In this post I’ll offer my take on why the Fourteenth Amendment confers birthright citizenship. I’ll also discuss what I see as the deeper philosophical issue at stake. Should judges decide legal questions by applying neutral principles and following the law where it leads, or by reasoning backward from what they perceive as the just conclusion? Under a neutral-principles approach, the pro-birthright-citizenship position is unassailable. Under a reasoning-backward approach, the anti-birthright-citizenship position is at least possible.
...
It’s no coincidence that Judge Posner—one of the few judges to endorse the reasoning-backwards model—is also one of the few judges to have advocated against birthright citizenship. The birthright-citizenship issue is a classic example of an issue for which reasoning forward yields a single correct legal answer, and the sole way to reach the contrary conclusion is to reason backward.
From the article:
...