That's a two edged sword. If you want to contribute in a more meaningful manner here, you should attempt to present your argument, and we can see if there is any value to your position. How do the common law writs support the idea that the Supreme Court would change its mind on children born abroad to US citizens?
That's funny. The actual lawyers here seem to think what I'm saying has some meaning.
You are confusing two separate arguments I am making. This is probably partly my fault, as I jumped back and forth between them without being particularly clear about what I was doing. I'll actually split them out this time.First Argument
The example of common law writs is a clear example of how much of what we now call "common law" originated in statute, many if not all of the prerogative writs being an example. Trespass quare clausum fregit
is another. Trespassing remained tortious in most if not all states after they adopted new constitutions, even in the absence of a statute on the books. How could this be, if not through their adoption clauses, by which they adopted English common law?
English common law was mostly judge-made law, and mostly sounded in equity. Indeed, equity is the core of judge-made law, largely for the reason that equity was created for situations where there was no adequate remedy at law
. Law would generally be statutory. While this sounds very neat and clean, nothing of the sort is the reality.
You not only have a very simplistic notion of constitutional construction, but of what common law itself is. It undermines your arguments when you make simplistic, absolutist statements that have little to do with how people whose job it is to interpret constitutions do it.
For example, your statements in another post that common law was very clear would make any common lawyer hoot. Common law, whatever its merits, and I am personally a big fan of common law over code-based systems, is anything but clear. It is a haven of complex balancing tests which require a nearly Solomonic wisdom to apply, areas of the law where there are twenty different cases, each applying the law slightly differently and possibly even in a contradictory fashion, where sometimes, it takes decades of case law before a fault line is apparent, and a doctrine previously considered well-settled suddenly collapses under its own weight and is replaced with another, which itself eventually perishes.
So the notion that common law is "clear" is nonsense. Common law is good because it contains the accumulation of sometimes centuries of the best thinking on a particular legal issue that was available, rather than the momentary and uninformed whim of the popular will, as expressed by legislators attempting to curry favor with the public or their corporate contributors.
Now, let me note what I am not
saying. I am not saying that the NBC necessarily adopted jus sanguinis. I am saying that because the common law is unclear, and much statutory law does pass into it (and I have given specific examples which you have utterly failed to address) stating that the NBC definitely did not
originally include jus sanguinis is basically overstating your case. There are good arguments both ways.
One used to be the majority view. However, the opinions of Tribe and Amar cannot be ignored, and frankly, nobody who knows anything about constitutional law would simply dismiss their opinions as clearly wrong in an area where the law is arguable.Second Argument
The second argument is a lot more simple. There is no connection between the common law writs argument and my "bet" on how the Supreme Court would vote in a controversial case where the popular child of a war hero is challenged on the grounds of eligibility when running for President, except that the common law argument (i.e. that the centuries-old jus sanguinis rule as subsequently amended) is one possible way for the Supremes to reach their desired goal.
My second argument is basically based on the philosophy of legal realism. You don't really know what the law is until it's decided. Some issues are easier to have a clue about. For example, we know the common law known as trespass originated in statute, but has subsequently been incorporated into common law (and in most states that common law has subsequently been codified or abrogated in statute again). The reason we know that is that thousands of courts have ruled on issues relating to trespass. It's an obvious fact.
The NBC is entirely different. No competent court (and in this case that would mean SCOTUS) has ever stated a rule in the ratio decidendi
of a case where the meaning of the clause was a determinative factor. So we can't know what the law "really" is. People have argued about it.
Another prong of legal realism is that due to the indeterminacy of what the law really is, what really determines the law is what judges do. In this case, therefore, what the law really is is what five Supreme Court Justices say it is. The "realism" aspect of this is that the law is what really
happens when you go into a court and make an argument.
The crux of this argument is that no Supreme Court in its right mind would unveil for public view a ruling that stated that the Constitution disenfranchises the child of a war hero who is a major party candidate for the Presidency. It just does not happen. At least not in reality.
Since the Supreme Court is infallible, at least when they speak ex cathedra
through ratio decidendi
, that would be the law.Quod erat demonstrandum