Folks, birthright citizenship isn't just some interpretation of a few weirdly phrased passages in the 14th Amendment. We had birthright citizenship BEFORE the 14th Amendment. It's actually one of the oldest and most fundamental principles of American law. 1/
We inherited our citizenship system from the British common law. Like most British colonies, we got our legal system from them. Our Constitution, with references to "common law" (7th Amendment) and "law and equity" (Article III) confirms the British basis of our legal system. 2/
There are two basic notions of citizenship. Some countries, most notably British common law systems, have "jus soli" citizenship, where being born somewhere confers citizenship. Other countries (notably civil law countries) have "jus sanguinis", i.e., bloodline citizenship. 3/
From the founding of this country, you were considered a citizen if you were born here. Indeed, during the colonial period there were various migrations of people from Britain into what became the United States. These people and their descendants became citizens. 4/
There are exceptions to jus soli citizenship, but they are narrow. For instance, our relationship with Indian tribes was complicated, and we considered them dependent sovereigns we could make treaties with. Accordingly, a person born on Indian territory was a tribal citizen. 5/
Children of diplomats were considered citizens of their parents' country, under the fiction that a diplomatic mission was foreign territory and not subject to American jurisdiction. Again, these exceptions were preexisting. The 14th Amendment didn't invent them. 6/
The big and debated exception was slavery. To be clear, this was controversial. The citizenship status of slaves wasn't settled until the Supreme Court ruled in the Dred Scott case that slaves were not American citizens. This was a VERY controversial holding. 7/
BTW, stop to think about that. WHY was that holding controversial? Well,, the only reason it could be controversial is that we had birthright citizenship. After all, under a theory of bloodline citizenship, slaves and their children were still citizens of the country of origin 8/
But because the American creed had ALWAYS been that everyone born here is a citizen, the creation of slavery as an explicit exception to that was widely criticized.
And, of course, then the Civil War happened. 9/
In the wake of the Civil War, one of the Republicans' projects was to overturn Dred Scott and make it clear that all former slaves and their children were citizens. Accordingly, they put the Citizenship Clause in the 14th Amendment. 10/
The Citizenship Clause did not invent birthright citizenship. We already had birthright citizenship. It simply overturned Dred Scott and made clear that birthright citizenship was universal. It confirmed what a lot of people already thought was the preexisting rule. 11/
Further, and this is important for current debates-- the Citizenship Clause specifically granted citizenship to the children, born here, to illegal immigrants.
It is often said there were no illegal immigrants before modern immigration laws. But that is not true. 12/
Under the Slave Importation Clause of the Constitution, Congress had the power after 1807 to ban the importation of slaves, i.e., what we call "the international slave trade". Congress exercised this power. After 1807, slaves brought to this country were illegally here. 13/
And of course, the fact that Congress banned the importation of slaves did not, in fact, stop the importation of slaves. It slowed it, but there were still instances. Remember the movie "Amistad"? That involved slaves entering the country in 1839 who litigated their case. 14/
Here's the key point-- THERE WERE PEOPLE, BORN IN THE UNITED STATES, WHO WERE THE CHILDREN OF ILLEGALLY IMPORTED SLAVES AS OF THE TIME THE 14TH AMENDMENT WAS ADOPTED. I.e., the children of illegal immigrants. And the 14th Amendment made them citizens. 15/
Indeed, nobody doubted this, and nobody complained about this, and nobody said these children were not subject to US jurisdiction. They were born here, we had birthright citizenship, and everyone understood the 14th Amendment simply eliminated the slavery exception to it. 16/
That's really the end of the issue. We already had birthright citizenship, and when the 14th Amendment was passed, one of the things it did was specifically grant citizenship rights to the children of illegal immigrants, and nobody thought it didn't do that. 17/
But let's talk about the counter-argument. The 14th Amendment preserved the common law exceptions to birthright citizenship, OTHER than slavery-- children of diplomats, and Indians. (Congress, BTW, later granted citizenship to Indians.) 18/
The way the 14th Amendment did this was by saying that the child born in the US had to be "subject to the jurisdiction" of the United States. In the case of both diplomats' children and Indians there was a separate sovereign who had the actual power over the kid. 19/
Importantly, it wasn't just "there's another nation out there", but that the United States LACKED jurisdiction. In other words, a child subject to TWO jurisdictions is subject to US jurisdiction.
But a child of diplomats has immunity from the obligations of US citizens. 20/
And a child of Indians born on Indian land is not subject to US authority, at least in the absence of Congress abrogating Indian sovereignty. (This doctrine remains to this day-- McGirt v. Oklahoma recently held tribes have exclusive jurisdiction over Indian territory.) 21/
And THIS is what the Supreme Court held in the Wong Kim Ark case in 1873, which held that the children of immigrants are subject to US jurisdiction because they are not diplomats and not Indians, and thus have 14th Amendment citizenship. 22/
People attached to getting rid of birthright citizenship make two other arguments. Both of them are completely meritless.
First, they note that some have speculated that the children of an invading army's members would not be citizens. 23/
However, the problem with that argument is that the REASONING for that posited exception is because if an army is occupying US territory, the US would lack authority, and thus jurisdiction, in the territory. Thus, children born there wouldn't be subject to US jurisdiction. 24/
And of course, despite right wing rhetoric, migrants coming across the border are not an "invasion" in any legal sense. Indeed, if you look at the Constitution, the framers thought about what an invasion is. For instance, habeas corpus can be suspended during an invasion. 25/
States can make war during an invasion.
So if you call this an invasion in a literal rather than metaphorical sense, that means we can suspend habeas corpus and imprison anyone who looks like an illegal immigrant with no recourse, and Texas can bomb Mexico. 26/
That is not the law.
The other thing anti-birthright types claim is that there is something different about illegal immigrants. But the problem there is text and history. As I noted, the 14th Amendment granted citizenship to the children of a group of illegal immigrants. 27/
But also, you don't get to distinguish cases that announce broad legal rules based on facts that have nothing to do with the legal rule. Wong Kim Ark wasn't based on the parents being here legally; it was based on the child being subject to US jurisdiction. 28/
Nobody actually believes that we have no jurisdiction over US born children of illegal immigrants. There is no McGirt legal rule of immunity from state prosecution, and no diplomatic immunity. 29/
They are, perhaps, subject to MULTIPLE jurisdictions, but such children are still covered by birthright citizenship. 30/
And that's the end of the road here. I am sorry I am spending so much effort refuting a frivolous argument, but it's important considering a lot of conservatives are drinking a lot of Kool-Aid on this one. 31/
They WANT the law to be a certain way so they are scraping for a rationale.
But literally there are few rules in all of American law with the combination of historical pedigree, common law justification, AND constitutional text that birthright citizenship has. 32/
There's just no room here for counter-arguments. And the courts should quickly and decisively dismiss any attempt to mess with it. End/
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Just a meta comment on the Vietnam War and my tweets:
The War was folly for the US and France. But many people misinterpret that to mean the Communists were on the right side. In fact South Vietnam, despite its corruption and autocracy had a far more free society than the North.
You wouldn't have minded living in Saigon during the war, except for the effects of the Communist insurgency. Hanoi, in contrast, was an unproductive poor authoritarian hellhole that people desperately wanted to escape.
After the War the Communists proceeded to run the country into the ground, as collectivization led to economic ruin, millions were sent to "reeducation camps", and the regime fought additional wars that killed yet more Vietnamese.
I'm going to do a quick political theory thread about this because it is interesting.
Ever notice how Democrats got creamed in several elections (1972, 1980, 1984, 1988), then stopped getting creamed? It's actually partly the effects of this. And it's fascinating.
Go back to 1972. Why did McGovern lose SOOOO badly, only winning one state? Well, because he lost the white working class-- voters who used to support New Deal Dems and now pulled away and voted for Nixon.
Part of that was Vietnam and the protests. But there was something else.
1972 was the very start of the environmental movement. And this is totally forgotten, but do you know who really, truly, fight to the death hated environmentalists? That's right-- union workers. The working class. Why? Because to them, the green movement was a direct threat.
i just listened to a law professor on the usually good Advisory Opinions podcast say that the real answer to the problem of an independent Federal Reserve clashing with unitary executive theories is to ask whether central banking is an appropriate federal power in the first place
I will say-- this isn't representative of most law professors or even most right leaning ones. The majority realize central banking is a necessity and that the country will go to hell if the President can unilaterally control it.
But this belief is out there.
And to me it shows the great lesson of theorists who get too attached to their principles. Look, if the text of the Constitution literally prohibited independent central banks, we'd have to follow it even though that is crazy, ignorant, and would destroy the country.
First, what does Colorado's law do? Well, it bans "conversion therapy", and then gives it a quite broad definition, including trying to talk a patient out of their sexual orientation or gender identity.
It seems to me that to start out, for this to be Constitutional, this has to be some form of legitimate enforcement of professional medical norms. Because if you took it outside of that context, it would be obviously unconstitutional.
I think this piece by Adam Serwer is indicative of how a lot of writers are going to go about opposing Trump's DEI policies, but I think he's ultimately politically clueless about how toxic this issue has become.
Here's the thing. Ever since there has been affirmative action programs, of any sort, defenders of those programs ALWAYS accuse opponents of trying to reinstitute Jim Crow. If you don't favor these programs, you must want all white institutions.
The problem is, it is too obvious that this is not a serious argument. There's obviously 3 possible directions for policy, not two, in this area:
1. Preferences for white people (Jim Crow). 2. Preferences for historically oppressed minorities (DEI). 3. Color blindness.
I'd make a different point to conservatives. Justice Barrett was confirmable to a seat that had been occupied by Ruth Ginsburg, and conservatives had little margin for error on the pick given the 2020 election was upcoming.
Way too much discourse ignores the Senate in discussions of SCOTUS picks. But if you have little time to work with, you need someone who presents no problems that could even potentially slow her confirmation. You have to keep the Senate majority happy.
That means you can't pick some flaming right winger in 2020. You pick that guy and then his racist writings in college turn up or where he was arguing for sodomy laws to be enforced or said Social Security was unconstitutional and you got no time to pull the nomination.