The actual text of the 14th Amendment:
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.
The controversial part is underlined.
By the reckoning I use, they upheld it by a 3-1 decision. I say that because there are five justices whose votes I can predict 100% of the time, even though I know nothing about constitutional law. As soon as I know what the issue is, I know how Thomas, Alito, Jackson, Sotomayor and Kagan will vote. I don’t know need to know what the legal issues are because I know they will find some legal pretext to vote they way they want to. In this case the four remaining justices split 3-1, with Gorsuch dissenting.
I know that the legal reasoning of Alito and Thomas will be sophistry, so let’s see what Gorsuch had to say:
“At the heart of today’s dispute lie two competing views of the Fourteenth Amendment’s Citizenship Clause. On one account, the Clause incorporated the English common law rule of jus soli (literally, the ‘right of the soil’),” he noted. The other account, he said, “adopted a distinctly American settler’s view of citizenship … that promises the full ‘dignity and glory of American citizenship’ to any child born in this country to parents who have made this Nation their permanent home **, regardless of their race, religion, or national origin.”
(Gorsuch went on to agree with the latter interpretation. The majority obviously did not.)
I know that the legal reasoning of Kagan, Sotomayor and Jackson will be sophistry, and Kavanaugh sided with the majority for a completely separate reason, so let’s see what Roberts and Barrett had to say:
Roberts wrote:
“The Court exhaustively canvassed the text and history of the Citizenship Clause and at no point identified any evidence that the ratifiers thought themselves to be imposing a domicile limitation.”
Amy Coney Barrett did not write a separate opinion, so we presume she agreed with Roberts’ reasoning. I don’t know the history he’s citing, but assuming he is correct, that sounds like a reasonable position to me.
Kavanaugh flew solo, and went in his own direction. He opined that birthright citizenship could be further* limited, but not in this case. It would require an act of Congress, not the simple declaration of one man (Trump in this case). Even if such a law were passed, the other five in the majority would presumably deem it unconstitutional.
——
Footnotes:
* There are exceptions now.
1. Children born in the USA to foreign diplomats are NOT entitled to birthright citizenship, while children of American citizens assigned overseas ARE.
– John McCain is a famous example of the latter.
– The cleanest example of the former is Amany Mohamed Raya. She was born at Walter Reed in Washington, D.C., in 1981 to an Egyptian embassy attaché. When she applied for a U.S. passport in 2004, the State Department denied it, saying her father had diplomatic privileges and immunities at her birth, so she “did not acquire U.S. citizenship” and was “not entitled to a U.S. passport.” The federal courts agreed.
2. Another exception would be a baby born on a foreign ship in US territorial waters. They are technically in the USA, but not legally subject to the jurisdiction thereof.
** Note that one interpretation of the Gorsuch definition could allow citizenship to the children of illegal immigrants living here and trying to make the USA their permanent home, but would not grant citizenship to children born of visitors. I think I actually agree with that position. It doesn’t seem to me that the USA border is like the touchdown line in football. A pregnant woman crossing the line on “vacation” shouldn’t score the TD. But that’s just my opinion, not a legal position.
I was with you until you wrote, “I know that the legal reasoning of Kagan, Sotomayor and Jackson will be sophistry…”
I … I can’t even, Scoop. You’re a smart man, with excellent critical thinking skills. So, what’s up with that? None of the above create law from whole cloth (unlike Thomas, Alito, and beer boy). None of the above actively perjured themselves during confirmation (unlike Thomas, Alito, Gorsuch AND beer boy).
As I pointed out, as soon as I know the issue, I can always predict how they will vote, although I know nothing about the constitution. They, like Alito and Thomas, form their opinion first, based on their political positions, then come up with some jesuitical reasoning to justify it. They always take the political liberal position. The reason you don’t see that is because you agree with their positions and disagree with Thomas and Alito’s (as I do, for the most part). I am almost always pleased the with politics of they way they vote, but politics is not their job. They are to interpret the law, not make policy.
Observers favoring outcomes that consider real-world consequences often praise Elena Kagan for her clear, scholarly, logical, and practical legal reasoning, but real-world consequences are not her job. Her job is to determine what the Constitution and the law require, even if she strongly opposes the consequences of that decision.
Ask yourself a question. Would the liberal justices vote to strike down a law that produces a highly favorable liberal outcome, even if they secretly believe it is clearly unconstitutional? I don’t believe they would.
I always ignore all of the “sure five,” and try to see what the other four have to say.
Unfortunately, that is not very reliable either. I have not been able to trust the legal reasoning of any justice since Souter resigned. He is the one justice I can name who frequently voted against his own beliefs because that was what the law required. I am still waiting for another with that integrity.
Calling them liberals is just a dismissive term, because quite frankly liberalism is more closely relative to reality of ideals to the purpose of what this country was founded on rather than whatever warped version of history Alito and Thomas push out. At least if you believe in the idealism in the constitution being something for the people, by the people, opposing an authoritarian monarchy.
One thing is for certain, in this court you’re almost nearly always guaranteed to determine constitutionality is based on two things: absolute power in the executive branch or absolute power handed to those with the most resources in it’s most pro-corporate form. If they can’t get away with either because its too egregious (which seems less and less anymore), they’ll play the kick it back to the states card where major municipalities get governed by state laws that most in that area don’t agree with from taxpayers who pay the most money to their states funding.
We’ve had this court protect a company from lawsuits where their product most definitely causes cancer for the use case of those who utilized it, and you had Thomas flat out dispersing his personal opinion on what defines a man and woman – as if he’s a biologist, psychologist, and legal expert all in one. All while Alito and Thomas have notably been on the take, associated with conservative politicians and receiving kickbacks. But hey, apparently we have to enforce these made up rules about 9 being the correct number to determine legality until one kicks the bucket or strategically with a vote here or there determining the hardships or fortunes of hundreds of millions.
All nice terms to say its a bunch of bullshit. Happy 250th Anniversary to the patriots out there, whatever those are. The only recourse is eventually myself and others tired of this shithole will be off this rock into oblivion eventually and don’t have to put up with this bullshit anymore. Cheers.
You and I disagree on the job of the Supreme Court. You judge their votes by the real-world outcomes they produce. I say that is irrelevant to their jobs, which are (1) to follow the intent of the Constitution, (2) when the Constitution is served, to follow the intent of the legislators. If there are laws that they despise, they should not void them unless they clearly violate the Constitution.
And, to repeat myself. All of us can always predict the votes of those five justices in every case. We don’t have to know one single thing about the law or the Constitution, only the policy involved. I’ll be happy to cast those five votes for free, and will vote exactly as they would 3-2, and we can save five salaries and speed up the process.
I’m not comparing the three so-called “liberals” to Thomas and Alito in terms of intellect or their value as human beings, just bias.
As I said earlier, the question before us is this – are any of those five capable of being a Souter – voting against a policy they deeply believe in because the law and the Constitution require them to do so. I say no. I’ve seen no evidence of that. Apparently you either say “yes,” or don’t care, as long as you get your way.
Not quite. Before trying to divine “intent”, they should first follow what the Constitution literally says. Could have saved a lot of time on this case if they’d just started there.
Start imagining thought processes retroactively and you get something like… this
Totally incorrect.
The Seventh Amendment preserves the right to a jury trial in federal civil cases involving “suits at common law” where the value in controversy exceeds $20.
We would need more jurors than we have people!
The founders could not predict the future. Those sorts of questions need to be interpreted, not by the exact words they typed, but by what they meant.
Then how does the law not become Calvinball? If ‘I know what some dead guy was thinking when he wrote this’ becomes justification, you can just rule any arbitrary way. Which might be OK-ish except there is no appealing of SCOTUS.
Also totally incorrect.
There is an appeal beyond SCOTUS, but not immediately. It’s a future SCOTUS. Case in point: Roe v Wade.
It all starts with winning elections, because those winners get to make policy AND nominate judges. And if you win enough elections to control 2/3 of the senate, you get the instant winner – you don’t have to wait for justices to die or resign, you can replace them immediately. You can impeach every single justice you don’t like, replace them with justices you do like, and reverse every decision they ever made. And you can make those decisions permanent with constitutional amendments.
But you have to win elections, across the board. And that means you need common sense, which the Democrats have sorely lacked.
Can Democrats still win elections? Yes.
Can they win by wide margins and/or hold power long enough to matter? To be determined, but unlikely. The last elected Presidents have been D-R-D-R-R-D-R-D-R-D-R. (The only exception to the alternating pattern was that Reagan was followed by Poppy Bush.) Because the pendulum never stops in the middle, and both parties manage to offend the independents, the electorate is easily persuaded to “cast the rascals out,” no matter who they are, and neither party ever gets to hold the reins very long.
Actually, I disagree that at the SCOTUS level, following the jurisprudence is their job. Not one little bit. That is, precedent is a historically significant way of SCOTUS making decisions. The power of SCOTUS to interpret the constitution was literally grabbed by one chief justice out of thin air. And the long history of SCOTUS making decisions based on principle rather than legal reasoning sets the clear precedent that that’s how SCOTUS is supposed to make rulings. Judges whose rulings can be literally reversed on appeal scrupulously stick to legal reasoning, with a gun to their heads. But a Justice faces no such clear admonishments. And frankly, Scoop, talk about sophistry: Really? So a SCOTUS justice faces the embarrassment of being reversed by future justices? Sheesh. You speak with a forked tongue there.
I will certainly not agree with you on the function of the Supreme Court. As I mentioned, I believe Affirmative Action to be something highly positive for the country. But it was unconstitutional. It contradicts the 14th Amendment. The power to legislate belongs to the legislative branch. The job of the executive is to execute those laws. Thus, the names of the branches. The job of the Supreme Court is to say, “Hold on there, fellas, your goal may be worthy, but the Constitution clearly forbids your means. You will have to find a constitutional way to accomplish your worthy end. Only Congress can do it, and only by passing a law the does not contradict the Constitution.” The SCOTUS is not intended to make decisions about the merit of laws, only whether they are legally valid. Determining their merit is the job of Congress, as representatives of the people. That’s the meaning of “separation of powers,” and it is why true conservatives (as opposed to MAGA zealots) squawk about “legislating from the bench.”
As I said, SCOTUS decisions may be overruled in two ways:
1) The long way requires winning many elections over a long period of time, or at least at the right times. This is what overruled Roe v Wade. The Republicans won the right elections, put their people in power, and reversed a previous SCOTUS decision.
2) The short way requires winning elections overwhelmingly over a short period, thus gaining a majority in the House and 2/3 majority in the Senate.
a) Once this is accomplished, you can impeach/remove all the justices you don’t like, and replace them with your people.
b) If there is also a 2/3 majority in the House and 38 states in support, you can also alter the ability of future courts to interpret the Constitution by amending it to say exactly what you want it to say, as was done with the ill-advised 18th Amendment, which wasn’t really an amendment so much as an addition – the introduction of a subject that had nothing to do with the original Constitution.
Note that neither 2a not 2b can be vetoed by the President, nor are they subject to judicial review.
The results you want always stem from one source – winning elections. Say whatever you like about Trump, but he won the brass ring – twice – and that is why things are what they are, essentially because Democrats couldn’t convince enough people that their way was the right way.
You’re talking about a workaround, not an appeal. If someone disagrees with the ruling, they also might build a rocket, found a colony on Titan, and specifically contradict the Supremes’ call in its founding charter.
This would also not be meaningful, timely review of the case. In our system, SCOTUS is like 9 minipopes. As such, they should rule based on the law, not on what they pretend to intuit.
I was using figurative language, but whatever word you choose, the SCOTUS decision gets overruled.
In lieu of that rocket ship, one needs to win elections, after which one “holds all the cards,” as POTUS would say.
1. You mean based on the Constitution, then the law, I think.
2. Even when the Constitution is literal and clear, they don’t always have that simple choice, as I demonstrated with the wording of the very, very silly 7th Amendment. Sometimes interpretation is absolutely necessary. Intuition is not the solution, but scholarship should be.
Well, see your own response to MyKey up there. The right way to address the Seventh Amendment would have been legislation or a new amendment. But in real life, SCOTUS is a political entity. So they can and will pull stuff out of their asses. My points are:
1) Though they can get away with doing this, they shouldn’t, and
2) We would be well served if there was an explicit legal process (en banc ruling by all combined appeals court judges?) to question their judgement; not wait for them to die and better judges to get appointed. Imagine if Dred Scott could have been appealed, or Citizens United.
Dred Scott v. Sandford was overturned. It took two constitutional amendments. But the chance of a new amendment is null in today’s world. Congress can’t change the 7th Amendment without 2/3 in both Houses AND 38 state legislatures. I assume the ERA may finally pass all the legal hurdles, but after that, the chance of an additional amendment, rounded to the nearest percent, is 0%.
Ain’t gonna happen
Thus, the intention of the 7th is just one of those things that has to be interpreted.
Much easier than that – to overturn SCOTUS decisions, win elections, and impeach justices. That only requires a majority in the House and 2/3 in the Senate, and is not subject to review. If you can achieve that, you can overturn Citizens United v. Federal Election Commission, and Trump v. United States. Right now, the bad guys have already overturned Roe v Wade (Alito simply argued that Roe was “egregiously wrong from the start,” signaling the vulnerability of any decision), and if they get the notion, they can overturn Brown v. Board of Education, Miranda v. Arizona, and Obergefell v. Hodges. Any decision can be overturned when one side gets control of the court. Don’t give them any ideas. Justice Clarence Thomas has explicitly called for a reconsideration of substantive due process cases like Obergefell. (It’s probably moot now that Congress has passed the Respect for Marriage Act, but if the conservatives ever get 60 votes in the Senate or abolish the filibuster, Respect for Marriage could fall, leaqving Obergefell as the only safeguard, and placing that ruling on the front burner for people like Thomas and Alito.)
In other words, if you want to change the USA, you have to win elections. The ballot box can overturn any Supreme Court decision, just as it overturned Roe v Wade. If Hillary had gotten all those Supreme Court nominations, the court might have overturned Citizens United rather than Roe v Wade.
And here’s one thing I do agree with Scoop on. Violently. To those who say once SCOTUS strikes down a POTUS power bc unconstitution, Congress can’t have that power either, bc co-equal branches… I say: Balderdash!
I mean, Holey Moley, Batman, I thought the Constitution gave POTUS & Congress different powers? POTUS actions can be unconstitutional while Congress is perfectly well empowered to do the same? Am I missing some subtle but glaring consideration here?
But I’m with Scoop on this, though: All that matters is that the 6-3 split turns into a 5-4 split with the same outcome. Politics ain’t beanball. If the votes are there, SCOTUS won’t give a rat’s ass about co-equal branches or any other such childish takes.
Ummm…Almost all judges form the opinion first and then come up with an argument to back it up. That’s SOP.
Sidebar. You may not like Gorsuch’s politics. I don’t either, from what I know of them. But if you really study his opinions, they are often the most thoughtful and scholarly, and are often written quite well. Of course, he has biases, and those affect his votes. None of us can escape our biases, including me, but he does attempt to study the case before making up his mind.
Yeah, I agree with you on Alito and Thomas. While the liberal justices are equally biased, at least they are biased in favor of bending the moral arc of the universe in the right direction. Being biased for Superman is better than being biased for Luthor.
And Kavanaugh … he just seems like kind of a dipshit. Howie Mandel is a better judge. I can’t figure out why anybody ever thought he was qualified for that job. Even if you ignore those accusations of sexual misconduct, he came off in his confirmation hearing as a hot-headed dumbass. And then he was confirmed, by guys who apparently thought, “Hey, he’s just the kind of guy we need.”
“I like beer.”
Again, I take specific issue with your use of “sophistry”. As you have also noted, words have meaning, and do you truly believe that all three “liberal” justices use fallacious arguments with the intent to deceive?
I do believe both Alito and Thomas actively mislead, misdirect, and misconstrue to further arguments.Thomas is, by all appearances, for sale, and Alito will argue anything that will expand the power of the executive, as he has done for over 20 years.
beer boy is a waste of oxygen, and I’m counting days until he requires a liver transplant and the Court rules that it’s legally OK for organs to be harvested from aliens without consent as resident non-citizens don’t have standing to protest.
Yes. I believe they make their decision before they review the case, then create whatever arguments they need to support that position. Sophistry is the use of clever reasoning that sounds plausible on the surface but is actually invalid. Instead of sophistry, it should be called scaliatry.
Affirmative action in government jobs and state universities is a perfect case in point.
1. It is a good thing for society.
2. But is obviously unconstitutional. No state shall “deny to any person within its jurisdiction the equal protection of the laws,”
3. So the liberal judges have created pretextual arguments to defend it. Do you think they are too stupid to read the constitution? Obviously not. They know very well it is against the 14th Amendment, but they support it with sophistry.
Now I whole-heartedly believe in Affirmative Action. I believe that it is necessary step toward a level playing field. But had I been on the court, I would have had to go full Souter and oppose my conscience. I would have voted to abolish it, because that’s what the constitution says.
he actually misses the point.
The 14th amendment was adopted for one reason: the drive a steak knife through the Dred Scott case, which basically said an enslaved person is NOT a citizen. That’s why they chose maximal language.
Did they ever envision jets coming in from China? No. It’s why originalists thinking is so limited. The Founders never thought an automatic gun mounted on a drone either. Or even an automated gun. Or even cartridge firing guns.
Gorsuch is not an originalists but just making stuff up.
If you want to analyze a justice, look at the opinions that are written that don’t make the front page. That’s the bulk of what they do. Removing geofence automatic warrants
the Anti immigration folks estimate maybe 50,000 people a year take advantage of of birthright tourism. Given a national of 300 million, doesn’t seem like the biggest problem in the world.
One additional tidbit, Charlie. It was pointed out in floor arguments that this maximal language would mean that a Chinese migrant’s child would also be a citizen. The language wasn’t changed & the amendment was still passed. It’s not simply that driving a stake thru the heart of the Dred Scott ruling was all they were thinking of. The 14th amendment was never solely about the right of a slave to be a citizen.
I’d argue that maximalist reading was desired, to the extent that someone brought up a Chinese migrant child could become a citizen. The maximalist (the Radical Republicans) said yeah, we want a reading so expansive that even that could happen. It’s wasn’t because of charity, they did not ever want to litigate Dred Scott again.
Again, it would be hard to imagine in 1867 about jet airplanes and that the circumstances changing. Which is why I find Gorsuch so annoying.
Looking at my own family tree and stories, one branch came from Ulster in 1717. Hard trip. A baby was born in the ship — “Ocean Born Mary” who then survived (a miracle) and was married some 25 years later. So strange stuff happened back then too!
The practical issues with Gorsuch are incredible as well. Our system is set up to assume a birth certificate (showing birth in the US) is enough to show citizenship. If you had to show domicile, it would be a facts and circumstances test if you parents had domicile when you where born. Rather like turning back half of Oklahoma to the natives americans, Gorsuch is more intent on ripping down the modern US than in building it up. He’s a wiz, but people have to live with decisions. The constitution is alive, not just a piece of paper in the National Archives.
FWIW, I’d be totally in favor of birthrate tourism. The more the merrier, I always say.
Yes, I agree. Gorsuch is an interesting person. The only easy criticism of him is that he accepted a nomination that was basically stolen. A person with 100% integrity would have turned it down. He makes intelligent points and his frequent defense of native (indian) rights in fairly uncommon.
Hey, common ground! We can all agree Alito and Thomas are scum! It’s a start.
What more than a few of the justices have in common are two things:
The Federalist Society
Leonard Leo
If you don’t know what or who they are, do yourself a favor and look them up.
Justices aligned with both of them are pushing those agendas rather than what the US Constitution states. They are supposed to be beyond reproach, yet many of them are on the beck and call (and vote) of those who got them to this position on the bench.
Yes. That is what makes them so reprehensible. Conservatives try to tar liberals with the same brush, but having a common ideology with many others is very different from being beholden to an organization mainly dedicated to advancing the interests of a privileged few who think they deserve to rule over all others.
Leonard Leo – Holder of Most Punchable Face in the U.S. Division for 12 (12!) straight years!
Ted Cruz has entered the chat
Stephen Miller bares his fangs.
Pete Hegseth throws his axe into the ring. Fortunately, he misses and hits Leonard Leo!
One good thing they could do when they get around to it – citizenship for our troops. Finish basic training, here’s your green card; finish your enlistment (or get in the same area code as combat), that’s it, you’re in. Put your ass on the line for us, you’re a citizen. No history quiz bullshit, you’ve proven yourself worthy.
Whatever else, you might see enlistments go up.
There should be an exception if they have bone spurs.