NightlyPoe said:
Again, you are misunderstanding Originalism. Its goal is to understand the meaning of the words and intent when they wrote them. It's not to bale out legislatures when they write sloppy statutes. The goal is to limit the different interpretations via attempting to figure out what they would have meant at the time. To take one challenging term from the Constitution, that isn't quite as strongly debated at the moment. Impeachment is said be reserved for "High Crimes and Misdemeanors." Well, what does that mean? To a modern audience, it would sound like a rather high bar. "High" being the operative word. You might think that it means major crimes. But to the people who wrote it, the word "high" referred to the person committing the crime. It basically meant a breach of public trust in some manner and how a person in such a "high" position of power has special duties to carry out his charge faithfully. Therefore, to the Framers (George Mason to be exact), the term High Crimes and Misdemeanors would have lowered the bar for impeachment. So, while the words can be interpreted either way by a reasonable observer, the origininalist judge will try and discover the meaning of the interpretation at the time it was written and how it would have been believed to have been commonly used at the time. Incidentally, I'll also add that Scalia led a very successful campaign to dissuade his colleagues from using legislative history in their opinions. In other words, Scalia very much relied on the text first and foremost. |
Not being an expert of Originalism and doing a lot of research one thing is clear, it differs a lot depending on which group you happen to look at. Something that fluid should never be a means to determine how the constitution should be interpreted. My reasoning is that it will always be different depending on who is in power and thus subject to much change. Also, trying to figure out what the founders were thinking about at that time leaves to much theory in interpretation unless there are specific text that can be reference to make it clear.
In the case between US VS Wong Kim Ark, citizenship is undefined in US law. To decide that case, the Supreme court used the English Common Law to define the clause of jurisdiction and the 14 amendment concerning that clause.
[a]liens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English sovereign; and therefore, every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of any alien enemy in hostile occupation of the place where the child was born.
After doing more research on the US VS Wong Kim Ark case it seems that its already a done deal. The courts gave an interpretation of "Jurisdiction" and that citizenship was covered via jus Soli ". Your statement that Trump is claiming that birthright citizenship isn't in the constitution has already gone to the SC and trying to use the "jurisdiction" part was given meaning which invalidates his whole argument.
