There is much to say about the current attention to birthright citizenship under the Fourteenth Amendment, as well as to the not entirely scholarly way in which that debate is being conducted in the public sphere.
It’s also worthwhile to think about Wurmans overall approach to 14th amendment as being best understood as very specifically responding to the challenges of protecting former slaves (and overturning Dred Scott). As a result, I think Wurmans understanding of the “original public meaning” is somewhat more narrow in important ways from mainstream originalism (for example, equal protection is about states enforcing their criminal laws equally in protecting former slaves from anti black terrorism from KKK—it has nothing to do with whether laws benefit certain classes more or less and thus would not be violated by affirmative action!)
I haven’t read Barnett book on 14th amendment yet so maybe there is daylight there…
In any event, it will be interesting to read the law review article when it comes out!
I think this post makes too much of the “conditional” (“if common law incorporated, then…”) as “giving away the store.” I did not think the authors were arguing in favor of the conditional, but saying that it complicates matters compared to the intuitive (perhaps naive) first take (“of course citizen if born here”). In his discussion of the issue with Reason, Barnett said he was not convinced that the (conditional) argument was correct but that when he looked into it this common law approach seemed more plausible than he had initially believed.
So if you want to argue the validity of the conditional, I do not think that contradicts the spirit of the op ed.
This post is too dense for most of us mortals to follow, never mind comprehend. Nevertheless, a few comments:
1. Despite being a believer in originalism as at least the appropriate starting-place doctrine for constitutional interpretation, I recognize that one of its inherent limitations is that it assumes that the drafters/readers/ratifiers of a constitutional provision were unduly prescient with respect to how the words of some particular provision might be understood by future generations and/or how their words might be intended to apply to situations and facts that did not even exist at the time the provision in question was drafted/discussed/approved. More to the point, if the critique of the Barnett/Wurman piece by Baude's anonymous - but obviously well-read, legally trained, and bright - challenger is to characterize originalist constitutional interpretation, we should forget about civics classes designed to educate the average American citizen (or a to-be- naturalized American citizen) about the meaning of the Constitution.
2. On the other hand, the Barnett/Wurman critique by Mr or Ms Anonymous (?) is the first discussion I have seen anywhere that mentions the anomaly that the legality of and the propriety of Birthright Citizenship turns upon the citizenship status/allegiance/etc. of the PARENTS of the putative birthright CHILD-citizen. The clause of the 14 Amendment in question does not appear to be based upon the status of the parents. It reads as follows: "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." So, what does it matter what the citizenship of Wong Kim Ark's parents was? Or whether a baby born today in the US is born to parents who entered the US illegally?
It’s also worthwhile to think about Wurmans overall approach to 14th amendment as being best understood as very specifically responding to the challenges of protecting former slaves (and overturning Dred Scott). As a result, I think Wurmans understanding of the “original public meaning” is somewhat more narrow in important ways from mainstream originalism (for example, equal protection is about states enforcing their criminal laws equally in protecting former slaves from anti black terrorism from KKK—it has nothing to do with whether laws benefit certain classes more or less and thus would not be violated by affirmative action!)
I haven’t read Barnett book on 14th amendment yet so maybe there is daylight there…
In any event, it will be interesting to read the law review article when it comes out!
I think this post makes too much of the “conditional” (“if common law incorporated, then…”) as “giving away the store.” I did not think the authors were arguing in favor of the conditional, but saying that it complicates matters compared to the intuitive (perhaps naive) first take (“of course citizen if born here”). In his discussion of the issue with Reason, Barnett said he was not convinced that the (conditional) argument was correct but that when he looked into it this common law approach seemed more plausible than he had initially believed.
So if you want to argue the validity of the conditional, I do not think that contradicts the spirit of the op ed.
This post is too dense for most of us mortals to follow, never mind comprehend. Nevertheless, a few comments:
1. Despite being a believer in originalism as at least the appropriate starting-place doctrine for constitutional interpretation, I recognize that one of its inherent limitations is that it assumes that the drafters/readers/ratifiers of a constitutional provision were unduly prescient with respect to how the words of some particular provision might be understood by future generations and/or how their words might be intended to apply to situations and facts that did not even exist at the time the provision in question was drafted/discussed/approved. More to the point, if the critique of the Barnett/Wurman piece by Baude's anonymous - but obviously well-read, legally trained, and bright - challenger is to characterize originalist constitutional interpretation, we should forget about civics classes designed to educate the average American citizen (or a to-be- naturalized American citizen) about the meaning of the Constitution.
2. On the other hand, the Barnett/Wurman critique by Mr or Ms Anonymous (?) is the first discussion I have seen anywhere that mentions the anomaly that the legality of and the propriety of Birthright Citizenship turns upon the citizenship status/allegiance/etc. of the PARENTS of the putative birthright CHILD-citizen. The clause of the 14 Amendment in question does not appear to be based upon the status of the parents. It reads as follows: "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." So, what does it matter what the citizenship of Wong Kim Ark's parents was? Or whether a baby born today in the US is born to parents who entered the US illegally?