Constitutional Interpretation – Page 33 – Marquette University Law School Faculty Blog

Best of the Blogs (Well Mostly the Immigration-Related Ones)

Post author:Jessica E. Slavin
Post published:September 4, 2010
Post category:Civil Rights Constitutional Interpretation Criminal Law & Process Human Rights Immigration Law

Refugee law does not get all that much attention in the blogosphere, even on the immigration-related blogs, probably because the numbers of refugees and asylees are so low in the context of U.S. immigration as a whole. This week, though, there was a little discussion of a new study showing that asylum-seekers’ success rates have gone up to about 50%. The study also confirms that asylum requests (that is, requests for refugee status made by people who are in the United States already) continue to fall. The Wall Street Journal’s Law Blog mischaracterized the study to some extent, asserting that “Recently revealed statistics show that illegal immigration is down. But another method of gaining residence in the U.S. is up: seeking political asylum,” when, as I just explained, asylum requests actually continue to fall. It is only the rate of success that has gone up.

The increased success rate is surely due to the fact that more asylum seekers are finding legal representation: as the study explains, unrepresented asylum seekers have a success rate of about 11%, while those with attorneys have about a 54% chance of winning asylum. The study also shows that the dramatic disparities in grant rates by different judges continues (e.g., in the New York Immigration Court, judges’ asylum grant rates ranged from 6% to 70%).

In any event, the other statistics referred to in that WSJ Law Blog post are from a Pew Hispanic Center study showing a dramatic decline in the population of undocumented immigrants in the United States over the past few years.

We Have Met the Other and He Is Us (Law Professors)

Post author:Jessica E. Slavin
Post published:August 21, 2010
Post category:Civil Rights Constitutional Interpretation Federal Law & Legal System Human Rights Immigration Law Political Processes & Rhetoric

In the latest development in what is starting to feel like a trip “through the looking glass” to some bizarre version of the legal world as I understood it in law school, actual, important politicians have raised the spectre of repealing or amending or re-interpreting the Fourteenth Amendment, specifically, its provision that “[a]ll 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.” It seems especially sad that those who want to abolish or change the long-standing, post-Civil-War principle of birthright citizenship in the United States are, mainly, Republicans: one might call the Fourteenth Amendment “one of the [Republican] party’s greatest feats,” as did the Economist in the article linked above. In any event, the Economist article does a pretty fair job, I think, of discussing the various perspectives on the issue (including pointing out that the so-called “anchor baby” idea is almost completely a fallacy, since a child cannot petition to make his parent a citizen until after the child is 21).

Perry v. Schwarzenegger and the Slippery Slope

Post author:Bruce E. Boyden
Post published:August 5, 2010
Post category:Constitutional Interpretation Federalism

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue I want to comment on is what Perry means for the future of the constitutional treatment of same-sex marriages.

Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.

If that happens, and if American society continues to develop tolerance for same-sex couples, will we be locked into sub-optimal constitutional doctrine? Not entirely. As I argue in my forthcoming article on this subject (in the Alabama Law Review), there is an escape valve.