Share Button

Mitchell Berman on Rogers Smith and birthright citizenship, online degree pro and con, welcome words on loss.

00cover01_what if.inddA Startlingly Revisionist Claim

By any measure, Rogers Smith ranks among the most distinguished members of the Penn faculty. An immensely accomplished and respected scholar of American political thought, Smith has also made profound contributions to the academy, and this university. He richly merits a full profile in the Gazette.

Trey Popp’s cover article, “Who is America?” [Nov|Dec 2018], however, focuses on a single thesis that Smith and Yale’s Peter Schuck have advanced for three decades: that children born on US soil to unauthorized immigrants are not constitutionally entitled to US citizenship, despite the seemingly clear language of the 14th Amendment and a century of settled understandings.

This is a startlingly revisionist claim; Popp notes that “American legal scholars overwhelmingly disagree” with it. That’s true but an understatement. Knowledgeable football fans might “overwhelmingly disagree” that Peyton Manning is the greatest quarterback ever without thinking the claim unreasonable. Smith and Schuck’s constitutional claim is more like a vote for Donovan McNabb—not merely heterodox but head-scratching. Given how those who would repeal birthright citizenship exploit Smith’s and Schuck’s scholarly statures to insulate their proposals from the quick dismissal they warrant, readers should understand better why constitutional lawyers deem the view implausible.

In essence, Smith and Schuck press two claims. First, they argue that the framers and ratifiers of the 14th Amendment “would have wanted” to exclude children of unauthorized immigrants from birthright citizenship had they contemplated the issue, as they did not, illegal immigration being an unknown concept. Second, given these imagined desires, children of unauthorized immigrants are not constitutionally entitled to citizenship at birth, but, instead, can be granted citizenship, or not, by ordinary legislation.

Smith and Schuck’s first claim is hotly contested. Other scholars insist that the Amendment’s framers firmly opposed the perpetuation of any permanent hereditary underclass lacking political power. But I’m not a historian and grant their first claim for argument’s sake. Their second claim, however, is about law; it’s a legal conclusion. Moving from one to the other is not a matter of connecting two adjacent dots but of bridging a chasm, and Smith and Schuck’s arguments are insufficient to the task.

Smith and Schuck rely upon a single premise to travel from their conjecture about the framers’ hypothetical desires to their conclusion about constitutional law: “when the Constitution itself does not answer important questions with clarity, decision-making should usually be left to the people’s elected representatives, so long as they do not violate fundamental rights.”

But this premise cannot shoulder the load. First, it’s an inaccurate statement about American constitutional practice. Although political theorists may reasonably debate whether decision-making “should” be left to Congress in the face of constitutional uncertainty, that is not an accepted proposition of constitutional law. Furthermore, to apply the premise here presupposes that children of unauthorized immigrants lack a fundamental right to birthright citizenship, which is what’s at issue.

Most problematic is the gloss that Smith and Schuck put on the phrase “the Constitution itself.” The phrase usually connotes the plain or original meaning of the text. Yet by this standard, “the Constitution itself” does answer the question. Children born in the United States to unauthorized immigrants are “subject to the jurisdiction” of the United States: they are fully subject to its lawmaking and judicial authority, even including military conscription.

Admittedly, what “the Constitution itself” provides is not sacrosanct. Courts sometimes override clear textual meaning in favor of the framers’ actual intentions (for example, the actual intention to exclude Native Americans from birthright citizenship despite the respects in which they were subject to US jurisdiction) or in favor of judicial precedents, longstanding political practices, or moral judgments widely shared in the polity. But Smith and Schuck rely upon none of these considerations. Instead, they’d bypass the text’s plain meaning in favor of speculative conjectures about what the framers would have wanted to do about an issue they never considered. That is not how legal argument works in our constitutional culture. In disregarding the judicial precedents and historical practices that “living constitutionalists” invoke, in favor of an imaginary touchstone (counterfactual desires) that constitutional “originalists” resolutely disavow, Smith and Schuck chart a course of constitutional reasoning that, as far as I’m aware, is accepted by no other living constitutional scholars.

Rogers Smith is a jewel of the Penn faculty. But even the greatest scholars make mistakes, sometimes whoppers. Whether or not birthright citizenship is an attractive ideal, abandoning it is not a constitutional option for us here and now, given our constitutional text, precedents, and practices.

Mitchell Berman, faculty, Philadelphia

The writer is the Leon Meltzer Professor of Law, professor of philosophy, professor of legal studies & business ethics at Wharton, and codirector of the Institute for Law & Philosophy. —Ed.

Executive Disorder

“Who Is America?” considers how and by whom US citizenship should be defined. The president stated recently that he would like to eliminate birthright citizenship for children born in the US to illegal immigrants, and he thinks that he can do so by executive order. Although interpretations of the 14th Amendment vary regarding birthright citizenship, the Constitution prescribes how it is to be amended and the process does not include executive order. I wonder what other sections of the Constitution the president would like to amend by executive order. How about the oath of office? Instead of promising “to preserve, protect, and defend,” how about “reverse, profane, and amend” the Constitution of the United States?

Tony Moss SW’77, Philadelphia

Citizenship Can Be Complicated

Your article on the birthright citizenship debate awoke memories of my own matriculation to Penn in the fall of 1949 only to face a challenge to my citizenship. I was a freshman at Wharton who hailed from the then Territory of Hawaii, my birthplace. The issue arose in the form of a letter from the Immigration and Naturalization Service signed by the district director at Philadelphia inquiring why I was in the country without a passport.

My first reaction was to be incredulous. I showed it to an acquaintance who was a student in the Law School, who failed to share my disbelief. “Well, what are you doing here without a passport?” he asked. Only then did it dawn on me that I might be in trouble.

I mailed the letter with a note to our delegate to Congress: Joseph Farrington. Shortly thereafter I got his reply. “Upon receiving your letter, I picked up the phone and called Mr. [So-and-So, the director] and let him know how we (emphasis added) feel about this matter,” he wrote. He had my vote for life! I pinned his letter on the wall of dorm room in Mask and Wig House and never heard anything more from the agency.

Only later did I learn of the intricate issues involved, such as “incorporated” verses “unincorporated” territorial possessions, citizens verses “nationals” and the like. But I had learned as a boy that citizenship can be complicated. Right after the December 7th attack that plunged us all into World War II and Hawaii under martial law, the FBI picked up the wife of a banker friend of my parents. She was to be interned as an “enemy alien” since she was said to be an Italian immigrant. Fortunately in her case further facts were brought forward: she came to the islands as an infant when Hawaii was a monarchy. As she grew she passed through the years of the Provisional Government and the Republic prior to annexation. As an adult she had married an Englishman and British citizenship came with it. He, however, later became naturalized but she had not. It was deemed that she was an “allied citizen” rather than an “enemy alien” and released.

Edward J. Greaney Jr. W’53, Kailua, HI

Proud of Penn’s Online Degree

I am writing in response to “Online Undergraduates,” Julia M. Klein’s article describing Penn’s emerging online degree program for nontraditional students [“Gazetteer,” Nov|Dec 2018].

As a Penn alumna I am proud to know this program is moving forward. Penn was a leader in welcoming women to the Ivy League table. This program for nontraditional students rings the same liberty bell.

Online degree programs have been tainted by flimsy programs, price gouging, and unreliable accreditation. However, the popularity of online access to higher education is undeniable.

Most faculty for current online degree programs are one-time, hourly wage workers. You can see the ads yourself on Craigslist and Indeed, etc. While these instructors may have great merit, they lack the consistent infrastructure that graces Penn. Students need consistent feedback and instructors capable of long-term advising and career insights. Alumni networks are also missing from the current array of online learning. Even the best students will have a hard time thriving in the ephemeral online degree realm.

Penn can make a difference for bright students who may have “aged out” of the traditional undergraduate cohort. Socioeconomic and health issues would lead the list of reasons that explain a “30-something” student eager to get into Penn to start and finish a degree.

Charmaine Curtis Jacobs GFA’85,
Santa Barbara, CA

Will Online Degree Support Diversity?

If not all learning takes place in the classroom but also from interaction with those of different backgrounds, then how will Penn’s new online degree program achieve that goal? The ostensible rationale for the program is to increase access and affordability for nontraditional students. It will most likely do so, but it calls into question the commitment the University has made to diversity.

Walt Gardner C’57, Los Angeles

The writer blogs about education at —Ed.

Valuable Words, Sound Advice

Deepest congratulations and thanks to my classmate Laurie Burrows Grad for her powerful “Talking to the Bereaved 101” [“Expert Opinion,” Nov|Dec 2018]. As a former pulpit rabbi, I can tell you how valuable are her words and how sound her advice. Needless to say, these are expressed in most moving, readable, and—because of the content—inspiring words.

Thank you, Laurie, particularly for your top 10 positive suggestions beginning with “I am sorry for your loss” and ending with “say nothing (just be present with the person).” I have taken the liberty of sharing your insights with my colleagues.

Gary Charlestein W’66, Plymouth Meeting, PA

Seeking Individuality in Similarities and Differences

Beth Kepharts’s poignant article “Family Resemblance” [“Alumni Voices,” Nov|Dec 2018] returned me to the moment as a young woman in the 1970s when someone at a Faculty Club dinner observed that I had my mother’s looks and my father’s countenance. This was for me the culmination of years of remarks as to how much I resembled one or the other of my parents. I had always absorbed these as reassuring definitions of myself.

By my mid-20s, among peers I panicked, certain I was equal parts of my parents with no identity of my own. Over time I was able to discern aspects of both my mother and my father which I shared, those I might never experience, and most importantly those of my own attributes and talents that differed from and at times surpassed certain of their own.

Ironically, more than the loss of now impossible connections to my parents, Kephart’s writing awoke in me an acute regret over a teacher 50 years ago whom I did not seek to know better; now I’m grieving my forfeiture of the opportunity. This troubles me far more, as it would have taken me beyond myself and family.

While I treasure the emotional connections of delving into similarities with family members—parents, siblings, perhaps even twins, triplets, etc.—similarities have become for me inherently limiting. It is now far more critical for me to ascertain differences, as it is in these that I have found my individuality.

Jennifer D. Harris, parent, Washington, DC

The writer’s father, Edward G. Harris Hon’61, was Penn’s chaplain from 1950 to 1961. —Ed.

A Small but Powerful Signal

I read with interest the article on Penn’s links to slavery as well as President Gutmann’s public statement [“Gazetteer,” Nov|Dec 2018]. The president’s proposals concern research and communication. Why not provide a number of black students in the public school system with tuition-free fellowships to attend Penn? This act would communicate Penn’s past links to an unjust system. It would also send a small but powerful signal about Penn’s commitment to improving the lives of youngsters in the future. We cannot change the past, but we can impact the present.

Jeffrey R. Kerr-Ritchie G’87 Gr’93,
Durham, NC

Wonderful Person, Project, Piece

Carolyn Pitts was doing a project for the Civic Center Museum (the old Commercial Museum) in 1963, where I was then the registrar. The job was driving me crazy, but I recall her enthusiasm for what must have been the early phases of what became the Cape May conservation program that JoAnn Greco so wonderfully describes in “Operation Gingerbread” [“Alumni Profiles,” Nov|Dec 2018].

I left Philadelphia for Guatemala, not to return for many years. Many thanks for providing a summary of the successes of this wonderful person.

Marshall Joseph Becker C’59 Gr’71,
West Chester, PA

Too Many, Too Much!

In the appendix to Man and Superman, Bernard Shaw wrote, “Titles distinguish the mediocre, embarrass the superior, and are disgraced by the inferior.” By this criterion, Penn has become a mediocre institution, because it is obsessed with titles.

In Penn’s alumni publications, one no longer will read about an economics professor named Kate Winterbottom. She will be referred to as Dr. Katherine L. Winterbottom, the Distinguished Peter J. Plutocrat Professor of Economics and Public Policy at the Throckmorton F. Dogwhistle Center for Pacification and Social Control. Or instead of reading about Dr. Jon Witherspoon, one reads about Dr. Jonathan D. Witherspoon, the Phineas T. Moneybags Professor of Medicine at the Ronald K. McDonald Center for Advanced Nutrition and Public Health.

After reading a few of these, my response is something between losing interest in reading any further and losing my lunch. Some professorships include the word “distinguished.” Are professors without this designation undistinguished and mediocre? Some research centers include the word “advanced.” Are centers without this designation backward and mediocre?

I do not blame the professors or alumni publications for any of this. The fault lies with the administration, which has gone along with the insidious social trend of branding everything and everyone. The message these titles send to prospective wealthy donors is that if you part with some of the vast sums of money you have sucked out of the economy, you too can have a research center or an endowed professorship named after you, and your name will be mentioned in perpetuity.

I am not a rich prospective donor, so I am not the intended audience for this hyperinflated branding and advertising. If I pick up a magazine containing ads for Cartier and Louis Vuitton, I know the magazine was written for people other than me. I now feel the same way about Penn’s alumni publications.

W. C. Young C’73, Arlington, VA

The writer titles himself “The Undistinguished Mark Twain Professor of Plain Speaking at the John Holt Center for Academic Integrity.” —Ed.


Does Eva Moskowitz’s Success Academy story [“The Rigors of Success,” Sep|Oct 2018] question, in part, the purpose and goals of the University, and in particular, the importance and value of our Graduate School of Education? In other words, is a graduate degree in education helpful as we consider more broadly and deeply the challenge of raising all of our children to be well, able, and responsible adults? And last, is this knowledge of education essential as we endeavor to be a more democratic nation?

Ed Goldberg GEd’02, Merion, PA

Turning Tables?

I enjoyed reading the article “Free Exercise in Peril” [“Expert Opinion,” Sep|Oct 2018]. However, my views on the court rulings are contrary to the author’s. After I graduated from Penn my life was a mess until I accepted Christ into my life. This is a very big game changer in regard to the issues the author Joshua Matz brings up. In regard to the cake maker who at first had to pay a huge amount to people with different sexual drives—why shouldn’t restaurant owners who refuse service to Trump supporters also be fined?

Stephen Bland C’59, Lexington, TN

Tendentious Description Taints Cakeshop Argument

The thesis of Joshua Matz’s thoughtful and provocative comparison of recent Supreme Court cases is weakened by his misrepresentation of the character of Masterpiece Cakeshop. The baker, Jack Phillips, in Matz’s telling, insisted that “religious marketplace participants enjoy a unique constitutional entitlement to opt-out of dealings with those whom they view as sinners.” This is a tendentious description. As the proceedings of the case make clear, Phillips did not seek relief from serving those he deemed to be sinners—a category that, given his traditional Christian beliefs, presumably would include every person in the world (including himself). Phillips had previously served gay and lesbian customers on many occasions and was willing to continue to do so. He sought relief from being compelled to design a cake with a message that he deemed to be contrary to his faith—in this case, a cake celebrating a same-sex wedding.

The First Amendment carve-out from anti-discrimination laws that Phillips was seeking, then, is considerably narrower than Matz depicts it. The author’s nightmare scenario—“Gays, women, Jews, Republicans, veterans, and many others might have to Google who will serve people like them before buying basic goods”—is far-fetched. In the Jim Crow South, where African Americans faced widespread denial of service, this concern would have been valid. In contemporary America, no gay (or woman or Jew or Republican) has plausibly claimed that the moral qualms of vendors such as Phillips represent a threat to their access to goods or services. A ruling against Phillips in Masterpiece would not have enhanced the economic access of gays and lesbians, but it would have driven out of the marketplace many Christians and others who perceived that they would be compelled to violate their consciences in the course of their commercial activities.

One of the reasons such a diverse array of people has access to such a vast variety of goods and services in the United States is its remarkably pluralistic marketplace, where people of all persuasions are free to participate. Contrary to Matz’s characterization, that pluralism is supported rather than undermined by the Court’s ruling in Masterpiece.

Kevin Schmiesing Gr’99, Sidney, OH

No Love, Actually

I enjoyed and read with special interest Bob Cort’s article “Our Love Affair with Movies” [Jul|Aug 2018] for several reasons.

As someone of his generation, I enjoyed his take on the movies that were also important in my life and the connections he made between the films that formed us and what was going on in the world at that time.

Also, as a Wharton graduate student, I had the privilege of working for Bob and Columbia Pictures through the Wharton Applied Research Center. After graduation, I asked Bob about a job at Columbia, and I remember him saying to me: Do you love movies? To him, that was a prerequisite for working in his shop. I had to honestly answer “no.” Yes, I enjoyed the movies (and appreciated Columbia financing most of my MBA), but I was not a film buff. That settled, after graduation, I focused my job search outside of Hollywood.

Karen Rosenberg Caccavo WG’79, New City, NY

Share Button

    Leave a Reply