site banner
PaperclipPerfector  1d ago (text post)   5177 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.

2
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.

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.

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.

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

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.

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 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.

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