SCOTUS

[falafel]

Not to speak for him, but I think the argument is that the original intent for birthright citizenship was for a much more limited scope than how it is applied today. For example, what does "subject to the jurisdiction thereof" mean? Or if someone is a temporary visitor (on a tourist visa for example), should that apply to their children. Another argument is that based on the timing of the original amendment, it was explicitly meant to grant citizenship to newly freed slaves.

Etc.

It is not as simple an argument as you would think. (FTR: I am fine with the ruling)

Those are just garden-variety constitutional arguments. The antiquated language, the massive change in society since it was drafted, the original intent. Sure, they are concerns, but they are concerns found in virtually every single constitutional argument.

The fact of the matter is that birthright citizenship has been established and confirmed by SCOTUS for hundreds of years. If there is an appetite for adjusting it based on birthing tourism or any other reason, amend the constitution. The constitution is supposed to be a living, breathing document, but it hasn't been amended since 1971 (I'm not counting the 27th amendment in 1992, since it was proposed and states have been slowly ratifying it since 1789). 55 years without a single change, yet how much has the country changed during that time? I don't like the idea of SCOTUS trying to cram every modern and unthinkable (at the time) situation into a 237 year old document.

[falafel]

That’s the main gist of it.

The point of the 14th was to make former slaves citizens. It is basically undisputed that nobody who wrote the clauses in question had in mind how it would be made to apply to children of undocumented immigrants, much less that this would someday be a question that mattered. Most arguments against birthright citizenship have something to do with that underlying point, and I think the point is legitimate.

Ha! Every single slave was basically an undocumented immigrant, and therefore so were their kids. The problem isn't different, its just being applied to a different group of people. You still have to deal with people who, through no fault of their own and without any control, were simply born in America. Do you think those people would simply leave if birthright citizenship was reversed or tightened? Of course not. You'd just have 2x as many undocumented immigrants running around. What problem does that solve, exactly?

To your second point, that's fine. Amend the constitution then. If the arguments are that "they never thought THIS would happen!", then pretty soon the constitution is going to lose all context and application. Think about it - the unelected, life-time appointed Justices of the Supreme Court are deciding issues that should be decided by the people, because the people's representatives won't get off their asses. Our system is bogged down in all of the politics that its becoming much less effective than it could be.

[falafel]

Exactly. Liberals want to read the plain English of the text in regards to birthright citizenship but want to be activists in regards to the second amendment.

Actually, its conservatives who like the textual approach. Conservatives want to read the plain English of the text in regards to the second amendment, but want to be activists in regards to birthright citizenship.

[falafel]

Btw, anyone see that recent case in Florida where an attorney was running a business explicitly tailored to bring pregnant women here just to have their babies in the US? I mean, that was the entire pitch of all of his advertising. Helped them get a tourist visa, line up a doctor, etc.

Pass a law then! Amend the constitution! DO something that the people can effectively decide, not a group of 5 white men Trump selected.

[Pelado]

Pass a law then! Amend the constitution! DO something that the people can effectively decide, not a group of 5 white men Trump selected.

Who are the five white men Trump selected?

https://www.supremecourt.gov/about/justices.aspx

[Northwestcoug]

In fairness, when they drafted the 14th they didn't think about modern immigration; when they drafted the 2nd they didn't think about modern weapons; and when they drafted the 19th they didn't think about modern women.

Activist judges for the win!

[Moliere]

https://www.wsj.com/us-news/law/supreme-court-again-blocks-missouri-from-using-gop-friendly-voting-map-fb5714d6?st=cUZg95&reflink=article_copyURL_share

The Supreme Court for a second time blocked Missouri from using a congressional map in the November midterm elections that the state GOP redrew to benefit Republicans.

scotus for the win again! Funny how they keep piling up wins even and no one will give them credit for preserving democracy. It’s also funny how it’s trumps selected judges that tend to be more of the swing votes on crucial matters, although it sounds like they were all nine in agreement on this one.

[Jeff Lebowski]

Those are just garden-variety constitutional arguments. The antiquated language, the massive change in society since it was drafted, the original intent. Sure, they are concerns, but they are concerns found in virtually every single constitutional argument.

The fact of the matter is that birthright citizenship has been established and confirmed by SCOTUS for hundreds of years. If there is an appetite for adjusting it based on birthing tourism or any other reason, amend the constitution. The constitution is supposed to be a living, breathing document, but it hasn't been amended since 1971 (I'm not counting the 27th amendment in 1992, since it was proposed and states have been slowly ratifying it since 1789). 55 years without a single change, yet how much has the country changed during that time? I don't like the idea of SCOTUS trying to cram every modern and unthinkable (at the time) situation into a 237 year old document.

Are you trying to convince me? Seems like you missed the part where I said I am fine with the ruling. The point is that the counter argument is not as ridiculous as you might think.

[falafel]

Who are the five white men Trump selected?

https://www.supremecourt.gov/about/justices.aspx

You, for one!

[falafel]

Are you trying to convince me? Seems like you missed the part where I said I am fine with the ruling. The point is that the counter argument is not as ridiculous as you might think.

My point is that the counter argument is more ridiculous that you might think.

[BlueK]

My point is that the counter argument is more ridiculous that you might think.

I agree, when you consider the indisputable fact that the concept of birthright citizenship long predates the 14th amendment. The amendment was necessary to explicitly spell out that it applied to black people and to overturn Dred Scott which ruled that all black people whether slaves or not had no citizenship or political rights. Birthright citizenship has been treated as settled law ever since and was legally assumed before the amendment. And the phrase in there about jurisdiction, give me a break. The only explanation that makes any logical sense is that it applied to people like Native Americans living on a reservation, which was thus outside the jurisdiction of the US. For those living within the US outside of that, it was already long assumed they were citizens. I don't know how you can say with a straight face that undocumented immigrants living here are not under the jurisdiction of the US. If they commit a crime they can't be prosecuted? Insanely absurd!

[All-American]

I agree, when you consider the indisputable fact that the concept of birthright citizenship long predates the 14th amendment. The amendment was necessary to explicitly spell out that it applied to black people and to overturn Dred Scott which ruled that all black people whether slaves or not had no citizenship or political rights. Birthright citizenship has been treated as settled law ever since and was legally assumed before the amendment. And the phrase in there about jurisdiction, give me a break. The only explanation that makes any logical sense is that it applied to people like Native Americans living on a reservation, which was thus outsidethe juri6of the US. For those living within the US outside of that, it was already long assumed they were citizens. I don't know how you can say with a straight face that undocumented immigrants are not under the jurisdiction of the US. If they commit a crime that can't be prosecuted? Insanely absurd!

And yet four justices disagree.

You might be able to shrug off one or two dissenters as partisan hacks. But an argument that is able to peel off Justice Gorsuch is one to be taken seriously, even if you don't agree with it (as I don't).

[LVAllen]

Gorsuch believes in birthright citizenship. His only quibble was that he thinks it depends on whether the parent is domiciled in the US, meaning they intended to stay permanently in the US. Fun fact: "domicile" is found nowhere in the 14th amendment. Equally fun fact: your domicile is based on your intentions, which can change in an instant with zero external signs. And Wong Kim Ark covered in great detail why birthright citizenship was long considered the rule, and that it was considered the rule when the 14th amendment was enacted. Quoting President Johnson:

"By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States."

The vast majority of the Romani in the US in the 1860s didn't make permanent homes. They may have had trouble establishing domicile in a given state, but if they were born here, they were undoubtedly citizens. The English common law in force at the time of the revolution didn't care whether someone was in the kingdom temporarily or permanently, their children born in the kingdom were British citizens.

[All-American]

Gorsuch believes in birthright citizenship. His only quibble was that he thinks it depends on whether the parent is domiciled in the US, meaning they intended to stay permanently in the US. Fun fact: "domicile" is found nowhere in the 14th amendment. Equally fun fact: your domicile is based on your intentions, which can change in an instant with zero external signs. And Wong Kim Ark covered in great detail why birthright citizenship was long considered the rule, and that it was considered the rule when the 14th amendment was enacted. Quoting President Johnson:

"By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States."

The vast majority of the Romani in the US in the 1860s didn't make permanent homes. They may have had trouble establishing domicile in a given state, but if they were born here, they were undoubtedly citizens. The English common law in force at the time of the revolution didn't care whether someone was in the kingdom temporarily or permanently, their children born in the kingdom were British citizens.

You're begging the question a bit here. Both sides basically agreed that Wong Kim Ark decided the issue. But they disagreed on what Wong Kim Ark meant-- and whether the key factual distinction (the legal status of the parents) mattered. That was the whole question at issue in the case-- and one the Justices (including Justice Gorsuch) discussed at length.

I'll add to your two fun facts a third: the "domicile" test you reference comes directly from Wong Kim Ark, the very case on which you rely: "The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States." United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898).

I give the administration no credit for what it was trying to accomplish with this executive order, which besides being unconstitutional is just bad policy. But just because the executive order was obviously stupid doesn't mean it was equally obviously unconstitutional. Let's not conflate the two.

[MartyFunkhouser]

They had it in mind that it would apply to everyone, except the specific people over which the system could not exert its sovereignty. People who had been born here enslaved? Citizens. People who had been illegally imported as slaves? Citizens. Texans? Citizens. Children of former Mexicans living in Texas? Citizens. Children of poor people? Citizens. Children of rich people? Citizens. Children of diplomats, who would be said to be born "near" the US, and not within it? Noncitizens. Children of natives, who by treaty belonged to their own sovereign tribe regardless of their geographic location within the boundaries of the US, and who had not willingly subjected themselves to taxation? Noncitizens. Everyone else born here or naturalized here? Citizens.

The argument against birthright citizenship is a sham, confined until recently to the most extreme fringes, until this administration, as it has with so many other repugnant ideas, decided to take it out for a spin to satisfy its racist urges.

This. I endorse every word.

I apologize.