@Gillitrut comments on "Culture War Roundup for the week of March 23, 2026

Culture War Roundup for the week of March 23, 2026

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Gillitrut Reading from the golden book under bright red stars 16hr ago

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?

Context

AfterEpictetus Gillitrut 48m ago

Am I supposed to be reading into this a difference between "subject to" and "within" a state's jurisdiction?

I mean, these are legal documents. Generally speaking, any difference in phrasing tends to imply a difference in meaning. Otherwise law writers would use the same phrasing

anti_dan Gillitrut 10hr ago

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.

quiet_NaN Gillitrut 14hr ago

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.

ControlsFreak Gillitrut 16hr ago

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.

WandererintheWilderness ControlsFreak 13hr ago · Edited 13hr ago

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).

ControlsFreak WandererintheWilderness 13hr ago

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.

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