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ControlsFreak


				

				

				

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ControlsFreak


								

								

								
								
								

								
							
					
 
				


				

				
				
				

				

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				Culture War Roundup for the week of June 29, 2026
			
		

	

	

	

		
			

			

				

			

		

			


				

					
Kavanaugh wrote:




The only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians—is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign. An exception for those born in the United States to foreign parents unlawfully or temporarily in the country is consistent with that principle and therefore with the Fourteenth Amendment.




and




And most starkly, plaintiffs cannot convincingly explain their view that the children of tribal American Indians are not constitutionally entitled to birthright citizenship, while the children of foreign citizens unlawfully or temporarily in the country are constitutionally entitled to birthright citizenship.




Among other things, Thomas wrote:




Like temporary visitors, tribal Indians were not completely subject to the jurisdiction of the United States. The United States did not have the right to impose personal taxes on them—hence, “Indians not taxed.” Their personal affairs remained subject to the jurisdiction of their tribal nation. “The right of self-government” was “secured to each tribe, with jurisdiction over all persons and property within its limits, subject to certain exceptions, founded on principles somewhat analogous to the international laws among civilized nations.” The United States did not interfere “with the disposition, or descent, or tenure of their property, as between themselves,” or “prove their wills,” or subject them to the “laws of marriage and divorce,” or subject them to the “laws of the United States, against high treason.” Tribal Indians did not owe the United States primary allegiance and did not receive from it complete protection.




and




But, the Court cannot explain why tribal Indians were not “subject to the jurisdiction” of the United States if they happened to be born outside Indian lands while foreign temporary visitors were. It is true that tribal Indians belonged to “alien and sovereign” nations and that the United States’ relations with them implicated “intersovereign concerns.” Ante, at 12. But, temporarily visiting foreigners also belong to “alien and sovereign” nations, and the United States’ relations with them also implicate “intersovereign concerns.” It is difficult to understand why China, for example, would be less alien or less sovereign than the Cherokee Nations. It is also difficult to understand why tribal Indians would be less entitled to American citizenship if born on non-Indian land within the United States than children of birth tourists who immediately returned to China.




Alito wrote:




the Court cannot explain why the Fourteenth Amendment did not confer citizenship on children born in the United States to tribal Indians. As explained, federal law governed those children and their parents to the extent the Federal Government wished. If the Court were right that the Citizenship Clause applies to anyone who is born here and is subject to our laws, then the Fourteenth Amendment would have conferred citizenship on all tribal Indians. But the exception for tribal Indians was well-established at the time and remained until Congress eliminated it by statute.




				

				

						

							

								
							

						


						
					

				
			


			
			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of June 29, 2026
			
		

	

	

	

		
			

			

				

			

		

			


				

					


In fact, overturning it would have been legislation from the bench almost as bad as Roe.




I mean, that's not really what "legislation from the bench" means? Take, for example, Kavanaugh's position that 14A doesn't require it either way, but Congress can legislate either way, wouldn't really be "legislation from the bench". It would instead be giving room for legislation. Typically, "legislation from the bench" means that the Court rules in a way that precludes legislation from making the decision. Somewhat ironically, that's kind of what the Court actually did here. By analog, Roe was legislation from the bench, where the Court decided the question in a way that didn't allow for any legislative choice, whereas Dobbs is probably not legislation from the bench, as it's saying that the legislation rests with the legislatures.


Of course, just because something is "legislation from the bench" doesn't mean that it's wrong; the Constitution may really, actually, say the thing.


				

				

						

							

								
							

						


						
					

				
			


			
			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of June 29, 2026
			
		

	

	

	

		
			

			

				

			

		

			


				

					
In my effortpost, I referred to an old old comment of mine, where I said:




my highest aspirations for most administrations these days is that they give us interesting cases that clear up confusing Constitutional issues... and I think there’s a decent chance the Roberts Court can still do that on some of these matters.




After having (mostly) read the opinions, if I'm judging by this metric, I have to say that Roberts' majority opinion is a fail. To be clear, I am not saying that the opinion is wrong. On the contrary, as the saying goes, the Supreme Court is not final because they're right; they're right because they're final. So, yeah, they're final, and so they're right. But I do not think the majority opinion cleared up the confusion.


I don't think he really cleared up what was going on in WKA. Primarily because for the critical step, he just did what the Court did in WKA - turn to Schooner (DRINK!). One of the primary areas of interest was, in turn, what Schooner did and how it should be understood. On this point, Roberts was somehow even less informative than WKA. He didn't even quote the entire critical passage! Didn't even get to the part about the "implied license" under which people enter the country. As I said in the effortpost, the Court wants the Full Schooner, but it doesn't want to engage with it. It doesn't even touch on the full panoply of hypos that Schooner touched on.


The second major confusing question is how anything works with Indians. Indian law is confusing, yo. He could have at least said, "Indians are weird, yo." But he didn't even do that. I think this is basically the one, crucial sentence:




Indians born under those dominions, he concluded, were not “citizens or subjects of the United States,” but members of “alien and sovereign tribes.” [citing Kent]




Like, what counts as a "dominion"? What is it to be "under those dominions"? Does Roberts think it matters whether an Indian woman, carrying the child of an Indian man, wandered off the reservation and gave birth in non-tribal US territory? How does any of this work?


The biggest, most major sources of confusion are pretty much just swept under the rug.


I don't know that I buy the dissents, either. I at least felt like I learned some things from Thomas that I hadn't seen in the briefs/cases. He gave the most plausible explanation for what could have been the motivating reasoning behind the shift in language from the 1866 CRA and 14A, but I'm not qualified to assess the truth thereof. He really shines in making it visceral how confusing it is to read WKA. And I hadn't quite noticed in reading Fuller's WKA dissent that it could be read as agreeing with the majority that the child of a domiciled alien would be a citizen, but dissenting instead on the grounds that WKA, specifically, was not/could not be domiciled. I need to find time to go back and read it again; as of right now, I don't know whether I think this is a plausible reading or not.


I'd probably want to stew with it all and (re-)read some of the citations before saying who I find ultimately more persuasive. But I'm not sure either of them are "right" (as in, not the regular sense of right; ya know what? we've already covered this). That is, I'm not sure either view really provides a clear, convincing, comprehensive theory that fits all the pieces together and makes it less of an atrocious mess.


So I feel a bit better about my conclusion that the topic is an atrocious mess. I can take comfort that at least Kavanaugh agrees with me that the Constitutional question is "not straightforward". I'd like to also hope that Gorsuch was thinking something similar when, in his brief separate writing, he said, in a somewhat measured fashion, that he thought Thomas' view "better accords with the Clause's original public meaning". I'd like to remember his statement in oral arguments ("It's a mess"), and view him as agreeing with me that it's a mess, and then saying something along the lines of, "If the two best explanations for what's going on are Roberts' opinion or Thomas', I guess, if I have to, I'll take Thomas'." I'm not sure if that's where I'll end up after stewing with it longer, but it seems plausible.


Of course, the Constitutional issue being a 5-4 I think also supports my prior opinion that it is much messier than most people thought going into it.


Oh, and also of course, I feel a bit vindicated in my more recent prediction (in the effortpost here, rather than in my comment years ago at the old old old place) that we were likely not going to get a real, detailed, coherent opinion that cleared stuff up.


				

				

						

							

								
							

						


						
					

				
			


			
			
			
				

			
		

	






		

			
			
				Culture War Roundup for the week of June 29, 2026
			
		

	

	

	

		
			

			

				

			

		

			


				

					


Technically Kavanaugh concurs with the ruling because he believes Congress' codification effects this rule, rather than the 14th amendment requiring it.




I'm still digesting it all, but I read Kavanaugh as stronger than that. I think he affirmatively believes that 14A would allow the exact same rule as the EO, but only if it was done by statute. That is, on the 14A Constitutional question, the vote was 5-4.