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Notes -
The Supreme Court has issued a ruling on Trump v. Barbara (birthright citizenship). 6-3 striking down Trump's executive order. You can find the ruling here: https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
I've only had enough time to skim the ruling thus far. Jackson wrote a concurrence which I won't bother to read because she's the second most retarded member of the court (Sotomayor still reigns supreme in retardation). Kavanaugh partially concurred on the basis that this needed to be done by act of congress as opposed to executive order, but otherwise generally agreed with the Trump admin's interpretation of the 14th amendment. Thomas and Gorsuch outright dissented. Alito had his own separate dissent. Thomas's opinion includes several historical examples of people born on US soil to people not lawfully in the US who were denied citizenship, and I was not aware of these examples previously, making his the most interesting. Well that and the fact that it agrees with my 100% objectively correct and indisputable view of the matter of course.
This is roughly how most court-watchers expected this decision to turn out, but it still doesn't change the immense disappointment I feel over this news. Someone here earlier this week or last week said that this decision will be our generation's Dred Scott regardless of how it is decided, and that it will tear the union apart in similar fashion. Demographic changes in the West generally are leading to ever increasing tension and dysfunction, and I fear this decision will ensure that a breaking point is reached soooner, rather than later.
This being anything other than 9-0 is an ominous level of partisan hackery. Like it or not, the Constitution is unambiguous with respect to birthright citizenship.
Expect future decades of the big issues of our time being decided by judges because legislatures have abandoned their responsibilities, and declining civic participation and partisanship frustrates any attempts to amend constitutions.
It is unambiguous.
The inclusion of the clause is unambiguous that not all those born in the United States are subject to its jurisdiction. Its enshrinement in the Constitution is the US government defining a hard limit on its own sovereignty. The argument of Wong Kim Ark is that "People born here are under US jurisdiction" when, for the clause, that is explicitly denied by 14A. Its first test and major precedent was a complete inversion of the language.
It's somehow worse than that. We see with these rulings that successive courts read 14A as though it were written:
That's not what it says, and to emphasize as it's beyond question, this is the obligate read of 14A by every court that has upheld categorical birthright citizenship. As their read necessarily omits the clause, they are tacitly admitting that with the clause their read is wrong.
And, qualitatively, Gorsuch consistently breaks ranks in preference to the text of laws as-written. If it were "unambiguous" in your sense, he would have joined the majority.
This doesn’t make any sense. If illegal immigrants are not subject to the jurisdiction of the United States, then there is no legal basis to deport them.
I think that’s easy to get by “to have jurisdiction you must be able to enforce jurisdiction” - if your not able to deport perhaps because you don’t know they are even here then you don’t effectively have jurisdiction. If you refuse to deport them but are able to deport them then you do have jurisdiction.
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No, that's not true; it is accepted that diplomats and children of diplomats are not subject to the jurisdiction of the United States for the purpose of that clause, and they can still be deported.
No, they can be declared persona non grata, after which if they are not recalled they become subject to the jurisdiction of the United States and can then be deported.
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What's your opinion on Obergefell? Was that ominous?
Yes. I think that legalizing gay marriage is/was a good thing, but I am skeptical of doing it via tenuous legal mechanisms rather than via the elected representatives of the people or referendum. I don't think that ruling was as tortuously reasoned as Roe v Wade (or the dissenters in this judgment), but it took an issue that should've been decided by legislatures and instead hinged it on a 5-4 decision on shaky grounds. At this point it does not look like gay marriage is particularly at risk of being undone but we've been through this before and it's no guarantee of it surviving forever.
It is clear that in the aftermath of Obergefell both the left and right wings of American politics have decided to use the courts as their primary means of advancing their "big issues" rather than Congress, or god forbid, actually persuading the public.
If the courts didn't want to be used as a backdoor to legislation by tenuous legal mechanism then the courts should not have seized the power of the legislature by backdooring legislation by tenuous legal mechanisms.
Certainly. No disagreements here. I have been very vocal about this in Canadian politics, which is all the worse given that we (ostensibly) have parliamentary supremacy and the means to enforce it.
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I think the legislature has abdicated its power to the court (and the executive), much more than the court seizing it.
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This reminds me of Obamacare. Everyone was told “not a real issue” as the received wisdom was “clear” but when you actually look at the received wisdom it just isn’t clear.
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I don't think Thomas is a partisan hack. He has a clear and intellectually coherent theory of what the Constitution in his head says, and rules accordingly. It's just that the Constitution that was agreed at Philadelphia, ratified by the States, and rededicated to the proposition that all men are created equal by the blood of the Union dead in which the Reconstruction Amendments are written, says something else.
Alito, on the other hand...
Goresuch, I am genuinely surprised by on this one.
And kavanaugh? Maybe that should make you pause and think perhaps your position isn’t air tight.
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I think that literal interpretations of the Constitution don't work in practice though, because it almost unambiguously says that the government can't stop me from having nuclear weapons. I'm pretty sure that "arms" back then just referred to weapons in general. Someone correct me if I'm wrong.
And if that's the case, we have had a very weird situation for a long time now where the 2nd Amendment has been interpreted in a very limited way even though the clear reading allows all weapons.
It could be argued that this is what the amendment procedure is for, though. I wonder if it would actually be possible for an amendment that limits the 2nd Amendment to certain types of weapons to be ratified in today's political climate. There would be obvious slippery slope concerns from many people.
I imagine that if the current regime of stretchy interpretations fell (i.e. the SC really came out and said that sorry, but the law as written says yes to personal nukes, deal with it), it would take between nothing and a single tiny backyard plutonium spill for bipartisan momentum for a constitutional amendment to circumscribe the 2nd to materialise.
But it would be really really hard for them to agree on an actual amendment. Somehow you would need to get 3/4 of congress to agree to one specifically worded amendment when all of them are going to have very strong opinions in opposite directions. I suppose the threat of random people having nukes would motivate people to compromise, but it still wouldn't be easy, and whoever was the most radical and stubborn about refusing to budge would get more of their way by making others compromise towards them.
If the Democrats win big in 2026 and 2028, most likely they pack the court. If they are feeling magnanimous, they may instead cordially invite the remaining Republicans in Congress to provide input to their amendment drafting sessions in exchange for political support back home to get the amendments ratified.
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I do have the feeling that politicians tend to be able to draw on remarkable reserves of ability to compromise and act cooperatively when their personal interests are actually threatened (as they would be by randos with nukes). The wild defections you are talking about seem to be the province of things the electorate may care deeply about, but the politicians themselves are happy to game.
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I'm still not convinced that this is a problem
You don't personally need the resources or know-how for most of this (besides operating but even that can be simplified by bad actors) so long as people can sell you or gift you one. Decentralized terrorist groups like 764 already grooms random local depressed nutjob kids to shoot up schools among many other types of crime, imagine what damage coordinated rival nations could deal if these nutjobs could have access to major weaponry.
And if we ban selling or gifting major weapons but not guns, then we have already established there is a distinction and they do not count as "arms" in the same way.
Then this is no longer a legal matter but rather one of foriegn policy.
We make it known that if material furnished by your nation is used in such an attack that attack will be treated as having come from your nation and let the rivals police themselves.
This has multiple flaws.
What does "material furnished" mean? Do all guns and bullets have to be exclusively made from minerals mined and put together in the US or else it counts as a shooting by a foreign power? If the gun is stored in a Russian made holster, is that a Russian attack? If we don't make it extremely strict, then there's lots of inevitable workarounds created to provide the "pieces" of advanced weaponry to be easily constructed and used.
What about proxy groups? Private organizations that go through deniability chains from those nations can furnish weapons for nutjobs. There will be sophisticated plans where building a convincing casus belli will be difficult. They won't be like al-queda taking credit for 9/11.
It doesn't even take rival nations, just sophisticated networks like the aforementioned 764. They spend some of their child porn money on materials and supply it to a crazed member. Gonna be hard to charge most of them. If giving someone a gun as a gift who just totally coincidentally proceeds to use it in crime can't be charged, then the same would apply to a missile or drone or anything else. "Oh we didn't know he would blow up that building with the rockets we provided him for his birthday". They can produce a lot for their own legal deniability, just like they already do. If we can't get them for shootings, why should I expect we can do it for anything else?
I feel like you are being intentionally obtuse.
Material furnished is exactly what it says, if a nation or any other organization gifts or sells that material outside normal channels they are on the hook for how it is used.
I also dont understand your preoccupation with deniability, we're not talking about citizens with consitutional rights, we're talking about sovereign nations. "Drop the act, we know it was you" is a perfectly valid realpolitik response to such behavior.
A hostile nation could make a genuine effort to frame another nation, though.
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In modern America you amend the Constitution thru the Supreme Court. I guess you could call that a common law system. And it’s still a hard thing to do.
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@The_Nybbler last week.
Looks like your departed poster (darwin?) didn't go far enough and there's three partisan hacks on the court.
Surprised me in both directions, actually; I figured Roberts, like Kavanaugh, would also lean on statutory rather than constitutional claims, and I didn't expect Gorsuch or Thomas to go that way. Although MadMonzer is right here -- Thomas isn't a partisan hack, he has a very solid idea of what the Constitution says even if it ain't right. For instance in Mullin v. Al Otro Lado: "[A]ny statute that forced the President to allow aliens to cross the border against his will would appear to exceed Congress’s enumerated powers, and a court could not enforce it against the President." -- he gets this from the Article II vesting clause, which is a pretty severe stretch. I would expect that Congress gets to decide which aliens get to cross the border, and certainly the law has always worked that way.
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No, it really isn't: "Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." - Jacob Howard, drafter of the 14th Amendment
Children of foreigners, aliens, and diplomats were not intended to be covered by the 14th by the very author of the amendment.
Ehhh, I really don't think Howard meant aliens the way we now understand aliens. And this is assuming he meant aliens as a separate category rather than as explanatory of what he meant by "families of ambassadors or foreign ministers".
I did some research on this and this is a good summary: https://old.reddit.com/r/asianamerican/comments/1i6pbh1/from_1866_when_the_senate_was_debating_the_14th/
I read the debates itself as well: https://www.congress.gov/congressional-globe/congress-39-session-1-part-4.pdf
Really wished someone transcribed the whole thing for easy search and copy paste but Howard had no objection to the comment by Conness:
And Howard had plenty of objections when others say things he didn't agree with during that debate (such as on the matter of Indians untaxed or not taxed, etc.)
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Is that how you parse that quote? It seems to me he is referring exclusively to the children of foreign diplomats. Not three different categories of people (i.e., foreigners AND aliens AND those who belong to families of ambassadors...).
Howard in other instances seemed to very clearly anticipate that the 14th would apply to the children of people from other countries who were not (yet) American citizens. In any case, the amendment as written very obviously does not make the distinction you are purporting Howard to have made.
"This will not include persons born in the United States who are foreigners."
"This will not include persons born in the United States who are aliens."
"This will not include persons born in the United States who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States."
I'm struggling to find any other way to parse it.
Because it's not a list of three categories. It's a description of one category, of which all three are needed to qualify. I.e. that citizenship is not withheld from aliens AND foreigners AND children of foreign diplomats, but rather children of foreign diplomats who are also aliens and foreigners. (Otherwise, for example, someone who had say, a foreign diplomat father and an American mother, born in America, would not receive birthright citizenship.)
I think semantically it is meant to be understand this way for a number of reasons: the alternative explanation is not consistent with Howard's purposes otherwise OR the final wording of the amendment, it doesn't make sense to describe newborn children being born as foreigners or aliens within the context of the rest of the amendment, and if it was a list it would certainly be more clear if there were ors/ands in between the items.
If I were to say to say, for example, to a car dealer that I only liked cars that were "red, fast, fuel-efficient"; I would expect him to understand that I want a car that is all three, rather than one car of each.
OK, but switch your hypothetical back to the negation that we're dealing with and it comes out my way.
If I want to see every car on the lot, but that this obviously doesn't apply to cars that are red, fast, fuel efficient, then don't bring me the red F150.
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Other parse: this will not include person born in the United state who are foreigners AND aliens AND belong to (the families of ambassdors OR foreign ministers). So to be exempt you'd have to be a foreigner and an alien and be born to an ambassador or minister accredited to the USA.
That's an incredibly motivated reading which would not be used in the vast majority of other contexts. If someone wants a vegetable soup but asks you to exclude red, orange, purple vegetables, you're not going to toss in some carrots and tell them that they weren't crazy stripey polka-dotted carrots with red and purple on them. It's clear what they meant.
The text does not use the word AND, it's just a list of three things and then says "all other classes are included", meaning that these three classes are not. There are not logical operators being applied here. I suppose an OR could be implied, but I don't think mathematical logic was developed or widespread enough for them to speak that way (since there's often ambiguity between OR and XOR). Just listing the three traits which are excluded, and then saying "all other classes are included" is pretty clear.
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Your construction makes no sense. First, the punctuation would be wrong. Second, describing diplomats as foreigners and aliens would be surplusage on top of surplusage.
Diplomats could be married to US citizens, or possibly be a US citizen themselves. Apparently there's been quite a few Canadian diplomats who are also American. There's also one of an American ambassador to France who had French citizenship through their marriage.
If the argument that using foreigners and aliens is to clarify that children borne of diplomats who happen to be U.S. citizens as well, then that moves me not at all.
Well there's also the big issue that if it's surplus then there is no reason whatsoever to include the final bit of foreign diplomats being included.
If I wanted to ban all fruits, I would not say "this ban includes fruits, and also apples". Apples is included under fruits. It doesn't make any sense to include them separately. If I wanted to make it clear that fruits contains something contentious, I would say "this ban includes traditional fruits and tomatoes" to clarify that tomatoes are included as a fruit here.
If diplomats would be included under the "aliens" and "foreigners", then why mention them? Presumably there's either
A distinction between them and they kept it in mind that some diplomat children might not be alien/foreign
Considering diplomats as aliens or foreigners is disputed for some reason,
It's meant to be specifically fitting all three categories.
We are meant to consider that US citizen who happens to be a diplomat to us of some kind actually make non citizen child.
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Not quite, it's possible to be a foreigner but not an alien, e.g. a US citizen who also has German citizenship. It's also possible to be an alien but not a foreigner, e.g. a native American back before they were all given citizenship; and it's definitely possible to be an ambassador/foreign minister without being either a foreigner or an alien and you use this language specifically to ensure that it doesn't apply to US ambassadors or foreign ministers who are also US citizens for instance in their own right separately.
The UK actually does something like this. If you're just a random migrant spending time on almost any "residnence" visa category in the UK after 10 years you'll be eligible for ILR (permanent residence basically). However if you're specifically in the UK as an exercise of being part of a foreign nation's retinue to it's mission in the UK there are additional issues and you can't just apply for ILR or naturalisation until you are no longer not subject to immigration control (basically not until your formal status as a diplomat has ended).
It would make perfect sense for children of ambassadors and foreign ministers while they are serving in their capacity as an ambassador/foreign minister to be carved out of US citizenship as a way to not create direct US ties and jurisdiction (like e.g. family law jurisdiction) over a family member of a serving diplomat of the other country, which the other country almost certainly would not be happy about.
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Also - I dislike the framing by @johnfabian where everyone who disagrees with him is a partisan hack. He thinks it's clear - fine. I, like you, don't think that it is clear, and I think we need to recognize that reasonable people can in fact disagree on this stuff, and not just throw out insults.
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But why should the author's opinion matter, if the opinion is not explicitly written into the text of the actual Amendment? That would open a whole can of worms. If that is what the author meant, why did he not write it into the Amendment? After all, it seems to have not been completely obvious, since he felt the need to comment on it.
It isn’t dispositive but it is instructive. That is, if the answer is “obvious” then how did the drafter understand it to mean something else? That is at least a clue that it isn’t obvious.
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The ambiguous word in the text on which everything hinges is “jurisdiction”. The author explained how the word “jurisdiction” is to be interpreted, with examples. How are his comments not relevant?
This is far outside of my domain of expertise, maybe there were other relevant considerations (e.g. historical precedent) that force a different interpretation of “jurisdiction”, I don’t know. But if the author’s comments on his own amendment are being reported accurately, then “he should have been more explicit” seems like an incredibly weak rebuttal.
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Because when trying to understand what someone wrote into law it's useful to read what they themselves believed was the meaning of the words they wrote. This is totally uncontroversial legal practice.
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