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PaperclipPerfector  1d ago (text post)   5042 thread views

Culture War Roundup for the week of March 23, 2026

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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.

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.

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.

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?

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