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Josh Blackman
@JoshMBlackman
, 4 tweets, 3 min read Read on Twitter
1/ J. Gorsuch cites Wong Kim Ark in mundane case as evidence of "textual evidence everyone agrees can sometimes shed light on meaning." And J..Thomas joined. Not the first case that comes to mind, but it works. #SCOTUS
2/ I do like J. Gorsuch's description of some legislative history as "advocacy aimed at winning in future litigation what couldn’t be won in past statutes." I made a similar point in one of my first articles on legislative history and the Lemon test papers.ssrn.com/sol3/papers.cf…
3/ Optically, BNSF v. Loos is a strange case. Railroad employee is injured on the job, and firm seeks to reduce payout. RBG rules for railroad. Gorsuch, joined by Thomas, rules for worker. And his dissent is peppered with cites to leg history and Brandeis dissents!
4/ In any event, the dissent closes with a dig at Chevron. J. Gorsuch cites the gov's "change of heart." (What I call presidential reversals papers.ssrn.com/sol3/papers.cf…)
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More from @JoshMBlackman see all

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Josh Blackman
@JoshMBlackman
1/ Issues I will (thankfully) not have to write about:
(1) Can the Special Counsel subpoena the President?
(2) Can the President fire the Special Counsel at will?
(3) Can the sitting President be indicted?
(4) How does obstruction of Justice interact with Art. II?
2/ I spilled far too much ink on Question #4.
Part I: lawfareblog.com/obstruction-ju…
Part II: lawfareblog.com/obstruction-ju…
Part III: lawfareblog.com/obstruction-ju…
Part IV: lawfareblog.com/what-obstructi…
3/ I have a draft piece on Question #1 about the limits of U.S. v. Burr and U.S. v. Nixon. Now I can finally wrap it up.
Read 3 tweets
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Josh Blackman
@JoshMBlackman
1/ "if it turns out that the unanimous-jury rule is itself a dubious originalist interpretation of the Sixth Amendment (which does not on its face say juries must be unanimous), that would be a reason to keep Apodaca." #SCOTUS
originalismblog.typepad.com/the-originalis…
2/ Ramos v. Louisiana may be a case in which J. Thomas finds that a right to a unanimous jury verdict is not a privilege or immunity, as understood in 1868. Will J. Gorsuch agree, or go along with SDP?
3/ Recall that RBG's opinion in Timbs decoupled incorporation from a right being deeply-rooted in history. (See my article w/ @ishapiro.) She may have done so with Apodaca on the horizon. papers.ssrn.com/sol3/papers.cf…
Read 6 tweets
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Josh Blackman
@JoshMBlackman
1/ Washington v. Cougar Den provides a curious split on how to interpret an 1855 treaty. J. Breyer wrote opinion for #SCOTUS, joined by Sotomayor and Kagan. Gorsuch concurred in judgment only, joined by Ginsburg.
2/ I can think of two options. 1) At conference, the vote was fractured. Breyer assigned himself the majority, and RBG was content to join Gorusch. 2) RBG assigned Breyer the majority, but was so persuaded by Gorsuch, she abandoned Breyer's opinion, and joined Gorsuch #RBGIDGAF
3/ Breyer adopted treaty-originalism (as opposed to constitutional or statutory originalism). "The language of the treaty should be understood as bearing the meaning that the Yakamas understood it to have in 1855" The Yakamas were at a "significant [linguistic] disadvantage."
Read 6 tweets

Related threads

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True Republics
@TrueRepublics
In this thread I will give a breakdown on section 1 of the 14th Amendment why U.S. Citizens are aliens of the several States and chattel property of the Federal Corporation.
#TuesdayMotivation
One must keep in mind that the 14th Amendment establishes a new
political system.

Also, keep in mind what President Johnson stated about the Reconstruction Act. "A strategy needed to be implemented so that Americans would unwittingly forfeit their governments of right."
Fourteenth Amendment: Section 1

The Fourteenth Amendment was passed by Congress June 13th, 1866, and allegedly ratified on July 9th, 1868;( Footnote: It is said that the Amendment was forced to be passed; in essence it was done by threat at gunpoint) it was announced...
Read 77 tweets
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Malinda Seymore
@adoptiontalk
1.This thread is to help law students analyze some of the questions arising from the #BirthrightCitizenship debate. I'm trying to help you answer questions your non-lawyer friends might have and to take it beyond political partisanship into legal method. That's your value-added.
2. Here's what 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." The issue in this current debate is the meaning of "subject to the jurisdiction" of the U.S.
3. How to decide what the Constitution means? Four basic (over-simplified!) methods: a. Textualism; b. Originalism; c. Precedence; d. Policy Preference. More on each in the following tweets.
Read 18 tweets
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T. Greg Doucette
@greg_doucette
Alright, let's dive into a #Law140 on birthright citizenship and this idiotic story

The TL;DR:
1️⃣ Trump cannot do this via Executive Order
2️⃣ News outlets who uncritically parrot Trump's claim that he can, without noting he can't, are misinforming readers
(They're also promoting even more civic illiteracy than normal. But I realize that ship set sail a long time ago.)

Before we begin, the standard #Law140 disclaimers apply:

Read 147 tweets
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Mike Sacks
@MikeSacksEsq
So I just read Chief Justice Fuller's dissent, joined by Justice Harlan, in Wong Kim Ark, the 1898 case that established the 14th Amendment's birthright citizenship reading we adhere to today. And I learned something.
In 1873's Slaughterhouse Cases, a 5-4 Court rejected birthright citizenship and corporate personhood. I knew Justice Field, the lead dissenter, used his 9th Circuit duties to establish corporate personhood at the appeals level, thus seeding its SCOTUS recognition in the 1890s.
Turns out Field used his 9th Circuit duties to establish birthright citizenship in the same manner he had for corporate personhood, with his eventual victory over the Slaughterhouse majority coming three decades later. Per Fuller's Wong Kim Ark dissent:
Read 9 tweets
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eileen chengyin chow
@chowleen
I always thought this was where it was all headed. Abolishing birthright citizenship for the non-white and non-rich. And why I am teaching United States v. Wong Kim Ark next week.
Who was Wong Kim Ark?

At this juncture, it is particularly important to remember him. In 1898, as a result of a case successfully brought on behalf of 25-year-old Wong Kim Ark’s right to habeas corpus and to birthright citizenship (he was born and raised in San Francisco) 1/
Wong Kim Ark’s successful case v the U.S. Supreme Court affirmed the 14th Amendment’s stipulation that
“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.” 2/
Read 6 tweets
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aderson francois 🇭🇹 14A
@abfrancois
The 14th amdt turns 150 years old this year on July 9. It is the closest we’ve come to writing into the constitution what we claimed in the Declaration of Independence. If you’re forced to pick one, choose the 14th - above the 1st, the 2nd, or the FIF. Sorry Dave Chappelle.
2/x I’m using this as a thread to post one tweet a day about the fourteenth amendment until its 150th anniversary on July 9th. John Bingham, republican of Ohio, is credited as the principal author of Section 1 of the amendment, which contains its substantive rights provisions.
3/x I sort of lied when I said I would post one tweet per day until July 9th to celebrate the 150th anniversary of the 14th. Some ideas don’t fit in one tweet. So let’s say one thread per day - short ones:
Read 288 tweets

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