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This past Wednesday at the Supreme Court saw oral arguments in Trump v. Barbara. For those not following along this is the birthright citizenship executive order case. You can find the full transcript here.
As someone who listened to the live audio and has now read back over the transcript a couple times I think things went pretty poorly for the government. So much so I wonder if this was the straw that broke the camel's back with respect to firing Bondi. I'm very confident this case is going to be 7-2, if not 9-0, against the government.I'm not going to rehearse all the arguments, it's very long.
The government's oral argument mostly focused on the idea that for a child to be subject to the jurisdiction of the United States for the purposes of the 14th amendment their parents had to be domiciled here. Where domicile requires (1) lawful presence and (2) intent to stay. The justices (principally Gorsuch, ABC, and KBJ) poke a bunch of holes in this argument. Pointing out both practical and theoretical issues with both parts of the definition. It is not my impression that the justices were especially convinced by Sauer's answers to those questions.
The respondent's oral argument, by my read, was much more focused. Why did Wong Kim Ark mention domicile in some contradictory ways as to whether it mattered? How to understand the association between the posited set of exceptions. If the different language of the Civil Rights Act of 1866 was any guide in interpreting the 14th amendment. Interestingly Justice Alito even jumped in on this first one to volunteer a reason why Wong Kim Ark might mention domicile in the question and the holding without having incorporated it into the relevant test.
This is all tea-leaf-reading, of course, but my current read is the government is very likely to lose.
This is the same SCOTUS which reverted Roe v Wade, because they correctly felt that that decision was legislating from the bench, interpreting stuff into the constitution which was plainly not in it. To rule that the 14th does not say what it says because there is some nitpick about subject to the jurisdiction would be just as much judicial activism as the Roe ruling.
Of course, this would not be the first time that Trump loses 9-0 in the SCOTUS. Other presidents might try to avoid having their cases torn apart by the court, feeling that making arguments which few if any Justices will follow would reflect badly on them, but the Trump administration obviously does not care.
From a policy disruption perspective, I completely agree with you.
From a pedantic lawyer perspective, I disagree. Roe didn't even pretend to base its holding on some sort of textual hook in the Constitution. Instead, it was explicitly based on another judge-made doctrine about an alleged "right to personal privacy," which admittedly "The Constitution does not explicitly mention," but judges have found to be implied either by "the First Amendment . . . the Fourth and Fifth Amendments . . . or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment" (or possibly in the Ninth Amendment's general reservation of rights to the people...the Court isn't fussy about which particular justification is taken up; dealer's choice).
Instead, it's purely based on the court's own policy preferences, taking into account the opinions of the Bar, AMA, history of the Hippocratic oath, etc.
I would slightly disagree with your formulation that that aren’t unenumerated rights that the federal government (and state governments) can not infringe.
The entire anti federalist argument against the bill of rights was that people may assume that what was not written meant the government could invade those rights. The response was the 9th and 10th.
And there are certain rights (rights of Englishmen) that were long standing that were not reduced to writing. But they need to be carefully limited grounded in history and traditionalist justices supplement their will for democratic will.
Abortion pretty clearly was not an August right enjoined by all. It was in fact illegal in the vast majority of states. There was no recorded strong history of allowing abortion. The rules pointed to were presumptions (as it was hard to delineate between miscarriages and abortions).
Which, it turns out, was completely and trivially correct (the 9th was poorly-written but it's not like they could have done any better at the time)- they already invade the ones that are written down and invent novel legal theories to do so; how much worse would it be for the ones that are not (and are unpopular enough that would need a right to protect them)?
Sure they were positively correct. But that doesn’t mean unenumerated rights don’t exist in the U.S. constitutional system.
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It isn’t nitpicking to figure out what the words “subject to the jurisdiction” means.
Clearly there is a limitation (otherwise no need to insert the phrase). The real question is how far do you read that limitation.
The reality is that neither side has a good answer to this. A plain meaning of the phrase would mean anyone who US law applies to. However, that can't be correct because we know there are two groups that it never applied to until statutes were written: AmerIndians, and Diplomats and their kin.
BUT, AmerIndians and Diplomats and their kin have been consistently prosecuted for crimes, brought into courts on civil actions, etc going back to the founding. If a diplomat commits a serious crime on US soil, they are almost always prosecuted, and the visiting nation basically always waives immunity. Same was true for AmerIndians committing crimes, but states wouldn't even bother to talk to the Tribe in question. If you were a drunk Indian that killed an American you were just tried and hanged quite quickly.
So the so called "plain reading" regarding whether American laws apply to you is just a straight out red herring. Its wrong, very wrong.
So PROBABLY something along the loyalty questions that have been often remarked on in some cases in the 1800s is what it actually means. The real problem with those is that its mostly subjective question of someone's mind, and probably should have gone the other way in Wong Kim Arc if it really is about loyalty. They were still Chinese citizens, not American citizens at the time. What side of the war would an illegal immigrant or tourist pick in a war between America and Mexico/China/Etc. The real answer for most of them is the side they think is going to win. National loyalty is not a quick thing to develop, it takes generations of being in the same place and cultivating ties to the community. If we applied a loyalty test many 5th generation people would not pass. Heck, nowadays many descendants of founding fathers prefer enemy countries to prevail against the US.
I agree that it is complex. Plain reading is also dangerous when 150ish years removed (ie what was it understood to mean in the late 1800s).
My response isn’t to say “it is obvious.” My response is to say it isn’t obvious and it isn’t nitpicking.
The other poster tried to compare Roe (a case about unenumerated right that seemingly wasn’t recognized anywhere before) and this one is about untangling a challenging phrase. They just aren’t the same.
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I'd been debating trying to put together a comment on the oral argument. The biggest reason against it is because it's always surprisingly harder than it seems to actually guess votes from oral argument. I'm probably not very good at it. I did go through justice-by-justice and just review their individual colloquies. I guess maybe some observations.
I hate to say it, but Sotomayor is a known quantity. She will vote for any opinion that preserves maximal birthright citizenship. She will almost certainly not get the assignment to write the majority opinion. I doubt she'll change any minds by telling Sauer that his argument means overturning WKA. Nor by saying that their only option would be to kill birthright citizenship of children of permanent residents.
Alito is pretty similar in the other direction. Kind of at best, he piled on to the Thomas/Gorsuch/Barrett/Kavanaugh axis of asking if they can look at principles behind rules instead of just the stated rule. Similarly, he piled on to the Roberts/Kagan axis in asking, "Why did WKA say 'domicile' 20 times?" I doubt his piling on will accomplish much, and I doubt he'll get the assignment for a majority opinion, either.
I don't think Thomas added much other than starting the bit about looking at principles behind rules.
Roberts was, as is typical, skeptical of both Sauer's position, in saying that the existing exceptions were "tiny and sort of idiosyncratic", as well as starting the, "Why did WKA say 'domicile' 20 times?" push. It's always hard to read him, which is extra annoying, because he's highly likely to try to assign this opinion to himself.
Kagan was, I don't know if I find this surprising or not, the most negative on the idea that 'allegiance' has anything to do with it. That's a bit strange, because she also was the only one who said much that indicated that she was interested in considering whether there was a different answer for temporary visitors versus illegal entrants (twice!), and as I've said before, my best guess of an allegiance analysis would actually make such a distinction at least plausible.
Gorsuch, on the other hand, really seems to think that allegiance could have something to do with it. But he's maybe my spirit animal in the argument. Concerning the legal community's understanding of WKA in the aftermath of the decision, he said, "It seems to me it's a mess." Concerning how to square what Justice Gray was thinking, as he wrote both WKA and Elk, he said, "It's a struggle." Yeah, man, it's hard. He did have a wider variety of things he talked about, and I won't mention all of it, but man, how did Sauer not prep an answer for The Indian Justice asking whether current day Native Americans are 14A citizens? This was the weirdest thing, as Sauer said that now they probably were (which makes no sense to me). Wang (counsel for Respondents) more sensibly told Barrett that they weren't. There is a possible world in which Gorsuch is a swing vote, and Sauer lost it in that moment, because it's so difficult to make any sense of a theory that lets the gov't even have a partial win that makes sense with that idea. I guess there's also a possible world where The Indian Justice is actually intrigued and tries harder to come up with a theory that sort of comports with the gov't position and lets him give Native Americans 14A citizenship? It's just so strange, because it would seem to me that it would be very difficult to do so without overruling Elk, and doing so makes it even harder to piece together a theory that allows the gov't to win on any of the issues.
Jackson didn't add all that much. She's pretty confident that domicile ain't it, and she's also skeptical that Congress can affect 14A by defining domicile. She does invoke Schooner, though (DRINK!).
Barrett is always looking for a theory, and she's coming up empty with the advocates. Unsurprisingly, in my mind, since neither advocate can really embrace a theory that makes much sense. Was interesting in that she brought up Ex Parte Quirin and asked about Indians born outside of a reservation. I didn't think she got much of interest in response, though, as the conversation likely ends up mired in questions about what 'counts' as something like an "occupation" or whether that's strictly necessary.
Kavanaugh pokes on the language difference between the CRA/14A, and I think remains confused about how to make sense of it. Also was the only one to poke on whether Section V of 14A did give Congress some room to affect what "subject to the jurisdiction thereof" meant, but I'm not confident he's going to sway the other justices with that.
One brief note is that I think Schooner (DRINK!) was mentioned more than any case other than WKA, but it was repeated a couple times in a sentence; that really puts it more on par with Elk.
In sum, I should obviously say at the outset that I think the government's domicile theory is not going to win. I can't see it getting there (that part could certainly lose 8-1). Frankly, I also think it's a bad theory.
What I'd be watching most is the Thomas/Gorsuch/Barrett/Kavanaugh axis that poked on whether the set of exceptions are really closed or whether the Court should look at the principles behind the rules. I could see them going either way. I think they clearly failed to have a chance to really dig in to the next step, which would be, "If we think that we need to look at the principles behind the rules, what does that look like?" I think they were all grasping for some sort of theory that did this, and they came up empty.
Of course, I personally still think that the "right" answer is that they should look at the principles behind the exceptions, and they should agree with Wang that those principles are expounded in Schooner (DRINK!), and then try to work from there. I'm not terribly hopeful that they'll get there, but if one of them circulates an opinion that can cobble together enough of a theory that does this, I could see them picking off either some votes for a concurrence or even garner a majority. I don't know how their analysis of the principles behind the rule will actually come out; I could see that going at least two of the three ways (maybe with an extra bit of entropy on the Indian question). That's really hard to tell, given that they didn't manage to really get to responses on how they would go about doing that.
There’s a really boring answer where they’re all children of citizens at this point, but if Sauer was trying to establish that, didn’t do a great job.
Yeah, I had that thought somewhere in my notes, but I still think it's a bit difficult to reason about and state properly.
That is, one of the questions looming over the case in general is how one conceptualizes Elk, which as I understand it effectively said that Indians were not "subject to the jurisdiction thereof". By giving them statutory citizenship, did Congress in a sense overrule Elk? Did they say, "Nah, they're 'subject to the jurisdiction thereof' now, because they're all citizens and so their kids will be 14A citizens"? Or did Congress say, "Sure, they're still not 'subject to the jurisdiction thereof', but we're going to make them citizens anyway"?
This ties into the question of whether Congress is able to sort of change the meaning or application of 14A via passing statutes. That may be my first attempted explanation for why Sauer/Wang came out on this question in an unexpected way. If Congress is able to simply say, "They are now 'subject to the jurisdiction thereof'," in isolation, without changing anything else about tribal relations, prosecutability/immunities/etc., then how do we understand that? Maybe we have to say that they couldn't do it entirely "in isolation", and that making this choice had to have come with other consequences? I don't know what the right answer is!
One other funny thought is that it is possible that Sauer had planned ahead for this question, and he devilishly prepared his wishy-washy answer as a way to avoid committing, but giving room for Gorsuch to read either result into his position. Barring that, though, it's possible that he was leaning in the direction he was at least in part because it contributes to the idea that Congress can make choices that affect the meaning/application of 14A. Whereas Wang wanted to go in the other direction, because she doesn't want Congress to be able to make choices that affect the meaning/application of 14A. She sort of needs to be able to say that Elk/WKA were just right, exactly the categories that they stated were the only categories once and forever, and nothing can ever change that (except, obviously, another amendment).
I don't quite get why statutory indian citizenship need implicate the 14A at all; Congress clearly has the power to naturalize under Article I, and "all members of registered indian tribes are automatically born citizens" seems surely within their power. I could see how it could be janky if someone tried to raise a question like eligibilty for the presidency, but again that seems pretty easy to side-step.
I think the hard question here is about what it means to be a citizen, and to what extent that relates to being "subject to the jurisdiction thereof"? Does a citizen owe allegiance to the nation? Side question: is that allegiance permanent? Does the nation owe them protection, due to their citizenship? Is there something else that is involved? How do these things differ from the criteria used to determine whether someone is "subject to the jurisdiction thereof"? Can a true, full, no BS citizen have some sort of "primary" or "direct" or whatever allegiance to some other entity/sovereign that in some way makes them not "subject to the jurisdiction thereof"? Can Congress create some sort of "alternate citizenship" in which an alternateCitizen is not "subject to the jurisdiction thereof"?
I can see weirdness that we'd have to engage with no matter which way we go on the question.
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Indians were given citizenship by statute a century ago. Given that they're aIready citizens regardless, this hardly seems worth losing sleep over. I'm clearly missing a piece here. What else does this tie into?
Being Indian was one of the known and accepted "exceptions" of the 14th Amendment. To figure out if new exceptions apply, we need to suss out an underlying logic to the exceptions everyone already agrees on. I think answering this question incorrectly would seem to indicate that the internal logic you took to get there must not be right.
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It is a little thing, but I think Gorsuch sometimes likes little things. There has been a sense in many of the discussions happening around this case that there is an important, even if mostly symbolic, difference between being a 14A birthright citizen and being a statutory/naturalized citizen. Part of it is, I guess, some sense of "Congress can't take that away, even if they wanted to".
I mostly find it kind of funny; I tried to downplay the reality of it being a significant issue with "I guess there's also a possible world", but maybe that wasn't enough. It's a very very minor thing, and I think the much more important issue for him (and a few other justices) is whether he can come up with a theory that makes sense of the "mess" (or whether another justice circulates an opinion that does).
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Bondi has little-to-nothing to do with SCOTUS briefing and oral arguments. That's the province of the Solicitor General.
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My best guess (and that is all I claim it is) is that we might get a baby-splitting decision that manages to somehow save the citizenship status of persons who have already been enjoying the privileges of citizenship due to being born here, whilst opening the door for denying future persons birthright citizenship on broader grounds, going forward.
Roberts really does love his 'compromise' rulings.
There is certainly an "estoppel" argument where, if the U.S. government has declined to challenge a person's claim to citizenship, and has been conferring upon them the benefits of citizenship since their birth, that it would be manifestly unjust to then later suddenly declare them a noncitizen without some other legitimate justification for expulsion.
But that wouldn't mean that every person in the U.S. going forward would get that same benefit. Surely there's also an argument that if a person enters the U.S. completely undocumented, in violation of multiple immigration laws (most of which were implemented after Wong Kim Ark), and the government by its actions (i.e., enforcing its immigration laws and siccing its agents on them to remove them) declares that it doesn't abide their presence here... any kid(s) they manage to pop out wouldn't be 'subject to the jurisdiction' of the U.S. in a politically meaningful sense?
It certainly seems, to me, that Citizenship should in theory require a governmental stamp of approval. That is, one shouldn't be able to just enter a territory, trigger some arbitrary condition ("eats a handful of the local dirt" as an absurd example) then declare themselves citizen without the government even being aware of their presence. Citizenship is a political designation after all.
Anyway, I am woefully underinformed (for an attorney) on 14th amendment matters. Its simply not my specialty, so this is me more going off my reads of the Justices themselves than strict legal reasoning. Birthright citizenship had been the default for so long that it never occurred to me to even consider if it could be challenged.
From the purely practical standpoint, if SCOTUS declares birthright citizenship completely inalienable outside of the few narrow exceptions, and congress won't use its clear authority to adjust this (which, I can't expect they will) then the only possible response that makes sense is to implement the most stringent border controls imaginable, if merely being born here gets you a valid social security number and entitlement to claim any and all benefits they might then qualify for.
That is, if we're going to maintain the current web of welfare benefits and entitlements and wealth transfers where existing citizens who are obligated to keep on paying taxes will be on the hook to pay for every single kid who happens to be born here, whether that kid is productive or not, and every single one of said kids will also be entitled to vote on the continuation and extension of such benefits, we're starting to diminish the political value of being a net taxpayer at all.
At some point it is valid to question whether the Constitution is still fulfilling the purposes it was created for as per the Preamble.
EDIT: And to be clear, I am absolutely fine with biting a bullet where even kids born in the U.S.A. where both their parents are citizens wouldn't inherently get to claim citizenship. I think exile is a politically useful tool and should be used more often, and its actually a bad thing that the U.S. only has the options of life imprisonment or execution for certain classes of crimes, the latter of which is very difficult to implement.
This seems like the most likely answer here; Roberts will kick the responsibility for unraveling this back on Congress, who will, predictably, do fuck-all in either direction.
Generally speaking, the most accurate heuristic I've found for predicting supreme court cases is "what decision will allow Roberts to keep attending beltway dinner parties". So far only the recent abortion ruling has failed that one.
Yep.
That the Supreme Court has swung more conservative in recent years is somewhat hiding the fact that Roberts will tack with the wind but generally keeps both wings of the court from capsizing the boat with a major upheaval ruling.
I genuinely wondered, way back when, why Roberts was made Chief Justice immediately upon his appointment, despite several other sitting Justices having seniority.
This is probably why. Both sides (at the time) could stomach his ascension to the position for exactly this reason.
It's a little bit of SCOTUS trivia but the "Chief Justice" is just a particular seat on the court. Only 3 (of 17) Chief Justices were raised from an Associate and only 5 had ever been an Associate before becoming Chief.
Yeah, the need for Senate Approval at least divorces the decision from any internal court politics, probably for the best.
In theory it doesn't add much prestige compared to getting the seat in the first place. So much of their apparent influence is defined by traditions that they don't care to upend.
Still, it would make sense that you'd want that seat occupied by a relative moderate.
The most important thing is being able to assign the opinion if in the majority.
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And if the answer is that it isn't, what then? What does that matter, if there's nothing you can do about it?
The Constitution itself provides an instrumental example - it was completely illegal under the then-extant Article of Confederation, but it turns out you can just do things if there's the political will and organization to do it.
Ironically, this is why I think SCOTUS might be trying to thread a needle here.
If they completely rule against Trump, and he just decides to keep on doing his thing... and Congress declines to respond to that, its a probable fatal blow to their legitimacy.
It is no longer clear to me that many people will freak out if Judges get ignored.
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That's a very Laconic "if" there. I'd argue that there isn't the political will and organization needed, and that any attempt to build the organization would be crushed well before it could get off the ground.
I agree that the requisite will and organization doesn't exist now. I semi-agree that attempts to build it might be crushed. However, nothing ventured, nothing gained. Faint heart never won fair maiden, etc. etc. etc.
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Easy.
Quoth the Declaration of Independence:
I like the word 'whenever' in that context. Its not like you have to wait for a prescribed moment.
But I expect most people aren't so uncomfortable as to really desire that, and certainly the most rational amongst us realize that the cost of such a step would be insanely high, and the risk of something worse replacing it is real and serious.
That is addressed in the next sentence.
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I saw someone make the interesting point that the Amendments Clause simply provides a way to amend the Constitution. We could double down on the Late Republic vibes by adding national plebiscites.
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The Declaration of Independence and the American Revolution occurred near the peak of the "age of the gun," when the nature of warfare was most favorable to the masses versus states. That ended some time ago, and modern first-world governments are effectively rebellion-proof.
If the United States hadn't withdrawn in a hurry from Afghanistan after 20 years of pouring military materiel into it, I might grant that argument.
But as it happens, a bunch of religious zealots with guns won their country back despite the economic and technology imbalance.
This directly implies it is, overall, a contest of wills more than pure technological might.
And I do not think that modern first-world politicians are assassination-proof.
Since, you know, the guy who is currently President came within millimeters of being assassinated about two years ago.
By dude with a gun.
And civilian uprisings have successfully unseated heads of state in Nepal, Madagascar, Bangaladesh, and Sri Lanka.
That's just the past 3 years. I do not think 'first world' governments are qualitatively more secure than the governments of those countries.
The feature that makes a first world government rebellion-resistant is the ability to keep people economically pacified, I'd say.
So I just fundamentally disagree that rebellion can't be achieved under modern constraints.
Whether rebellion can successfully foment a change for the better, I do wonder.
First of all, as I've explained many times before (all the way back to the subreddit), fighting off a foreign occupation is an entirely different thing than a domestic insurgency. Guerrilla warfare can sometimes work to accomplish the former, never the latter.
No, but they're entirely replaceable. Because elected politicians are basically figureheads (see Congress, the Biden presidency, etc.). Kill them and nothing much changes. Because the actual government, where the actual power resides, is in the million-strong permanent bureaucracy. The "swamp." The "deep state." And how effective is assassinating a few faceless bureaucrat, when there's millions more just like them?
First, I wouldn't class any of those as First World countries. And second, did unseating and replacing those heads of state actually replace the regimes as well, or did the same Deep State stay in place and keep on running things in pretty much the same way? (I'm genuinely asking, because I don't know.)
And I doubt any of them had anything comparable to the massive surveillance apparatus of the US Government. Or the might and — more importantly — sheer institutional loyalty of the US Armed Forces.
To quote Google's AI (since some people here appreciate this sort of thing) when asked if such a rebellion could succeed:
Or, from the National Constitution Center:
Never? I mean. I can think of some examples: the Cuban revolution, the Chinese revolution, the Nicaraguan revolution, the Rwandan civil war... Frequently guerillas become something more like a regular army as they develop strength but that doesn't take away from the fact that they were able to develop into regular armies starting from guerillas.
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In the American tradition (going back to the "Revolution") governments are found on both sides of the rebellion, and any rebellion that meaningfully threatened the status quo of the regime (I don't use the term in a pejorative sense, mind you) would almost certainly involve a split government and likely a split armed forces.
However, overthrowing the government is not the only way to use violence to influence policy (Declaration-poasting or no). While a ground-up rebellion in the United States would not overthrow the government, it might gain concessions. Just look at how appealing the idea that we should get rid of drug laws to stop incidental violence is to the general public and extrapolate from there to Troubles-like situations.
And it is precisely because of the unlikelihood of that split government that one will not see rebellions meaningfully threaten the status quo of the regime.
Highly doubtful. (This bit from Military Strategy Magazine comes to mind.) I think Yarvin is right that when you see the government make "concessions" to appease some violent group — always a leftward concession — this is just a Mutt-and-Jeff act where the violent group is just giving (Left) elites an excuse to sell to the public for doing something they already wanted to do anyway.
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Sauer: "It's a new world, 8 billion people are only a plane ride away"
Roberts: "It's a new world, but it's the same constitution"
ACLU lawyer: "let me be clear, we need to go with the original public meaning"
It would be funny if it wasn't so infuriating.
The original public meaning has two main exceptions that make the ACLU's position nonsense: Indians and Diplomats. In 1866 those two groups couldn't just go around raping and pillaging and avoid being hauled into American courts. To quote that insurance commercial, "Thats not how this works. Thats not how any of this works."
If we arent going to reconsider WKA. And we probably aren't. The principled question to ask about any immigrant group is, "are they more like a permanent resident or more like and Indian/diplomat?" Tourists seem more like a diplomat. Illegals seem more like an Indian.
Yes that actually is, to some degree, how it works. The tribes exist as independent sovereign nations under the US's ward and they have some weird things they can do because of this like having their own passports if they want (even if it's not accepted by most other nations) and until 1871 were able to form treaties of their own unlike the states. They can even have their own independent court systems for tribal laws, although in practice most tribes tend to form agreements with the state and county governments in regards to law and the courts.
About that, even the law that allows for prosecution on tribal land is pretty interesting
The federal government actively acknowledges tribal sovereignty here and gets around it by basically saying "hey you're your own nations, but we're just gonna come in regardless and prosecute your people the same we would those in our own jurisdiction". It's like if the US says "we're going to invade Venezuela and kidnap + prosecute the president there. Venezuela doesn't belong to us, we're just doing it anyway". That doesn't make the Venezuelan territory under US jurisdiction.
The jurisdiction and history of US law over tribal nations is extremely complex and it doesn't work for the immigration debate unless you're trying to argue that each illegal immigrant creates a shifting sphere of foreign sovereignty on the ground they're currently standing on or something else crazy like that.
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But the constitution was written in a completely different context. When Jefferson wrote the declaration, and even up to the end of the civil war, coming to another country was a fairly difficult task. You had to be at sea for a few weeks at minimum, often having to sell off most of your assets to get here. Given that our southern border was mostly wilderness at the time, marching across that border wasn’t really a feasible plan. Birth tourism would be impossible. You simply cannot do that kind of thing. So it’s not clearly the original intent to allow 8 billion people to hop a jet and give birth on the LAX tarmac.
Apart from faceh's argument below, it also seems to me that if a lawmaker passes a law because it seems like a good idea at the time, the times change and now it no longer seems like a good idea, then it should be up to the lawmaker to revoke that law. If you want this to be up to the courts, you at least ought to force the lawmaker to bundle each law with some text describing the contingent circumstances that the law is meant for, rather than simply letting the court and the commenting public engage in motivated guessing ("surely they said this because there was a frontier to settle and they needed bodies, which is no longer the case"/"surely they said this because they wanted to found a country to rule and represent everyone living in its confines, which is just as applicable today").
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Except that it clearly was, because there was all that wilderness to settle, and increasingly factories to staff-up. They were literally giving land away to anyone that could prove they could work it productively.
Except that it clearly wasn’t, as citizenship was restricted to “free white persons” of “good character” in 1790, only three years after the Constitution was written.
That was actually a radically open position. Europe - and thus white people - were really the only substantive population which had any access or ability to immigrate to the US in anything more than token numbers. The 1790 act is, in essence, throwing the borders open to everyone who reasonably could make it to America.
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Yeah that was just Racism with a capital R. We're better than that now.
America can’t be a great country without R with a capital R. Unfortunately great countries are people not words paper or geography.
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Call it what you will, it clearly wasn’t open borders.
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This is the same category of argument that says "the Second Amendment should not apply to modern firearms because technology improvements now makes them far more lethal and pose a greater threat if misused."
Of even further "1A rights don't protect free speech on the internet because now we have cables that span the ocean and let all sorts of people transmit speech into the U.S. where before the best they could do is send a letter."
Maybe you agree with both those arguments. I just want to point out what this proposed approach implies.
I think, though, you can narrow the 'intent' question' to simply ask "was this language intended to make it easier for children of aliens to become citizens?"
If not, then no need to interpret it very broadly.
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Bingo.
I like originalism/textualism for at least TRYING to tie Constitutional interpretation down to some baseline reality/principle that exists outside of the Judiciary's own biases and beliefs. Something 'concrete' you can point to for others to see rather than plucking it out of, effectively, thin air.
But invoking it only when you're trying to uphold a series of laws or precedent that have basically refuted the original intent of a given Constitutional precept is laughable when you have already granted that the founding document itself is 'up for reinterpretation.'
And you do get into the question of the meta intentions of a given rule. The 14th amendment has the problem where it was solving a number of different problems at once (and it was basically passed under 'duress' WRT to the former Confederate states. But leave that aside.) and they all got a little muddled in the final version. Its not as clean as, say "women get the right to vote now" or "oh shit we shouldn't have banned booze, its legal again." I think its clear that MOST of the intent was to 'forcibly' course-correct from the shortcomings that led to the Civil War.
Like, Section 3 of the 14th Amendment is CLEARLY aimed at keeping former Confederates with suspect loyalties from regaining political power. I DO NOT think it was meant to create any new legal definitions that would expand on the EXISTING definition of treason. It would be absurd, I think, to say the 14th creates a new definition of treason or insurrection to override the old.
So in that sense, I think it never should have been so broadly expanded to create concepts like substantive due process (fuck you, Lochner.), or 'disparate impact.'
And I'm sort of skeptical of the incorporation doctrine too.
So if there was never any 'meta intent' to make it easy for children of aliens to gain citizenship... its very sketchy to claim textualism as backing the argument that birthright citizenship MUST be interpreted as expansively as humanly possible.
It does bring up an 'interesting' hypothetical. What if a billionaire started buying plane tickets to the U.S. for every single 8-month-old pregnant woman he could find on the planet. I will grant that the U.S. would not be justified in shooting down airplanes that are inbound, packed to the brim with pregnant women. But could it deny them entry for no other reason than "we don't want your kid born here?"
As a litigator, there are any number of things I might take into consideration when making an argument in front of a judge, including favorable facts, unfavorable facts, favorable law, unfavorable law, and the kinds of arguments the judge tends to pay attention to. On thing I have never taken into consideration is whether my argument is intellectually consistent with an argument I've made in the past, even if I'm arguing for the same client in front of the same judge in a case with substantially similar facts to a case I've argued previously. Indeed, if a judge tells me he doesn't buy my argument, I'm not going to waste my time in a future case making that argument. If I did, I may be consistent in my opinion, but I'd be doing a disservice to my client, putting my own sense of moral consistency ahead of their very real legal jeopardy.
And here you are, saying you're infuriated because a lawyer whose prior stances you aren't familiar with is arguing in an area of the law that hasn't been relevant until very recently in front of a court that has repeatedly signaled that they have a tendency to find some lines of reasoning more persuasive than others. What's she supposed to do, proceed with an argument that she thinks is a loser because she is, in some abstract way, acting as a representative of "the left" and other people who have nothing to do with her or her case besides a vague association with "the left" have made similar arguments in the past? What kind of advocacy is that?
Not trying to demean you as a litigator but isn’t that what most of the legal system is about anyway? Most cases are just a performative exercise in plausible sophistry, and I’m not using that term disparagingly, but ultimately it’s about persuading the judge.
Isn’t it also the case as I’ve read that most parties sue in order to settle out of court? Parties that litigate to the very end are fairly rare from what I heard, which is why I remember when the Newegg case happened several years back with that one patent troll outfit, it garnered a lot of media attention and notoriety because Newegg counter sued in order to get all their patents invalidated. When the party that originally sued them first sent them a memo, Newegg basically sent a letter back saying “… Uh. Do you know who we are?…,” and they then retracted their original infringement claim but did so in a way that basically said they’d reserve the right to go after them later. That’s when Newegg attacked.
Sophistry? No. If I wanted to engage in sophistry I'd argue a lot more motions than I actually do.
I don't know if that's exactly the way I'd phrase it. Cases going to verdict are certainly rare, yes. However, a good number of cases are dismissed before it even gets close to trial, and a lot of cases will just sit on the docket because the plaintiff isn't motivated enough to get things moving. If a case is actually going to get in front of a jury then it means it has some merit and the defendant isn't going to take the chance that the jury decides it's worth more money than the plaintiff is willing to settle for. The plaintiff, on the other hand, isn't going to get greedy and pass up guaranteed money when they could be walking into a defense verdict. Add into this that the courts have a positive bias toward encouraging parties to resolve matters on their own, with some even requiring pretrial mediation, and it's so surprise most cases settle. The Newegg case happened because the calculus changed whereby it was cheaper in the long run for them to countersue in the hope that it would discourage future litigation.
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I think I can be annoyed with the ACLU IN PARTICULAR for their recent track record which runs away from the principled defense of civil rights in the abstract, even defending the most unpalatable of parties for the sake of achieving good precedent for everyone, and towards defense of the rights of particularized subgroups whose interests sometimes run counter to the larger popuplation.
I'm sure their policy positions are internally consistent, Birthright Citizenship is a 'civil right' after all. But their choice of which principles to defend has been suspect to me since I noticed they decline to treat the Second Amendment with the same deference as the rest. My BIG issue with them came when they threw religious liberty under the bus since they wanted to ensure that gays could force people to bake wedding cakes.
Where in the hell do they derive "The Right to Equal Treatment" anyway?
I made a donation to the ACLU because one of their canvassers approached me on the streets of Portland, Oregon in July of 2011. I gave them $20. I felt a little warm and fuzzy about this at the time.
I've wanted my money back ever since.
So anyhow, if they want to argue Originalism one day and living constitutionalism the next, especially with regard to different issues, that is their prerogative.
I don't think I'm required to respect them for it.
You're entitled to your opinions on the ACLU, but they have very little to do with this case, other than that they're paying the attorney who handled it. Their participation is incidental, and if it wasn't for their public profile, would be entirely unknown. News coverage of high-profile lawsuits rarely mentions the insurance companies that are actually paying for them.
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Personally from what I’ve seen online they did a good job but it’s a hard fight. Legally the words are not clear and you can be intellectually honest with a contextual argument that birth right citizenship does not exists.
I think the left is correct that you should just nominate team players like Kentanji Jackson. It’s silly our highest legislative body is controlled by who can argue the best. Just simplify it and appoint people who will be loyal and pass the laws you want.
Legislators are elected, not appointed.
I think he's snarking that SCOTUS is, in fact, our highest legislative body.
Correct. And of course Senators were once appointed and not elected. Above someone notes argues how the ACLU argued contextually on the Constitution and the Right is now making “Living” arguments. Until recently the Court did act as a leftist Senate and did the things the left wanted while the right would argue the words.
As power shifts the side with power wants to define the meaning of words. When the court flipped one probably should have expected the right to be “living” theorists and the left to be “textualist”.
I don’t have interests in understanding the arguments in Obgerefell but it seems ridiculous to me that a document can mean one thing for 200 years and something else later. Debating the words just seems like a fun game some nerds play. This case comes down to the word “jurisdiction” and its meaning. I am probably 70-30 it means an expansive with birthright citizenship but when the amendments were passed many of the legislatures would have read the words narrowly. This isn’t physics where there was anl correct answer. It’s the usage of political power.
The meaning of the words to me seems like only something the right has cared about for most of my life. I would prefer to give up the charade and just do what you want to do.
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