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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.

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

That is a new low. I mean, even our resident antisemites will rarely dismiss an argument outright for being made by a Jew. I mean, I am a Kraut and I still reserve the right to have opinions on every legal system between the US constitution and Sharia law.

Of course, denying that an Indian-origin American can be a "real" US citizen makes this extra charming. If you feel this way about random bloggers, I can only imagine how you felt about Trump appointing Kash Patel to head the FBI.

Amar isn't a random blogger, he's an eminent originalist constitutional scholar. I recall a blurb on the back of his book saying he was one of the five most cited living American legal scholars. He's a man who has devoted his life to the study of the American constitution.

This is the challenge facing the project of building a new American nationalism, you can't excise people like Amar without destroying much of what makes this country great.

He's a man who has devoted his life to the study of the American constitution.

The Constitution is dead. It has not protected me, it is not protecting me now, it will not protect me in the future. To the extent that power flows from it, it is because people with poor understanding allow themselves to be scammed by appeals to it.

This is the challenge facing the project of building a new American nationalism, you can't excise people like Amar without destroying much of what makes this country great.

I emphatically do not agree that racial descent is a workable frame for pulling together a nation out of the wreck, but that does not change the fact that most of the things that made this country great appear to be either dead or dying, and the appeals to a "creedal nation" were either useless to prevent this process or actively accelerated it. The basic fact is that we hate each other, and cannot find consensus on what the law is or how it should be enforced, and that is not a survivable situation long-term.

If there be a way to salvage something worthwhile from the wreck of America, it seems likely that it is going to involve more sacrifice than your arguments presume.

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