I've laughed ever since United States v. Jones (2012), the GPS tracker-stuck-to-vehicle case.

The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. This prompted the famous hypothetical of an officer secretly squeezing into the trunk of a horse-drawn carriage to track someone's movements over several days.

The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?

Radio, TV, cameras

That said, breech loaders were used by the British during the Revolutionary War (the Ferguson Rifle) and multiple shots from a single barrel using multiple "touch holes" was well known.

And then there's Puckle's gun.

Fully automatic guns maybe not, but the founding fathers definitely knew about repeating firearms, they had more than a few offers to purchase them, both for military uses and as private citizens. They just denied to because it was expensive to purchase and maintain.

Humans are rationalizing animals, not rational ones.

Machine guns are illegal in the US. SCOTUS has never ruled there is an individual right to own machine guns.

How doesn’t include machine guns?

This is true, but then one should be able to assume that the justice wouldn't neatly fall along partisan lines whenever they choose to be an originalist or not. When it always toggles on and off ever so conveniently along partisan boundaries, that's when it looks dubious.

Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?

Yeah... It all falls apart under the bare minimum observation that woman and non-white people were property. And that even white men who did not own land were treated as second-class citizens.

We have no concept of free speech, due process, or individual rights in Asia where I’m from. Where I’m from, if the community doesn’t like you, we can just drive you out of the community. Am I “disenfranchised” by having to live in a liberal democracy created by white men?

You don't have to be a constitutional scholar to see it's bullshit.

Just the fact that originalism implies an ability to perfectly know what the dead from 1788 meant with each word in every situation. It's a ludicrous proposition.

"absent a constitutional amendment"

I agree. I wouldn't be the least bit surprised if the US balkanizes. That might not be a bad thing if it can happen peacefully.

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What does this even mean? The decision came out the “right” way today.

> hey are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period.

Why the scaremongering? What are "they" waiting for?

It's worse than that. The text of the statute is literally the same as the text of the 14th amendment's birthright clause. So he's basically saying the text means one thing when it's a statute, but the exact same words might allow exceptions in the context of the Constitution.

In general countries have jurisdiction over anyone inside their territory unless there is some exception.

As far as I know the only exceptions at the time the 14th was drafted and ratified would have been people with diplomatic immunity or similar due to treaties and international agreements.

Immediate families of diplomats living with the diplomat are included in diplomatic immunity, hence their children born here would not become citizens.

Those situations you mention where US court do have jurisdiction over diplomats are: private real estate disputes; wills and inheritance; business activity of diplomats that are running a side business or practicing a profession in the US that is not part of their official duties; lawsuits initiated by the diplomat.

Even if becoming subject to such limited jurisdiction counted as being "subject to the jurisdiction" for purposes of the 14th Amendment it would not matter because newborns are not involved in those things, and so newborn children of diplomats have their full diplomatic immunity.

The text that SCOTUS put out today discusses this in great detail. You might agree or disagree with their reasoning, but they consider what "obvious" means in light of the text and the writings of the time plus references to old commentary like Blackstones. Maybe better to read that and assume in good faith that this is what the commenter is referring to?

> […] children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?

AIUI, IANAL, US courts and law do not have jurisdiction over diplomats. When a diplomat the 'hosting' government agrees to immunity, so cannot be prosecuted. E.g.:

> The collision caused diplomatic tension between British and US officials. [Anne] Sacoolas fled Britain soon after the incident, and claimed diplomatic immunity with US support.

* https://en.wikipedia.org/wiki/Death_of_Harry_Dunn

The 'source' country has to agree to remove the diplomatic coverage.

Well we know “subject to the jurisdiction” is not equivalent to “is a citizen”, otherwise they would’ve used that term instead of being cute with it and leaving excess room for interpretation. If congress wants to define what “subject to jurisdiction” means, then they have every opportunity to.

Have you read the congressional debate around the that amendment to the Amendment? If you have and it's not clear, I'm not sure what else can be said.

Given that the most universally agreed to counter examples are diplomats and invading armies, I'd say a reasonable non-lawyer interpretation is that "subject to the jurisdiction" excludes people who are in some way under the authority or control of a foreign government even while in the US. They may be physically here, but they're presence is on behalf of a foreign government that has jurisdiction over them even while in the US. US law might apply to them in varying ways depending on their status, but there is still a distinction that does not exist for other visitors. Maybe less about the question of whether US law applies at all and more about if US law applies equally beyond the 14th amendment and if any other government can lay claim to authority.

You could potentially apply this to temporary tourists as well, but the linkage between them and the government of the country they are coming from is much weaker since their presence typically doesn't have them acting on behalf of the foreign government or with any special legal distinction.

I'd also pose the same question back to you, what's a reasonable definition of "subject to the jurisdiction" that excludes everyone except US citizens, as many conservatives want, or at least only extends to legal permanent residents?

That's partial jurisdiction at best.

I guess the obvious answer would be the same as the last decades, while anything else would be called "surprising."

Which is is fine, you can change the constitution, but thats for parliament to do.

Because when you are in a country, you are subject to it’s jurisdiction. Can you be arrested for petty crimes? Yes? Then you’re under that country’s jurisdiction.

Here is the full text of the relevant section of the 14th:

> 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Please point to the section where it says "this only applies if the parents are citizens".

The reading which the court affirmed is incredibly obvious. Republicans and xenophobes like to pretend it isn't, but the text is very simple.

That's not a good characterization. All of he lower courts basically laughed it out of the court room. The fact that the Supreme Court even took the case on is pretty questionable.

The Trump administration found not one judge or panel of judges who agreed with their opinion ... until SCOTUS, where it found three.

Including Clarence, whose "hilarious" dissent says that undocumented persons are not subject to the jurisdiction of the United States, which might be of note to ICE.

It is totally obvious: every single court told the Trump administration to go f* themselves, and Trump appealed and appealed again until it reached the Supreme Court.

> Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court

Every single court on the way to SCOTUS correctly said "the fuck?!"

> Federal judges in each of the district courts issued preliminary injunctions to block the order from taking effect anywhere in the country. Judge John C. Coughenour, presiding over Washington v. Trump, called the order "blatantly unconstitutional". Government appeals challenging the injunctions were rejected by the Court of Appeals for the Ninth Circuit, the Court of Appeals for the Fourth Circuit, and the Court of Appeals for the First Circuit.

https://en.wikipedia.org/wiki/Trump_v._Barbara

https://en.wikipedia.org/wiki/Trump_v._CASA#Background

But since we have the dissent opinions, it's not tricky at all to see why they are dissenting.

Alito and Thomas straight up believe that the constitution does not provide birthright citizenship and the executive order is valid. Gorsuch mostly agrees but makes an exception if the parents plan to stay in the US. Kavanaugh agrees that birthright citizenship is not provided by the constitution, instead he argues its a federal statute that congress can overturn (but the president cannot)

https://www.scotusblog.com/2026/06/supreme-court-strikes-dow...

Per Thomas's dissent:

> The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens.

Exactly. Notice the ruling after ruling from the Supreme court strengthening the power of corporations and moneyed interests.

What about the constitution specifically?

You are saying this like there are other of nations that didn’t need to struggle for equal rights, workers’ right etc.

I thought so too. Then I read the arguments about the passage of the amendment. The people passing clearly stated that, say, the children of ambassadors wouldn't be eligible. It was mainly aimed at clearing up the questions about the various Native Americans who may have considered themselves independent. It wasn't about opening the doors to anyone.

Please re read his comment. He’s saying the constitution should be amended.

SCOTUS has not had anything remotely close to a plain text reading since the 1930s and probably longer. "Shall not be infringed" was changed to "if an infantry rifle was made after 1986 then magically it can be infringed" and (until about a week ago when it was overturned) "if you smoke a left-handed cigarette actually the second amendment doesn't exist." The 1st amendment protects freedom of speech but yet it's legal to ban appeals to "prurient interest" even though no such exemption is mentioned. "Interstate commerce" has been changed to mean basically "commerce" and interstate is now interpreted as if it was put there for funsies since everything can be construed as affecting something else in the universe even though the historical context makes clear that's not how the text was interpreted by the writers.

Every other amendment including the 1st, 2nd, etc even when explicitly spelled out the courts magically pull something out of their ass to "torture it." Yet the 14th amendment birthright citizenship, who's "history and tradition" was to right the wrongs of slavery, somehow has to be read absolutely in black and white.

Personally I am amenable to the plain text interpretation of the 14th, 1st, and 2nd, but lets not pretend that is the game SCOTUS or even most of government and society is playing. The constitution is referenced more as a religious document by all the above to mean whatever it is they say it means.

As far as I can see it is almost entirely countries in the Americas plus Pakistan that have real birthright citizenship. Everywhere else has some restriction such as stateless parents, or multiple generations born in the country, or a minimum period of residence or similar https://en.wikipedia.org/wiki/Jus_soli

And how many of those countries have an illegal immigration problem? I bet that most of them would quickly remove that loophole if people actually started to exploit it.

There is no problem having mechanisms in place for edge cases where the child has been abandoned, parents both dead and so-on.

i dont agree with the person you are responding to, but theres a difference between not being a citizen and being deported.

Imagine a country extending citizenship to a whole group of people for no reason other than the location of their birth, and then allowing said people to access the benefits of citizenship, including the ability to receive welfare benefits, vote, and run for office.

> Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.

No arguments why its better, just stating it as if its fact.

Most countries do not have it because it creates many preverse incentives (such as anchor babies). This especially in countries which are targets of immigration (such as the US).

> Not that long ago, the majority view was that slavery was a great thing

A bit of a tangent, but is that actually the case? The highest estimate I have seen puts slave ownership at 5% of the population while the lowest puts it at 1%.

Obviously just because somebody doesn't own slaves doesn't mean they didn't support the system. There could be economic or legal reasons they couldn't own a slave.

I am just not sure that it was actually a majority view at any point in time in the US.

> Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment).

This is actually just the first step - to propose an amendment.

To ratify it requires 3/4 of the state legislatures (or state “conventions”) to vote in favor.

https://www.archives.gov/federal-register/constitution

Most countries in North and South America have unconditional birthright citizenship for persons born in the country.

I take it you are not British? The British Empire had birthright citizenship, and up until 1948 (except for Ireland) citizens of all Commonwealth countries were simply British subjects.

Afterward it was possible to be, for example, a Canadian citizen, but it was still the case that "Prior to the [the British Nationality Act 1981] coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to [Citizenship of the United Kingdom and Colonies] status" - https://en.wikipedia.org/wiki/British_Nationality_Act_1981

Birthright citizenship is not unique to the United States, it’s common to certain kinds of former colonies.

I mean, it tracks with "no taxation without representation". Getting rid of birthright citizenship has the chance to create a separate *multi-generational* class of people that aren't given the same rights in society.

Most of the Americas for just that reason - and because the countries immigrants came from did not want their kids to have citizen ship and the right to come back.

To be fair a lot of it had also to do with the sheer immense amount of vast, mostly unused ,fertile land available in north America. I sincerely doubt the American experiment would have worked this well if they had rowdy neighbours and infighting due to resource constraints. For almost 200 years the solution to most things in the USA was to get a chunk of either their people or immigrant to move to the neck of the woods to find fortune

Define successful?

(You'll probably want to avoid metrics like happiness indices and life expectancy though)

I think what you mean to say is that as a result of this ruling the voice of Americans can be diluted over time so that your preferred political outcomes can happen. Not everyone in my country believes that the concept of the nation state is stupid and should be done away with. I understand that there are many who do think this, and I have to live amicably among them, but it doesn't mean that I need to pretend that your ideas are good for me and my kin.

There's about 193 countries in the world, your number would mean there's less than two countries that are better in every way that matters.

I can name ten countries off the top of my head that are better in every way that matters to me.

The USA ranks near the bottom of developed countries in every metric but the metrics related to money.

Is it "defrauding" if someone's just following the rules, though? And, at that, is it worth building your citizenship rules around something incredibly rare? (Estimates seem to think it's something like 15k babies a year.)

Genuine question.

Isn't this statement aimed at citizenship tourism or whatever its called?

I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.

Now do the management/ownership side.

Thank you! Do they make the decisions about what stories to work and to run?

Yes, educated people tend to lean left, since the right is so anti-intellectual. But virtually all media in this country (both social and legacy) belongs to the far right pedophile oligarchs currently running this country to the ground to fatten their pockets.

This is a cherished American belief, but I don't think it's true after 2016, when NYT gave Trump a significant boost with their coverage of Clinton's emails, and continues to sanewash Trump, after 2024, when billionaires like Soon-Shiong and Bezoa personally directed their paper's editorial stance towards Harris, after Aksel Springer unveils a corporate conservative bias policy.

I think it's blatant now, but evidence suggests that "liberal bias" was never more than a partisan accusation.

The jurisdiction clause is there because of diplomats. It's a common thing in other Jus Solis countries, for good reason.

No it really isn’t. Immigrants are clearly subject to the jurisdiction of the United States. As Wong Kim stated the only way not to be is if the government has given you permission to be here without being under jurisdiction like a diplomat or if you’re part of an invading force. Every other person in the us is expected to follow us laws. Just because they don’t doesn’t mean the us doesn’t have jurisdiction.

There was no such thing as an illegal immigrant in the US when the 14th Amendment was ratified.

This is why American Samoans aren't citizens. They aren't subject to the full jurisdiction of the USA even though they are born in the United States.

Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.

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>American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.

Unless you falsely believe PR or AS are not part of the United States, you are just agreeing with me with extra words regarding the jurisdictional differences. The only option for denying birthright citizenship would be not born in United States, or not subject to jurisdiction thereof.

See this excellent prior comment[] on why the difference between PR and AS is jurisdiction and not whether it is part of the US.

>This seems entirely subjective.

I'm not going to do a formal academic study with you, it's plainly obvious as of late you see far more headlines on hackernews (a search shows a single HN topic on AS citizenship in the history of HN, but full page+ of search results on the birthright citizenship issue at hand) and elsewhere regarding the birthright citizenship issue at hand and far more rarely the fact American Samoans don't get it.

[] https://news.ycombinator.com/item?id=16700413

Congrats!

But statistically America lags behind most other nations of similar development levels.

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

Not to mention the lack of maternity leave or real worker protections. A family member was fired for taking off time during a pregnancy. Everyone's fine now, but she definitely had a rough patch.

A big part of this comes down to the lack of any real safety net here.

The US's population is not declining. However, without immigration, our population growth would be very close to zero, and a yet lower rate of natural increase is locked in over the next couple of decades (more old people who will die than children).

And, I mean, it's obviously hard to predict beyond that, but it doesn't seem like anyone has any real clear answer to the trend of steadily decreasing TFR right now.

I suspect OP mean declining fertility rate. USA population is still increasing, but is slowing down, and will sharply drop if the fertility rate remains below replacement of ~2 children per woman.

The US Is Flirting With Its First-Ever Population Decline - https://news.ycombinator.com/item?id=46960624 - February 2026 (1008 comments)

The nuance is ~71% of the world’s population now lives in countries with birth rates below the replacement level needed to maintain population size. US working age population cohort has likely peaked. The future of the developed world is fighting over global skilled workers and young potential immigrants who would settle and start families in your jurisdiction.

Is the U.S. Labor Force Nearing Its Peak? - https://news.ycombinator.com/item?id=48726615 - June 2026

The Fertility Rate of Every Country in the World - https://www.visualcapitalist.com/fertility-rate-of-world-pop... - May 17th, 2026

U.S. Total Fertility Rate by State 2007 vs 2025 - https://old.reddit.com/r/dataisbeautiful/comments/1qt22ka/oc... - February 2026

The demographic future of humanity: facts and consequences [pdf] - https://news.ycombinator.com/item?id=44866621 - August 2025 (400 comments)

Our World In Data: Population tool: How will populations across the world change in the 21st century? - https://ourworldindata.org/population-simulation-tool

("demography is destiny")

Yes, because of the outdated assumption that women take virtually all responsibility for childcare, which is damaging not just to women, but to men and children too, combined with the it becoming more difficult for families to manage on a single income.

It is not just an American problem. It is slowly changing, at least here in the UK: I see a lot more dads taking kids around these days. I have still found people were surprised that my daughter lived with me rather than her mother after divorce though.

It makes sense to me. When women have more choices, they tend to put off having kids or they raise their standards - for their economic situation before kids, for partners, etc.

I think this is good; insofar as women have children, it should be because they want to, not because they're pushed into it.

I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.

This is true, although I think it correlates more strongly with female participation in the workforce than earnings directly. And it's not a criticism of feminism, just a consequence that we should be aware of.

A material component of reduction in the US fertility rate has been avoided teen (15-19 cohort) pregnancies. ~40% of pregnancies both in the US and internationally, annually, are unintended (per the Guttmacher Institute and the UN, respectively).

Teen birth rates hit another historical low in 2025, CDC says - https://www.npr.org/2026/04/09/nx-s1-5777587/teen-birth-rate... - April 9th, 2026

> This is an observation and not a judgement. Take what you will with this information.

Why bring it up at all if you're not trying to say anything?

Birth rate correlates with home ownership rate for people aged 25-34. Wonder why that's been going down despite household earnings growth.

It also correlates with the economy being more and more hostile towards single income households, but let's just blame women knowing their own worth.

That exception comes from the fact that, I'm guessing, no diplomat or their children have sued over it.

If they have, I'd love to see exactly where a prior SC decided that it's constitutional.

If you are an originalist, textualist, or even just standard jurisprudence believer then it's crystal clear what the 14th meant. The only reason for any question about it is because a large portion of people hate the fact that someone can get citizenship by being born here.

The dissents violate the supposed judicial theory of these justices. It shows naked partisanship.

I mean, aren't diplomats immune to US laws? Literal "diplomatic immunity".

It makes sense to me to say that they do not fall under US laws and US jurisdiction, and their children likewise.

This wouldn't really be applying laws retroactively, but deciding what the law has always meant. If the decided meaning is that children of illegal immigrants are not automatically citizens, that means they weren't automatically citizens beforehand. Thus there wouldn't really be anything to revoke, they just never were citizens in the first place.

The executive order that prompted this was only aimed at babies born after it went into effect, but I see no reason it would have to be that way.

Either laws work the way they're written and 4 members of the court disagree or they work the way the Supreme Court says they work and a worse ruling could threaten those citizens.

That was very much on the table, though not locked in.

That's not how we have traditionally thought citizenship works, but that is exactly what the Trump administration would've gone for next if the supreme court had ruled in their favor in this instance, thereby setting up the _next_ supreme court case.

They are arguing that the mothers should also get citizenship, in addition to the babies. That's definitely not what was affirmed.

No, I'm saying the use of the 14th amendment to justify the majority opinion is disingenuous, as Thomas points out.

Yes and no. The tariffs decision was fractured. There were really two prats. The first was that a statutory interpretation of IEEPA didn't give the President the power to tax. That authority lies with Congress. The MQD, to me at least, felt shoe-horned in tehre, kind of to justify its existence. But a statutory interpretation was sufficient to rebuke the President's authority so why the rest? It feels like the court is saying "see? we use this on Trump too. We're not biased".

This is kind of crazy. The text of the amendment is as literal as it gets. If this had failed it would have basically meant emptying Congress of all of its powers, because now the executive can just pick whatever interpretation they deem fit to their goals and run with it.

The rule of courts of law is to interpret the law, not to pick new creative meanings out of them. That's the role of the legislative power - otherwise what's stopping a court to reinterpret the meaning of any word in any legal text and allow the executive to rule by decree

5-4 on the Constitution. Kavanaugh's concurrence is that birthright citizenship is controlled by a law that Congress could change.

Kavanaugh ruled that Trump's EO wasn't unconstitutional, just contrary to federal law, and Congress could change the law there if they wanted. So, this makes it only 5-4 upholding the 14th amendment.

Which is gods-damned crazy. We are that close to overturning major civil rights.

Kavanaugh agrees with their reading of the 14th Amendment, though.

>I should be unanimous, it's what the constitution says

Thats a tautology. “What the constitution says” is the thing in question.

> All persons born or naturalized in the United States, and subject to the jurisdiction thereof ...

It's the second part that is in dispute and is not clear from the constitution's text what exactly it means and who it excludes. And yes, it has always excluded some people born within the borders, it is not a meaningless statement.

In the past decade, the Constitution hasn’t slowed down the courts from creatively interpreting its various clauses. Their decisions have effectively amended many of those fundamental (and arguably inalienable) rights. Repeatedly.

This trivial reading of the constitution doesn't align with the reality. Two simple exceptions and a third not so simple are children of diplomats, children of invading armies, and native americans, who required an act of congress to give citizenship at birth.

Maybe not that long, but at least as long as 90 years. Thomas cites examples of people being denied citizenship by the executive branch, but in almost all cases they did not sue and just accepted the denial.

one and a half, but sure

Some woman who is 8 months pregnant comes to the US on a tourist visa and gives birth, then goes home with the baby. And then somehow that kid gets automatic US citizenship. And it applies even if the mother is not even legally allowed in the country. And you think that is not insane?

I'm not him, but it creates some perverse incentives (like chinese billionaires who pay american surrogates to get implanted with dozens of their kids who get american citizenship).

https://fortune.com/article/chinese-billionaire-xu-bo-father... might be an outlier, but it's still weird, especially since the US is the only country that has this.

Most Americans conveniently forget the whole "nation of immigrants" thing once they are a few generations removed from the situation. Ladder kickers the lot of them.

Yep. Could not be more disappointed in Gorsuch here. What is the point of writing things down in the Constitution if Justices are just going to vote for their preferred ideology and come up with embarrassingly thin justifications for whatever they think the document should say?

How many folks "on the right" would be willing to use similar logic to nullify amendments they tend to like?

E.G.: "US guns are stolen and exported to foreign gangs. Therefore, the text of the 2nd Amendment is entirely null and void and should be 'corrected' by the Supreme Court"

It is not be the job of the Supreme Court to "correct" Constitutional amendments!

the fact that birth tourism is a thing means the demand for us citizenship is way higher than supply, to the point people are willing to put their whole life savings and break the law just to have a shot at getting it through a complicated family route.

its easy to fix by making legal immigration cheap and reliable. its also great for the economy, a lot of undocumented immigrants work illegally dont pay taxes because they cant work normal jobs without getting deported.

legalizing their stay means more tax revenue, less crime and labor violations, lower costs for business and i would also say its kind of morally wrong for a rich country to buy cheap stuff made by workers in mexico or china and give none of the profits back. closed borders are glboal injustice.

If you would like a carve out for this, that may well be reasonable policy, and you should feel free to advocate for an amendment to the current text.

> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.

Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."

The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.

> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States

Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.

But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.

I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.

that would be jurisdiction on you committing murder, which they do have.

What does “subject to the jurisdiction” mean? How can one be in the US and not subject to the jurisdiction?

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Both sides of each case should really start doing this after any ruling. As we've seen dozens and dozens of times, there is nothing that says the Supreme Court will have the same interpretation of the same less-than-crystal-clear words 10 years from now. Their decisions in the meantime are also not really democratic yet trend consistently towards their (albeit, very well argued versions of) individual political views instead. It's a problem of the current court as much as it was a problem of the court 20, 40, or 60 years ago.

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Perhaps, but this is definitely an issue/problem and the US should model it's policy after the EU on this specific issue.