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PaperclipPerfector  1mo ago (text post)   35100 thread views

Culture War Roundup for the week of March 3, 2025

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Reasoning backward and forward: Birthright citizenship and the horseshoe

Appellate litigator (and former Scalia clerk) Adam Unikowsky explains why expansive jus soli birthright citizenship is the "correct" interpretation of the constitution... and also the plausibility/challenge of reasoning backwards to expanding exceptions:

Well, I am happy to entertain living-constitution arguments. Some of my best friends are living-constitutionalists! But I wouldn’t choose this case to get behind living-constitutionalism. Imagine telling someone: “You were born here. You went to school here. You’ve never been to China. You don’t know anyone in China. You don’t speak Chinese. The Fourteenth Amendment’s text says that you’re a U.S. citizen. The Supreme Court held in 1898 that you’re a U.S. citizen. But too bad, you’re being deported to China because the Constitution has undergone an epigenetic shift, like the Moirans in Seveneves.” I just don’t think it’s a very attractive argument.

...

Most judges profess to use the balls-and-strikes approach. One notable exception was Richard Posner, who described his method of judging this way:

My approach in judging a case is therefore not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem or problems presented by the case. Once having found what I think is the sensible solution I ask whether it’s blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it’s not blocked (usually it’s not—usually it can be got around by hook or by crook), I say fine—let’s go with the commonsense solution.

Few judges are as open about reasoning backward as Judge Posner. But any lawyer will tell you that it sometimes happens behind the scenes.

Judge Posner applies that form of reasoning in a concurring opinion opposing birthright citizenship. He first opines that there’s too much birth tourism, and then says: “We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. … A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.” In other words, he starts from the premise that birthright citizenship is bad, and then optimistically conjectures that there must be some way to get it done legally.

He concludes with a section on legal horseshoe theory. I thought it was a good post - I didn't know just how clear Wong Kim Ark was on the breadth of jus soli birthright citizenship, prior to reading this. I previously wondered if Congress could statutorily define the aliens whose children would be citizens, since a statute had extended birthright citizenship to all American Indians, but I'm now convinced it would take a constitutional amendment. (Unless five SCOTUS justices are motivated to do some pretty extreme mental gymnastics and/or be openly activist.)

Why can't the whole anchor baby issue just be solved by saying that the existence of citizen children will not be considered as a factor in immigration enforcement against the parents? If the children are US citizens but do not have a guardian who can legally exercise their role in the US, they should just be treated the same way that the underage children of someone who is sent to prison would be, i.e. placed in a foster home. This seems way more legally watertight.

Because this leads to photos of children being separated from their parents by law enforcement, which makes a majority of voters sufficiently sad/uncomfortable to vote against it.

Yep.

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