Barnett and Wurman's birthright citizenship argument claims to be derived from text, but it's actually working in the opposite direction. Their argument is simply not true to new originalist methods. 1/ - ThreadSky

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coreyryung.bsky.social • 10 days ago

Barnett and Wurman's birthright citizenship argument claims to be derived from text, but it's actually working in the opposite direction. Their argument is simply not true to new originalist methods. 1/

Reposted from Alan Mygatt-Tauber

@evanbernick.bsky.social

reason.com/volokh/2025/...

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coreyryung.bsky.social•10 days ago

Rather than start with the constitutional text, it starts with background common law principles untethered from the Constitution. It then tries to find a connection to that common law default to the text "subject to the jurisdiction" in 14A. 2/

coreyryung.bsky.social•10 days ago

But, there is nothing about the meaning of the words "subject to the jurisdiction" that indicates an embodiment of the pre-existing common law rule they describe. They just hand-wave past that step in the interpretive process. Their description of their methodology basically concedes this point: 3/

coreyryung.bsky.social•10 days ago

This is the type of methodological error that Barnett would be furious about if made by an opponent of originalism. He has consistently lambasted critics for conflating old originalism (usually intentionalism) with new originalism. But that's what Barnett and Wurman have done. 4/

coreyryung.bsky.social•10 days ago

They assume that the textual meaning should be determined by the intent of the authors (based on vaguely referenced non-originalist SCOTUS reasoning) to embody the common law rule. That's something new originalism specifically rejects. Even on its own terms, the B&W argument is unsound. /end

evanbernick.bsky.social•10 days ago

Exactly right. They are just not doing what they claim they are doing and demand others do.

joshinma.bsky.social•10 days ago

"None of the objections has convinced us that we erred."

So surprising.

prisonrodeo.bsky.social•10 days ago

“No budges make judges.”

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