« JOTWELL: Levy on Re on Marks | Main | I am Spartawitz or Wearing a yarmulke after Pittsburgh »

Tuesday, November 06, 2018

Peter Schuck Replies to his Critics on Birthright Citizenship

[Note from Rick Hills: At Peter Schuck’s request, I am posting the following response written by Peter regarding recent discussion of his views on birthright citizenship]

To anyone who is interested in my actual position on birthright citizenship for the U.S.-born children of undocumented immigrants:

The flood of criticism, much of it on the Immprof listserv and Prawfsblawg, that has engulfed me (while traveling abroad, no less) and my co-author Rogers Smith deserves a reply. Fortunately, mine can be fairly brief as Rogers has already published his own series of replies on the Immprof listserv, with which I agree almost entirely. But here is where we differ: Rogers seems less troubled than I am by the toxic, corrosive, name-calling, motive-assuming, and debate-chilling tenor of a few of the published comments, typified by that of Paul Schmidt on Immprof, who stated (for instance) that “[s]omebody should take these characters [Rogers and myself] on and ‘out them’ for the race baiters that they truly are.” Rogers, fine scholar, idealist, and gentleman that he is, imagines that even this bombastic exercise in impugning the good faith and motives of two serious scholars who have long advocated more generous immigration policies will somehow advance the cause of egalitarian solidarity. To me, this is wishful thinking that can never justify such ad hominem comments among scholars about a genuinely difficult legal and policy issue. Far from coalition building, this kind of self-righteous intolerance can only confirm the worst suspicions of the coalition partners Rogers hopes to attract.

On to a few substantive points.

1. Our analysis, published in our 1985 book, Citizenship Without Consent, and updated in the Fall 2018 issue of National Affairs, has been discussed extensively. We have -- either in the book or our article — rebutted to our satisfaction the criticisms leveled against our analysis. A non-exhaustive list of these answered criticisms would include, in no particular order: the claim that the legal equivalent of undocumented immigrants did in fact exist at the time of the framing of the Citizenship Clause; the claim that the Court's Wong Kim Ark decision refutes our analysis; the claim that birthright citizenship (“BC”) is an essential ingredient of a just and liberal society; the claim that our understanding of the Clause amounts to support for the justly infamous Dred Scott decision; the claim that our position would deprive such children of basic constitutional rights; the claim that whatever the situation was in 1868, our current population of some 11 million undocumented adults and children requires an inclusive BC rule; the claim that our long-standing experience with BC makes the constitutional and policy issues moot; and the claim that the citizenship status of undocumented children is too vital to be left to Congress and the political process. We suspect that nothing more we can say after almost 35 years of debate will ever persuade those who continue to make these claims.

2. In a recent post on Prawfsblawg, Professor Rick Hills has analyzed the criticisms of our position and rigorously showed that the critics' constitutional analysis is not convincing.

Rick nonetheless supports BC on "pragmatic" grounds, grounds which he takes to be relevant to the constitutional analysis. He may well be right, and nothing in our writing suggests otherwise; indeed, we discuss the pros and cons of BC, including the ones mentioned by Rick. But as he emphasizes, these are policy arguments and our analysis emphasizes precisely this -- that Congress is to weigh the policy arguments pro and con, placing whatever weight it deems best on various factors including the ones Rick and we have discussed. Insisting that the Constitution has settled this question in favor of unqualified BC not only preempts this policy debate but is intended by our critics to do just that. Rogers has eloquently explained why such a congressional debate is essential, including the point that refusing to hold such a debate plays into the hands of Trump and enables him to play the elitism, anti-majoritarian card in his approaches to voters. Reasonable people can differ about the merits of Rogers' position on this; I happen to agree with him, perhaps even more emphatically.

Should such a debate occur, however, I question one aspect of Rick's pragmatic argument. He writes:

"The rank-and-file voters who object to birthright citizenship, however, are not concerned with these non-resident Americans who lack ties to the USA. They are instead upset by the entry into citizenship of kids who make their home here and whose actions suggest that they bear as complete allegiance to this country as any other natural-born member.”
Rick cites no evidence to support this claim, and I doubt that it exists. Certainly, the practice of "birth" tourism is the rhetorical reddest of red meat for BC opponents, but other factors (again, as we and Rick aver) are relevant to such an analysis. At the end of the debate, the current BC rule might well be retained and affirmed -- but we would have the benefit of an informed, democratic judgment on the issue.

3. Despite some of the comments on our position, BC is not a "liberal" or "conservative" issue. For what it's worth, Rogers is a full-throated, egalitarian liberal, I am a self-styled militant moderate who is emphatically pro-immigration and worries, perhaps even more than Rogers does, about the downgrading of democratic debate in favor of judicial fiat with respect to many (not all) issues, and many conservatives will endorse the current rule, usually on pragmatic rather than constitutional grounds.

Posted by Rick Hills on November 6, 2018 at 05:19 AM | Permalink


"rebutted to our satisfaction the criticisms leveled against our analysis"

Victory through fiat?

Posted by: twbb | Nov 16, 2018 10:32:19 AM

The December 22, 2017 issue of the Wall Street Journal has a detailed article on Chinese birth tourism to American Samoa.

Posted by: Paul Sonnenfeld | Nov 6, 2018 9:58:24 PM

Do you discuss the slayer rule in your book, the case of Riggs v. Palmer where the murdered grandson doesn't inherit? I think that's most people's moral intuition, and a way to do a common law interpretation of an ambiguous constitutional provision.

The idea: Someone shouldn't be able to benefit from his crime, or that of his friends and relatives, even if we don't punish him.

Hence, if the mother is in the US illegally, she should not be able to get citizenship for her child. A weaker version is that even if the child is able to get citizenship, she should not be able to use him as an anchor baby and get priority in applying for citizenship herself.

That also distinguishes Wong Ark from the child of an illegal alien. Wong Ark's parents were not immigrants---they did not intend to renounce China and live in the US and they did return to China--- but they were in America legally.

Posted by: Eric Rasmusen | Nov 6, 2018 9:34:07 AM

Post a comment