This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
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.
More options
Context Copy link
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link