re: Trump has officially petitioned the SCOTUS to allow him to END birthright citizenship

quote:

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Do you think we should only allow white male property owners to vote now?

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I can't speak for the poster, but you hit on the applicable issue

If we try to use strict formulist arguments

(1) we should still review what all the citizenry thought at the time of ratification If we want to make an ill advised appeal to Scalua, that's his jurisprudence. His stated philosophy would exclude what “the Founders” secret meaning was. Also the meaning of a term doesn't share what it's meaning may have meant a hundred years earlier, or even worse what it meant hundredS of years earlier in a foreign country
(2) The Ark court doesn't do this. They guess at the secret meaning by presuming with no evidence that the 39th Congress must have meant what the court determined the founders meant 100 years earlier.
(3) there is evidence of meaning from the 39th Congress’ Congressional records that could have been used or still coukd be used. Even the most ardent Jus Soli advocates acknowledge this. If a modern court used a formalistic basis for meaning then they should use these 39th Congress Congressionsl Records as evidence of meaning (unless they strictly follow the precedent without additional consideration)
(4) Formalism is not the only jurisprudential basis of review. Indeed, as Posner asserts, Scalia wasn't as consistent in his spplication of Formalism as often asserted