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PaperclipPerfector  2d ago (text post)   9876 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.

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.

  • -10

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.

Not yet. Not until you build it. Not until you say it out loud (…) I want to regain my own national character.

I don't know how else to tell you that this is not going to happen. There's no constituency for a WASP ethnostate because it's just not a plausible thing to want. There are fifty million African-Americans and I'm sorry, but they aren't going anywhere. The Civil War was probably the last time a mass exodus back to Africa was remotely on the table, and even then it was kind of a laughable idea. They're centuries away from African soil being their land and African culture being their culture and African languages being their language. Talking about sending them all away as "foreigners" is like trying to get the Saxons of England to "regain their national character" and send the Normans home nine hundred years too late (except worse because there are fewer ethnic Normans and it'd be somewhat easier for them to reintegrate into French society if France were willing to take them back). It's just not happening, the boat has sailed.

Recognizing this sheer statement of fact does not necessarily entail that "American means 'man of any race or none in particular'"; you could plausibly argue the line that American means one of a bounded number of specific ethnicities, if you really want. You could say that eg WASPs, Black Americans, and Native Americans (1) are established, centuries-old, distinct subtypes of Americans like Han, Zhuang, Manchus and Miaos are distinct subtypes of Chinese - and that it's still possible to be ethnically non-American by not being part of any one of these groups. A multi-ethnic polity is not necessarily the same thing as a race-blind one. There could be a world where America moves in that direction, it's unlikely but it could happen.

What you're proposing, however, is simply impossible.

1: Please let us not go on a tangent about the term 'Native American'. I just thought it would be less confusing here than any variation on 'Indian'/'Amerindian' insofar as we started out talking about Indian immigrants in the Punjabi sense.

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