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PaperclipPerfector  4d ago (text post)   16529 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.

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.

You are going to have to contend with every white racist's problem, which is that the majority of the people you would like to be in your ingroup feels more kinship with the urbane Indian-American guy than with you. If we were entering a new golden era of free association and vibes-based citizenship, they would sooner team up with him to send you to Madagascar than with you to expel him. I feel like the abstract schema, where A and B say "I consent" to each other while C is off to the side seething at B like "I don't, you should be with me instead", occurs fairly frequently in cuckoldry memes.

In fact, going deeper, it seems fair to hypothesise that extreme xenophilia and anti-tribalism is now a core "white" racial trait (unless perhaps you stick with some marginal groups like Albanians), no doubt aided by centuries of natural selection where those who didn't have them were more likely to go off to slaughter each other. Are you partisan for the whites that actually exist, or some fantasy version you wish existed?

You are going to have to contend with every white racist's problem, which is that the majority of the people you would like to be in your ingroup feels more kinship with the urbane Indian-American guy than with you. If we were entering a new golden era of free association and vibes-based citizenship, they would sooner team up with him to send you to Madagascar than with you to expel him. I feel like the abstract schema, where A and B say "I consent" to each other while C is off to the side seething at B like "I don't, you should be with me instead", occurs fairly frequently in cuckoldry memes.

The problem is that this is an extremely selected comparison, and it's kind of embarrassing that our elite capital folks are missing the point.

I've written posts complaining about personal experiences with Indian immigrants - let me give a different example. The professor I had most often (3 classes) in college was an older Indian guy who taught physics. One of my favorite memories of him was when he was covering a unit on optics, and he had projected on the board an illustrative image, which he off-handedly mentioned was the cover art to his favorite album.

Yes, it was exactly what everyone is thinking.

We teen white kids had a great moment of fun about it. "Holy shit, did you guys know Indians could be Boomers, too?"

I liked that professor. He was a good dude, and he was good to me. I'll bet the Yale professor on Con law is in a similar boat.

Cool.

So, what about the other 99.99%?

Because the average immigrant is absolutely not an urbane, 130+ IQ dude with excellent English and a witty command of prestige television references. That's actually about 4ish SD above average. The experience of the average American dealing with the average immigrant is more like spending 10 minutes struggling to explain the difference between a square and a circle to someone with English (and apparent reasoning, though the linguistic issue is likely severely amplifying that) skills on the level of a three year old, while they are acting like an entitled asshole.

There was a post on the old place, years ago, and I can't quite remember who it was. GeneralMcCusker, or McJuncket, or however those names were spelled, I think. Anyway, the post described the enlightening experience of working in a T-Mobile store in a bad diverse part of town. And the post basically suggested that a similar life experience ought to be a requirement for having meaningful opinions about the communities of people involved.

I think a lot of this discourse is driven by people who never see what everyone else is complaining about, not in spite of, but precisely because they are extremely high functioning individuals of means who have organized their lives so as to never have to deal with the downsides of their tolerant and high-minded policies.

I know several such people IRL. Friends and family. Great people. I truly love them.

But on this sort of topic, all I can ever think is "Your actions speak so loud, I can't hear a word you're saying."

For comparison, imagine if we dumped an entire American trailer park into a small town in a foreign country. And when the locals objected and complained, the entire upper class said "What are you losers talking about? The Americans are amazing. You're just jealous because they're better than you." And then the only American they've ever met is FiveHourMarathon. Just so when everyone here is acting like their mental model of an immigrant is self_made_human.

We could halt all immigration and fully denaturalize and deport the bottom 90% of immigrants, and it's likely that most Westerners who actually post to this forum would barely notice.

But the people dealing with them in parks and the subways and retail establishments and getting undercut by people's who market niche is ignoring labor laws most certainly would.

The poster I was responding to was specifically declaring to be unAmerican some Indian guys who wrote a blog post about SCOTUS minutiae in flawless English, and who another poster claimed to have met and argued about baseball with. The average immigrant is irrelevant to this argument, as he very specifically excluded a non-average one, implicitly asserting that this non-averageness does not matter to him.

(Incidentally, I think demanding +4SD for 130IQ etc. is excessive. The set of Indians who immigrate into the US is already biased towards the smarter, more looped-in with US culture set; the criteria you lay out are maybe +2.)

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