Comment by ventana | Hacker News Reader

Comment by ventana | Hacker News Reader

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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.

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.

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".

At some point in the not-too-distant future this is going to recur on trying to apply the word "born" to AI, see e.g. Short Circuit II, Humans (2015)

Hatching is definitely a birth (where do you think chickens come from?) but transmogrification maybe not.

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.

There are other people who can be within the territorial boundary of the US but not subject to its jurisdiction. An invading army, for example. It leaves some interpretation of this question but it does not leave unlimited interpretation to the President, or even to Congress. That is the understanding of Wong Kim Ark, which overturned the law Congress passed 14 years after the ratification of the 14th amendment.

If you read Roberts's opinion he literally explains the definition of jurisdiction as it stood when the amendment was drafted (he cites three different dictionaries) and cites floor arguments directly from the Congressional record. It's not long, takes about 15 minutes to get through.

The rest of the documents are the concurrences (Jackson) and the three, frankly insane, dissents. Thomas's is 90 pages long somehow (I couldn't get through all that one, it's properly crazy).

Here's part of the Senate debate where they discuss it. It turns out that they were extremely precise about what it meant, and they described the exceptions in great detail. It's even typewritten. The downside: you can't come away from reading this stuff and pretend like there's some legal flexibility in the term. If that's important to you, you probably shouldn't click the link.

[1] https://digital.library.unt.edu/ark:/67531/metadc30867/m1/12...

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.

Nah, the conservative opinions in this case aren't even worth the paper they are printed on. Every single court that saw this case decided the same way: birthright citizenship was intended to work exactly as it has been applied since its inception.

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.

Jurisdiction has multiple concepts, you are thinking of territorial jurisdiction. There is also personal jurisdiction, feudal jurisdiction (serfdom), political jurisdiction.

Thomas is reacting to Roberts. Roberts spends time talking about the king's obligations to those born on their land. There is also each person's obligation to the king. Roberts wants to say "we inherited common law, and under common law everyone born on the king's land immediately came under his jurisdiction, the king owed things to these people immediately (and the people owed the king)". Thomas is saying "no kings".

> What a load of nonsense.

Or, this is a complicated, multi-layered concept that goes back through 500 years of common law. It will look messy.

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

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.

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.

Every court before the Supreme Court completely dismissed the attempt to kill the 14th amendment.

The Supreme Court is more and more packed with dishonest, racist Republican political hacks who try to twist words to overturn centuries of precedent.

> more and more packed with dishonest, racist Republican political hacks

I'm not sure I see where the "more and more" is coming from.

Out of the three justices nominated by Trump, two (Barrett and Kavanaugh) voted in favor of birth citizenship rights; does it qualify them as dishonest racist Republican political hacks? The other two who dissented, Thomas and Alito, have been serving for 35 and 20 years respectively, so it's hardly about packing.

Also, while 3 of the 4 newest justices were indeed appointed by a Republican president and 1 by a Democrat, before that, we got 2 new justices appointed by Obama (Sotomayor and Kagan). Unless the Congress actually increases the number of justices, I would say the current system works just as designed.

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.

----- re: below due to throttling---------

>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.

What a curiosity. It appears that other territories count by statute but for American Samoa the US national designation was created to give them similar rights to citizens but not voting or political office and in exchange the Samoans get some more self-determination than other territories. Cool!

Yes, lots of them don't want the 14th amendment. They have racist/ethnocentric land ownership laws that contradict the 14th amendment, the same one that creates birthright citizenship.

There are also allegedly some low quasi-government tribal positions in remote areas where women are effectively ineligible for office, though this one is less provable, it also would not be consistent with constitutional protections.

So many historical curiosities in this whole thing. Hawaii vs Puerto Rico, for instance, the latter having more people but not a state. I imagine we put up with the Samoan rules because we wanted the strategic base. My own citizenship rests on the fact that other territories have been included into birthright citizenship by statute.

Hawaii also bizarrely has 14th amendment violating land laws. There is a non-Indian-reservation, state owned land called the "Hawaiian Homelands" where only those of "the blood" of the right people can lease from. This violates the 14th amendment (SCOTUS has ruled Indians are exempted, but Hawaiians were determined in Rice v Cayetano to not be Indians) protections on equal protection under the law of different races to enjoyment of the public lands. No one has bothered to challenge it yet, but I expect especially under this SCOTUS the Homelands will get steamrolled if they do.

Hawaii's 14th and 15th amendment violating laws have slowly been getting flushed out. In ~2000 non "native" local voters could finally vote for all offices (RBG dissented, vouching for racist voting laws and against the 15th amendment), and IIRC not long after that it became possible for those with the wrong "blood" to hold all offices.

Fascinating. Another strategic base. It seems straightforwardly unconstitutional though I suppose it rests on this political vs racial classification. Though even that distinction has always felt dubious - being determined by ancestry rather than affiliation with a polity.

There was no such thing as an illegal immigrant in the US when the 14th Amendment was ratified.

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