| ▲ | rayiner 2 days ago |
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| ▲ | toast0 2 days ago | parent | next [-] |
| Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice. Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't. |
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| ▲ | rayiner 2 days ago | parent [-] | | > Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice. Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed." The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language. > The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction. But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand. I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text. | | |
| ▲ | toast0 2 days ago | parent [-] | | > Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction. From today's decision: > 2) In Wong Kim Ark, the Court held that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law, 169 U. S., at 688, excluding only those recognized as exempt “from the jurisdiction of this country”—the“children of ambassadors” and those born in the nations of Indian tribes, id., at 675, 681–683, 693. That's a 1898 decision where the status of native tribes was not at issue, but was used as an example. But it's roughly contemporaneous with the 14th amendment and shows why an Indian Citizenship Act would be needed. Edited to add: There's also Elk v Wilkins (1884) which specifically held that Indians born on reservations did not get automatic citizenship. | | |
| ▲ | rayiner 2 days ago | parent [-] | | Yes, but my point is that Wong Kim Ark is internally inconsistent. It doesn’t explain how the exclusion of Indians follows from its idea of what “subject to the jurisdiction” means. Let me put it this way. What is a definition of “subject to the jurisdiction” that excludes Indians, other than saying “well, Indians aren’t included?” It can’t be “people who aren’t subject to US laws,” because Indians have been subject to U.S. laws since 1817, even on tribal lands. | | |
| ▲ | toast0 2 days ago | parent | next [-] | | I added it late, but the real case to look at for Indians is Elk v Willkins... The opinion in that case seems to be that Indian nations are sovereign and so an Indian born within an Indian nation is a citizen of that nation and not the US. This doesn't seem to be incompatible with the 14th Ammendment which mentions representation apportioned by whole persons, excluding Indians not taxed. US Citizenship of tribal members was also part of treaties between the US and the tribes. That situation doesn't arise other than with Indians, because the US does not enter into treaties with any other groups formed within the boundaries of the US. Although the 1871 Indian Appropriation Act prohibited new treaties with Indian nations. | |
| ▲ | ceejayoz 2 days ago | parent | prev [-] | | > What is a definition of “subject to the jurisdiction” that excludes Indians, other than saying “well, Indians aren’t included?” This seems fairly simple; we made treaties with Native American tribes, up until 1871, and Article I says things like "excluding Indians" and "regulate Commerce with foreign nations and among the several states, and with the Indian tribes". They clearly enjoy special (so to speak) status from day one. |
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| ▲ | solid_fuel 2 days ago | parent | prev | next [-] |
| Here's the full text of the relevant section: > 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The dissents are worthless, like most of the opinions from Thomas and the other conservative "justices". None of this wording is tricky unless you are specifically trying to find ways to deny rights to american citizens based on their ethnic origin. |
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| ▲ | ceejayoz 2 days ago | parent | prev | next [-] |
| > whether the child is “subject to the jurisdiction” of the U.S. at birth If I strangle said child in the maternity ward, do you think the US will go "whoops, no jurisdiction!" |
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| ▲ | hacker_homie 2 days ago | parent [-] | | that would be jurisdiction on you committing murder, which they do have. | | |
| ▲ | ceejayoz 2 days ago | parent | next [-] | | So reversing the scenario - an illegal immigrant kills me - can't be prosecuted? Because they're not under US jurisdiction? | | |
| ▲ | tzs 2 days ago | parent | next [-] | | That question isn't really meaningful, because commission of a crime is a basis for jurisdiction. Generally if party A commits a crime against party B jurisdiction can be claimed by (1) the country where the crime occurred, (2) the country A is a citizen of, and (3) the country B is a citizen of. | | |
| ▲ | ceejayoz 2 days ago | parent [-] | | > jurisdiction can be claimed by (1) the country where the crime occurred Or the birth, as it were? | | |
| ▲ | throwawaypath 2 days ago | parent [-] | | >Or the birth, as it were? Not always. The people of American Samoa do not have birthright citizenship in the United States. They are clearly under the jurisdiction of the US. | | |
| ▲ | ceejayoz 2 days ago | parent [-] | | "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." They are not born/naturalized in the United States, but one of its territories. "Subject to the jurisdiction" is satisfied, but the other part is not. (We can grant citizenship to territories by statute, like Puerto Rico, but the Constitution does not mandate it. American Samoa, thus far, doesn't seem to want it.) The history of this is all a bit gross. https://en.wikipedia.org/wiki/Insular_Cases | | |
| ▲ | throwawaypath 2 days ago | parent [-] | | >They are not born/naturalized in the United States They are clearly born in the United States, the territories are part of the United States. The United States is the sovereign state of American Samoa. The point you're making is exactly the point I was making. We define by statue and court precedent which territories are magically included in this. American Samoa was included and considered in the United States and "subject to the jurisdiction" as recently as 2019: https://www.courthousenews.com/federal-judge-rules-american-... All it may take is for congress to pass a change to 8 U.S. Code § 1401 to deny birthright citizenship to illegal aliens. Trump's EO ran afoul of this according to the dissent. | | |
| ▲ | ceejayoz 2 days ago | parent | next [-] | | The United States is made up of… states. The United States also posesses some territories, which are not states. This is why Puerto Ricans got their citizenship by statue in 1917, rather than via the Fourteenth Amendment. > American Samoa was included and considered in the United States and "subject to the jurisdiction" as recently as 2019… No, it wasn't. That case was overturned on appeal. It remains under US jurisdiction; its people remain nationals, not citizens. https://en.wikipedia.org/wiki/Fitisemanu_v._United_States > The United States appealed and in a 2–1 decision the United States Court of Appeals for the Tenth Circuit reversed the district court decision with Judge Bacharach dissenting. The court cited one of the Insular Cases, Downes v. Bidwell, as a Supreme Court Precedent not to affirm the lower court's decision. The Court of Appeals also denied an en banc hearing, over the dissent of Judges Bacharach and Moritz. > A petition for writ of certiorari was filed in the United States Supreme Court on April 27 and was discussed in their conference on October 14, 2022 and decided to deny certiorari on October 17, 2022. https://en.wikipedia.org/wiki/Downes_v._Bidwell > The decision narrowly held that the Constitution does not necessarily apply to territories. Instead, the US Congress has jurisdiction to create law within territories in certain circumstances, particularly those dealing with revenue, which would not be allowed by the Constitution for US states. | | |
| ▲ | throwawaypath 2 days ago | parent [-] | | >The United States is made up of… states. And territories, minor outlying islands, and a federal district. >No, it wasn't. Yes it was, the opinion of the court held that those born in American Samoa were born in the United States.: >“Plaintiffs, having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment,” Waddoups added. It was eventually overturned, but the fact is a court's decision included American Samoa as "in the United States." The point is courts can decide what is considered "under the jurisdiction there of" much as there can decide what is considered "in the United States." All it takes is another case to completely throw out the Insular Cases. >In United States v. Vaello Madero, No. 20-303, 596 U.S. ___ (2022), Justice Neil Gorsuch concurred and noted that "The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law."[32] Gorsuch argues that the Court must find a case to overrule the Insular Cases which were "based on racist assumptions and imperial ambitions." | | |
| ▲ | ceejayoz 2 days ago | parent [-] | | If I get to cite losing cases, I can win any argument of this nature. | | |
| ▲ | throwawaypath a day ago | parent [-] | | You don't get it: the case winning/losing is irrelevant to the argument being made. | | |
| ▲ | ceejayoz a day ago | parent [-] | | If the actual final outcome doesn't matter, maybe your argument sucks. | | |
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| ▲ | toast0 a day ago | parent | prev [-] | | Downes v. Bidwell (1901) created a difference between 'incorporated territory' and 'unincorporated territory' The Second Organic Act of 1912 explicitly extends the constitution (and the 14th amendment) to the Alaksa territory. Supreme court cases have established that the 14th amendment doesn't apply to unincorporated territories. |
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| ▲ | qingcharles 2 days ago | parent | prev | next [-] | | Unless you were snuffed out on federal land, I think state law would reign in this situation, and the states can have jurisdiction over you just by being on their territory. In fact, I seem to remember a time when you could be a citizen of a state, but not of the United States, to further complicate matters. | | |
| ▲ | ceejayoz 2 days ago | parent | next [-] | | > the states can have jurisdiction over you just by being on their territory Go on, take that theory just the tiniest little step further logically. > I seem to remember a time when you could be a citizen of a state, but not of the United States... When was that? | | |
| ▲ | latency-guy2 2 days ago | parent [-] | | > Go on, take that theory just the tiniest little step further logically. So you take that step, is that illegal immigrant a citizen now because they killed someone? | | |
| ▲ | ceejayoz 2 days ago | parent [-] | | No. But they are certainly under our jurisdiction. They will be arrested, tried, and convicted accordingly. If pregnant, their child, having been born in the US and under its jurisdiction, will be a citizen when born in prison. They will not be sent home PNG like an ambassador. |
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| ▲ | igjjigjk 2 days ago | parent | prev [-] | | [dead] | | |
| ▲ | henry2023 2 days ago | parent [-] | | Not sure if his status as sex offender is relevant in this discussion but it’s funny to see the stereotype in action. | | |
| ▲ | throwawaypath a day ago | parent | next [-] | | >to see the stereotype in action. Which stereotype, the "leftists are child groomers" one? He's clearly a left-wing commenter... | |
| ▲ | a day ago | parent | prev [-] | | [deleted] |
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| ▲ | doctorpangloss 2 days ago | parent | prev [-] | | you are arguing with people who are being academic to a fault, unable to see how they've been co-opted. that said, i appreciate the commentary from real lawyers - i LIKE academic stuff even if the real, hard embodied politics of it all is straightforward. |
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| ▲ | garyfirestorm 2 days ago | parent | prev [-] | | jurisdiction is not dependent just on the person. it is a geographical encapsulation. all people within this boundary are subject to the jurisdiction. | | |
| ▲ | phainopepla2 2 days ago | parent [-] | | That's not true. Even the liberal interpretation of this recognizes that some people within the geographic boundary are not subject to the jurisdiction. Diplomats and invading armies, for example. |
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| ▲ | sanderjd 2 days ago | parent | prev | next [-] |
| I don't think the language is ambiguous at all, and I consider it shocking and beneath the dignity of the Court that this was not a unanimous decision (and that the case was taken at all). |
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| ▲ | NetMageSCW 2 days ago | parent [-] | | What does “subject to the jurisdiction” mean? How can one be in the US and not subject to the jurisdiction? | | |
| ▲ | sanderjd 2 days ago | parent [-] | | What do you think the answers to these questions are? Are you genuinely unsure? |
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| ▲ | 63 2 days ago | parent | prev | next [-] |
| I agree that it's worth reading the original source and encourage all to do so. My takeaway however was that the majority had a much stronger body of evidence than the dissenters. |
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| ▲ | TimorousBestie 2 days ago | parent | prev | next [-] |
| > Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way. This is a summary of Thomas’ dissent; the majority opinion is based on more than just “English common law.” Even Thomas acknowledged this. |
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| ▲ | 2 days ago | parent | prev | next [-] |
| [deleted] |
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| ▲ | ailun 2 days ago | parent | prev | next [-] |
| It was not tricky. The arguments against are fundamentally dishonest and so is your representation otherwise. |
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| ▲ | htx80nerd 2 days ago | parent | prev [-] |
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