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Sunday, August 15, 2010

Peter Schuck's response to Rick Hills' complaints

I (Rick Hills) am posting the following response to my earlier criticism of Peter Schuck's op-ed, e-mailed to me by Peter:

"I am indeed surprised -- not that you disagree, but that you disagree without having read a book-length treatment of this issue: : Peter Schuck and Rogers M. Smith (a certified lefty), Citizenship Without Consent: Illegal Aliens in the American Polity (Yale UP, 1985). To address some of your specific charges, we show that, according to the public law theorists who were widely followed at the time going back to Grotius, Puffendorf, and Vattel, consent to the child was imputed from consent to the parents (which is common in many areas of law), so the putative anomaly that you think our interpretation leads to is not anomalous: Our interpretation would not lead to exclusion of the child in the case of legally-resident parents.

"In our book, we go through the interpretation of the jurisdiction clause very painstakingly, and, unless you think that the Court should read such words as 'subject to the jurisdiction' without considering the exceptions -- and the reasons for the exceptions -- that were almost universally understood to qualify 'subject to the jurisdiction' although not stated as such in the text, then this particular criticism cannot stand. So, although we concede that this is not a slam-dunk interpretation of the Clause, it is the best interpretation. Even the Great Textualist/Originalist would recognize that some words are not self-defining, if only because (in this case) Indians, diplomats, and soldiers are indeed subject to the jurisdiction of the US in the obvious sense of the word, yet they were clearly intended to be excluded -- so one must go beyond that obvious meaning in order to respect the intent of those who wrote it.

"You raise a fair and difficult question about whether one should trim one's interpretive sails out of fear of what evil Republicans will do with them. If we were straining to reach our interpretation, that would be one thing. But we weren't -- and my commitment as a scholar is to research and ponder important issues, speak the truth as I find it, and let the political chips fall where they may. I hope that you agree but it sounds like maybe you don't."

Posted by Rick Hills on August 15, 2010 at 06:50 PM in Constitutional thoughts | Permalink

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Comments

Wow. Mr. Schuck is just . . . wrong. Wow.

This reminds me of a skit on The Daily Show. It was available here, but appears to no longer be viewable: http://www.thedailyshow.com/watch/mon-march-29-2010/health-care-slime-machine

John Oliver uses violent rhetoric to describe what will happen to those who vote for healthcare reform. When he's called out on the rhetoric, he demurs by saying it's metaphoric.

This is not to say Mr. Schuck uses violent rhetoric. Rather, he appears to use the same technique of saying something and then, when called out on the logical interpretation and conclusions of the statement, denying that's what he means.

Most striking, however, is the lack of discussion I've seen on the purpose behind the citizenship clause of the Fourteenth Amendment. It was intended to be broad in order to clearly, and unequivocally, declare all former slaves to be citizens.

In other words, slaves who were born in the U.S., lived in the U.S. their whole life, could not be denied by southern states their Constitutional rights through the very arguments being put forth now by Mr. Schuck. (And yes, those arguments were being made at the time.)

Worse, academically the interpretive path of relying on common law and public law theorists is incredibly weak. The Fourteenth Amendment was specifically created to, in effect, overturn attempts to leverage these theories to deny former slaves their Constitutional rights. Therefore, one cannot rely on the very laws meant to be obviated in order to describe the ambit of the Fourteenth Amendment.

And then there are all the other reasons why this is a legal interpretation that cannot be sustained.

Policy arguments dressed in legal argument costumes are, as in the Daily Show episode, nonetheless policy arguments.

I think Mr. Hills is being very polite and collegial to Mr. Schuck's arguments than they might deserve.

Posted by: John Nelson | Aug 16, 2010 10:10:30 AM

Peter writes: "[W]e show that, according to the public law theorists who were widely followed at the time going back to Grotius, Puffendorf, and Vattel, consent to the child was imputed from consent to the parents (which is common in many areas of law), so the putative anomaly that you think our interpretation leads to is not anomalous: Our interpretation would not lead to exclusion of the child in the case of legally-resident parents."

I am still confused. If Congress confers the status of permanent resident on an alien, then how has Congress "consented" to the conferral of full citizenship on the child? Why cannot Congress say, "we invited the parent to stay here indefinitely while maintaining a dual allegiance to other sovereigns and without enjoying voting rights or other basic aspects of citizenship. This hardly implies that we consented to the aliens' childrens' obtaining more rights simply because they happened to be born within our territory."

Indeed, if Congress’ consent to the parents’ presence is the gravamen of children’s status, then I would think that Congress has de facto consented to the presence of most undocumented workers. The reality is that Congress wants to have it both ways: They want to turn a blind eye to the presence of "illegal" yet de facto permanent aliens that everyone knows are essential to our economy, but Congress also wants to satisfy the nativists by refusing to confer full citizenship status on these members of our community. The result is a permanent underclass of covert guest workers, without labor, voting, or other basic rights. Given that Congress manifestly has no intention of deporting 10-12 million undocumented workers, why has not Congress (de facto) consented to those workers' indefinite presence in this country sufficient for the Schuck-Smith "mutual consent" theory to kick in? At the very least, under your theory, the kids of illegal immigrants ought to be full citizens at birth if their parents have lived in the USA for some reasonable period of time (say, a year) and have domiciliary intent. Why do we need to wait until the kid's tenth birthday to figure out that Mom and Dad are not going anywhere -- that, indeed, their very desire to have an "anchor baby" suggests a domiciliary intent to "anchor" themselves here indefinitely, an intent suggesting a "genuine connection" to the USA sufficient to justify citizenship for the child?

In short, after taking a look at pp 9-89 of your book, I conclude that the distinction between illegal/temporary aliens and permanent aliens seems unrelated to the "mutual contract" theory that you, Vattel, Pufendorf, Grotius, etc, espouse. Nothing uttered by Jacob Howard & Co. seems to dispel this notion - especially given that Howard and other members of the 39th Congress really did not have an inkling of the problems associated with guest workers and illegal and temporary aliens.

Of course, Congress' "consent" to the child's citizenship might just be a convenient legal fiction that serves the purpose of insuring that we do not develop a permanent underclass of guest workers who lack voting rights. But then the issue really is a question of pure policy, right? We should, therefore, drop the pretense that historico-purposivist analysis will bake any legal bread and just focus on the policy question of whether the benefits of insuring that transients' kids do not become full citizens by the fortuity of a couple days' stay in a hospital is worth the costs of making equivocal the status of illegal aliens' kids born and raised in the U.S.A.

If the question is posed in this policy-based way, then the answer seems easy to me: The benefits of simple “soil citizenship” for kids born in US territory greatly outweigh the costs. The most cursory knowledge of our immigration bureaucracy suggests that kids would not be able to prove a "genuine connection" sufficient for full citizenship for years -- even decades -- because our immigration judges face a ridiculously large backlog of cases in their docket of every sort (asylum, Form I-130 petitions, etc). Moreover, you would have to expect undocumented workers to queue up at the ICE to legitimize their kids while risking their own deportation. The chance of false negatives -- kids with genuine connections having full citizenship unreasonably delayed or denied -- seem immense. The benefits of eliminating false positives by ferreting out a few cases where the undocumented parents are pining to return to the Old Country and have no long-term genuine connection to this country seem modest (especially given the construction of the Wall, which has transformed many would-be sojourners into permanent residents).

Peter also writes: "You raise a fair and difficult question about whether one should trim one's interpretive sails out of fear of what evil Republicans will do with them. If we were straining to reach our interpretation, that would be one thing. But we weren't -- and my commitment as a scholar is to research and ponder important issues, speak the truth as I find it, and let the political chips fall where they may. I hope that you agree but it sounds like maybe you don't."

Here's my suggesttion: Whenever law profs write on topics where feelings run high, they have a special duty to make sure that their words are not misused for causes that they deplore. I think that it would be a good idea for you to send a strong signal to your nativist readers that your theory would do little or nothing to address their concerns about “anchor babies” –- in fact, your theory suggests a certain fondness for “anchored” parents -- and that, in fact, your theory would confer citizenship on the vast majority of kids of long-term illegal immigrants (albeit at the price of their having to evade the ICE for a few years so that their kids can enter, say, third grade). You can avoid giving inadvertent aid and comfort to nativists without sacrificing any academic integrity: You just need to send a message that the chips will fall far from where your nativist readers would like them to fall. Remember that the sponsors of these re-definitions of 'soil citizenship" manifestly seek to deport all kids of illegal aliens, regardless of whether they have long-term ties to this nation. Given your legal and policy views, it is a mistake for you not to distance yourself more from these folks. (I write this as a lifelong conservative -- although hopefully not an "evil" -- Republican, albeit one deeply hostile to the Know-Nothing nativist tradition that has plagued my Party since its inception in the 1850s).

Posted by: Rick Hills | Aug 16, 2010 8:36:03 AM

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