A Wong Kim Ark guy IS a Minor v. Happersett guy. The quote from WKA doesn’t say there are only two “ways” to get citizenship. It says there are two “sources” of citizenship IN the Constitution. Gray first acknowledged that NBC is defined OUTSIDE of the Constitution. He cited Waite’s definition of NBC from the Minor decision and affirmed that it was reliant on both jus soli and jus sanguinis criteria. The sources of citizenship IN the Constitution are from the 14th amendment and from Congress’ general power of naturalization.
“Here’s the central question in Miller v. Albright: “The petitioner in this case challenges the constitutionality of the statutory provisions governing the acquisition of citizenship at birth by children born out of wedlock and outside of the United States.” When Scalia ponders about the NBC question and says it requires jus soli, he is bringing this up because the petitioner doesn’t meet this condition. He doesn’t have to contemplate the citizenship of the parents in regards to NBC because they have to at least have a child born in the country first.”
If you are correct about Justice Scalia’s views, I sure wish that he would have put an Obama eligiblity appeal that preseneted the two citizen parent arguement on the “Discuss List” for one of the Certiorari conferences. Thus far, zilch.
Any Justice can put an appeal on the discuss list, otherwise the denial of cert is automatic.
I'm not saying anything specifically about Scalia's views. From the questions he was asking, he was recognizing that the persons in question (who were born outside of the United States) wouldn't be NBCs. As to whether Scalia fully understands the definition of NBC, I would say no. We have nothing to show that. By asking questions, he seemed a little unclear on it.
Any Justice can put an appeal on the discuss list, otherwise the denial of cert is automatic.
As for him putting the appeals on the discuss list, maybe he hasn't read those appeals. IIRC, not all the appeals directly or correctly addressed the two-parent argument. Even if they did, that doesn't mean the cases were able to overcome the obstacle of "legal standing." Short of that, why would a judge put such a case on a discuss list?