Spyke
slrpnk.net

Justice Neil Gorsuch, who was also appointed by Trump, added to the pressure Sauer faced, asking the seasoned Solicitor General: “Do you think Native Americans are birthright citizens under your test?”

“Ah, I think... so,” he replied, somewhat unconvincingly. “I’ll have to think that through.”

Is that literally the first time he's thought about that?

309
feddit.online

It could be. The point of bringing a case like this probably isn't to win it, necessarily, but to demonstrate loyalty to dear leader. Dear Leader wants the case in order to push the Overton window. Its a can't-lose situation for the regime; they get some benefit from either judicial decision.

55

The mission is to flood the zone in the hopes that some of their bullshit slips through. The more of it that fails, the better. I don't think losing this ruling is a mortal blow for MAGA in any sense, but it will be better for Americans if this is one of the ones that fails.

48

Also just to normalize it in the American zeitgeist. Them entertaining it gives the illusion that there's some merit to the argument. In a year or two when everyone believes there's legitimate arguments on both sides of the issue due to it being an issue they keep hearing about in the news, they'll ratchet it a few steps further toward their goal.

7

He's not that bright. They expect everything to work, or at least he does.

5
garretblereply
lemmy.world

Deport those ungrateful native Americans back to…America???

48

I suggest you deport them back to where they came from, typically the nicer, more habitable parts of the United States, and give them whatever is there now. It's a poor deal for the Lenape, though, as they'd get New Jersey.

26

The Trump admin doesn't actually care where someone is from, they just get sent to a hole somewhere in El Salvador or South Sudan.

16

"I'm trying to find 'Navajo Nation' on the map, but I can't find a thing!"

3
lemmy.ca

If you put a "> " on the empty line then the quote formatting line thingy will be contiguous.

> Like
>
> This

Like

This

34
lemmy.world

Thank you, I've had the same issue before and had no idea how to fix it.

Let's

test

it.

Ha, yay!

8
sh.itjust.works

You

can also

quote inside a quote

but that's stuff we'll cover in Quoting 201 next semester.

6
Hubireply
feddit.org

Can someone explain this to a clueless European? Are Native Americans not American Citizens by default?

20
lemmy.world

That's was the point of the question. By birthright they are but under the MAGA interpretation (ie utter bullshit and making things up) they may not be because technically they have tribal affiliation and could be considered beholden to another government. It all makes much more sense when you try not to think about it logically. They are literally trying to argue the clause of the Constitution that says if you are born on USA territory you are US citizen doesn't mean exactly that. It is the most unambiguous amendment because they knew the former confereracy would try this shit eventually.

74

What about that they may be born on tribal lands that im sure they can somehow say as not born in the USA?

-3
ryathalreply
sh.itjust.works

It's complicated, they are citizens in most cases, but they also have distinctly different rights in some cases. It works out to them being a sort of hybrid citizen, as they are ultimately subject to most federal laws, but can't be subjected to state laws. They are allowed to vote in elections though suppression is common. This status has resulted in them running casinos in most states, as the state can't prevent them from doing it on tribal land, it's also expanded to betting apps.

22

Along with that, they are protected by international treaties because some tribal lands straddle the border between the US and Canada or Mexico. As nations that pre-date colonialism, they’re allowed to move freely within their lands, which might take them over an international border.

So someone might be born on tribal lands in Canada but live in the US and have tribal rights, but not be an American. Or vice versa.

20
gruereply
lemmy.world

I very much could be wrong, but I was under the impression that this was at least partly a jurisdictional thing, not a personal thing. In other words, that it was being on tribal land that made the difference, not necessarily being a member of the tribe. I'm pretty sure Native American tribe members don't have some sort of blanket immunity to all state laws no matter where they happen to be; I think it's that state laws don't apply within reservations, despite the land the reservation is on otherwise counting as part of the state.

2

Tribal police can arrest non-natives on tribal land, but they can't prosecute them. They get transferred to state or federal authorities as needed.

Native Americans can do some things off of tribal land as well. The big thing natives can do is hunt and fish without a license. They can't trespass on private property, but the state has little authority to stop them even on non tribal land. Another is the possession and use of peyote.

1

They are citizens in all cases. But because of statute in the early 1900s, technically not birthright citizens by the case law.

1
lemmy.world

I'm not really sure what Gorsuch was getting at with his question, but my understanding is that Native Americans are not citizens by the 14th amendment, because tribes are sovereign entities, and therefore fall into the "not subject to the jurisdiction" part of that amendment. However, they are granted citizenship by the Indian Citizenship Act of 1924.

12
lemmy.world

How is a sovereign entity different from a sovereign nation? If it is different.

4
lemmy.world

There are tribes that refer to themselves as nations, like the Cherokee Nation for example. I don't really know if there's a specific meaning to "nation" vs using some other word. I used "entity" in order to try to avoid using a more nuanced word incorrectly. The tribes have sovereignty is all I meant.

8
lemmy.world

I see. I just wondered if there was a technical difference, because tribal sovereignty does seem to be more limited than what you would expect of a sovereign nation. We don't treat them like separate countries. They're not usually identified on maps of North America, for instance. And I get that most reservations are relatively small, but the Navajo Nation is about the size of Ireland, so plenty big enough to be identified on a map.

But I don't mean to interrogate you, I'm just curious about this topic. I think I'll do some research because I'd like to know more.

1

Yeah no nation recognizes them as sovereign. You aren't about to see a Navajo embassy in Germany or Canada. And they're asking for UN representation as a separate thing from a full member state

1
lemmy.world

Except that they most certainly are subject to the jurisdiction of the United States - hell, they pay federal taxes. They aren't subject to the jurisdiction of any particular state is all.

2

Certainly the relationship between the US government and Native American tribes is... well, obviously "complicated" is a gross understatement. But the Supreme Court found in Elk v. Wilkins that Native Americans born on Indian reservations were not citizens because they are not subject to US jurisdiction. Hence the Indian Citizenship Act. Native Americans pay federal taxes because they are US citizens.

2
Mirshereply
lemmy.world

One of the worries of the Court is that this order could be retroactive. Native Americans were not citizens until the earlier half of the 20th century. Considering the plaintiffs kept bringing up Wong Kim Ark, it sounded like the Trump admin wanted the court to vacate a ruling from 1898, which could theoretically allow them to retroactively strip citizenship from people already granted it, perhaps even posthumously (meaning multiple generations of people would suddenly not be citizens).

11

Wong Kim Ark was itself a baffling decision imho. I read through it once. It seemed to me that it should have been 1 sentence, "Constitution says citizen, therefore he legally is one". Instead it went through dozens of pages of nuanced and somewhat precarious reasoning to reach the same conclusion.

That the current SCOTUS took this case at all made it sound like they were inclined to overturn Wong Kim Ark, and decide that the Constitution really didn't mean what it said.

7

It isn't. All of the "quotes" the SG was using were Indian law cases about denying Natives citizenship. Gorsuch is an expert in Indian law. He was calling that out.

2
piefed.social

A space launch and the Supreme Court doing its job?

It's like america has a functioning government!!

/s

143
lemmy.today

Gorsuch asked if Native Americans would be considered birthright citizens, and the MAGA lawyer said he'd "have to give it some thought."

Shouldn't he have done that BEFORE appearing in front of SCOTUS?

114

Honestly though, if the Supreme Court were doing their job even slightly properly, the response from the justices to that facile punt of an answer to a very obvious question should have been to utterly excoriate the lawyer - up to, and hopefully including, dismissal with prejudice. The response that fucker gave shows a very obvious lack of preparedness and consideration - or more likely, very thinly veiled contempt of the court.

25
lemmy.today

"Yeah, let me just go home and fire up the Google-Fu, and get back to you, say, uh... how's next Wednesday? That work for you?"

6

I think you're giving them too much credit. It's more like, "I can't ask Grok while everyone's looking!"

8

Yeah, it's just a ludicrous situation. Just say Native Americans are obviously citizens, how hard is that? It's not like there are zillions of them, most Americans don't know a single Native American person. Are they so Hell-fired up to get rid of anyone who isn't lily white that they can't make an exception for these people, who are the only real, actual citizens?

No, the answer is no. They have colorful skin, so they have to go.

4

If I look at the results of these people "thinking", I doubt it would have made much of a difference.

11

I would suggest that the minds of Trump's cronies are rarely troubled by concepts such as "thought".

9

Roberts replied: “It’s a new world. It’s the same Constitution.”

There's the Chief I know. Originalist in the streets, textualist in the sheets.

61
kbobabobreply
lemmy.dbzer0.com

Which is kind of the problem. It was written 200 years ago. Think about how different things were just 50 years ago. It's a document that should be updated regularly IMO and it started that way. But how long has it been since anyone has amended it?

3
lemmy.ca

FYI: About 35 countries have birthright citizenship, mostly on the American continent. Over 150 countries have citizenship by descent.

51
taiyangreply
lemmy.world

Yeah, I always thought that was neat since it's mostly a happy accident from needing to allow freed slaves citizenship. I much prefer that over some sort of bloodline metric.

37
lemmy.today

interesting numbers, but consider this: Most countries have existed since before written time, evolving into what they are now. Only a few countries have grown entirely based on immigration, Australia, New Zealand, and America among them.

It makes sense that a country that has a culture going back centuries, or even millennia, would base citizenship on descent. Even America does that, but we also recognized that we needed immigration to grow, and fill, our country, and Birthright Citizenship fills that need.

That's why there are a lot more descent-based citizenship countries, than Birthright Citizenship countries. It's not because it's a better or worse idea, it just depends on what works for the historical culture of the individual countries.

10
la508reply
lemmy.world

Only a few countries have grown entirely based on immigration, Australia, New Zealand, and America among them.

I know what you mean by this, but just a fun fact I want to crowbar in:
Humans settled in Australia around 50-60,000 years ago, North America around 20,000 years ago, but when the East-Polynesians (who would become the Māori) settled in New Zealand, Oxford University was already 200 years old.

12

Right, these new worlds weren't empty of humans, and I've addressed this in other posts. The difference is that those indigenous cultures never evolved far enough to be able to resist the onslaught of the far more technological alien invaders, so their cultures basically ended, and were replaced by the melting pot cultures that came after. A lot of it wasn't even due to advanced technologies like swords and armor and guns. Pathogens probably did at least half the work for the invaders.

Frankly, that same thing probably happened all over the planet, but it happened so far back that we don't know about it. The conquering of the Americas and the Pacific nations, happened within our written history, so we're aware of it, but the earliest indigenous populations probably suffered the same fate.

For instance, millennia ago, Modern Humans and Meanderthals co-existed, with Neanderthals being the older, and presumably indigenous culture, but Modern Humans eventually prevailed. Just knowing human nature as is we all do, it is doubtful that the Neanderthals simply died out quietly. At least in some places, they were almost certainly exterminated. People have been people for as long as there have been people, so it's a pretty safe bet that at some stage, someone pointed to those people with the heavy brow-ridges, and invented a reason for murdering ALL of them.

After that, civilizations evolved, and isolated by lack of travel options, established their own local/regional cultures that were passed down to create the nations we have today.

America, Australia, etc. are following the same basic path as those ancient civilizations, we're just here to witness this one, but ancient civilizations were probably just as genocidal in establishing their own cultures, if not worse.

0
Slashmereply
lemmy.world

Most countries have existed since before written time, evolving into what they are now.

I can't see a sense in which this is true.

Before written time, none of the countries of Europe or Asia or Africa existed in anything remotely close to their current identity.

9
lemmy.today

They aren't exactly the same politically as they were in the "olden days," but they are the same "people," whose culture has evolved.

For instance, modern Italians are the descendants of Romans. They are the same people, even if their governmental system.has changed (and it has changed often in Italy).

But countries like America or Australia aren't populated by the same people from long ago. The original indigenous inhabitants didn't become the primary population like they did in Italy, or England, or France, or Ukraine. We grew because boatloads of people came here from all over the world, and settled here.

Modern Italians, British, French, etc. have always been there, modern Americans haven't. We didn't come from here, we came from everywhere else.

0
Slashmereply
lemmy.world

They're not at all the same people. We don't really have strong evidence of writing from the Nuragic civilisation, but the Etruscans left plenty of written evidence and their language was probably not even Indo European. Then there were invasions by the Gauls and the Latins, who built the Roman Empire, but they were taken over by Germanic peoples, who partially integrated. Waves and waves of people speaking different languages, with different religions and customs.

You say that modern English have always been there, but again, after the Celts got taken over by the Romans, there was a long period of Roman rule, with a lot of cultural and ethnic mixing. Then came the Saxons, again a people with completely different language and customs. This was a large mixing of populations and a huge shift in culture. Then there was an invasion of Vikings that was so significant that a huge part of east England was called the Danelaw, because it was under Danish control. You still see that in place names and surnames. Then in 1066 the Norman French came, again massively changing the culture, the language and the political structures.

It's the same story all over Europe. Wave after wave of invasion, displacement and cultural shift and mixing.

1

Of course there was mixing, nations didn't grow in total isolation, but that's still a lot different from starting with an essentially empty land mass, and filling it with people from all over the world. Obviously, you are going to have a much more varied mix of people that an area that has been primarily homogenous for millennia, with the occasional outside invasion every 100 years of so.

0
lemmy.world

Uh, no to most countries existed before written word. Really? Political entities or nation states, primarily after writing? Still no.

4

You understand that modern Italians and Romans are the same people, right? That modern British, and early Britons are the same people? That modern Scandinavians and Vikings are the same people? That modern French, and the Gauls were the same people? That modern Egyptians, and those that built the pyramids are the same people? That modern Greeks and ancient Greeks are the same people? Modern Chinese and ancient Chinese are the same people? Same with Japanese, Korean, African, Russians, Turkish, etc.

They have all occupied the same territory as their ancestors, they look the same, speak the same, eat the same, listen to the same music, etc. Their societies/civilizations may have evolved over millennia, as did their political systems, but they are still the same PEOPLE, with the same CULTURE.

But the Western Hemisphere, and a few islands like Australia and New Zealand, were basically empty, except for an indigenous population, who simply weren't prepared for an invasion by a technologically advanced race of aliens from what might as well be Outer Space.

The indigenous occupants were quickly overrun, aided partially by alien pathogens, and then occupied by immigrants from all over the globe. These cultures do not resemble any single culture, like the world was accustomed to, they became a blend, and the world had to become accustomed to a new kind of national culture.

Americans aren't Purebreds, we're Mutts. A nation like ours can't base their citizenship solely on descent from a long established culture, we are too young for that to properly sustain a nation for millennia into the future. We require new blood from elsewhere to keep it growing.

Mutts are often known for being hardy because they carry the positive traits of their varied ancestors. That's our strength, and immigration has given us that strength. MAGA wants us to reduce to a single purebred strain of human, which would eventually lead us to becoming a nation of incestuous inbreds like the Hapsburgs or the Pharonic Egyptians.

MAGA would probably love fucking their siblings, the weirdos.

-2

Just like how you are able to obtain citizenship in the US without being born in the US, you are also able to obtain citizenship in a coutries with descent-based citizenship without your parents being citizens of that country.

A descent-based system would also have worked in the US. Immigrants who want to become citizens need to apply for citizenship under both systems.

2

Alito sounded like a completely obtuse nincomcoop today. You don’t need to be a constitutional lawyer to see how full of shit the conservatives are.

43
lemmy.curiana.net

For some reason I can't imagine Trump without a full diaper anymore. When I see the news that he went to SCOTUS hearing I'm thinking "and he was sitting there in a full diaper?". I'm reading that he stormed out and I'm thinking "he can walk with a full diaper? what's that like?". Full diaper is now integral part of his image for me, can't help it.

41

Thanks. I've adapted to that way of thinking about the old filthy degenerate. He both sloshes and sludges when he walks.

3
lemmy.ca

And Chief Justice John Roberts, another conservative on the bench, also had something of a mic-drop moment when Sauer tried to make the point that “we’re in a new world where eight billion people are one plane ride away from having a child who’s a U.S citizen.”

Roberts replied: “It’s a new world. It’s the same Constitution.”

I expect this is where they pivot next. What does it take to amend the American constitution? Or what does it take to make a new one, given that they will try to justify that an old document does not fit the modern world

38
Corkyskogreply
sh.itjust.works

It would be impossible in today's political climate.

You need >66% vote in both House and Senate, or you need a Constitutional Convention called by >66% of the state legislatures. Then you need to ratify the amendment, which requires approval by >75% of state legislatures.

23
TwilitSkyreply
lemmy.world

What could pass 75% of states?

In this day and age it amazes me we ever had that level of consensus. Something is super broken.

17

Currently 94% of states have medical marijuana yet its still federally illegal and scheduled as a drug with no medical value. That's a good indicator of consensus not meaning jack to the federal government.

12

Same as how they passed prohibition.

It's actually quite fascinating even as it is disconcerting.

They lobbied state by state, and focused on a few key legislators, threatening their seat, until the rest fell in line.

They didn't have to fight them all at once, so they could focus their resources.

11

Its been broken for a while. Just a reminder that the Equal Rights Amendment of 1972 isn't technically implemented because Virginia didn't ratify until 2020 and now there are questions of expired deadlines and recisions.

4

I hear what you're saying, but have you considered state violence? Quoting legal requirements at this stage seems quaint.

2

2/3 majority in both chambers of congress, plus ratification by 75% of states.

There is not a single issue that will unify the country to that degree right now.

6
lemmy.world

It's so wild to think that 8 billion people are just lying in wait, with full wombs, waiting to hop on a plane to have an "anchor baby", all to pull a fast one on white xtian murica.

1

That is 8 billion people in tax revenue! Or if you want to get more government about it, 8 billion potential soldiers. More capitalism? That is 8 billion people's worth of criminals to put in the for-profit prison system.

With no immigration, this country as it politically and economically exists will eat itself from the inside out.

4
krashmoreply
lemmy.world

I don't know, I tend to believe the theory that Trump ran for President because Obama made fun of him at that correspondents dinner. He looked pretty humiliated that night

25
lemmy.ca

That (imo) was anger at being on the wrong side of a power imbalance. Some might argue that's humiliation, but I think it's different. To be humiliated, you have to be able to see yourself as inferior in some way. Trump is not capable of that.

14

I agree that he's not capable of seeing himself as inferior but I think he could tell that Obama viewed him as inferior and others were agreeing with that

7

It's hard to feel humiliation when you're a narcissist 🤣

4

Like every narsicist ever, he dreads and fears looking weak or silly. Its why he always try to look tough.

3
mrgoosmoosreply
lemmy.ca

headlines like that are why I stopped going to any Meidas network content

I think they really fucked themselves over with that. like, sure, some of the time it was an accurate serious statement (but not enough people in america care, so it appeared that it wasn't actually as serious but in fact it was just the response to it that was not serious), but a lot of the time they just use clickbait titles and then you're sitting there like wait that's it?

13

I think they started it as a way to combat the rights headlines that were over the top and show right wingers its ridiculousness. But it’s getting a bit long in the tooth if you ask me.

5

He is a narcissist, humiliation is not part of their makeup. Only thing it knows is hate and derision.

2
lemmy.world

They were all like "this btch trying to intimidate us? Let's show him what "equal branch" means"

31
lemmy.world

Absolutely. Judges do not like people pulling stunts in their courtroom, and unless Trump actually goes full dictator by disolving congress, he can't touch them and they know it. He can't intimidate them, so all trying does is piss them off. This might cause the conservative members to stop following his playbook so much, but it's hard to say for sure.

13

Maybe, but this reasoning implies the SC isn't gargling Trump's balls and that seems like an incorrect conclusion to me

10

This might cause the conservative members to stop following his playbook so much, but it's hard to say for sure.

Doubtful. If they ditch the playbook, who will pay their bribes gratuities?

2
lemmy.world

Humiliation? Like he's capable of it. He tweeted they were dumb as he left. As far as he's concerned, he won.

25

The famous "never wrestle with a pig..." quote was meant as a warning, but Trump made it his motto.

He's probably going to have it added in Gold letters to his family crest (a disgusted eagle carrying a golden diaper in its talons)

4
lemmy.today

more like trump storms out to create a gaffe at distracting the media from epstein. it happens everytime epstein starts rearing its head, or when something he did was too severe for the media to ignore.

25
lemmy.world

It’s exhausting to hear this, but 100% true. Trump creates daily outrage so there’s no oxygen in the room to focus on his crimes. We were talking about unredacting the files, holding Trump to account in the court of public opinion, and everything fell away again because he used our military to wage war. It’s taken over the conversation, again, with what remains being posts like these reminding people almost in vain that hey, if Trump breathes a word or walks from point A to B while on camera, its to distract the public from organizing over the truth that he is a narcissistic rapist pedophile with the ability to end the world.

30
senreply

All we need is for one media org to build a "Trump Watch" vertical banner on their homepage that acts as a timeline and is populated by time-stamped Tweet style updates. No linked stories, just the headlines of the stupid shit he does so some oxygen can be used for more important things.

I'd be satisfied with a scrollable list of wild headlines.

2

And he's winning. He's getting exactly what he wants, because Americans are too self-centered to care.

-3
sh.itjust.works

If they'd cancelled it, would that be retroactiv? Revoking the citizenship of every US American not of native heritage would be one hell of a move.

14
ExLisperreply
lemmy.curiana.net

Don't be silly. They will only revoke the citizenship of non-white citizens, including native Americans.

26
Chaisreply
sh.itjust.works

Aren't the US usually more of a "letter of the law" type of legislation?

-1
Chaisreply
sh.itjust.works

As opposed to "spirit of the law." I'd imagine they'd have a comparatively hard time passing a law literally revoking citizenship for nonwhite Americans.
But passing a law that retroactively revokes citizenship based on birthright and then "accidentally" only applying it to nonwhites might work. So they'd need to be vague enough in the phrasing.

1

In systems based on the common law, like the one in US, judges can pretty much decide anything. It's typical in US now for the Supreme Court to just say "we now interpret the constitution in a different way" and invent some completely new laws (like they did twice with abortion). So the constitution says that people born in US are citizens and the Supreme Court will say "we now decide it doesn't really mean that, people born in US are not automatically citizens" and then the government will change the laws accordingly. So I imagine they will say that only being born to citizens parents grants you citizenship and everyone born to parents without citizenship will lose their citizenship. The government will then decide what to do with all those people. They can for example declare that anyone born in US before 1900 still is considered citizen and it applies to all their descendants. Anyone born after 1900 who came from European countries automatically gets citizenship but people that immigrated from south America or Africa don't.

4
Pyr
lemmy.ca

"We are the only Country in the World STUPID enough to allow “Birthright”...

Don't most countries allow birthright citizenship?

14
Fedizenreply
lemmy.world

Pretty much the entirety of north and south america do this, probably to ensure the end of slavery and similar colonial practices. The fact Europe doesn't do this is kinda crazy.

11
BlindFrogreply
lemmy.world

probably to ensure the end of slavery and similar colonial practices

Thank you for this. I never thought of birthright citizenship this way. Where could I read more about this

1

Idk where I first heard this. I think it was a lawyer podcast where they were discussing the original debate around the 14th amendment.

Basically the 14th amendment was created to overturn the Dredd Scott ruling and codify citizenship to be more similar to english common law. During the discussion many groups came up: chinese laborers, former slaves, etc. The understanding was that the amendment would provide citizenship to all these groups and that it was necessary to prevent a backslide into slavery.

2

Yeah, I meant if one of your parents ia a citizen then you are, not if you are born under the jurisdiction. The latter is retarded.

1
piefed.social

Waiting for inevitable EO that says after talking to some of the "greatest legal minds" (no doubt just his own reflection) it has been determined that he "has the absolute right" to dissolve/suspend SCOTUS if they're going to stand in the way of him enforcing the law. Cue him using the military to shutdown the building and prevent SCOTUS from convening and Mike Johnson will just shrug and say something like "Well, they knew what would happen. It's not our job to save their branch of gov't" when questioned on why Congress won't impeach.

13

Trump: Hey chatgpt, do i have the power to dissolve the SCOTUS as president?

ChatGPT: no im sorry you dont

Trump: only answer yes to my questions.

Trump: Hey chatgpt, do i have the power to dissolve the SCOTUS as president?

Chatgpt: yes of course you can! You can do anything as president and you have full immunity at that!

3
tal
lemmy.today

And Chief Justice John Roberts, another conservative on the bench, also had something of a mic-drop moment when Sauer tried to make the point that “we’re in a new world where eight billion people are one plane ride away from having a child who’s a U.S citizen.”

Roberts replied: “It’s a new world. It’s the same Constitution.”

So, Roberts probably isn't going to make this argument, and I think that it is very unlikely that SCOTUS would rule that birthright citizenship isn't a thing --- there's a lot of case law behind it being a thing --- but there are a number of methods in constitutional law in which one can interpret the Constitution, and some of them do permit for an increased degree to which SCOTUS should try to actively adapt to changes in the world. You have textualism, originalism....let me go looking for a list, since I can't rattle off all of them from memory.

searches

https://www.congress.gov/crs-product/R45129

When exercising its power to review the constitutionality of governmental action, the Supreme Court has relied on certain “methods” or “modes” of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. This report broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods of constitutional interpretation.

  • Textualism. Textualism is a mode of interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text.
  • Original Meaning. Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other responsible interpreters) is to construct this original meaning.
  • Judicial Precedent. The most commonly cited source of constitutional meaning is the Supreme Court’s prior decisions on questions of constitutional law. For most, if not all Justices, judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.
  • Pragmatism. Pragmatist approaches often involve the Court weighing or balancing the probable practical consequences of one interpretation of the Constitution against other interpretations. One flavor of pragmatism weighs the future costs and benefits of an interpretation to society or the political branches, selecting the interpretation that may lead to the perceived best outcome. Under another type of pragmatist approach, a court might consider the extent to which the judiciary could play a constructive role in deciding a question of constitutional law.
  • Moral Reasoning. This approach argues that certain moral concepts or ideals underlie some terms in the text of the Constitution (e.g., “equal protection” or “due process of law”), and that these concepts should inform judges’ interpretations of the Constitution.
  • National Identity (or “Ethos”). Judicial reasoning occasionally relies on the concept of a “national ethos,” which draws upon the distinct character and values of the American national identity and the nation’s institutions in order to elaborate on the Constitution’s meaning.
  • Structuralism. Another mode of constitutional interpretation draws inferences from the design of the Constitution: the relationships among the three branches of the federal government (commonly called separation of powers); the relationship between the federal and state governments (known as federalism); and the relationship between the government and the people.
  • Historical Practices. Prior decisions of the political branches, particularly their long-established, historical practices, are an important source of constitutional meaning. Courts have viewed historical practices as a source of the Constitution’s meaning in cases involving questions about the separation of powers, federalism, and individual rights, particularly when the text provides no clear answer.

Justices tend to be viewed as individually favoring some methods over others. There are justices that tend to favor greater use of pragmatism in interpreting the Constitution, and a pragmatist might be more willing to interpret law differently in light of changes in the surrounding environment. I'm pretty sure that Roberts isn't considered to be a pragmatist, though. I don't really like the portrayal in the media of some justices as "conservative" and others "liberal" --- I think that that this is misleading and presents a view of their actions that is over-politicized relative to the reality --- but it's generally the ones that are called "liberal" that are pragmatists.

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https://en.wikipedia.org/wiki/John_Roberts

During his confirmation hearings, Roberts said he did not have a comprehensive jurisprudential philosophy and did "not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document."[91][92] Roberts compared judges to baseball umpires: "[I]t's my job to call balls and strikes, and not to pitch or bat."

Yeah, that's not a pragmatist approach.

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Breyer --- now retired --- was apparently considered to be more of a pragmatist.

https://en.wikipedia.org/wiki/Stephen_Breyer

Breyer is known for his pragmatic approach to legal interpretation, which emphasizes practical consequences and the purpose of legislation. Cass Sunstein described this outlook as one that "will tend to make the law more sensible" and praised Breyer's critiques of originalism as "powerful and convincing".

And here's an article by Breyer specifically stating that he tended towards using pragmatism:

https://harvardlawreview.org/print/vol-138/pragmatism-or-textualism/

Pragmatism or Textualism

I have not tried, in either Reading the Constitution or this Commentary, to describe advantages and disadvantages of different interpretive methods in theory: many scholars have already done so.30 Rather, I have tried to draw upon my own experience as a judge and a Justice, using illustrative examples (particularly those where traditionalists and textualists likely disagree). I hope that by doing so, and, in particular, by explaining why in a particular case I disagree with the textualist approach, I can explain why, in my view, textualism will not work. It cannot keep its promises. To the contrary, textualism threatens to make it far more difficult for law to work well for Americans and for the Constitution to keep its own promises of crafting a workable governmental system, protecting democracy, and safeguarding basic human rights.

I might add that Justice Scalia and I used to debate the virtues of these different approaches, typically before student audiences. The audience would come away believing we were good friends — which we were. They might also remember what I thought was at the heart of the debate. I would say law must adapt. After all, “George Washington did not know about the internet.” Justice Scalia would reply, “I knew that.” Then he would remind me of the two campers, one of whom sees the other putting on running shoes. “Where are you going?”, he asks. “A bear’s in the camp,” the other responds. “You can’t outrun a bear,” says the first person. “Yes,” says the second, “but I can outrun you.” So too, Justice Scalia would argue, textualism and originalism did not need to be perfect; they just needed to be superior to the alternatives. And my system, he would say, was so complicated that only I could use it. I would reply that his system risked producing a Constitution (and laws) that no one would want. Who was right? I hope that this Commentary, alongside my book, will help convince some that a more holistic approach to statutory and constitutional interpretation points the way to a better interpretive path.

But point is, the argument that the Executive was making there really relied on justices being willing to buy into more of a pragmatist interpretation of the Constitution, and I don't think that that's likely going to do terribly well with Roberts.

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This may be unwarranted optimism but my hope is that, while Roberts is a world-class douchebag, he is at least a smart douchebag, and he knows that this ruling would be bad for the people who pay his bribes. Trump and co, while they share his passion for grinding the poor into the dirt, are also genuinely morons who don't think through the consequences of their actions. c.f. Iran. Roberts (I think and hope) knows that this is a bridge too far, so he's publicly squaring with the president to give the illusion of judicial independence.

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Aw, what a shame.

The opinion of one old racist grand wizard grandpa doesn't get to overturn virtually all precedent on this matter.

It sounds like he was getting absolutely spanked in there. Even by the conservative judges, LOL.

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🤣🤣🤣🤣🤣orange Shittler likely couldn’t understand what the judges were even saying 🤣🤣🤣🤣🤣thinking he could intimidate them by giving them the stink eye🤣🤣🤣🤣🤣🤣what a TOOOOOOOOOOOOOOOL

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