Legal Commentary

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.