Legal Commentary

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."