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“The only evidence the Government and the principal dissent can muster to show that some alternative (‘primary’) conception of allegiance displaced the common law is a ‘funeral oration’ for President Lincoln.”
Justice Roberts

Roberts being snarky?

If so, he goes up a notch IMNSHO (don’t worry, he’s still in a deep hole).

“The only evidence the Government and the principal dissent can muster to show that some alternative (‘primary’) conception of allegiance displaced the common law is a ‘funeral oration’ for President Lincoln.”
Justice Roberts

I'm sure this is brilliant, but being unable to wade through the dense legalese of the argument, to what statements in which "funeral oration" is Roberts referring to?

The fuller quote with the apparent reference bolded is:

 The only evidence the Government and the principal dissent can muster to show that some alternative (“primary”) conception of allegiance displaced the common law is a “funeral oration” for President Lincoln. Brief for Petitioners 23; see post, at 22–23. Ahistorical modifiers aside, the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868.4 Sources from that period instead defined “allegiance by birth” just as the British did—as “the tie or duty” owed by one who is “born within the dominions and under the protection of a particular sovereign.” Inglis, 3 Pet., at 155 (opinion of Story, J.); see also, e.g., 1 N. Webster, An American Dictionary of the English Language (1828) (“[e]very native” owes a “natural or implied allegiance” “to the government under which he is born”).

The full decision is here:

https://www.law.cornell.edu/supremecourt/text/25-3...

Roberts being snarky?

At least he was on the right side of this one, for a change. He goes on to point out that "the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868." In the end, Alito, Thomas, Gorsuch (and Kavanaugh to an extent) hang their so-called interpretation on the meaning of 'subject to the jurisdiction thereof' and come up with a result that goes against plain meaning, and, as Roberts points out, all previous judicial writings and thinking.

This **should have been** a 9-0 opinion, but 3 1/2 members of the court found the constitution itself unconstitutional. Quite scary.

Pete

I'm sure this is brilliant, but being unable to wade through the dense legalese of the argument, to what statements in which "funeral oration" is Roberts referring to?


From my inquiry to Claude AI:


Found it — the historian was George Bancroft.

The oration: Bancroft delivered a eulogy for Lincoln, and the government’s brief (and Justice Thomas’s dissent) cited it as evidence that “primary allegiance” tied to domicile — not simple birth — was the accepted view of citizenship at the time.

The irony Roberts/CAC pointed to: the government leaned on Bancroft’s oration as their best historical evidence for a domicile-based theory, but Bancroft himself is on record elsewhere as holding the opposite view — that anyone “who first saw the light on the American soil was a natural born citizen.”  That’s the specific line the Constitutional Accountability Center’s brief flagged, and it’s part of why Roberts treated the government’s “evidence” for the domicile theory as strikingly thin — literally citing one funeral speech, from a source who arguably contradicted the point they were using it for.

it’s part of why Roberts treated the government’s “evidence” for the domicile theory as strikingly thin — literally citing one funeral speech, from a source who arguably contradicted the point they were using it for.

That’s the beauty of “originalism”. It is an incredibly flexible bit of exegetical footwork that doesn’t really look for the plain sense meaning of the Constitutional text, even though it says it does. Quite the opposite!

Rather, it searches high and low through textual evidence of roughly contemporary documents for the usage of words that also appear in the Constitution. Then it layers on an interpretive structure developed in the last few decades of the 21st century- and pronounces it “the original meaning of the Constitution.”

And voíla! You now have an infallible Holy Constitution! And it says what we say it says! Even though you unenlightened peasants think it says something completely different! Because we found the key to interpreting one particular amendment in words written decades earlier by a judge in New England presiding over witch trials!

Or something.

Juridical sleight of hand, actually.

Which is just a fancy way of describing…… horseshit.

That’s the beauty of “originalism”. It is an incredibly flexible bit of exegetical footwork that doesn’t really look for the plain sense meaning of the Constitutional text, even though it says it does. Quite the opposite!

We have "cafeteria Constitutionalism" in Shinyland, just as we have "cafeteria Christianity".

Decades ago, I saw an interview with an anti-income tax advocate. The anti-tax guy insisted the income tax was unconstitutional. The interviewer pointed out that the Constitution was amended, in accordance with the procedure in the Constitution, to allow it. The guy kept insisting the income tax was unconstitutional.

It's like the people pushing for the US to be a Christian theocracy. They reject the Communistical things Jesus said, but embrace the old testament bigotry.

Steve

It's like the people pushing for the US to be a Christian theocracy. They reject the Communistical things Jesus said, but embrace the old testament bigotry.

In my post, I actually drew a parallel between “originalists” and “biblical literalists”, but then I deleted it, because who wants to hear an old fart retired Presbyterian rant on and on about biblical hermeneutics on a political board?

As I've said before, I wouldn't mind limiting birthright citizenship as long as we followed the Constitutional steps and had a reasonably full discussion on it. I just won't support it if all we're doing is being cruel due to someone's bigotry. Let's not send someone back to Haiti at 20 if they grew up here. But I find the bigots don't care about the Constitution unless it's THEIRimaginary version of the Constitution. We're being downright cruel and inhuman to some people. Family values? Only if it's a white christian family. They don't mind busting up a black, brown, or Asian family. So, no more. I won't consider changing birthright citizenship.

Thinks. I used my own chat with Gemini to get some more details:

The specific, pivotal passage that the dissent and the government tried to use—and that Chief Justice Roberts ultimately turned back against them—reads:

"The country and the rebel government have each laid claim to the public service of the slave, and yet but one of the two can have a rightful claim to such service. That rightful claim belongs to the United States, because every one born on their soil, with the few exceptions of the children of travellers and transient residents, owes them a primary allegiance. Every one so born has been counted among those represented in Congress; every slave has ever been represented in Congress..."

The Dissent's Argument: The Trump administration and the dissenting justices seized upon the phrase "owes them a primary allegiance." They argued that Bancroft was defining citizenship as something requiring a "primary," subjective, or formal political allegiance. They claimed this proved that the Reconstruction-era framers intended to exclude the children of undocumented immigrants or temporary foreign workers from birthright citizenship, as their parents' primary allegiance lay elsewhere.

Roberts's Rejoinder: Chief Justice Roberts pointed out that the dissent completely flipped Bancroft's point upside down. Bancroft wasn't trying to restrict citizenship; he was using the traditional common law rule of the soil (jus soli) to expand it. He explicitly carved out only the classic common law exceptions (the children of foreign diplomats/travelers).

This is still a bit opaque to me, but I guess that was Robert's point.

who wants to hear an old fart retired Presbyterian rant on and on about biblical hermeneutics on a political board?

Because "slick willie" said something along the lines of "depends on what the definition if "is" is"?

I have heard the Fox Noise talking heads insist that "secularism" is a religion, so the government, by holding to a "secular" standard, is imposing religion, in violation of the establishment clause. But, the God thing in the pledge, and the Congressional Prayer Breakfast, and the Presidential declaration of a National Day of Prayer, and "In God We Trust" being the national motto, do not violate the establishment clause, because they are "traditional American values", when they are actually all artifacts of the 1950s "Godless Commies" hysteria.

Steve

As I've said before, I wouldn't mind limiting birthright citizenship as long as we followed the Constitutional steps and had a reasonably full discussion on it. I just won't support it if all we're doing is being cruel due to someone's bigotry.

Part of the reason the 14th says what it says, may be the Federal government did not have a standardized process for becoming a naturalized citizen. There was a naturalization law passed in 1790, but it was highly decentralized, with state, local, and federal, courts pretty much doing their own thing. There was not a uniform, Federal system until 1906. So, at the time of the 14th being ratified, the sense may have been there was no practicable way to separate people born here, based on the nationality of their parents. (there is a hysterical story of my grandmother being kidnapped, as a small child, and growing up with an assumed name, because people didn't have "papers" more than a century ago)

Steve

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