What was the rationale for the dissenting votes?
According to SCOTS blog,
Justices Thomas, Alito, and Gorsuch emphasized that the framers of the 14th Amendment and the concept of jurisdiction implied a requirement of complete allegiance to the U.S., effectively making the citizenship status of a newborn dependent on their parents’ immigration or lawful domicile status.
(Cynical answer: Those SCROTUS dissenters think the president is a king)
From AI
These dissenting opinions, frequently referenced in modern challenges to birthright citizenship, are grounded in the following core arguments:
- The “Jurisdiction” Clause: The 14th Amendment’s Citizenship Clause grants citizenship to all persons born in the U.S. and “subject to the jurisdiction thereof.” The dissenters argue that this phrase means more than just physical presence. They contend it excludes individuals who maintain their primary allegiance to another country, such as parents who are undocumented or in the country on temporary visas. [1, 2, 3]
- Original Intent: The dissenters argue that the framers of the 14th Amendment designed it specifically to overturn the 1857 Dred Scott decision and secure citizenship for freed slaves. They claim it was never intended to confer automatic citizenship on the children of foreign nationals or unauthorized immigrants.[1, 2, 3]
- Birth Tourism: Dissenters have voiced strong concerns that automatic birthright citizenship can be exploited by “birth tourists”—non-citizens who travel to the U.S. solely to give birth so their child can secure U.S. citizenship and the associated benefits before immediately returning home.
I have questions about each one of these, but I think that would take us into GD territory.
I think the wisdom of granting birthright citizenship is certainly debatable, but I am still baffled as to how you can argue against the plain language in A14, unless you are just looking for justification for the conclusion you want.
Keep in mind that the justices broke 5-4 on the question of whether the constitution mandates birthright citizenship.
Kavanaugh voted with the majority on the question of whether the Trump administration could end birthright citizenship by executive order, but his concurrence argued that birthright citizenship was established by a Congressional law, not by the plain language of the 14th Amendment, and that it can be ended by Congress as well.
I predict you’ll be seeing Republican congressional candidates promising to revoke the law in question in campaign materials with a week or two, depending on whether they gave their staffs the week off for Independence Day or not.
I’ve always understood that to mean consular workers, ambassadors, possibly foreign military stationed here (if we had such bases), etc.
And here I am thinking the SCOTUS is just supposed to call balls and strikes, and leave such things to the legislature.
What law was Kavanaugh referring to?
From a NY Times article:
The 1952 Immigration and Nationality Act was an attempt by Congress to combine the country’s various laws governing immigration into one bill. It includes language that closely mirrors that of the 14th Amendment.
I think it was that one.
re: allegiance. It does mean that, but per the dissenters, is (much) more expansive than just that. In Alito’s hypo, he takes an Iranian child born in the US to Iranian parents. According to Iran, if the father is Iranian, then so is the child regardless of where they are born. If born in America, the child is both American and Iranian. Where is the allegiance? Is the child really not “subject to a foreign power” (the 1866 Civil Rights Act language Alito uses, a lot, as a substitute for the 14th language “subject to the jurisdiction therein”).
Naturalized citizens, also noted in the 14th, must take an oath refuting any foreign allegiance. Why would allegiance requirement be different for people born here in the same sentence.
That’s part of Alito’s argument, anyways re: allegiance “requirement”. Not that I agree with it.
Kids born to American parents also don’t have to take any oath of allegiance.
Even if they are born in Iran
I hear you. For Alito, no need for an oath if there’s no conflicting allegiances, though. His point was that there should be no confusion over a citizens allegiance. But, what about naturalized dual citizens - they take the same oath swearing off foreign allegiance but how can it be true if they remain citizens of a foreign country. How does Alito reconcile that situation. Haven’t finished his dissent so maybe it’s addressed.
Anyways, for the OP, giving you more info on the dissenters rationale. They think to be a citizen, by birth or naturalization, the citizen’s allegiance to any foreign power needs to be unencumbered.
Huh. I wonder why he chose Iran as an example, instead of, say, Norway or Canada.
/s
Also, I’m guessing a great many undocumented immigrants don’t think of themselves as retaining a “primary allegiance” to their country of origin and would happily swap their foreign citizenship for US citizenship if given the chance.
This, entirely this. How many times have those dickheads talked about the intent of the framers when it comes to 2nd amendment or the right to choose? With those they are diehard originalists to the last. Now all of a sudden they are desperate to the look at the framers intent not the actual unambiguous words they wrote down in the Constitution. They can shove that up their ass, they just want a king.
Especially as it was a presidential executive order. If the POTUS can nullify an amendment to the Constitution because they don’t think it’s what the framers would have wanted, then we don’t have a constitution.
I don’t understand how one can even torture that out of the 14th Amendment. If another nation considers you their citizen then you are subject to its jurisdiction if you go there, but are also subject to the jurisdiction of the United States.
Are the dissenters literally misreading the word “subject” as a noun rather than an adjective and think that the words are actually “subject of the jurisdiction” rather than “subject to”?
That would be a strange interpretation (by them), since we’re not subjects, we’re citizens. Although the dissenters seem to want to indeed install a king.
[Moderating]
We ask in general that posters don’t just make a post consisting entirely of AI results. That’s especially relevant in this case, since the AI that delivered that answer was almost certainly trained before the Supreme Court’s decision today, and hence it can’t possibly know the answer to the OP’s question (which was not what arguments can be put forward, but which arguments were in actual fact put forward by the dissenters on the court).
I’ll also note that this is also being discussed in Politics and Elections, which would be a much better place to discuss opinions about this decision, its ramifications, and so on. Please keep this thread entirely for factual information.
Apologies
Right. That is what Alito is saying. For a person born in the US who is subject to a foreign power, they should not be a US citizen. So, a Mexican national born inside the US, while also now an American Citizen, is still also a Mexican, and required to register with the Mexican military at age 18, etc. etc. At birth, he’s subject to Mexico/a foreign power/their laws in ways that someone who is only an American citizen is not. In Alito’s mind, that child, per the 14th, should not also be an American Citizen. Alito thinks that because Alito reads “subject to the jurisdiction thereof” in the 14th as meaning only to American jurisdiction. Can’t also be subject to other foreign Jurisdictions. [Keep going with this reasoning using the Civil Rights Act of 1866 discussion above to flesh out more].
Also, you can be subject to a jurisdiction even if you are not present inside the jurisdiction. So, just because you’re born in the US, you can still also be a Mexican and subject to Mexican law - e.g., that you must register for the military at age 18. Also, a few sentences later in the 14th re: equal protection clause, that applies to anyone “within [US] jurisdiction” - this means being within the border of a State/the US. That is different than being “subject to” a jurisdiction and if they were supposed to mean the same thing then say it the same way.
Not in the example we are discussing now.
However, subject, as a noun, is also a part of the discussion - in the majority opinion too. These current concepts predate any normal meaning of citizenship. Back in the day before America, in Britain for sure where the original birthright citizenship concept came from, they would definitely be subjects (of the King). So, born in the British Empire = subject of the King.
Those are Alito’s points as best as I can summarize. There’s a few more. It’s a long dissent, and a lot is spent on immigration history. Overall, it’s more nitpicky, and not an actual reason to change 150+ years of well settled law, and for a reason (interpretation of “subject to” provision) that was already decided/resolved by a previous Supreme Court opinion 100+ years ago. Alito just doesn’t like the answer.