Beware of the Linguistic Canons While Driving

In particular, Expressio Unius. Brian Polis sent me this message:

A traffic sign saying "no right turn on red."

Does that mean you can turn left on red (because it said not to make right turns, not mentioning lefts), you can go straight or turn left on red (because those are the two excluded intersection options), you can turn right when it's not red (correct interpretation), or turn right on non-red combined with one of the first two.

The canon's application is remarkably ambiguous (and useless) in the situation, as only dumb luck or an appeal to something else will give the correct interpretation.

Don't Amend for Uri

I was born in Montreal, Quebec to a Hungarian/Swedish/Canadian dad and a Czech/Israeli/Canadian mom. Before today I thought that disqualified me from ever becoming president of the U.S., barring a constitutional amendment. But some of the discussion around John McCain's eligibility for the office casts doubt on my assumption.

Like me, you see, John McCain was not a U.S. citizen at birth. This paper by Gabriel Chin - Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship - argues that McCain is ineligible, and explains why he was not born a citizen (contra, apparently, remarks that the author made to a reporter a few months ago).

McCain was born in the Panama Canal zone in 1936. Chin explains that the zone was not incorporated into the U.S. as a territory, but was subject to U.S. jurisdiction. The fact that it was not an incorporated territory meant that people born there, unlike in U.S. states or incorporated territories like Puerto Rico, were not automatically granted citizenship based on place of birth.

A law which took effect in 1934 conferred citizenship on “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States.” McCain's parents were U.S. citizens, but the Canal Zone was not outside of the jurisdiction of the United States, since the U.S. exercised sovereignty over it. Hence the 100 yards in the paper's title; had McCain's mother given birth 100 yards away in Panamanian territory, McCain would have been a citizen under this law.

Congress fixed the law in 1937 - 11 months after McCain came along - so that children born to U.S. citizens in the Canal Zone would be born citizens. It applied retroactively, conferring citizenship on McCain and many others like him.

So McCain was not born a U.S. citizen, but he is a U.S. citizen by virtue of the circumstances of his birth. Here's the issue: is he a "natural born citizen" in the meaning of Article II of the Constitution, which requires the president to be a natural born citizen?

Prof. Solum comments that legal history leaves it unclear which of the following two readings is appropriate.

(1) The at-birth reading. One interpretation of the clause is that "natural born citizens" are persons who citizenship existed at the moment of birth. If we assume Chin is correct re the minning of Section 1993, then the at-birth reading implies that McCain is not a natural born citizen.

(2) The by-birth reading. There is, however, another possible interpretation or construction of the clause: the clause might mean that "natural born citizens" are persons who are citizens by virtue of circumstances of their birth. McCain is a citizen by virtue of the fact that he was born to American citizens in the Panama Canal Zone, and hence, he is an American citizen by virtue of the circumstances of his birth.

If the second reading is correct, then my dream of becoming president is alive. It would not require a constitutional amendment. It could simply be done by getting Congress to pass a law conferring citizenship retroactively on all people born in Jewish General Hospital in Montreal on the evening of Sept. 24, 1975. Arnold Schwarzenegger could be president if congress grants citizenship to all people born in Thal, Austria on July 30, 1947. That's one reason to think the second reading is not the right one - it allows Congress to circumvent a constitutional restriction and "opt-in" any candidate it chooses to, using a highly selective conferral of citizenship based on birth.

Another reason to adopt the first reading is a little more linguistic. Natural clearly has a special meaning in this context. The term seems to cover exactly the set of U.S. citizens. U.S. citizens who were not born U.S. citizens were naturalized - they underwent a change of status from not being natural in the special sense, to being natural. So the most straightforward way to understand natural born citizen is as the set of citizens that were not naturalized, i.e. the set of citizens who were born citizens. Natural-born makes up a linguistic unit just like high-born does. It makes for a parsimonious partition in the set of U.S. citizens.

mmm... persimmony

Unfortunately for parsimony, but fortunately for me, McCain and Arnie, these terms have not been interpreted in this straightforward way. Chin cites Jill A. Pryor for the proposition that individuals who are born U.S. citizens pursuant to congressional authority, such as those born to U.S. citizen parents outside the U.S., are legally considered to be both naturalized citizens and natural-born citizens. Still, one would think that a textualist who prefers parsimony over judicial precedent for interpretation - like, say, Justice Scalia in Heller - would favor a good linguistic analysis in his interpretation of the text, no?

wikis

I'm adding Glottopedia - a linguistics sort-of-wiki - to the links bar. I qualify with sort-of because Glottopedia has a couple of features that distinguish it from canonical wikis: first, not everyone can edit it - you need to have a good linguistics background; and second, it doesn't aim at total accessibility to the lay reader.

It's pretty embryonic right now, but it looks like it would be a good reference for people starting research on a topic. For example, I stumbled upon it while looking for resources on the semantics of infinitives in English, and the page on infinitive verbs looks like it will be helpful.

Surprisingly, I was unable to find a general law wiki when I searched for one.

Textualism exposited

In the Legal Theory Lexicon, here.

I've blogged here about why I think "the plain meaning of the text" is incoherent from a perspective informed by knowledge of language and linguistics. Solum's explanation gets around the incoherence by explaining that the "plain meaning of the text" is usually understood not literally as the plain meaning of the text, but rather as "the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.)."

I think textualists often, but do not always, understand "the plain meaning of the text" this way or similarly, either in terms of "regular folks" or the reasonable reader. That's a topic for another post. For now I will just note the following problem: a reasonable reader or regular person would likely, in a case that is hard to decide for any reason, conclude that the meaning is not straightforward, and that something more is needed to interpret the statute, whether it's evidence of the drafter's intent or a canon of interpretation. And this undermines the purpose of textualism, which is to reduce or eliminate reliance on such sources of evidence.

Another Linguists' Amicus Brief

Roger Shuy points out a brief submitted in support of neither party in the Supreme Court case of U.S. v. Hayes by linguists Georgia Green, Ray Jackendoff, Jeffrey Kaplan, Edward Gibson and Shuy. This is a distinguished group. In the brief, they consider a criminal statute containing a modifier clause in which the parties dispute which phrase is being modified.

Scalia vs. Stevens: Linguistics Smackdown

Move over, Labov vs. Chomsky. The new linguistics grudge match is between Supreme Court Justices Scalia and Stevens, author and dissenter, respectively, in the D.C. v. Heller gun control case. I posted about some of the linguistic aspects of the case here and here. Both of the justices cited the linguists' brief, a number of times in Scalia's case, and both discussed several issues in the linguistics of the Second Amendment. Justice Breyer dissented separately, but addressed primarily the issue of judicial scrutiny of the legislature, rather than the linguistic issues.

Having just scanned the opinion, it seems to me that Stevens had the better of the linguistic arguments, but I'll be taking a closer look and I expect to share my thoughts on this blog. In particular, it seems to me that Stevens is closer to correct on issues of collective vs. individual interpretation and on the significance of infinitival "to". Both justices got in the spirit of the smackdown, adopting the kind of dismissive and derisive tones with respect to their adversaries' analysis that one doesn't ordinarily see in linguistics. One hopes it doesn't get out of hand, especially now that they can legally carry handguns in DC.

I think it's great that the Supreme Court discussed linguistic issues at length and referred to the linguists' brief. I'm not aware of any precedent. [The Court failed to cite linguist Bruce Bagemihl's work on gay animals in the landmark Lawrence v. Texas case.] I think it's unfortunate that the Court's opinion nevertheless involved some bad linguistics.

EDIT: Bill Poser recently reviewed at Language Log the linguists' brief's claim that "bear arms" is an idiom with military meaning, doing a good job, I think, of casting doubt on the linguists' analysis.

Regarding my absence

Obviously, I have not been posting here regularly lately.

This is due to a lot of travelling, irregular access to the internet during non-work time, my decision to prioritize readings on legal theory in preparation for my note, and a challenging new summer job working as a legal intern for the SEIU.

I'm done with frequent travelling for the next couple of months, and I'm hoping to get internet access at home in the next week or so. But the job situation and the preoccupation with other matters is likely to continue.