Yes, I exaggerate my claim of being undecided, for effect. I've read more than enough to convince me that the Founder's abrogated English law on citizenship, but not everyone got the message. Likewise, understanding of American law on citizenship was constantly contaminated by English trained lawyer types forever citing English "common law".
What I am discussing is what the law has been held to be by judges, as the Constitution gives the judicial branch this power. In the words of Justice Scalia
JUSTICE SCALIA: Well, you're begging the question. I mean, your question assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says.
The fallacy in your theory is that it causes judicial decisions to turn on Democracy rather than truth. In Wong Kim Ark, the Judges who were correct were outvoted by the more numerous incorrect judges. I personally think the decision had more to do with the desire of the majority judges to shove a rebuke against racial prejudice down the throats of the objectors more than anything else.
During that era, the Republicans enjoyed waving the bloody shirt against the Democrats, and often went out of their way to force them into submission against what they saw as their superior morality.
Not very well known, but just after the Civil war the Union Forces denied the right to vote to all southerners held to have been in rebellion. The result was that mostly only former slaves were allowed to vote, and they in turn elected former slaves as state legislators. This was seen by the Republicans in the north as a just comeuppance to the arrogance of southern whites. They relished the humiliation of the reversal of status between former masters and slaves. Had Lincoln survived, he would likely have not permitted such a thing. It was his overzealous compatriots that felt the need to humiliate their defeated foes. They only ceased suppressing the White vote after the behavior of these untrained black legislatures became so laughable it was humiliating to the northern architects of the idea. Strangely enough, you can find very little, or no mention of it in any history books nowadays. Not Politically correct, I think.
Given that this was a common mindset of the times, And indeed, a motivating factor in creating the 14th amendment in the first place, It should not surprise me to discover it coloring the decision in Wong Kim Ark.
Anyway, everything is tied to everything else, so this objection to something being "off topic" is citing an illusory boundary in my opinion.
James Madison.
Apparently not everyone got the memo. Even so, he argued Jus Sanguinus in his speech on the house floor.
Apparently not everyone got the memo. Even so, he argued Jus Sanguinus in his speech on the house floor.
You wanted a Founder, I gave you the Father of the Constitution - surely the best expert on what the Constitution meant to say of all of the Founders. And no, he didn't argue Jus Sanguinus. He argued Jus Soli. :
"It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.
"JUSTICE SCALIA: Well, you're begging the question. I mean, your question assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says.
The fallacy in your theory is that it causes judicial decisions to turn on Democracy rather than truth.
No fallacy, and not my theory - this comes straight from Justice Scalia. His point (and I agree) is that you can't use court cases to change the law. You want the law or Constitution changed? Fine, get the legislature to do it. We hate judges legislating from the bench when the libs do it, are you now suggesting good conservatives like Scalia should legislate from the bench?
Anyway, everything is tied to everything else, so this objection to something being "off topic" is citing an illusory boundary in my opinion.
So it's ok for me to bring Kelo v New London into every "natural born" thread, and keep demanding you comment on it every few posts? And if you don't use the exact language I want, I can accuse you of being a property grabbing commie?