6.0 Constitutional interpretation and the scope of birthright citizenship

Who counts as a citizen of the country is a framework question. Does the 14^th Amendment confer birthright citizenship on the sons and daughters of all immigrants, even those illegally present? Or does the ambiguity of the concept of "jurisdiction" leave room for laws defining natural citizenship less broadly? The puzzle's solution depends on what method of constitutional interpretation you apply.

Our issue is interpreting the first clause of Section 1 of the 14^th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The ambiguity of "jurisdiction"—a context-bound concept in U.S. law—sets the problem. I earlier concluded that textualist interpretation offers much to recommend jurisprudentially, as it comports with American Constitutionalism. Using essentially textualist methods, the U. S. Supreme Court held for the broadest birthright-citizenship in dicta in the thorough opinion United States v. Wong Kim Ark (1898) 169 U.S. 649. The Wong Kim Ark court found the term's meaning authoritatively interpreted in the earlier decision The Exchange (1812) 7 Cranch. 116. (See Wong Kim Ark, supra at p. 683.) Note the rule-governed, text-based nature of the interpretation in this passage:

By the civil rights act of 1866, 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,' were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, 'not subject to any foreign power,' were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children or foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the civil rights act, 'not subject to any foreign power,' gave way, in the fourteenth amendment of the constitution, to the affirmative words, 'subject to the jurisdiction of the United States.'

(Wong Kim Ark, supra at p. 688.)

Notice the use of analytic rules, a kind of common law of interpretation. In construing "jurisdiction" the court solves the puzzle like an equation, substituting a definition obtained from an earlier case. This is excellent textual analysis, but as authority, it is dicta: Wong Kim Ark found that one foreigners' son was not a citizen because he was born outside the U.S.

The Wong Kim Ark dictum wouldn't deter an Originalist; he observes that the 14^th Amendment, designed to grant citizenship to slaves, did not have the offspring of illegal immigrants in contemplation: the United States hadn't yet passed any immigration laws. Strong Originalists are loathe to restrict the power of Congress when the legislation forbidden was outside the originators' contemplation, but omission of any protection not in the original contemplation is an extreme Originalist variant, which struggles hopelessly against vagueness, as it supplies no guidance on how much information about a future event must fall outside the originators' anticipation to disqualify. Professor Richard A. Posner proposed a more moderate Originalism, according to which the judge must place himself in the position of the originators: what would the originators advocate if they could foresee the new conditions, assuming the least historical modification yet placing the matter in the judge's purview. Using this approach, a court could imagine what the originators would have provided if immigration restrictions had existed at the time of the 14th Amendment's promulgation. An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive which yielded no offsetting gain for the extant inhabitants. Such a judge would be likely to rule that an illegal immigrant's child is not—in the sense the proponents and ratifiers intended—born within the "jurisdiction" of the United States.

5.15 Conclusion. So, how is judicial statutory interpretation possible in the absence of a consensual interpretive theory?

(Fifteenth in series: The interpretation of statutes and the denial of judges' powers.)

To sum up this investigation — what's the solution to the interpretive enigma: judges agree on interpretations, despite disagreeing on what a legal interpreter should do? The solution consists of two constraints: the logically inevitable common law of statutory interpretation and the politically necessitated convergence of judicial interpretations.

The common law of interpretation — the reigning theory articulating a legal culture's interpretive practices — includes such loose and defeasible constraints like the maxims of construction. Other examples from the common law of statutory interpretation are some jurisdictions' rules governing when "shall" is construed as "must" versus "may." The common law of statutory interpretation is underarticulated.

Why has the important role of the common law in statutory interpretation suffered neglect, this obvious concept sometimes rejected on jurisprudential principle? Scholars underestimate the interpretive common laws' constraint because it works in tandem with a second constraint, one not necessarily within jurists' awareness. Scholars ignore that constitutions can cause themselves to be construed a certain way without the construction being implied by its provisions. The historical tendency for interpretations to converge in line with the constitution's structural designations is proposed an example of how a constitution influences its long-term construction.

5.14 Checks and Balances at Trial

(For best understanding read the companion kanBARoo court 68th Installment first: No to Victim-Impact Statements.)

(Fourteenth in series: The interpretation of statutes and the denial of judges' powers.)

The system of checks and balances at the core of the American constitutional system penetrates the government structure and, increasingly, legal categories are conceived in its terms. Does the system expand even to legal domains whose constitutional logic demands other principles? Applying balancing concepts to rights where rights are absurd — asserting the so-called rights of victims of crime — may be an example.

The oxymoronic victims'-rights movement asserts the rights of the victims of crime against criminal defendants, although the U.S. Constitution provides no victims' rights and the logic of giving criminal defendants rights' protection, when defendants must battle an opponent as powerful as the state, doesn't logically generalize to supplying victims — who are not even the defendants' legal adversaries — parallel rights. Yet, the 50 states and federal government, under intense political pressure, have granted victims the right to stage diatribes against criminal defendants in noncapital cases, in 38 states in capital cases, for which the U.S. Supreme Court holds provisions for victim-impact statements are valid, overturning two of its decisions taken within five years.

The opinions of the justices who legitimatize victim-impact statements are largely based on balancing the rights of defendants to introduce evidence in mitigation. The dissenting justices' opinions in the cases overturned are striking in demonstrating how far astray the checking-and-balancing framework can lead when misapplied.

Consider Justice White's dissent in Booth v. Maryland:

If anything, I would think that victim impact statements are particularly appropriate evidence in capital sentencing hearings: the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in [citation] by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.

(Booth v. Maryland (1987) 482 U.S. 496, 517 [dis. opn. White, J.])

Or consider Justice Scalia's dissent in the same case:

To require, as we have, that all mitigating factors which render capital punishment a harsh penalty in the particular case be placed before the sentencing authority, while simultaneously requiring, as we do today, that evidence of much of the human suffering the defendant has inflicted be suppressed, is in effect to prescribe a debate on the appropriateness of the capital penalty with one side muted.

(Booth v. Maryland, supra at p. 520 [dis. opn. Scalia, J.].)

Justices Scalia, White, and O'Connor, who joined the opinions, make a balancing argument in which victim-impact statements balance mitigating evidence, despite the wholly different constitutional logic applying to victim and criminal defendant.