NRO Goes All In For The Right To Birthright Citizenship—And Will Be Puzzled Again When Trump Wins
09/10/2018
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Here's the impression NRO is still making on normal people:

That article [Constitutional Originalism Requires Birthright Citizenship, By Dan McLaughlin, September 9, 2018] is by Dan McLaughlin, who blogs as @baseballcrank. @baseballcrank's pinned Tweet says "20 years from now - maybe 2 years from now - everyone in the GOP will want to say they were against Trump now." It's from April 2016.

McLaughlin's argument (mostly based on the Wong Kim Ark case) includes these two paragraphs(my emphases):

  • All that said, birthright citizenship exists for reasons intrinsic to our American creed that ours is a society you join, not one reserved to those with an ancestral connection to the blood and soil. Any effort to uproot birthright citizenship, even for the children of illegal aliens, would bring us closer to the European problem of a two-tiered caste of citizens and permanently alienated aliens. Tampering with the status quo to root out the abuses might well create more problems than it is worth.
  • Of course, Supreme Court decisions – even very old ones – are not infallible, and originalist scholars and judges sometimes criticize errors of very old vintage. The courts of the 1868-1898 period got more than a few things grievously wrong about the Fourteenth Amendment, and one of the two dissenters in Wong Kim Ark was Justice Harlan, who had also dissented alone two years earlier from Plessy v. Ferguson, the now-infamous “separate but equal” case. Still, the fact that Wong Kim Ark was decided 30 years after its passage places a heavier burden on those arguing that it somehow got the publicly-understood meaning of its words wrong. And Wong Kim Ark was reaffirmed by the Supreme Court to apply to children of illegal aliens as recently as 1982.

Leaving aside the actual legal argument (the "1982" link is to what we've called the "disastrous (and eminently reversible)1982 Plyler v Doe decision") how is this originalism?

It's sentimental cuckservatism. The most un-Originalist (and unoriginal) thing in it, is the reference to "our American creed". The "American Creed" is not a thing, it doesn't exist. The Constitution does.

Education Realist is right—this is how you get more Trump.

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