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Some Distinctions in the Notion of Consent

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4 Responses

  1. Patrick J. Charles says:

    Doesn’t your theory of jus soli have to be based on some form of minimum consent such at the doctrine of alegiance in temporary or local form? It was the well spring by which all protection was based. An alien could not claim protection on any other footing, except for those basic guarantees of protection of life and basic liberty. As I am writing a chapter for a SAGE publication and a law review article on this topic, the drafters of the fourteenth amendment were in general concurrence on being a member of the political community. Now, I am not saying, as it stands today that that children of unlawful aliens are not citizens. Absent congressional legislation on this topic, how can we limit citizenship? However, this does not mean there aren’t any legal limitations that can be imposed on jus soli citizenship.

  2. Matt Lister says:

    Thanks for your comment, Patrick. I always feel a bit sad when blog posts have no comments- and not just on my own posts.

    I’m not sure I follow your argument, though. Where do you see consent playing a role in a theory of jus soli citizenship, and who (and when) is the consent supposed to be given? My understanding of Schuck and Smith’s view, for example, is that they argued that consent must be “mutual” between the current citizens and the new citizen, the one becoming a citizen by being born. That’s already a pretty odd idea- a baby can’t consent to anything, after all. So, there are a lot of moves made, and it ends up being pretty metaphorical. (No one alive today gives express consent in their account, for sure, and they don’t explain why their account can do the needed work if it’s a tacit consent account.) Here we often end up looking at the parents of the children in question, but that won’t work either, for several different reasons that I go into in length in the paper I cite above. But I’d be interested to hear more about how you see consent working in a jus soli account of citizenship, if you feel like it. (I often find blog comments to be a hard place to do serious work, so I understand if you don’t feel like it.)

    I’m also a bit unsure about the last part of you comment, and if we disagree or not here. My post here isn’t a comment on US law or on the constitution. Rather, it’s about what sort of role consent can play in making the use of force legitimate. My considered opinion (again, argued for in the linked paper) is that it’s not the case that as strong a jus soli rule as we find in the US is a condition of justice, but that some fairly strong sort is. I argue for this in terms of hypothetical consent- trying to figure out what sort of system we would choose if we were in an appropriate choice situation. That type of argument is of use in understanding existing law only in, at most, a fairly small number of cases, though they may be important ones. (I think this sort of argument can be of great use in trying to figure out how we might reform our law, though.) But attempting to apply theories of actual consent, either express or tacit, to this area has seemed to me to be hopeless, and the examples I’ve seen have varied between somewhat interesting but completely unconvincing to hopelessly confused.

    As to the historical issues, I’m not a scholar on the subject and can claim no original insight, but I’m pretty well convinced by the accounts given by Meyler and Shawhan linked above, and recommend them.

  3. Patrick J. Charles says:

    Matt,

    Thanks for your reply. I think I will just have to share my findings with you when they are ready to be looked over. In terms of “domicile” (your reliance on Shawan), I disagree that this qualifies as any type of settlement without announcing one’s self to the government. That would be in direct violation of the reciprocity required with temporary allegiance (a huge matter of nineteenth century international law). One cannot have “domicile” without the intent to lawfully announce and subject one’s self to the government.

    I also disagree with Meyler, for she only selectively searched and incorporated nineeteenth century viewpoints. There is much out there that she did not incorporate or divulge with the sources she does use.

    Once I have something more concrete, I will send it your way for comments. I am a believer in getting dissenting viewpoints. They are extremely helpful. I will also be sending this out to Garrett Epps when I finish it.

    Thanks again for your reply,

    Regards,
    Patrick J. Charles
    P.S. In the meantime, if you want to read my views on the importance of allegiance, see “Representation Without Documentation” published in the BYU Journal of Public Law.

  4. Matt Lister says:

    Thanks Patrick. As I note, I’m not a historian and don’t want to play an amateur one, so rely on the work of others. I’ll look forward to seeing your work on the subject. (I should note that I’m fairly skeptical that this sort of historical work is important for the normative question that most interests me, and while I’m somewhat less skeptical that it’s important for the distinct legal question, I have some doubts on that, too. Rule by the dead hand of the past isn’t a very attractive option, after all, and is one that all the major consent theorists hoped to avoid.)

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