Comment by ventana
6 days ago
The U.S. Constitution is very far from being clear. The whole purpose of the Supreme Court is to explain the meaning of what is written in the Constitution; there are 9 justices in the court and they often disagree on that.
Just look at the second amendment:
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
The "well regulated militia" phrase caused at least two very different opinions: United States v. Miller [1] in 1939 and District of Columbia v. Heller [2] in 2008, with very different results.
Just as the second amendment has this "militia" phrase that provokes arguments, the fourteenth amendment starts with
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.
and the phrase "and subject to the jurisdiction thereof" is vague enough to trigger discussions about whether it applies to illegal immigrants or not.
Natural language is just bad in expressing rules.
[1]: https://en.wikipedia.org/wiki/United_States_v._Miller#Decisi...
[2]: https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller...
The jurisdiction clause is there because of diplomats. It's a common thing in other Jus Solis countries, for good reason.
The debate is whether the USA is a Jus Soli (no s) country.
Roberts claims Jus Soli applies to the USA by looking at historical concept of the words in the constitution and the king's obligations to those on his soil. He cites historical statements by founders.
Thomas and Gorsuch rejects Jus Soli applies since it is a concept from feudal lords and serfdom which the USA did not inherit. The cite historical statements by founders.
Kavanaugh thinks congress gets to decide the meaning (within reason), so he rejects Jus Soli as well.
Jackson worries about backsliding and using this to oppress people, unsure about her legal reasoning, but seems to guess at how authors of the amendment understood the words. I would still classify her as saying USA did not inherit Jus Soli, but later codified it via amendment.
I'm sorry, but it's simply insane to appeal to the founders over Jus Soli. The founders did not write the 14th amendment. Their opinions on the matter are irrelevant.
The 14th amendment grants Jus Soli. End of story. It doesn't matter if every single founder and their forefathers were opposed to that notion. The people who drafted the 14th and ratified it were in favor of Jus Soli. They were VERY explicit about that fact. There were active debates when the 14th was drafted if it should be drafted and if it should be as broad as it is.
Thomas, Gorsuch, Alito, and Kavanaugh are all hacks for going further back into history than the drafting of the 14th.
It would be like talking about what the founders thought about alcohol when discussing the 18th amendment. Nobody cares because that amendment was written long after the founders died.
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This is a great summary! This is a case where all the opinions are quite good. I quite like Jackson’s opinion here. The framers of the 14th amendment were radical egalitarians and we shouldn’t lose sight of that.
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So what's Thomas's point then? Do they mean to say that jurisdiction attached to soil is a feudal concept? Wtf? What IS the US jurisdiction then? Is no one under jurisdiction because there are no feudal lords obliged to serfs? What a load of nonsense.
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And so we have the whole bench of 9 people guessing and discussing the intention of the lawmakers. Did they indeed mean diplomats when they wrote "subject of the jurisdiction thereof"? If a Martian lands on the US soil and gives birth, will the offspring immediately be "subject of the jurisdiction thereof"? What was the common meaning of the word "jurisdiction" in 1868? This kind of stuff.
Citizenship means having political rights. If it's decided at some point that a martian may have political rights...then yes, as it stands, their offspring would have citizenship upon birth/ejection/hatching/transmogrification or whatever means of reproduction they use.
This is really no different than if we decided that a dolphin or a naked mole rat are able to hold political rights. If an understanding that this is possible emerges, then as a logical consequence any dolphin or naked mole rat born in US jurisdiction would be a citizen.
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If you read Roberts's opinion he literally explains the definition of jurisdiction as it stood when the amendment was drafted (he cites three different dictionaries) and cites floor arguments directly from the Congressional record. It's not long, takes about 15 minutes to get through.
The rest of the documents are the concurrences (Jackson) and the three, frankly insane, dissents. Thomas's is 90 pages long somehow (I couldn't get through all that one, it's properly crazy).
Here's part of the Senate debate where they discuss it. It turns out that they were extremely precise about what it meant, and they described the exceptions in great detail. It's even typewritten. The downside: you can't come away from reading this stuff and pretend like there's some legal flexibility in the term. If that's important to you, you probably shouldn't click the link.
[1] https://digital.library.unt.edu/ark:/67531/metadc30867/m1/12...
If they meant simply “diplomats”, why didn’t they just say “other than diplomats”?
Maybe that’s what they meant, and maybe it’s not.
One thing is sure: depending on which side you are on, it’s “obvious” that it means whatever supports your side.
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We know that because jurisdiction is such a fundamental concept that it needs no further specification. It's fundamental to any system of laws, if a jurisdiction is not defined, the system of laws is useless. Running a legal system without a jurisdiction is like running computer code without memory space.
The US legal system defined everyone in its soil to be under its jurisdiction, _except diplomats_, because of diplomatoc norms.
If an illegal immigrant kills a person while in the US, they get tried according to US law. If a diplomat kills a person in the US, they do not get tried because the US has no jurisdiction over that diplomat.
> You’re saying we need to look to the international meaning of some Latin phrase (“jus soli”).
Discussion of law discussion that uses comparison with international standards is quite common in every legal system. The sentence regarding the murder of a relative of mine had citations of Italian law, German law, some Spanish doctrine. It was also peppered with Latin terms and expressions, because Roman law had quite an influence in all Western legal systems.
So yeah, sometimes discussions of law can be complicated. This one... Ain't.
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Read Jackson’s opinion. The amendment was debated at the time and the history records show that at minimum it was intended to include all people living here who didn’t have permission to not follow laws like diplomats or invaders.
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Diplomats are subject to the jurisdiction of the US, that's why we have immunity agreements and we can order them out of the country. We also don't recognize the children of invading armies as citizens. Native Americans don't automatically get citizenship from the constitution. They get it from an act of congress in 1924.
They are not subject to jurisdiction, where the hell did you get that idea? If a diplomat does something that would be a crime in the US, they are _asked_ to leave via diplomatic channels. They usually leave on their own. If they were under US jurisdiction, they could be TRIED in the US, but that basically never happens. The only few exceptions you will find to this were either cases where a) the person was not really immune to begin with b) their country waived the immunity or c) the immunity lapsed because the person did not leave the country in a reasonable timeframe after being asked to
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No it really isn’t. Immigrants are clearly subject to the jurisdiction of the United States. As Wong Kim stated the only way not to be is if the government has given you permission to be here without being under jurisdiction like a diplomat or if you’re part of an invading force. Every other person in the us is expected to follow us laws. Just because they don’t doesn’t mean the us doesn’t have jurisdiction.
Were you so sure yesterday that the Court would decide the way it did? I'm sure that with a different set of justices, the result could've been different.
A "clear" law would likely not result in a 6:3 vote. There are enough cases in the Supreme Court that get 9:0, those can probably be called "clear".
Every court before the Supreme Court completely dismissed the attempt to kill the 14th amendment.
The Supreme Court is more and more packed with dishonest, racist Republican political hacks who try to twist words to overturn centuries of precedent.
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I was sure that Thomas would come up with some bullshit that is completely divorced from the text and history of the constitution. The other 3 doing the same is a disappointment but not a huge surprise.
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This is why American Samoans aren't citizens. They aren't subject to the full jurisdiction of the USA even though they are born in the United States.
Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.
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>American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.
Unless you falsely believe PR or AS are not part of the United States, you are just agreeing with me with extra words regarding the jurisdictional differences. The only option for denying birthright citizenship would be not born in United States, or not subject to jurisdiction thereof.
See this excellent prior comment[] on why the difference between PR and AS is jurisdiction and not whether it is part of the US.
>This seems entirely subjective.
I'm not going to do a formal academic study with you, it's plainly obvious as of late you see far more headlines on hackernews (a search shows a single HN topic on AS citizenship in the history of HN, but full page+ of search results on the birthright citizenship issue at hand) and elsewhere regarding the birthright citizenship issue at hand and far more rarely the fact American Samoans don't get it.
[] https://news.ycombinator.com/item?id=16700413
American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.
> Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.
This seems entirely subjective.
What a curiosity. It appears that other territories count by statute but for American Samoa the US national designation was created to give them similar rights to citizens but not voting or political office and in exchange the Samoans get some more self-determination than other territories. Cool!
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There was no such thing as an illegal immigrant in the US when the 14th Amendment was ratified.