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Welcome to rationally BASED, a podcast about law and politics, on the edge. Law professor Ilan Wurman, with co-host Kathryn Johnson, cover cutting-edge, and edgy, legal and political news, ideas, and developments.
rationally BASED
Episode 26 | Birthright Bombshell at the Supreme Court
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In this episode, Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld break down the Supreme Court's 5-4 birthright citizenship decision — a much more closely divided ruling than many expected.
Chief Justice Roberts, writing for the Court, held that the Citizenship Clause of the Fourteenth Amendment confers citizenship on virtually anyone born on U.S. soil, with only narrow historical exceptions. The decision effectively takes the issue out of the democratic process, requiring either a constitutional amendment or a future Court to change course.
The hosts also analyze the full range of views across the concurrences and dissents: Justice Kavanaugh’s narrower, more statutory approach that would leave room for Congress to act; Justice Alito’s rejection of British “birthright subjecthood” and focus on the Civil Rights Act of 1866; and Justice Thomas and Gorsuch's domicile-based theory. They also examine Justice Jackson’s concurrence, which pushes a sweeping “antisubordination” reading of the Fourteenth Amendment that even Justice Sotomayor declined to join in full and that puts Justices Jackson and Thomas directly at odds.
The conversation explores the deeper stakes: Did the majority get the original meaning right, or did it entrench a contested historical view and disable democratic self-government? Should consequences — such as birth tourism and incentives for illegal immigrants — matter in constitutional interpretation? And what realistic paths remain for those who believe birthright citizenship should be more limited?
This is the rational — and based — discussion of the Court’s biggest decisions that you won’t hear anywhere else.
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Welcome back to Rationally Based, a podcast about law and politics on the edge. I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.
SPEAKER_00I'm Catherine Johnson with Center of the American Experiment.
SPEAKER_02And I'm Josh Kleinfeld, Rouse Professor of Law at Scalia Law School, George Mason University. All right, Catherine, birthright citizenship, what's on deck?
SPEAKER_00Well, this is our second episode of the end-of-term Supreme Court episodes. Our focus today, of course, is on the much-awaited birthright citizenship case 5-4 against the Trump administration, but closer than many expected. So, first we'll cover the majority opinion. Second, we'll cover the very fire dissents from Kavanaugh, Thomas, Gorsuch, and Alito. Third, we'll discuss the bigger picture and where do we go from here?
SPEAKER_01Let's dive in. Catherine, Josh, where do we start?
SPEAKER_00Well, this is your big day, Elon. So before I shut up and let you just speak for the rest of it, I think I will give you the recognition you deserve because you were cited three times, I believe, in the Thomas Gorsuch opinion, right? So congrats for that. You were also very vindicated because not that long ago, people were saying that you were uh clinically insane, basically, for holding the perspective that you did. And today, four Supreme Court justices basically to some degree sided with you. So congrats to you. I hope you're feeling some level of success today.
SPEAKER_01Well, better uh than a nine-zero uh against me. So yes, absolutely. It's absolutely right.
SPEAKER_02And bravo, absolutely.
SPEAKER_01Good. And Josh also speaking of recognition, I just wanted to uh let everybody know that Adrian Vermule, a friend of the pod, who I'm gonna call him a friend of the pod, says Josh is the most reasonable person, the world's most reasonable man. So that's how he feels about me, I guess. Uh not less reasonable. Uh so nice shout out to Josh uh from Adrian there.
SPEAKER_02Yeah, thank you. Thank you, Adrian. Thank you, Elon. You know, three sights from SCOTUS beats a compliment from just about anybody. So, but at the same time, you know, world's most reasonable man, I'll take it. That's a that's a nice put up. Uh ironically, which is possible. Well, what does the world's most reasonable man uh think big picture about today? Well, I I thought maybe a nice place to start, because this is a very long opinion. It's 194 pages, as I recall, and uh lots of separate opinions. I thought I'd just do a really quick summary for our audience of what happened in these opinions, what each justice said, and then we'd get into the meat of it. So, okay, brief description. First of all, Chief Justice Roberts wrote for the court. He was joined by Barrett and also by the three progressive justices, Sotomayor, Kagan, and Jackson. And basically, it was very simple. They said when the 14th Amendment says all persons born are naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. That means if you're born on U.S. soil, you're a U.S. citizen with virtually no exceptions. And since that's constitutional, excuse me, the only way to change it in the future is constitutional amendment or the court overruling itself in the future. So that's the majority. Kavanaugh wrote a concurrence in part, concurrence in the judgment, and a dissent in part. He said the constitutional issue actually goes the other way. Uh, that um there's no birthright citizenship under the Constitution only under the immigration and naturalization act. Uh, his take on it, it was interesting. He said immigrants, illegal immigrants included, anyone born on U.S. soil have U.S. citizenship, but pursuant to statute, not the Constitution. The Constitution admits of change in the future. We can add to its exceptions, basically. There's a small set of constitutionally defined exceptions to birthright citizenship. We could reasonably add to it. And he says we should have just resolved this case on statutory grounds. And that's significant because had the court gone Kavanaugh's way, um, the Constitution would remain open, and essentially Trump would have to get uh Congress on board, and then they could change birthright citizenship without a constitutional amendment. So Justice Jackson, Katanji Brown Jackson, wrote a concurrence joined in part by Sotomayor. And in principle part, the concurrence said that the citizenship clause is not meant to be just about free slaves. It's meant to be about anyone born in America. And the Reconstruction um framers, the framers of the 14th Amendment, were specifically thinking about Chinese immigrants and wanted to include them. The logic is that anyone who finds themselves on U.S. soil uh and is born here should be included as well. So she has a very broad view. Uh she says some other stuff, quite extreme stuff. We're gonna get there later in the episode, but that's the constitutional core. So Alito, Thomas, and Gorsuch each wrote separate dissents. Thomas wrote one joined by Gorsuch, and his basic argument was that the citizenship clause requires domicile. That is where you make your home. Um, that's what the framers intended it to mean, and what subject to the jurisdiction thereof did mean, the words did mean. Its core application, Thomas argued, was to freed slaves. It was specifically meant to make sure that the slaves who had been freed after the 13th Amendment, after the Civil War, um would be entitled to citizenship because their home was in the United States and they were born on U.S. soil. It did not mean, Thomas argued, and never meant, even at the time of passage, temporary visitors to the United States, legal or legal, having children born here with citizenship because they did not have a home in the United States. Uh Alito wrote a separate dissent, rather, saying that citizen, the very term citizen, like citizenship, the very term citizen is really a term of Republican government. The British rule that we had at the country's founding was if you're subject to the king based on the soil on which you were born. It was really a rule about the king's power. And so Alito doesn't call it birthright citizenship. He calls it birthright subjecthood. And he said the whole American experiment rejected the British rule of birthright subjecthood. The citizenship clause in particular rejected that rule. And the key idea of the 14th Amendment follows the Civil Rights Act of 1866, sorry, 100 years earlier, which means that you have to not be subject to any foreign power. So you have to be born in the United States and not be subject to any foreign power. Of course, the implication is that travelers are subject to a foreign power and illegal immigrants are subject to a foreign power. So they would not have citizenship. And Gorsuch wrote a very brief dissent. He joined Thomas, but he wanted to write separately to emphasize that what the Fourteenth Amendment's words mean is all those born in this country to parents who have made this nation their parent permanent home are the ones entitled to citizenship under the 14th Amendment. You have to be both born in this country and born to parents who make it their parent permanent home. That is not to exclude people who are American citizens and go have a child abroad. Those kids can count too. It's just not relevant for this particular case. And he wrote separately basically to argue that even if the parents are illegally in the United States but have made a home here, their child may be a citizen because the parents intended to make a home even though it wasn't, they weren't legally in the United States. So he disagrees with uh the Thomas Alito implication that illegal immigrants aren't necessarily entitled to have children who are citizens. So it was six to three for the judgment and five to four for the critical constitutional issue. So ends the summary.
SPEAKER_00Well, we're gonna have to keep going over this because that was a little uh hard for me to keep straight. But Elon, on one hand, I feel like this was the best way to lose. Like I said earlier, we got four votes for a position that everyone said was super fringe like a year ago. On the other hand, if you go on X, we've got a lot of doomers and gloomers saying this is horrible. This is really, this is contreending, this is this is terrible. So, and I kind of get that in one sense, because the pathway to fix what has happened today seems really difficult, right? It's a constitutional amendment or a new court. Um okay, but where do you guys fall on the spectrum? I guess is my question. Like uh optimistic, pessimistic, which side?
SPEAKER_01Okay, so there are lots of things in that setup. So uh, and I I love Josh's summary, and I might reorganize the opinions uh in a in a way in a in a moment to um sort of re-emphasize uh that summary. First on the statutory question. Catherine, that would have been the best way to lose, of course, right? Is you know, if we're gonna lose, then have uh Brett Kavanaugh write a 6-3 opinion, I guess, about that. Um, where he says, look, we think that Congress, when it enacted the immigration and nationality acts in the 40s and 50s, had a broader view of birthright citizenship. Now, the way Kavanaugh gets there is actually quite clever. He says Wong Kemark got the citizenship clause wrong. Wong Kemark uh had a broad dicta and broad language, had a broad conception. And exactly when, I don't know if you have to go that far, but certainly it's true that at some point Wang Kemark became interpret, you know, came to be interpreted in like a broad sense. And certainly it was interpreted that way before Congress enacted the statutes. And so you could presume that Congress, when it enacted the statutes, which just paired the language of the amendment, right, subject to the jurisdiction, it adopted, it ratified the Supreme Court's erroneous but broad, but by then accepted interpretation in Won K Mark. Now, uh, and then you just save it for another day. You know, Congress can come back and try to change it. That would have been a statesmanlike opinion. Everybody thinks Chief Justice Roberts tries to do the statesmanlike thing, but that would have been the statesmanlike thing to do. But, you know, I don't know, it requires a certain interpretation of Juan KMARC. Um, but I think the majority agrees with him about Won K Mark in that respect. So I don't know why they didn't do that, but that would have been the cleanest way to lose. But 5.4 isn't bad. 5.4 isn't bad on the constitutional issues. So let me um sort of reprise what Joshua said. Um, but from a spectrum of the narrowest understanding of birthright citizenship to the broadest. Okay. So for our listeners, Justice Kavanaugh had the narrowest view on the constitutional question. He suggested uh that the parents uh of the childborn probably had to be citizens. Uh, this uh is a view uh a total rejection of the common law. It's this idea that the European rule of birth by descent was adopted. He doesn't explain too much because you can tell he doesn't want to explain too much. He's like, why are we talking about this? The statute should have been the way to resolve this, right? But anyway, that's the narrowest view. Justice Alito has the next narrowest view. As Josh said, Alito basically believed that the Civil Rights Act of 1866 is the key to unlocking the language. And that makes sense, right? So the Civil Rights Act of 1866 said persons born here, excluding Indians not taxed, um, and not subject to any foreign power is a citizen. And they tweaked the language in the 14th Amendment to clarify what category of Indians were actually excluded, but they said they were trying to do the same thing. And in fact, Congress reenacted the Civil Rights Act of 1866 in 1870, okay, after the 14th Amendment. So he said it's the same thing, subject to the jurisdiction in the 14th Amendment is not subject to any foreign power. So he went through and said, if if Mexico treats a child born in the United States of Mexican parents as a Mexican national, they're out, they're gone. If they have obligations of citizenship to that foreign country, they're gone. So it's it's broader than Kavanaugh, but it's still quite narrow. It's still quite narrow. You cannot have any, your parents cannot have any obligations to some foreign power. Okay, so we have citizens, parents can't be citizens. Um, Alito, for that's from Kavanaugh, Alito, parents can't be subject to any foreign power, or at least in like dual citizenship. Is that I I uh I think under uh that's interesting because maybe Alito is narrower under that view, because Kavanaugh thought that if the parents were dual citizens, interesting. Okay, so Catherine, good point, because I just thought that Kavanaugh was narrower, but Kavan has a line. Kavanaugh has a line where he said uh a footnote where he says dual citizens count, dual citizens are okay. Under uh Alito's view, um, would the parent be subject to a foreign power if they have dual citizenship? Interesting. I can't remember what he said about this, uh, if if anything. Um, but uh so it's uh certainly unclear. But Kavanaugh thinks it would be covered. Now Thomas and Gorsich, the principal dissent, said as Josh said, the domicile was the relevant criteria. Um and this um uh basically, you know, so Wanke Mark was rightly decided because his parents, Wan Kamark's parents, were lawful, permanent, domiciled residents. Uh jurisdiction attaches to domicile. They have really good stuff about this, which I we can unpack in a bit. Um, but so again, that's that's a narrower view than the majority, but but broader, I think. It doesn't follow that temporary visitors or unlawfully present aliens count. And then the broadest view, of course, was the majority, right? That anybody born, subject to a few historical exceptions, known at common law, namely ambassadors and soldiers. So that's the sort of range of opinions we have on the table. Josh, agree, disagree with that sort of characterization?
SPEAKER_02No, I think it's I think it's a a great characterization, and um uh the thing that I'm sort of struck by as I think about this is um there are two ways to look at this breakdown, right? One is that the court is just it is not being political here, right? Because it's not six-three conservative progressive with the six being on Trump's side, as some of the critics of the court suggest, that they're just carrying the flag for Trump. That instead it went six-three the other way, and people just have their own views, and this shows the court is really doing law and is not just playing politics. I was just listening to one of my favorite podcasts other than our own, the commentary podcast. And uh my friend and colleague Adam White, who's their legal commentator, was giving that view of the matter, that this gives the lie to the idea that this is a partisan court or a political court and is just carrying water for the Trump administration. Uh the other way to look at it is that the court's work here perfectly matches ideology. This issue is unique. It's not just right-left straightforwardly, like independent agencies. It's more like based versus non-based, right? This is something where traditional Republicans and conservatives are a lot more squishy about immigration and about birthright citizenship than the more Trump-based movement. And uh and what you can see is that the more um more based justices voted in that way, and that and it the split was entirely because of where they are on the ideological spectrum. So here's what I mean. If you imagine a perfect spectrum of the justices from how left they are to how right they are, uh, you could argue that this breakup shows an almost perfect ideological reflection. You have Jackson on one end, the left most, I'm I'll take it from left to right, on the in metaphorically, you know. Uh on one end, you have Justice Jackson, who writes a concurrence carving out the most um pro-immigration perspective. You have Sotomayor joining part of the concurrence, but as we'll talk about, not the more radical part of the concurrence, which is one click over. And then Kagan doesn't join that concurrence at all. She joins the majority with uh um Robert and Barrett. So we're another click or two over here. And then you have Kavanaugh towards the base direction, saying he would resolve this a little differently, um, with a, with, as, as Ilan said, a very narrow view uh that would be entirely statutory. And then one click over from that, you have Gorsuch with his descent that might make citizens out of the children of longtime illegal immigrants. And then one click over from that, you have Thomas and Alito with their descent, which is, you know, um domicile is the relevant criteria. So so one perspective is this isn't political at all and shows the court isn't political. The other perspective is this is the court being totally political. It is pure, like purely tracks their ideology. What do you think?
SPEAKER_00I agree with you, I think, Josh. I mean, I think it was predictable. Like we all kind of thought, okay, if someone, if two people are gonna peel off from the conservatives, I'll pretend that, you know, the chief justice is a conservative for a minute, but if two of them were gonna peel off from the conservatives, those are the two we all were, you know, worried about. So I think that that shows that clearly um there's some sort of political divide there.
SPEAKER_01So I'm gonna be a bit more uh moderate on this uh question. I think it's a little bit of both in the following sense. I think if the history and the text are open to competing interpretations and are ambiguous, I think you can genuinely believe you are trying to do law, but you're just susceptible to different kinds of evidence, like evidence that will coincide with your particular view. You know, you're just more likely to find persuasive for what for whatever reason. But even that I think is being unfair to the justices. I do think, Josh, the liberals, I try to keep a presumption of good faith, but we knew from the beginning, and Catherine and I talked about this on early episodes when we talked about birthright citizenship. We all know what the three liberals were going to vote on here. So in a way, it's unfair. The deck is deck. We're really fighting for six justices who there's a chance will put aside their political preferences, though again, maybe not, right, uh in some respect. And they only peeled off um two. So they're they're political in that sense, I think, generally. The chief, I think probably he has a particular milieu uh in which he you know walks and exists, and I just think it was beyond his horizon to do something other than what he had always sort of believed the conventional wisdom to be. That's my sense. That's my sense. Having said that, if it was pure politics and like how base can you go, Thomas would have joined Alito, I think. But I think Thomas and Gorsuch were gen genuinely trying to get this right, and they saw domicile as the line, as opposed to something more narrow like Kavanaugh, which was citizenship, or more narrow like Alito, which was pure civil rights act, not subject to any foreign power. And on the other side of Barrett, I doubt she had any predispositions in this respect. I think she was probably trying to figure out what really she thought the answer was. I know Barrett got a lot of heat today, um, but I really have a feeling that she she just like, look, I'm sure her questions were really good at oral argument. She was trying to find the through line. And um, you know, so at the end of the day, Thomas's Gorsuch Ascensions didn't persuade her enough, or Solicitor Sauer's uh oral argument did not persuade her enough. So I think it's a mix. I think it's a mix of both, but I think um they were really trying to get it right, and this is a hard issue. This is a hard issue, and it's always been a hard issue, and there is evidence going both ways, but I've drunk my own Kool-Aid, and Catherine, who's like shaking her head bigger, it's a hard issue if you're like a legal scholar.
SPEAKER_00It's an easy issue if you're just an American. Like, I mean, really, come on. This is a common sense, clear common sense issue, I think. And so that's where a lot of the frustration comes from, obviously, I think that you see today online. It's like, this seems so obvious from a kind of normal perspective that then when you see, you know, oh, they're really trying to get it right, you don't have to think that hard about it. How many pages does it take you to get it right? Think about it for a second. What makes you an American? It should be more than just being popped out on our magic soil, as I saw someone reference it earlier.
SPEAKER_01What did you say? What did you say earlier uh yesterday or two days ago on our podcast? You said, I'm for the interpretation that saves the country, or something like that. And you got good street cred for that on X. Okay, Joshua, go ahead.
SPEAKER_02Oh, I was just gonna say that um, you know, we're we'll talk about like having a pragmatic perspective later in the podcast and what that means for constitutional interpretation. I do think it matters. I mean, it's crazy to have a country where you can't control who becomes a citizen because people, if they can sneak in and let's say you just don't have the capacity to stop them from sneaking in, they can have children here and your population suddenly changes in size and character without any sort of legal control at all. I mean, certainly I would say this, and uh again, we'll talk about this more later, but but if there is an interpretation, a way of avoiding an interpretation of the Constitution that would have that kind of bananas consequence, we should take it, right? So um it your common sense that this shouldn't be hard. I I see why it's hard. I agree with Elon that it's that it's hard. But I think that all of us, League of Scholars and lawyers and and our judges, too, should sort of take heed of what the common sense perspective is. That this is just crazy. Like people can come, um, they're nine months pregnant, they're eight and a half months pregnant, they fly over, they stay for a month, they have their baby. Their baby's got U.S. citizenship. Maybe this is happening. We could imagine a world where this is happening with hundreds of thousands of people, but that's just a crazy way to run a country.
SPEAKER_01So what I think. Yeah, so okay. We're all in favor of the interpretation that saves the country should generally uh be favored. I will say, by the way, we're not crazy. This doesn't make a well, maybe we are, but that's sort of independent, you know, of our uh of this point. James Madison, okay. Uh again, we're kind of jumping all over the place here um because it's a spontaneously recorded episode on the same day. But James Madison in 1791 in the Bank of the United States debate, which by the way is covered in my new book, which is right behind me, The Constitution of 1789, a new uh introduction, said he set out principles of interpretation. And he said, if a provision is ambiguous, it is triable by its consequences. Right? Consequences have always featured, you know, uh in interpretation. And, you know, maybe we should just uh we're jumping a little ahead, but but but we'll so we can come back. We wanted to talk about the various opinions, but let's just jump to some of the consequences because they are somewhat uh, I think, uh interesting to our listeners. So, like Alito um had a bunch of uh arguments, um, also the Thomas and Gorsuch dissent, which, you know, uh by the way, what happened to the anti-illegal immigration canon, right? We when we were talking on our last episode about the metering thing, this incentivizes illegal immigration. Well, I guess the liberals totally forgot about that canon here today.
SPEAKER_00I'm no kidding.
SPEAKER_01And so like Alito says things like Um, this is one of the most important decisions in the history of the court. And in my judgment, the court made a mistake. As interpreted today, the 14th Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of birth tourists, women who come here solely for the purpose of giving birth to a child and then proudly returns home. Um He says the court's interpretation is not only contrary to the original meaning, it produces grotesque results, while foreigners who wish to immigrate lawfully must wait many years. A child born here to a birth tourist is automatically a citizen. Thomas and Gorsuch, in their opinion, says President Trump cannot even enforce the order against children who are raised in foreign countries, join foreign armies, and fight wars against the United States. Like, okay, maybe, maybe if you're on the other side, you'll say, oh, it's not ambiguous. You know, that's what the other side says. Oh, open and shut, open and shut. Subjects your jurisdiction is so clear. Like, give me a break. We'll talk about that in a moment. Uh so we're jumping the gun a little bit. But on the presumption that, like, honestly, it's open to competing interpretations, like, shouldn't these consequences win out? Or am I not sufficiently textualist here? I don't know.
SPEAKER_02No, I I think, I mean, for one thing, I think this that kind of perspective is sort of the quintessence of Alito. So when I think about Alito's jurisprudential approach in many other contexts, he's not a pure method guy, right? Like you look at Bostok or something, he's not just like, I have a dogmatic methodology and I'm going to apply it, whatever the consequence is. He's practical. He focuses on the consequences and then he compares the consequences to the original meaning. So, like in the Bostok case, he compares the idea that, like, well, wait a minute, this would have the consequence of essentially resolving the LGBTQ plus debate via the um uh uh words about men and women in Title IX, for example. And he says, uh he says, or in Title uh seven, and he says, that's crazy. Let's go back and double check our view of the statutory text. And in this case, he's doing something very simple. He's saying, wait a minute, it's crazy to have a country where birth tourism and illegal immigration can change the citizens or citizenry with no democratic control by any ordinary means. It's crazy that it's actually advantageous to break the law as an illegal immigrant rather than being a lawful immigrant and trying to follow the law and get like a profound advantage of it because your kids get citizenship if you break the law successfully. And he basically says, let's strive for an interpretation that avoids those perverse consequences if one is available. And then he starts to look hard for whether one is available. And he thinks that the Civil Rights Act of 1866 provides us that that window into it. So to me, this is pure Lido, and I like this way of doing constitutional law and statutory law as well. I mean, I do think that we need to not be dogmatic methodologically, but be principled methodologically while having an eye on consequences. Basically, when your view would have bad consequences, you should swerve.
SPEAKER_00It's interesting you say that about Alito because when Molly Hemingway came on the podcast, she basically made the same point. And this is an extension of that, basically his kind of like realist view of um originalism, which is also a question I had for you too, because there is, I see kind of two sides on X fighting about whether or not it is originalist to be for or against birthright citizenship. And I'm interested to see what you guys think because it's a question we've talked about before on this podcast. How do you, how do you disweigh that when I think the framers could have never imagined the situation that we're in today? So how do we what do we do with that information? I don't know. What do you guys think?
SPEAKER_02Yeah, I love this question because, but I'm gonna kick it to Elon. So let me let me uh uh because he's our reigning originalist here. I I'm I a friend of mine said, Josh, you are original ish. Not originalist, but original ish. Uh uh, I really care about original meaning, but I have uh a minimized judicial power take on it. Um but here's my question, Elon, and it's it's building off Catherine's. Uh, did the majority try to do originalism and just get the history wrong in your view? Or is the majority opinion not originalist at all? So I look at the majority opinion as a dance with three steps. First, they interpreted the common law, and they said it was birth by soil or citizenship by soil, was the common law rule, essentially. And then they argued that the 14th Amendment codified and was meant to codify, it was understood in its time to codify the common law. So the 14th Amendment gave us um soil-based citizenship. And then Wong Kim Ark, the big Supreme Court precedent from the 19th century on the meaning of the 14th Amendment, codified that understanding, um, affirmed that understanding of the 14th Amendment. Uh so, Ilan, is that originalism done wrong, or is that not originalist at all? You tell me.
SPEAKER_01I think it's originalism done wrong. And uh I think everybody is ultimately trying to understand the text and the history and the intent. And so I think they're all doing originalism. And there are two ways I think you could respond to the majority opinion. Um, one is to say that the framers rejected the common law, that the common law was not actually intended uh to govern in America in this respect. Uh, and the other is to say that they just actually get the common law wrong. Uh, and I think actually both things might be true, right? So, under either way, I think the majority is probably wrong. So let's just talk about uh the interesting thing uh about the majority opinion here is uh and the response to it, is they rely on this feudalistic conception of the common law, right? And that's something I wanted to talk about, right? Because most of the dissents, I think all of the dissents basically don't touch the common law. They basically say, look, the common law was feudalistic. It was about um soil and servitude, right? I think is a line that Alito had, which I thought was actually a brilliant line, right? And one thing that was coursing through the dissents was the American settler experience was you know intended to break away from that feudalistic view. And I'm kind of liking this, like all three opinions except Kavanaugh and just I think use the word settler, America's settlers experience, which they understood as like breaking from the allegiance of Great Britain. They rejected perpetual allegiance, they believed in choosing what government you would live under. And here I'm thinking, oh, like I kind of want more settler colonialism. Like this is some good stuff here uh that they use this word settler. But um so one possibility is that they that they just rejected the common law, okay, uh, because the common law was feudalistic. And to be clear, the framers did reject the common law. Americans did reject the common law in some respects. We rejected perpetual allegiance, okay? Uh at common law, uh, one if you were if you were born uh uh on the sovereign soil, even for a second, say, you were then under a perpetual obligation uh to that sovereign, which you could never abjure, you could never get rid of that, okay? The War of 1812 was partly fought over this because they can they the British Empire was impressing um uh British-born seamen who had naturalized in the United States. And they said, you we don't recognize your naturalization. So here's one point that I unfortunately was not talked enough about in the dissents. In the same year that the 14th Amendment was ratified, the Congress enacted the Expatriation Act of 1868. The expatriation act didn't reject the common law. So it's weird that on the one hand, they say, oh, they codified in stone, they carved in stone the common law. And then two years later in 1868, they say, no, we're not, we don't adopt the common law of perpetual allegiance, which of course they rejected at the time of the American Revolution as well. So so this the majority needs a story of if this was about the common law, well, which parts of the common law were adopted, which were rejected? And how do we know like exactly which parts of the common law they thought they were adopting? They don't have a story uh that explains that. Okay, so that's one answer. Let me give one other answer and I'll stop for now. The other key, as we knew, okay, from the Barrett questioning, an oral argument, was how do you make sense of the exceptions, right, for a common law for ambassadors and invaders, um, uh ambassadors and invaders and the Indian tribes. And this is very awkward for the majority. Um, and I'm actually surprised Barrett went along with it. Um, so uh their theory is that uh that the parents are irrelevant, but it's a fiction of extraterritoriality. It that soil is the rule, but ambassadors and their children were thought to be fictionally walking on foreign soil wherever they walk, that Indian tribes were on foreign soil, that foreign invaders were on foreign soil. Okay, and so they think it's a fiction of extraterritoriality, but this has huge problems, huge problems that the majority doesn't even start uh to scratch. So, for example, what do you do with Sir Edward Cook, Calvin's case, which they cite a bunch, where they said invading soldiers that occupy a town are upon the king's soil? What do they do with that? It's not extraterritorial. What do you do with the children born to loyal citizens in the occupied town? Cook doesn't say that their children aren't citizens, aren't subjects, right? He says that the children of the invaders aren't subjects. So that's really, really awkward. What do you do uh with um the Indian tribes, where almost everybody and almost every Supreme Court opinion to talk about them, and almost every treatise and every treaty to talk about them, this was a really good part in the Thomas and Gorsuch opinion, said they're US territory, their US soil, their US jurisdiction. So the the fi there's so much evidence against the extraterritorial view. The bigger embarrassment uh uh I think is the extraterritorial fiction comes from Emmer de Vittel's The Law of Nations, which was huly influential on the founders. But Vittel had the continental view. He said that the rule is that citizenship follows the parents. So they're like picking and choosing from Vattel. So it it's super awkward. The extraterritorial through line doesn't work. Barrett was looking for a through line. What explains these categories, and she didn't find it. You know, this is what she settled on extraterritoriality, but it just doesn't work. The through line for Gorsuch and Thomas is domicile. The through line for Alito is not subject to any foreign power. For Kavanaugh, it's citizenship, all of which could include these three historical exemptions, but would then also potentially include within the exemptions temporary visitors, unlawfully present aliens, and so forth. Uh so uh that's sort of where, you know, uh I just I just don't think they were particularly persuasive on their explanation of the common law exemptions. And that was the key to unlocking the whole case. And they came up with extraterritoriality, which I just did not find persuasive. Okay, have I convinced you all? I'm preaching to the choir a bit, I think. I have a friendly audience here.
SPEAKER_00It is interesting you say that because uh I remember when they were doing the oral arguments and you were really impressed with um what Justice Barrett was asking. I mean, and you you didn't say that about everyone, but you thought she was really getting it. Like she was trying to figure out that through line. So that's interesting how that that's how that ended up. If you listen to our episode right after that, that was one of your takeaways.
SPEAKER_01Oh, and one other thing to add to the discussion. So, exemptions aside, right, right, exemptions to what rule, right? Their formulation of the rule is also wrong, right? The the formulation of the common law rule and subject to the jurisdiction, they treat them as coterminists, right? And their understanding of the rule was if you're subject to US law, okay, I want to get this right. So this was the rule. So they said, okay, at uh the clause ends again like the common law, so that so they treat subject to the jurisdiction the same as the common law with sovereign power. A child must be subject to the jurisdiction of the United States, unlike, say, the families of foreign minister, a child born on American soil and subject to American law was made an American citizen. Well, why was there no citation to the General Crimes Act of 1817, which was cited in the Thomas or Alito descent? Uh, the General Crimes Act of 1817 created criminal jurisdiction in Indian country for certain crimes involving non-Indians and an Indian. Okay, so there they were subject to law to some degree. Um, I think Alito, or maybe it was the Thomas Descent, said there was then the Trade and Intercourse Act a few decades later, which subjected them to more jurisdiction. The Major Crimes Act of 1885 after the amendment, but no one seemed to have thought that this made the Indian tribes uh citizens or children citizens. So they were subject to some degree to US law. So how do you work that?
SPEAKER_02Yeah. I have my my question for you in the end is which decision do you agree with or which opinion? We've got six opinions from nine justices, and I assume you agree with one of the dissents, but which one? So who who do you who is closest to you in in how they resolve the case?
SPEAKER_01Um Gor Gorsuch and Thomas. So my view of it in a nutshell, putting aside the common law, which I think is largely consistent with what I'm about to say, though it's contested. And you can go back to our prior episodes, you know, where we did a deep dive, okay, and uh I talked more about this. What does subject to the jurisdiction mean if, Josh, it doesn't just mean subject to U.S. law? Well, they told us, okay, and the majority doesn't talk about all of this. Alito talks a lot about this. Thomas and Gorsuch talks about it. They told us. They said it means subject to a complete jurisdiction, a jurisdiction legislative, executive, and judicial, coextensive with the jurisdiction we exercise over citizens now. And the best part of the Gorsuch and Thomas dissent was that domicile determined jurisdiction. Okay, so they cite treatises from the law of nations that literally on the law of nations, uh, around contemporaneously with the 14th Amendment, that say domicile is what creates a jurisdiction over people. And then they go through some examples, including uh some that were in my scholarship. Um, I jotted down here five uh ways in which uh someone not domiciled is not subject to the jurisdiction of the U.S. in the relevant sense. Uh the law of personal status rights. Uh the law of the sovereign was held uh under the law of nations not to be allowed to legislate with respect to marriage, divorce, uh personal status rights of temporary visitors. Conscription. I am cited in a piece here on conscription. Could you conscript temporary visitors? The Louisiana Military Authority thought no, they even thought uh in the in the Civil War, they even thought you couldn't conscript the children born of temporary visitors, right? Taxation, taxation followed domicile. General judicial jurisdiction, a personal jurisdiction, uh applies to domiciled foreigners or citizens, something that doesn't apply to temporary visitors. And uh a really interesting uh example that they gave was domicile gives you uh the protection of the United States when you're abroad. So in these ways, the U and there's a famous Costa affair where a citizen was naturalizing, or I'm sorry, a foreigner was naturalizing, and then he was imprisoned at sea by the Austro-Hungarian Empire. And we sent the Navy to get him. We sent the Navy to get him back. Why? Because once he's domiciled, we exercise jurisdiction over him even when he's abroad. He's entitled to our protection. These are multiple ways in which domiciled residents, foreign or not, but domiciled, permanent resident in the United States, are subject to a complete and coextensive jurisdiction, coextensive with the jurisdiction the United States exercises over its own citizens. The other reason I like this uh argument is Ju Kamark isn't wrongly decided, right? And Kavanaugh and Alito bend over backwards to come up with a way how they can save Juan Kamark. But I don't know how persuasive it is. Um, but the Gorsuch and Thomas descent does not uh need to overturn Juan Kamark because his parents were lawful domiciled residents. I think domicile makes sense. Uh and I want to be clear. Domicile, this is the real answer to Barrett's question. Okay? They were asking what connects the Indian tribes and this, this, is it is it domicile? Are the Indian tribes not domiciled? This is where Sauer, Solicitor General Sour, uh, got caught up in oral argument. I don't think he answered it well. The actual through line is complete jurisdiction. Under the law of nations, is there limitations on the kind of jurisdiction that we exercise over this category of persons? And it turns out under the law of nations, we did not exercise jurisdiction over ambassadors, we did not exercise municipal jurisdiction over foreign soldiers, we did not exercise a complete jurisdiction over the Indian tribes, who are domestic dependent nations, and we did not exercise a complete jurisdiction over temporary visitors. Partial, yes, but not complete. Unlawfully present aliens, too, by the way, were thought to be in the War of 1812, we have cases not under the protection of the sovereign and therefore not amenable to sue and be sued. They didn't have access to the sovereign's courts. So if the through line is complete jurisdiction, then that explains all of the other examples, historical examples, and it explains why domicile is generally the rule. Because generally speaking, if you're domiciled, you are completely subject to U.S. jurisdiction. There, Josh, Catherine, I wrote the opinion orally, verbally, on the fly, in three paragraphs, four paragraphs. That should have been it.
SPEAKER_02You know, Ilan, it seems to me that your method, it's interesting. You're almost like a scientist who's got a bunch of data and you're trying to come up with the best explanation for the data. So you've got all this data about like Indian tribes and the common law and folks who were uh foreign visitors, and how do you make sense of this best? And sort of the theory that makes sense of it best is that jurisdiction means a kind of complete jurisdiction that includes domicile. And then you show that that also squares with good consequences and sort of the job is done. Uh so you end up getting into a lot of, you know, what I teased you about in a previous episode, or maybe I derided as arcana, uh, in you know, supporting your conclusion, but it's arcana with a point. You're trying to show that your your favored theory sops up um most of the quote unquote experimental evidence, historical evidence.
SPEAKER_00I'm not sure how I feel about like if there was a visa holder that was across the world and in a tough situation, do we send all of our resources after that person? I'm just thinking modern day.
SPEAKER_01I would say not Visa, but green card holder, right? I mean, because Visa is temporary. Um, green card holders are lawful permanent residents who now, okay. Could you be a green card holder and not declare an intent to naturalize? That may be the the Martin Costa affair, he was a permanent resident who had declared his intent to naturalize uh and become a citizen. Does that alter it? You know, so at least green call holders who have declared their intent to naturalize, of course, we should send the Navy after them. They're ours now. This is America, you know? As long as you followed our law. Okay, Catherine's Catherine has been having a view. Your parents must be citizens. That's it. Um okay. Well, let me let me uh make two points and then throw back to you guys because uh uh these are two points um uh that I'm interested in hearing your take on. Point number one, and and this is mostly for Josh, because I've talked a little bit about this with Catherine uh before, but I want to take your take. I've been accused of not being a textualist or originalist, but I as you said, like I'm I'm actually trying to collect all the data and like see what data actually fits. I'm doing what Barrett was trying to do, but but in another sense, and I think it jibes with consequences and so on. But in a deeper normative sense, I think it's crazy what the majority did in the following sense. This is an issue of profound normative generational significance. And the lawgiver, we the people, have not said anything about it recently. And in time T2, the modern day, we've not said anything about it. Okay? But because it is a hugely generationally significant, momentous issue today, it wasn't 150 years ago. And so the lawgiver, we the people at time T1 also did not apply ourselves to this problem. And so the majority is effectively letting historical accident determine the answer to this deeply, profoundly moral, norm, normatively significant question. And Hamilton in Federalist Number One said it was it seems to have been uh left to the people of this country to determine whether mankind is forever destined to be governed by accident and force or can be governed by reflection and choice. We didn't reflect on this, we didn't choose this. Isn't this letting accident and force govern us? On the other hand, the text is the text. I mean, I I've given you my interpretation of the text, but so suppose I'm wrong about that. Okay. Let's suppose the majority's right, subject to the jurisdiction, you can't escape it, subject to any amount of criminal law. Okay, we the people have still not reflected and chosen upon this, and it just strikes me as a weird way to do law. Does that mean I'm not an originalist anymore? Help me. Please just say I'm an original.
SPEAKER_02I mean, I have a different approach to these cases altogether. So I'm I'm gonna um I mean a different approach to constitutional interpretation altogether. So, you know, but I'll try to take it from your perspective. I read a book that was very um uh I guess life-changing uh when I was in uh law school by Jed Rubinfeld, a professor of constitutional law called Freedom and Time, and he said that many, many provisions of the Constitution are collective never agains to historical incidents of the past. Uh so we had the Dredge Scott experience and we passed uh the Fourteenth Amendment. Um, we had the slavery and racial segregation experience, and we passed the equal protection clause of the 14th Amendment. Um we uh broadening the horizon, we had the religious wars of the uh uh English world, and we passed the anti-establishment clause and the free exercise clause. And his argument was that you have to be faithful to those never agains because they've got a supermajoritarian warrant. Our society, our people, uh uh arrived by a super, not just a democratic, but a super democratic, a supermajoritarian consensus about that never again. And that's how you get a constitutional amendment. You get it through uh supermajoritarian action. So it's legitimated by being supermajoritarian, and it's a never again to something in the past, but it's relatively specific and it doesn't determine what he called, I think it was called non-application paradigms in the future. So um the way he, I think the way I haven't read what he says about this case, but um uh I think the way he would look at the case at hand is a little bit like Thomas, at least if he applies his theory faithfully. That is if Jed Rubinfeld applies his theory faithfully. The um uh the the citizenship clause was a collective never again to the denial of citizenship for freed slaves, which is exactly what Thomas says it is. It's a it's a never again to the denial of citizenship for freed slaves. Those are people who they don't have any other home. They've made their home in the United States, sometimes by force, right? And uh uh they're domiciled here, and they're subject to the jurisdiction uh in the fullest possible sense of American law. They are born on U.S. soil, they have a right to be U.S. citizens, right? But what I think Rubinfeld would say about um the case of like illegal immigrants coming to the U.S. to have children or birth tourism is that was a non-application paradigm. The framers of the 14th Amendment citizenship clause were not thinking of that circumstance. That was a, they were not uttering a collective never again to that circumstance. And so we, as the interpreters and recipients of the Constitution, have more um interpretive room to um um adjust to that circumstance. I find that very, very persuasive. And it squares with your full point, Elon, that this is a um you recover the original meaning, but the core of the original meaning is the never again. It's the never again to the Dred Scott circumstance. Uh, that's not equivalent to the problem of birth tourism or illegal immigration. That is a no-application paradigm, and then we can have more interpretive flexibility.
SPEAKER_00Thomas made a point too uh that I thought was really good about the um black Americans that fought in wars alongside, you know, other Americans. They'd done all of these things that when you look at the people we're talking about right now, do not equate to what they had been through. And it's just exactly as you say, Josh, not at all the same thing.
SPEAKER_01They fought in the Union Army, they're have no foreign allegiance, this is their home.
SPEAKER_02You know, exactly right. Yeah, Josh. I mean, what they were demanding was the right to be American citizens because they deserved it, because they were Americans, right? That was uh that was what was being denied to them. I I have a different approach to this. I want to run it by you. Um, and I'm, you know, I found myself as I read being very tempted by Brett Kavanaugh's approach, but ultimately more inclined to Thomas's approach. And uh here, here's the line of reasoning. So, you know, I'm original Lish, uh, but my focus is on minimizing judicial power and maximizing democratic control. I'm fixated on the problem of judicial activists of any stripe taking over questions that ought to belong in the democratic sphere. So I'm very moved by the idea that like it's like major questions doctrine, right? It's like we as a society are facing this huge question. We have a right to answer it as a democracy, and I don't want that taken away from the court by the courts if we can possibly avoid it. So as I read these um um accounts, I thought which one has the best take if your primary concern is leaving it to the people. And so um uh Kavanaugh's position is tempting because Kavanaugh says this is fundamentally statutory. The 14th amendment, as a constitutional provision, admits of additional exceptions. Um, there were exceptions for Indian tribes and for uh uh uh foreign diplomats and others for invading armies, and there's a sufficient analogous character to uh um illegal immigrants and birth tourism that we could adjust the constitution flexibly to uh accommodate additional exceptions for illegal immigrants. He said we're prevented from doing so by statute, but if essentially if Trump can bring Congress along, that's essentially a midterms question, then he can revise the statute, and that would be doing it in the name of we the people. That would give us the chance as a democracy to resolve the issue. Very, very tempting view. Um uh Thomas's position is tempting too. What he said is the 14th Amendment applies to its core concern, that core never-again, namely freed slaves. It was a never-again to the historic wrong of taking people whose lives have unfolded on U.S. soil and are born on U.S. soil, and they're, you know, they're they're tied to this country in every way, but they're denied full and equal citizenship. But that's a very narrow and targeted group, and the rest of it is just up to the democracy. So the 14th Amendment applies to people who have, you know, if if there were um uh people whose parents had lawfully immigrated, they were born on U.S. soil, and they were somehow being denied citizenship, they would be entitled to it. But not uh as to the special case of illegal immigrants and birthright tourism, um, we're not bound by the 14th Amendment at all. We can resolve it by executive action or by statutory action or whatever way the democracy today sees fit. So I lean strongly to Thomas's position. I guess it also helped that as I read his opinion, I didn't start off uh reading today, I just got the opinion today. I didn't start off reading intending to agree with him, but the opinion is astonishing. It's so powerful. I felt like every successive sentence was like, uh, this is a bit of a silly metaphor, but like a truth hammer, like bang, bang, bang, everything just hitting home so powerfully. Uh and so I think I came along with his opinion. But Elon, I have a question for you in that regard. Um Justice Jackson argued in part one of her concurrence that Thomas just has the history wrong. Thomas says the 14th Amendment's core never again was about freed slaves. And she says, no. The framers of the 14th Amendment were very concerned both with freed slaves and with the situation of Chinese immigrants and other immigrants. And they were trying to say all of them are entitled to citizenship. All of these folks who have made a home here, excuse me, not made a home, who are born on our soil, are entitled to citizenship. Who has the history right there?
SPEAKER_01Okay, let me say a few things. The first is the majority gets it totally anti-democratic in the following sense, uh, common law is historically flexible and evolutionary, right? So the common law in America can adapt, for example, by getting rid of this notion of perpetual allegiance. The common law was contested as to its applicability to temporary visitors. And the chief justice recognizes this. He cites a treatise from Joseph Story, where he says it would be a reasonable qualification to exclude temporary visitors. So there was contestation, there was evolution, we had already rejected the common law. And then in the modern era, the UK has abandoned the rule, right, of birthright citizenship. The common law in England was always abrogable. I don't know what the word is. Uh uh, you know, you could always derogate or abrogate the common law by statute. It was always subject to legislative control. Okay. And with that background in mind, are you are you telling us, are you expecting us to believe that the framers of the 14th Amendment carved in the Constitution a moment in time, right? Um, where the c a version of the common law that was contested, where that the common law had evolved in other respects, other countries uh were rejecting the common law, but somehow we carved in stone in 1868 a particular understanding, right? And that we cannot subject the common law rule to legislative limitation anymore. It just, when you would put it that way, if you don't mind my saying so, it's almost like I just can't believe, right, that they would have done that. It just seems uh crazy. On the Jackson thing, I just by the way want to say it is the one opinion I I couldn't read. I started to read it, I read every single opinion, and I uh before uh we recorded this, spent the whole day reading them carefully, and then I I couldn't I couldn't make it. I couldn't make it. I was like reading Jackson, and I'm like, this makes no sense to me. This is totally a non sequitur. Like she was claiming that, like, oh, uh Justice Thomas says it's a colorblind constitution in other cases. Um, but but apparently the citizenship clause only sees color here. You know, it sees color here. And I'm like, that's not what it's about at all. It's about, you know, like you can obviously remedy specific historical instances of discrimination, right? Including like not giving citizenship to black people. Um and so like that was weird. And then I didn't even read the second part. I started to read it, that the part that Kagan didn't even join. And so, like, it just seemed so not on point to me that like my brain was already tired from all the other stuff. I just I couldn't I couldn't make it fit. Okay, so can you actually do us the service? You do us the service and you tell us what you read.
SPEAKER_02Yes, I I read it, I found it cogent, but extremely uh disturbing, right? So I could make sense of it, but I was very troubled by it. So uh I I think it's good for our you know our listeners to hear it. Um, okay. Justice Jackson wrote a concurrence that Justice Kagan did not join, and Justice Sotomayor joined only as to the intro in part one, right? So what was in part two, Josh? So what was in part two? She got so extreme that no one would join part two, not even Sotomayor.
SPEAKER_00Okay, you have to tell us where did she say understood the assignment? What was it part one, part two? Do you guys even know what that means? Did that stand out to you?
SPEAKER_01Oh, yeah. I think it was in part one. I think that was in part one. So I do think Sotomayor joined the assignment part.
SPEAKER_00I don't need it, honestly. Like whatever.
SPEAKER_02Okay, so part one was about criticizing Thomas's view of the 14th Amendment as being about freed slaves, right? So part one was uh that's my dog in the background. Uh part one was about criticizing Thomas's view of the 14th Amendment. And she says, Thomas thinks it was the core of the citizenship um right was about freed slaves. It was not, it was also about it was about freed slaves, it was also about um uh uh the Chinese immigrants who had come in vast numbers and who the framers wanted to make sure had citizenship uh and other groups as well. It was really about groups having citizenship in virtue of being born on U.S. soil. That was like it was about sort of realizing a vision of the American dream where if you make it to our shores and you're born, you have a right to our citizenship. So that's part one. So do my or join that part. What was in this part two? Okay. Part two was about criticizing Thomas's broader view of colorblindness. Uh, and the court's broader 14th Amendment jurisprudence, think about cases like Students v. Harvard, uh SFFA, um, uh where colorblindness plays a role. She wanted to disagree with colorblindness and say the 14th Amendment is totally against a colorblind constitution. And this is where she goes so radical, or just so beyond the case at hand, that even Sotomayor dropped out. Um, she said, the Fourteenth Amendment is not colorblind, rather, its core principle is that our nation does not tolerate racial caste, i.e., the systematic subordination that many had wished to participate, perpetuate even after the Civil War. So the architects of the Second Founding did not think or pretend that race didn't matter. The 14th Amendment has race-conscious remedial purposes. And what purposes? Nothing less than the remaking of the soul of a nation beset by rank, entrenched race-based prejudice and inequity, and a societal commitment to anti-subordination principles and practices, i.e., a well-resourced effort to undo the damage done to black people by slavery. Okay, let me unpack this a little bit. Anti-subordination theory is an academic idea. The uh foundation of the theory is that government and people in positions of power and private institutions as well should take race into account all of the time in order to erase differences that put any racial group, black people or any other racial group, in a worse position than others. The assumption is that any differences that put a group in a worse position are legacies of past oppression. And it's the job of the government and of other people holding power to engage in, I mean, the term is affirmative action, right? That is, to affirmatively act, to undo that by taking race into account to favor the formerly disfavored. Uh, there's a famous article by Balkin and Siegel, who define anti-subordination as, quote, the law should reform institutions and practices that enforce the secondary social status of historically oppressed groups, unquote. So this is the core principle of the Biden administration. It's a principle that took over the academy where, you know, I spend my life and Elan, except for bits of time in government. This principle took over the academy in the 1990s, and it took over all of society in the first quarter of the 2000s. Jackson was Biden's Supreme Court pick, and Biden's judge picker, whom I know from law school, was deeply informed about and educated about and committed to the anti-subordination principle. So we are seeing here the voice of that principle in our Supreme Court. And it's sort of fitting, it's fitting historically that our two African-American justices of different eras are squaring off in this way. Thomas is for colorblindness. Jackson is for anti-subordination. They both went to the same law school. In the intervening years between them, uh uh I'm right that Katanji Brown Jackson went to Yale, right? Am I remembering that correctly? Did I misspeak here? They all went to Yale Josh. I don't know. I assume so. Okay. All right. I think I think I'm correct on that, but I probably should double check. Anyway, uh, that change is, you know, one is 55, one is 78. That's a generation and a half. And that generation and a half marks the ascendancy of a group of legal academics committed to the anti-subordination principle. And that marks the difference between Thomas's view of colorblindness in the Constitution and Jackson's. So there's an aphorism that I often hear repeated by my conservative friends that academic politics is so vicious because the stakes are so small. It is the stupidest aphorism in the history of civilization. There is nothing true about it. The stakes are massive, and you're seeing them right here. That change from a colorblindness vision of our constitution and our basic commitments of justice as a society to an anti-subordination principle where you are anything but colorblind, you're the opposite of colorblind, is because of a massive change that happened in academia and then spread to all of society.
SPEAKER_01So I have a question, and then we're running up on our, we're past actually the hour, and I know I want to ask Catherine about what the chattering classes are saying about next steps, how terrible of a decision this is, political opportunity. But I mean, in one respect, I'm like anti-racism. Yeah, I'm I'm against racism. But of course, it doesn't actually mean what it says, right? I'm I'm against subordinating any group. I believe everyone's equal in natural rights. But that's not what these terms mean, right? It's actually, again, Orwellian, like the way they use language in certain ways. So if I'm understanding you, Josh, correctly, how would it cut here for Katanji Brown Jackson? Is the proposition that the people most affected who come here illegally, the birth tourists, are marginally uh marginalized and excluded and historically oppressed groups, and therefore the constitution requires that they be brought into our political community? Like, I just don't see the connection between the theory and the law here at all. Like, what is it?
SPEAKER_00Is that what she's saying? That because America has historically oppressed some groups, those groups should automatically get citizenship.
SPEAKER_01That's my question, right? I don't know. I don't I I like again, I I read enough of the part two to know that she talked about this. I just didn't understand the connection, right? And I still don't understand the connection, right?
SPEAKER_02Let me say just first of all, just to correct the record, I just checked Katanji Brown Jackson went to Harvard Law School, not Yale Law School. Uh so I I aired there where when I said uh the contrary.
SPEAKER_00Is that better or worse?
SPEAKER_02Well, from an anti-subordination perspective, when she was going to law school, uh anti-subordination theory was ascendant in both Harvard and Yale. And uh so it's a little hard to say whether it was better or worse for that particular uh program. Um I think it uh it is a bit of a non-sequitary. The second part of her opinion is hard to connect to the specific subject of citizenship, right? She's not necessarily saying, well, we have to extend citizenship to everyone in the world no matter what, or we can't enforce borders. It's not that clearly connected. What she is saying, though, is that this 14th Amendment case of who becomes a citizen and the desire to make sure that anyone born on our soil, including illegal immigrants, gets citizenship because that's how we help the disadvantaged, that is connected to her opposition to like the court striking down affirmative action in students v. Harvard, or the court striking down various voting rights act legislation that makes separate, or her whole commitment to disparate impact. So, you know, particular constitutional issues, people's resolution of those issues depends on broader views. And so it's really important to know about the broader, call it worldview or just viewpoint, which is sitting behind Katanji Brown Jackson and other justices' view of particular, you know, constitutional cases like this one. The broader view is this anti-subordination theory, which I, for one, think is uh is totally wrong-headed and um and is now on our court because it was a theory that animated the Biden administration and that was allowed by conservatives who just kept shrugging their shoulders at the academy. It was allowed to take over the academy and then take over all of society, while conservatives just kept telling each other, oh, they'll grow up when they get into the real world. Well, guess what? That's not how it works. That is the real world. The university is the real world, and when they get out into what others are calling the real world, they change it. So in a case.
SPEAKER_00I was gonna say, my broadview. View is kind of to answer the question from earlier. I think the the court did the most undemocratic thing possible because every minute that we have this birthright citizenship in America, more and more people are born here that can dilute the votes and the influence of current Americans. And so that the number one thing now that we have to do as Americans is figure out a way to stop that from happening by any other means necessary. And there's lots of things people have proposed. Obviously, if we've talked about it, it's going to be a little bit difficult. A constitutional amendment is never going to happen, I think it's safe to say.
SPEAKER_01Yeah, I wasn't bold enough to post about this on X, but I think it's worth mentioning that the very same day they decided this case, the Supreme Court decided a campaign finance case, which we will talk about here on the Rationally Based Podcast in uh due time, overturning, reversing a 5-4 decision of the Supreme Court from 25 years ago. So it is kind of ironic or interesting anyway, poetic perhaps, that the same day they issued this controversial 5-4 decision, they overturned another 5-4 decision from uh 25 years ago. Look, I I don't know, like I started the day with like everyone thought a year and a half ago. So let's end the episode with where we began, really, your question, right, Catherine, which is like a year and a half ago, this was totally off the wall. Everyone said there's this is totally frivolous legal argument. This is 9-0. After oral argument, people are like, oh, maybe it's 8-1, maybe it's 7-2. Well, it actually turns out it was five to four. If this had been 9-0, 8-1, even 7-2, I think it's like the constitutional movement, it's it's done, right? There just isn't enough support to do it. But 5-4, that's not a settlement. That's not a constitutional settlement for all time, right? Uh five to four decisions get reversed, you know, not too infrequently, just like they did today. And so I don't know. I felt like this is uh, as you said, the best way to lose if you're gonna lose on the constitutional question. But when I look online, what people are saying, they do seem quite fatalistic about it. And is it because 20 years is we don't have 20 years to spare, you know, uh on this question? Um, I don't know. But so I'm more optimistic. I think four votes on the Supreme Court for what was thought to be off the wall a year and a half ago is a huge victory. Okay. Uh or you could you could call it a Pyrrhic victory for the majority. Okay, the 5-4 decision is a Pyrrhic victory for the majority. And so I don't know why do people not seem to be seeing it my way.
SPEAKER_02Well, let me mention one other thing that I think is cause for hope here for people who are more on the uh on the Trump side. Uh the as we talked about, as we will talk about in a coming episode, um uh Trump's the Supreme Court just decided two major immigration cases about uh temporary protected status and about uh the border, which allows the administration to more to prevent more people from coming in in the first place. So, you know, maybe the obvious thing to do if people born on our soil, even if even if birth tourists or if illegal immigrants, if their kids get citizenship by reason of the constitution, then the thing to do is tighten border controls and um uh be more vigilant about who gets tourist visas.
SPEAKER_00Yeah, I I'm somewhere in between, I'm a little bit, I'm sad, honestly. I am. I'm like, I'm a little sad about the whole thing. I think I had a little bit of faith still left in uh possibly them doing the right thing today. And I do I care so much about our country and the identity of our country and Americans that I just felt really connected to this decision. But no one decision is really um, I mean, like we've talked about, there's so many things that can still be done. And I even found out recently there's like all kinds of things. They haven't gotten rid of that weird visa program we talked about in our episode, Elon, in like Saipan and these other places. You can still go there for 14 days. You don't even need a visa. You can just show up and birth your kid. Okay, so let's make sure that's no longer legal. There's lots of things that I think we still can do. There's lots of good, like you said, Josh, immigration decisions that we can now rely on. So I am a little sad. I wish everyone agreed with me on the importance of our identity as a nation. However, uh, I'm not fatalistic. I think that there is time to turn things around. And the now the awareness of this issue is huge, which is wonderful. I think one year ago, people never thought this was possible. And now it's a completely different landscape, which is incredible.
SPEAKER_01Well, on that note, which started off somewhat sobering and ended quite optimistic, I think we should end the episode to our listeners. Please hit that like and subscribe button. So very, very important. You're gonna get our independent agency take next week, followed by transgender cases and lots of other hot button uh episodes coming down over the summer. So please show us your some support. Uh like, subscribe, give us ratings, uh, and we will see you next time.