Judge Kavanaugh: What Do You Think About the Intellectual Case for Racism and Xenophobia?

Extreme views on race and immigration germinate in hate groups. But some public intellectuals have built a legal argument that is cited to support the policy objectives of hate groups.

A 1985 book by Peter Schuck (Yale Law School) and Rogers M. Smith (Yale Political Science Department) has achieved real significance today among people such as Stephen Miller and former-Yale law student, Kris Kobach. The book is Citizenship Without Consent: Illegal Aliens in the American Policy.

Brett Kavanaugh was likely exposed to the book and its teachings at Yale law School.

This post is a critique of the book—and more important, the argument made by Schuck and Smith.

This is important because a growing number conservatives want to reverse a 120-year understanding that the 14^th Amendment created citizenship for anyone born on U.S. soil. The book says that Americans must consent to citizenship—that is, birthright citizenship is not automatic. 

If adopted, this policy idea would create a much whiter, racially homogenous voter (and citizen) base.

Here is an excerpt of Gerald Neuman’s critique (quoting follows):

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The authors conclude that the Constitution mandates citizenship for children born within United States territory to parents who are citizens or permanent resident aliens. The logic behind this mandate is that admitting the parents as lifelong members entails the nation's tacit consent to citizenship for their future offspring (pp. 117-18). No so such guarantee is made to children of aliens admitted temporarily, or of undocumented aliens, to whose presence the nation has never consented (pp. 118-19). 

The authors propose that the Supreme Court revise its interpretation of the fourteenth amendment, so that Congress may exercise the power to deny American citizenship to these groups in the future. 

Schuck & Smith claim that mandating citizenship for undocumented children impairs the nation's right of political self-definition (p. 99). Further, they argue that our present welfare state makes the rewards of unconsented membership too alluring to aliens and too costly to the nation (pp. 103-115). They urge that withholding citizenship would contribute to restored control over our borders, since ascriptive citizenship "can only operate, at the margin, as one more incentive to illegal migration . . ." (p. 94).

I regard the authors' recommendation as resting upon a tragic moral misjudgment…

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Neuman raises legal arguments against Schuck and Smith, including more than a century of settled precedents that have consistently understood the concept of birthright citizenship. 

I would ask Judge Brett Kavanaugh, a Yale Law graduate, what he thinks about this book.