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Saturday, August 14, 2010

Peter Schuck on Immigration & the 14th Amendment: C'est magnifique, mais ce n'est pas la loi.

Peter Schuck's op-ed on the Fourteenth Amendment and "soil citizenship" contains an interesting and important historical point, a possibly sensible policy suggestion -- and a really unpersuasive legal interpretation. Peter might be right that citizenship should be denied to infants until they reach an age where we can say that they have a "genuine connection" to this country. (Call this the "Antipedobaptist" theory of citizenship). Peter also has some interesting historical observations about American objections to the British practice of impressing American sailors of British birth into the Royal Navy during the War of 1812, the 1868 Expatriation Act, etc. But none of these observations, to my view, add up to a minimally plausible interpretation of the 14th Amendment's textual qualification on "soil citizenship," requiring persons "born or naturalized in the United States" to be "subject to the jurisdiction thereof." After the jump, I'll speculate about whether confusing sensible policy ideas with constitutional law is especially dangerous in contexts where there are nativists out there who care about neither, ready to exploit non-existent legal ambiguities to undermine the prof's own moderate and sensible policy proposal.

Why do I think that Peter's legal interpretation (as opposed to his views on framers' intent or policy) is wrong, and plainly so? If I understand the argument, Peter maintains that, under the Fourteenth Amendment, citizenship is based on mutual consent of the citizen and the nation, and neither the the kids nor the nation consented to citizenship when the kid's only connection to the nation is the fortuity of having been born here. In Peter's words, "these children are here as a result of an illegal act and thus have no claim to membership in a country built on the ideal of mutual consent." But the argument proves too much. If Peter's argument rests on the idea that the infant did not consent to citizenship, then Peter has proven that even the children of U.S. citizens should not become citizens upon being born within the United States. Such an "antipedobaptist" position on citizenship must deny "soil citizenship" to all newborn children, not just to the kids of illegal immigrants, because no infant of whatever lineage possesses the legal capacity to consent to anything. If Peter's argument rests instead on the idea that the rest of us also did not consent to illegal immigrants' infants' being members of our community -- that citizenship is, as it were, a mutual contract -- then it would suggest that Congress could deny citizenship to the children of anyone with whom Congress or the states, in their wisdom, did not wish to make such a contract -- say, children of felons or even slaves -- even when the parents happened to be U.S. citizens.

In short, given the plain text of the 14th Amendment, consent has nothing to do with the matter. The 39th Congress might have mentally endorsed a "mutual consent" theory of citizenship, but they did not write this theory down -- and it is the writing, not the unwritten intentions, that count as law. No one denies that the U.S. government has "jurisdiction" over illegal immigrants and their kids: We can -- and do -- subject them to all of the criminal and civil process to which U.S. citizens are subject. Given the plain textual reference to "jurisdiction," the 39th Congress' unwritten intentions about "consent" would seem to be irrelevant. Peter writes that "it is hard to believe that Congress would have surrendered the power to regulate citizenship for such a group, much less grant it automatically to people whom it might someday bar from the country." Peter's use of the subjunctive in this sentence revealingly (albeit implicitly) endorses the worst excesses of purposivism: The implication is that, had they only given the matter some thought the 39th Congress would have drafted a very different text -- so we should correct their mistake for them through some fancy interpretive moves. I do not know what the 39th Congress "would have" done had they thought about the issue of illegal immigration. But I do know what they actually did: They conferred automatic citizenship on persons subject to U.S. "jurisdiction" -- maybe by mistake. Tough on them: Sometimes (contrary to Saint Paul) the letter trumps the spirit of the law, when the letter is plain and the spirit, textually invisible.

So what? Law professors make fancy, smart, but legally erroneous historico-policy-purposivist arguments about the Constitution all the time. But should we law profs be a bit more cautious about the Constitution's meaning when public tempers run high about an issue?

Nativist readers indifferent to the Constitution but hostile to "anchor babies" will use Peter's piece as ammo in an effort to adopt a position that both Peter and I would abhor -- denying citizenship even to kids who have been in the nation for years. I am absolutely sure that those egging on Lindsey Graham to deny "soil citizenship" to illegal immigrants' children have not the slightest interest in adopting Peter's very thoughtful "genuine connection" theory of citizenship, simply because Peter's theory will do nothing to address their loudest complaint -- the complaint that the school-age kids of illegal immigrants, who undoubtedly have a "genuine connection" to this country under Peter's theory, impose fiscal burdens on us by attending public schools. (Newborns, by contrast, are relatively cheap -- and, therefore, a source of indifference to nativists). The "soil citizenship" clause is a crude but unmistakably clear obstacle to nativists' making good on this complaint. It just so happens that the clause is also an obstacle to Peter's very sensible policy suggestion about requiring a "genuine connection" between infant and nation before conferring citizenship on the former.

Here's my genuinely tentative suggestion: Perhaps we law profs ought to be extra-clear, especially in op-ed pieces, about the distinction between constitutional law and policy when there are people out there who would exploit non-existent ambiguity on the former to pervert the latter. I'd be much happier with Peter's piece if it contained a frank acknowledgment that the text is against him and that his position is more akin to a recommendation for a constitutional amendment in the spirit of the framers than a good interpretation of the word "jurisdiction." Of course, Peter might respond that my view of the term "jurisdiction" ignores some 19th century consent-based gloss on this term that makes the concept of "jurisdiction" less clear than I suggest. If so, I stand corrected -- although it would have been helpful had this legal argument had appeared in the op-ed in the first instance.

Posted by Rick Hills on August 14, 2010 at 12:15 PM | Permalink


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There is only one way to determine whether a legislative re-interpretation of the 14th Amendment can withstand the Constitutional test and that is to pass a bill like H.R. 1868 and then let the Supreme Court decide. The authors of the 14th Amendment never would have imagined their words bestowing citizenship on the offspring of illegal aliens, tourists, foreign students, visa overstays, other people just passing through, and temporary farm workers. I suggest that times have changed to such an extent that the Court may indeed reverse earlier decisions.

In the U.S., one of the strongest incentives for border violations is the 14th amendment which grants citizenship to anyone who is born in this country. “It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry [birthright citizenship].” If there are Constitutional rights to national sovereignty and secure borders, the results of the 14th Amendment are in direct conflict with those rights.

Characterizing all opponents of the unfettered population growth that may result from our porous borders and the 14th Amendment as "nativist readers indifferent to the Constitution but hostile to 'anchor babies'" does a gross disservice to those who legitimately believe, not in the rights of those who were here "fustest with the mostest", but with their right to try to preserve the standard of living and quality of life for their children and grandchildren.

The "limit" of finite natural resources per capita as population increases without bounds is zero. How much farther down that road does anyone think we should go? In a nutshell, the more there are of us, the less there is for each of us, of such natural resources as water (here in the Southwest), arable land, and minerals.

In 1986, 1.3 illegal aliens were granted amnesty; now we have 12 million, a compound rate of increase of 9.7% per year. It doesn't take a law professor or rocket scientist to figure out where that could lead, even without a new amnesty, (12 million x 1.097^40 years = 487 million by the year 2050).

Readers who believe a reinterpretation of the 14th Amendment is highly desirable are not indifferent to the Constitution. They abide by it just as women did before they were granted sufferage.

Posted by: Ultima | Sep 18, 2010 1:58:40 PM

The obvious problem with Schuck's argument, it seems, is that he's trying to use one class of exceptions (American Indians and foreign diplomats/soldiers) as a justification for another class of exceptions, when the two classes have nothing to do with each other. The excluded classes all involve specific and acknowledged relationships between the nation and the excepted groups. Our laws specifically exclude Amerindians and foreign diplomats/soldiers from many of the responsibilities of residents, and thus it denied them one of the rights of residency: passing citizenship on to one's offspring. All of this is almost contractual, and is understood by all parties. Though Amerindians and foreign diplomats/soliders are physically present in the United States they are not really present in the eyes of the law, since the (domestic) law is inapplicable to them.

However, the relationship between the national government and illegal immigrants is completely different. It does not involve any voluntary yielding of jurisdiction by Congress (jurisdiction which the national government has by default over all people within certain geographic bounds). Instead, it involves people over whom Congress has full jurisdiction, and who are currently in violation of a law passed by Congress by virtue of that jurisdiction. (The very concept of "illegal" immigration would be impossible without jurisdiction.) If Congress lacked jurisdiction over illegal immigrants, it would not be able to pass laws allowing for the detainment, search, and deportation. Illegal immigrants are certainly present in the United States in the eyes of domestic law.

To the extent that Schuck's argument is a policy proposal for consent-based citizenship, it is not absurd (though it has some glaring weaknesses). But to the extent that he suggests it is implementable without a constitutional amendment, it's laughable.

Posted by: Andrew MacKie-Mason | Aug 16, 2010 4:25:46 AM

Credobaptist is sort of the industry term.

Posted by: Chris | Aug 15, 2010 6:07:14 PM

I entirely agree with you - Mr. Schuck's contention might be feasible in a perfect world. But in the reality we live in it his proposal provides nothing more than a simple back-door way for nativists to deny citizenship to those whom they view as "non-American," thus creating a creating a permanent underclass of American non-citizens (such as exists in many European countries). Unless America wants to recreate France's impoverished banlieues and have a new wave of urban rioting, we had better keep the Constitution as it is.

Posted by: Inoljt | Aug 15, 2010 1:51:34 AM

If I may engage in some self-promotion, I think I do a good job of taking apart that "mutual consent" argument that Schuck has been pushing for years in my paper forthcoming in the Maryland Law Review and available here:


The basic argument against Schuck's view isn't new- it goes back to Hume's demolition of Locke's actual consent argument more than 200 years ago. As far as I can tell, Schuck has nothing that stands up to Hume's arguments, and I show how they don't work in the immigration context, either. This leaves open the question of whether as strong a jus soli rule as the US has is required. I think it's not a general requirement of justice. (I explain why in the paper linked above.) But, I think there's also quite good reason for a country like the U.S. to have a very strong rule- reasons that we see in play in the current debate, and that I discussed a bit in a blog post here:


Posted by: Matt Lister | Aug 14, 2010 8:56:43 PM

"la loi" singular, "les lois" plural

Posted by: Academie francaise | Aug 14, 2010 1:08:50 PM

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