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/
• • •
Missing some Tweet in this thread? You can try to
force a refresh
There are all sorts of problems with the "Israel = South Africa" analogy, but one under-discussed problem is that the fight against Apartheid depended on everyone having honest, reachable goals.
The Palestinian Cause is dishonest and its goals are unreachable.
During Apartheid era South Africa, the ANC made its ultimate goal clear, and it was not dismantling the South African state. It was eliminating race discrimination (grand and petty Apartheid) and giving Black South Africans the vote. That was it.
That was an achievable goal-- it wasn't going to cause civil war in South Africa. And it was an honest one-- the ANC was covertly planning on expelling whites from the country or wreaking violent revenge againts them. They were completely honest-- this is what we want.
China basically took over Tibet, which had been independent. Since then, they have meddled in the country's religion, and invited Han Chinese to move in and change the ethnic/religious composition of the province.
And yet, nobody is seriously saying China must pull out of Tibet.
The reason, of course, is that China is very powerful and we all understand the realities of the situation.
The best we can hope for is to use various forms of policy in the long term to moderate China's behavior. And even that has a pretty low likelihood of success.
And importantly, everyone understands that if we encouraged the Dalai Lama and his allies to launch an insurgency campaign to drive the Chinese out of Tibet, with terrorist bombings and the like, this would not go well for the Tibetans. They'd lose and things would get worse.
With Terry Bollea's (Hulk Hogan's) death yesterday, it's a good time to look back at the biggest thing I was ever involved in. For over 3 years, I spent more than half of my worktime on one case-- Bollea v. Gawker.
It was Charles Harder's case-- I handled "the appeal side".
I didn't even attend the trial in Florida-- it was tried by Charles, Ken Turkel, and Shane Vogt. But what I did was write almost every legal argument Bollea made in the case, including trial briefs, summary judgment and injunction papers, and several appeals in different states.
I also had some role in other things-- e.g., I drafted the first draft of what became the infamous deposition examination of AJ Daulerio (that depo was taken by Doug Mirell, now at @NolanHeimann ). I thought I wrote the "4 year old" question, but I am not certain about that.
This is a good jumping off point for me to talk about what is wrong with the International Criminal Court, a not completely terrible idea in theory that has in practice become unworkable and unrealistic and probably just has to be completely rethought.
There's basically 2 reasons why a lot of folks understandably might like to have an International Criminal Court. First, it formalizes something the world has been doing since World War II (and really since the American Civil War in some embryonic senses), war crimes trials.
Pre-ICC the way the international community did it was ad hoc. There'd be a conflict that featured war crimes such as genocide or ethnic cleansing or crimes against humanity, and then the world would set up a war crimes tribunal at the end of the war.
Ever since I developed my theory about the OJ case, I have become a consumer of stuff written about the case.
There's something that gnaws at me.
In 2025, most smart people know he was guilty.
But many still believe the bad arguments about DNA that the OJ defense made.
My basic thesis is this, and I say this as someone generally skeptical of prosecutors: the stuff prosecutors say about DNA is right, and the stuff that defense and defense experts say about it is wrong. Honorable (in that it puts the state to the test), but wrong.
What do I mean? I mean all the stuff that defense lawyers talk about with respect to especially contamination, but also planting, quality of sample, chances of innocent explanations for DNA mixing-- it's all BS. Your DNA ends up in incriminating places because you were there.
I am going to try and add some value here, in light of the pushback I got for saying Obergefell v. Hodges is safe.
I am going to talk about "how to predict what SCOTUS will do in the future in politically salient cases".
Obviously, like all predictions, nothing will be 100%.
But the basic idea is "how do you actually gain some notion of what the Supreme Court is likely to do?".
Or another way of putting it is "how do we know which cases are safe and which ones are on the chopping block?".
And that latter way is a nice way of stating the question.
Because the basic type of discourse I am setting this up AGAINST is the sort of thing that says the Supreme Court is simply going to overturn every liberal precedent and enact the fever dreams of the far right. That has not happened and is not going to happen.