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The Slayer Rule and Birthright Citizenship

November 6th, 2018 Leave a comment Go to comments

A comment to Prof. Peter Schuck over at Prawfsblog on birthright citizenship. He wrote the leading book on the subject, in 1985.

 

Do you discuss the slayer rule in your book, the case of Riggs v. Palmer where the murdered grandson doesn’t inherit? I think that’s most people’s moral intuition, and a way to do a common law interpretation of an ambiguous constitutional provision.

The idea: Someone shouldn’t be able to benefit from his crime, or that of his friends and relatives, even if we don’t punish him.

Hence, if the mother is in the US illegally, she should not be able to get citizenship for her child. A weaker version is that even if the child is able to get citizenship, she should not be able to use him as an anchor baby and get priority in applying for citizenship herself.

That also distinguishes Wong Ark from the child of an illegal alien. Wong Ark’s parents were not immigrants—they did not intend to renounce China and live in the US and they did return to China— but they were in America legally.

Also, this principle says that the child of someone who was brought here illegally as a slave when the slave trade was illegal would be a citizen. True, that person was here as the result of an illegal act, but the act was by an enemy, not by a friend. (In addition, solving the problem for the present day,  maybe that statute would not deport the child, since the child was not imported, and so the *grandchild* would be a citizen.)

 

 

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