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PaperclipPerfector  1mo ago (text post)   23679 thread views

Culture War Roundup for the week of June 29, 2026

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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.

  • -22

It is unambiguous.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

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:

All persons born in the United States are citizens of the United States

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.

Its first test and major precedent was a complete inversion of the language.

The general understanding is that "not under the jurisdiction" covers invading armies and diplomatic staff of other countries (and also Indians with internal self-governance).

Of course, the tendency to naturalize immigrants (or at least their descendants) is much older than the 14th (slavery non-withstanding). Most ancestors of today's US citizens were neither Native American nor part of the Mayflower.

The general understanding is that "not under the jurisdiction" covers invading armies

There is a rather-trollish argument, which I don't think the dissents mentioned (though holy shit, those things are long, so I've only skimmed them), that by definition an illegal immigrant who is still actually present in the USA is someone against whom the USA is failing to exercise jurisdiction, in much the same way as it is failing to exercise jurisdiction over an invading army.

I don't think I'd considered this before today (though I did when still reading the opinions, not from your post), and I'm not sure I agree with it, but it does seem colourable.

I'm certainly open to believing the framers were so intellectually rigorous as to consider it necessary to incorporate language for the situation where an occupying army brought along their own women, and further, the framers were so morally steadfast as to believe they would require a solid legal standard to apply to the children born of such women.

It's absurd, the sovereign doesn't need such specificity, but I'm open to it, because those men would say an invasion is exactly what's happening.

This is the door left open. This decision is now a legal impetus for the reactionary machine to mass-label aliens as invaders. It attaches possibility of material benefit to framing this as an actual war. That's is a perilous thing to incentivize.

those men would say an invasion is exactly what's happening

Not a military invasion, no. You could use invasive species rhetoric, but that is quite a different thing. It would be like triggering NATO article 5 because of the nutria invading the US.

Employed illegal immigrants pay taxes, same as citizens. If they murder someone, they are put through the same legal system. These two facts alone set them apart from members of any invading army. If you get invaded by the troops of Alexander, Genghis Khan, Napoleon, GWB or basically any other commander in the history of mankind, the invaders will not pay federal income tax. The idea that during the sacking of a city, local policemen would go around arresting individual invaders for assault or murder seems totally absurd.

Where they pay taxes and where they are subject to the legal system, because both are tenuous to flatly assert, that they have the opportunity to pay taxes or the "opportunity" to murder Americans are contraventions of the will of the American people and with the effect of producing further contraventions of the will of the American people.

That this doesn't meet prescriptivist definitions of war doesn't matter because the only valid prescriptivist definition of war is the continuation of policy by other means. If there are such other means to effect the same outcome as war without doing anything that "counts" as "war" then sophisticated actors will employ those means. It is a continuation of policy by asymmetric means of demographic replacement to ultimately hijack ordinary means with that very demographic replacement. Americans have never wanted this, and the nature of the matter necessarily rejects input from its beneficiaries. An anchor baby doesn't get a say in whether they can stay, and because Americans have never wanted this, the ordinary and legitimate means of effecting political change have been superseded by myriad inherently illegitimate legal artifices, i.e.; policy continued by other means.

The idea that during the sacking of a city, local policemen would go around arresting individual invaders for assault or murder seems totally absurd

This is exactly what's being said by the idea of us needing something in the constitution specifying that the children of alien occupiers aren't citizens.

I agree with this. The invasion-through-immigration is sensationalist terminology. Like the gazan and "trans" genocides. People are trying to cast themselves as the underdog, victim or injured party, or their advocate, and thus as justly outraged, in a well-worn and highly recognizable narrative.

Whatever is to be said about the "sensationalism" of the claim, the point at the end is there is now the prospect of benefit to calling them invaders.

If the courts say the exclusion only applies to the children of invaders, and so, they say, it's legal to do something about the children of invaders, then that's a strong incentive for those who want them gone to shift to primarily calling them the children of invaders. There is no sense of norms left to maintain and the sentiment is already rife among reactionaries. Now they have a reason to formalize and strengthen it.

I'm certainly open to believing the framers were so intellectually rigorous as to consider it necessary to incorporate language for the situation where an occupying army brought along their own women

I will note that the idea of "camp followers" should have been accessible to them; camp followers are so old that the Romans talk about them, and they persisted all the way into the 20th century*.

*The obvious example is the Imperial Japanese Army. Obviously, most of the "comfort women" were actually Korean and Chinese sex slaves and that was a crime against humanity. But one thing that's often forgotten is that some were actual Japanese prostitutes who volunteered and were paid; those were not a war crime, and very much were in the ancient tradition of camp followers - and could indeed be considered part of the occupying Japanese army rather than the Chinese populace or some third category.

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.

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.

The clause clearly isn't referring to jurisdiction in every sense, since the US had the level of jurisdiction that you're specifying over the Indians.

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.

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.

No, we can do a PNG, revoke the visas, and then expel them. There's not a requirement for being "recalled."

https://www.npr.org/2022/02/28/1083603546/u-s-expels-12-russian-diplomats-for-allegedly-engaging-in-espionage

What we don't do is imprison them, since that's an invitation to have our own diplomats imprisoned. (Unless they try to stay after the PNG.)

(Also, lower level staff and their families don't typically receive diplomatic immunity.)

But being subject to deportation is not a strong sense of "being subject to the jurisdiction of the US" in that it's literally passing them back to their country of origin. Similarly, with illegal immigrants who are arrested for a (different) crime, the standard move is to deport them, not incarcerate them for their crime(s) in the US legal system.

One would think "you're not subject to our jurisdiction because we do not grant you legal status and therefore we will deport you if we catch you" would be logical enough to assert any kids born before they were deported were not citizens, but no. Some of the justices, like Gorsuch, were willing to say the children born of temporary visitors don't get jus solis (presumably for similar reasons to the kids of diplomats), but that's pretty weird logic since plenty of illegal immigrants are not permanent in their residential intent (leaving aside whether they are successfully deported), like seasonal workers.

It's all a giant mess.

Yep. And "a well regulated militia" similarly modifies the following clause in much the same, equally unambiguous, way.

The inclusion of the clause is unambiguous that not all those born in the United States are subject to its jurisdiction

Given the style in which the constitution was written, it's not clear to me that this is true. Phrasing, punctuation are clearly not modern. is not clear to me, just based on the text itself, if "and" is intended to be something more like a boolean union vs a logical AND.

even if you are correct about the logical parsing of the sentence, it could be the case that the category of "born here but not subject to jurisdiction" does not include categories like "child of mexican immigrant" but more things like "child of foreign ambassador" or "denizen of sovereign native American tribe". Illegal immigrants can definitely be tried in American courts for American crimes and then put in American jails so they definitely are subject to American jurisdiction to some degree.

Your confidence in what is or is not ambiguous is unearned imo.

A well regulated Militia, being necessary to the security of a free State,

Nominative absolute

A well regulated Militia,

Subject phrase

being necessary to the security of a free State,

Participial phrase completing the absolute

the right of the people to keep and bear Arms, shall not be infringed

Main clause

the right of the people to keep and bear Arms,

Subject phrase

shall not be infringed

Predicate phrase enshrining the right

The second comma marks the end of the nominative absolute and the beginning of the main clause. The absolute is grammatically independent of the clause, it provides context but gives no conditions to what makes a well regulated militia necessary. Semantically it's actually an embedded unconditional premise: [Because] a well regulated Militia [is necessary] to the security of a free State. The Constitution declares the Militia will always be necessary.

The main clause contains the unconditional predicate phrase "shall not be infringed" modifying the subject "the right of the people to keep and bear arms." 2A tells the government it has no authority to infringe the right to keep and bear arms. The government does this constantly, and while most of those infringements are patently unconstitutional, I have no problem with those who argue the framers didn't have rocket launchers in mind. It's the same for felons, the language would suggest blocking felons from owning arms is unconstitutional, but the qualified annulment of certain rights of criminals is part of the sovereign prerogative.

The prerogative is those who break the social contract can be treated differently. The power to prohibit a person from owning firearms comes from the same authority expressed differently as the power to put a person in prison. What this means is even if 14A were all-persons-born-are, it still wouldn't mean it must, under full force of law, apply to literally every person born in this country. In all other categories of law, "all" effectively never means "all."

So, as with how 2A, of which the framers would absolutely include all small arms ever made, the right obviously does not extend to violent criminals or to the FGM-148 Javelin, despite the former technically belonging to the category of infringements and the latter technically belonging to the category of arms, then just as with 14A, it is obvious that the children of diplomats, hypothetical alien occupier women, birth tourists, and all other aliens otherwise intending to exploit the Constitution, are none intended or justifiably said as beneficiaries of birthright citizenship despite them technically belonging to the category of persons born in the United States. This is where the legal artifice is transparent. Aliens who exploit the sovereign do not enjoy her special protections.

Finally, 14A is specific in the opposite direction for its clause, and subject to the jurisdiction thereof, as the clause invokes a construct of jurisdiction. One inexplicable point of all these courts is how they suppose the Framers of 14A didn't understand the idea that everyone in this country is subject to her true jurisdiction. Those Framers knew in a far deeper sense of truth exactly that point of power, they knew everyone was, truly, under the jurisdiction of the sovereign. That's what the clause says, and in making the clause it so invokes the construct, and those who would exploit the law are obviously excluded from the construct where it would affirmatively implicate in the question of citizenship. This is both found in the conveyed language, for if diplomats who are here through the most rightful means (and who are not named in 14A!) are not under our jurisdiction, so much less then are illegal aliens not under our jurisdiction, and it is found as an axiomatic power in the prerogative of the sovereign.

The mothers are criminal aliens here specifically so their children get citizenship (birth tourists included as criminal aliens), so, obviously, their children don't get to be citizens.

The 2a is not even a complete sentence and is ungrammatical punctuated. In your own post you have insert assumed words and change punctuation just to make it grammatically correct. And yet you presume to claim that the plain text is so exactingly clear that there can be only a single valid interpretation (conveniently, yours).

This is both found in the conveyed language, for if diplomats who are here through the most rightful means (and who are not named in 14A!) are not under our jurisdiction, so much less then are illegal aliens not under our jurisdiction, and it is found as an axiomatic power in the prerogative of the sovereign.

This assertion is of course justified nowhere in the plain text of the 14th. Its just your opinion. The degree to which it is or is not true legally is certainly subject to a considerable degree of legal judgement. And the people who are constitutionally authorized to exercise that judgement seemed to have just come to the opposite conclusion.

Anyway, I find your continued claims that certain interpretations of the constitution text are unambiguous or axiomatic, when they just plainly ain't so, to be a sign. I don't think I will continue here. Happy 4th and may America have another great 250.

The 2a is not even a complete sentence and is ungrammatical punctuated.

It is a complete sentence (though the canonical version's first and third commas are wrong). The conjugated verb is "shall"; the first clause is a valid dependent clause, if in a style now highly unusual outside of formal documents.

What's your opinion on Obergefell? Was that ominous?

For what it's worth, and I realise this wasn't directed at me, I think Obergefell does join the long list of decisions based on the Fourteenth Amendment that are indefensible on their own merits. One of the reasons I think the Fourteenth was a mistake was that it is sufficiently open to be read so as to smuggle in any policy change along these lines.

I disagree with the policy outcome of Obergefell, but that is irrelevant to the legal reasoning. As regards the law, I think the material substance of Obergefell was a matter for congress, not the courts.

I think it was a matter for neither Congress nor the courts, but the states.

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.

Sure, I think that's a fair opinion. I guess my question was rooted in objecting to hearing my opinion implicitly called "partisan hackery" when 1) the 14th Amendment is extremely open to interpretation 2) The predicted outcome of SCOTUS functioning as a super-legislature has basically already long since come to pass.

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.

I think the legislature has abdicated its power to the court (and the executive), much more than the court seizing it.

If Congress wants to pass no laws then that is their right, and that is by design. Consensus is needed to pass laws, and if the consensus isn't there then the laws should not be passed. Those are the rules. If it creates a total mess then yeah that sucks, but the courts have no rights to step in and write their own. Especially since they draw their own legitimacy as being the referees of the law and not players.

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.

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.

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.

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.

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 still not convinced that this is a problem

It's not that hard to build a nuke if you don't have to worry about law enforcement (including "international law enforcement" in the sense of other countries firing missiles at your house). You'd need millions of dollars (though not billions), a year or three, and maybe a degree of recklessness regarding whether you get cancer, but it's doable.

What's nearly impossible is hiding that you are building a nuke. If Omega gave me Satoshi's bitcoin codes, took me off the various watchlists I'm probably on, and told me I had to build a working nuke without anybody knowing or the world would end, I might be able to pull it off, but I'd still bet against it.

Anyone who is has the resources and know-how required to procure and operate an F-35 or Nuclear Weapon is going to be a lot more than just some "fringe whacko" in a compound somewhere.

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.

Also, if nukes are a constitutional right then obviously forming associations to develop and build and sell them is also constitutionally protected.

"You can own a gun, provided you can file one out of a block of iron and personally mine the saltpeter for the powder because we ban the sale of guns and anything which might be helpful in making or using them" would go very much against the spirit of 2A.

Also, if nukes are a constitutional right then obviously forming associations to develop and build and sell them is also constitutionally protected.

General Atomics (GA) and Honeywell International (HON) are both publicly traded companies.

Sure, but like most defense contractors, they are bound tightly by government regulations. They can't just decide to outsource their production to China, or hire Indians, or to offer their products to arbitrary countries or sell their company to a state-run Chinese company in the way Ford can make decisions about their civilian car production.

My point is that private associations to develop build and sell nuclear weapons already exist.

imagine what damage coordinated rival nations could deal if these nutjobs could have access to major weaponry.

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.

  1. 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.

  2. 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.

  3. 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.

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.

"Outside normal channels" what does this mean? Can a terror group just host a raffle that NutJob McGee just happens to win for a free missile?

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.

Outside of what the other comment said about framing, it also means "what if we can't really track it well to begin with?". The exact amount, if any, involvement of Saudi Arabia involved in 9/11 is still contended to this day.

21 years after, we still don't seem to know if a single guy Al-Bayoumi had knowledge of the attacks beforehand, and if they were an intelligence agent working for the Saudi government. This of course is despite the initial reports in 2004 concluding there was no connection.

In 2022, the FBI stated that "there is a 50/50 chance al-Bayoumi had advanced knowledge the 9/11 attacks were to occur". Al-Bayoumi also helped the hijackers find housing in San Diego. Al-Bayoumi stated that he simply befriended the hijackers and also denied being a Saudi government agent. The Saudi government also denied that Al-Bayoumi was an agent.

Did they know? Were they involved? I don't know! There's apparently 50% chance that this guy, who may or may not have been an intelligence agent (and if he was may or may not have been doing it under orders from above) might indicate Saudi involvement. Maybe.

And they found circumstancial evidence for it! Just no smoking gun of direct links.

Operation Encore was a secret FBI investigation launched in 2007 to investigate the alleged links of Saudi officials to the September 11 hijackers.[51][52][53] According to The New York Times, "circumstantial evidence" was uncovered but no direct links were established.[54]

Under your argument where presumably we should respond to vague traces of government involvement despite layers of deniability, should we have gone after Saudi Arabia too or not?

And maybe the FBI does know the answer for sure and just won't tell us plebs, but that's an assumption. Intelligence apparatuses have been known to make plenty of mistakes, either on accident or "on accident". How do we trust them to be this mystical source after multiple decades in the middle east based largely off (in good faith) a huge mistake and (in bad faith) a lie about WMDs.

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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.

@The_Nybbler last week.

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).

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.

Although MadMonzer is right here

What is the world coming to? Roberts decides a case when the option to punt is available, The_Nybbler agrees with me on the Motte, and Germany exit the World Cup early on penalties. If we are far enough off the old timeline, perhaps England have a chance to win the thing.

We all know England are going to make it to the semis and then flop in the worst possible way imaginable.

Like it or not, the Constitution is unambiguous with respect to birthright citizenship.

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:

The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.

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.)

Children of foreigners, aliens, and diplomats were not intended to be covered by the 14th by the very author of the amendment.

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.

I think it critically depends on whether you read "foreigners, aliens," as opening a list with three entries or whether "aliens" is a clarification of "foreigners", compare:

[...] 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

I think the 'who' makes the three-element-list reading at least awkward. It's a very "spoken out loud" construction. I would expect "who are foreigners, or aliens, or who belong".

It would certainly be an unconventional way to word it today, but it was 1866. I think ultimately you have to say that is the proper interpretation though, because everything outside this one specific quote with slightly ambiguous wording suggests Howard only meant to exclude children of foreign diplomats, and that's how it was interpreted then.

"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.

I used to think this, but there is other context from the same time that does make clear that aliens and foreigners were referring to the same class of people.

Notably, a senator who opposed ratification was concerned specifically with the children of Chinese and gypsy immigrants (who had questionable legal status).

https://www.acslaw.org/expertforum/the-fourteenth-amendments-guarantee-of-birthright-citizenship/

I don't like it, but that does seem to be the case.

That Senator ended his career with those comments, so I think the conclusion is the opposite. That is not what the people intended.

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.

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.

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

  1. A distinction between them and they kept it in mind that some diplomat children might not be alien/foreign

  2. Considering diplomats as aliens or foreigners is disputed for some reason,

  3. It's meant to be specifically fitting all three categories.

  4. We are meant to consider that US citizen who happens to be a diplomat to us of some kind actually make non citizen child.

I think we should be able to agree that the families of foreign diplomats would be foreigner/aliens. The question is, was his third category giving a clarifying example, or was it specifying more precisely the full scope of what he was referring to there? I don't think there's an obvious answer.

I think the context would lean towards a broader reading though, since right after, someone brings up the case of Indians, and Howard's immediate response is to say that they are "quasi foreign nations." Since not all the Indians are diplomats, he at least didn't mean his reference to "foreigner" in a way that he wasn't willing to take in a broader sense when suitable.

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.

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.

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.

Look at you rediscovering the originalist issue of textualism vs. intentionalism.

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.

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.

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.

Not necessarily. The difference between textualism and originalism is the former rejects that you should even need to try and interpret their beliefs. There's also the idea that Congress is hundreds of people, therefore "what Congress believed when they passed a law" is not in fact a single answer.

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