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.
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?
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?