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PaperclipPerfector  1mo ago (text post)   23694 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.

I suppose I have a very simple take on this, which is:

The Fourteenth Amendment clearly says birthright citizenship. Therefore birthright citizenship.

That's the end of it, surely? We don't need to import anything else. The supreme court's only job is to say what the law is. I think that birthright citizenship is an incredibly bad policy. The US is a small and radical outlier for having it; almost every other country on Earth is more sane.

However, I do not see any other way to interpret:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

That's what it says, so that's what the law is. It's stupid, but it's the kind of stupid that requires a constitutional amendment to repeal. Get on that, America.

Well, the question is, what does "subject to the jurisdiction thereof" mean?

The Congressmen pushing the amendment clarified that it meant "subject to the complete jurisdiction thereof", and that it would exclude Indians (who in a sense were subject to the jurisdiction), so then what counts as complete jurisdiction? Many people later in the 19th century believed that people who were only there temporarily were not "subject to the jurisdiction thereof" in the relevant sense.

Hmm.

It's embarrassing to change one's mind, but I think I am coming around a little on this one. I think I'd like to see how the word 'jurisdiction' is used in other statutes contemporary to the Fourteenth Amendment, to get more of a sense of how it would have been read in the 19th century, but I'll grant that it's not crazy to say that, for example, a tourist currently holidaying in the US is not subject to its jurisdiction in the same sense that a permanent resident is.

Unfortunately, jurisdiction is used in more than one sense, which makes this harder.

The US is a small and radical outlier for having it

The US isn't an outlier - birthright citizenship is the default in the Americas.

It's just that nobody wants to birth tourist into Peru.

I think that birthright citizenship is an incredibly bad policy. The US is a small and radical outlier for having it; almost every other country on Earth is more sane.

I thought this too, but it seems that America would become the exception in its hemisphere if birthright were abolished.

https://en.wikipedia.org/wiki/Jus_soli

The Xth Amendment clearly says Y. Therefore Y.

lol. lmao, even. It's a great ideal, but it's very clearly not the reality.

  • The second amendment guarantees the right to keep weapons of war in case military action is needed, and yet people have trouble getting their hands on a duck gun.

  • The fourth guarantees personal property, and yet that property can be suspected of a crime and seized through civil asset forfeiture without triggering those protections.

  • The fifth protects against self-incrimination, but a judge can still jail you if you forget (or "forget") how to decrypt a harddrive.

I'm sure people could add more to the list.

The US is a small and radical outlier for having it; almost every other country on Earth is more sane.

I wish I could include Canada in that list. As of the start of the year we don't just have birthright citizenship, we have ancestryright citizenship, where you are Canadian if any of your ancestors were Canadian, back to the founding of the country.

lol. lmao, even. It's a great ideal, but it's very clearly not the reality.

I am shocked, shocked to hear that the United States supreme court has acted lawlessly!

In case the sarcasm was not clear, I wholly agree that the history of the supreme court is full of politically-motivated or agenda-driven rulings that do not conform to the plain original meaning of the text. Barely two hours ago I complained about some of them.

I do not consider lawless past action to license lawless future action. The court has behaved badly in the past. That does not confer a right to behave badly now or in the future.

and subject to the jurisdiction thereof

What do you understand this phrase to mean? And why wouldn't it have sufficed to just say "All persons born or naturalized in the United States", why was the "subject to the jurisdiction" part needed at all if it says it as clearly as you claim?

"All people to whom United States law applies", basically. In practice it means "not the Reservations, not diplomats". I think the original meaning of the phrase is pretty clear, and interpretation of it to confer birthright citizenship goes back to the 19th century.

Immediately after the passing of the 14th, natives born off the reservation, on American soil, did not get citizenship. It clearly meant something more than your simple, straightforward interpretation.

Wouldn't they still be considered members of their native nations? The question is not whether the Indian in question was literally born inside a reservation, but whether the Indian is subject to the jurisdiction of the United States.

My understanding is that as early as the 19th century the understanding of the Fourteenth Amendment was that, outside the exceptional case of natives, anybody born on United States soil was a citizen. There was some room to debate it but Wong Kim Ark settled that and has stood as precedent for well over a hundred and twenty years. My sense of most of the pre-WKA disputes is that they are transparently racially motivated, and generally casting about wildly for justification, via a Dred-Scott-like "well, it can't possibly have meant that group as well!" rather than anything plausibly rooted in the text itself.

But the whole argument is that illegals are more akin to Indians.

Except neither the Trump administration nor the dissenting justices make that argument. Not even Gorsuch spends much time on the Indians. They focus on the comparison to temporary travelers and argue that "subject to the jurisdiction" requires the lawful establishment of a domicile.

Kavanaugh wrote:

The only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians—is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign. An exception for those born in the United States to foreign parents unlawfully or temporarily in the country is consistent with that principle and therefore with the Fourteenth Amendment.

and

And most starkly, plaintiffs cannot convincingly explain their view that the children of tribal American Indians are not constitutionally entitled to birthright citizenship, while the children of foreign citizens unlawfully or temporarily in the country are constitutionally entitled to birthright citizenship.

Among other things, Thomas wrote:

Like temporary visitors, tribal Indians were not completely subject to the jurisdiction of the United States. The United States did not have the right to impose personal taxes on them—hence, “Indians not taxed.” Their personal affairs remained subject to the jurisdiction of their tribal nation. “The right of self-government” was “secured to each tribe, with jurisdiction over all persons and property within its limits, subject to certain exceptions, founded on principles somewhat analogous to the international laws among civilized nations.” The United States did not interfere “with the disposition, or descent, or tenure of their property, as between themselves,” or “prove their wills,” or subject them to the “laws of marriage and divorce,” or subject them to the “laws of the United States, against high treason.” Tribal Indians did not owe the United States primary allegiance and did not receive from it complete protection.

and

But, the Court cannot explain why tribal Indians were not “subject to the jurisdiction” of the United States if they happened to be born outside Indian lands while foreign temporary visitors were. It is true that tribal Indians belonged to “alien and sovereign” nations and that the United States’ relations with them implicated “intersovereign concerns.” Ante, at 12. But, temporarily visiting foreigners also belong to “alien and sovereign” nations, and the United States’ relations with them also implicate “intersovereign concerns.” It is difficult to understand why China, for example, would be less alien or less sovereign than the Cherokee Nations. It is also difficult to understand why tribal Indians would be less entitled to American citizenship if born on non-Indian land within the United States than children of birth tourists who immediately returned to China.

Alito wrote:

the Court cannot explain why the Fourteenth Amendment did not confer citizenship on children born in the United States to tribal Indians. As explained, federal law governed those children and their parents to the extent the Federal Government wished. If the Court were right that the Citizenship Clause applies to anyone who is born here and is subject to our laws, then the Fourteenth Amendment would have conferred citizenship on all tribal Indians. But the exception for tribal Indians was well-established at the time and remained until Congress eliminated it by statute.

The question is not whether the Indian in question was literally born inside a reservation, but whether the Indian is subject to the jurisdiction of the United States.

But you said the meaning was clear, and this is very far outside your initial clear interpretation.

There was some room to debate it but Wong Kim Ark settled that and has stood as precedent for well over a hundred and twenty years.

Yes, and I'm saying Wong Kim Ark (and Schooner, for that matter) were decided wrong.

I’m not sure WKA was decided incorrectly. On the narrow grounds of the holding, it isn’t offensive.

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