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Personally I find the "we've always done it this way" pretty compelling.
Set aside for a moment the question of what the 14th amendment means, who it grants citizenship to. Whatever it means, that meaning is not open to change by executive order. If the 14th amendment granted (or not) citizenship to some group of people it did so whether or not Trump ever signed his executive order. Then either:
1. The understanding of the 14th amendment that's prevailed for the last century and change is correct. In which case Trump's executive order is unconstitutional. OR
2. The meaning of the 14th amendment implied by Trump's executive order is correct. In which case there is some unknown population (probably numbering at least millions) of people who the government has been treating like citizens (voting, passports) but aren't and never have been.
The Trump EO tries to sidestep the problems in (2) by purporting to be prospective only but that's not how the constitution works!
I think "We’ve been doing it this way for a long time" is weak, except with regards to ex post facto enforcement, because it can "prove too much" - it's easy to imagine historical fact patterns were nobody had both standing and sufficient motivation to challenge something that we would consider unconstitutional. (E.G., Church-State issues in a small, religiously homogeneous municipality.)
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I think it's pretty easy to sidestep this--just say the former process of granting citizenship was unconstitutional, but we're not going to go back and revoke it.
We already do this sort of thing in other areas. Generally, when a law is declared unconstitutional, its effects are not reversed--it's just cancelled going forward.
I'm aware this is common practice at the supreme court but I think that practice is quite bad. It's also totally contradictory with any theory of constitutional interpretation other than a "living constitution" one.
Declaring a law unconstitutional doesn't retroactively cancel it or mean it was never actually in force. The law was still standing law regardless of its unconstitutionality--that's just a fact.
I don't see how this is incompatible with any theory of the constitution. The constitution itself doesn't even say anything about judicial review.
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Do you even need to go that far? As I understand it, they could simply say "Their citizenship was not guaranteed by the constitution, but it was not banned and we already chose to grant it"
But you didn't. The statute granting citizenship to Americans born in the US uses identical wording to the 14th amendment. And the statute can't be changed by executive order either. If "subject to the jurisdiction thereof" does exclude children of illegal immigrants, then Trump signed an executive order ordering the Department of State to continue issuing passports to non-citizens born before the date of the order. There are also non-citizens with passports, SSNs, etc, and a lot of citizens who no longer have documentary proof of citizenship.
If Trump and Eastman are correct about the meaning of "subject to the jurisdiction thereof" then the government has been misapplying the law for decades and the resulting mess requires urgent Congressional action to fix. Cynically, the executive order is a trial balloon to get the constitutionality of the whole thing in front of SCOTUS quickly and they are planning to do the work of abolishing birthright citizenship properly once they know it won't be thrown out.
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I think it’s more of a “this was the situation before mass travel was trivial.” Its aim was people born in the USA to former slaves who had been in the USA for generations. While it mentions immigration, it mentions people naturalized as citizens, they’re not why the amendment happened. The 14th amendment was about citizenship for slaves and the children of slaves being given full citizenship.
And at the time, most immigrants were coming on boats legally. It’s wasn’t a mass of people walking across the Rio Grande in the dead of night. Mass migration of the scale seen today didn’t happen in 1870 when travel was by steamship or trains or horses. Trying to figure out what the writers of the bill mean about a situation that they absolutely never anticipated does no Justice to the law itself.
To be fair the same argument applies to the second amendment (and others). The founding fathers couldn’t have foreseen in 1791 the developments of unwieldy muskets.
Muskets have been around since the 16th century. What are you talking about?
Presumably by "developments" he means how muskets would develop in their future, not the contemporaneous state of their development.
Though IMHO this argument doesn't apply extremely well to the Second Amendment. Some of the Founding Fathers thought it was just Common Sense that private merchants should be allowed and encouraged to own their own warships. I don't think "maybe they can have a ship with fifty cannons on it, but surely they can't have a semiautomatic rifle!" would be the devastating argument that some people imagine.
Ah, fair, I guess I misread that.
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