“The Framers of the 14A didn’t think about illegal immigration. It didn’t exist in 1868.” Commonly believed but not true. The biggest counterexample: enslaved people, imported in violation of a congressional ban. The Framers still guaranteed birthright citizenship. papers.ssrn.com/sol3/papers.... - ThreadSky

evanbernick.bsky.social • 24 days ago

“The Framers of the 14A didn’t think about illegal immigration. It didn’t exist in 1868.”

Commonly believed but not true. The biggest counterexample: enslaved people, imported in violation of a congressional ban. The Framers still guaranteed birthright citizenship. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3822658

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rlheppner.bsky.social•24 days ago

I mean, if it *were* true there was no such thing as illegal immigration, because there weren’t immigration laws, then wouldn’t that just mean that subsequent immigration laws were unconstitutional to the extent they contradict the 14A (i.e., if they purported to ban birthright citizenship)?

evanbernick.bsky.social•24 days ago

right, so the theory goes that the constitutional language shouldn’t be read so broadly as to address something the Framers weren’t even thinking about. The problem is that it’s been an originalist mantra for decades that you’re not supposed to do things that way.

evanbernick.bsky.social•24 days ago

The Framers weren’t thinking about AR-15s. The originalist response has been, “so what? The Framers thought about weapons in common use and said, ‘we’re protecting all of them.’” That same response could be given to “they weren’t thinking about illegal immigration.”

goodthingsliker.bsky.social•24 days ago

Yes, obviously, but making this argument implicitly assumes the good faith of the interlocutors—here, self-professed “originalists”. These people, basically aside from yourself, are all liars and, in my view, always have been.

goodthingsliker.bsky.social•24 days ago

And now that they’ve got total control of the country, we’re going to see the facade of “we’re just doing originalism, sorry libs” fall and be replaced by what they’ve always actually been saying: fascists win, libs lose.

evanbernick.bsky.social•24 days ago

but it really doesn’t, at least, not for me. I’m not assuming that. I’m saying that there’s no good reason not to accept argument A in context 1 and not in context 2. If there’s no good reason, anyone who does it is doing it for bad reasons.

goodthingsliker.bsky.social•24 days ago

Right, and what I’m saying is that even “showing up to the debate,” as an action in itself, implicitly assumes that there is *going to be a debate*; i.e., a good faith exchange and defense of ideas. But that isn’t what is going to happen.

evanbernick.bsky.social•24 days ago

Exactly what are those reasons? I’ll just cop to not thinking it matters all that much. People can do a great deal of harm with the best of intentions. I think I’m best positioned to show that they’re contradicting themselves, not why. Motivated reasoning? Bad faith? Draw your own conclusions

maureenabell78.bsky.social•24 days ago

You have intuited the existence of Wong Kim Ark

https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089

evanbernick.bsky.social•24 days ago

Also, I can’t resist. Run this argument on guns.

“The Framers of the 2A didn’t think about AR-15s. They didn’t exist in 1791.”

Either this argument works or it doesn’t. You can’t turn it on and off.

joedudekjd.bsky.social•24 days ago

Expected applications originalism for me, but not for thee.

evanbernick.bsky.social•24 days ago

To be fair, I’ve seen this they-didn’t-expect-this point raised on both sides of the birthright argument, and it just needs to be cleared away. They did expect that citizenship would be granted to the children of people who were in the country illegally.

ehusman.bsky.social•24 days ago

Chinese and gypsy immigrants were both raised on the floor during debate, and they said “yes, them too.” They absolutely anticipated this.

https://medium.com/@eric.husman/birthright-citizenship-pre-exists-the-constitution-933b2969438a

evanbernick.bsky.social•24 days ago

Yes, I’m aware.

ehusman.bsky.social•24 days ago

I figured.

joedudekjd.bsky.social•24 days ago

Isn't it fun when your argument proves so much that you constitutionalize an 1870s black market in human beings?

evanbernick.bsky.social•24 days ago

From the abstract:

evanbernick.bsky.social•24 days ago

I’d add that this wasn’t a “despite” but “because of” thing. Jus soli birthright citizenship was the most straightforward way to ensure that all children of enslaved people would be citizens.

evanbernick.bsky.social•24 days ago

This wasn’t about consent. Enslaved people obviously didn’t consent. The U.S. didn’t consent. Republicans didn’t care! They made their children citizens.

evanbernick.bsky.social•24 days ago

Efforts to get around this very clear history are *at best* rationalizations for excluding *these* undocumented migrants today. At worst, they’re outright mendacious. Either way, they’re legally and morally wrong.

lamegandalf.bsky.social•22 days ago

Judging by the state of the Texas border with people owning property that straddles it. I’m pretty sure people were crossing at will and settled where ever they chose. I bet a few even voted. Illegal immigration as a threat is largely made up

drjohnaeharris.bsky.social•24 days ago

Yes. The illegal arrival of enslaved people aboard the wanderer and clotilda in 1859 and 1860 was nationwide news. Pretty much everyone in 1868 would have been aware of it.

kalimurray.bsky.social•23 days ago

The last bill passed in 1862 under the Slave Trade Clause, was An Act to Probibit the ‘Coolie Trade by American Citizens in American Vessels”, which sought to manage the incoming labor of the Chinese.

jedshug.bsky.social•24 days ago

I thought California had its own state-wide restrictions on Chinese immigrants by 1866, which is why that question was actually debated in Congress on the citizenship clause’s application to the children of unlawful Chinese immigrants

evanbernick.bsky.social•24 days ago

I mean, yes it did. This is overdetermined and I am making one of many points that have been made against a very bad theory. I think this point presents even deeper problems for it because it was very very much the purpose of Republicans to grant citizenship to children of enslaved people.

evanbernick.bsky.social•24 days ago

It’s not just that it came up. It was an important part of why birthright citizenship. For abolitionists, for Republicans. Totally undoing Dred Scott meant granting citizenship to children of people who were in the country in violation of immigration laws.

refrmdemocracy.bsky.social•24 days ago

It’s not even clear to me how the made-up “allegiance” caveat would have ensured birthright citizenship for *any* descendants of enslaved people (including those transported “legally” before 1808). Were those people deemed to have “allegiance” to the United States when forcibly brought here?

refrmdemocracy.bsky.social•24 days ago

Sure, the descendants *themselves* are deemed to have allegiance to the U.S. by virtue of their birth on U.S. soil, regardless of the allegiances of their parents.

But, well, that’s the whole point!! The allegiances of the parents and ancestors are irrelevant.

evanbernick.bsky.social•24 days ago

Honestly we could be here for several days discussing what’s wrong with it. Everything is wrong with it.

refrmdemocracy.bsky.social•24 days ago

It’s okay, I’m reliably assured that there’s an entire literature that has considered all these angles.

betsy-cazden.bsky.social•22 days ago

Wasn't there also an implicit exclusion for Chinese laborers, even before the Chinese Exclusion Act?

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