This was a tricky case where the constitutional text contains ambiguous language (whether the child is “subject to the jurisdiction” of the U.S. at birth). Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way.
Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't.
> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."
The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.
> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States
Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.
I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.
> Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
From today's decision:
> 2) In Wong Kim Ark, the Court held that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law, 169 U. S., at 688, excluding only those recognized as exempt “from the jurisdiction of this country”—the“children of ambassadors” and those born in the nations of Indian tribes, id., at 675, 681–683, 693.
That's a 1898 decision where the status of native tribes was not at issue, but was used as an example. But it's roughly contemporaneous with the 14th amendment and shows why an Indian Citizenship Act would be needed.
> Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way.
This is a summary of Thomas’ dissent; the majority opinion is based on more than just “English common law.” Even Thomas acknowledged this.
Looking at the dissents (Justice Gorsuch) it appears that he would consider illegal immigrants’ kids are citizens, but kids of legal non-immigrants are not based on the fact that one is a temporary visitor and another is not!
Isn't this statement aimed at citizenship tourism or whatever its called?
I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
Well, it doesn't matter. If the SCOTUS decides that some people, in certain circumstances, are not in jurisdiction of US law, then they have to apply that notion everywhere.
They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.
As for whether people are really doing birth tourism: sure, there might be some cases, but well, they are using something that the legal system allows. If the country feels like it doesn't want that happening, it needs to amend the Constitution.
(Also, let's not kid ourselves that the birth tourism thing is what conservatives care about... People doing that kind of thing are usually rich. The real target are poor illegal immigrants giving birth in the country.)
Jurisdiction is not some singular concept that means the same thing in every context. You can have jurisdiction over some things in some contexts and not have jurisdiction over other things in other contexts.
In that case, the use of the word jurisdiction in the 14th Amendment is meaningless, too ambiguous to rely on. Unless we think the Constitution should be living, breathing, and adapt to the current political environment. Is that the current conservative viewpoint?
Well, a word can have different meanings in different contexts but still have a clear meanings in each particular context. But I agree that “jurisdiction” doesn’t have a well defined meaning in the context of individuals being subject to the jurisdiction of a nation.
In that case, the proper approach is to look at other evidence of what the drafters meant, which is what both the majority and dissents did.
If only because this would open up people born here to having their citizenship retroactively revoked.
The constitution is pretty clear. If you don't like it amend it.
If anything we need to expand it to include anyone who gives birth in this country. If you're willing to deal with our horrible maternity care system and help keep up our declining population, you deserve a blue passport.
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.
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.
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.
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.
> The 14th amendment grants Jus Soli. End of story.
But it isn't the end, it then qualifies who gets Jus Soli. And that is the debate.
> The people who drafted the 14th and ratified it were in favor of Jus Soli
Thomas cites Sen. Howard and Sen. Trumbull statements in support of the claim that the 14th amendment ratifiers did not intend to grant universal Jus Solis. Is he a liar?
> ... and Kavanaugh are all hacks for going further back into history than the drafting of the 14th
Kavanaugh doesn't go back further into history, it seems like you didn't read the opinion. He spends very little time on the constitutional question.
Yes, he's quote mining to try and argue that there was some sort of confusion about the implications of the amendment. This was part of the debate about the amendment and whether or not it should be reworded. In other words, Howard and Trumbull were raising the very issues with the text that Thomas wants to take issue with.
That discussion was one which shows that the implications of the text were understood and accepted as a result of debate. It cuts against Thomas's actual argument.
Thomas is a liar. Or at very least a dishonest in his characterization.
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.
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.
You are surely oversimplifying it. The amendment clearly says "born or naturalized"; can hatching or transmogrification be considered a birth? We need to look at the original meaning of the word "born" in 1868.
Also, it does not say anything about having political rights, just about being a "person", which will surely start a separate debate :)
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
> 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
Those examples show the difference between immunity and jurisdiction and prove the opposite of your point.
A diplomat is always subject to U.S. laws. That’s why, in your examples, they can be prosecuted for something they did while they had immunity. If the U.S. lacked jurisdiction—the power to apply its laws—over diplomats, that wouldn’t be true. The immunity would mean that no crime was committed, so there would be nothing to prosecute later.
Diplomatic immunity isn’t about jurisdiction, it’s about courtesy and norms. The U.S. always has the power (jurisdiction) to apply its laws to diplomats, it’s just that it chooses not to do so under certain circumstances.
If a diplomat is going on a shooting spree they can be shot and killed with no ensuing issues as a result of US law enforcement enforcing laws in the moment. If they are robbing a seven-eleven they can be arrested and held until arraignment. They can be ordered to remain in their home, aka house arrest. They can be ordered to leave and they have no option to remain in the country. The US constitution does not grant diplomats immunity it is something we have agreed to via treaty and law. They are 100% subject to our laws, that's why our law granting them immunity applies.
That flies in the face of what I understand is true about diplomatic immunity. Citation required.
As a less extreme example, diplomats can and DO park their vehicles illegally: in No Parking zones, Handicap Only zones, and blocking fire hydrants. Diplomat plates render the police unable to ticket them. It's civil not criminal courts, but for the exact reason that they are immune to our laws.
A diplomatic vehicle that is a safety hazard can be towed. A city/state cannot enforce any fines, but they can definitely clear any safety or traffic related issues.
I would start with Vienna Convention on Diplomatic Relations and go from there.
Maybe you’re right that “subject to the jurisdiction” excludes children of ambassadors but includes children of illegal immigrants, but how do we know that? That’s hardly apparent from the text of the 14th amendment.
You’re saying we need to look to the international meaning of some Latin phrase (“jus soli”). That sounds like a bunch of work, doesn’t it? Maybe we can do the work and come up with a correct answer, but the question is hardly as simple as people are making it out to be.
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.
> 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.
Diplomats have diplomatic immunity, which is not the same thing as jurisdiction. For example, diplomatic immunity doesn't extend to a diplomat's commercial activities: https://www.law.cornell.edu/wex/diplomatic_immunity. So if a diplomat sells you fake Hermes bags passing them off as the real thing, you can sue them in a U.S. court. And the U.S. court will have jurisdiction.
> Discussion of law discussion that uses comparison with international standards is quite common in every legal system... So yeah, sometimes discussions of law can be complicated. This one... Ain't.
We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
> We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
It really isn't, it's literally what lawyers do for a living.
Everyone on U.S. soil is subject to the law and rule of the courts to some extent, including diplomats. Diplomats are immune to prosecution for crimes, but that's different than being outside the jurisdiction of U.S. laws.
For example, in 2013 several Russian diplomats were indicted for Medicaid fraud: https://abcnews.com/US/russian-diplomats-scammed-medicaid-15.... They had diplomatic immunity, so the U.S. had to get the Russian government to waive the diplomatic immunity. But if Russia waived the immunity, the prosecution could proceed even though the diplomats had diplomatic immunity at the time the crime was committed.
Moreover, diplomats are subject to civil liability for commercial activities beyond their office: https://www.law.cornell.edu/wex/diplomatic_immunity. Diplomatic immunity doesn't protect them from suits in U.S. courts related to such activities.
So reading "subject to the jurisdiction thereof" to mean "subject to the law and the rule of the courts" proves too much. The U.S. and its courts have some level of jurisdiction over everyone and everything on U.S. soil. So that makes the phrase "born or naturalized in the United States, and subject to the jurisdiction thereof" redundant--the words "subject to the jurisdiction" aren't doing any work that the phrase "in the United States" isn't already doing.
A child of recognized foreign diplomat, if born in US soil, however, is not a US citizen at birth. And if they try to claim that later in life, it will be denied.
This has always been like that. All jus soli countries do it.
Correct. Children of diplomats born on U.S. soil aren’t covered by the 14th amendment, even though they are subject to U.S. law and can be sued in U.S. courts over many things notwithstanding diplomatic immunity.
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.
> who didn’t have permission to not follow laws like diplomats or invaders.
That doesn’t quite work, because diplomats and invaders do have to follow US laws and can be tried in U.S. courts. In Ex Parte Quirin, for example, nobody doubted that German saboteurs on U.S. soil could be prosecuted in civilian courts. And while diplomats have immunities in certain areas, they can be sued under U.S. law in U.S. courts for commercial activities conducted in the U.S.
If “subject to the jurisdiction” means the U.S. has some sort of jurisdiction over a foreign national, then children of ambassadors and foreign soldiers would have birthright citizenship. So there must be an additional step or wrinkle to get from the word “jurisdiction” to the exceptions that are recognized.
German saboteurs on us soil are certainly subject to us jurisdiction. If they had kids while here the kids would be citizens according to the 14th. Wong Kim talks of invaders who are working under a different set of laws because they’re part of a military invasion, not a clandestine operation. They can’t be tried because there is no American presence on the invaded territory. I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned. They’re not really subject to our jurisdiction. Being able to withdraw our invitation isn’t the same as having jurisdiction.
> Wong Kim talks of invaders who are working under a different set of laws because they’re part of a military invasion, not a clandestine operation. They can’t be tried because there is no American presence on the invaded territory.
Whether the U.S. has jurisdiction over territory has nothing to do with whether it can enforce its jurisdiction as a practical matter. If someone blew up a court in a particular district, that would not mean that the court, as a legal entity, ceased to have jurisdiction. By your reasoning, if Mexico invades Texas, children of Mexican servicemen born on U.S. soil would qualify as U.S. citizens. I don't think that's correct.
> I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned.
Being immune from prosecution is different from not being subject to the law. Diplomats are subject to the laws just like anyone else. They have immunity from prosecution for crimes. But the U.S. can request the immunity be revoked, and if that happens, they can be prosecuted for crimes that occurred while the had immunity.
And diplomats can be sued in civil cases in U.S. courts for their commercial activities. They are very much subject to the jurisdiction of U.S. courts, even if we can't always prosecute them for crimes.
"US jurisdiction" also includes foreign heads of state residing in, and present in, their own country. I don't think a theoretical definition of jurisdiction is tenable; only a realist one.
Illegal immigrants are also working under a different set of laws because they are citizens of another country. Ask yourself this: where would an illegal immigrant apply for a passport? Just like an invading army, citizens of other countries are obligated to follow the laws of the countries where they have citizenship in addition to any laws that may be imposed on them by being present in the US.
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".
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.
The problem is that the other half of the country will probably have something to say about activist leftist justices with their agenda. This is just not the constructive way of arguing.
Disclaimer: I'm a legal immigrant myself, and of course I appreciate the today's ruling in favor of jus soli.
What is the activist leftist agenda, anyway? Civil rights for everyone? Universal healthcare? The right wing activist agenda seems both better organized and universally punitive. One wants to force the government to help me, the other to punish me. And yet only the leftists are a danger to our country?
Aaaaand, there it is. If I disagree with a ruling, or with the politics of the president that appointed a judge that made a ruling, then the rulings are “illegitimate”.
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.
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.
I can believe that there is a lot of variance in maternal care and obstetrics in the US, but my wife and I had a pretty good experience. Documented here in what detail I could muster in those days: https://wiki.roshangeorge.dev/w/Pregnancy
Not to mention the lack of maternity leave or real worker protections. A family member was fired for taking off time during a pregnancy. Everyone's fine now, but she definitely had a rough patch.
A big part of this comes down to the lack of any real safety net here.
The US's population is not declining. However, without immigration, our population growth would be very close to zero, and a yet lower rate of natural increase is locked in over the next couple of decades (more old people who will die than children).
And, I mean, it's obviously hard to predict beyond that, but it doesn't seem like anyone has any real clear answer to the trend of steadily decreasing TFR right now.
I suspect OP mean declining fertility rate. USA population is still increasing, but is slowing down, and will sharply drop if the fertility rate remains below replacement of ~2 children per woman.
I believe OP is referring to how immigration is the only known working solution to a decreasing population.
The US fertility rate is already 1.6 births per woman[0], and the population is only not decreasing because it still receives far more immigration than, say, Japan or South Korea.
This is not specific to the US. The US is on 147th position [1], right near a lot of European countries, and I don't think there are easy way to rollback the demographic transition.
The nuance is ~71% of the world’s population now lives in countries with birth rates below the replacement level needed to maintain population size. US working age population cohort has likely peaked. The future of the developed world is fighting over global skilled workers and young potential immigrants who would settle and start families in your jurisdiction.
The birth rate correlates inversely with female earnings growth and correspondingly with male earnings growth; or, more to the point, declining birth rates correlates with the advancement of feminism (including birth rates approaching and then reaching zero.)
This is an observation and not a judgement. Take what you will with this information.
It makes sense to me. When women have more choices, they tend to put off having kids or they raise their standards - for their economic situation before kids, for partners, etc.
I think this is good; insofar as women have children, it should be because they want to, not because they're pushed into it.
I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.
Slightly fewer is good. A rate of around 1.8 kids per woman seems slow but it's an exponential so it's still quite significant.
Parts of the world have reached 1.0 kids per woman, which is a halving of the population per generation, which will put a massive strain on our resources
> which will put a massive strain on our resources
True, but again, scientists are saying that we're already putting massive strain on our ecological resources, and the strain is only increasing. Not just climate change, but ocean acidification, modification of biogeochemical balances, habitat destruction, etc.
We are at genuine risk of accidentally wrecking the ecosystems we depend on.
Yes, because of the outdated assumption that women take virtually all responsibility for childcare, which is damaging not just to women, but to men and children too, combined with the it becoming more difficult for families to manage on a single income.
It is not just an American problem. It is slowly changing, at least here in the UK: I see a lot more dads taking kids around these days. I have still found people were surprised that my daughter lived with me rather than her mother after divorce though.
This is true, although I think it correlates more strongly with female participation in the workforce than earnings directly. And it's not a criticism of feminism, just a consequence that we should be aware of.
A material component of reduction in the US fertility rate has been avoided teen (15-19 cohort) pregnancies. ~40% of pregnancies both in the US and internationally, annually, are unintended (per the Guttmacher Institute and the UN, respectively).
Either laws work the way they're written and 4 members of the court disagree or they work the way the Supreme Court says they work and a worse ruling could threaten those citizens.
That's not how we have traditionally thought citizenship works, but that is exactly what the Trump administration would've gone for next if the supreme court had ruled in their favor in this instance, thereby setting up the _next_ supreme court case.
The problem is that there’s accepted exceptions to birthright citizenship that aren’t apparent from the wording of the constitution. For example, everyone agrees children of ambassadors are not citizens at birth. Where does that exception come from? It doesn’t say anything about diplomats in the 14th amendment. It seems to come from the requirement that children be “subject to the jurisdiction” of the US at birth. But what does that mean? Jurisdiction is a broad concept that means different things in different contexts.
That exception comes from the fact that, I'm guessing, no diplomat or their children have sued over it.
If they have, I'd love to see exactly where a prior SC decided that it's constitutional.
If you are an originalist, textualist, or even just standard jurisprudence believer then it's crystal clear what the 14th meant. The only reason for any question about it is because a large portion of people hate the fact that someone can get citizenship by being born here.
The dissents violate the supposed judicial theory of these justices. It shows naked partisanship.
So what does “subject to the jurisdiction” mean, from a textualist standpoint? The word “jurisdiction” in the law can have different meanings in different contexts. What does it mean here?
> 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.
Notice the "and" clause before the "subject to the jurisdiction". It means "everyone who is born in the united states and additionally everyone who is subject to a US jurisdiction". It's the clause which allows people born on US military bases to also be citizens of the US because that's a jurisdiction of the US. For example, Ted Cruz. It does not mean "Who are also"
And since this is a clause which additionally adds on people it's talking about, you could exclude it all together. "All persons born or naturalized in the United States ... are citizens of the United States".
No, the "and" functions the same way as in programming: "(born or naturalized in the U.S.) && (subject to the jurisdiction thereof)" requires both things to be true.
No it's not. And, as a prime example, this case which the supreme court does not and did not take that view. It's not even something the dissent argued. This is your own personal interpretation.
No, it’s the opposite. In this case, everyone agreed that the “and” means both conditions must hold. Everyone agrees that someone must be both (1) born in the US and (2) subject to the jurisdiction of the U.S.
Under your reading, the whole discussion about children of diplomats makes no sense. Under your reading, children of diplomats would automatically be U.S. citizens if born on U.S. soil. But everyone agrees that they’re not.
Diplomats have some immunities but are not categorically outside the jurisdiction of US laws. For example, they can be sued for “commercial activity” outside the scope of their duties. If a diplomat sells you fake Hermes bags passing them off as real, you can sue them under civil law.
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?
The crazy thing here is that 4 supposedly conservative Supreme Court justices wanted to overturn over a century of precedent on how the constitution was interpreted.
You can be pro/fine with legal immigration (and moderate/non-partisan) and still not think birthright citizenship is a good idea (like I do).
Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
Reminds me of legal abortion: practically everywhere in the world has it. If you are not in that vast majority you should be taking a very close look at yourself/things.
So yes, let's amend the constitution. It's been a while and we do it on average every ten years or so. I have personally not ever been involved in one.
It's not really a question of what's a good idea. It is in the text of the Constitution, about as plain as it can possibly be. If you want to change it, you have to change the Constitition.
Ironically, the same Court members who most often claim the plain text of the Constitution to support their ideas are the ones who put the most effort into finding a tortured reading of the 14th Amendment.
No, it wasn't. I had it in there from the get go. I did not edit my comment for any reason, I don't think at least. Like I said in the original comment, you can be moderate/non-partisan and think this is a bad idea. You can think Trump's an idiot and still think birthright citizenship is a bad idea. That's all.
I thought so too. Then I read the arguments about the passage of the amendment. The people passing clearly stated that, say, the children of ambassadors wouldn't be eligible. It was mainly aimed at clearing up the questions about the various Native Americans who may have considered themselves independent. It wasn't about opening the doors to anyone.
it was not (solely) about slaves; this was debated in Congress during the process of drafting the amendment and resoundingly put down by contemporary legislators.
from Justice Jackson’s concurring opinion:
> Senator Edgar Cowan, for example, argued that German immigrants’ children born in Pennsylvania should be citizens, but Chinese immigrants’ children should not—because Germans and Chinese were different. In response, Senator Trumbull emphasized
that the law he had drafted drew no such distinctions.
Undeterred, Senator Cowan would warn again—this time during debates on the Fourteenth Amendment—that the Citizenship Clause would let Chinese immigrants “overrun” California and “double or treble the population” of that State. Senator John Conness of California, where anti-Chinese sentiment was arguably most pronounced, responded that “the children begotten of Chinese parents in California . . . shall be citizens.” In fact, he said, the Civil Rights Act had already declared “that the children of all parentage whatever . . . should be regarded and treated as citizens of the United States.” No Senator rose to agree with Senator Cowan or dispute what Senator Conness had said. And no Senator said what the principal dissent says today: that the text at issue conferred citizenship only on freed Blacks and those in analogous situations.
- - -
further down, Justice Jackson cites the most forthright example of how blisteringly ahistorical the Republican party’s arguments are on this topic:
> During the ratification debates, Senator Cowan took aim at the Roma people too, characterizing them as undeserving of birthright citizenship because they “wander[ed] in gangs,” “infest[ed] society,” and “impos[ed] upon the simple and weak everywhere.” And again, Senator Conness dismissed Senator Cowan’s prejudices: “The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels [at Gettysburg].”
SCOTUS has not had anything remotely close to a plain text reading since the 1930s and probably longer. "Shall not be infringed" was changed to "if an infantry rifle was made after 1986 then magically it can be infringed" and (until about a week ago when it was overturned) "if you smoke a left-handed cigarette actually the second amendment doesn't exist." The 1st amendment protects freedom of speech but yet it's legal to ban appeals to "prurient interest" even though no such exemption is mentioned. "Interstate commerce" has been changed to mean basically "commerce" and interstate is now interpreted as if it was put there for funsies since everything can be construed as affecting something else in the universe even though the historical context makes clear that's not how the text was interpreted by the writers.
Every other amendment including the 1st, 2nd, etc even when explicitly spelled out the courts magically pull something out of their ass to "torture it." Yet the 14th amendment birthright citizenship, who's "history and tradition" was to right the wrongs of slavery, somehow has to be read absolutely in black and white.
Personally I am amenable to the plain text interpretation of the 14th, 1st, and 2nd, but lets not pretend that is the game SCOTUS or even most of government and society is playing. The constitution is referenced more as a religious document by all the above to mean whatever it is they say it means.
Give me a plain-text explanation as to why a well-regulated militia can be infringed from having a 1987 select fire infantry rifle but not a 1985 one, both of which are probably the most bread and butter arms you could possibly consider as part of a well-regulated militia. (This despite the plain-text ascribes the right to "people" not the militia, and in any case US code defines virtually every able bodied citizen male as part of the militia). The NFA determinations by SCOTUS don't make sense even if the amendment said it was the militia's right rather than the people's.
Sure, one could make the argument that "shall not be infringed" is pretty cut-and-dry. I'm just not sure how one could make that argument while at the same time yadda-yaddaing the militia part, which is often what actually happens.
Anyway, I'm not sure I have a disagreement with your original point. It just seemed a bit funny to use the second amendment as an example of a thing that (supposedly) has unambiguous meaning, but gets interpreted politically by the courts. I'd argue that the ambiguity of that amendment is one of the most notorious things about it!
Note: There are ~30ish countries that provide citizenship to anyone born within their national borders (many with restrictions, for whatever that may mean). Largely, this covers a spotting of countries across the globe, but is almost universally true within the Americas.
As far as I can see it is almost entirely countries in the Americas plus Pakistan that have real birthright citizenship. Everywhere else has some restriction such as stateless parents, or multiple generations born in the country, or a minimum period of residence or similar https://en.wikipedia.org/wiki/Jus_soli
Hate to be that guy, but this a pet peeve of mine that pisses me of...
The term "birthright" means "a right that is derived from the circumstances of your birth". Virtually ALL countries grant citizenship by consequence of the circumstances of birth, but what circumstances they consider vary. For some countries, the circumstance is "birth happened in the soil of the country" (jus soli), for others, it's "birth was to parents who are citizens of our country".
I said "virtually", because there is one SINGLE exception. The Vatican. Ok, there's the SMOM, but do they even count?
And how many of those countries have an illegal immigration problem? I bet that most of them would quickly remove that loophole if people actually started to exploit it.
Root cause it. The USA does not have an illegal immigration problem. It has a "huge, slow immigration bureaucracy" problem that makes the legal path so slow and difficult that people are incentivized to gamble on illegal paths.
Having a difficult and selective immigration process that rejects the vast majority of applicants is not a problem. It is exactly how an immigration system should work. We want the best.
I'm personally happy to welcome anyone who's willing to come, work hard, pay taxes, and support democratic ideals. This is how most of our ancestors got here, and it seems fair to me that we continue to extend that offer to other would-be immigrants.
Worth noting that the economic literature also shows that this is firmly in our best interests, and immigrants and their children more than pay their way in future taxes and future entrepreneurship.
The US didn't even have a particularly selective immigration process for the first century. It was only after a big influx of Chinese immigrants (and a corresponding backlash) that we enacted our first immigration controls, limiting how many immigrants could come from a given country each year. The aptly-named "Chinese Exclusion Act" of 1882.
The system that we had up until the late 1800s had a natural rate limiter in that the technology of the time made international travel so time consuming and expensive that immigration was simply an impossible pipe dream for the vast majority. It was also limited in impact on the native population because there were no welfare programs of any kind at the time, so an immigrant was never an expense item on the budget.
It may be your personal opinion that we should have the open borders policy you describe, and you are perfectly entitled to that, but here is mine. Your idea is borderline insane. Putting bleeding hearts in charge, who will allow things like this out of some compulsion that fairness demands we have the same immigration policy now as we did in the 1800s, is national suicide. I will continue to vote for anyone besides your side, even right wingers that I find repulsive, because I fear that someone on the left who lacks fundamental self preservation instincts will put in place policies like the ones you support.
There exist a large number of legal pathways to permanent residency in the US, some of which do take unreasonably long; employment-based green card applications for Indian nationals famously have a decade-long waiting period. They should be reformed and improved.
But a big part of the problem is that many people do not have a legal pathway available to them, and either don't believe that or don't wish to accept it. So they spend years carefully pursuing every bit of due process they're entitled to, and those stories become part of the "slow immigration bureaucracy", regardless of whether the result was ever really in question. This is where immigration reform proposals have generally gotten bogged down; some people strongly feel we should resolve this by creating a general legal pathway, others feel we should resolve it by expediting removals, and both groups are very hesitant to agree to a proposal that doesn't resolve it at all.
People who abuse birthright citizenships are, by definitions, not illegal immigrants. But even if you count all of them as 'unwanted' immigrants - how many % of total immigration to the US is result of those birthright laws?
You are wrong about that. If an illegal crosses while pregnant, gets detained, and then gives birth the day after while in detention, that baby is 100% a US citizen.
if baby is 100% US citizen then how is that an 'illegal immigrant'? Again, you may call them 'unwanted', and you have right to such opinion. But law is what is written, if they got citizenship then they aren't illegal
Think two steps ahead, people aren't born right out of the sky. It encourages people to illegally enter for their citizenship baby and the parents remain illegal until ~21 years later when they can have the kid sponsor them. In the meantime the parents get free WIC even if they're illegal.
Most countries with a standard of living that even barely better than their neighbors have an immigration problem. There is a whole continent call Europe that is fighting off migrates and last I checked, birthright citizenship is not a thing there.
A belief held by the majority does not make it better simply for that fact. Not that long ago, the majority view was that slavery was a great thing, so I think you should see that argument falls fairly flat.
Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
Given the US is one of the most (the most?) successful countries in recent human history, shouldn't it be the other way around? Shouldn't the 95% be looking at the US and seeing what to copy?
To be fair a lot of it had also to do with the sheer immense amount of vast, mostly unused ,fertile land available in north America. I sincerely doubt the American experiment would have worked this well if they had rowdy neighbours and infighting due to resource constraints. For almost 200 years the solution to most things in the USA was to get a chunk of either their people or immigrant to move to the neck of the woods to find fortune
But the success hasn't ended since the unused land became taken; in fact, the US became a superpower after the westward expansion era. My point is that looking at conditions today, the US still continues to succeed (by some definition of success) and other countries should try to emulate the aspects of the country that leads to that success. IMO one of the big factors is how well immigrants assimilate in the country, and birthright citizenship is a part of that.
I do agree with you that US success in the 19th century was due to many factors that are not relevant today.
Fair point. Mainly I agree with the sibling comment: the revealed preference of many people around the world, including many people from the richest countries in Europe, is to move the United States and then settle permanently. I think that means a lot.
Obviously you can also say that the US is geopolitically successful because of its global military and diplomatic dominance, but I account zero value to this.
At a minimum, it's been a place that people wanted to come to, more than they wanted to come to anywhere else in the world. That's successful as measured by people.
(Or at least, people wanted to come until the last couple of years...)
I'm not sure it's true, that seems to be mostly for economic reasons (which might define success, arguably), but I bet a lot more people would dream about living let say in Thailand than in the US, they just can't because they don't have the means.
As a non-US citizen, birthright citizenship has always struck me as strangely unique to America - in my mind it comes from a time when it was actively trying to populate the continent (something not a lot of countries have wanted to do, I guess).
Roll forward a few hundred years and the context has changed, so it seems reasonable that the law should too? But I guess it shouldn't be surprising that this is no bueno for SCOTUS, which has an infinite hard-on for Originalism [0] - I certainly can't imagine the conservative justices are ruling based on humanitarian grounds.
Most of the Americas for just that reason - and because the countries immigrants came from did not want their kids to have citizen ship and the right to come back.
I mean, it tracks with "no taxation without representation". Getting rid of birthright citizenship has the chance to create a separate *multi-generational* class of people that aren't given the same rights in society.
Most countries in North and South America have unconditional birthright citizenship for persons born in the country.
I take it you are not British? The British Empire had birthright citizenship, and up until 1948 (except for Ireland) citizens of all Commonwealth countries were simply British subjects.
Afterward it was possible to be, for example, a Canadian citizen, but it was still the case that "Prior to the [the British Nationality Act 1981] coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to [Citizenship of the United Kingdom and Colonies] status" - https://en.wikipedia.org/wiki/British_Nationality_Act_1981
We don't really amend the Constitution every ten years. We got 10 all at once, immediately after the Constitution was written. They were amendments only because there was debate about whether including them would deprive people of even more rights by omission.
Of the remaining ones, two cancel each other out, and several others (including the most recent) are trivial. The Constitution has not been meaningfully amended in half a century, and it seems wildly unlikely that it ever can be.
The US has always been a country of immigrants; the Constitution recognizes and enshrines this fact. Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment). Given how difficult it is to find consensus on even the most banal issue, it's unclear whether there would be sufficient support to ever amend.
>Jus soli is the predominant rule in the Americas; explanations for this geographical phenomenon include the establishment of lenient laws by past European colonial powers to entice immigrants from the Old World and displace native populations in the New World, along with the emergence of successful wars of independence movements that widened the definition and granting of citizenship, as a prerequisite to the abolishment of slavery since the 19th century.[5]
>There are 35 countries that provide citizenship unconditionally to anyone born within their national borders.
95% of countries weren't formed by settling on somebody else's land and excluding the original inhabitants from citizenship for several hundred years. The American project is what it is because of millions of migrants who settled there for the perverse incentives of free land via the Homestead Act.
> Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
I typically find that the people using this logic don't seem to apply it to laws like universal healthcare, parental leave, or paid-time off. The lack of those benefits creates perverse incentives to already living citizens, not hypothetical future citizens. Why not focus on them?
Constitutional amendments are generally made with the purpose of granting rights to the people, not taking them away. The US once made the mistake of making an amendment to take away rights (banning alcohol), but then another amendment restored the right to get drunk.
I, for one, believe in American exceptionalism. This country is different in many ways and its success is due to that difference. I don't think that the US should actively aim to "revert to the mean".
The US is unlike most other countries in that it is built on the recent genocide of the native population, with ~most of the current population being immigrants in the last 400 years.
Under what moral rules do genocidaires get citizenship but not, say, refugees?
Its a terrible idea to give citizenship to the chidlren of birth tourist. It makes no sense that someone defrauds the US government to get their child citizenship then you do nothing about it.
Is it "defrauding" if someone's just following the rules, though? And, at that, is it worth building your citizenship rules around something incredibly rare? (Estimates seem to think it's something like 15k babies a year.)
This "broad conception" is pretty well documented as what Congress wanted at the time of passage of 14th Amendment. It's been considered "settled law" for ages. The only real reason it's come to SCOTUS is that a particular political faction wants it to, and the media gives that particular faction more credence, and more coverage. So there's two things here:
Sorry but I wanted to see a 9-0... There are 3, 4, that are just ignoring the constitution from what I read/saw. It is only a matter of time. A win for now but that is for now.
This is kind of crazy. The text of the amendment is as literal as it gets. If this had failed it would have basically meant emptying Congress of all of its powers, because now the executive can just pick whatever interpretation they deem fit to their goals and run with it.
The rule of courts of law is to interpret the law, not to pick new creative meanings out of them. That's the role of the legislative power - otherwise what's stopping a court to reinterpret the meaning of any word in any legal text and allow the executive to rule by decree
It has been clear to every single human being reading it for hundreds of years. It was never up to debate until some person of this administration decided to go and question the meaning of "jurisdiction thereof". Also saying that a foreign-born person isn't subject to the jurisdiction of the country they find themselves in opens a massive can of worms - like, if the State doesn't have jurisdiction over foreign nationals, does it imply it's not legally allowed to arrest them for instance? Two can play the same game and find infinite loopholes even in the clearest of texts.
This goes beyond the value of citizenship by birth, which I'm neither in favour nor against (personally I think that just sanguinis is nonsensical, but so is to automatically give citizenship even to accidental passer-bys), it's all about whether the law still carries any "evident" meaning or whether it can be spun around depending on political necessity, which is bad
You didn't read the decision, it was up for debate in 1898 Wong Kim Ark. Every justice cites it. Wong Kim Ark gives 4 exceptions, and it isn't clear if those exceptions are comprehensive or not.
And you didn't read the majority's breakdown of `subject to the jurisdiction`'s historical meaning, otherwise you would know that the power to arrest is not the same concept.
You have made false claims and appears you are commenting on something you haven't read.
Kavanaugh ruled that Trump's EO wasn't unconstitutional, just contrary to federal law, and Congress could change the law there if they wanted. So, this makes it only 5-4 upholding the 14th amendment.
Which is gods-damned crazy. We are that close to overturning major civil rights.
This would also overturn our ability to arrest or deport non-citizen, no? If the argument is that they are not under the jurisdiction of the US government, we cannot legally arrest or prosecute them?
This would create chaos. Not to mention the tens of millions of citizens retroactively turned into stateless people!
Sure, but it leads to allowing for the possibility of interpreting "..the right to bear arms.." as "you are allowed to own the limbs of an Ursus arctos".
There's plenty in the US constitution which is vaguely worded, but you have to twist its words an awful lot to deny birthright citizenship.
And if they do enough of that, the other two branches might eventually be motivated to take action to counter it, like packing the courts or impeachments. Or telling SCOTUS to enforce it, as one president did.
The language couldn't be any clearer. The fact that it was questioned by people with a stated motive doesn't prove otherwise.
"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."
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof ...
It's the second part that is in dispute and is not clear from the constitution's text what exactly it means and who it excludes. And yes, it has always excluded some people born within the borders, it is not a meaningless statement.
Well, no, but almost everyone inside US borders is subject to US laws. The exceptions are rare: people in foreign embassies (which is "foreign soil"), invading armies, and indigenous tribes on tribal land.
But that’s the whole debate! We all agree that the phrase “subject to the jurisdiction” creates exceptions that are not in the text. Where do those exceptions come from, and what’s the exhaustive list of them?
> people in foreign embassies (which is "foreign soil")
This is incorrect. Children of ambassadors are not citizens at birth, even if they’re born off the embassy on U.S. soil. Diplomats don’t give birth in embassies.
> invading armies, and indigenous tribes on tribal land.
Incorrect. Prior to the 1924 indians citizenship act, Indians born off tribal land weren’t U.S. citizens either, because they were considered citizens of the indian nations to whom their parents belonged.
Prior to the Indian citizenship act, a child of Cherokee Indians born on US soil where citizens of the Cherokee nation and were not automatically U.S. citizens under the 14th amendment.
Under Canadian citizenship law, a child born in the U.S. to Canadian citizens is automatically a citizen of Canada at birth. Using the exact same logic as for Indian tribes, that child isn’t a U.S. citizen at birth under the 14th amendment.
Anyone who does not have an explicit exclusion is under the jurisdiction of US laws while on US soil. There's zero room for ambiguity unless you're coming in bad faith with politically motivated intent. Or are you seriously arguing there's an interpretation where illegal immigrants can commit any crime they want and can't be deported?
Where does it say "jurisdiction" only refers to criminal law? Diplomats aren't excluded from being subject to civil laws for "commercial activities," and U.S. courts have jurisdiction over diplomats in suits pertaining to such activities.
POV: you're about to hear the dumbest takes on the internet.
/s
Seriously though, were the founding fathers just master ragebaiters or what? More ink has been spilled over these two lines than any other in modern history.
In the past decade, the Constitution hasn’t slowed down the courts from creatively interpreting its various clauses. Their decisions have effectively amended many of those fundamental (and arguably inalienable) rights. Repeatedly.
This trivial reading of the constitution doesn't align with the reality. Two simple exceptions and a third not so simple are children of diplomats, children of invading armies, and native americans, who required an act of congress to give citizenship at birth.
The supreme Court ruled that South Carolina could not secede from the Union because the Constitution was merely a continuation of the agreements under the articles of confederation even though all states had to withdraw from the confederation to get into the union.
After that bit of logic, nothing the supreme Court decides would surprise me
Trump and his cronies were never going to win that battle. Like many things he does, it serves as a dog whistle to nationalists and allows him to paint anyone who opposes him as somehow un-American and an enemy of the ‘people’.
It is a truly insane policy to grant citizenship to the kid of any tourist who happens to give birth on vacation. If the Supreme Court won't correct this, we need to pass a Constitutional Amendment to do it ourselves.
I’m curious why you believe an amendment will help your situation.
This case (placed alongside many others in recent memory) demonstrates that no matter how clear and unequivocal a legal text you write, the textualists can find a way to overturn it.
So what specific legal text for this amendment of yours do you believe is immune from that degree of sophistry?
I'm not him, but it creates some perverse incentives (like chinese billionaires who pay american surrogates to get implanted with dozens of their kids who get american citizenship).
Chinese billionaires are bound to do weird shit. I don't think we should amend our constitution to try to prevent that.
If the problem is 'birth tourism' and subsequent immigration visas for relatives of the US national child, changing the immigration policies seems like a better fix. Something like requiring a sponsoring citizen to reside in the US for a period before sponsorship. A citizen sponsoring a visa for a parent already has to be 21.
I'm not sure I can be that upset by people who want to immigrate, so they put a plan in motion that takes 21+ years to reach fruition. Although that does jump the line if you were eligible for F3 or F4 and your country of origin is Mexico... the priority date on those is currently 2001. [1]
I want more people in the US who can do long term planning, not less. :p
This doesn't seem like a major problem. Immigration officials are already sensitive to birth-tourism and have had discretion to deny entry to obviously pregnant tourists even long before Trump.
Beyond that, if you're a billionaire you can just fast track a path to citizenship with a gold card.
Some woman who is 8 months pregnant comes to the US on a tourist visa and gives birth, then goes home with the baby. And then somehow that kid gets automatic US citizenship. And it applies even if the mother is not even legally allowed in the country. And you think that is not insane?
I think there would be a real problem with creating a class of people who live here their entire lives and aren't citizens. And then their children also live here and aren't citizens, and their grandchildren, etc.
It's not that birthright citizenship is ideal, but it prevents some other, bigger problems.
Truly insane that this is one of the most important founding aspects of the country. Without which most, if not all, the population wouldn't legally be allowed to live here. But yet, you don't understand that.
Most Americans conveniently forget the whole "nation of immigrants" thing once they are a few generations removed from the situation. Ladder kickers the lot of them.
It wasn't up to the Supreme Court to correct. It is very plainly written in the constitution. Sure you can disagree, but it is up to elected representatives in Congress to amend, not Trump or the Supreme Court.
The number of times this happens in a year is negligible. It’s also quite difficult to do it safely: airlines won’t allow you to fly when heavily pregnant, and emergency deliveries are incredibly expensive due to the American healthcare system.
So you are suggesting abrogating rights based on an event that occurs with minuscule probability. Get a grip.
the fact that birth tourism is a thing means the demand for us citizenship is way higher than supply, to the point people are willing to put their whole life savings and break the law just to have a shot at getting it through a complicated family route.
its easy to fix by making legal immigration cheap and reliable. its also great for the economy, a lot of undocumented immigrants work illegally dont pay taxes because they cant work normal jobs without getting deported.
legalizing their stay means more tax revenue, less crime and labor violations, lower costs for business and i would also say its kind of morally wrong for a rich country to buy cheap stuff made by workers in mexico or china and give none of the profits back. closed borders are glboal injustice.
Folks should read the opinion, including the concurrences and dissents: https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf. They’re all good and well reasoned. The Court put a lot of work into this case.
This was a tricky case where the constitutional text contains ambiguous language (whether the child is “subject to the jurisdiction” of the U.S. at birth). Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way.
Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't.
> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."
The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.
> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States
Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.
I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.
> Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
From today's decision:
> 2) In Wong Kim Ark, the Court held that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law, 169 U. S., at 688, excluding only those recognized as exempt “from the jurisdiction of this country”—the“children of ambassadors” and those born in the nations of Indian tribes, id., at 675, 681–683, 693.
That's a 1898 decision where the status of native tribes was not at issue, but was used as an example. But it's roughly contemporaneous with the 14th amendment and shows why an Indian Citizenship Act would be needed.
> Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way.
This is a summary of Thomas’ dissent; the majority opinion is based on more than just “English common law.” Even Thomas acknowledged this.
Looking at the dissents (Justice Gorsuch) it appears that he would consider illegal immigrants’ kids are citizens, but kids of legal non-immigrants are not based on the fact that one is a temporary visitor and another is not!
So, when I enter as a tourist, I'm not in jurisdiction? Sweet! Crime time!
Genuine question.
Isn't this statement aimed at citizenship tourism or whatever its called?
I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
Well, it doesn't matter. If the SCOTUS decides that some people, in certain circumstances, are not in jurisdiction of US law, then they have to apply that notion everywhere.
They can't pick and choose "oh no they are in jurisdiction of law A but not in law B". Jurisdiction is a fundamental concept, there's no middle ground.
As for whether people are really doing birth tourism: sure, there might be some cases, but well, they are using something that the legal system allows. If the country feels like it doesn't want that happening, it needs to amend the Constitution.
(Also, let's not kid ourselves that the birth tourism thing is what conservatives care about... People doing that kind of thing are usually rich. The real target are poor illegal immigrants giving birth in the country.)
Jurisdiction is not some singular concept that means the same thing in every context. You can have jurisdiction over some things in some contexts and not have jurisdiction over other things in other contexts.
In that case, the use of the word jurisdiction in the 14th Amendment is meaningless, too ambiguous to rely on. Unless we think the Constitution should be living, breathing, and adapt to the current political environment. Is that the current conservative viewpoint?
Well, a word can have different meanings in different contexts but still have a clear meanings in each particular context. But I agree that “jurisdiction” doesn’t have a well defined meaning in the context of individuals being subject to the jurisdiction of a nation.
In that case, the proper approach is to look at other evidence of what the drafters meant, which is what both the majority and dissents did.
Thank God.
If only because this would open up people born here to having their citizenship retroactively revoked.
The constitution is pretty clear. If you don't like it amend it.
If anything we need to expand it to include anyone who gives birth in this country. If you're willing to deal with our horrible maternity care system and help keep up our declining population, you deserve a blue passport.
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:
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
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.
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.
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.
> The 14th amendment grants Jus Soli. End of story.
But it isn't the end, it then qualifies who gets Jus Soli. And that is the debate.
> The people who drafted the 14th and ratified it were in favor of Jus Soli
Thomas cites Sen. Howard and Sen. Trumbull statements in support of the claim that the 14th amendment ratifiers did not intend to grant universal Jus Solis. Is he a liar?
> ... and Kavanaugh are all hacks for going further back into history than the drafting of the 14th
Kavanaugh doesn't go back further into history, it seems like you didn't read the opinion. He spends very little time on the constitutional question.
> Is he a liar?
Yes, he's quote mining to try and argue that there was some sort of confusion about the implications of the amendment. This was part of the debate about the amendment and whether or not it should be reworded. In other words, Howard and Trumbull were raising the very issues with the text that Thomas wants to take issue with.
That discussion was one which shows that the implications of the text were understood and accepted as a result of debate. It cuts against Thomas's actual argument.
Thomas is a liar. Or at very least a dishonest in his characterization.
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.
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.
You are surely oversimplifying it. The amendment clearly says "born or naturalized"; can hatching or transmogrification be considered a birth? We need to look at the original meaning of the word "born" in 1868.
Also, it does not say anything about having political rights, just about being a "person", which will surely start a separate debate :)
I look forward to reading the SCOTUS opinions on "US vs Chnr'xu@jjjjjj".
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.
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
> 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
Those examples show the difference between immunity and jurisdiction and prove the opposite of your point.
A diplomat is always subject to U.S. laws. That’s why, in your examples, they can be prosecuted for something they did while they had immunity. If the U.S. lacked jurisdiction—the power to apply its laws—over diplomats, that wouldn’t be true. The immunity would mean that no crime was committed, so there would be nothing to prosecute later.
Diplomatic immunity isn’t about jurisdiction, it’s about courtesy and norms. The U.S. always has the power (jurisdiction) to apply its laws to diplomats, it’s just that it chooses not to do so under certain circumstances.
If a diplomat is going on a shooting spree they can be shot and killed with no ensuing issues as a result of US law enforcement enforcing laws in the moment. If they are robbing a seven-eleven they can be arrested and held until arraignment. They can be ordered to remain in their home, aka house arrest. They can be ordered to leave and they have no option to remain in the country. The US constitution does not grant diplomats immunity it is something we have agreed to via treaty and law. They are 100% subject to our laws, that's why our law granting them immunity applies.
That flies in the face of what I understand is true about diplomatic immunity. Citation required.
As a less extreme example, diplomats can and DO park their vehicles illegally: in No Parking zones, Handicap Only zones, and blocking fire hydrants. Diplomat plates render the police unable to ticket them. It's civil not criminal courts, but for the exact reason that they are immune to our laws.
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A diplomatic vehicle that is a safety hazard can be towed. A city/state cannot enforce any fines, but they can definitely clear any safety or traffic related issues.
I would start with Vienna Convention on Diplomatic Relations and go from there.
Maybe you’re right that “subject to the jurisdiction” excludes children of ambassadors but includes children of illegal immigrants, but how do we know that? That’s hardly apparent from the text of the 14th amendment.
You’re saying we need to look to the international meaning of some Latin phrase (“jus soli”). That sounds like a bunch of work, doesn’t it? Maybe we can do the work and come up with a correct answer, but the question is hardly as simple as people are making it out to be.
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.
> 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.
Diplomats have diplomatic immunity, which is not the same thing as jurisdiction. For example, diplomatic immunity doesn't extend to a diplomat's commercial activities: https://www.law.cornell.edu/wex/diplomatic_immunity. So if a diplomat sells you fake Hermes bags passing them off as the real thing, you can sue them in a U.S. court. And the U.S. court will have jurisdiction.
> Discussion of law discussion that uses comparison with international standards is quite common in every legal system... So yeah, sometimes discussions of law can be complicated. This one... Ain't.
We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
> We have to look to international standards concerning latin phrases to understand what Americans meant by the phrase "subject to the jurisdiction," but that isn't "complicated?" If you say so.
It really isn't, it's literally what lawyers do for a living.
Correct me if I'm wrong, but jurisdiction can be summarized as whoever is subject to the law and the rule of the courts.
Everyone on U.S. soil is subject to the law and rule of the courts to some extent, including diplomats. Diplomats are immune to prosecution for crimes, but that's different than being outside the jurisdiction of U.S. laws.
For example, in 2013 several Russian diplomats were indicted for Medicaid fraud: https://abcnews.com/US/russian-diplomats-scammed-medicaid-15.... They had diplomatic immunity, so the U.S. had to get the Russian government to waive the diplomatic immunity. But if Russia waived the immunity, the prosecution could proceed even though the diplomats had diplomatic immunity at the time the crime was committed.
Moreover, diplomats are subject to civil liability for commercial activities beyond their office: https://www.law.cornell.edu/wex/diplomatic_immunity. Diplomatic immunity doesn't protect them from suits in U.S. courts related to such activities.
So reading "subject to the jurisdiction thereof" to mean "subject to the law and the rule of the courts" proves too much. The U.S. and its courts have some level of jurisdiction over everyone and everything on U.S. soil. So that makes the phrase "born or naturalized in the United States, and subject to the jurisdiction thereof" redundant--the words "subject to the jurisdiction" aren't doing any work that the phrase "in the United States" isn't already doing.
A child of recognized foreign diplomat, if born in US soil, however, is not a US citizen at birth. And if they try to claim that later in life, it will be denied.
This has always been like that. All jus soli countries do it.
Correct. Children of diplomats born on U.S. soil aren’t covered by the 14th amendment, even though they are subject to U.S. law and can be sued in U.S. courts over many things notwithstanding diplomatic immunity.
Yes that's my position.
A person who is not under jurisdiction (e.g., putatively, the illegal immigrants), cannot be prosecuted.
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.
> who didn’t have permission to not follow laws like diplomats or invaders.
That doesn’t quite work, because diplomats and invaders do have to follow US laws and can be tried in U.S. courts. In Ex Parte Quirin, for example, nobody doubted that German saboteurs on U.S. soil could be prosecuted in civilian courts. And while diplomats have immunities in certain areas, they can be sued under U.S. law in U.S. courts for commercial activities conducted in the U.S.
If “subject to the jurisdiction” means the U.S. has some sort of jurisdiction over a foreign national, then children of ambassadors and foreign soldiers would have birthright citizenship. So there must be an additional step or wrinkle to get from the word “jurisdiction” to the exceptions that are recognized.
German saboteurs on us soil are certainly subject to us jurisdiction. If they had kids while here the kids would be citizens according to the 14th. Wong Kim talks of invaders who are working under a different set of laws because they’re part of a military invasion, not a clandestine operation. They can’t be tried because there is no American presence on the invaded territory. I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned. They’re not really subject to our jurisdiction. Being able to withdraw our invitation isn’t the same as having jurisdiction.
> Wong Kim talks of invaders who are working under a different set of laws because they’re part of a military invasion, not a clandestine operation. They can’t be tried because there is no American presence on the invaded territory.
Whether the U.S. has jurisdiction over territory has nothing to do with whether it can enforce its jurisdiction as a practical matter. If someone blew up a court in a particular district, that would not mean that the court, as a legal entity, ceased to have jurisdiction. By your reasoning, if Mexico invades Texas, children of Mexican servicemen born on U.S. soil would qualify as U.S. citizens. I don't think that's correct.
> I think you’re stretching the definition of jurisdiction with the diplomat stuff. Sure they’re expected to follow laws, but with only a few exceptions if they break laws they just got sent home, not imprisoned.
Being immune from prosecution is different from not being subject to the law. Diplomats are subject to the laws just like anyone else. They have immunity from prosecution for crimes. But the U.S. can request the immunity be revoked, and if that happens, they can be prosecuted for crimes that occurred while the had immunity.
And diplomats can be sued in civil cases in U.S. courts for their commercial activities. They are very much subject to the jurisdiction of U.S. courts, even if we can't always prosecute them for crimes.
"US jurisdiction" also includes foreign heads of state residing in, and present in, their own country. I don't think a theoretical definition of jurisdiction is tenable; only a realist one.
Illegal immigrants are also working under a different set of laws because they are citizens of another country. Ask yourself this: where would an illegal immigrant apply for a passport? Just like an invading army, citizens of other countries are obligated to follow the laws of the countries where they have citizenship in addition to any laws that may be imposed on them by being present in the US.
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".
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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The problem is that the other half of the country will probably have something to say about activist leftist justices with their agenda. This is just not the constructive way of arguing.
Disclaimer: I'm a legal immigrant myself, and of course I appreciate the today's ruling in favor of jus soli.
What is the activist leftist agenda, anyway? Civil rights for everyone? Universal healthcare? The right wing activist agenda seems both better organized and universally punitive. One wants to force the government to help me, the other to punish me. And yet only the leftists are a danger to our country?
Aaaaand, there it is. If I disagree with a ruling, or with the politics of the president that appointed a judge that made a ruling, then the rulings are “illegitimate”.
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.
I can believe that there is a lot of variance in maternal care and obstetrics in the US, but my wife and I had a pretty good experience. Documented here in what detail I could muster in those days: https://wiki.roshangeorge.dev/w/Pregnancy
Congrats!
But statistically America lags behind most other nations of similar development levels.
https://en.wikipedia.org/wiki/List_of_countries_by_maternal_...
Not to mention the lack of maternity leave or real worker protections. A family member was fired for taking off time during a pregnancy. Everyone's fine now, but she definitely had a rough patch.
A big part of this comes down to the lack of any real safety net here.
Wow, looking at the data on that page, it seems that people should go to Belarus if they want to have a baby.
> If anything we need to expand it to include anyone who gives birth in this country.
???
That's exactly what this ruling affirms; no expansion necessary: it already included "anyone who gives birth in this country".
> our declining population
Our what?
The US's population is not declining. However, without immigration, our population growth would be very close to zero, and a yet lower rate of natural increase is locked in over the next couple of decades (more old people who will die than children).
And, I mean, it's obviously hard to predict beyond that, but it doesn't seem like anyone has any real clear answer to the trend of steadily decreasing TFR right now.
I suspect OP mean declining fertility rate. USA population is still increasing, but is slowing down, and will sharply drop if the fertility rate remains below replacement of ~2 children per woman.
I believe OP is referring to how immigration is the only known working solution to a decreasing population.
The US fertility rate is already 1.6 births per woman[0], and the population is only not decreasing because it still receives far more immigration than, say, Japan or South Korea.
[0]: https://www.cdc.gov/nchs/data/vsrr/vsrr038.pdf
This is not specific to the US. The US is on 147th position [1], right near a lot of European countries, and I don't think there are easy way to rollback the demographic transition.
[1]: https://en.wikipedia.org/wiki/List_of_countries_by_total_fer...
The US Is Flirting With Its First-Ever Population Decline - https://news.ycombinator.com/item?id=46960624 - February 2026 (1008 comments)
The nuance is ~71% of the world’s population now lives in countries with birth rates below the replacement level needed to maintain population size. US working age population cohort has likely peaked. The future of the developed world is fighting over global skilled workers and young potential immigrants who would settle and start families in your jurisdiction.
Is the U.S. Labor Force Nearing Its Peak? - https://news.ycombinator.com/item?id=48726615 - June 2026
The Fertility Rate of Every Country in the World - https://www.visualcapitalist.com/fertility-rate-of-world-pop... - May 17th, 2026
U.S. Total Fertility Rate by State 2007 vs 2025 - https://old.reddit.com/r/dataisbeautiful/comments/1qt22ka/oc... - February 2026
The demographic future of humanity: facts and consequences [pdf] - https://news.ycombinator.com/item?id=44866621 - August 2025 (400 comments)
Our World In Data: Population tool: How will populations across the world change in the 21st century? - https://ourworldindata.org/population-simulation-tool
("demography is destiny")
The birth rate correlates inversely with female earnings growth and correspondingly with male earnings growth; or, more to the point, declining birth rates correlates with the advancement of feminism (including birth rates approaching and then reaching zero.)
This is an observation and not a judgement. Take what you will with this information.
It makes sense to me. When women have more choices, they tend to put off having kids or they raise their standards - for their economic situation before kids, for partners, etc.
I think this is good; insofar as women have children, it should be because they want to, not because they're pushed into it.
I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.
Slightly fewer is good. A rate of around 1.8 kids per woman seems slow but it's an exponential so it's still quite significant.
Parts of the world have reached 1.0 kids per woman, which is a halving of the population per generation, which will put a massive strain on our resources
> which will put a massive strain on our resources
True, but again, scientists are saying that we're already putting massive strain on our ecological resources, and the strain is only increasing. Not just climate change, but ocean acidification, modification of biogeochemical balances, habitat destruction, etc.
We are at genuine risk of accidentally wrecking the ecosystems we depend on.
https://www.science.org/doi/10.1126/sciadv.adh2458
Yes, because of the outdated assumption that women take virtually all responsibility for childcare, which is damaging not just to women, but to men and children too, combined with the it becoming more difficult for families to manage on a single income.
It is not just an American problem. It is slowly changing, at least here in the UK: I see a lot more dads taking kids around these days. I have still found people were surprised that my daughter lived with me rather than her mother after divorce though.
This is true, although I think it correlates more strongly with female participation in the workforce than earnings directly. And it's not a criticism of feminism, just a consequence that we should be aware of.
A material component of reduction in the US fertility rate has been avoided teen (15-19 cohort) pregnancies. ~40% of pregnancies both in the US and internationally, annually, are unintended (per the Guttmacher Institute and the UN, respectively).
Teen birth rates hit another historical low in 2025, CDC says - https://www.npr.org/2026/04/09/nx-s1-5777587/teen-birth-rate... - April 9th, 2026
> If only because this would open up people born here to having their citizenship retroactively revoked.
No, that's not how laws work
Applying laws retroactively is much less common than a "simple" rule change
Either laws work the way they're written and 4 members of the court disagree or they work the way the Supreme Court says they work and a worse ruling could threaten those citizens.
That was very much on the table, though not locked in.
That's not how we have traditionally thought citizenship works, but that is exactly what the Trump administration would've gone for next if the supreme court had ruled in their favor in this instance, thereby setting up the _next_ supreme court case.
> The constitution is pretty clear.
It’s really not, as the opinion in this case shows: https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
The problem is that there’s accepted exceptions to birthright citizenship that aren’t apparent from the wording of the constitution. For example, everyone agrees children of ambassadors are not citizens at birth. Where does that exception come from? It doesn’t say anything about diplomats in the 14th amendment. It seems to come from the requirement that children be “subject to the jurisdiction” of the US at birth. But what does that mean? Jurisdiction is a broad concept that means different things in different contexts.
That exception comes from the fact that, I'm guessing, no diplomat or their children have sued over it.
If they have, I'd love to see exactly where a prior SC decided that it's constitutional.
If you are an originalist, textualist, or even just standard jurisprudence believer then it's crystal clear what the 14th meant. The only reason for any question about it is because a large portion of people hate the fact that someone can get citizenship by being born here.
The dissents violate the supposed judicial theory of these justices. It shows naked partisanship.
So what does “subject to the jurisdiction” mean, from a textualist standpoint? The word “jurisdiction” in the law can have different meanings in different contexts. What does it mean here?
> 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.
Notice the "and" clause before the "subject to the jurisdiction". It means "everyone who is born in the united states and additionally everyone who is subject to a US jurisdiction". It's the clause which allows people born on US military bases to also be citizens of the US because that's a jurisdiction of the US. For example, Ted Cruz. It does not mean "Who are also"
And since this is a clause which additionally adds on people it's talking about, you could exclude it all together. "All persons born or naturalized in the United States ... are citizens of the United States".
No, the "and" functions the same way as in programming: "(born or naturalized in the U.S.) && (subject to the jurisdiction thereof)" requires both things to be true.
Not according to the supreme court any time this has come up.
That’s how the Supreme Court always interprets “and” in a list of conditions.
No it's not. And, as a prime example, this case which the supreme court does not and did not take that view. It's not even something the dissent argued. This is your own personal interpretation.
No, it’s the opposite. In this case, everyone agreed that the “and” means both conditions must hold. Everyone agrees that someone must be both (1) born in the US and (2) subject to the jurisdiction of the U.S.
Under your reading, the whole discussion about children of diplomats makes no sense. Under your reading, children of diplomats would automatically be U.S. citizens if born on U.S. soil. But everyone agrees that they’re not.
I mean, aren't diplomats immune to US laws? Literal "diplomatic immunity".
It makes sense to me to say that they do not fall under US laws and US jurisdiction, and their children likewise.
Diplomats have some immunities but are not categorically outside the jurisdiction of US laws. For example, they can be sued for “commercial activity” outside the scope of their duties. If a diplomat sells you fake Hermes bags passing them off as real, you can sue them under civil law.
The most obvious read of the constitution in the world still being a 6-3 verdict shows the state of the Supreme Court today.
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.
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?
The crazy thing here is that 4 supposedly conservative Supreme Court justices wanted to overturn over a century of precedent on how the constitution was interpreted.
You can be pro/fine with legal immigration (and moderate/non-partisan) and still not think birthright citizenship is a good idea (like I do).
Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
Reminds me of legal abortion: practically everywhere in the world has it. If you are not in that vast majority you should be taking a very close look at yourself/things.
So yes, let's amend the constitution. It's been a while and we do it on average every ten years or so. I have personally not ever been involved in one.
It's not really a question of what's a good idea. It is in the text of the Constitution, about as plain as it can possibly be. If you want to change it, you have to change the Constitition.
Ironically, the same Court members who most often claim the plain text of the Constitution to support their ideas are the ones who put the most effort into finding a tortured reading of the 14th Amendment.
Please re read his comment. He’s saying the constitution should be amended.
I think it was edited to add that?
No, it wasn't. I had it in there from the get go. I did not edit my comment for any reason, I don't think at least. Like I said in the original comment, you can be moderate/non-partisan and think this is a bad idea. You can think Trump's an idiot and still think birthright citizenship is a bad idea. That's all.
I thought so too. Then I read the arguments about the passage of the amendment. The people passing clearly stated that, say, the children of ambassadors wouldn't be eligible. It was mainly aimed at clearing up the questions about the various Native Americans who may have considered themselves independent. It wasn't about opening the doors to anyone.
It was about slaves. Native Americans didn't get birthright citizenship until the Native American Citizenship Act of 1924.
it was not (solely) about slaves; this was debated in Congress during the process of drafting the amendment and resoundingly put down by contemporary legislators.
from Justice Jackson’s concurring opinion:
> Senator Edgar Cowan, for example, argued that German immigrants’ children born in Pennsylvania should be citizens, but Chinese immigrants’ children should not—because Germans and Chinese were different. In response, Senator Trumbull emphasized that the law he had drafted drew no such distinctions. Undeterred, Senator Cowan would warn again—this time during debates on the Fourteenth Amendment—that the Citizenship Clause would let Chinese immigrants “overrun” California and “double or treble the population” of that State. Senator John Conness of California, where anti-Chinese sentiment was arguably most pronounced, responded that “the children begotten of Chinese parents in California . . . shall be citizens.” In fact, he said, the Civil Rights Act had already declared “that the children of all parentage whatever . . . should be regarded and treated as citizens of the United States.” No Senator rose to agree with Senator Cowan or dispute what Senator Conness had said. And no Senator said what the principal dissent says today: that the text at issue conferred citizenship only on freed Blacks and those in analogous situations.
- - -
further down, Justice Jackson cites the most forthright example of how blisteringly ahistorical the Republican party’s arguments are on this topic:
> During the ratification debates, Senator Cowan took aim at the Roma people too, characterizing them as undeserving of birthright citizenship because they “wander[ed] in gangs,” “infest[ed] society,” and “impos[ed] upon the simple and weak everywhere.” And again, Senator Conness dismissed Senator Cowan’s prejudices: “The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels [at Gettysburg].”
SCOTUS has not had anything remotely close to a plain text reading since the 1930s and probably longer. "Shall not be infringed" was changed to "if an infantry rifle was made after 1986 then magically it can be infringed" and (until about a week ago when it was overturned) "if you smoke a left-handed cigarette actually the second amendment doesn't exist." The 1st amendment protects freedom of speech but yet it's legal to ban appeals to "prurient interest" even though no such exemption is mentioned. "Interstate commerce" has been changed to mean basically "commerce" and interstate is now interpreted as if it was put there for funsies since everything can be construed as affecting something else in the universe even though the historical context makes clear that's not how the text was interpreted by the writers.
Every other amendment including the 1st, 2nd, etc even when explicitly spelled out the courts magically pull something out of their ass to "torture it." Yet the 14th amendment birthright citizenship, who's "history and tradition" was to right the wrongs of slavery, somehow has to be read absolutely in black and white.
Personally I am amenable to the plain text interpretation of the 14th, 1st, and 2nd, but lets not pretend that is the game SCOTUS or even most of government and society is playing. The constitution is referenced more as a religious document by all the above to mean whatever it is they say it means.
An aside, but it’s a bit funny to focus on the plain-text reading of “shall not be infringed” and not “a well-regulated militia.”
Give me a plain-text explanation as to why a well-regulated militia can be infringed from having a 1987 select fire infantry rifle but not a 1985 one, both of which are probably the most bread and butter arms you could possibly consider as part of a well-regulated militia. (This despite the plain-text ascribes the right to "people" not the militia, and in any case US code defines virtually every able bodied citizen male as part of the militia). The NFA determinations by SCOTUS don't make sense even if the amendment said it was the militia's right rather than the people's.
Sure, one could make the argument that "shall not be infringed" is pretty cut-and-dry. I'm just not sure how one could make that argument while at the same time yadda-yaddaing the militia part, which is often what actually happens.
Anyway, I'm not sure I have a disagreement with your original point. It just seemed a bit funny to use the second amendment as an example of a thing that (supposedly) has unambiguous meaning, but gets interpreted politically by the courts. I'd argue that the ambiguity of that amendment is one of the most notorious things about it!
Note: There are ~30ish countries that provide citizenship to anyone born within their national borders (many with restrictions, for whatever that may mean). Largely, this covers a spotting of countries across the globe, but is almost universally true within the Americas.
As far as I can see it is almost entirely countries in the Americas plus Pakistan that have real birthright citizenship. Everywhere else has some restriction such as stateless parents, or multiple generations born in the country, or a minimum period of residence or similar https://en.wikipedia.org/wiki/Jus_soli
Hate to be that guy, but this a pet peeve of mine that pisses me of...
The term "birthright" means "a right that is derived from the circumstances of your birth". Virtually ALL countries grant citizenship by consequence of the circumstances of birth, but what circumstances they consider vary. For some countries, the circumstance is "birth happened in the soil of the country" (jus soli), for others, it's "birth was to parents who are citizens of our country".
I said "virtually", because there is one SINGLE exception. The Vatican. Ok, there's the SMOM, but do they even count?
And how many of those countries have an illegal immigration problem? I bet that most of them would quickly remove that loophole if people actually started to exploit it.
Root cause it. The USA does not have an illegal immigration problem. It has a "huge, slow immigration bureaucracy" problem that makes the legal path so slow and difficult that people are incentivized to gamble on illegal paths.
Having a difficult and selective immigration process that rejects the vast majority of applicants is not a problem. It is exactly how an immigration system should work. We want the best.
I'm personally happy to welcome anyone who's willing to come, work hard, pay taxes, and support democratic ideals. This is how most of our ancestors got here, and it seems fair to me that we continue to extend that offer to other would-be immigrants.
Worth noting that the economic literature also shows that this is firmly in our best interests, and immigrants and their children more than pay their way in future taxes and future entrepreneurship.
The US didn't even have a particularly selective immigration process for the first century. It was only after a big influx of Chinese immigrants (and a corresponding backlash) that we enacted our first immigration controls, limiting how many immigrants could come from a given country each year. The aptly-named "Chinese Exclusion Act" of 1882.
The system that we had up until the late 1800s had a natural rate limiter in that the technology of the time made international travel so time consuming and expensive that immigration was simply an impossible pipe dream for the vast majority. It was also limited in impact on the native population because there were no welfare programs of any kind at the time, so an immigrant was never an expense item on the budget.
It may be your personal opinion that we should have the open borders policy you describe, and you are perfectly entitled to that, but here is mine. Your idea is borderline insane. Putting bleeding hearts in charge, who will allow things like this out of some compulsion that fairness demands we have the same immigration policy now as we did in the 1800s, is national suicide. I will continue to vote for anyone besides your side, even right wingers that I find repulsive, because I fear that someone on the left who lacks fundamental self preservation instincts will put in place policies like the ones you support.
There exist a large number of legal pathways to permanent residency in the US, some of which do take unreasonably long; employment-based green card applications for Indian nationals famously have a decade-long waiting period. They should be reformed and improved.
But a big part of the problem is that many people do not have a legal pathway available to them, and either don't believe that or don't wish to accept it. So they spend years carefully pursuing every bit of due process they're entitled to, and those stories become part of the "slow immigration bureaucracy", regardless of whether the result was ever really in question. This is where immigration reform proposals have generally gotten bogged down; some people strongly feel we should resolve this by creating a general legal pathway, others feel we should resolve it by expediting removals, and both groups are very hesitant to agree to a proposal that doesn't resolve it at all.
People who abuse birthright citizenships are, by definitions, not illegal immigrants. But even if you count all of them as 'unwanted' immigrants - how many % of total immigration to the US is result of those birthright laws?
You are wrong about that. If an illegal crosses while pregnant, gets detained, and then gives birth the day after while in detention, that baby is 100% a US citizen.
if baby is 100% US citizen then how is that an 'illegal immigrant'? Again, you may call them 'unwanted', and you have right to such opinion. But law is what is written, if they got citizenship then they aren't illegal
Think two steps ahead, people aren't born right out of the sky. It encourages people to illegally enter for their citizenship baby and the parents remain illegal until ~21 years later when they can have the kid sponsor them. In the meantime the parents get free WIC even if they're illegal.
A right enshrined in the Constitution is not a "loophole".
Most countries with a standard of living that even barely better than their neighbors have an immigration problem. There is a whole continent call Europe that is fighting off migrates and last I checked, birthright citizenship is not a thing there.
A belief held by the majority does not make it better simply for that fact. Not that long ago, the majority view was that slavery was a great thing, so I think you should see that argument falls fairly flat.
Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
Given the US is one of the most (the most?) successful countries in recent human history, shouldn't it be the other way around? Shouldn't the 95% be looking at the US and seeing what to copy?
To be fair a lot of it had also to do with the sheer immense amount of vast, mostly unused ,fertile land available in north America. I sincerely doubt the American experiment would have worked this well if they had rowdy neighbours and infighting due to resource constraints. For almost 200 years the solution to most things in the USA was to get a chunk of either their people or immigrant to move to the neck of the woods to find fortune
But the success hasn't ended since the unused land became taken; in fact, the US became a superpower after the westward expansion era. My point is that looking at conditions today, the US still continues to succeed (by some definition of success) and other countries should try to emulate the aspects of the country that leads to that success. IMO one of the big factors is how well immigrants assimilate in the country, and birthright citizenship is a part of that.
I do agree with you that US success in the 19th century was due to many factors that are not relevant today.
Not getting wrecked in major land wars during the 1800s and 1900s also helped
Define successful?
(You'll probably want to avoid metrics like happiness indices and life expectancy though)
Fair point. Mainly I agree with the sibling comment: the revealed preference of many people around the world, including many people from the richest countries in Europe, is to move the United States and then settle permanently. I think that means a lot.
Obviously you can also say that the US is geopolitically successful because of its global military and diplomatic dominance, but I account zero value to this.
At a minimum, it's been a place that people wanted to come to, more than they wanted to come to anywhere else in the world. That's successful as measured by people.
(Or at least, people wanted to come until the last couple of years...)
I'm not sure it's true, that seems to be mostly for economic reasons (which might define success, arguably), but I bet a lot more people would dream about living let say in Thailand than in the US, they just can't because they don't have the means.
As a non-US citizen, birthright citizenship has always struck me as strangely unique to America - in my mind it comes from a time when it was actively trying to populate the continent (something not a lot of countries have wanted to do, I guess).
Roll forward a few hundred years and the context has changed, so it seems reasonable that the law should too? But I guess it shouldn't be surprising that this is no bueno for SCOTUS, which has an infinite hard-on for Originalism [0] - I certainly can't imagine the conservative justices are ruling based on humanitarian grounds.
[0] https://en.wikipedia.org/wiki/Originalism
Most of the Americas for just that reason - and because the countries immigrants came from did not want their kids to have citizen ship and the right to come back.
Birthright citizenship is not unique to the United States, it’s common to certain kinds of former colonies.
I mean, it tracks with "no taxation without representation". Getting rid of birthright citizenship has the chance to create a separate *multi-generational* class of people that aren't given the same rights in society.
Most countries in North and South America have unconditional birthright citizenship for persons born in the country.
I take it you are not British? The British Empire had birthright citizenship, and up until 1948 (except for Ireland) citizens of all Commonwealth countries were simply British subjects.
Afterward it was possible to be, for example, a Canadian citizen, but it was still the case that "Prior to the [the British Nationality Act 1981] coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to [Citizenship of the United Kingdom and Colonies] status" - https://en.wikipedia.org/wiki/British_Nationality_Act_1981
We don't really amend the Constitution every ten years. We got 10 all at once, immediately after the Constitution was written. They were amendments only because there was debate about whether including them would deprive people of even more rights by omission.
Of the remaining ones, two cancel each other out, and several others (including the most recent) are trivial. The Constitution has not been meaningfully amended in half a century, and it seems wildly unlikely that it ever can be.
The US has always been a country of immigrants; the Constitution recognizes and enshrines this fact. Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment). Given how difficult it is to find consensus on even the most banal issue, it's unclear whether there would be sufficient support to ever amend.
> Also ~95% of countries don't have unconditional birthright citizenship
The map of which countries have jus soli is pretty interesting: https://en.wikipedia.org/wiki/Jus_soli
>Jus soli is the predominant rule in the Americas; explanations for this geographical phenomenon include the establishment of lenient laws by past European colonial powers to entice immigrants from the Old World and displace native populations in the New World, along with the emergence of successful wars of independence movements that widened the definition and granting of citizenship, as a prerequisite to the abolishment of slavery since the 19th century.[5]
>There are 35 countries that provide citizenship unconditionally to anyone born within their national borders.
>
95% of countries weren't formed by settling on somebody else's land and excluding the original inhabitants from citizenship for several hundred years. The American project is what it is because of millions of migrants who settled there for the perverse incentives of free land via the Homestead Act.
> Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
I typically find that the people using this logic don't seem to apply it to laws like universal healthcare, parental leave, or paid-time off. The lack of those benefits creates perverse incentives to already living citizens, not hypothetical future citizens. Why not focus on them?
Constitutional amendments are generally made with the purpose of granting rights to the people, not taking them away. The US once made the mistake of making an amendment to take away rights (banning alcohol), but then another amendment restored the right to get drunk.
I, for one, believe in American exceptionalism. This country is different in many ways and its success is due to that difference. I don't think that the US should actively aim to "revert to the mean".
Why should I give a shit what 95% of other countries do? 99% of other countries are worse in every way that matters
Why do you think it's not a good idea?
The US is unlike most other countries in that it is built on the recent genocide of the native population, with ~most of the current population being immigrants in the last 400 years.
Under what moral rules do genocidaires get citizenship but not, say, refugees?
Its a terrible idea to give citizenship to the chidlren of birth tourist. It makes no sense that someone defrauds the US government to get their child citizenship then you do nothing about it.
Is it "defrauding" if someone's just following the rules, though? And, at that, is it worth building your citizenship rules around something incredibly rare? (Estimates seem to think it's something like 15k babies a year.)
This "broad conception" is pretty well documented as what Congress wanted at the time of passage of 14th Amendment. It's been considered "settled law" for ages. The only real reason it's come to SCOTUS is that a particular political faction wants it to, and the media gives that particular faction more credence, and more coverage. So there's two things here:
1. An artificially whipped-up "question".
2. Conservative bias in the media.
Opinion:
https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
News:
https://apnews.com/article/supreme-court-birthright-citizens...
https://www.theguardian.com/us-news/2026/jun/30/us-supreme-c...
https://www.axios.com/2026/06/30/scotus-rejects-trumps-birth...
https://www.reuters.com/legal/government/supreme-court-rule-...
https://www.scotusblog.com/2026/06/supreme-court-strikes-dow...
Related:
Protecting the Meaning and Value of American Citizenship - https://news.ycombinator.com/item?id=42776131 - January 2025 (34 comments)
Sorry but I wanted to see a 9-0... There are 3, 4, that are just ignoring the constitution from what I read/saw. It is only a matter of time. A win for now but that is for now.
5-4 though, yikes! This shouldn't have even been close. With an impassioned 91 page dissent by Thomas. What a chode.
6-3 with Thomas, Alito & Gorsuch dissenting
This is kind of crazy. The text of the amendment is as literal as it gets. If this had failed it would have basically meant emptying Congress of all of its powers, because now the executive can just pick whatever interpretation they deem fit to their goals and run with it.
The rule of courts of law is to interpret the law, not to pick new creative meanings out of them. That's the role of the legislative power - otherwise what's stopping a court to reinterpret the meaning of any word in any legal text and allow the executive to rule by decree
"subject to the jurisdiction thereof" is not a clear statement.
It has been clear to every single human being reading it for hundreds of years. It was never up to debate until some person of this administration decided to go and question the meaning of "jurisdiction thereof". Also saying that a foreign-born person isn't subject to the jurisdiction of the country they find themselves in opens a massive can of worms - like, if the State doesn't have jurisdiction over foreign nationals, does it imply it's not legally allowed to arrest them for instance? Two can play the same game and find infinite loopholes even in the clearest of texts.
This goes beyond the value of citizenship by birth, which I'm neither in favour nor against (personally I think that just sanguinis is nonsensical, but so is to automatically give citizenship even to accidental passer-bys), it's all about whether the law still carries any "evident" meaning or whether it can be spun around depending on political necessity, which is bad
You didn't read the decision, it was up for debate in 1898 Wong Kim Ark. Every justice cites it. Wong Kim Ark gives 4 exceptions, and it isn't clear if those exceptions are comprehensive or not.
And you didn't read the majority's breakdown of `subject to the jurisdiction`'s historical meaning, otherwise you would know that the power to arrest is not the same concept.
You have made false claims and appears you are commenting on something you haven't read.
5-4 on the Constitution. Kavanaugh's concurrence is that birthright citizenship is controlled by a law that Congress could change.
Kavanaugh ruled that Trump's EO wasn't unconstitutional, just contrary to federal law, and Congress could change the law there if they wanted. So, this makes it only 5-4 upholding the 14th amendment.
Which is gods-damned crazy. We are that close to overturning major civil rights.
This would also overturn our ability to arrest or deport non-citizen, no? If the argument is that they are not under the jurisdiction of the US government, we cannot legally arrest or prosecute them?
This would create chaos. Not to mention the tens of millions of citizens retroactively turned into stateless people!
Kavanaugh agrees with their reading of the 14th Amendment, though.
I should be unanimous, it's what the constitution says. If you don't like it you need to go through the amendment process.
>I should be unanimous, it's what the constitution says
Thats a tautology. “What the constitution says” is the thing in question.
Sure, but it leads to allowing for the possibility of interpreting "..the right to bear arms.." as "you are allowed to own the limbs of an Ursus arctos".
There's plenty in the US constitution which is vaguely worded, but you have to twist its words an awful lot to deny birthright citizenship.
Yes, and they can do that if they wanted to. The Supreme Court has the power to interpret the Constitution.
And if they do enough of that, the other two branches might eventually be motivated to take action to counter it, like packing the courts or impeachments. Or telling SCOTUS to enforce it, as one president did.
The language couldn't be any clearer. The fact that it was questioned by people with a stated motive doesn't prove otherwise.
"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."
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof ...
It's the second part that is in dispute and is not clear from the constitution's text what exactly it means and who it excludes. And yes, it has always excluded some people born within the borders, it is not a meaningless statement.
Well, no, but almost everyone inside US borders is subject to US laws. The exceptions are rare: people in foreign embassies (which is "foreign soil"), invading armies, and indigenous tribes on tribal land.
> exceptions are rare
But that’s the whole debate! We all agree that the phrase “subject to the jurisdiction” creates exceptions that are not in the text. Where do those exceptions come from, and what’s the exhaustive list of them?
> people in foreign embassies (which is "foreign soil")
This is incorrect. Children of ambassadors are not citizens at birth, even if they’re born off the embassy on U.S. soil. Diplomats don’t give birth in embassies.
> invading armies, and indigenous tribes on tribal land.
Incorrect. Prior to the 1924 indians citizenship act, Indians born off tribal land weren’t U.S. citizens either, because they were considered citizens of the indian nations to whom their parents belonged.
Prior to the Indian citizenship act, a child of Cherokee Indians born on US soil where citizens of the Cherokee nation and were not automatically U.S. citizens under the 14th amendment.
Under Canadian citizenship law, a child born in the U.S. to Canadian citizens is automatically a citizen of Canada at birth. Using the exact same logic as for Indian tribes, that child isn’t a U.S. citizen at birth under the 14th amendment.
Oh, please, this is just blatant sanewashing.
Anyone who does not have an explicit exclusion is under the jurisdiction of US laws while on US soil. There's zero room for ambiguity unless you're coming in bad faith with politically motivated intent. Or are you seriously arguing there's an interpretation where illegal immigrants can commit any crime they want and can't be deported?
Where does it say "jurisdiction" only refers to criminal law? Diplomats aren't excluded from being subject to civil laws for "commercial activities," and U.S. courts have jurisdiction over diplomats in suits pertaining to such activities.
> subject to the jurisdiction thereof
> A well regulated Militia
POV: you're about to hear the dumbest takes on the internet.
/s
Seriously though, were the founding fathers just master ragebaiters or what? More ink has been spilled over these two lines than any other in modern history.
In the past decade, the Constitution hasn’t slowed down the courts from creatively interpreting its various clauses. Their decisions have effectively amended many of those fundamental (and arguably inalienable) rights. Repeatedly.
This trivial reading of the constitution doesn't align with the reality. Two simple exceptions and a third not so simple are children of diplomats, children of invading armies, and native americans, who required an act of congress to give citizenship at birth.
The supreme Court ruled that South Carolina could not secede from the Union because the Constitution was merely a continuation of the agreements under the articles of confederation even though all states had to withdraw from the confederation to get into the union.
After that bit of logic, nothing the supreme Court decides would surprise me
Trump and his cronies were never going to win that battle. Like many things he does, it serves as a dog whistle to nationalists and allows him to paint anyone who opposes him as somehow un-American and an enemy of the ‘people’.
> Trump and his cronies were never going to win that battle.
He got dang close. He's only one justice replacement away from making it doable.
Gods, we are not as far from ripping up the Constitution as we'd like to think.
White nationalists, specifically, yeah. Colloquially known as Nazi wannabes.
It is a truly insane policy to grant citizenship to the kid of any tourist who happens to give birth on vacation. If the Supreme Court won't correct this, we need to pass a Constitutional Amendment to do it ourselves.
We can collect income tax from children of tourists who happen to be born in the US on vacation? Great!
It's not a "policy" it's a constitutional right.
I’m curious why you believe an amendment will help your situation.
This case (placed alongside many others in recent memory) demonstrates that no matter how clear and unequivocal a legal text you write, the textualists can find a way to overturn it.
So what specific legal text for this amendment of yours do you believe is immune from that degree of sophistry?
Why is it insane?
I'm not him, but it creates some perverse incentives (like chinese billionaires who pay american surrogates to get implanted with dozens of their kids who get american citizenship).
https://fortune.com/article/chinese-billionaire-xu-bo-father... might be an outlier, but it's still weird, especially since the US is the only country that has this.
Chinese billionaires are bound to do weird shit. I don't think we should amend our constitution to try to prevent that.
If the problem is 'birth tourism' and subsequent immigration visas for relatives of the US national child, changing the immigration policies seems like a better fix. Something like requiring a sponsoring citizen to reside in the US for a period before sponsorship. A citizen sponsoring a visa for a parent already has to be 21.
I'm not sure I can be that upset by people who want to immigrate, so they put a plan in motion that takes 21+ years to reach fruition. Although that does jump the line if you were eligible for F3 or F4 and your country of origin is Mexico... the priority date on those is currently 2001. [1]
I want more people in the US who can do long term planning, not less. :p
[1] https://travel.state.gov/content/travel/en/legal/visa-law0/v...
> especially since the US is the only country that has this.
Except it's not.
https://www.pewresearch.org/short-reads/2026/03/31/us-style-...
It's a minority of countries that have rules like the US, but the US is not unique in this regard and there's no reason to keep repeating that lie.
This doesn't seem like a major problem. Immigration officials are already sensitive to birth-tourism and have had discretion to deny entry to obviously pregnant tourists even long before Trump.
Beyond that, if you're a billionaire you can just fast track a path to citizenship with a gold card.
Some woman who is 8 months pregnant comes to the US on a tourist visa and gives birth, then goes home with the baby. And then somehow that kid gets automatic US citizenship. And it applies even if the mother is not even legally allowed in the country. And you think that is not insane?
I don't think it's a "problem" that justifies taking the rights away from millions of Americans, no.
An 8 months pregnant woman would typically be denied entry during immigration processing. It doesn't seem like a big deal.
And that's assuming they can even board their flight. Airlines don't really like carrying extremely pregnant people because it's very risky.
> And you think that is not insane?
I think there would be a real problem with creating a class of people who live here their entire lives and aren't citizens. And then their children also live here and aren't citizens, and their grandchildren, etc.
It's not that birthright citizenship is ideal, but it prevents some other, bigger problems.
Why is it a problem to have US citizens being raised elsewhere? What bad thing is being caused by this?
Truly insane that this is one of the most important founding aspects of the country. Without which most, if not all, the population wouldn't legally be allowed to live here. But yet, you don't understand that.
Most Americans conveniently forget the whole "nation of immigrants" thing once they are a few generations removed from the situation. Ladder kickers the lot of them.
It wasn't up to the Supreme Court to correct. It is very plainly written in the constitution. Sure you can disagree, but it is up to elected representatives in Congress to amend, not Trump or the Supreme Court.
The number of times this happens in a year is negligible. It’s also quite difficult to do it safely: airlines won’t allow you to fly when heavily pregnant, and emergency deliveries are incredibly expensive due to the American healthcare system.
So you are suggesting abrogating rights based on an event that occurs with minuscule probability. Get a grip.
Agreed, especially when the “vacation” is actually birth tourism and the mother lied at the border.
the fact that birth tourism is a thing means the demand for us citizenship is way higher than supply, to the point people are willing to put their whole life savings and break the law just to have a shot at getting it through a complicated family route.
its easy to fix by making legal immigration cheap and reliable. its also great for the economy, a lot of undocumented immigrants work illegally dont pay taxes because they cant work normal jobs without getting deported.
legalizing their stay means more tax revenue, less crime and labor violations, lower costs for business and i would also say its kind of morally wrong for a rich country to buy cheap stuff made by workers in mexico or china and give none of the profits back. closed borders are glboal injustice.