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.
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.
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.
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.
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.
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 :)
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.
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.
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.
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.