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Notes -
IMO, not a lawyer or an expert:
From a textualist, or originalist, or stare decisis perspective, birthright citizenship does apply to children of undocumented immigrants born in the United States. Someone on twitter had a good zinger - if the child was being abused by their illegal immigrant parents, would the courts do anything about that? Well, they would. And, since they would, the children are 'subject to the jurisdiction' of the United States. Exceptions to the "subject to the jurisdiction" clause are things like diplomatic immunity - where, in fact, the court wouldn't exercise jurisdiction over the child. More generally, even if you bought the arguments that the clause somehow excluded the parents, nothing would transfer that status to the children. (This is my speculation, not copying from people who would know better, so more likely to be wrong) - In addition to that, illegal immigrants are regularly charged with crimes under state and federal law. Which, I would think, means they are 'subject to the jurisdiction'? The United States is not, in fact, currently treating them like you suggest we might treat an enemy army. We could, in theory, but we aren't.
However, on issues of sufficient importance, the Supreme Court sometimes ... changes its mind. Or, uh, realizes past precedent was wrongly decided, purely by neutral analysis of the law. This is good. It's good that an independent body of smart elites who effectively choose themselves and genuinely care about the law has some amount of check on democracy and procedure. It's good (or at least, I think it's good, and most people like the results) that the commerce clause allows the federal government to regulate more, as technology and the economy grew in scale and complexity. If birthright citizenship really is that bad, if it's strategically important to the country's future that it be overturned, the weight of literal meaning and precedent maybe shouldn't bind us. And of course, as is tradition everyone even adjacent to the legal field will have to pretend this is really a debate about what people in the 1800s thought 'jurisdiction' meant. You don't have to though.
I am generally against this, in particular with amendments. For example, if the 2nd amendment was universally bad (because it specifically authorized private ownership of nukes or something), the correct move would be for Congress to repeal it -- which would happen if it was recognized as such. The SCOTUS squinting their eyes and pronouncing that clearly it just says that states should have national guards is not the way to go.
The most controversial decision the current SCOTUS made was repealing Roe vs Wade, which had been exactly such a "we would very much like the text to say it, so we will just pretend it does" decision. I am somewhat hopeful that Dobbs was made out of a genuine disgust at Roe distorting what the text said to legislate from the bench, and not out of a willingness to interpret the constitution however Trump wants it interpreted.
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The question has never been solely about the ability to arrest someone (or to "do anything about that"). They were able to arrest John Elk when he was on non-tribal US land.
This is not to say that the correct answer is the other way, either. It is only to say that it is abundantly clear that things like "can you arrest a person" are not the sole determinant. The case law is extremely clear that what they called "political allegiance" has something to do with it. It's super messy once you get into that, but the fact is, one has to get into that if they want to take the case history remotely seriously.
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Of course, we also "do something" about invaders. We also prosecute animal cruelty, that doesnt mean the animals are subject to our jurisdiction. And besides, all sorts of strange things can happen when crimes are downstream of other crimes.
Like, the entire problem here is that immigration restrictions have created a novel situation not anticipated by the original legislators. Something about this is going to be weird, no matter how you resolve it. So you cant have the One Zinger to rule them all.
Youre introducing a new variable here without saying how its set. Thats not particularly an argument for anything - "You cant definitely disprove X therefore its true" doesnt work. You still need to explain that data with that new hypothesis - so, how is the childrens status actually determined, such that the invasion exception holds?
Im well aware. I write this because I think its valuable to show people what the autismo mode actually looks like.
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I disagree. From a textualist perspective it clearly does. From a true originalist perspective it is clear that the people who wrote the 14th amendment could not possibly imagine an America in which Europeans became a minority. Indeed debates at the time show they didn’t even think it a realistic possibility (as with the twitter link you post below). The originalist interpretation must flow from that to the obvious conclusion that they wouldn’t have supported large scale third world mass immigration today. When they argued in favor of the amendment, they did so with the implicit and often explicit assumption that mass immigration of the type we’ve now seen would never happen. Now it has, so the foundation has shifted, and everything else must shift with it in accordance with this original, implicit objection.
(By the way, I think the same approach is a perfectly viable way of arguing against certain expansive 20th century interpretations of the first and second amendments).
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