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PaperclipPerfector  1mo ago (text post)   24316 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.

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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