site banner
PaperclipPerfector  1d ago (text post)   6999 thread views

Culture War Roundup for the week of March 23, 2026

This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.

Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.

We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:

  • Shaming.

  • Attempting to 'build consensus' or enforce ideological conformity.

  • Making sweeping generalizations to vilify a group you dislike.

  • Recruiting for a cause.

  • Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.

In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:

  • Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.

  • Be as precise and charitable as you can. Don't paraphrase unflatteringly.

  • Don't imply that someone said something they did not say, even if you think it follows from what they said.

  • Write like everyone is reading and you want them to be included in the discussion.

On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.

3
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

Akhil and Vikram Amar, along with their student, Samarth Desai, have been posting a series of articles on SCOTUSBlog about the birthright citizenship case. I haven't really covered them. They sort of trickled in as I was working on my chonker post on the topic. I'm not going to go back and pick at every one of them. They have pretty clear difficulties for their arguments once you've just read through all the case law. They do, indeed, cite many of the relevant precedents. I would even give them credit for not really getting distracted by the smattering of random state court opinions that have been mined for dicta.

Yesterday, they posted another installment, with the primary argument being that since "parents" (or variants) are not to be found anywhere in the text of 14A, one simply cannot consider them in any way. Of course, this runs into the typical difficulties if you've read the case history. I won't go through this post in detail either. Suffice to say, this one doesn't talk at all about Indians; they address that case in other posts, and, well, it leaves something to be desired, for sure. But I guess I'll just let their glaring lack of addressing it here speak for itself.

What stuck out to me was this section, addressing the other categories that pose difficulties for their position:

What about the traditional “exceptions” to the general rule? (These exceptions involve children born to foreign diplomats, children born on quasi-sovereign Indian land, children born behind the lines of an occupying enemy army, and children born aboard foreign-flagged warships.) At pages 3 to 4 of his reply brief, the solicitor general claims that the Trump v. Barbara respondents (represented by the ACLU) “recognize” multiple “exceptions” to birthright citizenship “based on parental status.” We doubt that’s the best reading of the ACLU’s brief, but even if it is, it’s surely not the best reading of the Constitution. To win the case, the solicitor general needs to outrun not just the respondents, or even the doctrine, but the document itself. And as we’ve explained in prior writings, the soil-and-flag touchstones cleanly explain both the scope and the limits of the Constitution’s grand birthright-citizenship guarantee. The so-called exceptions are really just applications of the originalist “under the flag” principle.

True, one – and only one – of the birthright-citizenship rule’s main exceptions, exempting an American-born child of a foreign diplomat, is parent-based. (The others, as Akhil’s amicus brief carefully explains, are based entirely on birth-place, and in no way whatsoever on birth-parentage.) But even the tiny diplomat-child wrinkle, properly conceptualized, is an exception that illustrates and confirms the under-the-flag rule. A legal “fiction” of “extraterritoriality” treated diplomats and their children as if they were floating human chunks of foreign soil, with partial or total diplomatic immunity from America’s laws. Indeed, diplomats and their broods were seen as personal extensions of the foreign sovereign.

To see this point most vividly, imagine that Queen Victoria herself visited America in 1869 and gave birth to a child on American soil. Were America to claim this heir to the British throne as an American citizen, war between America and Britain might well have ensued. The 14th Amendment, properly read, viewed neither Victoria nor her hypothetical baby as ever being squarely “under the American flag.” The monarch, and her brood, and her diplomats, and their broods, were always in legal contemplation under the British flag, wherever they went, rather like British warships in American waters. But none of this extraterritoriality logic applied to American-born babies of foreign sojourners generally.

I didn't want to spend the time to copy over their links, so click through if you want to read them. What stood out to me was that their only case link was to, wait for it... Schooner! Of course they're appealing to the framework and theory of Schooner! That's the case that elucidated a framework and theory for how to think about the principles of sovereignty, allegiance, license, and jurisdiction. They even pull what is perhaps one of the most confusing examples from the case - when a sovereign, himself/herself, were to enter the US.

Of course, they don't talk about Schooner's discussion about the case in which a foreign sovereign entered the US without the consent of the US. Nor do they actually work through the rest of the framework and theory that Schooner put in place. They want the Full Schooner, but they don't want to take it seriously! They don't want to actually read through the case and engage with how the opinion says the framework applies to various specific situations. They just want to pull very specific pieces and then form their own, different, theory to wrap around it. It's just so glaring now, every time I see someone write on this topic. I can't unsee it.

I guess I don't understand why Plyler v. Doe doesn't settle the issue. Quoting subsection (a) of the holding from the syllabus:

(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 457 U. S. 210-216.

The equal protection clause is, itself, the final clause in the first section of the 14th amendment (emphasis added):

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.

Am I supposed to be reading into this a difference between "subject to" and "within" a state's jurisdiction? Does "jurisdiction" mean something different between two clauses of the same paragraph of the 14th amendment?

It solves the issue if you want it to solve the issue, but that sidesteps the very important Indian exception. The Indian exception is really the tricky part for those who want a broad reading of birthright citizenship because it creates absurd results when applied. By way of example:

2 Indian Parents of the Cherokee Tribe, one set lives in northern North Dakota, one lives in Southern Manitoba. The manitobans they both have children in ND on 1/1/1900, both in North Dakota. The Canadian one gets US citizenship while the one whos parents live in ND does not? Why? No one knows, but it is what is insisted on being the truth under the expansive reading.

I agree with your assessment. Of course, what the constitution says is what the SCOTUS says it says. And while I do not like the current SCOTUS much, I do not expect them to rule that black is white so that Trump gets his wish.

We might as well discuss if a hypothetical liberal-leaning SCOTUS might set aside centuries of jurisprudence and decide that 2A only applies to flintlock weapons.

If SJ wants to get rid of guns or MAGA wants to get rid of birthright citizenship, the process is the same for either: repeal the amendment. I doubt either will manage that.

I wrote the below before you deleted/re-wrote this comment. I'm not going to change my reply. I don't think much needs to change.

I notice in your "chonker" post you skip quoting section (a) of the holding:

The boring but true reason behind this is because I pretty much never did block quotes of the syllabus. At least, I don't think I ever did. I pretty much just pulled quotes from opinions.

Like, where in Plyler did the majority opinion leave open the question of whether immigrants who entered the United States unlawfully are within its jurisdiction?

Sure, as I mentioned, they certainly held that illegal immigrants are within the "no person"/"any person" language of 5A, within the "any person" language of Due Process, and are within "any person within the jurisdiction" of EPC.

I then quoted the section of the opinion where they said there didn't seem to be any difference between the "any person" language of Due Process and the "any person within the jurisdiction" language of EPC. Requoting here, so you don't have to scroll on the big post:

There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment.

I didn't actually blockquote the paragraph around Footnote 10, so I'll do that now:

Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [Footnote 10] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.

It actually came before the first quote. I certainly wasn't trying to hide this; I clearly couldn't block quote everything; my post was already hideously long. I don't know that there's all that much that is substantively different between these two block quotes. I even further quoted what I believed to be the opinion's best encapsulation of its notion of jurisdiction:

Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.

I went on to block quote the entirety of Footnote 10, rather than just a snippet of it, so that everyone could read the whole thing. It's probably pretty important for what Plyler says about the Citizenship Clause, because to the best of my understanding, it's the only part of the opinion that addresses it directly. That included the entirety of the sentence that you pulled from, rather than just a part of it:

As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. [citation removed]

Admittedly, upon looking again, I did miss something! I removed the citation on this sentence. Interestingly, it was the same curious 1912 commentary that I noticed from the sentence that the Respondents quoted. I didn't realize that it was the same thing quoted here. And in fact, I don't think I ever read this part of that commentary (pages 425-427). This is quite the oversight! I'll start from page 421, because some context is needed to understand where they're putting the distinction:

(b.) Children of Aliens Born

a. While in Detention Prior to Admission.

That a child born in detention pending the deportation of the alien mother is born in the United States cannot be denied. That both mother and child are subject to the jurisdiction of immigration officers and to criminal and civil process; that they can claim police protection, the protection of the constitutional guarantee that they shall not be deprived of life, liberty, or property without due process of law, and are, hence, in a limited sense subject to the jurisdiction of the United States, is equally incontrovertible. The question can, perhaps, be advantageously examined by considering the cases of the mother and child separately.

The mother, an alien, seeks admission into the United States, and, because of disabilities which exclude her from admission under the immigration laws is refused entry and held for deportation. The situation presented is an offer of allegiance by an alien and its rejection by the United States Government, the sovereign to whom the offer is made. The fact that pending the execution of the order of deportation the woman is, from motives purely of humanity, afforded hospital treatment under the temporary protection of the United States in no way constitutes an indication that the allegiance offered is or will be accepted, and is not to be construed as a mark of that protection offered by a sovereign state to those resident, even temporarily, within its dominions. That the woman is not under these conditions even a resident of this country, is clear. In this case no question of citizenship arises; the only issue involved is her right to enter the United States, and this, because she is an alien, is determined exclusively by the provisions of the immigration law.

A very different question is presented by the case of the child. Never having existed beyond the territorial limits of the United States, before coming within what, for the present, we may designate as the limited jurisdiction of the United States, no question of its alienage, in the sense of allegiance to any foreign power, can arise. Consequently it can scarcely be said that with reference to the child the offer of allegiance and subsequent refusal on the part of the Government which occurred in the mother’s case has taken place, or that its situation in detention is “as if it had never been removed from the vessel.” If the child is to be considered an alien, then, to be sure, the mere fact of its presence on shore can vest it with no right to enter which it would not have had, if its birth had taken place on the vessel. On the other hand, the fact that the mother is debarred as an alien from entering this country could not, it would seem, be a bar to the acquisition of citizenship by the child provided that the latter could be under such circumstances deemed to be born subject to the jurisdiction of the United States as the words are used in the Constitution. If the child is subject to deportation it can only be on the ground that it is an alien; and to be found to be an alien it must be found not to have been born in and subject to the jurisdiction of the United States; and if found to have been born not subject to the jurisdiction of the United States this conclusion must be based on some theory other than that the child was at any time physically subject to the jurisdiction of some other power.

At first glance a comparatively simple solution of the question presents itself with inviting insistence. It is easy to suggest that since the allegiance of the mother has never been accepted her situation is as if she had never entered the territorial limits of the United States, and the child’s political status is what it would have been had the birth occurred at sea or elsewhere outside the jurisdiction of this country. But we are at once confronted with the principle so forcibly expounded and so often reiterated in the Wong Kim Ark case that under the common law, international law, and the fourteenth amendment of the Constitution the place where the birth actually took place is one of the two great factors on which American citizenship depends. It is impossible to overlook it or to attempt to supplant it by dint of legal fiction. The solution of the question would seem to turn on the meaning to be attributed to the words “subject to the jurisdiction.”

Its purpose was stated in the Wong Kim Ark case to be to exclude in the fewest and fittest words possible the children of members of Indian tribes, the children of aliens in hostile occupation, and of diplomatic representatives of a foreign state — recognized exceptions to the “fundamental rule of citizenship by birth within the country.” This fundamental rule was then designated as “birth within the allegiance also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’ of the King, and embraced, it is said, all persons born within the King’s allegiance and subject to his protection. Allegiance, obedience, faith, loyalty, protection, power, and jurisdiction are classed together apparently as synonymous terms. “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States.” It is of interest to note the frequency with which the terms “residence” and “domicile” are used in connection with “allegiance” and “subject to the jurisdiction.” Justice Harlan is quoted as saying in the dissenting opinion in Elk v. Wilkins that an Indian “having severed himself from his tribe and become a bona fide resident of a state and thereby become subject to the jurisdiction of the United States, within the meaning of the fourteenth amendment” and again: “The amendment in clear words and manifest intent includes the children born within the territory of the United States of all......persons......domiciled within the United States’’ “Chinese persons are entitled to the protection of and owe allegiance to the United States so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof’ in the same sense as all other aliens residing in the United States.”

Finally, in the last paragraph of the opinion the court draws attention to the fact that the parents of the petitioner had at the time of his birth a permanent domicile and residence in the United States and were carrying on business there.

From the language and reasoning in the Wong Kim Ark decision it is difficult to dissociate the words “subject to the jurisdiction” from the idea of unqualified subjection to the national protection. As before stated, an alien woman held for deportation is in no sense a resident of this country, and the Supreme Court, not once but several times, uses language which indicates strongly that residence, no matter how transitory or how brief must exist in order to give rise to allegiance. “Allegiance and protection,” said Chief Justice Waite, in the case of Minor v. Happersett, “are reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance.” By refusing the alien’s offer of allegiance the United States indicates not only its unwillingness to extend its protection but actually refuses to do so. To refuse its protection is to refuse to the extent that the dictates of national justice will allow, the benefits of the machinery by which protection is afforded; in a word, the full complement of the laws which, when enforced, constitute the physical manifestations of the “jurisdiction” of the state. In the case of the child, as in that of the mother, presence under detention does not constitute residence; and, therefore, its relations to the United States do not partake of the nature of allegiance, and consequently fall short in laying the foundation for the existence of that protection without which the child could not, it would seem, be correctly said to be “subject to the jurisdiction of the United States.”

The above must not be taken as intending to convey the idea that allegiance cannot exist without residence. A sovereign state has the right to designate who shall become its citizens, and under what circumstances the privilege of citizenship shall be bestowed. We have already seen that, under the Act of 1855, a foreign woman can by marriage enter into a condition of allegiance to the United States even though she has never entered the country. “The acquisition,” says Mr. Dicey, “of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments.”

It is only where allegiance is predicated of an individual within the territorial limits of a foreign sovereign state that residence appears to be necessary. This is the temporary allegiance owed by strangers sojourning in a foreign state in return for the protection which they enjoy by the mere fact of having placed themselves under the sovereign’s jurisdiction. And it is thought that this protection must exist even though the presence of the alien within the territory of a state involves a breach of the municipal law of that country at the time of entry.

b. Of Aliens Unlawfully Residing in the United States.

This point may be considered in connection with the following state of facts: Two aliens, man and wife, both excludable under the immigration laws, succeed in evading the watchfulness of the immigration officials, and in taking up their abode in the United States. After living here for a year a son is born to them. Their unlawful presence becomes known to the immigration officers, and together with their child they are arrested on a warrant of the Secretary of Commerce and Labor ordering their deportation. The facts are admitted. Does the immigration law apply to the son born in this country? Or, in other words, is the child under these conditions born in, and subject to the jurisdiction of the United States? It is admitted that at the time of the arrest the parents had come to this country with the intention of making it their home, and actually established their home here in pursuance of their original design. In the words of Mr. Justice Gray, every subject of a foreign country while domiciled here is within the allegiance and protection, and consequently subject to the jurisdiction of the United States. Does the fact that the parents belong to a class of aliens whose allegiance the United States does not desire and whose entrance into the United States is forbidden by law affect the political status of the child? Obviously not, unless the bare legal prohibition suffices to prevent the parents from acquiring a residence or domicile — it is immaterial which — in this country. True, the parents never acquired a municipal status by virtue of or under the immigration law; and they never acquired a lawful domicile in the sense that they were never entitled to enter for the purpose of establishing a home. But the fact remains that they entered this country and proceeded to reside here, until their arrest, in enjoyment of every benefit which the law of the United States confers on persons lawfully resident here, and under the same duty to carry out their correlative obligations. Their temporary allegiance to the United States was complete and gave rise to reciprocal protection on the part of the state, unaffected by the fact that in order to enjoy and exercise the rights and duties incident thereto they had violated the immigration law.

This does not mean that an alien may continue in a position of allegiance to the sovereign against that sovereign’s will. The state may prevent the existence of the condition, by making it impossible for the alien to acquire a residence within its territorial limits, or, if the condition exists may withdraw its protection by expelling the foreigner. But as certain as is the fact that any such alien resides within the limits of a given sovereign state, just so certain is it that the mutual relation of allegiance and protection exists. To deny this would be to deny the fact of sovereignty itself, and the existence of a sovereign right, which, like the inherent right of an independent member of the family of nations to expel or exclude aliens, cannot, in the words of Mr. Justice Field, “be granted away or restrained on behalf of any one.” The case under discussion would seem to differ from that of the child is born in detention in this: that the latter at the time of his birth is not residing nor is his mother residing in the United States, and, therefore, he is not born in allegiance to or subject to the jurisdiction thereof; while the child born of alien parents who, though under the immigration law they have no right to do so and are subject at any time to deportation thereunder, are nevertheless residing in the United States and owe temporary allegiance thereto, is necessarily born in allegiance to, and, therefore, is a citizen of this country. [emphasis in original]

Whew. That was kind of a lot. Also, it was annoying to try to copy/paste from that source; I hope I managed to clean it up acceptably.

Ok, thoughts. First, I want to remember that this is just a person's commentary, not a holding of the Court or anything. They're clearly just trying to interpret some of the same cases that we all know about now. This is their take on interpreting them. It might be right! But that's what it is.

Second, to the best of my reading, this commentary wants to draw the line at residence. They think that if an illegal alien is caught and detained before establishing "residence", then even if they have a child on US soil, the US "refuse[s] the alien's offer of allegiance". Why can't the US 'refuse the offer of allegiance' to an illegal alien who made it across the border undetected? I'm not entirely sure. They seem to not think that a 'bare legal prohibition' can do so:

Does the fact that the parents belong to a class of aliens whose allegiance the United States does not desire and whose entrance into the United States is forbidden by law affect the political status of the child? Obviously not, unless the bare legal prohibition suffices to prevent the parents from acquiring a residence or domicile — it is immaterial which — in this country.

I'm not entirely sure why? Maybe the "unless" is saying, "Uh, maybe they could pass a law that suffices to do so"? They say that the alien cannot "continue in a position of allegiance to the sovereign against the sovereign's will." But I'm sort of not sure how?

The state may prevent the existence of the condition, by making it impossible for the alien to acquire a residence within its territorial limits, or, if the condition exists may withdraw its protection by expelling the foreigner.

Does this mean that they have to physically prevent them from acquiring residence? How does the sovereign make it "impossible", given the reality of the physical world? Can they do it with a bare legal prohibition? I don't know! It just feels sort of weird to say that they can't get allegiance-by-residence against the sovereign's will, but also say that oopsie-daisy, the sovereign's will didn't have enough of a panopticon to physically show up and physically prevent residence, so they can get allegiance-by-residence against the sovereign's will.

I may be reading it wrong, but even if I'm reading it right, and they think that an illegal immigrant can get allegiance-by-residence against the sovereign's will if the sovereign doesn't physically show up in time to stop it before a baby is born (and thus, the baby is a US citizen), I'm not sure that's the wrong line? I'm not sure it's the right line, either? I don't know!

What I do know is that Plyler cited this for the caveat that the "principles of sovereignty and allegiance" might form some sort of bound on the meaning of "subject to the jurisdiction thereof" for the purposes of the Citizenship Clause. If it does, does that mean this is the case also for "within the jurisdiction"? Does that mean there is this one possible difference? I don't know! As I wrote in the chonker post:

That is, the phrase "bounded only, if at all, by principles of sovereignty and allegiance". Like, to me, that's kind of been the question all along?! Is he saying, 'Nah, those principles of sovereignty and allegiance aren't real bounds; maybe they were at one point, but now they basically don't matter'? Is he saying that principles of sovereignty/allegiance might provide bounds for the Citizenship Clause, but not Due Process/EPC? That would seem contrary to him just saying that they're the same? I don't understand how it's supposed to work.

I don't think Plyler cleared this up at all. Maybe the Roberts Court will do so. Maybe they'll say that this 1912 commentary got the principles of sovereignty and allegiance right, and so long as an illegal alien got allegiance-by-residence, even if against the sovereign's will, their child is a citizen. Maybe they'll clarify whether these principles affect both "within the jursidiction" and "subject to the jurisdiction thereof", or whether there's actually a difference that wasn't fully analyzed. I don't know what they'll do! I think it's a mess.

The other thing that I know is that the entire discussion is squarely within the domain of reasoning about sovereignty, allegiance, license (perhaps), and jurisdiction, and the questions there are subtle and difficult. And that the same moment that a person acknowledges that there is something, anything, that actually needs to be said on these topics to be able to explain the various possible cases, the very first place that seems most natural to start from is Schooner. That's why the Amar bros did it. Where else are you going to go to even start building a theory for how this works for even the case of foreign ministers, much less all these other cases?

I'll finish by repeating something that I only said in a reply comment on the chonker post. Perhaps my best reading of Schooner is wrong, and a better reading of how it treats sovereignty/allegiance/license/jurisdiction ends up with a different result. It's even possible that Schooner got some piece of one of the various cases wrong! But I think a person needs to seriously grapple with Schooner to provide a basic framework first, and then one can start looking for how these principles best fit into a theory that can be applied to all the various cases.

Does this mean that they have to physically prevent them from acquiring residence? How does the sovereign make it "impossible", given the reality of the physical world?

I think "acquire a residence" means something stronger than "physically residing". The sovereign has accepted the immigrant's allegiance, however reluctantly, if the immigrant comes to be acknowledged as the lawful resident of a house or apartment within the sovereign's own legal system. If an immigrant goes stealth and squats in an abandoned building without anyone knowing, they could be there thirty years and it wouldn't make a difference - but if they buy or rent a place, and this is on record, and the immigrant would have legal recourse in US courts if someone infringed on their property rights, then the US has in practice accepted them as a subject, whether or not it regards their presence on US soil as theoretically unlawful.

Hence, I read "unless the bare legal prohibition…" as saying "unless we start saying that, because they're not lawful residents, all their real-estate dealings are to be deemed legally void by definition" (which I think is… maybe not quite intended as a reducio ad absurdum, but certainly as a reducio ad this-would-be-a-completely-different-and-very-radical-conversation-that-no-one-seems-prepared-to-have-right-nowum).

Maybe so. I'm not entirely sure. As I was writing this, I just had in the back of my mind that I recalled discussions of "residence"/"domicile", and residence was weaker than domicile, which I remembered also being somewhat weak. It's not helped by the fact that many sources, unless they're really being careful and directly considering the matter, don't bother to specify whether they're talking lawful/unlawful or whether that would change anything.

Looking back at my original massive post, I see this quote from that same commentary:

The term “municipal status” acquired under the immigration laws is in no way to be confused with the acquisition of domicile. An alien, who, whether entering in violation of the Immigration acts, or, after being duly passed by the immigration authorities in the manner provided by law, takes up his residence here with intent to remain has done all that is necessary for the acquisition of a domicile. The only difference is that if the entry is lawful the municipal status is fully established, subject only to termination by the commission of acts subsequent to entry which the law provides shall justify the forfeiture of the domicile lawfully acquired; whereas, if the entry is unlawful the municipal status is not complete except on the expiration of the three year period within which aliens entering in violation of law are subject to deportation on the ground of unlawful entry.

That seems to me, on first glance, to imply that one can "get residence" and even "get domicile" without anything about it being acknowledged as lawful.

First, I want to apologize for not responding to your comments from the other thread despite your requests. I was too busy overall and my Motte time was mostly dedicated to finishing up the next Pittsburgh installment, and by the time that was completed I kind of forgot. Second, I want to assure you that the comment about people acting in bad faith wasn't directed at you personally. I had in mind specifically a bill from the early years of the Obama administration that went nowhere and read:

(b) Definition.—Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered ‘subject to the jurisdiction’ of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is—

“(1) a citizen or national of the United States;

“(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or

“(3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).”.

It's no surprise that these people, and nearly everyone else I've heard flogging for a more restrictive definition of "subject to the jurisdiction thereof", take a dim view of immigration generally and support as many restrictions as possible. With that out of the way, I can move on to address your main argument about using Schooner Exchange as a framework. First, I think we can both agree that the purpose of a constitutional provision, as opposed to a law, regulation, enforcement policy, etc., is to take certain issues outside the realm of politics. In other words, we recognize that certain things should be beyond the temporary whims of the legislature, executive, or government agency, and only be changeable if there is broad consensus to do so.

That being said, let's look at the context of the 14th Amendment. There is broad consensus that the immediate purpose of the amendment was to guarantee citizenship to former slaves. The language itself, however, doesn't limit the scope of the clause to former slave, and this wasn't some oversight, since other parts of the amendment explicitly mention slavery, and the near-contemporaneous 13th and 15th Amendments also explicitly refer to slavery, so we can assume that the clause takes on a general scope. The framers would have understood that general scope to be in reference to the common law. I know you dismissed the common law, but it's important here. You don't have to go digging into old English court cases because as it was understood in America would have been in reference to Blackstone's Commentaries, which were written shortly before the Revolution. There may be court cases that are on point but they aren't terribly important here. For instance, you probably see plenty of personal injury lawyers advertising on television. The vast majority of there cases will involve negligence, which is a common law cause of action that (mostly) isn't codified. Each state has its own variations based on court rulings, but if you want to know what our "general understanding" of negligence is, you look at the Restatement of Torts. the Commentaries are basically a restatement of common law.

The reason Schooner Exchange is important here is because it is basically a restatement of 19th century American understanding of the common law insofar as it pertains to jurisdiction. In other words, this is the context through which the framers of the 14th Amendment would have understood it. Notable, the Schooner Exchange opinion does not mention slavery. Why? Because slavery was not recognized under the common law. British courts did issue rulings pertaining to slavery, and the whole area is a little fuzzy, but there was never any formal recognition of slavery as a status, and Blackstone himself officially disclaimed the idea that slavery could exist at common law. Slavery did exist in the colonies, but it was a creature of statute, formally recognized by colonial legislatures. What the 14th Amendment did was abolish statutory definitions of citizenship and reinstate the common law definition. And at common law, anyone born in United States territory, whether of citizen or alien parentage, is subject to the jurisdiction of the United States, subject to a few well-recognized exceptions.

"Illegal aliens" was not one of those exceptions. I use scare quotes because the concept did not exist in 1868. It would be more than a decade before congress passed any laws barring entry to any class of foreigners, and the common law makes no distinction between legal and illegal aliens. Illegal aliens are a creature of statute, and we can't modify the constitution simply by passing legislation to limit its scope. We can't deny citizenship to the children of illegal aliens any more than we can legislatively create a category of "illegal citizens" and deny citizenship to their children as well. To understand why we can't do this we only have to look at the history of the amendment itself: There was a legislatively created category of people who the court had previously decided weren't citizens, and we passed an amendment prohibiting us from doing that anymore. Taking your proposed framework at face value would mean that we could have denied citizenship to freed slaves by reading antebellum slave statutes and Supreme Court rulings as evidence that they were not subject to the jurisdiction of the US at the time of their birth. Of course, such a reading would have completely obviated the amendment's purpose!

I want to make a final point about Indians that I didn't include as part of my main argument because, as you agree, Indians are weird. First, Schooner Exchange says nothing about Indians, because Indians don't exist at common law, but there is a broad body of evidence suggesting that the framers of the 14th Amendment did not view them as subject to the jurisdiction of the United States, and this isn't particularly controversial. The US had been dealing with Indian issues for decades prior to 1868 and would continue dealing with them for decades thereafter. The important distinction here, though, is that Indian tribes were treated as somewhat sovereign entities but not entirely sovereign entities, and were subject to some degree of control by the United States government. You can bring up the Major Crimes Act, but you also have to consider how limited it was: Certain major Indian on Indian crimes can be tried in Federal Court. Indian tribes still have a degree of sovereignty, including their own court systems, and I doubt anyone arguing that illegal aliens or their children are not subject to US jurisdiction would be arguing that they are entitled to some special judicial treatment as a result. As long as illegal aliens have existed we have not treated them any differently wrt the court system than anyone else (subject to the well-recognized exceptions), and I don't hear anyone arguing that we should.

Thanks! I can understand getting busy with the Pittsburgh saga; certainly, I now know the time/effort investment required for such a significant post. I greatly appreciate them, even though I haven't had much to say on them.

I'm also grateful for your clarification that you were not accusing me of bad faith.

First, I think we can both agree that the purpose of a constitutional provision, as opposed to a law, regulation, enforcement policy, etc., is to take certain issues outside the realm of politics. In other words, we recognize that certain things should be beyond the temporary whims of the legislature, executive, or government agency, and only be changeable if there is broad consensus to do so.

In some sense, yes, but it is easy to think that this concept is more capacious than it is. For example, some constitutional provisions grant authority to political actors. So, the same provision both takes the question of whether that political actor has such authority outside of various temporary whims (and this question can only be changeable if there is broad consensus to do so), but then within the scope of authority that has been granted, it is entirely plausible that there is plenty of room for a variety of temporary whims to lurch policy one way or another. Other Constitutional provisions may not directly grant authority, but may place bounds within which there is still room for choices to be made. Just speaking purely generally at this point, as you seem to be.

That being said, let's look at the context of the 14th Amendment. There is broad consensus that the immediate purpose of the amendment was to guarantee citizenship to former slaves. The language itself, however, doesn't limit the scope of the clause to former slave, and this wasn't some oversight, since other parts of the amendment explicitly mention slavery, and the near-contemporaneous 13th and 15th Amendments also explicitly refer to slavery, so we can assume that the clause takes on a general scope. The framers would have understood that general scope to be in reference to the common law. I know you dismissed the common law, but it's important here....

...

The reason Schooner Exchange is important here is because it is basically a restatement of 19th century American understanding of the common law insofar as it pertains to jurisdiction. In other words, this is the context through which the framers of the 14th Amendment would have understood it.

Sure. Nothing objectionable about the basic context and the scope being broader than just slaves. Like I said, British Common Law may be important, and like I said, I was going to let American legal authorities tell us what they thought it meant when they were using it. So yes, Schooner Exchange, and the various US cases that cited it in context of the Citizenship Clause, told us some parts of the old Common Law to pay attention to and what it meant. It's entirely possible that the Roberts Court could, this year, add, "...and oh by the way, we haven't really addressed how the old common law would treat this situation, but there is nothing to do here but to look at the common law for an answer." That could happen! They might not cite any US cases, especially not post-14A.

Notable, the Schooner Exchange opinion does not mention slavery....

I mean, sure? The reasoning you give is plausible. I also sort of think it wouldn't have made sense to bring it up at any point in the opinion.

What the 14th Amendment did was abolish statutory definitions of citizenship and reinstate the common law definition.

This is a claim. Presumably, the Court's subsequent opinions on the topic told us this? And they told us where the bounds of the common law definition were? That's why I went through all of them. I tried to observe what they said. And sure, they sometimes appealed to a reference in the common law. They also just told us with words what they were doing.

That said, it certainly didn't abolish all statutory definitions of citizenship. We still have plenty of them! But 14A at least instated some grant of citizenship that was not removable by statute, sure.

"Illegal aliens" was not one of those exceptions.

This is certainly another claim. Where does the Court say that? The Court seems to tell us, over and over again, that principles of sovereignty, allegiance, license, and jurisdiction... perhaps coming from common law... are the principles by which one determines the bounds and exceptions. As you say later, Indians weren't discussed in the old common law, either. The Court didn't say, "Whelp, they weren't called out in the old common law, soooo." Instead, they looked into the principles of sovereignty, allegiance, and jurisdiction, perhaps being informed by common law.

I use scare quotes because the concept did not exist in 1868.

Right. This strict historical part of the above claim certainly seems right. So, we probably have to consider the principles of sovereignty, allegiance, license, and jurisdiction. Perhaps the common law will have clearly applicable principles, and perhaps the US Courts have elucidated them.

Illegal aliens are a creature of statute, and we can't modify the constitution simply by passing legislation to limit its scope.

Here's where we get to my caveat at the top of the comment. I think this is interpreting the principle of "taking outside of politics" too capaciously. I just responded to another comment in this thread by going through a 1912 commentary on the matter, a section that I had apparently missed, but actually would have liked to have read. They sure seem to think that allegiance has something to do with it. They sure seem to think that the "sovereign's will" has something to do with it. Perhaps the Constitution does make it so that the sovereign's will cannot accomplish some things. Perhaps it allows the sovereign's will to accomplish some things within some bounds. The sovereign certainly does seem to be able to make some choices concerning things like jurisdiction. When? How? Schooner gives some examples, like choosing to withdraw some jurisdiction (Elk seems to comport with this) or to choose whether to give consent/license to various folks to enter.

Presumably, to take an example we saw in Schooner, the sovereign can choose whether or not to consent to an Army entering US territory. The sovereign can choose whether to issue a license for such. If we follow Schooner's reasoning, it sure seems that this is one of those sort of situations where the sovereign's choices can affect something having to do with jurisdiction/immunities. But is that actually not the case? Is the sovereign actually so prohibited by 14A from making any choices that could in any way impact any sort of 'jurisdiction', at least not without getting a Constitutional amendment? Do we need a Constitutional amendment each and every time to determine whether a particular Army has a license to be on US territory, and thus, how jurisdiction/immunities work?

Where, exactly, the lines are for what the sovereign can/cannot affect when it comes to the Citizenship Clause remain unclear to me. Moreover, as I mentioned in my first post, it's also not clear to me what counts as the "sovereign's will" for things like this. Does Congress need to act every time to give consent/license? Can the President do it? I don't know! Maybe it's different for different things.

Taking your proposed framework at face value would mean that we could have denied citizenship to freed slaves by reading antebellum slave statutes and Supreme Court rulings as evidence that they were not subject to the jurisdiction of the US at the time of their birth.

I sort of don't think we could have? At least if Justice Swayne is to be believed in US v. Rhodes. The Thirteenth Amendment and Civil Rights Act of 1866 certainly prevented that possibility of even needing to ask the question. But you're hitting on quite a question that was live in Elk, as I observed. Does it matter if a person was born before the Civil Rights Act/14A, and how does that affect their situation? As I quoted the dissent:

according to the doctrines of the Court in this case -- if we do not wholly misapprehend the effect of its decision -- the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment even had he been at the time it was adopted, a permanent resident of one of the states, subject to taxation and in fact paying property and personal taxes, to the full extent required of the white race in the same state.

That is, does 14A have some sort of retroactive effect back to people who were born before it, but then subject to the jurisdiction at the time of passing? I don't think the Court has really ever said, other than what one thinks one can surmise by a small portion of this dissent. It probably mostly didn't come up otherwise, as even if there were any possible questions about 14A, the vast vast majority of cases were clear under the Civil Rights Act, and the window of time when we had people born before it who could have provided cases was likely fleeting.

In any event, I'm really not sure why my position requires coming down on either side of the retroactivity question, and it really just doesn't seem all that relevant. Maybe this is just getting at a theoretical, "What if one, in a vacuum, just asked whether a slave, at the time of birth, in say, 1860, was "subject to the jurisdiction thereof?" I mean, I sort of don't know? Justice Taney in Dred Scott said that they owed allegiance to the US. Would that do it? My guess is probably.

First, Schooner Exchange says nothing about Indians, because Indians don't exist at common law

...or... again, possibly because there just didn't seem to be any reason for them to come up? TBH, I'm not really sure what I'm supposed to take away from your sections on Indians. Yeah, it wasn't all that controversial. As you started off pointing out, the language of 14A takes a pretty general scope. But people didn't think this general scope included Indians. Why not? The Court explains the matter in terms of sovereignty, allegiance, and jurisdiction. Maybe the Court was wrong? I'm not sure if something in what you've said is supposed to change what I said I thought was the 'best fit':

So, we have to figure out how they fit into the framework. My sense is that one way to think about this is that the sovereign has consented to some amount of reduced jurisdiction, and this involves both some fuzzy amount of qualified allegiance (just to use the term that came up, but other descriptors may be fine) and that the sovereign has also consented to a limited amount of immunity in specific, qualified ways. I don't know that these necessarily work in lockstep, either; they may just be the outlines of what the sovereign has, in fact, consented to, factually.

Back to you:

I doubt anyone arguing that illegal aliens or their children are not subject to US jurisdiction would be arguing that they are entitled to some special judicial treatment as a result. As long as illegal aliens have existed we have not treated them any differently wrt the court system than anyone else (subject to the well-recognized exceptions), and I don't hear anyone arguing that we should.

I mean, at this point, I hate to say it, but I have to ask whether you read my expounding comment prior to writing this one. I don't really know how they should be treated, but at face value, it doesn't seem like the sovereign has consented to their entry, has not granted them any license, any "temporary or local allegiance", and has not consented to any limitation concerning immunities to prosecution.

As I just said in the other comment in this thread, maybe the boundary is residence, like that 1912 commentary drew it? Maybe there's some room for the sovereign's will to make some choices, but with some bound that comes from somewhere? Maybe it's less? Maybe it's mere presence, with or without a license, and that's the bound enshrined in the Constitution? Like, this is still stupid unclear. But I don't think you've said anything here that makes me think that Schooner doesn't provide the proper framework and background, or that we don't have to engage with principles of sovereignty/allegiance/license/jurisdiction/immunities. I don't think you've successfully convinced me that literally all of those factors, in every detail, were utterly fixed by 14A, and that there's nothing that the sovereign can do that affects any of them in any way. That would seem to defy the reality that the sovereign has made choices concerning its own jurisdiction and such, pretty regularly, in fact. Maybe none of those choices have much room within the bounds of 14A, but I still sort of don't see why. I don't see how the theory comes together within the framework of Schooner, and I don't see why Schooner is the wrong framework.

If someone asks, "Are there exceptions?" the answer is, "Yes." If it's followed up with, "Where do we learn about how those exceptions work?" the very next second, the answer seems to be, "Let's go back, start with the principles of Schooner, and go from there." That's what the Amar bros did, that's what WKA and basically every Court has done when they've said something coherent on the topic, because almost none of it makes any sense unless we start from, "Well, here are the principles of sovereignty, allegiance, license, jurisdiction, and immunities." Many of the Citizenship Clause cases make no sense without it.

at common law

You use the preposition "at" here throughout your post when non-lawyer me would naively have said "in common law". Why?

It's just an archaism that got handed down through the generations so much that it became a convention. Similar to "attorney at law".

Akhil and Vikram Amar, along with their student, Samarth Desai

Goddamnit, these people have no business discussing the laws of my country.

Of course, they don't talk about Schooner's discussion about the case in which a foreign sovereign entered the US without the consent of the US

That's because they don't want to be sent back where they came from. It's all motivated reasoning, all the way down, but the truth is just like last time the foreign born population crested 15%, there's a backlash coming, and this is laying groundwork to salvage some of what will be lost.

You're getting a lot of reports and more than one mod wants to ban you. Largely because you have a long and shitty record. Mostly, though not entirely, because of this particular hobby horse.

On the one hand, "Only white people should be considered Americans and birthright citizenship should be ended" is an opinion, and we don't prohibit people from expressing opinions. Even disagreeable opinions, even opinions that offend lots of people, even opinions that would strip a lot of people of their currently extant rights. So, you're allowed to express that opinion.

On the other hand, we do have other rules about civility, about contentless sneering at your outgroup, about making generalizations about groups. When you have an opinion like "Indians can't be Americans and don't deserve to live here" or "Jews are evil alien parasites" or "Women are NPCs" or "Blacks are incapable of civilization" and so on (note: these are examples; I am not ascribing all of those opinions to you), your sincerely-held opinion does run up against some of those other rules, and that's where people start complaining about how our rules demand you use "too many words" or dance around "the truth." Because yeah, you are allowed to believe things about non-whites, about people with non-white ancestry, about who should be a citizen. You are not allowed to just say "these people" like they are not citizens, or talk about sending them all "back where they came from" unless you are willing to put in a lot more effort actually describing a colorable position (even if it's literally race war, in which case, say so, and yes, you still have to be polite about advocating for a race war!). Because "these people" are also posters here and are entitled to the same civility as everyone else. That's the same reason I can have an opinion about certain people deserving a kick in the teeth, but I can't just express it like that. Because it would be antagonistic and rude.

Capisce?

So, every time you feel an urge to go off on your "Man born in a barn" metaphor sneering at people with funny furrin' names, pretend you are saying it directly to such a person's face in an environment where civility is expected. Because you are.

If you can't do that, next time I will ban you, and nothing of value will be lost.

Largely because you have a long and shitty record.

Always good to drive off the regulars, keeps people on their toes.

So, every time you feel an urge to go off on your "Man born in a barn" metaphor sneering at people with funny furrin' names, pretend you are saying it directly to such a person's face in an environment where civility is expected. Because you are.

I would happily and willingly repeat the man in a barn line, and have done so, in person. However, I take your point, and I was rude and discourteous beyond any use, and worse, without any redeeming quality.

Do you have some evidence that one (or all) of them is the child of a foreign sovereign?

Why would that matter to me at all?

Did you read the passage you quoted?

Yes, I did.

What about it? I do not consider them American in any way, regardless of Schooner, full or partial. They want the partial schooner (foreigners born in US are citizens) but not the full schooner (illegal aliens are not entitled to citizenship for their children because they have no license to be there in the first place, general or explicit). In other words, they want the best possible outcome for their coethnics. In that, I supposed they're the same as me.

After the right couple of accidents, Lillibet Windsor could qualify…

That's because they don't want to be sent back where they came from.

Akhil Amar and Vikram Amar were born in the US.

Isn't it begging the question to consider your standard to be the relevent one, if the discussion is about birthright citizenship?

As far as I can tell, the discussion is about birthright citizenship for children of illegal immigrants.

Being born in a barn does not make a man a horse. They are foreigners, Indians, obviously, and that's the case no matter which barn they were born in.

I've met, had lunch, and argued about politics and baseball with Akhil Reed Amar. He's a better American than you.

Good for you, but no he isn't. He's not an American nor is he my countryman. He's the son of Indians, he married an Indian, and he has Indian children. I will give his parents credit for the middle name, though (Reed).

I'm sure he's nice to have lunch with, that was never in question.

Politely: quit it. "Americans" are not a race or ethnicity. They just aren't. On no serious theory are black Americans not Americans. You can claim to only recognize WASPs as your "countrymen" if you want, but "WASP" is not, nor will it ever be, the legal or the everyday, common-sense definition of the word "American"; insisting otherwise will only breed needless confusion. Like, dude, this isn't about political correctness. You'd have to search pretty far even among white supremacists for any significant numbers of people who think the sentence "Martin Luther King was an American activist" is somehow using the word "American" incorrectly.

I don't even know what you're trying to do here. I can understand some forms of insistence that Americanness is more than a piece of paper. There can be an actual, coherent political agenda behind that kind of linguistic warfare: for example, if you don't think paper citizens who barely speak English and don't meaningfully identify as American or participate in American culture should, in fact, be allowed to keep their paper citizenship, or to stay within the country's borders. That's a coherent, achievable political project, and the definition games make sense within that project.

But like. There's no constituency for expelling all non-WASPs or stripping them of citizenship. It's just not gonna happen. So what's the point of insisting, against all common usage, that you're only a real "American" if you're from the same ethnic group as the Founding Fathers? Literally what is the point? If you got your wish and everyone started using that as the definition, all you'd get would be a needlessly obnoxious situation where "Americans" are a hazily-defined plurality within the much, much broader cohort of "American citizens", and are one of several groups who participate in "American culture" and "American politics". That helps exactly no one. If what you want is just the dubious self-esteem buzz of getting to say "I'm a real American™" with the full blood-and-soil weight you give to the word, please just try to be happy with "I'm a Heritage American" or some other suitably complimentary turn of phrase, without trying to gerrymander what the bare word "American" means into uselessness.

I don't even know what you're trying to do here.

Trying to fix this:

"Americans" are not a race or ethnicity. They just aren't.

There's no constituency for

Not yet. Not until you build it. Not until you say it out loud, and declare that it's what you want, and goal worth pursuing.

Literally what is the point?

I'm happy to stake out, believe in, and defend the extreme stance of where I want to be in the knowledge that the only way to get what you want is to decide what you want, and then start going there. I want to break the assumption that American means "man of any race or none in particular." I want to regain my own national character.

There's simply no risk of children of legal immigrants being sent back to where they "came from" and they don't fall under the foreign born population you mention in the next sentence, so the claim of self interested motivation on their part rings hollow. Your personal belief that people who live in the US their whole lives and assimilate to its culture are not Americans is, to put it lightly, a minority view in no danger of being advanced by any serious legal scholars.

I never said foreign born. I said foreigner. I did use the phrase foreign born, mea culpa. The Japanese would use the word gaijin.

I don't care where he was born, he's not American. I don't care what passport he has, he's not American.

He might be able to have American children, if he outmarries, but I won't hold my breath.

to put it lightly, a minority view in no danger of being advanced by any serious legal scholars.

I don't care about legal scholars, I care about Americans, and it's pretty popular among Americans who are tired of seeing themselves replaced in their own homeland.

I don't care where he was born, he's not American. I don't care what passport he has, he's not American.

But that's not the point. The point is that, since (rightly or wrongly!) his citizenship is not in any actual danger whatsoever even by a very restrictive reading of the Constitution, he has no personal incentive to bend the laws towards more permissive forms of birthright citizenship, as you were claiming.

I don't care what the Japanese say, I'm an American, not Japanese. I have no interest in becoming Japanese.

Way to miss the point.

The japanese have a word that means foreigner, and it doesn't distinguish between citizen or not, or care where you were born.

You're using foreign concepts from foreign languages to try to tell me about America. There's a reason that there is no equivalent American word, because there is no equivalent American concept, because that is a fundamentally foreign belief system.

More comments

I never said foreign born. I said foreigner.

You did say foreign born:

That's because they don't want to be sent back where they came from. It's all motivated reasoning, all the way down, but the truth is just like last time the foreign born population crested 15%, there's a backlash coming, and this is laying groundwork to salvage some of what will be lost.

Because that's what's measurable and comparable to the backlash I referenced 120+ years ago. Teddy and Woodrow both said something similar, back then, to what I said now.

I will grant that I said foreign born, but it wasn't about these people in particular but rather the state of the nation.

What did Teddy say that agrees with your, uh, limited conception of who is an American?

More comments

America lost that battle a long time ago. Curious to know how things will look in a century or two if it’s still around.

What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats