Ann E. Marimow

And the Solicitor General told the justices domicile to him and in the law means somebody's residence, but also their intention to stay and make a home and having the ability legally to be able to be domiciled somewhere.

Because they've come into the country illegally, but also he brings in another term, and that is allegiance, because they sort of have a political allegiance to a foreign nation.

That's right.

So John Sauer got a lot of pushback pretty quickly, including from some of the key conservative justices who are often in the majority, most notably from Chief Justice Roberts.

Who referred to the government's theory as quirky.

Exactly.

So the Chief Justice pointed out that the 14th Amendment includes very specific exceptions to groups of people who are not subject to the jurisdiction of the United States and therefore not citizens.

These are children of foreign diplomats, children of invading armies, and the children of Native American tribes until Congress changed the law.

And he's asking John Sauer, you're asking us to create this huge new exception and to expand that understanding.

Yes, and Sauer's response is to go back to the debates around the drafting of the 14th Amendment and even to a statute that existed before the amendment and to pull out various statements from senators at the time.

and to try to reinforce this idea that in order to be a birthright citizen, your parents had to have complete allegiance to what he called the political jurisdiction of the United States.

Sure, that's going to be key to this decision.

What was the original meaning?

What were the drafters thinking of the time?

And there was a lot of discussion about how do you apply that history and the text to this modern day issue of illegal immigration that the drafters were not necessarily thinking about in these terms at that time.

Right, and he asks about the idea of applying a broad principle to a new problem, and the Solicitor General says, that's right, this broad principle does apply here, and that's what we often do when we're interpreting the Constitution.

And he has all of these historical examples that he cites to sort of back up this claim in the way that he thinks the principle has been applied over time.

And then Justice Kagan intervenes and says, wait a minute, where does this principle come from?

These are really obscure, esoteric references you're making to history and kind of pulling them out of thin air.

And she really casts doubt on those as strong evidence.