Posted by Eugene Volokh:
Errors in the Citizenship Test, and in Criticism of the Test?
http://volokh.com/archives/archive_2006_12_31-2007_01_06.shtml#1167849694
[1]Lawprof Steven Lubet argues that there are some possible errors in
Salon; the test itself is [2]here.
The article overstates matters somewhat, it seems to me; for instance,
Prof. Lubet writes:
Everyone has the right to bear arms. (This is basically wrong, and
probably ideologically motivated; the Second Amendment makes it
clear that the right to bear arms is connected to a "well regulated
militia," and the Supreme Court has held that this right does not
belong to individuals -- and in any event, it is an "alienable"
right, as in the case of convicted felons.)
Actually, the Supreme Court has never held that the right to bear arms
doesn't belong to individuals (see [3]here for a list of all Supreme
Court cases mentioning the Second Amendment); but more broadly, the
question (#78) just asks people to "Name two rights of everyone living
in the U.S.," and lists among the acceptable answers "Freedom of
expression," "Freedom of speech," "Freedom of assembly," "Freedom to
petition the government," "Freedom of worship," and "The right to bear
arms." It would be basically wrong and ideologically motivated to
reject the answer "The right to bear arms," given that this is an
answer endorsed by a federal court of appeals, [4]several state
Supreme Courts, Congress, the Justice Department, and many serious
scholars.
Similarly, it seems to me it would be rather too picky to mark a
layperson down because he read "everyone" as meaning nonfelon adults.
After all, even other rights aren't entirely open to everyone; for
instance, prison inmates have vastly reduced free speech rights, and
next to freedom of assembly rights or Fourth Amendment rights.
It's possible to argue that, since the preceding two questions refer
expressly to the rights of citizens, and this one speaks of
"everyone," people should recognize that this means "everyone,
including noncitizens." But the Court hasn't even made it clear that
the Second Amendment is limited to citizens. (I think that it, unlike
some state constitutional right to bear arms provisions, may well be
limited to citizens, but this is far from open and shut.) And an
exam-taker won't even see the rights-of-citizens questions next to the
rights-of-everyone question, since, as Prof. Lubet says, "The actual
test for any applicant includes only 10 questions, selected at random,
of which six have to be answered correctly."
Maybe an exam for lawyers or law students might demand this level of
care, and knowledge of which constitutional questions are open and
which are more settled. But I'd say that the more ideologically
neutral thing is to accept a range of acceptable opinion about the
Second Amendment, and not to be hyper-picky in this context, given
that I doubt that we'd endorse hyper-pickiness in other contexts.
One could argue that the flaw isn't in the government's willingness to
accept the right to bear arms as an answer to the question, but rather
in its listing the right to bear arms as one of the selected set of
accepted answers. After all, the list of answers to that question
can't be comprehensive: The right to jury trial, the right to freedom
from unreasonable searches and seizures, and several other rights have
to be acceptable answers, too. Perhaps the sample answers should have
focused on the rights that are most clearly recognized, or had some
notation noting that there's controversy about the right to bear arms.
But that's a different and milder criticism than the article makes.
Moreover, it's not unreasonable, it seems to me, that the government
may want to promote even a controversial view that has been repeatedly
(including recently) endorsed by Congress, and that is the view of the
current Administration. It may not promote this view by grading down
those who disagree with it -- since the contrary view is also
credible, and people who take it aren't legally wrong -- but as I
noted, the test doesn't seem to do it.
The same can be said, I think, of some of Prof. Lubet's other
criticisms (though some are more sound). For instance, he writes "A
member of Congress represents all citizens in that representative's
district (wrong; he or she represents all people in the district,
including noncitizens)." Again, the question (#26) is "Who does a U.S.
Representative represent?," and the sample answer given is "All
citizens in that Representative�s district (each state is divided into
districts)." I wouldn't mark down someone who said "all citizens";
while a Representative is indeed generally seen as representing all
his constituents, it seems to me that a test-taker -- especially a
layperson -- can see representation as referring to those people to
whom the popularly elected representative is actually accountable, and
not just those whom he should in theory look out for.
Perhaps the sample answer should have said "all persons," but it
doesn't follow that the test itself is wrong, unless the
administrators mark down those who say "all persons" (which I highly
doubt that they do). Again, if there is a quarrel to be had here, it's
with the sample answer list, not with the test itself. And unless the
sample answers are the only ones permissible -- which would be clearly
bad, but which I doubt is the case -- I don't see evidence that the
administration of the new test will "penaliz[e] applicants who
actually understand the Constitution."
References
1.
http://www.salon.com/opinion/feature/2007/01/03/citizenship_test/print.html
2.
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=dcf5e1df53b2f010VgnVCM1000000ecd190aRCRD
3. http://www.law.ucla.edu/volokh/2amteach/sources.htm#TOC10
4. http://volokh.com/posts/1167847227.shtml
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