Comment by paxys
6 days ago
The most obvious read of the constitution in the world still being a 6-3 verdict shows the state of the Supreme Court today.
6 days ago
The most obvious read of the constitution in the world still being a 6-3 verdict shows the state of the Supreme Court today.
They are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period. The fact all of that was predictable makes it just so frustrating to see it play out in real time
I agree. I wouldn't be the least bit surprised if the US balkanizes. That might not be a bad thing if it can happen peacefully.
The problem with the US balkanizing is that there's not really any such thing as a 'red state' or a 'blue state'. Every 'red state' has some blue cities, and every 'blue state' has some red rural areas. Pretty sure California has more Republican voters than any state except Texas. So partitioning on state lines doesn't really work. Maybe over time people could migrate, but using South Carolina as an example, the two largest cities in the state would largely have to empty out. The state would cease to function.
When I see all the rot on the news I really wonder what the alternative is. It’s all so absurd I just wonder if there is a point where people just move on and form a new country / government and let the other country do ufc on the lawn or whatever.
Is it? Pretty much all of the trump EOs that everyone got so up in arms about were ruled against by the Supreme Court - in fact most often by the individual Justices that that same group got equally up in arms about.
Seems like the definition of hand wringing and over drama.
I mean remember how folks thought Kavanaugh was the end of the world and it meant the end of democracy? Well he’s continually ruling against trump.
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The United States has always dealt with this - the North Virginian voters circa 1960 were not, by and large, indigenous.
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What does this even mean? The decision came out the “right” way today.
Four of the justices dissented on something that by any reasonable reading should have been a unanimous decision. That is a BIG problem because that means that almost half of the Supreme Court are off their rockers.
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> hey are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period.
Why the scaremongering? What are "they" waiting for?
Without saying I believe the statement above, boiling the frog is a legitimate tactic. Think of all the things considered normal now that would have been absurd before 2016.
Surely we’re aware of the Heritage Foundation’s Project 2025 yes? It spells out exactly what they are doing, & where they are going.
Eliminating birthright citizenship is a key component dating back decades.
https://www.heritage.org/the-constitution/report/feudalism-c...
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Durable control of elections, and maybe one or two more justices.
It’s not an ominous “they”, it’s a very well understood patchwork of actors who have been pushing for the end of American democratic, liberal system. The heritage foundation is an important component, but you can add the Thiel fellows, the GOP, evangelical fundamentalists, the right wing media ecosystem, and quite a lot more. They’ve spent multiple decades developing an interconnected infrastructure of think tank, media groups, legal advocacy groups, donor networks, political organizations. They are all working to reshape American institutions away from liberal democratic norms, towards an autocratic conservative governance model.
It’s not a new thing or something discussed in underground circles. They have been very vocal and open about their goals, and you can find a lot of investigative work in that whole movement.
Their most obvious victory so far has been the complete take over of the Supreme Court, allowing the realization of the idiotic, fascist “Unitary executive theory” concept.
- https://en.wikipedia.org/wiki/Christian_nationalism
- https://en.wikipedia.org/wiki/Project_2025
If that sounds scaremongering you might want to reevaluate your sources of information for at least the past decade
It's worse than that. It's 5-4 on the read of the constitution since Kavanaugh doesn't think it violates the 14th amendment, just a federal statute.
It's worse than that. The text of the statute is literally the same as the text of the 14th amendment's birthright clause. So he's basically saying the text means one thing when it's a statute, but the exact same words might allow exceptions in the context of the Constitution.
What does "subject to the jurisdiction" "obviously" mean, keeping in mind that everyone agrees children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
In general countries have jurisdiction over anyone inside their territory unless there is some exception.
As far as I know the only exceptions at the time the 14th was drafted and ratified would have been people with diplomatic immunity or similar due to treaties and international agreements.
Immediate families of diplomats living with the diplomat are included in diplomatic immunity, hence their children born here would not become citizens.
Those situations you mention where US court do have jurisdiction over diplomats are: private real estate disputes; wills and inheritance; business activity of diplomats that are running a side business or practicing a profession in the US that is not part of their official duties; lawsuits initiated by the diplomat.
Even if becoming subject to such limited jurisdiction counted as being "subject to the jurisdiction" for purposes of the 14th Amendment it would not matter because newborns are not involved in those things, and so newborn children of diplomats have their full diplomatic immunity.
The exception listed in Wong Kim Ark are: Indian tribes, children of diplomats, births on public foreign ships, and children of enemy occupiers. These were basically well-understood exceptions under common law and most were discussed during Congressional debate on the 14th.
The text that SCOTUS put out today discusses this in great detail. You might agree or disagree with their reasoning, but they consider what "obvious" means in light of the text and the writings of the time plus references to old commentary like Blackstones. Maybe better to read that and assume in good faith that this is what the commenter is referring to?
> […] children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
AIUI, IANAL, US courts and law do not have jurisdiction over diplomats. When a diplomat the 'hosting' government agrees to immunity, so cannot be prosecuted. E.g.:
> The collision caused diplomatic tension between British and US officials. [Anne] Sacoolas fled Britain soon after the incident, and claimed diplomatic immunity with US support.
* https://en.wikipedia.org/wiki/Death_of_Harry_Dunn
The 'source' country has to agree to remove the diplomatic coverage.
Incorrect: https://www.law.cornell.edu/wex/diplomatic_immunity
U.S. courts do have jurisdiction over diplomats for certain things, such as suits related to commercial activities.
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Well we know “subject to the jurisdiction” is not equivalent to “is a citizen”, otherwise they would’ve used that term instead of being cute with it and leaving excess room for interpretation. If congress wants to define what “subject to jurisdiction” means, then they have every opportunity to.
Have you read the congressional debate around the that amendment to the Amendment? If you have and it's not clear, I'm not sure what else can be said.
Given that the most universally agreed to counter examples are diplomats and invading armies, I'd say a reasonable non-lawyer interpretation is that "subject to the jurisdiction" excludes people who are in some way under the authority or control of a foreign government even while in the US. They may be physically here, but they're presence is on behalf of a foreign government that has jurisdiction over them even while in the US. US law might apply to them in varying ways depending on their status, but there is still a distinction that does not exist for other visitors. Maybe less about the question of whether US law applies at all and more about if US law applies equally beyond the 14th amendment and if any other government can lay claim to authority.
You could potentially apply this to temporary tourists as well, but the linkage between them and the government of the country they are coming from is much weaker since their presence typically doesn't have them acting on behalf of the foreign government or with any special legal distinction.
I'd also pose the same question back to you, what's a reasonable definition of "subject to the jurisdiction" that excludes everyone except US citizens, as many conservatives want, or at least only extends to legal permanent residents?
Any interpretation that excludes non-citizens leaves us in a situation where we've disclaimed legal jurisdiction over the behavior of those individuals. The reductio ad absurdum there would be that they aren't subject to any laws of our country anymore.
That's partial jurisdiction at best.
I guess the obvious answer would be the same as the last decades, while anything else would be called "surprising."
Which is is fine, you can change the constitution, but thats for parliament to do.
>Which is is fine, you can change the constitution, but thats for parliament to do.
To which Constitution are you referring? And which "parliament"?
The US Constitution can only be changed by votes by both supermajorities in both houses (House of Representatives and Senate) of Congress and the legislatures of 3/4 of the several states. We don't have a "parliament."
Are you referring to Canada's Constitution? Australia's? AFAIK, the UK has no Constitution and changes to Ireland's Constitution requires a national referendum.
Please do elucidate. Thanks!
I don't think it's obvious. Like why do you think the dissenters are wrong to question what is meant about being "subject to the jurisdiction thereof"? The intention was to prevent former slaves from being deprived of citizenship so what is an argument to say this obviously includes someone who arrives for birth tourism? Why doesn't this include children of diplomats, as one example, if it's such an all encompassing law?
Because when you are in a country, you are subject to it’s jurisdiction. Can you be arrested for petty crimes? Yes? Then you’re under that country’s jurisdiction.
That's what the justices said. That has generally been how modern courts interpret it, with a textualist interpretation. But that was not the original intention of the law which I already stated. So to go back to my original point, it's not an obvious conclusion.
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Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court - and that's the mission of the Supreme Court, to interpret all the various situations for these cases and how they apply constitutionally.
Here is the full text of the relevant section of the 14th:
> 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Please point to the section where it says "this only applies if the parents are citizens".
The reading which the court affirmed is incredibly obvious. Republicans and xenophobes like to pretend it isn't, but the text is very simple.
The word jurisdiction is where it gets confusing. The meaning of that word does not map 1:1 to its modern usage.
To wit, if we read it as "subject to the laws of the land", then the invading army exception does not make sense, invading soldiers are subject to the laws of the United States and have been tried and convinced of violating them. Note, diplomat exception still makes sense, they _are not_ subject to the laws of the land.
So, how do you define jurisdiction in this amendment in a way that covers both invading soldiers and diplomats? I don't think it is super straightforward.
To put good faith on the table, I ultimately agree with your opinion here that birthright citizenship is settled and the vast majority of folks arguing against it are doing so in bad faith. But I also recognize the text of the amendment has holes to my eyes and could be updated for clarity.
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Members of American Indian tribes were born in the United States after the 14th amendment was passed but it took an act of Congress to make them citizens. The question of jurisdiction is a very real one that isn’t nearly as cut and dry as you’re implying it to be.
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What in the dissenting opinions definition of jurisdiction did you disagree with?
literally on the tin
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That's not a good characterization. All of he lower courts basically laughed it out of the court room. The fact that the Supreme Court even took the case on is pretty questionable.
The Trump administration found not one judge or panel of judges who agreed with their opinion ... until SCOTUS, where it found three.
Including Clarence, whose "hilarious" dissent says that undocumented persons are not subject to the jurisdiction of the United States, which might be of note to ICE.
“Unperson” vibes. If their existence is illegal, then they have no rights. Clarence would never consider that the definition of who is or is not legal would expand, though. Too busy driving his RV to the airport to fly to an island retreat.
It is totally obvious: every single court told the Trump administration to go f* themselves, and Trump appealed and appealed again until it reached the Supreme Court.
> Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court
Every single court on the way to SCOTUS correctly said "the fuck?!"
> Federal judges in each of the district courts issued preliminary injunctions to block the order from taking effect anywhere in the country. Judge John C. Coughenour, presiding over Washington v. Trump, called the order "blatantly unconstitutional". Government appeals challenging the injunctions were rejected by the Court of Appeals for the Ninth Circuit, the Court of Appeals for the Fourth Circuit, and the Court of Appeals for the First Circuit.
https://en.wikipedia.org/wiki/Trump_v._Barbara
https://en.wikipedia.org/wiki/Trump_v._CASA#Background
it's on the tin
It's tricky because dissenting doesn't necessarily mean you'd reach the opposite conclusion in every respect.
In this case, I really doubt even the most conservative justices believe "birthright citizenship means whatever an Executive Order says it does." At a minimum, we know they aren't signing on to the reasoning the 5 in the majority used. And then we can learn whatever they feel like saying in the dissent, but a dissent is just an essay with no force of law.
But since we have the dissent opinions, it's not tricky at all to see why they are dissenting.
Alito and Thomas straight up believe that the constitution does not provide birthright citizenship and the executive order is valid. Gorsuch mostly agrees but makes an exception if the parents plan to stay in the US. Kavanaugh agrees that birthright citizenship is not provided by the constitution, instead he argues its a federal statute that congress can overturn (but the president cannot)
https://www.scotusblog.com/2026/06/supreme-court-strikes-dow...
Literal calvinball by the conservative justices. None of that is in the constitution.
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If it said “regardless of the citizenship status of the parents” they would still find a way to disagree.
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Per Thomas's dissent:
> The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens.