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PaperclipPerfector  1mo ago (text post)   24313 thread views

Culture War Roundup for the week of June 22, 2026

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Does SCOTUS normally "save the best till last"? We have seen a flurry of opinions at the end of the term, and they appear to be in roughly increasing order of importance, with no sign of the 3-4 biggest cases, which I think are:

  • Barbara (Birthright Citizenship)
  • Slaughter (Will SCOTUS overturn Humphrey's Executor and ban Congress from creating executive-branch offices with just-cause removal protection)
  • Cook (In effect, can the President manufacture just cause to remove a Fed governor by indicting them for a serious crime they may or may not have committed)
  • Watson v RNC (Can states count postal votes postmarked before polling day but received after it)

The first three are all "Is this even the same Constitution?" level cases, and noisy idiots on both sides think that Watson is a "Do we still have a functioning democracy?" question, although in my view it is an unimportant technicality of election law. I would say the only cases of this importance which have been decided are Learning Resources (the tariffs) and Callais (race-based redistricting), both of which had strong practical reasons for the majority pushing a decision as fast as possible. Cook and Slaughter weren't even argued late in the term.

So the question I am asking is whether the justices are holding the biggest cases to drop together on the last day of the term out of some daft sense of drama (or more nefariously, to minimise the amount of public and press attention they get compared to dropping them separately), or is there some hitch delaying getting the opinions written. I can definitely imagine the cases being delayed because the justices are writing increasingly angry concurrences and dissents at each other, but it is also within the realms of possibility that there is still substantial haggling about getting to 5 votes. Barbara and Slaughter are both cases where a plurality opinion would embarrass the Court as well as being a practical headache.

Birthright citizenship is obviously supported by both Constitution and statute, but I imagine there's a lot of wrangling over the wording of the opinion of the court (which may be unanimous, maybe 8-1 if Alito is as much of a hack as one ex-poster claims).

The Court probably didn't consider it, but the recent California primary election demonstrates that counting late votes is at least an important technicality of election law, though California goes beyond postmarks and allows ballots with a hand-written date before the election day.

It isn’t obvious to me. Randy Barnett and Richard Epstein both have laid out strong reasoners why this wasn’t the case. Likewise, it wasn’t obvious to Dick Posner why constitutionally this was required.

The real question in my mind was whether the change to the civil rights act language was designed to grant birthright citizenship.

obviously supported by both Constitution

Is it really that obvious, when the 14th amendment was in part passed in order to authorize the civil rights act of 1866/1870, which defines citizenship not using the language of jurisdiction, but of being subject to a foreign power? Presumably those two definitions should be interpreted as synonymous if possible.

One candidate explanation I considered for the delay of Barbara is that the straw poll was 7-2 or 8-1 and the majority are trying to find some concession to make to Thomas/Alito to achieve a unanimous verdict.

I feel like Robert is a pragmatists and knows the world is changing. I don’t think he’s the type to create a precedence that can’t be undone later to deal with the modern world. If he maintains birthright citizenship he’s going to lay a path for a future court to get rid of it. Something like how he protected ObamaCare where he didn’t get rid of it but let the legislative branch deal with it. Which may be why they are doing it slow.

There are a lot of very good reasons to get rid of it in the modern world. From guest workers to selling American education America needs ways to let people in the country without always attaching Citizenship to it. If the right is in power with birthright on the books then the correct number of Visas to issue per year is essentially 0. Tourism, education exchange, farm labor, etc should not include citizenship.

There are a lot of very good reasons to get rid of it in the modern world.

We have a process for it. It is outlined in Article Five, same as for getting rid of any other amendment (e.g. the second).

We both know amendments are not getting passed anymore.

Who needs to pass the amendment - proponents of birth right citizenship? They could pass an amendment clarify that jurisdiction means anyone born on US soil.

Absent either side passing an amendment the SC I guess has to make a decision on the meaning of jurisdiction. When laws are not clear you can almost make an equally strong argument that the executive has authority to define what a word means.

It is up to the courts, not the executive to interpret what the laws mean. And courts tend to follow past rulings for the most part, which is bad news for anyone who wants to get rid of birthright citizenship.

If the executive could just define what words in the constitution meant there would be no point to having rights in the constitution in the first place. President Newsom could just define that 2A meant "the portion of the upper human appendage, from the shoulder to the wrist and sometimes including the hand" by "arms".

Actually I don’t think it’s clear at all in our system that Courts get to create law when the law is ambiguous. Which is important for birthright because we do not have a definition for Jurisdiction. Courts would still have a legal author to make ruling when the law is clear so they still have a purpose. In the case of birthright I don’t think a Court should be able to rule either way. If the executive does birthright then the court can’t say it’s illegal to do it but they also shouldn’t be able to rule not having birthright is illegal since the statute didn’t define the meaning of jurisdiction. There are no wrong answers to the meaning of jurisdiction.

Good thing it's a different branch that has arbitrary power to define what the words in the constitution mean. Law of the conservation of sovereignty, ya know.

Birthright citizenship has the awkward situation where there's a lot of circumstantial evidence that the modern read isn't the same as the historical one - most clearly with needing explicit statutory authorization to make Native Americans citizens - but the modern one has been around and has so many massive ramifications that the stare decisis arguments vastly overwhelm a bare EO.

If the court finds a birthright citizenship not only supported but required by the Constitution, I could see a 7-2 or even 6-3 breakdown (though they might be styled as concurrence-in-judgement). Roberts has a lot of motivation to constrain the bounds of the decision and to get a 9-0 or 8-1 if at all possible, though, and limiting the opinion to just 'existing statutes say people born here are citizens, change the law and then we can talk again' is both easily available and bypasses a lot of the messier questions, if only because the statute (despite using the exact same words) was written in 1952 ED:the 1920s, so it simplifies all of the originalist arguments. But it would be a really obvious punt.

I can see the logic for the Native American decision; here are all these tribes living on this land mass we call America, and they have their own little realms or confederations or what have you. Meanwhile we are creating the political entity called the United States of America, and just because we are living cheek-by-jowl with these people does not make them automatically citizens of our polity, anymore than the French living in that chunk of land down south are citizens.

Then the USA embarked on a massive programme of expansion, and settled more of the landmass, and eventually ended up being the dominant state having settled, granted statehood to, and purchased territory all around them, so now the Native Americans were a minority living on the land and where exactly were they citizens of? Their own confederations were gone, they weren't foreigners so couldn't be packed off home, solution: they're American citizens (with some special circumstances added on).

There's not really much useful to actually be gleaned from native Americans regarding birthright citizenship cause they are a very weird and unique situation.

The Indian naturalization act was necessary because of previous decisions that treated the tribes as sovereign entities of their own. (see Cherokee Nation v Georgia and Worcester v Georgia). Due to this, they actually had a lot of powers that states didn't have like the ability to independently enter into treaties with other nations. So they couldn't be entitled to birthright citizenship because they in a weird legal sense were not considered to be in the US "properly", they were considered to be in the tribal land. Despite that about 60% of indians were already citizens anyway due to the Dawes act, having a citizen parent, treaty agreements (like the Choctaw tribe), and many other factors. And yes even now tribes still exist in a very strange legal status, as "domestic dependent nations". with their own sovereignty rights.

It does make for an interesting possibility depending on how the Indian Naturalization Act is worded. If it is particular enough, it might be possible for a non citizen to give birth on tribal land outside of proper US jurisdiction and therefore not get the kid birthright citizenship. I imagine it would be ruled as included now from the act but it would depend on the actual words there.

But the question is if an Indian was off the reservation and gave birth would the child be a US citizen? It is far from clear the answer was yes meaning it is entirely relevant to the question of birthright citizenship.

The reason the native American matter is important is that foreigns also belong to a sovereign polity that is not the USA .

The phrasing in 14A is "subject to the jurisdiction thereof".

Think about it this way: if a Native American killed another in some reservation in 1840, it seems very likely that US officials would have considered that to be a matter for the tribal authorities to deal with. Likewise, if the French ambassador murdered another Frenchman in the embassy, it seems possible that the US would decide to let the French justice system deal with it rather than figure out if they can arrest him without causing a diplomatic incident.

By contrast, if a German tourist stabs another German tourist in NYC, the state of NY will very likely claim jurisdiction over the matter. Same if one undocumented immigrant murders another one.

By your standard, an Irish migrant could have decide to take his family back to Ireland, and would likely have gained the Irish citizenship for any US-born children, so all of his family "belong[ed] to a sovereign polity that is not the USA" -- but that is simply not the text which was ratified as the 14th.

The German Tourist doesn’t pay US taxes. So US lacks full jurisdiction. The undocumented migrant isn’t paying taxes on their savings account in Mexico. If you manufacture cocaine in Colombia the US claims jurisdiction.

This is why the 14th just meant slaves is a plausible argument on the meaning of jurisdiction. There are powers the US had over slaves that any of the other proposed groups the US does not have on them. The US is only going to have less jurisdiction over any of these groups than they had over blacks.

I don’t think there is a right answer here. Some of the people in the legislature voting on it with a broad understanding or jurisdiction. Some people voted on it believing the amendment was specifically referring to slaves.

The German Tourist doesn’t pay US taxes.

Because they are not allowed to work on a tourist visa.

If you manufacture cocaine in Colombia the US claims jurisdiction.

That is an interpretation I could get behind. As the US de-facto claims worldwide jurisdiction, and enforces their laws through kidnappings and drone strikes, every human is born under their jurisdiction and is as such entitled to the US citizenship, so they at least get to vote on the people who will order drone strikes against them.

(TBH, I would much rather have the US stop attacking random people than offer citizenship to every Afghani and Venezuelan, but it is still better than nothing.)

You don’t need to work to have income. The US doesn’t tax a random German on capital gains. The US does not have this type of Jurisdiction.

That’s all we need to strike down birthright. You just need to show a type of jurisdiction the Feds lack versus the jurisdiction they had on slaves. Any differences give you legal room to end birth right.

The German Tourist doesn’t pay US taxes.

They pay sales taxes, of course. Oh, you mean income taxes? Well, 40% of American households pay $0 in income tax.

The undocumented migrant isn’t paying taxes on their savings account in Mexico.

Maybe, but they are in fact required to do so, and I don't think your view would change if they did (or if they didn't have a savings account).

If you’re not able to enforce jurisdiction……you do not have jurisdiction!!!!!

This may be the key point in this debate. The US does not have the ability to enforce jurisdiction. Slaves we had enforcement jurisdiction.

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We are talking about what happened on US territory (because that's where the births in question occur). If in 1866 an Indian stabs an American or another Indian in Iowa City, they would have faced the Iowa criminal courts. Thus they are at least somewhat under the jurisdiction of Iowa and the US.

However we know that does not mean they are "subject to the jurisdiction thereof" as stated in the 14th because if that same Indian gave birth in Iowa City the kid would not be a citizen.

As frustrating as it may be for us court-watchers, sometimes punting is the right answer.

It's only important because California allows it. While there are always going to be people who miss the deadline, if you tell people they only have to have it postmarked by a certain date, there will be people who view that as the date to get it in the mail. If you change the date, I imagine a good number of people, if not the vast majority of them, will observe the new date. In 2020 there was some uncertainty over the status of late-arriving ballots in Pennsylvania, but it ended up not being much of an issue since there were so few of them, and there would probably have been even fewer if there was clear guidance that ballots should be mailed by a certain date to ensure that they were received on time.

I have seen examinations of this in light of "okay so born in the USA means you're a US citizen, but what if it's 'Mom got pregnant in Mexico or elsewhere, hopped over the border to get you born in the USA then hopped back over the border to live in Mexico or wherever, until the family decides they all want to move to the US with you as the anchor baby'?"

I vaguely remember something about this a few years back where some guy was of uncertain citizenship, there were dual passports or citizenship claims or something, and Mom plus midwife* was very vague on where exactly he'd been born (just over the border in US hospital or not) because he'd been raised all his life outside the USA until he moved there and then something happened to need his citizenship proven (I think but I can't be sure it was case of "is he illegal immigrant or not?")

*Fuzzy on details of story but I think there were also allegations that some, at least, border hospitals were very accommodating about questions of 'sure, X was born in the good ol' US of A!' in cases like this.

I read an article about midwives in Texas writing false birth documents for Mexican babies wrongly asserting that they were born in the US. The Obama administration let this slide. Trump did not and suddenly these people are screwed. Some grew up in the US and are not legal residents.

Most 2A legalize is based on pragmatism versus wording. We could easily go down that path with birthright citizenship and the Constitutional argument that birthright is limited is a lot better in my view than any of the limits they’ve put on 2A.

The non-obvious part of Birthright is clearly that “subject to the jurisdiction” needs to mean something. And that phrase can mean anything a reader wants it to be because it’s not defined anywhere and if your intellectually honest you do some kind of historical analysis or you can just not give a shit and define “jurisdiction” in the optimal way for your view.

“subject to the jurisdiction” needs to mean something

It means that an exception is made for children born to diplomatic personnel, invading troops or their camp followers, and Indians Native Americans Amerindians Indigenous people First Nations whatever the preferred nomenclature is this week who were considered not part of the United States.

And it isn’t obvious why illegals are not a modern analog to Indians.

The children of diplomats exception doesn't make sense under the theories presented by the parties suing the Trump administration though. Its not like a diplomat (or their child) can commit a homicide and the US will just ignore it and not prosecute. The same is true of an Indian who wandered off a reservation in 1900 or a Canadian who drunkenly boats into American waters and rams another boat. All those people get prosecuted in American courts for said crimes. So that cannot mean what "subject to the jurisdiction" means.

Its not like a diplomat (or their child) can commit a homicide and the US will just ignore it and not prosecute.

The Vienna Convention on Diplomatic Relations says that the host country can't prosecute an accredited foreign diplomat, an accredited member of the administrative and technical staff of a foreign embassy (except an host-country resident employed locally) or the accredited family members of those groups - and this absolutely applies to crimes committed outside the embassy.

This immunity can be waived by the sending state, and most host countries would seek such a waiver if a foreign diplomat committed murder, but they probably wouldn't get it. The most cases are probably Yvonne Fletcher (a British cop shot out of the window of the Libyan embassy in London, causing us to suspend diplomatic relations and kick the Libyan diplomats out, but no attempt to arrest the shooter) and Jamal Kashoggi (a Saudi citizen and US green card holder butchered in the Saudi embassy in Ankara, leading to no official response).

The Vienna Convention on Diplomatic Relations says that the host country can't prosecute an accredited foreign diplomat, an accredited member of the administrative and technical staff of a foreign embassy (except an host-country resident employed locally) or the accredited family members of those groups - and this absolutely applies to crimes committed outside the embassy.

Yes, but it can be ignored. Certainly if a defendant attempted to bring such a claim in the Southern District of New York no judge would entertain it (or perhaps some goofy one might, only to be swiftly overturned).

In any case, I only even bring up the diplomats because it highlights the absurdity of the proposed interpretation of "subject to the jurisdiction" is by the parties suing the administration (the American Indian precedents are even more devastating and voluminous). Their sole legitimate claims are all statutory (which are actually strong). But the 14th Amendment can not mean what they are claiming it means, because then the children of diplomats would get birthright citizenship unless they are born in the embassy.

There was also the death of Harry Dunn who was struck and killed by a woman from US Intelligence because she was driving at speed on the wrong side of the road. She fled the country and America refused extradition. The US declined to charge her with any crime and she was never punished.

Another incident happened in 2023 but this time the US extradited and the driver was jailed for 32 months. Likely because the driver was a private citizen without diplomatic immunity and with no institutional shielding from the intelligence community.

Which is a very odd case because Sacoolas' husband was not a diplomat, so whether she enjoyed diplomatic-like immunity depended on the terms of a secret agreement between the US and the UK. She claimed immunity (with the support of the US authorities) in the immediate aftermath of the crash to get out of the UK, but the later legal proceedings were conducted on the basis that she didn't have immunity, but that the US were refusing to extradite her on public policy grounds.

Its not like a diplomat (or their child) can commit a homicide and the US will just ignore it and not prosecute.

The US would prosecute a US diplomat or service member because they are subject to the jurisdiction of the united states regardless of whether they are residing in the US. Foreign diplomats and service member's are not subject to US jurisdiction and so they are considered separately.

The child of a US service member born on a US military base is a US citizen even if that base is outside the US. The child of a French diplomat is a citizen of France and not the US even if they are born within US territory.

True but all this is irrelevant to my point that we can and have prosecuted foreign diplomats for crimes committed in the US while the diplomat was serving in that function.

Nobody is trying to claim those they are US citizens though is what the case is about.

The original claim that @Celestial-body-NOS was responding to was that "subject to the jurisdiction” needs to mean something and it does.

The question is about whether someone who is in the US illegally is formally under US jurisdiction or not?

Nobody is trying to claim those they are US citizens though is what the case is about

They may be saying that, but their arguments taken at face value would mean the children of diplomats are US citizens unless they are born inside the embassy.

When I look at historical context I think I feel 30% justified saying it was just slaves and 70% jurisdiction refers to more people.

To pass an amendment you need 2/3 of the Senate. Simplifying here today you would need 67 Senators to pass an amendment. We have different numbers today but let’s say 60 Senators voted for it believing “jurisdiction” including more than slaves and 7 Senators voted for it thinking it just meant slaves. In this case the majority of yes votes view Birthright essentially how it has functioned now but the decisive votes on the Amendment thought it just meant slaves.

So then what definition of “jurisdiction” would an origionalists use - the majority or the decisive vote?

I have no idea. My gut says a lot of people voting on the amendment were probably just voting on slave kids get citizenship.

Its not like a diplomat (or their child) can commit a homicide and the US will just ignore it and not prosecute.

That's, like, the whole point of diplomatic immunity.

Diplomatic immunity is waived voluntarily by the host countries in major crimes to avoid an international incident. But we can prosecute without a waiver, and there is a specific US statute that says diplomats are not immune from state traffic laws and have to pay their traffic tickets.

Movie diplomatic immunity is fake.

Diplomats notoriously don't pay their traffic tickets and get away with it, however.

Actually NYC and Virginia lobbied to get that fixed and it mostly is.

It's not like a diplomat (or his child) can commit a homicide and the US will just ignore it and not prosecute.

A law-review article provides several counterexamples.

  • 1987: A Papua New Guinea diplomat, driving drunk, crashes into several parked cars, injuring one person severely and another minorly.

  • 1984: Libyans shoot at a protest in front of their embassy in Britain, killing a police officer and injuring 11 other people.

  • 1984: British customs officials discover a crate that contains Israeli mercenaries and a Nigerian emigré whom the mercenaries have kidnapped and are trying to smuggle out, accompanied by a Nigerian diplomat.

  • 1981: Strong evidence indicates that the son of a Ghanaian diplomat has raped several women in the USA.

  • 1982: The son of a Brazilian diplomat shoots a bouncer in the USA.

None of these incidents resulted in prosecution of the person covered by diplomatic immunity.

But see Gueorgui Makharadze (1997). Dui homicide. We held him in the country for years then prosecuted him.

Diplomatic immunity is like the pirates code in the Johnny Depp movies, "the code is more what you'd call guidelines than actual rules."

Gueorgui Makharadze

The Georgian government waived Makharadze's immunity - which is within the rules. (The immunity belongs to the sending state, not the diplomat). But the US would not have had jurisdiction without Georgia's permission.

My understanding of first-world diplomatic culture is that most first-world countries would waive immunity if a diplomat committed a serious crime unrelated to their official duties. But it is also the case that no first world country would appoint the kind of person who commits serious crimes as a diplomat, so real-world cases are vanishingly rare. It is also worth noting that the US has a double standard on this specific point, and does not waive immunity when its diplomats commit vehicular manslaughter in foreign countries.

The Georgian government waived Makharadze's immunity - which is within the rules. (The immunity belongs to the sending state, not the diplomat). But the US would not have had jurisdiction without Georgia's permission.

Its not like that. Governments get waivers and give them to avoid international incidents. But honoring sovereign immunity is entirely at the discretion of the host country. If you are a Swedish ambassador and rape a girl, then Sweden doesn't waive, and America tries you anyway, you won't have a colorable claim in court to assert sovereign immunity.

Like all international law, it is ultimately fake and boils down to power and a gentlemans agreement that is breached when the breach is worth the hassle.

Well, you are also missing the category where if you are an old grizzled cop you can revoke the immunity after shooting the criminal diplomat.

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Historical analysis? But the drafters couldn't have envisionned the consequences of modern transportation technology!

I just think it's really funny that it's the same argument as the one over the militia except with the sides reversed.

Yeah though I feel the Second Amendment drafters were probably more capable of imagining modern personal weaponry achievements than birthright citizenship people grappling with '98% of the population of the world can be in the USA within 48 hours for less than $2000 USD*' without even getting into the internet or modern telecommunications.

*Just randomly clicking around Africa and Asia for my own amusement and genuinely surprised how few places were over $1500 or so one-way if you're willing to put up with 4 layovers

I agree. Origionalism is a loser philosophy sides pick when they do not have power in the SC to try and limit the power of the SC. When in charge you want liberal philosophies of law that let you choose the meaning of words to shape society how you believe is best.

I use to be an Origionalists when my side was not in power. I now believe in Common Good Constitutionalism now that my side is in power.

I use to be an Origionalists when my side was not in power. I now believe in Common Good Constitutionalism now that my side is in power.

Hm... I always liked originalism as a libertarian-leaning person with socially liberal views.

While I'm personally pro-LGBT, I feel like Obergefell was badly decided. And I was personally happy with the Dobbs decision, despite being pro-choice, because I feel like it was the correct choice as a matter of straightforward legal interpretation.

The new MAGA right has only made me dig in more, and think I was right to reject Living Constitutionalism from the left, and equally justified now rejecting Common Good Constitutionalism from the right. I think principles matter, and if the laws are bad, we should change the laws, not ignore them or pretend they mean whatever we think they should mean.

But I suppose you could say that as a libertarian, I'm always on the losing side, so maybe I am just an adherent of a loser philosophy that retreats to originalism no matter who is in power.

I think a pragmatic libertarian would begin to believe that the constitution can’t protect libertarianism. I am probably too into the weeds on hbd but I do think core personality traits differ by race because of their evolved environment. Demographic change will kill the American experience.

Demographics I believe is the main reason Thiel has moved into Argentina. I believe he still counts as libertarian and most of the old libertarians have gone down the road to fascism to save liberty.

I think a pragmatic libertarian would begin to believe that the constitution can’t protect libertarianism.

That's not merely pragmatism, that's empirical fact.

I believe he still counts as libertarian and most of the old libertarians have gone down the road to fascism to save liberty.

The Murray Rothbard/Hans-Herman Hoppe wing of US libertarianism was always fascist-adjacent, in the sense that they approved of white supremacy and disapproved of democracy. I don't think they went down any roads, I think they just found a receptive audience (beyond the old generation of Jim Crow dead-enders that were dying off on them) that didn't previously exist. Thiel isn't a fascist, but he came out against democracy in 2009, which is well before the Current Thing. The Cato/GMU wing of libertarianism is mostly NeverTrump.

So I don't think very many libertarians have changed their views on "fascists" - I just think the ones who were always open to collaboration with "fascists" have found a lot more "fascists" to collaborate with.

(Sneer quotes because the arguments about whether US-style white nationalism and opposition to democracy should properly be called fascism is irrelevant to the points been made here - we know what the thing Rothbard and Hoppe wanted to align with is and "fascism" is what a lot of people including @Opt-out call it)

I think a pragmatic libertarian would begin to believe that the constitution can’t protect libertarianism.

Hoppe sends his regards.

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