Thursday, August 05, 2010

The Fourteenth Amendment and the RTFM Principle

Mark Tushnet

Republican proposals to "examine" the idea of birthright citizenship under the Fourteenth Amendment have been met with outrage from liberals. I have views on the merits of the interpretive question, but they're irrelevant here. What's of interest to me is the form that liberal opposition has taken -- an invocation of the core interpretive principle RTFM as conclusive. (When you're setting up some new electronic equipment, the first thing you ought to do is Read The ... Manual.)

Usually it's conservatives who invoke the RTFM principle as conclusive, and liberals who offer more subtle interpretive principles. On birthright citizenship, there's one of those bothersome little boxes over to the side -- the phrase "subject to the jurisdiction thereof." It's generally accepted that the phrase was understood to exclude from birthright citizenship children of diplomats and American Indians. But, does it authorize Congress to exclude any other groups?

The Supreme Court said "No" in Wong Kim Ark (1898), but, notably, over two dissents, which suggests that it's not enough to RTFM. The dissenters distinguished between territorial (and adjudicatory) jurisdiction on the one hand, and political jurisdiction on the other. They argued that the little box on the side authorized Congress -- or there, the treaty-makers, the Senate and the President -- to exclude from birthright citizenship those whose parents were not subject to the political jurisdiction of the United States, and included in that category those whose parents were made ineligible by treaty for naturalization . In 1985 Peter Schuck and Rogers Smith revived the dissenters' argument.

Now, these were a dissent and an academic study that gained no purchase in the law, after all, but they suggest that the RTFM principle isn't quite enough to do all the work liberals want it to. (You could say that aliens ineligible for citizenship are not subject to the political jurisdiction of the United States, but aliens not lawfully present are; or you could say that the phrase refers to legislative and adjudicatory jurisdiction, but then you're going to have to deal with the fact that diplomats to some extent and American Indians generally are indeed subject to the legislative and adjudicatory jurisdiction of the United States.)

And, at some level, it's a good thing that the RTFM principle isn't conclusive. Liberals really shouldn't be selective in the deployment of interpretive methods, using RTFM here but going all "living constitutionalism" about the First or, perhaps more notably, the Second Amendment.

Another thought: Republicans might be well-advised to package their re-examination of birthright citizenship with a similar re-examination of the constitutional bar on naturalized citizens becoming President (the Arnold Schwarzenegger/Jennifer Granholm clause). This one's clear enough, but at best marginally justified in today's world. It's due for re-examination. (One problem for Republicans, if they are serious about the re-examination -- which, cynical me, I doubt -- is that they might be able to develop arguments that children of parents not lawfully present in the United States can be excluded from citizenship by statute, but the "natural-born citizen" clause isn't open to plausible interpretations that would authorize Schwarzenegger/Granholm legislation; you really do have to amend the Constitution to get them eligible for the presidency.)

Older Posts
Newer Posts