And of course, the two biggest of all: the overturning of Swift v. Tyson in the Erie Railroad v. Tompkins case, and the overturning of Roe v. Wade in Dobbs.
Of course, precedents can be overturned and new ones established.
But the precedents on this issue are too numerous and too consistent on the same point to where there’s any realistic chance that they’ll ever be overturned by the Court.
It’ll take a Constitutional amendment.
I don’t know it’s getting pretty close (5-4) to overturning, even at the behest of previous precedents despite their numerosity and consistency, although their validity can be questioned. All it takes is one judge flipping for this century old judgment to be null and void.
The chance of overturning is higher than feigned, and that doesn’t even include state nullification and filibuster removal (yes I know it takes 60 votes in the senate to pass an amendment but there’s other ways of usurping non-codified precedents).
@uhlaw97 On those decisions that were overturned that you mentioned, were they relatted to something as plain language as the 14th amendment? Or were they more on interpretations of different sections?
You could also argue that if this court wouldn’t do it, it’s highly unlikely to ever happen.
True true, but who knows where the court is going in the next decade. There’s been dramatic shifts over the past 30 years
Indeed, but the pendulum generally swings back.
But yeah, who knows.
It takes more than 60 votes in the Senate to amend the constitution. It takes 66 votes, and 2/3 of the House, plus approval of 3/4 of the states.
HIGHLY…UNlikely.
The chances of such an amendment passing are right up there with the chances of the Electoral College ever being amended out. Meaning…little to none.
This is the most conservative court during my half century plus long lifetime, so if redefining what birthright citizenship means didn’t happen now…don’t put money on it happening in the futur
There are MANY USSC cases in which the USSC has extended birthright citizenship to more than merely to freed slaves.
To hold otherwise in the face of SOOOOO MANY precedents to that effect would be ABSURD.
Actually, they both dealt with issues that aren’t mentioned specifically in the text of the Constitution.
The first set decided the following issue: which common law should apply in federal court in civil lawsuits brought under the federal court’s “diversity” jurisdiction? That is something which is NOT specified in the text of the Constitution.
The second set dealt, of course, with the question of whether or not abortion is a Constitutional right, which, of course, is also something not specified in the text of the Constitution.
BY CONTRAST…THIS question is specifically addressed in the text of the Constitution.
The language isn’t clear if its being debated upon centuries later, especially language surrounding “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.”
Why do we need to add “subject to jurisdiction thereof” if born and naturalized were already stated? At the time this excluded native tribes, invading armies, foreign diplomats, but was grey on whether children of ordinary migrants (legal or not) would be citizens.
Even going off Jacob M. Howards quotes, the chief sponsor of the bill, there’s still muddy around whether kids born to non-US citizens, on U.S soil, can be considered U.S. citizens.
“”[The 14th Amendment’s citizenship clause] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
Certain interpretations can exclude and include foreigners. Senators Lyman Trumbull, Reverdy Johnson argued against inclusion while Edgar Cowan, John Conness argued for inclusion based off their understanding of the citizenship clause.
There were no solid precedence’s set until Wong Kim Ark, but even after this, it shouldn’t include illegal migrants and foreigners on visa.
Answer: because some people born in the USA aren’t “subject to the jurisdiction thereof.”
Specifically: a) children of foreign diplomats born in the USA, and b) children of foreign occupying/invading armies born in the USA.
By contrast, illegal immigrants and their children, and birthright tourists and their children ARE… BOTH subject to the jurisdiction thereof (i.e., of the United States and its laws).
That’s why that Constitutional provision granting birthright citizenship applies to both, AND why it is needed.
And that’s also why THOSE two groups I mentioned above (children of diplomats and children of occupying/invading militaries)…are literally the ONLY TWO recognized “exceptions” to Constitutional birthright citizenship.
Thank you, that was what I thought but wasn’t sure.
Actually, I would disagree in this case. Just even in this thread, people aren’t arguing the language. They are arguing intent. In fact the arguments on behalf of DJT were heavily weighted towards intent.
Except that it wasn’t grey on that subject, it was actually discussed at the time with some in Congress agreeing that was what it meant and they were ok with it. See my earlier posts, that discuss the changes to the early drafts of the amendment away from “citizens” to use the word “persons”. Also, Senator Howard’s intriduction of the final version to the Senate he expcicitely noted it was a blanket rule with only narrow traditional exceptions for children of foreign diplomats or invading armies. Even with that introduction, the amendment passed.
But even if Howard was not clear, as you suggest, Senator Conness was absolutely clear that the intent was for the amendment to apply to chuldren of immigrants.
Yet the plain language of the amendment as approved did not include such a distinction. They could have very well written it to specifically exclude children of foreigners.
Yet people of Indian tribes were excluded, neither being children of diplomats or invading armies
That’s because they were considered citizens of separate Indian nations.
In certain respects they still are, though they have all been granted US citizenship by statute.
You see where i’m going? An Indian born to citizens of said tribe on US soil would be excluded from citizenship. Parents who are citizens of a foreign nation.
Would have been, you mean.
Good thing it was held up by SCOTUS
or the USMNT would have to forfeit all games and be out of the World Cup.
That’s why that exception was closed by statute. By that point, there was little dispute that Native Americans were subject to the jurisdiction of US laws in virtually all respects. For a long time that was not the case.
Congress could do the same for the other two exceptions, but for good reason, has elected not to.
And why not?
Because diplomats have diplomatic immunity, and as such, aren’t subject to US jurisdiction, and neither are invading military personnel.
Again, only TWO exceptions are recognized for that very reason.
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