Strangers to the Constitution

Strangers to the Constitution: Immigrants, Borders, and Fundamental Law

GERALD L. NEUMAN
Copyright Date: 1996
Pages: 296
https://www.jstor.org/stable/j.ctt7t84j
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    Strangers to the Constitution
    Book Description:

    Gerald Neuman discusses in historical and contemporary terms the repeated efforts of U.S. insiders to claim the Constitution as their exclusive property and to deny constitutional rights to aliens and immigrants--and even citizens if they are outside the nation's borders. Tracing such efforts from the debates over the Alien and Sedition Acts in 1798 to present-day controversies about illegal aliens and their children, the author argues that no human being subject to the governance of the United States should be a "stranger to the Constitution."

    Thus, whenever the government asserts its power to impose obligations on individuals, it brings them within the constitutional system and should afford them constitutional rights. In Neuman's view, this mutuality of obligation is the most persuasive approach to extending constitutional rights extraterritorially to all U.S. citizens and to those aliens on whom the United States seeks to impose legal responsibilities. Examining both mutuality and more flexible theories, Neuman defends some constitutional constraints on immigration and deportation policies and argues that the political rights of aliens need not exclude suffrage. Finally, in regard to whether children born in the United States to illegally present alien parents should be U.S. citizens, he concludes that the Constitution's traditional shield against the emergence of a hereditary caste of "illegals" should be vigilantly preserved.

    eISBN: 978-1-4008-2195-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. PREFACE
    (pp. vii-x)
  4. ACKNOWLEDGMENTS
    (pp. xi-2)
  5. Chapter One WHOSE CONSTITUTION?
    (pp. 3-16)

    THE CONSTITUTION begins with “We the People.” Where does it end?

    Constitutional argument serves as the nation’s preeminent vehicle for asserting constraints of fundamental principle. Eligibility to participate in constitutional discourse confers an opportunity to influence the shaping of the framework for government action. Conversely, one strategy for silencing objections to government policy has been to deny that the Constitution affords any protection to the objector. The critic is a stranger to the Constitution and should not meddle with it.

    That strategy has been employed repeatedly throughout the two-hundred-year history of American constitutionalism. Notorious examples include the definition of slaves...

  6. PART ONE: THE PAST
    • Chapter Two THE OPEN BORDERS MYTH AND THE LOST CENTURY OF AMERICAN IMMIGRATION LAW
      (pp. 19-43)

      TOO OFTEN, legal discussions of immigration regulation in the United States rest upon a myth, the assertion that the borders of the United States were legally open until the enactment of federal immigration legislation in the 1870s and 1880s. The myth is a pleasant one, and it may seem ungracious to contradict it. It reinforces the identification of the United States as a nation of immigrants and provides a historical basis for criticizing later policies of immigration restriction. It is embodied in Emma Lazarus’s poetic fiction that the Statue of Liberty once welcomed the “tired and poor” and the “wretched...

    • Chapter Three CONSTITUTIONAL LIMITS ON IMMIGRATION REGULATION IN THE FIRST CENTURY: FEDERALISM OBJECTIONS
      (pp. 44-51)

      STATE IMMIGRATION legislation might be less worthy of attention if such legislation had been clearly unconstitutional, and especially if it had been so regarded at the time. The usual narrative of immigration law history has emphasized a series of cases that, in retrospect, support the current doctrine that the regulation of immigration is an exclusive power of the federal government. Closer inspection reveals that these cases are more equivocal than the modern account admits and that other materials indicate greater acceptance of state power over immigration in the period before the Civil War. Moreover, some state regulation enjoyed the explicit...

    • Chapter Four THE RIGHTS OF ALIEN FRIENDS WITHIN THE UNITED STATES
      (pp. 52-71)

      COUNSEL FOR THE CITY inMayor of New York v. Miln(1837) began his rebuttal of the foreign shipmaster’s argument with an expression of displeasure that, “although a stranger among us, he has undertaken to teach us constitutional law.”¹ The view that aliens should not presume to make claims under the Constitution has been articulated not only with respect to violations of federalism, as inMiln, but also with respect to violations of rights.

      The ambiguities of the social contract tradition regarding aliens’ rights were not resolved in the drafting of the United States Constitution. Unlike their contemporaries in France,...

    • Chapter Five THE GEOGRAPHICAL SCOPE OF THE CONSTITUTION
      (pp. 72-94)

      THE CONTRAST between membership and mutuality of obligation approaches resulting from the ambiguities of the social contract tradition has not been limited to the constitutional rights of aliens within American territory. Instead, it has been mirrored by opposing approaches to identifying the territory where constitutional rights apply. The question of the Constitution’s geographical scope has involved two aspects: the applicability of constitutional limitations to government action within the territory of a foreign sovereign or on the high seas and their applicability to government action within territory of the United States that has not been admitted to statehood. In a debate...

  7. PART TWO: THE PRESENT AND THE FUTURE
    • Chapter Six RIGHTS BEYOND OUR BORDERS
      (pp. 97-117)

      HISTORY CAN SHOW us how earlier generations defined the personal and geographical scope of constitutional rights. It can also illuminate the sometimes conflicting normative visions underlying the rules they adopted and the political factors that assisted or impaired their fidelity to those visions. Sorting out this legacy facilitates deliberation about what the Constitution should mean for the generations alive today.

      To resolve the question of the proper scope of the individual-rights provisions of the United States Constitution, it is useful to ask what rights in a constitution arefor, and in particular what United States constitutional rights are for. The...

    • Chapter Seven CROSSING THE BORDER
      (pp. 118-138)

      THE MODERN recognition that aliens both inside and outside the borders of the United States enjoy the protection of certain constitutional rights should also inform the analysis of their rights in crossing those borders. In other words, the anomalous position of immigration law in American constitutional law must be reevaluated.

      The need for reevaluation does not depend on the acceptance of the mutuality of obligation approach to constitutional rights proposed in this book; rather, it follows from any approach to constitutional interpretation that recognizessomeconstitutional rights for aliens outside the borders, including the global due process approach of Justice...

    • Chapter Eight LIMITS OF THE POLITY: POLITICAL RIGHTS OF IMMIGRANTS IN THE UNITED STATES
      (pp. 139-164)

      THE PREVIOUS chapter discussed the availability of other constitutional rights as side constraints on the federal power to exclude or expel aliens, but it reserved for fuller analysis here the interaction between the First Amendment and federal powers when the government seeks to exclude or expel aliens because of the content of their speech. Some countries regard the participation of aliens in political life as inherently problematic,¹ but U.S. law has treated aliens as protected from criminal punishment for their speech under the same standards as citizens. Indeed, the history of alien suffrage in the United States demonstrates a more...

    • Chapter Nine LIMITS OF THE NATION: BIRTHRIGHT CITIZENSHIP AND UNDOCUMENTED CHILDREN
      (pp. 165-187)

      THE UNITED STATES has long regarded American citizenship as “a most precious right.”¹ Over the years, diverse conclusions have been drawn from this characterization—sometimes it is too precious to be denied without the highest justification; sometimes it is too precious to be bestowed on the unpopular.² In the infamous Dred Scott decision, Chief Justice Taney read the Constitution as making citizenship too precious to be shared with Americans of African descent.³ After a bloody war between the friends and foes of that decision, Congress drafted a constitutional provision to mandate forever a contrary rule. The first sentence of the...

  8. Chapter Ten CONCLUSION
    (pp. 188-190)

    THE UNITED STATES was once a world to itself. Oceans, deserts, and forests insulated it from other nations. The rigors of transportation in the age of sail and wagon impeded migration. Andrew Jackson won the Battle of New Orleans after the Treaty of Ghent had been signed but before the news could reach the combatants.

    Technology has transformed those conditions. Sri Lankan refugees now find their way to New York in hours. Chinese dissidents communicate troop movements reported on American television back to their colleagues in Beijing by electronic mail. The United States arrests foreign military leaders for their sophisticated...

  9. NOTES
    (pp. 191-276)
  10. INDEX
    (pp. 277-283)