The fact that Wurman and Barnett feel like a blog post is necessary to clarify their bombshell op-ed is fundamentally what’s wrong with law office history. You shouldn’t muddle through it. https://reason.com/volokh/2025/02/18/birthright-citizenship/
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I just don’t get why folks think op-eds are where we test out historical claims rather than explain history already well vetted to the public or broad lessons from history about today. They’re important tools for public education— but the scholarship has to come first.
It makes more sense if you see the goal not as testing historical claims—much less determining historical fact—but moving an argument from off-the-wall to on-the-wall. It’s”broccoli horrible” redux.
This is worse from the standpoint of methodological integrity. The ACA arguments weren’t grounded in originalism, they were doctrinal. This is an argument couched in originalist terms with no actual history.
I am very confident that if you look at what Randy has done in the Fourteenth Amendment space in his scholarship (yes, I’m biased, but also knowledgeable) you will not see what is going on here. That’s what makes this so egregious IMO.
and not getting bogged down in "meanings behind the text" (which would devolve into beefs) but addressing the text and, where appropriate, the "proposed worlds in front of the text"
Worst part of the article. "opponents of our position, many of whom would normally object to following original meaning"
If someone were to say the President is limited to 2 terms because the of the 22nd amendment, this is not an "original meaning" argument. It's a statement about what words mean.
Libertarianism as an American political movement has its origin in massive resistance to integration. Its exemplar as a national candidate, Barry Goldwater, was opposed to integration and was most successful in the same states won by Strom Thurmond before him and George Wallace after him.
Libertarians seem to be mostly a mix of "I want to not pay taxes and also smoke weed" and "I want to be able to do whatever I want no matter who it impacts without consequence, but nobody is allowed to do anything that impacts me without me agreeing first".
Used to also be "do whatever you want with other consenting adults" on sex and personal health and identity choices, but that seems to have gotten mostly dropped lately
Please feel free to note that the 14th Amendment says "ALL persons born here are citizens," not "all persons except when we feel weird about their parents," which is my understanding of their argument.
Yeah I found this to be the nail in the coffin. "Oopsie we forgot the part that dismantles our entire argument...no problem though! We'll just gloss over it and let someone else explain it"
Volokh's a bog standard reactionary, but it's dispiriting to see this attack on immigrants in Reason. Libertarians have often been good on immigration, but fusionism with conservatives will choke out that bit of decency too.
In the '80s, my dad refused to register as a Libertarian, despite otherwise meeting most of their positions, because they didn't agree with his anti-immigrant beliefs. Pretty safe to say they've changed those by now.
This passage is closest Barnett-Wurman come to dealing w/ problem that their claim (parents' allegiance-for-protection is predicate of birthright citizenship) would deny citizenship to US-born children of enslaved parents. Note sure "one way or another" enough, esp. if parents died b4 emancipation.
It is also strange to see them scolding others for reducing original public meaning to the "plain" or "literal" meaning and then provide an overly literal meaning of "allegiance" that fundamentally misunderstands what it meant in the 17th century.
their only argument here is "one cannot give allegiance and a promise to obey the laws through an act of defiance of those laws" - this is apparently so obvious that they hardly need to expand on it.
but one can "obviously" give allegiance by being stolen into slavery?
It's shocking how far Reason has fallen in the last decade or so. I actually had a paid subscription for years. Don't judge me - it was a different magazine then! Maybe Volokh was one of the catalysts for the drastic change.
this is so fucking funny that the good faith there is so much literature assholes don't cite any but keep saying who knows. and they want to ignore originalism for one small thing. fucking clowns
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not personal at all
caustic but not personal
taking bogus arguments as texts
and not getting bogged down in "meanings behind the text" (which would devolve into beefs) but addressing the text and, where appropriate, the "proposed worlds in front of the text"
If someone were to say the President is limited to 2 terms because the of the 22nd amendment, this is not an "original meaning" argument. It's a statement about what words mean.
Goldwater though, became a different politician in the 80s.
So basically weed smoking conservatives.
But we're dealing with a really strange interpretation of people being held in bondage as property now that makes me very, very, very uncomfortable.
but one can "obviously" give allegiance by being stolen into slavery?
https://bsky.app/profile/notthatproud.bsky.social/post/3lii3m7n72s2o
Also “I have chosen to ignore your criticisms because I declare them to be unserious and instead I will tackle straw men of my own creation”
These people are far right clowns.