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PaperclipPerfector  3mo ago (text post)   39165 thread views

Culture War Roundup for the week of February 24, 2025

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A few weeks ago, Trump signed an executive order attempting to end birthright citizenship; it is currently working its way through the courts. Some users here claimed that the 14th amendment "obviously" implies birthright citizenship. I disagree, but wanted to take the time for a long from explanation. First, the relevant text:

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.

The question, now, is who is subject to jurisdiction. It cant just be everyone, because then why would they write it, and besides there are known exceptions made on this basis, notably foreign diplomats, invading armies, and (formerly) indians. Of these, I want to look at invading armies in particular. Why are they not subject to jurisdiction?

The common answer seems to be that, since they control the territory, they have the jurisdiction rather than the US. But does the US accept that it doesnt have jurisdiction? No. After the invader is expelled, they likely have the right collect the outstanding tax from the time they were unable to collect. Crimes under US law that occured during that time can also be prosecuted (though it may be an extenuating circumstance where relevant).

Now, you might try to solve this by requiring defacto jurisdiction. The problem is that you then have to explain how the defacto failure to immediately reoccupy territory is different from the defacto failure to immediately apprehend any criminal whatsoever. This sounds quite weird and not like something they would have meant, and also every illegal immigrant is a fugitive criminal, because he violates immigration law. And it also seems that the invasion exception applies to the invaders, rather than every non-citizen in the territory.

A more promising approach might be to notice that the way the government treats illegal immigrants is a lot like how it treats enemy soldiers: Where safely possible, they are caught alive. They can then be prosecuted for any crimes committed in the US (unless responsibility goes up the command chain), and are eventually sent back home (when there is no danger that this will help the enemy anymore). This suggests that jurisdiction applies to them in a similar way, and reasoning for an exemption is likely to transfer. Indeed, one of the simplest descriptions of an invasion is "People coming into the country that the government doesnt want to". Subjecting people to jurisdiction requires activity of the government, and it seems quite sensible that someone refused entry is also refused jurisdiction. I think thats more plausible than such a refusal requiring jurisdiction, but even if you disagree, its at least a binary choice rather than having to find some complicated new distinction.

Is this a motivated reading? While it has some complexity to it, I dont see a way to accommodate the invasion exception without that. I think this is the most plausible way to resolve that. A reading which doesnt make the invasion exception may also be reasonable, depending on judicial philosophy, but if thats what the people calling it "obvious" meant, they should indicate that theyre defending something other than the status quo. In conclusion, I think children of illegal immigrants do not necessarily have citizenship, those of temporary residents (also targeted in the EO) do.

...is what I would have written, if I didnt remember that the US actually claims universal jurisdiction for some of its laws. This doesnt make everyone a US citizen, because there is the territory requirement in the text, but it potentially outflanks the exceptions, and under my above reading all of them would be invalid. Admittedly I dont think SCOTUS will take this line seriously - theyre too practical for that, and if they just really want to keep children of illegals theres plenty of bad arguments to use that sound more normal. And actually, theres a wrinkle in the wrinkle, because one of the laws with universal jurisdiction was passed before the 14th ammendment, and so actually maybe you should make the traditional exceptions work even under universal jurisdiction (depending on judicial philosophy). I think the universal reading of that law is bullshit, but it has precedent.

EDIT: Since noone seems to take into account the last paragraph: My final conclusion is that all the exceptions are gone.

To raise a question for the "Pro-Birthright Citizenship" camp: Why aren't the children of lower-ranked diplomatic personnel covered?

The standard answer would be that diplomatic immunity means that a person isn't subject to US law. That problem with this is that most consulate employees do NOT get diplomatic immunity.

The Canadian Ambassador (and his immediate family) has diplomatic immunity; he can start bar fights safe in the knowledge that he's immune to prosecution, not matter how blatantly he breaks the rules. But the Canadian Ambassador is just one guy. His staff DO NOT get personal immunity; they only get immunity when it comes to official acts. And their spouses don't even get that protection.

So, let's imagine that a Canadian Consulate has a computer guy to help the Consulate with Tech Support. This computer guy is married and his wife (also a Canadian Citizen) lives with him in the US. They have a child in the US hospital. This child gets no diplomatic immunity and is born to a woman who has no diplomatic immunity and a father who's mostly not entitled to diplomatic immunity except as it relates to his work.

(Caveat: It's very probable that US Prosecutors would choose not to prosecute minor crimes, and would only move forward with major crimes given the approval of the Canadian Government, but if we're talking about constitutional requirements 'Probably would choose not to do that' != 'Does not have the authority to do that.')

There are all kinds of reasons why the child wouldn't, in practice, get a US passport. But if the claim is that the US government is required to treat the children of all persons subject to the US jurisdiction as US Citizens, then I'd expect that the large majority of the children of consulate staff would be US Citizens, which seems to be obviously not the intent of the text.

My understanding is the children of lower ranked diplomatic personnel are covered. Their children do get birthright citizenship. Here is a CIS article from 2024 complaining about the practice:

The differences between OFM’s blue list and white list are rooted in international practices and law, codified in the Vienna conventions on diplomatic and consular protections.

Under the Vienna conventions, “blue-list” diplomats, as direct representatives of their foreign governments, receive the highest privileges and immunities in the host country; in particular, they are shielded from arrest. “White-list” administrative staff and consular officials also enjoy considerable privileges and immunities, but have fewer arrest protections.

So, when it comes to matters of diplomat babies born in our country, State Department applies an expansive—and unjustified—interpretation of the 14th Amendment’s jus soli citizenship clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Thus, according to the State Department, blue-list babies, born in the U.S. to parents with greater privilege and immunities are not “subject to the jurisdiction,” of this country and therefore not automatically American citizens. But somehow white-list offspring, with comparatively less arrest protection, are “subject to the jurisdiction” and the babies are entitled to a U.S. passport.

Maybe it shouldn't work that way, the article I linked certainly argues in that direction, but it seems current practice is otherwise.

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