, non-white people would have been less "disenfranchised" if the constitution had been written by people who matched their skin color. But, in fact, that's not true! Slavery was abolished in Africa by force by the British Empire, or else in the 20th century due to international pressure. Those societies never developed large-scale indigenous movements to abolish slavery. So if you were an enslaved person in America, you would have been worse off if the constitution had been written by people from your country of origin! Your best-case scenario would have been to have more of the colonies be populated by Puritans and Quakers, who ultimately proved willing to kill other British people to end the practice of slavery. But Puritans and Quakers were "white" too!
The point is that principles transcend race, and focusing on skin color similarity with the founders (or lack thereof) is sophomoric. The constitution was written by "white" men, but the people living under it today are the spiritual and cultural descendants of those men--even the ones who superficially resemble the African and Middle Eastern counterparts of the American founders.
I didn't really follow the long discussion thread y'all were having. I just dislike Civil War revisionism and interjected with a correction.
For me, the British Empire's battle against the Atlantic Slave trade is a worthier example of Western (and especially Anglo) abolition efforts than your example of the American Civil War.
https://en.wikipedia.org/wiki/Blockade_of_Africa
https://en.wikipedia.org/wiki/West_Africa_Squadron
Your second paragraph does not make the argument you seem to intend. Most other places in the world did not require an incredibly bloody civil war in order to (partially) abolish slavery.
https://en.wikipedia.org/wiki/Timeline_of_abolition_of_slave...
> Those cultures didn’t think slavery was wrong.
Southern antebellum culture was so beyond the pale it not only “didn’t think slavery was wrong,” it thought slavery was so good and so fundamental to its way of life that “mass fratricide,” as you put it, was preferable to abolition.
Previously: https://news.ycombinator.com/item?id=45407005
What’s the endgame of your argument here? It reeks of American exceptionalism of the type where its citizenry is not allowed to critically assess the effectiveness of its systems because other systems are somehow worse in some facets. This entire response is whataboutism.
Should disenfranchised Americans simply roll over because there are people more disenfranchised in other places in the world? Are some forms of disenfranchisement more acceptable than others? E.g. as long as we can narrowly interpret the words of the founding fathers (originalism) to be in favor of it?
>You’re complaining about where the founders didn’t follow their principles to their logical conclusions. But you overlook that you’re using the founders’ own principles to criticize how they fell short
Which is irrelevant, since it's not their influence on modern principles and their related concepts that's in question, but to whether "a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person.
It's precisely to the degree we don't interpet the consitution "as written by wealthy, landed 18th century white men", and, for example, extend it to women, blacks, the non land-owning poor, etc, that's
So, again: if you lived in a place that interpreted the constitution exactly in the way the "wealthy, landed 18th century white men" wrote it and interpreted it, e.g. as not incompatible with no-universal vote, few women rights, slavery and seggregation, and no free-speed by the way, would you be disenfrancized or not?
It's not the "Fathers" that de-disenfranchized the modern masses. It's people (including blacks) fighting, establishing newer protections, ammendments, and laxer interpretations, contrary to what the "wealthy, landed 18th century white men" constitutional practice was.
> You can’t even articulate the complaints you’re making using concepts indigenous to Asia, Africa, or the Middle East.
Ah, moving the goalposts again, from just the Constitution to also including Europe (which hopefully I established did many of these things first, and some better, and some much much earlier), the new ask being to find similar things "indigenous to Asia, Africa, or the Middle East".
Which exist. Even in ancient practices. And not just Greeks and Romans. Public deliberation, assemblies, and criticism of those in power have been found as practices all around the world, from egalitarian indigenous societies, even when not having a shorthand rallying cry like "free speech".
>You talk about slavery. But the countries those slaves were from enslaved their own people and sold them to America. Those cultures didn’t think slavery was wrong.
That's not an argument about how those "wealthy, landed 18th century white men" didn't still disenfrachize slaves. It's an excuse about how some other groups did it too. It might have been relevant response, had I claimed those other groups didn't disenfrachize slaves. But I didn't.
>It was the “0 to 1” step that was the hard one from which everything else followed.
Finally, that's an actual argument to the issue under discussion.
May I paraphrase it as "Sure, the founding fathers e.g. disenfrachized blacks etc, but their principles created the foundations for e.g. eventually abolishing slavery (that's an important 0 to 1 step)"?
And yet, tons of other places have either abolished, or practically zeroed, slavery, long before the Constitution was created. Didn't take a whole bloody war to achieve that either.
And we have no reason to believe the same modern changes wouldn't have happened without the Constitution, since parallel developments happened anyway, from Swiss cantons to the British Magna Carta, Bill of Rights, and the rest.
If anything the US in 1787 weren't ahead of the global curve. They were behind the other emerging constitutional states in accepting and even actively establishing constitutional support for slavery (like with the Three-fifths compromise and the Fugitive Slave clause). Even Japan had abolished slavery earlier!
> it's not their influence on modern principles and their related concepts that's in question
No, that’s exactly the question. You’re saying that the constitution protects non-white people less because it was written by white people. The logical follow-up is to ask what the constitution would look like if it had been written by non-white people. That would solve the problem, right? In that scenario, people would share more “in common” with the hypothetical non-white framers, right? That would mean they would be more enfranchised, right?
For example, what if the framers had been Bangladeshis like me? Under your logic, I’d be more enfranchised by such a constitution, because I share more “in common” with those hypothetical Bangladeshi framers. But in reality, I’d be less franchised! Because we had no indigenous notions of democracy, civil rights, due process, free speech, etc. I’m actually better off that the framers were white British people than I would have been if the framers had been my own ancestors! Similarly, what if the constitution had been written by people from west africa? The people enslaved during the founding would have been enslaved under that constitution as well!
So the original premise is false. If you’re Asian, or African, or Middle Eastern, you wouldn’t be more franchised in a counterfactual scenario where your ancestors wrote the constitution according to the precepts that prevailed in your own ancestral lands.
Also there’s the difference between intention and interpretation. The authors may have been extremely well-intentioned with regards to the fairness of their laws by writing broadly, but interpreting their writing narrowly robs the authors of their intentions. Ironically, originalists may be less fair than the original authors.
A reasonable initial place to draw the line might be "owns slaves".
Yeah... It all falls apart under the bare minimum observation that woman and non-white people were property. And that even white men who did not own land were treated as second-class citizens.
We have no concept of free speech, due process, or individual rights in Asia where I’m from. Where I’m from, if the community doesn’t like you, we can just drive you out of the community. Am I “disenfranchised” by having to live in a liberal democracy created by white men?
Well, the same white men created Jim Crow and seggregation.
If you were a black man would you have been disenfranchised when those laws were in force?
I'd say yes.
The fact that it was/is worse elsewhere, e.g. in some places in Asia, doesn't make the critique (of how white Constitutional/law makers historically disenfranchised certain demographics in the US) invalid.
> you were a black man would you have been disenfranchised when those laws were in force?
In a counter-factual world where the founders hadn’t exported their ideas all over the world, I’d be disenfranchised in my own home country! Because everyone was disenfranchised. Everyone was a serf.
In the real world, as a black, you would be disenfranchised in the US, even into the 1960s (and even now in certain systemic aspects), and the Constitution didn't prevent that. In fact it was written by people owning slaces or disenfranchizing blacks, the poor, and women, themselves.
And what we're debating in this subthread, is whether "a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person".
The fact that the constitution inspired changes "all over the world" doesn't change that fact.
Regarding slavery, which is something somewhat major you'd agree, the Constitution didn't even inspire enough within the US itself, since it took until the Civil War (and, more importantly, it took a civil war) to get it abolished.
>Because everyone was disenfranchised. Everyone was a serf.
You try to paint it as some unique development, but things like Magna Carta and habeas corpus (and even a bill of rights) already existed, as you're aware, the Swiss cantons had democratic (even direct democratic) institutions and the landsgemeinde system, and other such developments.
Slavery too had already disappeared in practice in western europe, but also many other places, centuries earlier. Which is likely why you had to change it to "serfdom", but even that wasn't applicable. The British, the Dutch, and other peoples had also quit (or effectively quit) serfdom as well, before the Constitution. Why, even russia (famous for its miserable serfdom system) had abolished serfdom right about before the Civil War!
Those rights came to exist in the west in response to kings and tyrants doing whatever they wanted at the expense of their subjects. Also because communities sometimes do bad things to people not able to simply drive away. Pretty sure Asia has had it's share of human rights abuses.
No, and politely, wtf is that logic?
You are disenfranchised when your judicial branch interprets law in a way that disproportionately benefits only the people who are most similar to the authors.
Also, how wealthy are you? Why did you bring up your race instead of how much land you own? Why pull the culture war into this? Certain interpretations of the constitution disproportionately benefit people who own a lot of land.
You brought up race. I’m just responding.
The notion of “white” in the 18th century is completely detached from the notion of “white” in the 21st century, especially in the context of the US.
Did you edit your comment?
You seem to lack an understanding of technical legal terms in US courts, which is frankly pretty usual even for US citizens.
"Franchise" is the right to vote. Disenfranchisement is legal prohibition against voting. Social behaviors have nothing to do with it.
"Jus soli" is a legal term in English, defined by the chief authority (Black's Dictionary of Legal Terms) as rights achieved by one's place of birth (instead of by one's parentage).
Diplomats are only partially subject to civil law as you have claimed. There is also no practical leverage available to the courts if their funds are not stored in places subject to US jurisdiction. So, a minor backing for your claim, but one that is not in practice applied, nor considered relevant by precedent in regards to the XIVth.
I'm sorry you're being attacked so vociferously in this thread, as you are arguing in good faith with the knowledge you have, but your knowledge base is insufficient for the confidence you show.
You don't have to be a constitutional scholar to see it's bullshit.
Just the fact that originalism implies an ability to perfectly know what the dead from 1788 meant with each word in every situation. It's a ludicrous proposition.
"absent a constitutional amendment"
Who did that?
"strict textualist" bro the 14th amendment is not vague
The most obvious read of the constitution in the world still being a 6-3 verdict shows the state of the Supreme Court today.
They are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period. The fact all of that was predictable makes it just so frustrating to see it play out in real time
I agree. I wouldn't be the least bit surprised if the US balkanizes. That might not be a bad thing if it can happen peacefully.
The problem with the US balkanizing is that there's not really any such thing as a 'red state' or a 'blue state'. Every 'red state' has some blue cities, and every 'blue state' has some red rural areas. Pretty sure California has more Republican voters than any state except Texas. So partitioning on state lines doesn't really work. Maybe over time people could migrate, but using South Carolina as an example, the two largest cities in the state would largely have to empty out. The state would cease to function.
When I see all the rot on the news I really wonder what the alternative is. It’s all so absurd I just wonder if there is a point where people just move on and form a new country / government and let the other country do ufc on the lawn or whatever.
[flagged]
The United States has always dealt with this - the North Virginian voters circa 1960 were not, by and large, indigenous.
> The United States has always dealt with this
Did you mean to write "America" instead of "the United States"? Because when the continent had only American Indians, there was no United States. And in fact for a long while after it was founded, they were excluded from citizenship.
Regardless, I'm sure we both agree that European conquest and colonization represented a giant change. It's false to imply that another such change isn't a change, by virtue of it happening once before already. Or to imply that therefore, the country is compelled to submit to such a change.
If I wanted to be that pedantic, I could have looked up one of the many words for the land the displaced indigenous peoples used.
It's not pedantic to distinguish between a landmass and a nation.
What does this even mean? The decision came out the “right” way today.
Four of the justices dissented on something that by any reasonable reading should have been a unanimous decision. That is a BIG problem because that means that almost half of the Supreme Court are off their rockers.
> hey are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period.
Why the scaremongering? What are "they" waiting for?
Without saying I believe the statement above, boiling the frog is a legitimate tactic. Think of all the things considered normal now that would have been absurd before 2016.
Surely we’re aware of the Heritage Foundation’s Project 2025 yes? It spells out exactly what they are doing, & where they are going.
Eliminating birthright citizenship is a key component dating back decades.
https://www.heritage.org/the-constitution/report/feudalism-c...
Thanks for posting that link. I read part of it and their reasoning strikes me as contortionist. Good then that after decades, as you point out, that argument has not won out.
I would love to actually debate this issue with someone who does believe birthright citizenship is not a thing.
Durable control of elections, and maybe one or two more justices.
It’s not an ominous “they”, it’s a very well understood patchwork of actors who have been pushing for the end of American democratic, liberal system. The heritage foundation is an important component, but you can add the Thiel fellows, the GOP, evangelical fundamentalists, the right wing media ecosystem, and quite a lot more. They’ve spent multiple decades developing an interconnected infrastructure of think tank, media groups, legal advocacy groups, donor networks, political organizations. They are all working to reshape American institutions away from liberal democratic norms, towards an autocratic conservative governance model.
It’s not a new thing or something discussed in underground circles. They have been very vocal and open about their goals, and you can find a lot of investigative work in that whole movement.
Their most obvious victory so far has been the complete take over of the Supreme Court, allowing the realization of the idiotic, fascist “Unitary executive theory” concept.
- https://en.wikipedia.org/wiki/Christian_nationalism
- https://en.wikipedia.org/wiki/Project_2025
If that sounds scaremongering you might want to reevaluate your sources of information for at least the past decade
It's worse than that. It's 5-4 on the read of the constitution since Kavanaugh doesn't think it violates the 14th amendment, just a federal statute.
It's worse than that. The text of the statute is literally the same as the text of the 14th amendment's birthright clause. So he's basically saying the text means one thing when it's a statute, but the exact same words might allow exceptions in the context of the Constitution.
What does "subject to the jurisdiction" "obviously" mean, keeping in mind that everyone agrees children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
In general countries have jurisdiction over anyone inside their territory unless there is some exception.
As far as I know the only exceptions at the time the 14th was drafted and ratified would have been people with diplomatic immunity or similar due to treaties and international agreements.
Immediate families of diplomats living with the diplomat are included in diplomatic immunity, hence their children born here would not become citizens.
Those situations you mention where US court do have jurisdiction over diplomats are: private real estate disputes; wills and inheritance; business activity of diplomats that are running a side business or practicing a profession in the US that is not part of their official duties; lawsuits initiated by the diplomat.
Even if becoming subject to such limited jurisdiction counted as being "subject to the jurisdiction" for purposes of the 14th Amendment it would not matter because newborns are not involved in those things, and so newborn children of diplomats have their full diplomatic immunity.
The exception listed in Wong Kim Ark are: Indian tribes, children of diplomats, births on public foreign ships, and children of enemy occupiers. These were basically well-understood exceptions under common law and most were discussed during Congressional debate on the 14th.
The text that SCOTUS put out today discusses this in great detail. You might agree or disagree with their reasoning, but they consider what "obvious" means in light of the text and the writings of the time plus references to old commentary like Blackstones. Maybe better to read that and assume in good faith that this is what the commenter is referring to?
> […] children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
AIUI, IANAL, US courts and law do not have jurisdiction over diplomats. When a diplomat the 'hosting' government agrees to immunity, so cannot be prosecuted. E.g.:
> The collision caused diplomatic tension between British and US officials. [Anne] Sacoolas fled Britain soon after the incident, and claimed diplomatic immunity with US support.
* https://en.wikipedia.org/wiki/Death_of_Harry_Dunn
The 'source' country has to agree to remove the diplomatic coverage.
Incorrect: https://www.law.cornell.edu/wex/diplomatic_immunity
U.S. courts do have jurisdiction over diplomats for certain things, such as suits related to commercial activities.
That's more like having jurisdiction over the diplomat's property in the country than having jurisdiction over the diplomat themselves.
Is the child of a diplomat a US citizen if they are born during a diplomat’s commercial activities?
If the diplomat put the baby up as collateral on a loan, prior to their birth, then I think they have to be in order for the US to be able to enforce contract law relevant to the loan.
No. Even the arguments at the time the amendment was passed discuss diplomats and their family being exempt, as well as all the instances since.
What happens to a diplomat if they don't show up for the suit or comply with any judgment?
Well we know “subject to the jurisdiction” is not equivalent to “is a citizen”, otherwise they would’ve used that term instead of being cute with it and leaving excess room for interpretation. If congress wants to define what “subject to jurisdiction” means, then they have every opportunity to.
Have you read the congressional debate around the that amendment to the Amendment? If you have and it's not clear, I'm not sure what else can be said.
Given that the most universally agreed to counter examples are diplomats and invading armies, I'd say a reasonable non-lawyer interpretation is that "subject to the jurisdiction" excludes people who are in some way under the authority or control of a foreign government even while in the US. They may be physically here, but they're presence is on behalf of a foreign government that has jurisdiction over them even while in the US. US law might apply to them in varying ways depending on their status, but there is still a distinction that does not exist for other visitors. Maybe less about the question of whether US law applies at all and more about if US law applies equally beyond the 14th amendment and if any other government can lay claim to authority.
You could potentially apply this to temporary tourists as well, but the linkage between them and the government of the country they are coming from is much weaker since their presence typically doesn't have them acting on behalf of the foreign government or with any special legal distinction.
I'd also pose the same question back to you, what's a reasonable definition of "subject to the jurisdiction" that excludes everyone except US citizens, as many conservatives want, or at least only extends to legal permanent residents?
Any interpretation that excludes non-citizens leaves us in a situation where we've disclaimed legal jurisdiction over the behavior of those individuals. The reductio ad absurdum there would be that they aren't subject to any laws of our country anymore.
That's partial jurisdiction at best.
I guess the obvious answer would be the same as the last decades, while anything else would be called "surprising."
Which is is fine, you can change the constitution, but thats for parliament to do.
>Which is is fine, you can change the constitution, but thats for parliament to do.
To which Constitution are you referring? And which "parliament"?
The US Constitution can only be changed by votes by both supermajorities in both houses (House of Representatives and Senate) of Congress and the legislatures of 3/4 of the several states. We don't have a "parliament."
Are you referring to Canada's Constitution? Australia's? AFAIK, the UK has no Constitution and changes to Ireland's Constitution requires a national referendum.
Please do elucidate. Thanks!
I don't think it's obvious. Like why do you think the dissenters are wrong to question what is meant about being "subject to the jurisdiction thereof"? The intention was to prevent former slaves from being deprived of citizenship so what is an argument to say this obviously includes someone who arrives for birth tourism? Why doesn't this include children of diplomats, as one example, if it's such an all encompassing law?
Because when you are in a country, you are subject to it’s jurisdiction. Can you be arrested for petty crimes? Yes? Then you’re under that country’s jurisdiction.
That's what the justices said. That has generally been how modern courts interpret it, with a textualist interpretation. But that was not the original intention of the law which I already stated. So to go back to my original point, it's not an obvious conclusion.
> But that was not the original intention of the law which I already stated
You've stated it, but not evidenced it. This is certainly the right-wing talking point, but never strongly sourced. The meaning of this phrase was viciously debated. Would it surprise you to know that many in Congress hated it for similar reasons as nationalists today?
Let me say this again: the meaning of this phrase was openly and viciously debated in the public record! Senator Cowan thought the phrasing created a loophole for birthright citizenship, and the amendment creators explicitly, overtly, repeatedly agreed with his interpretation of the phrasing and defended it as deliberate policy.
Feel free to read some of this: https://global.oup.com/us/companion.websites/libertyandjusti... (CTRL+F "If my friend from Pennsylvania" for a quite pertinent line).
Yep look at what they wrote
As I said, the 14th Amendment Clause 1 was primarily centered around whether enslaved people and their children were citizens and it seems the question of whether literally anyone born here was not taken very seriously. This question actually came up in a later case a few decades later and the court affirmed it. But I don't think there is any evidence the people who wrote this ever expected large numbers of "anchor babies". They literally dismissed that scenario as a way to prevent formerly enslaved people from being citizens.So then it just depends how you want to interpret the meaning of this law under the present. The UK, with common law tradition, abolished birthright citizenship decades ago to combat exactly the problems we are having with it now. So what was intended by jus soli birthright citizenship in 1866 could be viewed differently now.
Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court - and that's the mission of the Supreme Court, to interpret all the various situations for these cases and how they apply constitutionally.
Here is the full text of the relevant section of the 14th:
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Please point to the section where it says "this only applies if the parents are citizens".
The reading which the court affirmed is incredibly obvious. Republicans and xenophobes like to pretend it isn't, but the text is very simple.
The word jurisdiction is where it gets confusing. The meaning of that word does not map 1:1 to its modern usage.
To wit, if we read it as "subject to the laws of the land", then the invading army exception does not make sense, invading soldiers are subject to the laws of the United States and have been tried and convinced of violating them. Note, diplomat exception still makes sense, they _are not_ subject to the laws of the land.
So, how do you define jurisdiction in this amendment in a way that covers both invading soldiers and diplomats? I don't think it is super straightforward.
To put good faith on the table, I ultimately agree with your opinion here that birthright citizenship is settled and the vast majority of folks arguing against it are doing so in bad faith. But I also recognize the text of the amendment has holes to my eyes and could be updated for clarity.
> To wit, if we read it as "subject to the laws of the land", then the invading army exception does not make sense, invading soldiers are subject to the laws of the United States and have been tried and convinced of violating them. Note, diplomat exception still makes sense, they _are not_ subject to the laws of the land.
I don't agree with your assertion here. Do you have more details on the claim that "invading soldiers [...] have been tried and convinced of violating them [US Laws]"?
As I understand it, invading soldiers are not subject to the laws of the United States nor are they protected by the bill of rights - instead they are enemy combatants and subject to military force. You don't arrest and charge active combatants, you fight them. If they surrender they become prisoners of war and would be covered under the treaties that apply to POWs, not civilian laws. They don't become citizens by surrendering.
I suspect the gray area would be around terrorists and stateless combatants, but the general principle that "people who are operating under the orders of a foreign government are not subject to the laws of the united states, but rather bound by the treaties between the US and their foreign state" would still apply.
> I suspect the gray area would be around terrorists
Maybe this is a gray area in theory, but practically speaking I don't think it matters. The child has nothing to do with the parent's choices in life, do they deserve to be treated any differently than any other child born in the US?
It doesn’t cover diplomats either because courts do have jurisdiction over diplomats for certain non-criminal matter.
> vast majority of folks arguing against it are doing so in bad faith
What’s “bad faith” about it?
In my view: the lack of engagement with the historical record. This topic - and the meaning and expected outcomes of the wording for the amendment - were discussed and debated as part of the open record. Senator Cowan thought the phrasing created a loophole for birthright citizenship, and the amendment creators explicitly, overtly, repeatedly agreed with his interpretation of the phrasing and defended it as deliberate policy.
As I posted elsewhere, you can read some of this for yourself: https://global.oup.com/us/companion.websites/libertyandjusti... (CTRL+F "If my friend from Pennsylvania" for a quite pertinent line).
Members of American Indian tribes were born in the United States after the 14th amendment was passed but it took an act of Congress to make them citizens. The question of jurisdiction is a very real one that isn’t nearly as cut and dry as you’re implying it to be.
You're trying to impute complexity to a thing in order to achieve a goal that is not achievable. The 1866 Congress that debated the amendment understood and intended that Indian tribal nations would not be covered by the clause because they were separate nations not under the jurisdiction of US law. Here's an example of the debate [1] where they discuss it. Far from making your point, examples like this make it obvious that everyone involved in framing the amendment thought deeply about what "jurisdiction" meant, which is why you can't just assign new meaning like "yeah it means parents have to be citizens."
I really urge you to read the original debate. It isn't like the handwritten notes we get from the 1700s; it's typewritten and the Senators are so thoughtful and utterly precise about what they meant. It's ELI12.
[1] https://digital.library.unt.edu/ark:/67531/metadc30867/m1/12...
Have you read through that link?
I'm not taking a side here, but it injects a couple more words that could imply something else:
[Mr. Howard] (Sen. from MI)
"This amendment which I have offered is simply declaratory as what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.
It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."
(Apologies for any typos as this was hand written.)
What are the confusing words? You gave a quote that sums up the long-accepted understanding of who's exempt from the citizenship clause:
"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons."
They don't mention Indian tribes in that quote, but they mention it elsewhere. Seems completely clear to me.
I kept reading pages, and there's plenty of other questionable conclusions:
[Mr. Conness] (Sen. CA)
(Acclaimed for his pro-Chinese immigration views.
Wiki: "In the Senate debate on the 14th Amendment, Conness said “We are entirely ready to accept the provision proposed in this constitutional amendment, that the children begotten of Chinese parents in California … shall be citizens.”
from the link:
"Now, I will say, for the benefit of my friend, that he may know something about the Chinese in future, that this portion of our population, namely, the children of Mongolian parentage, born in California, is very small indeed, and never promises to be large, notwithstanding our near neighborhood to the Celestial land. The habits of those people, and their religion, appear to demand that they all return to their own country at some time or other, either alive or dead. There are, perhaps, in California today about forty thousand Chinese--from forty to forty-five thousand. Those persons return invariably, while others take their places, and, as I before observed, if they do not return alive their bones are carefully gathered up and sent back to the Flowery Land. It is not an unusual circumstance that the clipper ships trading between San Francisco and China carry at a time three or four hundred human remains of these Chinese. When interred in our State they are not interred deep in the earth, but laid very near the surface, and then mounds of earth are laid over them, so that the process of dis-interment is very easy. That is their habit and custom; and as soon as they are fit for transmission to their own country they are taken up with great regularly and sent there. None of the bones are allowed to remain. They will return, then, either living or dead. "
(Sadly the site is now offline.)
There's nothing terribly confusing here. In fact it's a helpful set of quotes. This is one Senator saying "hey, second-generation Chinese immigrants will be citizens. And that's fine because I don't think there will be too many of them."
An additional section from the page provided that I found odd:
[Mr. Cowan] (Sen from PA)
"So far as the courts and the administration of the laws are concerned, I have supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection; but in so far as the right to hold property, particularity the right to acquire title to real estate, was concerned, that was a subject entirely within the control of the States.
It has been so considered in the state of Pennsylvania; and aliens and those who acknowledge no other allegiance, either to the State, or to the General Government, may be limited and circumscribed in that manner.
I have supposed, further, that it was essential to the existence of society itself, and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them."
Can you link to the portion of the debate where everyone agreed on what “under the jurisdiction of” means?
The issue was contentious then as it is now. They wouldn’t have spilled so much ink on the topic if it wasn’t. Your link is proving my point.
Sure, I already did explain it. They explicitly said that "not under the jurisdiction" would cover children belonging to Indian tribes, the children of ambassadors, and they discussed the need to be able to expel occupying armies. Someone said "what about the kids of Chinese people" and the sponsors said "yep, if we adopt this language they'll get to be citizens too".
None of it's complicated. You could read this as an 8th grader and have no doubt what they were trying to do.
Most of the discussion was of the form "hey, could we add an exception to exclude even more people from citizenship" and then the sponsors would say something like, "yes, we agree that those people aren't excluded under the current language; that adding extra language could exclude those people; and that we don't want to exclude those people or change the language." And then Congress voted for the language exactly as it was originally proposed.
What in the dissenting opinions definition of jurisdiction did you disagree with?
literally on the tin
[flagged]
You're talking in circles here. Please, use your big person words. Say what you mean explicitly.
[flagged]
> I did say what I mean explicitly.
> it comes out sideways in other dimensions
> current moral programming
Not one of these words holds meaning in context. If it were only the phrases, there might be some grounded message. Each word and phrase seems to be code for a concept attached to your specific mental model.
People tend not to have discussions with other people who cannot grasp what they are, or are not, saying. I would guess and engage further, but assuming what you are saying is unfair and leads to the tired case of Humpty Dumpty versus Alice. Words mean what one side says they do, as a way to avoid exchange.
I agree with the phenomenon but dont thinnk that is the case here. I know lots of people that have no issue loudly oposing demograpic change that still stumble on the issue of how to read constitutional text.
My point is that I don't think anyone would be focusing on this particular constitutional text if the underlying reason they are focused on it were allowed to be discussed in the open. It sounds like you don't disagree with that? Do you logically agree but you feel like it must be wrong somehow? Moral programming do be like that.
I agree that people use convouted rationalizations to justify the outcomes they want when their actual preferences are taboo to state outright. I thought you were accusing the SCOTUS of doing that, which I disagreed with.
I agree the public discussion is more charged and less coherent because some people are trying to project their taboo moral stances on to dry and boring question of textual interpretation.
That said, I think this case isnt the best example. I think there are lots of people who question if children of tourists or illegal enterants of the US should be given automatic citizenship, even without buying into demographic preferences.
[flagged]
Why are you being so rude? Please don't put words in my mouth, that is nothing like what I believe.
My views are something like what the average American believed in 1910. Were they literally Hitler also?
People are being rude because you're being a dumbass.
> My views are something like what the average American believed in 1910.
The question of birthright citizenship was settled law for 40 years by the 1910s, so this is - unsurprisingly - a lie.
1910's America with Jim Crow segregation, pre-Womens suffrage, pretty much peak wealth inequality with robber barrons?
> My views are something like what the average American believed in 1910. Were they literally Hitler also?
That's not really a great counterpoint considering how much inspiration Nazi Germany took from the amazing levels of racism the US had. Jim Crow, miscegenation, segregation, citizenship…
The average American in 1910 wasn't a little Hitler, he was a Big Hitler. Hitler's father, even.
Good try, though, eierkuchen. I can see past you and so can everyone else.
[dead]
America had a pretty decent sized fascist movement in the early 1900s.
America had a pretty decent sized communist movement in the early 1900s.
“Average”, son. Was the average American a fascist in the early 1900s?
The fascist party in the early 1900s was a fringe party. It existed and was considered a legitimate opinion, fine, but don’t act like the average American was anywhere near fascist.
What in gods name would blood and soil even mean when you’ve got Italians living next to Irish living next to Poles living next to English? You haven’t got any blood to fascism about!
> You haven’t got any blood to fascism about!
Like that stops people. Hitler hardly matched his own Aryan ideal.
> Was the average American a fascist in the early 1900s? … The fascist party in the early 1900s was a fringe party.
That’s equally true about Germany. As the sibling comment notes, it’s the era of Jim Crow and the female half of the country can’t even vote.
That's not a good characterization. All of he lower courts basically laughed it out of the court room. The fact that the Supreme Court even took the case on is pretty questionable.
The Trump administration found not one judge or panel of judges who agreed with their opinion ... until SCOTUS, where it found three.
Including Clarence, whose "hilarious" dissent says that undocumented persons are not subject to the jurisdiction of the United States, which might be of note to ICE.
“Unperson” vibes. If their existence is illegal, then they have no rights. Clarence would never consider that the definition of who is or is not legal would expand, though. Too busy driving his RV to the airport to fly to an island retreat.
It is totally obvious: every single court told the Trump administration to go f* themselves, and Trump appealed and appealed again until it reached the Supreme Court.
> Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court
Every single court on the way to SCOTUS correctly said "the fuck?!"
> Federal judges in each of the district courts issued preliminary injunctions to block the order from taking effect anywhere in the country. Judge John C. Coughenour, presiding over Washington v. Trump, called the order "blatantly unconstitutional". Government appeals challenging the injunctions were rejected by the Court of Appeals for the Ninth Circuit, the Court of Appeals for the Fourth Circuit, and the Court of Appeals for the First Circuit.
https://en.wikipedia.org/wiki/Trump_v._Barbara
https://en.wikipedia.org/wiki/Trump_v._CASA#Background
it's on the tin
It's tricky because dissenting doesn't necessarily mean you'd reach the opposite conclusion in every respect.
In this case, I really doubt even the most conservative justices believe "birthright citizenship means whatever an Executive Order says it does." At a minimum, we know they aren't signing on to the reasoning the 5 in the majority used. And then we can learn whatever they feel like saying in the dissent, but a dissent is just an essay with no force of law.
But since we have the dissent opinions, it's not tricky at all to see why they are dissenting.
Alito and Thomas straight up believe that the constitution does not provide birthright citizenship and the executive order is valid. Gorsuch mostly agrees but makes an exception if the parents plan to stay in the US. Kavanaugh agrees that birthright citizenship is not provided by the constitution, instead he argues its a federal statute that congress can overturn (but the president cannot)
https://www.scotusblog.com/2026/06/supreme-court-strikes-dow...
Literal calvinball by the conservative justices. None of that is in the constitution.
Thomas and Alito complained that they were being impeded from setting executive policy. Very easy to understand the argument that this court is too small.
If it said “regardless of the citizenship status of the parents” they would still find a way to disagree.
The joke that Supreme Court judges are high priests interpreting the constitution as if it was holy scripture was in fact accurate description all along
Per Thomas's dissent:
> The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens.
The crazy thing here is that 4 supposedly conservative Supreme Court justices wanted to overturn over a century of precedent on how the constitution was interpreted.
They took this case so they can appear to be reasonable while doing wild stuff in other cases.
Exactly. Notice the ruling after ruling from the Supreme court strengthening the power of corporations and moneyed interests.
The poor and rich alike have a deep-seated cultural aversion to poor people. It's no use warning about inequality when a sleazy billionaire wins the popular vote. Nobody is listening. They have to experience the bad results first-hand.
Our entire history of a nation is the people fighting against the ruling minority of tyrants. Look at how fast SCOTUS struck down the civil rights act of 1875 (only 8 years).
Look at how quickly slavers used the federal government to uphold slavery, the fugitive slave act was one of the first things Congress signed and took zero time enforcing against the will of the people.
Look at how quickly business leaders fought against Americans trying to better their working conditions.
The US constitution was designed to impede societal progress by stripping power from the people. The "reverance" people have for the "founders" doesn't help either, acting like a document written to embolden slavers as sacrosanct is beyond pathetic.
What about the constitution specifically?
You are saying this like there are other of nations that didn’t need to struggle for equal rights, workers’ right etc.
You need to ask a real question because I have no idea what you are trying to say by beating around the bush, this is about the SCOTUS which is a US branch for the US government.
You can be pro/fine with legal immigration (and moderate/non-partisan) and still not think birthright citizenship is a good idea (like I do).
Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
Reminds me of legal abortion: practically everywhere in the world has it. If you are not in that vast majority you should be taking a very close look at yourself/things.
So yes, let's amend the constitution. It's been a while and we do it on average every ten years or so. I have personally not ever been involved in one.
It's not really a question of what's a good idea. It is in the text of the Constitution, about as plain as it can possibly be. If you want to change it, you have to change the Constitition.
Ironically, the same Court members who most often claim the plain text of the Constitution to support their ideas are the ones who put the most effort into finding a tortured reading of the 14th Amendment.
I thought so too. Then I read the arguments about the passage of the amendment. The people passing clearly stated that, say, the children of ambassadors wouldn't be eligible. It was mainly aimed at clearing up the questions about the various Native Americans who may have considered themselves independent. It wasn't about opening the doors to anyone.
It was about slaves. Native Americans didn't get birthright citizenship until the Native American Citizenship Act of 1924.
it was not (solely) about slaves; this was debated in Congress during the process of drafting the amendment and resoundingly put down by contemporary legislators.
from Justice Jackson’s concurring opinion:
> Senator Edgar Cowan, for example, argued that German immigrants’ children born in Pennsylvania should be citizens, but Chinese immigrants’ children should not—because Germans and Chinese were different. In response, Senator Trumbull emphasized that the law he had drafted drew no such distinctions. Undeterred, Senator Cowan would warn again—this time during debates on the Fourteenth Amendment—that the Citizenship Clause would let Chinese immigrants “overrun” California and “double or treble the population” of that State. Senator John Conness of California, where anti-Chinese sentiment was arguably most pronounced, responded that “the children begotten of Chinese parents in California . . . shall be citizens.” In fact, he said, the Civil Rights Act had already declared “that the children of all parentage whatever . . . should be regarded and treated as citizens of the United States.” No Senator rose to agree with Senator Cowan or dispute what Senator Conness had said. And no Senator said what the principal dissent says today: that the text at issue conferred citizenship only on freed Blacks and those in analogous situations.
- - -
further down, Justice Jackson cites the most forthright example of how blisteringly ahistorical the Republican party’s arguments are on this topic:
> During the ratification debates, Senator Cowan took aim at the Roma people too, characterizing them as undeserving of birthright citizenship because they “wander[ed] in gangs,” “infest[ed] society,” and “impos[ed] upon the simple and weak everywhere.” And again, Senator Conness dismissed Senator Cowan’s prejudices: “The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels [at Gettysburg].”
Please re read his comment. He’s saying the constitution should be amended.
I think it was edited to add that?
No, it wasn't. I had it in there from the get go. I did not edit my comment for any reason, I don't think at least. Like I said in the original comment, you can be moderate/non-partisan and think this is a bad idea. You can think Trump's an idiot and still think birthright citizenship is a bad idea. That's all.
SCOTUS has not had anything remotely close to a plain text reading since the 1930s and probably longer. "Shall not be infringed" was changed to "if an infantry rifle was made after 1986 then magically it can be infringed" and (until about a week ago when it was overturned) "if you smoke a left-handed cigarette actually the second amendment doesn't exist." The 1st amendment protects freedom of speech but yet it's legal to ban appeals to "prurient interest" even though no such exemption is mentioned. "Interstate commerce" has been changed to mean basically "commerce" and interstate is now interpreted as if it was put there for funsies since everything can be construed as affecting something else in the universe even though the historical context makes clear that's not how the text was interpreted by the writers.
Every other amendment including the 1st, 2nd, etc even when explicitly spelled out the courts magically pull something out of their ass to "torture it." Yet the 14th amendment birthright citizenship, who's "history and tradition" was to right the wrongs of slavery, somehow has to be read absolutely in black and white.
Personally I am amenable to the plain text interpretation of the 14th, 1st, and 2nd, but lets not pretend that is the game SCOTUS or even most of government and society is playing. The constitution is referenced more as a religious document by all the above to mean whatever it is they say it means.
An aside, but it’s a bit funny to focus on the plain-text reading of “shall not be infringed” and not “a well-regulated militia.”
Give me a plain-text explanation as to why a well-regulated militia can be infringed from having a 1987 select fire infantry rifle but not a 1985 one, both of which are probably the most bread and butter arms you could possibly consider as part of a well-regulated militia. (This despite the plain-text ascribes the right to "people" not the militia, and in any case US code defines virtually every able bodied citizen male as part of the militia). The NFA determinations by SCOTUS don't make sense even if the amendment said it was the militia's right rather than the people's.
So biological weapons are back on the cards then? As armaments doesn't mean "firearms" but "weapons of war".
[flagged]
“Immigrant women are biological weapons”
“Why are people censoring me for my opinions??? Cancel culture etc.”
Barf.
If you're going to misportray about the qualifiers I used, why not just say "women are biological weapons" or "people are biological weapons."
You selectively dropped them off, because you are acting with deceit.
Sure, one could make the argument that "shall not be infringed" is pretty cut-and-dry. I'm just not sure how one could make that argument while at the same time yadda-yaddaing the militia part, which is often what actually happens.
Anyway, I'm not sure I have a disagreement with your original point. It just seemed a bit funny to use the second amendment as an example of a thing that (supposedly) has unambiguous meaning, but gets interpreted politically by the courts. I'd argue that the ambiguity of that amendment is one of the most notorious things about it!
Congress defines most every able body male as part of the unorganized militia and there is no public armory for them to store their arms (this only available to organized militia) at or use leaving only a private armory (consistent with historical at time of founding where private persons stored their militia weapon at home), so I'm not sure it makes much difference in practice whether the right ascribed to the people be connected to being a militia servicemember or not for the purposes of the example of owning a select fire infantry weapon.
Probably the main effect is to grant women and the more elderly the right to bear arms as well.
===== re: below due to throttling =======
>Congress defines… historical precedent… but we were talking about a plain-text reading of the Constitution.
That makes it easy then.
The plain text ascribes the right to the people not the militia so it's moot whether they're in the militia or not in such case to have the right to keep and bear arms.
Congress defines… historical precedent… but we were talking about a plain-text reading of the Constitution.
We weren't, if we were this conversation couldn't get here. If we were you couldn't play the militia fuck fuck game, since the right to keep and bear arms is ascribed to the people and not the militia.
The answer is easy in the plain-text case, whether you are associated with the militia is moot, as the plain text unambiguously says the right of the people to keep and bear arms.
It's only in the non plaintext case can you start handwaving that right is restricted to militia yada yada.
From Wikipedia:
> Until the late 20th century, there was little scholarly commentary of the Second Amendment. In the latter half of the 20th century, there was considerable debate over whether the Second Amendment protected an individual right or a collective right. The debate centered on whether the prefatory clause ("A well regulated militia being necessary to the security of a free State") declared the amendment's only purpose or merely announced a purpose to introduce the operative clause ("the right of the People to keep and bear arms shall not be infringed"). Scholars advanced three competing theoretical models for how the prefatory clause should be interpreted...
Until the 1930s you could mail a machine gun straight to your door with no scrutiny. What point was there in arguing an individual right in the early 20th century when you could mail order a machine gun or TNT with no background check straight to your personal collection and people were literally inventing the precursor to the M1 Carbine in prison with the blessing of the warden. If you want to go back further to the 19th century, privately owned warships with cannons were owned, gattling guns, and everything under the sun by individuals (the main laws, were on storage of explosives/powder -- interestingly even up to this very day it's legal to possess but not freely store high explosives without any license).
You can point out certain collective broad groups like blacks didn't get a collective nor individual legal access to arms, but given how racist the courts and "scholarly" academic institutions were at that time it's no surprise they spent little time covering it and found little representation in the legal system and little scholarly commentary.
It was after the passage of the NFA and the GCA, the main gun control acts of the US, which happened in the mid 20th century, where suddenly all these militia fuck fuck games started to enter the chat (at one point, SCOTUS claiming short-barrel shotguns taxed by the NFA not being protected because the military didn't use them -- they were wrong but the defendant was a dead guy with no representation so it was a poisoned appeal case to set precedent and no one was there to show the light infantry at the time were actively using them).
Note: There are ~30ish countries that provide citizenship to anyone born within their national borders (many with restrictions, for whatever that may mean). Largely, this covers a spotting of countries across the globe, but is almost universally true within the Americas.
As far as I can see it is almost entirely countries in the Americas plus Pakistan that have real birthright citizenship. Everywhere else has some restriction such as stateless parents, or multiple generations born in the country, or a minimum period of residence or similar https://en.wikipedia.org/wiki/Jus_soli
Hate to be that guy, but this a pet peeve of mine that pisses me of...
The term "birthright" means "a right that is derived from the circumstances of your birth". Virtually ALL countries grant citizenship by consequence of the circumstances of birth, but what circumstances they consider vary. For some countries, the circumstance is "birth happened in the soil of the country" (jus soli), for others, it's "birth was to parents who are citizens of our country".
I said "virtually", because there is one SINGLE exception. The Vatican. Ok, there's the SMOM, but do they even count?
In this context it is a synonym for jus soli - birth happened on the soil of the country.~
Birthright has a few other meanings in wider contexts: https://www.collinsdictionary.com/dictionary/english/birthri...
Does it really matter if we add one more, especially as it is now a well established usage?
It matters. Because if the proposed executive order were to prevail, the US would effectively drastically change its citizenship assignment system, but it would still hinge on a right derived from a circumstance of your birth - a birthright. Essentially, it would move from "you are a citizen if you were _born_ in the country" to "you are a citizen if you were _born_ to a citizen".
Yes it matters, because jus sanguinis is also a birthright and therefore "birthright citizenship" despite having no relevance to where you were born (jus soli)
And how many of those countries have an illegal immigration problem? I bet that most of them would quickly remove that loophole if people actually started to exploit it.
Root cause it. The USA does not have an illegal immigration problem. It has a "huge, slow immigration bureaucracy" problem that makes the legal path so slow and difficult that people are incentivized to gamble on illegal paths.
Not even this. The USA has a labor shortage that is filled by workers who used to migrate seasonally until it was no longer allowed, thus creating a perverse system that encouraged business owners to look the other way and immigrants to stay instead of leave.
A long time ago, the southwestern part of the USA was Mexico, but a certain destiny manifested itself and changed that. It seems like this didn't affect day-to-day life due to a generous treaty for a while until some Americans decided they deserved the land there more than the people who were there.
https://en.wikipedia.org/wiki/Mexican_Repatriation#Cession_o... -- see the part about 1930 removals.
Obviously, the people who were kicked out were performing some useful economic function, so the USA decided to have it both ways: The Bracero program. https://en.wikipedia.org/wiki/Bracero_Program
This program of importing cheap labor had an expiration date, and it was allowed to expire in the 60s. Guess what happened then?
https://pmc.ncbi.nlm.nih.gov/articles/PMC9017686/
> Despite the forced removal of Mexicans during the 1930s, as soon as the United States entered the Second World War, authorities approached Mexico to negotiate a binational treaty that arranged for the annual entry of legal workers for seasonal labor in U.S. agriculture (Galarza 1964; Calavita 1992). The resulting Bracero Program lasted from 1942 through 1964, and its effect on the likelihood of migration is readily apparent in Figure 3. Between 1940 and 1945 the probability of U.S. migration rose nearly seven times, going from 0.003 to 0.020 before leveling off briefly and then rising to new plateau of 0.029 from 1956 to 1959. In 1960 Congress began to phase out the Bracero Program, finally letting it expire at the end of 1964, bringing the probability of migration down to 0.017.
Why did they let it expire? presumably to increase demand for American labor. A laudable goal to be sure, but is that really what happened? Surely people stopped crossing the border to do labor here and Americans started getting hired more.
This whole thing is beyond messed up and the fact that this history is essentially erased (I wasn't taught this in school) absolutely boils my blood.
There exist a large number of legal pathways to permanent residency in the US, some of which do take unreasonably long; employment-based green card applications for Indian nationals famously have a decade-long waiting period. They should be reformed and improved.
But a big part of the problem is that many people do not have a legal pathway available to them, and either don't believe that or don't wish to accept it. So they spend years carefully pursuing every bit of due process they're entitled to, and those stories become part of the "slow immigration bureaucracy", regardless of whether the result was ever really in question. This is where immigration reform proposals have generally gotten bogged down; some people strongly feel we should resolve this by creating a general legal pathway, others feel we should resolve it by expediting removals, and both groups are very hesitant to agree to a proposal that doesn't resolve it at all.
> There exist a large number of legal pathways to permanent residency in the US, some of which do take unreasonably long; employment-based green card applications for Indian nationals famously have a decade-long waiting period. They should be reformed and improved.
> But a big part of the problem is that many people do not have a legal pathway available to them, and either don't believe that or don't wish to accept it.
Even worse, there exist illegal to legal pathways, that come with risk but appeal: I came here on a K-1 fiance visa. A few years later, with my immigration attorney, as we compiled some documentation, I lamented the amount of money it had taken and she noted that it would have been both quicker, and cheaper, for me to come here on the VWP (Visa Waiver Program), which requires you to attest that you will not get married, get married anyway, and then work with an attorney to say "Oops, my bad, can I stay anyway".
That's just one example, just for my visa class. But there are absolutely many perverse incentives throughout the INS/USCIS/DHS quagmire.
> a big part of the problem is that many people do not have a legal pathway available to them
I have no legal pathway to own the moon. That does not mean I get to just take it. Just cause you want something does not mean there must exist a way for you to get it...
Having a difficult and selective immigration process that rejects the vast majority of applicants is not a problem. It is exactly how an immigration system should work. We want the best.
I'm personally happy to welcome anyone who's willing to come, work hard, pay taxes, and support democratic ideals. This is how most of our ancestors got here, and it seems fair to me that we continue to extend that offer to other would-be immigrants.
Worth noting that the economic literature also shows that this is firmly in our best interests, and immigrants and their children more than pay their way in future taxes and future entrepreneurship.
The US didn't even have a particularly selective immigration process for the first century. It was only after a big influx of Chinese immigrants (and a corresponding backlash) that we enacted our first immigration controls, limiting how many immigrants could come from a given country each year. The aptly-named "Chinese Exclusion Act" of 1882.
The US today has the highest percentage of foreign born population since 1850 (I can't find numbers before that). If the US had truly open immigration we'd probably see several hundred million migrate and probably in the billions. What laws do today practicality did before.
Sure, let's have that debate then. I think what frustrates many US citizens is immigration is clearly broken but for various political reasons, Congress won't touch it. It's clear the system is at the breaking point.
>and immigrants and their children more than pay their way in future taxes and future entrepreneurship.
As someone who is involved in local politics, and encourages more people to be, this is true in long run BUT not in short term. This causes a ton of friction since localities which don't have unlimited debt power ends up eating the cost of this immigration.
Here is CBO source on this: https://www.cbo.gov/publication/61464
"Broken borders" is an oxymoron. Something we cannot tolerate. Borders, by their nature, are our definition as a nation and our protection as a country. Broken borders do not exist. We cannot tolerate them. Strong border control must be part and the first part of any comprehensive immigration reform. It's the obligation of our elected officials to keep the American people safe, and our borders are one of our early lines of defense to do that. It used to be our first and only line of defense, but in this age of technology, more is possible.
> it's the obligation of our elected officials to keep the American people safe
So if it's the main goal to keep people safe, we need to ban unhealthy foods and massively restrict the operation of automobiles. We need to massively increase regulations on air and water pollution. These things will do far more to save American lives than any number of foreigners we lock up in prisons.
[dead]
> It's the obligation of our elected officials to keep the American people safe, and our borders are one of our early lines of defense to do that.
Against an invading army, sure. Against the cartel and drug-running, ok, I can see some reasoning there, although I'm not sure we're ever going to win the War on Drugs. But with regards to immigration, I don't see a solid argument that we need strong border control in order to "keep Americans safe". Studies show that immigrants commit crime at a lower rate, right? So how would stronger border control keep us safe? Economically, immigration helps us, enriches us. Culturally, also.
People joke "yep, gotta protect us from that Mexican grandma selling tamales out of her car", and I didn't want to throw that at you. But I don't think it's entirely that far from the truth.
There is a long and storied history of humans being afraid of foreigners. "They speak different, they have different values, they worship a different god. How can I know they're safe?"
But we humans often have more in common than differences, and cultural differences usually soften after a few decades in this big Melting Pot.
There are people who have interest in selling fear and distrust, even if that fear and distrust ends up hurting us as a society. When I hang out with people from other countries, I don't see this fear justified. Usually, I just see other people, who want to work and live and create art and fall in love and have a family, just like the rest of us. And if you've got legitimate fears, please bring 'em.. just do try to be careful that the fear is solidly based in reality, not just something sold by Fox News.
The system that we had up until the late 1800s had a natural rate limiter in that the technology of the time made international travel so time consuming and expensive that immigration was simply an impossible pipe dream for the vast majority. It was also limited in impact on the native population because there were no welfare programs of any kind at the time, so an immigrant was never an expense item on the budget.
It may be your personal opinion that we should have the open borders policy you describe, and you are perfectly entitled to that, but here is mine. Your idea is borderline insane. Putting bleeding hearts in charge, who will allow things like this out of some compulsion that fairness demands we have the same immigration policy now as we did in the 1800s, is national suicide. I will continue to vote for anyone besides your side, even right wingers that I find repulsive, because I fear that someone on the left who lacks fundamental self preservation instincts will put in place policies like the ones you support.
1800s? We had actual open borders with the rest of the Americas until, like, the 1950s.
Farmers at the time were super-worried about the shift, since they already relied heavily on immigrant labor. Their concerns didn't manifest as major problems for them mostly because until very-recently enforcement was (pretty much intentionally) half-assed, such that the border remained de facto kinda open for immigrant farm labor (even, and especially, the illegal kind).
Now that situation's arguably not good for a bunch of reasons, but we've never had a strongly-enforced border, and in fact didn't regulate Western hemisphere immigration to any meaningful degree within living memory. Changing that to a highly-selective system with strong enforcement of immigration laws to keep out a large majority of prospective illegal immigrants would be a totally novel approach to US immigration. (Good or bad, either way, you can't really appeal to US history in its defense, and "without it the country will be destroyed by immigration!" demands an answer for why that didn't already happen, to remain a viable point)
> national suicide
Why do you think that? The same thing was said about the Chinese, Italians, Polish, etc... when they all came here. Instead they helped make the country what it is today.
I also don't see anyone arguing for open borders, but straight forward paths for people to legally immigrate.
What do they say, "quantity has a quality all its own"?
I don't really have a strong opinion either way on it, but I think your question was addressed by the natural rate limiter mentioned in the comment you were replying to.
Just like I was happy to have a free blog without a robots.txt 5 years ago, but now with the AI crawler and other traffic I'm looking at using Cloudflare "are you a human" blocks or whatever.
No, I don't advocate for open borders. I'm fine with keeping out criminals, people who don't value our democratic system, or people who aren't interested in being productive members of society (e.g., NEETs - people not either working or getting educated).
> Your idea is borderline insane. ... someone on the left who lacks fundamental self preservation instincts ...
Huh. Well, checking, checking... I don't feel insane. I'm feeling pretty calm, rational, and evidence-driven.
The two big risks I see from large-scale immigration is this: - people who don't agree with liberal secular democracy. E.g., religious fanatics who want to enact a theocracy. That's all good; I'm fine with screening those out. - economic damage. But here, again, the economic data shows that immigration distinctly benefits the US, mostly through economies of scale, but also partly through higher-than-average rates of college attendance and entrepreneurship in 1st- and 2nd-generation immigrants, leading to higher earnings and innovation.
There definitely are also localized *negative* impacts from immigration, particularly for overwhelmed healthcare and education systems. These do not outweigh the national net benefits - meaning, the US still benefits as a whole - but I can understand that people living in those areas or culturally affiliated with them would be anti-immigration. But these are problems we could very much tackle if we wanted to: the federal government has more than enough resources to help these locales, while still getting the long-term and nation-wide benefits from increased immigration.
So: no, I flatly deny that I'm not concerned with self-preservation. Yes, I care about compassion and fairness, but it's quite reasonable to ask that fairness and compassion be balanced with self-preservation. And yet - even after considering self-preservation, we still benefit from increased immigration.
To do what, pick strawberries and nail shingles?
A right enshrined in the Constitution is not a "loophole".
Most countries with a standard of living that even barely better than their neighbors have an immigration problem. There is a whole continent call Europe that is fighting off migrates and last I checked, birthright citizenship is not a thing there.
People who abuse birthright citizenships are, by definitions, not illegal immigrants. But even if you count all of them as 'unwanted' immigrants - how many % of total immigration to the US is result of those birthright laws?
You are wrong about that. If an illegal crosses while pregnant, gets detained, and then gives birth the day after while in detention, that baby is 100% a US citizen.
if baby is 100% US citizen then how is that an 'illegal immigrant'? Again, you may call them 'unwanted', and you have right to such opinion. But law is what is written, if they got citizenship then they aren't illegal
Think two steps ahead, people aren't born right out of the sky. It encourages people to illegally enter for their citizenship baby and the parents remain illegal until ~21 years later when they can have the kid sponsor them. In the meantime the parents get free WIC even if they're illegal.
Is that sufficient reason to overturn a constitutional amendment by executive order?
No, the EO is dogshit malpractice of executive power. And the amendment is effectively impossible to amend in this day and age. We are stuck with birthright citizenship.
Realistically the only option we have that might work is shit-canning most welfare and incentives for non-productive immigrants to enter and make it pointless to pop out the kid unless you have a plan to make both them and yourselves productive members of society. Illegals showing up and popping out a kid and getting free WIC, claiming (stealing) the newborn citizen's welfare benefits, public schooling, chain migration via anchor baby etc are all going to have to be fixed through congress during some fluke period when the filabuster can be overcome.
> congress during some fluke period when the filabuster can be overcome.
If the clouds part and Jesus himself descended from the heavens, you'd ask him to ... discourage anchor babies? Surely there are better and more pressing uses of his power.
If you're asking me personally, on this topic? Wide open borders, not even a wall, zero employment eligibility checks, but no welfare. Only way to win is to also benefit others in voluntary trade or seek voluntary charity. I have no problem with "illegal" immigrants, only those who purposefully target and drain the coffers of Americans by popping in for a citizen-baby and then run every public benefit available with their anchor baby.
Part of the reason why immigrants were so successful and beneficial in the 1870-1920 era boom was that labor was so badly needed in the burgeoning age of industry. But really, the other half is there was no other option -- you did something productive or you were completely fucked.
I'm asking you, is this really such a big problem that it requires getting rid of welfare? Is the US financially in trouble because it pays out welfare to undeserving layabouts? I seriously doubt it.
Yes im absolutely certain the broken redistribution system is one of the most pressing problems in US, but of course its not the only one. Not because recipients dont "deserve" a living but rather it poisons the productive and it provides the wrong incentives to recipients while conditioning them to depend on a bloated government that now has total leverage on their life (and of course, virtually assured votes to whoever are bribing recipients with OPM redistributed away from the big bad other voter), all while speed running towards a ruinous national debt even if they deserved the moon and stars and were paid it.
Well, I do agree that the redistribution system is absolutely broken. Most welfare recipients do in fact work (and benefit others) but our capitalist redistribution system has decided that they don't deserve to live with dignity, leaving the centrally planned redistribution system to pick up the slack.
The fallacy here is you're trying to frame things in terms of "deserving." An African child deserves life and wealth as much as an American one. A guy slaving 16 hours a day ripping shingles off of roofs "deserves" a mansion and high-dollar escorts as much as the playboy heir of some mega-corp. Some starving African child probably deserves to rip the computer/tablet/phone you're writing this with out of your hand and sell it for a bucket of rice to feed his family. Play this fallacy out to its extension and the whole thing collapses in any system that's attempted to roll out the "deserve" system beyond a pretty constrained fraction of its GDP, and then both the deserving and undeserving end up worse off.
You're fixating on the word deserve in my post, but that's got nothing to do with my point. I'm saying that the market has decided that it doesn't have to pay a living wage since the government picks up the bill to keep things going. I think that's perverse.
I'm confused whether you want more welfare, or you're trying to ban jobs below a certain "living" wage floor (which are probably mostly occupied by the poorer).
There is a somewhat intermediate of this, proposed by Milton Friedman, called the negative income tax. I can't say I'm sold on the idea but it does solve some of the problems of the local maximums encountered that keep people trapped in the welfare system and from trying to get more lucrative income.
Probably some mixture of better statutory labor protections and more class solidarity (collective bargaining), but generally I don't know. It just boils my blood that Walmart can publish a document explaining to its employees how to apply for government food assistance (to buy food from Walmart itself) and this is business-as-usual in the USA.
The GOP would never do that because so much of their base milks the same entitlements. Might have to find a different solution.
I don't think we'll find a solution then. We'll argue about it until another country finds the solution for us in the form of superior economic success and then the illegal immigrants will start the cycle over there. Shit-canning welfare might be the easiest way to get rid of non-productive illegal immigrants but shit-canning your entire economy works to get rid of all new immigration and then it's not a concern anymore.
Imagine being 18 and suddenly discovering you have to prove the citizenship status of a parent you've never met or else you'll be deported to a country you've never been to and who's language you don't speak
Imagine a country extending citizenship to a whole group of people for no reason other than the location of their birth, and then allowing said people to access the benefits of citizenship, including the ability to receive welfare benefits, vote, and run for office.
That sounds like a great idea. The more citizens of your country the better. Note that US citizens pay taxes no matter where they live. So it's not a free ride by any means.
I don't have to imagine it. I live there. It's the richest and most powerful country on the planet. I hope you get a chance to live here someday!
I live in that country which happens to be the global hegemon.
Seems to work fine. Dozens of countries do this. It's not some weird hypothetical nor is the US some bizarre outlier.
The fact that a guy like Trump was ever elected in the first place would imply it is not working fine. Half of the electorate supports his anti-immigration policies. In an alternate universe where immigration laws were properly enforced he may never have been elected.
Further, just because something has never been an issue in the past doesn’t mean it won’t be in the future. The US is an outlier in being the only large and wealthy country that does this. Not many people are flying to Pakistan to give birth to secure Pakistani citizenship for their children.
But his base is largely not people benefiting from birthright citizenship (at least, not recently).. so if anything Trump would be an indicator that we need more immigration to counter the homegrown, um, MAGAts
So you want to diminish the voting power of the native population through mass immigration?
Tell me how this rhetoric would not radicalize any normal citizen.
That's kind of the history of the United States.
Ironic to use the word “native” here, given that we are talking about birthright citizenship.
Native, adjective, belonging to one by birth
Are you saying birthright citizenship played a significant factor in getting Trump elected? Illegal immigration certainly did, but birthright citizenship played roughly no role from what I saw.
I'm not sure what you consider to qualify as large and wealthy, but most Western Hemisphere countries do it this way, including places like Canada, Argentina, and Brazil. If none of those qualify then you're getting awfully close to saying that the US is the only large and wealthy country, period.
You're right that it could have worked fine in the past but then become a problem. But if that's your argument, I'm going to need something a little more comprehensive than "imagine if things worked the way they actually do work in dozens of countries and have worked for longer than any of us have been alive."
There is no problem having mechanisms in place for edge cases where the child has been abandoned, parents both dead and so-on.
I appreciate that you can look at the current political climate and imagine that such edge cases would be handled in a compassionate way.
yes because DACA recipients do not live in fear of conservatives trying to remove them from their homes. (this)[https://www.durbin.senate.gov/newsroom/press-releases/during...] was literally 3 weeks ago
i dont agree with the person you are responding to, but theres a difference between not being a citizen and being deported.
This sounds dangerously apartheidy.
A belief held by the majority does not make it better simply for that fact. Not that long ago, the majority view was that slavery was a great thing, so I think you should see that argument falls fairly flat.
Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
> Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
No arguments why its better, just stating it as if its fact.
Most countries do not have it because it creates many preverse incentives (such as anchor babies). This especially in countries which are targets of immigration (such as the US).
> Not that long ago, the majority view was that slavery was a great thing
A bit of a tangent, but is that actually the case? The highest estimate I have seen puts slave ownership at 5% of the population while the lowest puts it at 1%.
Obviously just because somebody doesn't own slaves doesn't mean they didn't support the system. There could be economic or legal reasons they couldn't own a slave.
I am just not sure that it was actually a majority view at any point in time in the US.
People are pretty expensive (they're literally worth a lifetime of free labor). 1 slave would've been like 3 complete years income for an average free white southerner to purchase, plus ongoing expenses obviously. So they basically end up in the hands of upper class people who have a steady need for lots of manual labor. Doesn't mean that everyone else around was not benefiting from the economic surplus, or was not supportive of the institution.
The US has always been a country of immigrants; the Constitution recognizes and enshrines this fact. Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment). Given how difficult it is to find consensus on even the most banal issue, it's unclear whether there would be sufficient support to ever amend.
> Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment).
This is actually just the first step - to propose an amendment.
To ratify it requires 3/4 of the state legislatures (or state “conventions”) to vote in favor.
https://www.archives.gov/federal-register/constitution
As a non-US citizen, birthright citizenship has always struck me as strangely unique to America - in my mind it comes from a time when it was actively trying to populate the continent (something not a lot of countries have wanted to do, I guess).
Roll forward a few hundred years and the context has changed, so it seems reasonable that the law should too? But I guess it shouldn't be surprising that this is no bueno for SCOTUS, which has an infinite hard-on for Originalism [0] - I certainly can't imagine the conservative justices are ruling based on humanitarian grounds.
[0] https://en.wikipedia.org/wiki/Originalism
Most countries in North and South America have unconditional birthright citizenship for persons born in the country.
I take it you are not British? The British Empire had birthright citizenship, and up until 1948 (except for Ireland) citizens of all Commonwealth countries were simply British subjects.
Afterward it was possible to be, for example, a Canadian citizen, but it was still the case that "Prior to the [the British Nationality Act 1981] coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to [Citizenship of the United Kingdom and Colonies] status" - https://en.wikipedia.org/wiki/British_Nationality_Act_1981
Birthright citizenship is not unique to the United States, it’s common to certain kinds of former colonies.
I mean, it tracks with "no taxation without representation". Getting rid of birthright citizenship has the chance to create a separate *multi-generational* class of people that aren't given the same rights in society.
Most of the Americas for just that reason - and because the countries immigrants came from did not want their kids to have citizen ship and the right to come back.
Given the US is one of the most (the most?) successful countries in recent human history, shouldn't it be the other way around? Shouldn't the 95% be looking at the US and seeing what to copy?
To be fair a lot of it had also to do with the sheer immense amount of vast, mostly unused ,fertile land available in north America. I sincerely doubt the American experiment would have worked this well if they had rowdy neighbours and infighting due to resource constraints. For almost 200 years the solution to most things in the USA was to get a chunk of either their people or immigrant to move to the neck of the woods to find fortune
But the success hasn't ended since the unused land became taken; in fact, the US became a superpower after the westward expansion era. My point is that looking at conditions today, the US still continues to succeed (by some definition of success) and other countries should try to emulate the aspects of the country that leads to that success. IMO one of the big factors is how well immigrants assimilate in the country, and birthright citizenship is a part of that.
I do agree with you that US success in the 19th century was due to many factors that are not relevant today.
Not getting wrecked in major land wars during the 1800s and 1900s also helped
We got wrecked in a major land war in the 1800s, just to be pedantic.
> sheer immense amount of vast, mostly unused ,fertile land available in north America
it was not "available", it only became "available" after we killed off nearly all the inhabitants and stole their land
This exaggerated lie always gets posted, but it's entirely inaccurate.
The Indians were nomadic hunter-gatherers who were sparsely distributed around the US and moved seasonally. Diseases killed the majority. Inter-tribal warfare was the second leading cause of death (tribes that had been fighting for generations with rocks and sticks got access to horses, steel blades and guns and became much more lethal) and deaths attributable to European settlers were negligible compared to the first two causes.
stop whitewashing it
yes, diseases killed the majority, but the diseases didn't come out of nowhere, they came from the European occupiers. and inter-tribal warfare killed plenty. but we're talking about theft of "available" land: the Europeans took the land from the remaining inhabitants, killing those who resisted, and deceiving those who submitted through treaties which they repeatedly broke, leaving the natives, by design, with the worst, most infertile land in the country
don't try to gloss it over and hand-wave it away -- yes, the natives were greatly diminished through the causes you mentioned, I never said the European occupiers killed them all, but it was genocide to finish them off and take all the land from anyone who resisted, effectively destroying their civilization
and stop calling them "settlers", they did not "settle" the land, they took it by force and deception
Define successful?
(You'll probably want to avoid metrics like happiness indices and life expectancy though)
At a minimum, it's been a place that people wanted to come to, more than they wanted to come to anywhere else in the world. That's successful as measured by people.
(Or at least, people wanted to come until the last couple of years...)
I'm not sure it's true, that seems to be mostly for economic reasons (which might define success, arguably), but I bet a lot more people would dream about living let say in Thailand than in the US, they just can't because they don't have the means.
Fair point. Mainly I agree with the sibling comment: the revealed preference of many people around the world, including many people from the richest countries in Europe, is to move the United States and then settle permanently. I think that means a lot.
Obviously you can also say that the US is geopolitically successful because of its global military and diplomatic dominance, but I account zero value to this.
Nobel prizes? Manned moon landings? Reserve currencies? AC units per capita?
Are any of these stipulated as criteria anywhere?
There's also proportion of adult in prisons, people who believe in angels, and the mass-shooting high score
> AC units per capita
This gave me a laugh
Despite all of those things people still travel across the world to give birth in US just so their posterity can become a part of our country. What other metric do you need?
Not everybody across the world is doing that in equal measure (I've not heard of a concerted effort by Europeans travelling to the US to give birth in contemporary times).
People migrate for economic opportunity. South Africa is not a rich country, but sees millions come in from the SADC for this reason, despite some pretty big social problems.
The US is nothing special, it's just a particularly large market of economic opportunity with a history of allowing in migrants. If China was significantly more migrant friendly, we'd see the same happen there. None of this specifies that the US has some secret recipe for success that papers over some of its obvious and glaring deficits.
We don't really amend the Constitution every ten years. We got 10 all at once, immediately after the Constitution was written. They were amendments only because there was debate about whether including them would deprive people of even more rights by omission.
Of the remaining ones, two cancel each other out, and several others (including the most recent) are trivial. The Constitution has not been meaningfully amended in half a century, and it seems wildly unlikely that it ever can be.
95% of countries weren't formed by settling on somebody else's land and excluding the original inhabitants from citizenship for several hundred years. The American project is what it is because of millions of migrants who settled there for the perverse incentives of free land via the Homestead Act.
The United States is different from 95% of countries. We're the place you are supposed to flee to when those other countries oppress you. That's just not the history of a place like Italy or Japan.
My great great grandparents left Quebec in search of a place where they could earn enough money to make it. They immigrated to America. They lived in communities of other Quebec emigrants and spoke French their whole lives. They never pursued American citizenship. Without birthright citizenship, would my great grandma have been American? OK then what about my grandpa? What about me? I'm not sure if any of my immigrant ancestors formally pursued American citizenship.
Let's put all of the cards on the table here. Are you white? As long as you and your family are white citizenship probably wouldn't ever be a problem for you, one way or the other.
Trump wants to get rid of birthright citizenship as a pretext to clean the country out of people from "shithole" countries. I don't think he sees Canada the same way he sees Mexico or Haiti.
Constitutional amendments are generally made with the purpose of granting rights to the people, not taking them away. The US once made the mistake of making an amendment to take away rights (banning alcohol), but then another amendment restored the right to get drunk.
Birthright citizenship is one of the best things we have going for us. I see no reason why we should treat people differently depending on whether or not they have an imaginary stamp labeling them as special (IE, as citizens). Birthright citizenship ensures the problem of unequal representation is fixed over time. A self-fixing function, if you will.
I think what you mean to say is that as a result of this ruling the voice of Americans can be diluted over time so that your preferred political outcomes can happen. Not everyone in my country believes that the concept of the nation state is stupid and should be done away with. I understand that there are many who do think this, and I have to live amicably among them, but it doesn't mean that I need to pretend that your ideas are good for me and my kin.
Sounds like you want to have unequal representation. Or rather, you want to keep your privilege by preventing other people from gaining equal footing. You are right that this is a pretty central element of American society. However, I think we're at our best when we concede that this sort of thinking is counter-productive in the end. Cooperation is really the core mechanism for societal growth, so any efforts to prevent cooperation (in this case, by creating a subclass) is eventually self-defeating
So, again, America seems to be the only country where everyone else claims a positive right to enter and dictate what we do. You do not have this right. It never existed. You were convinced that it existed by a combination of overly generous federal spending and the center-left boomer generation winning a few elections here.
>Cooperation is really the core mechanism for societal growth
This is an interesting claim to make when almost all of the leaps forward in technology advancement came either during a war, as part of the lead up to one, or within the context of a cold war. Similar to the entryist problem, everyone demands cooperation from the United States, no one asks for partnership.
>in this case, by creating a subclass
This is literally the point of the concept of the Citizen. A Citizen is prioritized in their own country. A non-Citizen is not. Something happened with education because it feels like we have to go back to deriving the point of the nation-state from first principles.
It does mean you need to pretend that. Reagan has a famous quote about it.
I mean, it's a free country, nobody can make you accept an idea you don't want to. But the nativist ideas you've adopted are not considered by most Americans to be acceptable. If you go around telling people that immigrants aren't real Americans, you will not be accepted even in many conservative circles. Even much of the Trump movement views nativists as useful dupes; the Vice President and Secretary of State, for example, clearly would not welcome your theories that their kin are diluting "the voice of Americans".
You are wrong. My ideas aren't "nativist", they are the mean feeling on this subject for 250 years in this country. It has taken a tremendous amount of effort to convince people that things like "borders", "state sovereignty", and "being discerning about who you let into the country" is bad, evil even. That's why you think you can throw around the word "nativist" as a pejorative. I don't like Ronald Reagan for many reasons, and I don't know which quote you are referring to (though I can venture a guess), so I'm not sure what the point of that appeal is. Like I said, if you think that it's good to dilute the voice of people whose families have been here for a dozen generations by pretending that people who got here 15 minutes ago have the same values that's fine. But you won't get me to agree with you. If you want the country to be more left wing and increasing immigration gets you closer to that goal, just say that, it's cleaner.
> if you think that it's good to dilute the voice of people whose families have been here for a dozen generations by pretending that people who got here 15 minutes ago have the same values that's fine.
That smacks of entitlement. Yes. I know that the other side of the argument also smacks of entitlement. But I believe I have the 14th amendment on my side.
Also, there are a lot of assumptions baked into your statement. If you think that everyone here who can trace their roots back "a dozen generations" has your ideals, well, I've got $24 worth of trinkets to sell you.
Conversely, if you think that everyone here who is newly immigrated does not share your ideals, well, I have more trinkets.
The Mythology of America that I bought into was that it was a welcoming place where you could re-invent yourself in a way that was rarely possible in the country your were leaving.
And yes. I know it's a mythology--with kernels of truth to it.
But you have your own Mythology--and I find it unpalatable, both to me and my immigrant parents.
Nothing I am saying conflicts with this mythology of yours. I think the part of mythology that does not get told often enough is that every instance of large scale immigration into this country has resulted in strife and violence. The Ellis island stories, for example, were largely embellished and were done so after the fact, and it took the Second World War to finally integrate the different groups that came here over the preceding decades. The problem I have with the immigration of today is that the levels of cultural distance are much, much higher than Ellis island. America is the only country in the world where people who do not live here and have no connection to it claim a positive right to enter. I don’t blame them for wanting to enter, and you should not blame me for having the disciple to say no.
> The problem I have with the immigration of today is that the levels of cultural distance are much, much higher than Ellis island.
Sounds like a good thing to me. More diversity means we can incorporate the best ideas from everyone, instead of a select few. But I suppose not everyone likes to try new things
Right right, you get your cuisine options.
There simply does not exist a substantial political movement of people whose families have been here for a dozen generations. It can't, because the vast majority of Americans do not satisfy this criterion. My own family is homegrown by any conceivable standard, but we've "only" been here for six generations, although perhaps we might go around telling people it's twelve if we didn't have the records.
And again, I'd really like you to consider the honesty of the people who've told you this is a thing. In your readings about this movement to protect the voices of people who've been here for a dozen generations, did they ever mention to you that the current President is a third-generation immigrant and the Secretary of State is second-generation? If not, why do you think they didn't?
I don’t understand your point. Is it that because Marco Rubio is Cuban I need to accept unlimited immigration, forever? This isn’t a position held by anyone in this administration, recent immigration history or not. My point is actually really narrow. The actual political movement with power and influence wishes to increase immigration to dilute the voice of the people already here, because the people already here do not vote in the way that the movement prefers and the immigrants do. Your condescending tone aside, I think it’s very easy to observe that my observation is correct because I can do things like “drive around my hometown” or “visit a major city” and the difference between today and, say, 1999 would make the conclusion obvious.
Because Marco Rubio is Cuban, you have to accept that dichotomy between "unlimited immigration forever" and "voice of a dozen generations" is false. The people in charge who you think agree with you do not agree; they're manipulating you for political convenience, and it's convenient for them for you to believe absolute nonsense so that nobody can reason with you. Nostalgia is a powerful force, so nobody will be able to make your hometown feel like it’s 1999 again no matter what immigration policy they enact.
Another thing I'd encourage you to think about: why do you think that the party in control of the White House and Congress wants you to believe that "the actual political movement with power and influence" is their opponents? Normally one would say that controlling the government makes you powerful and influential. Perhaps they're just very humble and self-effacing, or perhaps they don't want you asking too many questions about why their power and influence hasn't achieved what they told you it would.
Huh? The administration that has an entire police force larger than the United States Marine Corps solely dedicated to immigration enforcement doesn’t agree with me that there is a problem with immigration diluting the voice of Americans already here. Okay. That’s certainly a take that one can have. You should just plainly state your point and preferred policy outcome because when you wrap it up in your moralizing (“I’d encourage you to think about [irrelevant point X]”) it obscures what you’re actually trying to say. I think it’s that this WH is engaged in a vast conspiracy to trick people into thinking that immigration is a policy priority when in fact it’s not. But this is obviously not true.
My point about 1999 has nothing to do with nostalgia. It has everything to do with absolutely no one asking for entire neighborhoods and towns to be turned into impenetrable foreign countries. There is a stark difference between immigration that brought people like Rubio here and mass migration from e.g. Somalia, in terms of scale, context, and timeframe.
> Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
I typically find that the people using this logic don't seem to apply it to laws like universal healthcare, parental leave, or paid-time off. The lack of those benefits creates perverse incentives to already living citizens, not hypothetical future citizens. Why not focus on them?
> Also ~95% of countries don't have unconditional birthright citizenship.
Closer to 82% actually, depending on how you count countries. Almost every country in the Western hemisphere has it. https://en.wikipedia.org/wiki/Jus_soli
>It creates perverse incentives.
It also helped vault America into being the wealthiest country in the world.
> Also ~95% of countries don't have unconditional birthright citizenship
The map of which countries have jus soli is pretty interesting: https://en.wikipedia.org/wiki/Jus_soli
>Jus soli is the predominant rule in the Americas; explanations for this geographical phenomenon include the establishment of lenient laws by past European colonial powers to entice immigrants from the Old World and displace native populations in the New World, along with the emergence of successful wars of independence movements that widened the definition and granting of citizenship, as a prerequisite to the abolishment of slavery since the 19th century.[5]
>There are 35 countries that provide citizenship unconditionally to anyone born within their national borders.
>
> It creates perverse incentives
Perhaps advantageous, America has been the product of these incentives and still sits atop the world on most hegemon metrics. It amazes me how many people complain about the post-WW2 world order America built and benefits from more than any other country.
The US is unlike most other countries in that it is built on the recent genocide of the native population, with ~most of the current population being immigrants in the last 400 years.
Under what moral rules do genocidaires get citizenship but not, say, refugees?
Do you have US citizenship? How did you acquire it?
If you inherited it from your parents, how did they acquire it?
Usually strong opponents to birthright citizenship are just a few generations removed from someone who got theirs via birthright.
I, for one, believe in American exceptionalism. This country is different in many ways and its success is due to that difference. I don't think that the US should actively aim to "revert to the mean".
Why do you think it's not a good idea?
> Also ~95% of countries don't have unconditional birthright citizenship.
most of the countries in the Americas do
> let's amend the constitution
go ahead and give it a try. I'd start with getting rid of the 2nd Amendment, then we can talk about the 14th.
Why should I give a shit what 95% of other countries do? 99% of other countries are worse in every way that matters
There's about 193 countries in the world, your number would mean there's less than two countries that are better in every way that matters.
I can name ten countries off the top of my head that are better in every way that matters to me.
The USA ranks near the bottom of developed countries in every metric but the metrics related to money.
US is 23rd in happiness globally which is far from the bottom. For example UK, France, and Italy all rank lower.
So your claim is wrong.
This has nothing to do with whether it is a good idea. The question is whether the 14th amendment plainly says that this is the law of the land in the US, which it plainly does.
That three Justices chose to attempt to gaslight us about this is a disgrace. I'll never trust their judgement again.
Its a terrible idea to give citizenship to the chidlren of birth tourist. It makes no sense that someone defrauds the US government to get their child citizenship then you do nothing about it.
Is it "defrauding" if someone's just following the rules, though? And, at that, is it worth building your citizenship rules around something incredibly rare? (Estimates seem to think it's something like 15k babies a year.)
Looking at the dissents (Justice Gorsuch) it appears that he would consider illegal immigrants’ kids are citizens, but kids of legal non-immigrants are not based on the fact that one is a temporary visitor and another is not!
So, when I enter as a tourist, I'm not in jurisdiction? Sweet! Crime time!
Genuine question.
Isn't this statement aimed at citizenship tourism or whatever its called?
I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
If people really want to stop this kind of birth citizenship tourism they must vote for people who will pledge to amend the constitution using the proper democratic process.
But today's climate is so hostile to any kind of rational discussion about how to change laws. One faction just wants to deny citizenship right now to any people they seem not "american enough" while the other faction cannot possibly entertain any change to the current system or else It would concede something to the populist faction
What change would you suggest? A minimum period of time in the country before birthright citizenship applies? What about people who enter the United States illegally and then have a child twenty years later? What about my ancestors, who entered the country legally but never pursued American citizenship?
The 14th amendment was written the way it was to create a bright line that was easy to implement. I'm sure they considered other ways of framing the issue. I think it's brilliant just the way it is.
I can imagine a compromise that exchanges a path to citizenship for DACA kids for restrictions on birthright citizenship.
What is missing from this debate is the practical side of things. On the one hand, a permanent underclass of non-voting second class citizens is probably not a stable long term equilibrium.
On the other hand, allowing anyone to visit the US to have their baby and automatically receive all the benefits of US citizenship is also not a stable long term equilibrium.
I had a friend from Shanghai who did this. It’s completely legal, you can have a proper tourist visa and be pregnant when you enter the USA, there are hospitals in SoCal that even cater to anchor babies and will express a passport for them so the parents can return with the baby shortly after birth.
That was back in the early 2010s, I don’t think it was prevalent then (I just had too many friends with the money to do that). I don’t think it is common now because Chinese citizens have more confidence about China and so aren’t looking for backup plans anymore.
Yes, the Justices in dissent have an ideological opposition to "citizenship tourism" and are working backward from that to find it to be out of scope of the Constitutional language. But that's wrong, that's not their job.
The question of whether babies born to foreign tourists are automatically citizens is separate from the question of whether this is desirable.
On the desirability side of things, it's been this way for the entire history of this country (the amendment just codified how things were already done) and it seems to have worked OK. But even if we were to decide that this is bad, it would need to be fixed with an amendment.
Solicitor General Sauer brought up the same point during oral arguments in this case, and he didn't seem to know how prevalent it was either. Seems like the kind of thing you should have figured out before making your case to the Supreme Court.
Well, it doesn't matter. If the SCOTUS decides that some people, in certain circumstances, are not in jurisdiction of US law, then they have to apply that notion everywhere.
They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.
As for whether people are really doing birth tourism: sure, there might be some cases, but well, they are using something that the legal system allows. If the country feels like it doesn't want that happening, it needs to amend the Constitution.
(Also, let's not kid ourselves that the birth tourism thing is what conservatives care about... People doing that kind of thing are usually rich. The real target are poor illegal immigrants giving birth in the country.)
> They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.
I mean, they shouldn't do this but clearly they can rule however they want with any pretext they want, because they answer to nobody but themselves. Who's going to tell them they can't do something? Who is left to appeal to?
It's a deeply corrupt and undemocratic institution, with virtually unchecked power to rewrite legislation and even the Constitution at a whim.
I'll point out how many cases are decided unanimously. It's quite rare for a case to be decided 6-3 on ideological lines.
They can be impeached, though the efficacy of that is questionable these days.
Jurisdiction is not some singular concept that means the same thing in every context. You can have jurisdiction over some things in some contexts and not have jurisdiction over other things in other contexts.
Surely "subject to the jurisdiction" must mean subject to any jurisdiction, or it is completely meaningless.
That’s a plausible meaning but it erases the exceptions for diplomats and Indians that everyone agrees exist.
If you do crime, can you be arrested by the local police?
"I have diplomatic immunity! Also I live on a reservation with their own police force. So no."
It's pretty clear that's what the amendment means. The only ambiguous situation I've found is if you're born just inside American waters on your way between foreign countries, but that's a really narrow case.
I don't think it does.
In that case, the use of the word jurisdiction in the 14th Amendment is meaningless, too ambiguous to rely on. Unless we think the Constitution should be living, breathing, and adapt to the current political environment. Is that the current conservative viewpoint?
Not all originalists will hold the same views on how to deal with ambiguity in the same way not all on the living constitution side agree how ambiguity should be resolved. The takes are usually more on the "how to think about resolving the meaning" side than a "is there any meaning to resolve" side.
That said, the originalist viewpoint is usually more along the lines of "we should seek to resolve that ambiguity in context of when, why, and with which references the framers who wrote it had in mind". Most originalists are unlikely to care what an argument about the current political environment implies.
Well, a word can have different meanings in different contexts but still have a clear meanings in each particular context. But I agree that “jurisdiction” doesn’t have a well defined meaning in the context of individuals being subject to the jurisdiction of a nation.
In that case, the proper approach is to look at other evidence of what the drafters meant, which is what both the majority and dissents did.
This is not the only "proper approach" and what approach is proper is a hotly contested question.
But it doesn't even matter, because in this case it is very clear what the drafters intended.
It’s not seriously contested anymore. Originalism won and now we are just fighting about how to apply it.
This is obviously not true. Everyone always wants to say "my ideology is right and this is not contested anymore" and everyone is always wrong about that.
Insofar as originalism did “win,” it was only as a convenient signal to Mitch Mcconnell that a potential appointee would play ball.
As an academic legal theory it’s entirely sterile. There’s little actual content within it and it demonstrates almost no consistent application of its supposed principles. When it ceases to deliver conservatives relatively painless victories, they’ll move on to something else.
The fourteenth amendment doesn't say "within the jurisdiction" but "subject to the jurisdiction": if you break a window as a tourist, you expect to be prosecuted because you committed a crime within that jurisdiction, but you do not expect to be conscripted into military service or to pay income tax, because you are not subject to the jurisdiction.
Birth tourism is definitely an issue for conservatives worried about China. Here's a 2019 ICE press release on prosecuting someone who was running a birth tourism ring to benefit Chinese government officials: https://www.ice.gov/news/releases/chinese-national-pleads-gu... The right is concerned that Chinese-American dual citizens born in the US but raised in China might, upon reaching adulthood, act with impunity as US-citizen agents of the Chinese Communist Party.
[0] https://www.irs.gov/individuals/international-taxpayers/taxa...
Even better, Chinese anchor babies born in the USA are subject to pay income tax on income they earn in China. It’s not even clear they can get out of it by renouncing their citizenship when they turn 18 to take Chinese citizenship instead (when they have to decide). I think it’s more trouble than it’s worth now.
Sorry, that makes zero sense. Why are you picking conscription into military service or obligation to pay income tax as the defining jurisdiction? Why those two things, and not something else?
Specifically, of those two things you selected: the first would be horrendously problematic as the defining jurisdiction, since it would exclude persons ineligible for conscription (women, disabled persons, etc), and the second wouldn't even have the effect you are suggesting, since persons on non-immigrant visas sometimes _are_ subject to income tax. Heck, I don't even reside in the US, am not a citizen, and I do pay income tax on my RSUs. What gives?
As for the Chinese spy/saboteur/etc: treason will still be treason, and it's not like your country was above internment camps.
What if you're in the US on a work visa, so you do expect to pay income tax but don't expect to be conscripted into military service? What's the correct preposition for that case?
Still "subject to the jurisdiction of". US law doesn't currently have a law allowing them to be conscripted, and it would be very ill-advised to do so and it would cause a lot of diplomatic backlash, but it certainly could pass such a law if it chose to.
So people on a work visa are "subject to", specifically because of two criteria (income tax and conscription) which must both hold, at least hypothetically? What if the US passes a constitutional amendment explicitly saying that foreigners on work visas cannot be conscripted, would that, by removing the hypothetical, have the implicit effect of making such people no longer "subject to" its jurisdiction?
I think your take on this is overly complex and silly.
I think this take is overly complex and silly. If you're subject to the laws, that's that. As an exercise, go read the Federal code and put each law that might potentially be applicable to people on a work visa into a pile. I guarantee that pile will be taller than you are by the time you're done. It will certainly be larger than two random examples.
Yes. You are correct. You completely missed the point of what this subthread is about, but yes. It's clear what "subject to the laws" means to normal people.
The thread was about someone misunderstanding what "subject to the jurisdiction" meant. Someone suggested that it meant subject to US laws including conscription and income tax, another person said "what if the law in question doesn't mandate conscription of foreigners" and then Telemakhos gave a pretty confusing answer to that. At some point you dropped in to make a further confusing and argumentative comment in response to that, so I tried to clear it up. If you were just disagreeing with Telemakhos, then I apologize for misunderstanding.
I hope that's an accurate summary?
> The right is concerned that Chinese-American dual citizens born in the US but raised in China might, upon reaching adulthood, act with impunity as US-citizen agents of the Chinese Communist Party.
The US seems fully committed not to learn from its past. I suppose the expectations are for expulsions and/or west-coast internment camps for Chinese-Americans should there be a hot war between the US and China. It figures, since the MAGA is all for turning back the clock.
Citizen tourism is not a real concern; good grief why do people care about fringe issues that impacts no one instead of concentration of corporate power, consolidation of wealth, and decreasing rights for citizens?
Because the people in power don't believe those last things are problems, so they distract us with the former things which actually aren't problems that they present as problems.
The best I can tell, 7-9% of US births are to non-US citizen parents. Maybe you could clarify what exactly you mean by “citizen tourism?”
Ask the person I'm replying to that used that phrase, it's mostly a racist dog whistle that is anti-immigrant.
> I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
As many as 26,000 mothers do it (birth tourism) every year.
CIS analyzed U.S. Census Bureau data to track the number of foreign-born mothers who gave birth in the United States. Researchers cross-referenced those births against federal figures of temporary visitors. They isolated foreign mothers who arrived on short-term visas, gave birth, and did not establish long-term residency in the U.S. CIS concluded that 20,000 to 26,000 births annually are attributable to women arriving on short-term tourist visas specifically to obtain citizenship for their children.
Opinion:
https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
News:
https://apnews.com/article/supreme-court-birthright-citizens...
https://www.theguardian.com/us-news/2026/jun/30/us-supreme-c...
https://www.axios.com/2026/06/30/scotus-rejects-trumps-birth...
https://www.reuters.com/legal/government/supreme-court-rule-...
https://www.scotusblog.com/2026/06/supreme-court-strikes-dow...
Related:
Protecting the Meaning and Value of American Citizenship - https://news.ycombinator.com/item?id=42776131 - January 2025 (34 comments)
This "broad conception" is pretty well documented as what Congress wanted at the time of passage of 14th Amendment. It's been considered "settled law" for ages. The only real reason it's come to SCOTUS is that a particular political faction wants it to, and the media gives that particular faction more credence, and more coverage. So there's two things here:
1. An artificially whipped-up "question".
2. Conservative bias in the media.
> Conservative bias in the media.
Depending on how you count, something like 96%, 94%, 65% or 87% of mainstream media employees lean left. Of course this matters less and less as customers tune out and their influence wanes.
https://ballotpedia.org/Fact_check/Do_97_percent_of_journali...
Now do the management/ownership side.
Thank you! Do they make the decisions about what stories to work and to run?
Yes, educated people tend to lean left, since the right is so anti-intellectual. But virtually all media in this country (both social and legacy) belongs to the far right pedophile oligarchs currently running this country to the ground to fatten their pockets.
[flagged]
Not what you call a liberal. Do you have any actual arguments?
[flagged]
So no. Got it.
The media in the US generally leans left (with a few notable exceptions).
This is a cherished American belief, but I don't think it's true after 2016, when NYT gave Trump a significant boost with their coverage of Clinton's emails, and continues to sanewash Trump, after 2024, when billionaires like Soon-Shiong and Bezoa personally directed their paper's editorial stance towards Harris, after Aksel Springer unveils a corporate conservative bias policy.
I think it's blatant now, but evidence suggests that "liberal bias" was never more than a partisan accusation.
35 countries in the world, most in the Americas, confer unconditional birthright citizenship (jus soli), regardless of their parents' nationality or immigration status.
Thank God.
If only because this would open up people born here to having their citizenship retroactively revoked.
The constitution is pretty clear. If you don't like it amend it.
If anything we need to expand it to include anyone who gives birth in this country. If you're willing to deal with our horrible maternity care system and help keep up our declining population, you deserve a blue passport.
The U.S. Constitution is very far from being clear. The whole purpose of the Supreme Court is to explain the meaning of what is written in the Constitution; there are 9 justices in the court and they often disagree on that.
Just look at the second amendment:
The "well regulated militia" phrase caused at least two very different opinions: United States v. Miller [1] in 1939 and District of Columbia v. Heller [2] in 2008, with very different results.Just as the second amendment has this "militia" phrase that provokes arguments, the fourteenth amendment starts with
and the phrase "and subject to the jurisdiction thereof" is vague enough to trigger discussions about whether it applies to illegal immigrants or not.Natural language is just bad in expressing rules.
[1]: https://en.wikipedia.org/wiki/United_States_v._Miller#Decisi...
[2]: https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller...
The jurisdiction clause is there because of diplomats. It's a common thing in other Jus Solis countries, for good reason.
The debate is whether the USA is a Jus Soli (no s) country.
Roberts claims Jus Soli applies to the USA by looking at historical concept of the words in the constitution and the king's obligations to those on his soil. He cites historical statements by founders.
Thomas and Gorsuch rejects Jus Soli applies since it is a concept from feudal lords and serfdom which the USA did not inherit. The cite historical statements by founders.
Kavanaugh thinks congress gets to decide the meaning (within reason), so he rejects Jus Soli as well.
Jackson worries about backsliding and using this to oppress people, unsure about her legal reasoning, but seems to guess at how authors of the amendment understood the words. I would still classify her as saying USA did not inherit Jus Soli, but later codified it via amendment.
I'm sorry, but it's simply insane to appeal to the founders over Jus Soli. The founders did not write the 14th amendment. Their opinions on the matter are irrelevant.
The 14th amendment grants Jus Soli. End of story. It doesn't matter if every single founder and their forefathers were opposed to that notion. The people who drafted the 14th and ratified it were in favor of Jus Soli. They were VERY explicit about that fact. There were active debates when the 14th was drafted if it should be drafted and if it should be as broad as it is.
Thomas, Gorsuch, Alito, and Kavanaugh are all hacks for going further back into history than the drafting of the 14th.
It would be like talking about what the founders thought about alcohol when discussing the 18th amendment. Nobody cares because that amendment was written long after the founders died.
> The 14th amendment grants Jus Soli. End of story.
But it isn't the end, it then qualifies who gets Jus Soli. And that is the debate.
> The people who drafted the 14th and ratified it were in favor of Jus Soli
Thomas cites Sen. Howard and Sen. Trumbull statements in support of the claim that the 14th amendment ratifiers did not intend to grant universal Jus Solis. Is he a liar?
> ... and Kavanaugh are all hacks for going further back into history than the drafting of the 14th
Kavanaugh doesn't go back further into history, it seems like you didn't read the opinion. He spends very little time on the constitutional question.
> Is he a liar?
Yes, he's quote mining to try and argue that there was some sort of confusion about the implications of the amendment. This was part of the debate about the amendment and whether or not it should be reworded. In other words, Howard and Trumbull were raising the very issues with the text that Thomas wants to take issue with.
That discussion was one which shows that the implications of the text were understood and accepted as a result of debate. It cuts against Thomas's actual argument.
Thomas is a liar. Or at very least a dishonest in his characterization.
This is a great summary! This is a case where all the opinions are quite good. I quite like Jackson’s opinion here. The framers of the 14th amendment were radical egalitarians and we shouldn’t lose sight of that.
Nah, the conservative opinions in this case aren't even worth the paper they are printed on. Every single court that saw this case decided the same way: birthright citizenship was intended to work exactly as it has been applied since its inception.
[flagged]
The precedent was correctly decided, as affirmed in this decision. They left the precedent stand, since it was never up for debate for any serious legal scholars. Thus, the supreme court never needed to take up this case.
The only people entertaining a challenge to the previous decision are those who wish to ethnically cleanse the United States.
So what's Thomas's point then? Do they mean to say that jurisdiction attached to soil is a feudal concept? Wtf? What IS the US jurisdiction then? Is no one under jurisdiction because there are no feudal lords obliged to serfs? What a load of nonsense.
Jurisdiction has multiple concepts, you are thinking of territorial jurisdiction. There is also personal jurisdiction, feudal jurisdiction (serfdom), political jurisdiction.
Thomas is reacting to Roberts. Roberts spends time talking about the king's obligations to those born on their land. There is also each person's obligation to the king. Roberts wants to say "we inherited common law, and under common law everyone born on the king's land immediately came under his jurisdiction, the king owed things to these people immediately (and the people owed the king)". Thomas is saying "no kings".
> What a load of nonsense.
Or, this is a complicated, multi-layered concept that goes back through 500 years of common law. It will look messy.
And so we have the whole bench of 9 people guessing and discussing the intention of the lawmakers. Did they indeed mean diplomats when they wrote "subject of the jurisdiction thereof"? If a Martian lands on the US soil and gives birth, will the offspring immediately be "subject of the jurisdiction thereof"? What was the common meaning of the word "jurisdiction" in 1868? This kind of stuff.
Citizenship means having political rights. If it's decided at some point that a martian may have political rights...then yes, as it stands, their offspring would have citizenship upon birth/ejection/hatching/transmogrification or whatever means of reproduction they use.
This is really no different than if we decided that a dolphin or a naked mole rat are able to hold political rights. If an understanding that this is possible emerges, then as a logical consequence any dolphin or naked mole rat born in US jurisdiction would be a citizen.
You are surely oversimplifying it. The amendment clearly says "born or naturalized"; can hatching or transmogrification be considered a birth? We need to look at the original meaning of the word "born" in 1868.
Also, it does not say anything about having political rights, just about being a "person", which will surely start a separate debate :)
At some point in the not-too-distant future this is going to recur on trying to apply the word "born" to AI, see e.g. Short Circuit II, Humans (2015)
Hatching is definitely a birth (where do you think chickens come from?) but transmogrification maybe not.
I look forward to reading the SCOTUS opinions on "US vs Chnr'xu@jjjjjj".
If you read Roberts's opinion he literally explains the definition of jurisdiction as it stood when the amendment was drafted (he cites three different dictionaries) and cites floor arguments directly from the Congressional record. It's not long, takes about 15 minutes to get through.
The rest of the documents are the concurrences (Jackson) and the three, frankly insane, dissents. Thomas's is 90 pages long somehow (I couldn't get through all that one, it's properly crazy).
Here's part of the Senate debate where they discuss it. It turns out that they were extremely precise about what it meant, and they described the exceptions in great detail. It's even typewritten. The downside: you can't come away from reading this stuff and pretend like there's some legal flexibility in the term. If that's important to you, you probably shouldn't click the link.
[1] https://digital.library.unt.edu/ark:/67531/metadc30867/m1/12...
If they meant simply “diplomats”, why didn’t they just say “other than diplomats”?
Maybe that’s what they meant, and maybe it’s not.
One thing is sure: depending on which side you are on, it’s “obvious” that it means whatever supports your side.
There are other people who can be within the territorial boundary of the US but not subject to its jurisdiction. An invading army, for example. It leaves some interpretation of this question but it does not leave unlimited interpretation to the President, or even to Congress. That is the understanding of Wong Kim Ark, which overturned the law Congress passed 14 years after the ratification of the 14th amendment.
[flagged]
We know that because jurisdiction is such a fundamental concept that it needs no further specification. It's fundamental to any system of laws, if a jurisdiction is not defined, the system of laws is useless. Running a legal system without a jurisdiction is like running computer code without memory space.
The US legal system defined everyone in its soil to be under its jurisdiction, _except diplomats_, because of diplomatoc norms.
If an illegal immigrant kills a person while in the US, they get tried according to US law. If a diplomat kills a person in the US, they do not get tried because the US has no jurisdiction over that diplomat.
> You’re saying we need to look to the international meaning of some Latin phrase (“jus soli”).
Discussion of law discussion that uses comparison with international standards is quite common in every legal system. The sentence regarding the murder of a relative of mine had citations of Italian law, German law, some Spanish doctrine. It was also peppered with Latin terms and expressions, because Roman law had quite an influence in all Western legal systems.
So yeah, sometimes discussions of law can be complicated. This one... Ain't.
> If an illegal immigrant kills a person while in the US, they get tried according to US law. If a diplomat kills a person in the US, they do not get tried because the US has no jurisdiction over that diplomat.
Diplomats have diplomatic immunity, which is not the same thing as jurisdiction. For example, diplomatic immunity doesn't extend to a diplomat's commercial activities: https://www.law.cornell.edu/wex/diplomatic_immunity. So if a diplomat sells you fake Hermes bags passing them off as the real thing, you can sue them in a U.S. court. And the U.S. court will have jurisdiction.
> Discussion of law discussion that uses comparison with international standards is quite common in every legal system... So yeah, sometimes discussions of law can be complicated. This one... Ain't.
We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
> We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
It really isn't, it's literally what lawyers do for a living.
Correct me if I'm wrong, but jurisdiction can be summarized as whoever is subject to the law and the rule of the courts.
Everyone on U.S. soil is subject to the law and rule of the courts to some extent, including diplomats. Diplomats are immune to prosecution for crimes, but that's different than being outside the jurisdiction of U.S. laws.
For example, in 2013 several Russian diplomats were indicted for Medicaid fraud: https://abcnews.com/US/russian-diplomats-scammed-medicaid-15.... They had diplomatic immunity, so the U.S. had to get the Russian government to waive the diplomatic immunity. But if Russia waived the immunity, the prosecution could proceed even though the diplomats had diplomatic immunity at the time the crime was committed.
Moreover, diplomats are subject to civil liability for commercial activities beyond their office: https://www.law.cornell.edu/wex/diplomatic_immunity. Diplomatic immunity doesn't protect them from suits in U.S. courts related to such activities.
So reading "subject to the jurisdiction thereof" to mean "subject to the law and the rule of the courts" proves too much. The U.S. and its courts have some level of jurisdiction over everyone and everything on U.S. soil. So that makes the phrase "born or naturalized in the United States, and subject to the jurisdiction thereof" redundant--the words "subject to the jurisdiction" aren't doing any work that the phrase "in the United States" isn't already doing.
A child of recognized foreign diplomat, if born in US soil, however, is not a US citizen at birth. And if they try to claim that later in life, it will be denied.
This has always been like that. All jus soli countries do it.
Correct. Children of diplomats born on U.S. soil aren’t covered by the 14th amendment, even though they are subject to U.S. law and can be sued in U.S. courts over many things notwithstanding diplomatic immunity.
Family of diplomats are accorded the same immunity as the diplomats themselves.
> Everyone on U.S. soil is subject to the law and rule of the courts to some extent, including diplomats.
> They had diplomatic immunity, so the U.S. had to get the Russian government to waive the diplomatic immunity.
Your example literally spells out that THE ONLY WAY they would be subject to the law and rule of the courts is if their immunity was removed.
Their immunity was total.
Yes that's my position.
A person who is not under jurisdiction (e.g., putatively, the illegal immigrants), cannot be prosecuted.
People just need to read the decision, this is specifically discussed...
Read Jackson’s opinion. The amendment was debated at the time and the history records show that at minimum it was intended to include all people living here who didn’t have permission to not follow laws like diplomats or invaders.
> who didn’t have permission to not follow laws like diplomats or invaders.
That doesn’t quite work, because diplomats and invaders do have to follow US laws and can be tried in U.S. courts. In Ex Parte Quirin, for example, nobody doubted that German saboteurs on U.S. soil could be prosecuted in civilian courts. And while diplomats have immunities in certain areas, they can be sued under U.S. law in U.S. courts for commercial activities conducted in the U.S.
If “subject to the jurisdiction” means the U.S. has some sort of jurisdiction over a foreign national, then children of ambassadors and foreign soldiers would have birthright citizenship. So there must be an additional step or wrinkle to get from the word “jurisdiction” to the exceptions that are recognized.
German saboteurs on us soil are certainly subject to us jurisdiction. If they had kids while here the kids would be citizens according to the 14th. Wong Kim talks of invaders who are working under a different set of laws because they’re part of a military invasion, not a clandestine operation. They can’t be tried because there is no American presence on the invaded territory. I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned. They’re not really subject to our jurisdiction. Being able to withdraw our invitation isn’t the same as having jurisdiction.
> Wong Kim talks of invaders who are working under a different set of laws because they’re part of a military invasion, not a clandestine operation. They can’t be tried because there is no American presence on the invaded territory.
Whether the U.S. has jurisdiction over territory has nothing to do with whether it can enforce its jurisdiction as a practical matter. If someone blew up a court in a particular district, that would not mean that the court, as a legal entity, ceased to have jurisdiction. By your reasoning, if Mexico invades Texas, children of Mexican servicemen born on U.S. soil would qualify as U.S. citizens. I don't think that's correct.
> I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned.
Being immune from prosecution is different from not being subject to the law. Diplomats are subject to the laws just like anyone else. They have immunity from prosecution for crimes. But the U.S. can request the immunity be revoked, and if that happens, they can be prosecuted for crimes that occurred while the had immunity.
And diplomats can be sued in civil cases in U.S. courts for their commercial activities. They are very much subject to the jurisdiction of U.S. courts, even if we can't always prosecute them for crimes.
"US jurisdiction" also includes foreign heads of state residing in, and present in, their own country. I don't think a theoretical definition of jurisdiction is tenable; only a realist one.
Illegal immigrants are also working under a different set of laws because they are citizens of another country. Ask yourself this: where would an illegal immigrant apply for a passport? Just like an invading army, citizens of other countries are obligated to follow the laws of the countries where they have citizenship in addition to any laws that may be imposed on them by being present in the US.
Diplomats are subject to the jurisdiction of the US, that's why we have immunity agreements and we can order them out of the country. We also don't recognize the children of invading armies as citizens. Native Americans don't automatically get citizenship from the constitution. They get it from an act of congress in 1924.
They are not subject to jurisdiction, where the hell did you get that idea? If a diplomat does something that would be a crime in the US, they are _asked_ to leave via diplomatic channels. They usually leave on their own. If they were under US jurisdiction, they could be TRIED in the US, but that basically never happens. The only few exceptions you will find to this were either cases where a) the person was not really immune to begin with b) their country waived the immunity or c) the immunity lapsed because the person did not leave the country in a reasonable timeframe after being asked to
If a diplomat is going on a shooting spree they can be shot and killed with no ensuing issues as a result of US law enforcement enforcing laws in the moment. If they are robbing a seven-eleven they can be arrested and held until arraignment. They can be ordered to remain in their home, aka house arrest. They can be ordered to leave and they have no option to remain in the country. The US constitution does not grant diplomats immunity it is something we have agreed to via treaty and law. They are 100% subject to our laws, that's why our law granting them immunity applies.
That flies in the face of what I understand is true about diplomatic immunity. Citation required.
As a less extreme example, diplomats can and DO park their vehicles illegally: in No Parking zones, Handicap Only zones, and blocking fire hydrants. Diplomat plates render the police unable to ticket them. It's civil not criminal courts, but for the exact reason that they are immune to our laws.
A diplomatic vehicle that is a safety hazard can be towed. A city/state cannot enforce any fines, but they can definitely clear any safety or traffic related issues.
I would start with Vienna Convention on Diplomatic Relations and go from there.
[flagged]
IANAL, but it seems to me like the US could totally pass laws regulating Germans on German soil. It just couldn't enforce them in US courts (short of kidnapping Germans from German soil, or luring them to the US somehow). So it would be mostly pointless but not impossible.
Also, multiple countries have laws claiming universal jurisdiction. As I understand it, French laws against genocide denial claim to apply universally.
From your own discussion, it seems like "subject to the jurisdiction" should be understood as "can be judged in court". Diplomat is immune = can't be judged = not subject to jurisdiction. Immunity lifted = can be judged = subject to jurisdiction.
And also, depending on the crime (and acknowledging it is easier in some cases than others), countries have often agreed to prosecute the diplomat in their home country.
There's also the fact that Diplomatic Immunity is also a lot narrower than people think. Consular Officers are generally not covered by it, but then you get in to the de facto. Okay, NYPD sees consular plates and doesn't ticket a vehicle. Or tickets it but there's no enforcement, because "maybe it's the Ambassador's vehicle". And then a city, state or country is generally not going to make a scene that affects ambassadorial relations over a few hundred, or thousand, dollars of parking tickets.
[flagged]
No it really isn’t. Immigrants are clearly subject to the jurisdiction of the United States. As Wong Kim stated the only way not to be is if the government has given you permission to be here without being under jurisdiction like a diplomat or if you’re part of an invading force. Every other person in the us is expected to follow us laws. Just because they don’t doesn’t mean the us doesn’t have jurisdiction.
Were you so sure yesterday that the Court would decide the way it did? I'm sure that with a different set of justices, the result could've been different.
A "clear" law would likely not result in a 6:3 vote. There are enough cases in the Supreme Court that get 9:0, those can probably be called "clear".
Every court before the Supreme Court completely dismissed the attempt to kill the 14th amendment.
The Supreme Court is more and more packed with dishonest, racist Republican political hacks who try to twist words to overturn centuries of precedent.
> more and more packed with dishonest, racist Republican political hacks
I'm not sure I see where the "more and more" is coming from.
Out of the three justices nominated by Trump, two (Barrett and Kavanaugh) voted in favor of birth citizenship rights; does it qualify them as dishonest racist Republican political hacks? The other two who dissented, Thomas and Alito, have been serving for 35 and 20 years respectively, so it's hardly about packing.
Also, while 3 of the 4 newest justices were indeed appointed by a Republican president and 1 by a Democrat, before that, we got 2 new justices appointed by Obama (Sotomayor and Kagan). Unless the Congress actually increases the number of justices, I would say the current system works just as designed.
I was sure that Thomas would come up with some bullshit that is completely divorced from the text and history of the constitution. The other 3 doing the same is a disappointment but not a huge surprise.
[flagged]
The problem is that the other half of the country will probably have something to say about activist leftist justices with their agenda. This is just not the constructive way of arguing.
Disclaimer: I'm a legal immigrant myself, and of course I appreciate the today's ruling in favor of jus soli.
What is the activist leftist agenda, anyway? Civil rights for everyone? Universal healthcare? The right wing activist agenda seems both better organized and universally punitive. One wants to force the government to help me, the other to punish me. And yet only the leftists are a danger to our country?
Just for the record, I was responding to the (now flagged) comment which used some similar meaningless name calling towards the dissenting justices, to which I responded that this name calling game can be played by both sides.
Aaaaand, there it is. If I disagree with a ruling, or with the politics of the president that appointed a judge that made a ruling, then the rulings are “illegitimate”.
Yes, justices who take bribes or whose spouses help to organize a coup and an insurrection against the United States are not legitimate (Thomas, Alito). I'm more apt to listen to Gorsuch, even though he was in the dissent here, because he seems like a legitimate thoughtful jurist.
This is why American Samoans aren't citizens. They aren't subject to the full jurisdiction of the USA even though they are born in the United States.
Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.
----- re: below due to throttling---------
>American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.
Unless you falsely believe PR or AS are not part of the United States, you are just agreeing with me with extra words regarding the jurisdictional differences. The only option for denying birthright citizenship would be not born in United States, or not subject to jurisdiction thereof.
See this excellent prior comment[] on why the difference between PR and AS is jurisdiction and not whether it is part of the US.
>This seems entirely subjective.
I'm not going to do a formal academic study with you, it's plainly obvious as of late you see far more headlines on hackernews (a search shows a single HN topic on AS citizenship in the history of HN, but full page+ of search results on the birthright citizenship issue at hand) and elsewhere regarding the birthright citizenship issue at hand and far more rarely the fact American Samoans don't get it.
[] https://news.ycombinator.com/item?id=16700413
American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.
> Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.
This seems entirely subjective.
What a curiosity. It appears that other territories count by statute but for American Samoa the US national designation was created to give them similar rights to citizens but not voting or political office and in exchange the Samoans get some more self-determination than other territories. Cool!
Yes, lots of them don't want the 14th amendment. They have racist/ethnocentric land ownership laws that contradict the 14th amendment, the same one that creates birthright citizenship.
There are also allegedly some low quasi-government tribal positions in remote areas where women are effectively ineligible for office, though this one is less provable, it also would not be consistent with constitutional protections.
So many historical curiosities in this whole thing. Hawaii vs Puerto Rico, for instance, the latter having more people but not a state. I imagine we put up with the Samoan rules because we wanted the strategic base. My own citizenship rests on the fact that other territories have been included into birthright citizenship by statute.
Hawaii also bizarrely has 14th amendment violating land laws. There is a non-Indian-reservation, state owned land called the "Hawaiian Homelands" where only those of "the blood" of the right people can lease from. This violates the 14th amendment (SCOTUS has ruled Indians are exempted, but Hawaiians were determined in Rice v Cayetano to not be Indians) protections on equal protection under the law of different races to enjoyment of the public lands. No one has bothered to challenge it yet, but I expect especially under this SCOTUS the Homelands will get steamrolled if they do.
Hawaii's 14th and 15th amendment violating laws have slowly been getting flushed out. In ~2000 non "native" local voters could finally vote for all offices (RBG dissented, vouching for racist voting laws and against the 15th amendment), and IIRC not long after that it became possible for those with the wrong "blood" to hold all offices.
Fascinating. Another strategic base. It seems straightforwardly unconstitutional though I suppose it rests on this political vs racial classification. Though even that distinction has always felt dubious - being determined by ancestry rather than affiliation with a polity.
There was no such thing as an illegal immigrant in the US when the 14th Amendment was ratified.
I can believe that there is a lot of variance in maternal care and obstetrics in the US, but my wife and I had a pretty good experience. Documented here in what detail I could muster in those days: https://wiki.roshangeorge.dev/w/Pregnancy
Congrats!
But statistically America lags behind most other nations of similar development levels.
https://en.wikipedia.org/wiki/List_of_countries_by_maternal_...
Not to mention the lack of maternity leave or real worker protections. A family member was fired for taking off time during a pregnancy. Everyone's fine now, but she definitely had a rough patch.
A big part of this comes down to the lack of any real safety net here.
Wow, looking at the data on that page, it seems that people should go to Belarus if they want to have a baby.
Lukashenko did a good job apparently.
> our declining population
Our what?
The US's population is not declining. However, without immigration, our population growth would be very close to zero, and a yet lower rate of natural increase is locked in over the next couple of decades (more old people who will die than children).
And, I mean, it's obviously hard to predict beyond that, but it doesn't seem like anyone has any real clear answer to the trend of steadily decreasing TFR right now.
I suspect OP mean declining fertility rate. USA population is still increasing, but is slowing down, and will sharply drop if the fertility rate remains below replacement of ~2 children per woman.
I believe OP is referring to how immigration is the only known working solution to a decreasing population.
The US fertility rate is already 1.6 births per woman[0], and the population is only not decreasing because it still receives far more immigration than, say, Japan or South Korea.
[0]: https://www.cdc.gov/nchs/data/vsrr/vsrr038.pdf
This is not specific to the US. The US is on 147th position [1], right near a lot of European countries, and I don't think there are easy way to rollback the demographic transition.
[1]: https://en.wikipedia.org/wiki/List_of_countries_by_total_fer...
> is the only known working solution to a decreasing population.
Which it obviously isn't a working solution in any nature of the word. Using arbitrary countries to avoid common mousetraps.
Hypothetically all women in Estonia suddenly opt out of having children for a variety of reasons. They had previously had no problems like this and enjoyed a high fertility rate up until now. The government of Estonia sees this and starts mass immigrating Japanese men and women and are able to stabilize their population. Though, the Japanese women also normalize to the same state of opting out after just one generation.
The government claims that this too is an emergency and seeks another seemingly arbitrary population of humans to import.
The US Is Flirting With Its First-Ever Population Decline - https://news.ycombinator.com/item?id=46960624 - February 2026 (1008 comments)
The nuance is ~71% of the world’s population now lives in countries with birth rates below the replacement level needed to maintain population size. US working age population cohort has likely peaked. The future of the developed world is fighting over global skilled workers and young potential immigrants who would settle and start families in your jurisdiction.
Is the U.S. Labor Force Nearing Its Peak? - https://news.ycombinator.com/item?id=48726615 - June 2026
The Fertility Rate of Every Country in the World - https://www.visualcapitalist.com/fertility-rate-of-world-pop... - May 17th, 2026
U.S. Total Fertility Rate by State 2007 vs 2025 - https://old.reddit.com/r/dataisbeautiful/comments/1qt22ka/oc... - February 2026
The demographic future of humanity: facts and consequences [pdf] - https://news.ycombinator.com/item?id=44866621 - August 2025 (400 comments)
Our World In Data: Population tool: How will populations across the world change in the 21st century? - https://ourworldindata.org/population-simulation-tool
("demography is destiny")
The birth rate correlates inversely with female earnings growth and correspondingly with male earnings growth; or, more to the point, declining birth rates correlates with the advancement of feminism (including birth rates approaching and then reaching zero.)
This is an observation and not a judgement. Take what you will with this information.
Yes, because of the outdated assumption that women take virtually all responsibility for childcare, which is damaging not just to women, but to men and children too, combined with the it becoming more difficult for families to manage on a single income.
It is not just an American problem. It is slowly changing, at least here in the UK: I see a lot more dads taking kids around these days. I have still found people were surprised that my daughter lived with me rather than her mother after divorce though.
It makes sense to me. When women have more choices, they tend to put off having kids or they raise their standards - for their economic situation before kids, for partners, etc.
I think this is good; insofar as women have children, it should be because they want to, not because they're pushed into it.
I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.
Slightly fewer is good. A rate of around 1.8 kids per woman seems slow but it's an exponential so it's still quite significant.
Parts of the world have reached 1.0 kids per woman, which is a halving of the population per generation, which will put a massive strain on our resources
> which will put a massive strain on our resources
True, but again, scientists are saying that we're already putting massive strain on our ecological resources, and the strain is only increasing. Not just climate change, but ocean acidification, modification of biogeochemical balances, habitat destruction, etc.
We are at genuine risk of accidentally wrecking the ecosystems we depend on.
https://www.science.org/doi/10.1126/sciadv.adh2458
Population degrowth may do more harm than good. One billionaire with a private jet does more harm than thousands.
Can you expand on the harm of degrowth? I usually see it framed in terms of "our state retirement system is an obvious pyramid scheme that is about to collapse, we need to keep the scam going as long as we can". Are there better reasons to worry?
> I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.
If you believed this, would you be against sterilizing third world populations to limit the overall population growth ( given those are the populations which continue to grow in this environment ) ? If not sterilizing - what about propagandizing their younger population to not reproduce? Would that be a net-good?
If not, why not?
Their populations will follow the same pattern with increased education.
"X is bad" is obviously not a license to commit genocide to lessen the effects of X.
Easy, very affordable access to birth control (both information and actual physical stuff) for all humans is a very good idea.
> If you believed this, would you be against sterilizing third world populations to limit the overall population growth ( given those are the populations which continue to grow in this environment ) ?
...wow.
Is this a serious question?
This is true, although I think it correlates more strongly with female participation in the workforce than earnings directly. And it's not a criticism of feminism, just a consequence that we should be aware of.
A material component of reduction in the US fertility rate has been avoided teen (15-19 cohort) pregnancies. ~40% of pregnancies both in the US and internationally, annually, are unintended (per the Guttmacher Institute and the UN, respectively).
Teen birth rates hit another historical low in 2025, CDC says - https://www.npr.org/2026/04/09/nx-s1-5777587/teen-birth-rate... - April 9th, 2026
Additional citation:
There's No Mystery To America's Fertility Decline - https://ifstudies.org/blog/theres-no-mystery-to-americas-fer... - June 30th, 2026 (“The U.S. fertility decline is shaped by many forces, but the data point to one primary driver: the collapse of childbearing among women in their 20s.”)
> This is an observation and not a judgement. Take what you will with this information.
Why bring it up at all if you're not trying to say anything?
Birth rate correlates with home ownership rate for people aged 25-34. Wonder why that's been going down despite household earnings growth.
It also correlates with the economy being more and more hostile towards single income households, but let's just blame women knowing their own worth.
[dead]
[flagged]
That exception comes from the fact that, I'm guessing, no diplomat or their children have sued over it.
If they have, I'd love to see exactly where a prior SC decided that it's constitutional.
If you are an originalist, textualist, or even just standard jurisprudence believer then it's crystal clear what the 14th meant. The only reason for any question about it is because a large portion of people hate the fact that someone can get citizenship by being born here.
The dissents violate the supposed judicial theory of these justices. It shows naked partisanship.
So what does “subject to the jurisdiction” mean, from a textualist standpoint? The word “jurisdiction” in the law can have different meanings in different contexts. What does it mean here?
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Notice the "and" clause before the "subject to the jurisdiction". It means "everyone who is born in the united states and additionally everyone who is subject to a US jurisdiction". It's the clause which allows people born on US military bases to also be citizens of the US because that's a jurisdiction of the US. For example, Ted Cruz. It does not mean "Who are also"
And since this is a clause which additionally adds on people it's talking about, you could exclude it all together. "All persons born or naturalized in the United States ... are citizens of the United States".
No, the "and" functions the same way as in programming: "(born or naturalized in the U.S.) && (subject to the jurisdiction thereof)" requires both things to be true.
Not according to the supreme court any time this has come up.
That’s how the Supreme Court always interprets “and” in a list of conditions.
No it's not. And, as a prime example, this case which the supreme court does not and did not take that view. It's not even something the dissent argued. This is your own personal interpretation.
No, it’s the opposite. In this case, everyone agreed that the “and” means both conditions must hold. Everyone agrees that someone must be both (1) born in the US and (2) subject to the jurisdiction of the U.S.
Under your reading, the whole discussion about children of diplomats makes no sense. Under your reading, children of diplomats would automatically be U.S. citizens if born on U.S. soil. But everyone agrees that they’re not.
I mean, aren't diplomats immune to US laws? Literal "diplomatic immunity".
It makes sense to me to say that they do not fall under US laws and US jurisdiction, and their children likewise.
Diplomats have some immunities but are not categorically outside the jurisdiction of US laws. For example, they can be sued for “commercial activity” outside the scope of their duties. If a diplomat sells you fake Hermes bags passing them off as real, you can sue them under civil law.
> If only because this would open up people born here to having their citizenship retroactively revoked.
No, that's not how laws work
Applying laws retroactively is much less common than a "simple" rule change
This wouldn't really be applying laws retroactively, but deciding what the law has always meant. If the decided meaning is that children of illegal immigrants are not automatically citizens, that means they weren't automatically citizens beforehand. Thus there wouldn't really be anything to revoke, they just never were citizens in the first place.
The executive order that prompted this was only aimed at babies born after it went into effect, but I see no reason it would have to be that way.
Either laws work the way they're written and 4 members of the court disagree or they work the way the Supreme Court says they work and a worse ruling could threaten those citizens.
That was very much on the table, though not locked in.
That's not how we have traditionally thought citizenship works, but that is exactly what the Trump administration would've gone for next if the supreme court had ruled in their favor in this instance, thereby setting up the _next_ supreme court case.
> If anything we need to expand it to include anyone who gives birth in this country.
???
That's exactly what this ruling affirms; no expansion necessary: it already included "anyone who gives birth in this country".
They are arguing that the mothers should also get citizenship, in addition to the babies. That's definitely not what was affirmed.
Sorry but I wanted to see a 9-0... There are 3, 4, that are just ignoring the constitution from what I read/saw. It is only a matter of time. A win for now but that is for now.
What is “a matter of time” exactly? I doubt the court wants to revisit this again any time soon. And two of the dissenters are probably the likeliest justices to be replaced next.
it's on the tin of the 14th amendment
deal with it
Trump and his cronies were never going to win that battle. Like many things he does, it serves as a dog whistle to nationalists and allows him to paint anyone who opposes him as somehow un-American and an enemy of the ‘people’.
> Trump and his cronies were never going to win that battle.
He got dang close. He's only one justice replacement away from making it doable.
Gods, we are not as far from ripping up the Constitution as we'd like to think.
White nationalists, specifically, yeah. Colloquially known as Nazi wannabes.
Another bad decision that won't stand the test of time. The decision says more about the justices themselves than it does the decision. Voting the "right way" gets positive press attention, invites to the DC social circle, etc. Kavanaugh and Barrett are both attention seeking, weak willed individuals that Roberts plays like puppets. Personally, Trump should not have nominated either of them. And W's nomination and selection of Roberts over Scalia was appalling. Neither a textualist or an originalist could have ruled that way. And using the 14th Amendment as justification is historically disingenuous, as Clarence Thomas pointed out. Birth tourism will thrive.
I'm sorry, you are saying that using the highest law of the land to settle a legal question it directly addresses is historically disingenuous?
No, I'm saying the use of the 14th amendment to justify the majority opinion is disingenuous, as Thomas points out.
This particular Supreme Court is out of control. The Roberts court will (IMHO) go down in history in the same cateogry as the Taney court that gave us such decisions as Dred Scott. Supreme Court justices have always been political actors, not some high-minded academics that come down from their ivory tower to hand down missives every now and again (as some imagine). But this is a step beyond anything we've seen in a long time. Here are some highlights:
- 4 justices in this decision rejected the plain text reading of the Citizenship clause of the 14th Amendment, which would've overturned over a century of precedent;
- They invented the "Major Questions Doctrine" that basically allows the Supreme Court to overrule the will of the executive and legislative branches if they deem the decision sufficiently weighty. It was invented and used to block significant legislation under the Biden administration;
- They invented the History and Traditions Test under the Biden administration to overturn Roe v. Wade with the Dobbs decision. This was in spite of abortion being not only legal but essentially unregulated at the founding. Famously, Ben Franklin published an at-home recipe for abortion [1];
- They have lied about the facts of cases to push a particular decision. One of the more notable cases was Kennedy v. Bremerton School District that allowed school prayer. The lie? That the coach was "quietly" praying. This was not true and was documented, including photos to the contrary;
- There are now essentially zero limits on campaign spending by anyone after today's decisions on PAC and campaign coordination and of course Citizens United;
- They decided that independent agencies set up by Congress are unconstitutional despite almost a century of precedent because of the separation of powers but this doesn't apply to the Federal Reserve for some reason;
- They overturneed 40 years of precedent of Chevron deference, a case that Gorsuch should've recused himself from since he was essentially avenging his mother's sacking as EPA administrator under Reagan in a case that became Chevron. 40 years of Congress and 7 presidents of both parties have written and signed laws with Chevron deference in mind;
- They invented presidential immunity out of whole cloth in a country that was founded rejecting monarchs who were above the law. All the insider trading and pardon selling of the current administration is a direct and foreseeable result of that decision;
- They decided that Federal regulations could essentially be challenged at any time instead of the previous six-year rule (ie Corner Post). This essentially allows you to challenge a 100 year old rule by setting up a situation where you're "harmed";
- Roberts has almost singlehandedly gutted the Voting Rights Act over several decisions. Previously he got rid of federal preclearance because of a history states had with discrimination and voter suppression. They immediately went back to discrimination and voter suppression. And then this year the court basically allowed racially-discriminated redistricting under the guise that it was "partisan" not "racist" unless you can prove beyond a shadow of a doubt that it's racist;
The inability of this court to see obvious racism harkens back to a famous decision called Cruikshank that decided private individuals couldn't be punished for civil rights violations (notably, hate crimes) in a response to the Colfax massacre. Additionally, Cruikshank stated that the Bill of Rights didn't apply to state governments. This was slowly dismantled by various opinions over the next century.
There were other cases of the Redeemer era (notably Plessy v. Ferguson that legalized segregation) where the court was completely unable to see racism and went out of its way to limit any effort to combat it. We're in one of those eras now (IMHO).
All of this is incremental too. So today two cases were decided that essentially allowed states to ban trans athletes. The next step here is that trans athlets must be banned. Those cases are already percolating through lower courts and we'll see them in the next term most likely.
[1]: https://www.npr.org/2022/05/18/1099542962/abortion-ben-frank...
> All of this is incremental too. So today two cases were decided that essentially allowed states to ban trans athletes. The next step here is that trans athlets must be banned. Those cases are already percolating through lower courts and we'll see them in the next term most likely.
Actually what today's decision does is uphold Title IX rights for women and girls. Have you considered how this decision benefits female athletes?
Hard to address everything wrong you wrote, but in particular major questions doctrine protects us from presidential overreach. It has been key in stopping some of Trump’s foolish policies like tariffs. So that is hardly something we should be criticizing. Biden’s student loan forgiveness was similarly illegal executive overreach. These sorts of major things should be passed by congress.
Yes and no. The tariffs decision was fractured. There were really two prats. The first was that a statutory interpretation of IEEPA didn't give the President the power to tax. That authority lies with Congress. The MQD, to me at least, felt shoe-horned in tehre, kind of to justify its existence. But a statutory interpretation was sufficient to rebuke the President's authority so why the rest? It feels like the court is saying "see? we use this on Trump too. We're not biased".
[dead]
5-4 though, yikes! This shouldn't have even been close. With an impassioned 91 page dissent by Thomas. What a chode.
6-3 with Thomas, Alito & Gorsuch dissenting
This is kind of crazy. The text of the amendment is as literal as it gets. If this had failed it would have basically meant emptying Congress of all of its powers, because now the executive can just pick whatever interpretation they deem fit to their goals and run with it.
The rule of courts of law is to interpret the law, not to pick new creative meanings out of them. That's the role of the legislative power - otherwise what's stopping a court to reinterpret the meaning of any word in any legal text and allow the executive to rule by decree
"subject to the jurisdiction thereof" is not a clear statement.
It has been clear to every single human being reading it for hundreds of years. It was never up to debate until some person of this administration decided to go and question the meaning of "jurisdiction thereof". Also saying that a foreign-born person isn't subject to the jurisdiction of the country they find themselves in opens a massive can of worms - like, if the State doesn't have jurisdiction over foreign nationals, does it imply it's not legally allowed to arrest them for instance? Two can play the same game and find infinite loopholes even in the clearest of texts.
This goes beyond the value of citizenship by birth, which I'm neither in favour nor against (personally I think that just sanguinis is nonsensical, but so is to automatically give citizenship even to accidental passer-bys), it's all about whether the law still carries any "evident" meaning or whether it can be spun around depending on political necessity, which is bad
You didn't read the decision, it was up for debate in 1898 Wong Kim Ark. Every justice cites it. Wong Kim Ark gives 4 exceptions, and it isn't clear if those exceptions are comprehensive or not.
And you didn't read the majority's breakdown of `subject to the jurisdiction`'s historical meaning, otherwise you would know that the power to arrest is not the same concept.
You have made false claims and appears you are commenting on something you haven't read.
It’s as clear as it gets. If a random tourist commits a felony in Nevada you wouldn’t be questioning if he should be subject to Nevada’s jurisdiction.
5-4 on the Constitution. Kavanaugh's concurrence is that birthright citizenship is controlled by a law that Congress could change.
Kavanaugh ruled that Trump's EO wasn't unconstitutional, just contrary to federal law, and Congress could change the law there if they wanted. So, this makes it only 5-4 upholding the 14th amendment.
Which is gods-damned crazy. We are that close to overturning major civil rights.
This would also overturn our ability to arrest or deport non-citizen, no? If the argument is that they are not under the jurisdiction of the US government, we cannot legally arrest or prosecute them?
This would create chaos. Not to mention the tens of millions of citizens retroactively turned into stateless people!
These Calvinball judges would never let logic or consistency control their decisions to that extent.
Kavanaugh agrees with their reading of the 14th Amendment, though.
I should be unanimous, it's what the constitution says. If you don't like it you need to go through the amendment process.
>I should be unanimous, it's what the constitution says
Thats a tautology. “What the constitution says” is the thing in question.
Sure, but it leads to allowing for the possibility of interpreting "..the right to bear arms.." as "you are allowed to own the limbs of an Ursus arctos".
There's plenty in the US constitution which is vaguely worded, but you have to twist its words an awful lot to deny birthright citizenship.
Yes, and they can do that if they wanted to. The Supreme Court has the power to interpret the Constitution.
If we live in a world where words have no meaning and the definition of the Constitution can be interpreted to be literally anything depending on today's mood of the Supreme Court, why even bother writing a Constitution at all?
Why not get rid of the whole charade and just replace it with "whoever is appointed to the Supreme Court can make up any law as they feel like it"? It has the same meaning, but it's an awful lot clearer!
In fact, I think there's a term for a ruler with complete power who's there for life, something like an "absolute monarchy"?
And if they do enough of that, the other two branches might eventually be motivated to take action to counter it, like packing the courts or impeachments. Or telling SCOTUS to enforce it, as one president did.
The language couldn't be any clearer. The fact that it was questioned by people with a stated motive doesn't prove otherwise.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof ...
It's the second part that is in dispute and is not clear from the constitution's text what exactly it means and who it excludes. And yes, it has always excluded some people born within the borders, it is not a meaningless statement.
Well, no, but almost everyone inside US borders is subject to US laws. The exceptions are rare: people in foreign embassies (which is "foreign soil"), invading armies, and indigenous tribes on tribal land.
So if you follow the logic of this administration (which I don't) you can construe the illegal immigrants as an invasion. You would assume that if there was an invading army that got dispersed and the stragglers were hiding out for years after the state surrendered, like some Japanese soldiers after WW2, as the law enforcement was trying to find and remove them, the jurisdiction would not apply to them. Then, there could be a wartime state sponsored guerilla force. Then, allegedly state affiliated guerilla force infiltrating without an official conflict, like Russians in Donetsk in 2015. You have to draw a line somewhere, and in theory it could be pretty far either way
[flagged]
Oh, please, this is just blatant sanewashing.
Anyone who does not have an explicit exclusion is under the jurisdiction of US laws while on US soil. There's zero room for ambiguity unless you're coming in bad faith with politically motivated intent. Or are you seriously arguing there's an interpretation where illegal immigrants can commit any crime they want and can't be deported?
"subject to jurisdiction" does not mean "has to follow US law", that is territorial jurisdiction. Subject to jurisdiction means political jurisdiction and allegiance. That is why children born to members of Native American tribes (no matter the location of birth) were considered not subject to jurisdiction because the parents held allegiance to their tribe. Read United States v. Wong Kim Ark (1898).
I don't have an opinion on the legally correct answer, reading the full decision and dissents I'd give a slight edge to the majority.
Where does it say "jurisdiction" only refers to criminal law? Diplomats aren't excluded from being subject to civil laws for "commercial activities," and U.S. courts have jurisdiction over diplomats in suits pertaining to such activities.
This then seems like an argument that the children of diplomats should be US citizens, not an argument against naturalized birth for immigrants.
You are correct, but you will never sway the account you are replying to. Check their comment history.
They put a ton of effort into carrying water for conservative causes, even when there is no legal or logical backing for them. Just like the conservatives on the supreme court, they arrive at their desired results first and work backward to their justification.
> You are correct, but you will never sway the account you are replying to. Check their comment history.
Me above:
> I don't have an opinion on the legally correct answer, reading the full decision and dissents I'd give a slight edge to the majority.
I'm also British, so DGAF about outcomes.
I was not replying to nor referring to you.
> subject to the jurisdiction thereof
> A well regulated Militia
POV: you're about to hear the dumbest takes on the internet.
/s
Seriously though, were the founding fathers just master ragebaiters or what? More ink has been spilled over these two lines than any other in modern history.
In the past decade, the Constitution hasn’t slowed down the courts from creatively interpreting its various clauses. Their decisions have effectively amended many of those fundamental (and arguably inalienable) rights. Repeatedly.
This trivial reading of the constitution doesn't align with the reality. Two simple exceptions and a third not so simple are children of diplomats, children of invading armies, and native americans, who required an act of congress to give citizenship at birth.
The supreme Court ruled that South Carolina could not secede from the Union because the Constitution was merely a continuation of the agreements under the articles of confederation even though all states had to withdraw from the confederation to get into the union.
After that bit of logic, nothing the supreme Court decides would surprise me
[dead]
[flagged]
Idk if it's a "truly insane policy", but these are the rules of the game, and there is a procedure in place for changing the rules of the game.
Maybe so, but it isn't any of the Supreme Court's business. The 14th amendment is very clear. And yep, if you don't like that amendment, you're free to advocate for a new amendment that says something different.
Why do people act like the sky is suddenly falling when the Court just keeps things as they have been for two and a half centuries?
Maybe not that long, but at least as long as 90 years. Thomas cites examples of people being denied citizenship by the executive branch, but in almost all cases they did not sue and just accepted the denial.
one and a half, but sure
The 14th Amendment was largely codifying how things had been done before, plus insisting that, yes, it also applies to black people.
It wasn't up to the Supreme Court to correct. It is very plainly written in the constitution. Sure you can disagree, but it is up to elected representatives in Congress to amend, not Trump or the Supreme Court.
It's not a "policy" it's a constitutional right.
We can collect income tax from children of tourists who happen to be born in the US on vacation? Great!
Why is it insane?
Some woman who is 8 months pregnant comes to the US on a tourist visa and gives birth, then goes home with the baby. And then somehow that kid gets automatic US citizenship. And it applies even if the mother is not even legally allowed in the country. And you think that is not insane?
I don't think it's a "problem" that justifies taking the rights away from millions of Americans, no.
An 8 months pregnant woman would typically be denied entry during immigration processing. It doesn't seem like a big deal.
And that's assuming they can even board their flight. Airlines don't really like carrying extremely pregnant people because it's very risky.
> And you think that is not insane?
I think there would be a real problem with creating a class of people who live here their entire lives and aren't citizens. And then their children also live here and aren't citizens, and their grandchildren, etc.
It's not that birthright citizenship is ideal, but it prevents some other, bigger problems.
Why is it a problem to have US citizens being raised elsewhere? What bad thing is being caused by this?
It’s no skin off my back. Why should I give a shit?
I'm not him, but it creates some perverse incentives (like chinese billionaires who pay american surrogates to get implanted with dozens of their kids who get american citizenship).
https://fortune.com/article/chinese-billionaire-xu-bo-father... might be an outlier, but it's still weird, especially since the US is the only country that has this.
> especially since the US is the only country that has this
I see this said in real life as well, but it's just false. Plenty of countries in North America do this, including Canada.
https://en.wikipedia.org/wiki/Jus_soli#North_America
> Canada: Subsection 3(2) of the Citizenship Act states that Canadian citizenship by birth in Canada – including Canadian airspace and territorial waters – is granted to a child born in Canada even if neither parent was a Canadian citizen or permanent resident except if either parent was a diplomat, in service to a diplomat, or employed by an international agency of equal status to a diplomat. However, if neither parent was a diplomat, the nationality or immigration status of the parents does not matter.
> especially since the US is the only country that has this.
Except it's not.
https://www.pewresearch.org/short-reads/2026/03/31/us-style-...
It's a minority of countries that have rules like the US, but the US is not unique in this regard and there's no reason to keep repeating that lie.
You're saying billionaires are deliberately hanging American taxation of worldwide income around their kids necks?
This doesn't seem like a major problem. Immigration officials are already sensitive to birth-tourism and have had discretion to deny entry to obviously pregnant tourists even long before Trump.
Beyond that, if you're a billionaire you can just fast track a path to citizenship with a gold card.
Chinese billionaires are bound to do weird shit. I don't think we should amend our constitution to try to prevent that.
If the problem is 'birth tourism' and subsequent immigration visas for relatives of the US national child, changing the immigration policies seems like a better fix. Something like requiring a sponsoring citizen to reside in the US for a period before sponsorship. A citizen sponsoring a visa for a parent already has to be 21.
I'm not sure I can be that upset by people who want to immigrate, so they put a plan in motion that takes 21+ years to reach fruition. Although that does jump the line if you were eligible for F3 or F4 and your country of origin is Mexico... the priority date on those is currently 2001. [1]
I want more people in the US who can do long term planning, not less. :p
[1] https://travel.state.gov/content/travel/en/legal/visa-law0/v...
Truly insane that this is one of the most important founding aspects of the country. Without which most, if not all, the population wouldn't legally be allowed to live here. But yet, you don't understand that.
Most Americans conveniently forget the whole "nation of immigrants" thing once they are a few generations removed from the situation. Ladder kickers the lot of them.
I’m curious why you believe an amendment will help your situation.
This case (placed alongside many others in recent memory) demonstrates that no matter how clear and unequivocal a legal text you write, the textualists can find a way to overturn it.
So what specific legal text for this amendment of yours do you believe is immune from that degree of sophistry?
Yep. Could not be more disappointed in Gorsuch here. What is the point of writing things down in the Constitution if Justices are just going to vote for their preferred ideology and come up with embarrassingly thin justifications for whatever they think the document should say?
The number of times this happens in a year is negligible. It’s also quite difficult to do it safely: airlines won’t allow you to fly when heavily pregnant, and emergency deliveries are incredibly expensive due to the American healthcare system.
So you are suggesting abrogating rights based on an event that occurs with minuscule probability. Get a grip.
Agreed, especially when the “vacation” is actually birth tourism and the mother lied at the border.
How many folks "on the right" would be willing to use similar logic to nullify amendments they tend to like?
E.G.: "US guns are stolen and exported to foreign gangs. Therefore, the text of the 2nd Amendment is entirely null and void and should be 'corrected' by the Supreme Court"
It is not be the job of the Supreme Court to "correct" Constitutional amendments!
the fact that birth tourism is a thing means the demand for us citizenship is way higher than supply, to the point people are willing to put their whole life savings and break the law just to have a shot at getting it through a complicated family route.
its easy to fix by making legal immigration cheap and reliable. its also great for the economy, a lot of undocumented immigrants work illegally dont pay taxes because they cant work normal jobs without getting deported.
legalizing their stay means more tax revenue, less crime and labor violations, lower costs for business and i would also say its kind of morally wrong for a rich country to buy cheap stuff made by workers in mexico or china and give none of the profits back. closed borders are glboal injustice.
If you would like a carve out for this, that may well be reasonable policy, and you should feel free to advocate for an amendment to the current text.
[flagged]
Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't.
> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."
The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.
> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States
Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.
I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.
> Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
From today's decision:
> 2) In Wong Kim Ark, the Court held that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law, 169 U. S., at 688, excluding only those recognized as exempt “from the jurisdiction of this country”—the“children of ambassadors” and those born in the nations of Indian tribes, id., at 675, 681–683, 693.
That's a 1898 decision where the status of native tribes was not at issue, but was used as an example. But it's roughly contemporaneous with the 14th amendment and shows why an Indian Citizenship Act would be needed.
Edited to add: There's also Elk v Wilkins (1884) which specifically held that Indians born on reservations did not get automatic citizenship.
Yes, but my point is that Wong Kim Ark is internally inconsistent. It doesn’t explain how the exclusion of Indians follows from its idea of what “subject to the jurisdiction” means.
Let me put it this way. What is a definition of “subject to the jurisdiction” that excludes Indians, other than saying “well, Indians aren’t included?” It can’t be “people who aren’t subject to US laws,” because Indians have been subject to U.S. laws since 1817, even on tribal lands.
I added it late, but the real case to look at for Indians is Elk v Willkins...
The opinion in that case seems to be that Indian nations are sovereign and so an Indian born within an Indian nation is a citizen of that nation and not the US. This doesn't seem to be incompatible with the 14th Ammendment which mentions representation apportioned by whole persons, excluding Indians not taxed. US Citizenship of tribal members was also part of treaties between the US and the tribes.
That situation doesn't arise other than with Indians, because the US does not enter into treaties with any other groups formed within the boundaries of the US. Although the 1871 Indian Appropriation Act prohibited new treaties with Indian nations.
> What is a definition of “subject to the jurisdiction” that excludes Indians, other than saying “well, Indians aren’t included?”
This seems fairly simple; we made treaties with Native American tribes, up until 1871, and Article I says things like "excluding Indians" and "regulate Commerce with foreign nations and among the several states, and with the Indian tribes".
They clearly enjoy special (so to speak) status from day one.
Here's the full text of the relevant section:
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The dissents are worthless, like most of the opinions from Thomas and the other conservative "justices". None of this wording is tricky unless you are specifically trying to find ways to deny rights to american citizens based on their ethnic origin.
> whether the child is “subject to the jurisdiction” of the U.S. at birth
If I strangle said child in the maternity ward, do you think the US will go "whoops, no jurisdiction!"
that would be jurisdiction on you committing murder, which they do have.
So reversing the scenario - an illegal immigrant kills me - can't be prosecuted? Because they're not under US jurisdiction?
That question isn't really meaningful, because commission of a crime is a basis for jurisdiction.
Generally if party A commits a crime against party B jurisdiction can be claimed by (1) the country where the crime occurred, (2) the country A is a citizen of, and (3) the country B is a citizen of.
> jurisdiction can be claimed by (1) the country where the crime occurred
Or the birth, as it were?
>Or the birth, as it were?
Not always. The people of American Samoa do not have birthright citizenship in the United States. They are clearly under the jurisdiction of the US.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
They are not born/naturalized in the United States, but one of its territories. "Subject to the jurisdiction" is satisfied, but the other part is not.
(We can grant citizenship to territories by statute, like Puerto Rico, but the Constitution does not mandate it. American Samoa, thus far, doesn't seem to want it.)
The history of this is all a bit gross. https://en.wikipedia.org/wiki/Insular_Cases
>They are not born/naturalized in the United States
They are clearly born in the United States, the territories are part of the United States. The United States is the sovereign state of American Samoa.
The point you're making is exactly the point I was making. We define by statue and court precedent which territories are magically included in this. American Samoa was included and considered in the United States and "subject to the jurisdiction" as recently as 2019: https://www.courthousenews.com/federal-judge-rules-american-...
All it may take is for congress to pass a change to 8 U.S. Code § 1401 to deny birthright citizenship to illegal aliens. Trump's EO ran afoul of this according to the dissent.
The United States is made up of… states. The United States also posesses some territories, which are not states. This is why Puerto Ricans got their citizenship by statue in 1917, rather than via the Fourteenth Amendment.
> American Samoa was included and considered in the United States and "subject to the jurisdiction" as recently as 2019…
No, it wasn't. That case was overturned on appeal. It remains under US jurisdiction; its people remain nationals, not citizens.
https://en.wikipedia.org/wiki/Fitisemanu_v._United_States
> The United States appealed and in a 2–1 decision the United States Court of Appeals for the Tenth Circuit reversed the district court decision with Judge Bacharach dissenting. The court cited one of the Insular Cases, Downes v. Bidwell, as a Supreme Court Precedent not to affirm the lower court's decision. The Court of Appeals also denied an en banc hearing, over the dissent of Judges Bacharach and Moritz.
> A petition for writ of certiorari was filed in the United States Supreme Court on April 27 and was discussed in their conference on October 14, 2022 and decided to deny certiorari on October 17, 2022.
https://en.wikipedia.org/wiki/Downes_v._Bidwell
> The decision narrowly held that the Constitution does not necessarily apply to territories. Instead, the US Congress has jurisdiction to create law within territories in certain circumstances, particularly those dealing with revenue, which would not be allowed by the Constitution for US states.
>The United States is made up of… states.
And territories, minor outlying islands, and a federal district.
>No, it wasn't.
Yes it was, the opinion of the court held that those born in American Samoa were born in the United States.:
>“Plaintiffs, having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment,” Waddoups added.
It was eventually overturned, but the fact is a court's decision included American Samoa as "in the United States."
The point is courts can decide what is considered "under the jurisdiction there of" much as there can decide what is considered "in the United States." All it takes is another case to completely throw out the Insular Cases.
>In United States v. Vaello Madero, No. 20-303, 596 U.S. ___ (2022), Justice Neil Gorsuch concurred and noted that "The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law."[32] Gorsuch argues that the Court must find a case to overrule the Insular Cases which were "based on racist assumptions and imperial ambitions."
If I get to cite losing cases, I can win any argument of this nature.
You don't get it: the case winning/losing is irrelevant to the argument being made.
If the actual final outcome doesn't matter, maybe your argument sucks.
Or maybe you're incapable of understanding why it doesn't matter.
Downes v. Bidwell (1901) created a difference between 'incorporated territory' and 'unincorporated territory'
The Second Organic Act of 1912 explicitly extends the constitution (and the 14th amendment) to the Alaksa territory. Supreme court cases have established that the 14th amendment doesn't apply to unincorporated territories.
Unless you were snuffed out on federal land, I think state law would reign in this situation, and the states can have jurisdiction over you just by being on their territory. In fact, I seem to remember a time when you could be a citizen of a state, but not of the United States, to further complicate matters.
> the states can have jurisdiction over you just by being on their territory
Go on, take that theory just the tiniest little step further logically.
> I seem to remember a time when you could be a citizen of a state, but not of the United States...
When was that?
> Go on, take that theory just the tiniest little step further logically.
So you take that step, is that illegal immigrant a citizen now because they killed someone?
No. But they are certainly under our jurisdiction. They will be arrested, tried, and convicted accordingly.
If pregnant, their child, having been born in the US and under its jurisdiction, will be a citizen when born in prison.
They will not be sent home PNG like an ambassador.
[dead]
Not sure if his status as sex offender is relevant in this discussion but it’s funny to see the stereotype in action.
>to see the stereotype in action.
Which stereotype, the "leftists are child groomers" one? He's clearly a left-wing commenter...
you are arguing with people who are being academic to a fault, unable to see how they've been co-opted. that said, i appreciate the commentary from real lawyers - i LIKE academic stuff even if the real, hard embodied politics of it all is straightforward.
jurisdiction is not dependent just on the person. it is a geographical encapsulation. all people within this boundary are subject to the jurisdiction.
That's not true. Even the liberal interpretation of this recognizes that some people within the geographic boundary are not subject to the jurisdiction. Diplomats and invading armies, for example.
I don't think the language is ambiguous at all, and I consider it shocking and beneath the dignity of the Court that this was not a unanimous decision (and that the case was taken at all).
What does “subject to the jurisdiction” mean? How can one be in the US and not subject to the jurisdiction?
What do you think the answers to these questions are? Are you genuinely unsure?
I agree that it's worth reading the original source and encourage all to do so. My takeaway however was that the majority had a much stronger body of evidence than the dissenters.
> Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way.
This is a summary of Thomas’ dissent; the majority opinion is based on more than just “English common law.” Even Thomas acknowledged this.
It was not tricky. The arguments against are fundamentally dishonest and so is your representation otherwise.
[dead]
[dead]
[flagged]
> one of the few in the world that allows this
1 out of every 5 countries, 28% of the world's land area isn't "few" in my book.
Then you can the work to get Congress to ratify an amendment. Donate, campaign, maybe even run for office yourself! We still do things democratically, not by executive order. Authoritarians will always offer the easy way out.
Both sides of each case should really start doing this after any ruling. As we've seen dozens and dozens of times, there is nothing that says the Supreme Court will have the same interpretation of the same less-than-crystal-clear words 10 years from now. Their decisions in the meantime are also not really democratic yet trend consistently towards their (albeit, very well argued versions of) individual political views instead. It's a problem of the current court as much as it was a problem of the court 20, 40, or 60 years ago.
> one of the few in the world that allows this
Over 30 countries have unconditional birthright citizenship.
It's not that rare. Nearly every country in the Western Hemisphere does it this way.
We want the best talent to want to come here!
[dead]
[flagged]
> The problem with this is that many people come here to only have children (anchor children) and abuse the system.
Racist lie, provide proof that this is an actual significant issue.
[flagged]
While maybe a small scale issue, the solution isn’t an authoritative order that tries to rewrite the U.S. Constitution and bypass democracy.
Perhaps, but this is definitely an issue/problem and the US should model it's policy after the EU on this specific issue.
Do you have much evidence that this is a real problem on the scale of the US population? I would imagine a tiny percentage of citizens were anchor children (i.e. people whose parents came to the US purely to give birth to them, then left again)
[flagged]
Sources for your numbers? I'm curious to learn more about how widespread this issue is. I personally have heard of 2-3 cases in my small social circle, so to me it feels more common. But I am having trouble finding actual numbers.
30k-60k out of >3m births doesn’t seem like a massive problem to me. Maybe the energy spent fighting this could be better spent elsewhere.
No perhaps. A change to the U.S. Constitution requires a democratic process, not achievable by authoritarian executive order.
This is neither science/tech nor VC related, why are we becoming the dumping ground for political news?
Half the people in Silicon Valley are immigrants - or more. Likely very relevant.