Matthew J. Lindsay
Matthew J. Lindsay, Immigration, Sovereignty, and the Constitution of Foreignness, 45 Connecticut Law Review 743 (February, 2013)
In 1954, the Supreme Court upheld the deportation of a non-citizen named Juan Galvan because he had briefly been a member of the Communist Party decades earlier, at a time when such membership was neither illegal nor grounds for deportation. Galvan had lived in the United States legally for thirty-six years, had an American wife and four native-born American children, and, the evidence showed, had always been “a good, law-abiding man, a steady worker and a devoted husband and father loyal to this country and its form of government.” Yet for the mere act of “joining a lawful political group,” Galvan stood to lose “his job, his friends, his home, and maybe even his children, who must choose between their father and their native country.” Writing for the majority, Justice Frankfurter acknowledged that because Galvan was a “person” who “legally became part of the American community,” he should, at least in theory, be entitled to “the same protection for his life, liberty and property under the Due Process Clause as is afforded to a citizen.” But Galvan's status as a non-citizen changed everything. The exclusive entrustment to Congress of policies bearing on the right of aliens to enter or remain in the country, Frankfurter explained, “has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.”
The modern federal immigration power, which is commonly known as the “plenary power doctrine,” is defined by two features. First, Congress's authority to regulate immigration derives not from any constitutionally enumerated power, but is rather “an incident of sovereignty belonging to the government of the United States.” Second, federal laws or enforcement actions that bear on a non-citizen's right to be present within the country are buffered against judicially enforceable constitutional constraints. The extent to which governmental authority is constitutionally constrained is thus contingent on the citizenship status of the person who is subject to that authority, rather than (as would normally be the case) the subject-matter or purpose of the regulation involved. This is true even when the constitutional protection at issue-be it the First Amendment or the Due Process and Equal Protection Clauses-makes no distinction between “persons” and “citizens.” Indeed, even as Justice Frankfurter upheld Juan Galvan's deportation, he was struck by “a sense of harsh incongruity” between the principle that “the Due Process Clause [normally] qualifies the scope of [Congress's] political discretion” and the deportation of a long-term resident alien who was innocent of any wrong-doing. Ever since the Supreme Court first adopted the plenary power doctrine in the 1889 Chinese Exclusion Case, it has justified the “constitutional exceptionalism” of American immigration law with reference to the purportedly intricate connection between the admission and removal of foreigners and “basic aspects of national sovereignty, more particularly our foreign relations and the national security.” Despite Justice Frankfurter's misgivings, the Supreme Court continues to reaffirm immigration exceptionalism as though it is a natural, self-evident consequence of exclusive citizenship and sovereign nationhood.
This Article challenges the central orthodoxy of modern constitutional immigration law that the regulatory authority to which an immigrant is subject properly hinges on her citizenship status. It argues that, notwithstanding its aura of naturalness, the legal construction of foreignness that underwrites the inherent sovereignty rationale did not take shape in its recognizably modern form until the 1880s. Throughout the nation's first century, immigrants' non-citizenship was incidental, or at least secondary, to the nature of the regulatory authority to which they, as immigrants, were subject. The reasons for this lie largely outside of the law. Until the decades following the Civil War, most Americans shared a broad confidence both in immigrants' moral natures and in the power of American economic and political institutions to transform them into patriotic republicans. During this era of relative confidence, the individual states reserved significant authority over immigrants and immigration under their traditional police powers. State police authority, in turn, depended not on immigrants' status as foreigners, but rather on the purpose of the particular regulation at issue. As the objects of the state police power-as potential paupers or carriers of disease, for example-immigrants were simply persons, whose effect on the health, morals, and welfare of the community was, like that of all persons, native and foreign alike, subject to regulation. Even after the Supreme Court re-branded immigrants as articles of commerce in the 1870s to accommodate the transfer of regulatory authority from the individual states to Congress, it did not distinguish between human commercial goods transported from a neighboring state and those transported across an ocean. The Commerce Clause, like the police power, was indifferent to citizenship.
Immigrants were legally reconstructed as foreigners only in the final decades of the nineteenth century, as Europeans and Chinese migrants alike increasingly became understood as fundamentally and permanently alien to the American character. In the 1870s and 1880s, Americans' long-standing confidence in the assimilative power of American institutions came into progressively sharper conflict with the economic and social realities of industrialization, including the triumph of the wage system; the deskilling of labor; and increasingly intense wage competition, often from recent immigrants. As contemporaries grappled with this conflict, they generally focused less on these broad structural economic changes than on the alleged economic pathologies of immigrants themselves-specifically, a disposition toward “uncivilized” standards of life and labor. Without the requisite economic conditions and racial material, critics argued, simply exposing immigrants to republican political culture and institutions afforded little value as a force of assimilation. As post-Civil War Americans re-imagined their polity as a social and political body, the health of which depended on the collective natural endowments of its constituent members, immigrants' foreignness came to signify more than merely the absence of citizenship; it became, instead, a token of fundamental, indelible moral difference. The Supreme Court then translated the discourse of indelible foreignness into a potent and durable rationale for immigration exceptionalism, forging the immigration power into an instrument of national “self-preservation” to be deployed against invading armies of economically degraded, politically unassimilable, racially suspect foreigners.
Modern judicial defenders of the plenary power doctrine justify the political branches' virtually unchecked authority over immigration as a logical concomitant of national sovereignty and, specifically, of the President's authority to conduct foreign affairs and national security. Accordingly, they generally turn a blind eye to the indecorous references to racial “degradation” and “alien invasion” that color the doctrine's historical origins, as though they were merely anachronistic dicta-the rhetorical artifacts of a bygone era.
This Article demonstrates, to the contrary, that it was precisely the construction of immigrants as indelibly alien to the national character that gave substance to the metaphor of invasion, and thus enabled the Supreme Court to transform the immigration power from a species of commercial regulation to a power “inherent in sovereignty, . . . essential to self-preservation,” and “conclusive upon the judiciary.” As much as the tropes of racial degradation and alien invasion have been purged from the vocabulary, and perhaps worldview, of most modern legislators and judges, the association between immigration regulation and national security remains essential to justifying a power unmoored from the Constitution and shielded from judicial scrutiny.
It is a staple of immigration law scholarship that the racial construction of various immigrant groups, coupled with Americans' waning faith in assimilation, gave rise to restrictive immigration policy, beginning with the Chinese Exclusion Act in the 1880s and ultimately culminating with the national origins quota system in the 1920s. Indeed, Americans' impulse to defend the nation's political integrity against corruption by racial others dates to the Naturalization Act of 1790, which restricted access to United States citizenship to “free white persons.” This Article contends that the erosion of confidence in both the assimilative power of republican institutions and the plasticity of immigrants' moral natures also propelled a deeper and more enduring process of constitutional estrangement, fundamentally redefining the very authority to which immigrants were subject. Even today, generations after the United States abandoned nativist immigration policy, immigrants' anomalous constitutional status remains an axiomatic feature of the federal immigration power. As a result, even non-citizens who, like Juan Galvan, have resided legally in the United States for decades lack robust constitutional protections against, for example, improper detention during often lengthy removal proceedings; selection for removal because of otherwise constitutionally protected speech or associations; or discrimination on the basis of alienage with respect to eligibility for public benefits.
Part II of this Article describes the basic ideological framework within which Americans understood and debated immigration law and policy throughout the nineteenth century. It demonstrates that the first generation of American statesmen imagined the very act of immigrating to and incorporating oneself within republican America as a catalyst for personal moral and political regeneration. This confidence in the assimilative power of republican cultural and institutions, in turn, was reflected in the relative liberality of the nation's naturalization laws. Part III analyzes the history of immigration law and politics in the nineteenth-century United States as a history of repeated and progressively sharper clashes between the terms of the regenerative model of immigration and the seismic social and economic transformations of the industrial era. It demonstrates that throughout the nation's first century-a period characterized by broad, if uneven, confidence in assimilation-the absence of citizenship did not operate as a presumptively natural, self-evident marker of legal difference. Rather, the Supreme Court, like most Americans, understood the problems associated with immigration to be local and discrete. As such, their regulation fit comfortably within the province of the states' traditional police authority, which figured immigrants simply as persons, rather than foreigners.
Part IV analyzes the federalization of immigration regulation during the last third of the nineteenth century. When the Supreme Court transferred regulatory authority from the individual states to Congress in the 1870s, it recharacterized immigrants as articles of commerce. Yet the federal commerce power, like the state police power, was indifferent to citizenship. The national economic importance of immigration, for better and worse, defined the nature and scope of congressional authority; it mattered not whether the human cargo was transported from a neighboring state or across the ocean. Even as the Court was anchoring federal authority in the Commerce Clause, however, a swelling chorus of legislators, workers, economists, and others were condemning the degradation of American labor and citizenship by Chinese “coolies” in the American West and European “foreign pauper laborers” in the Northeast. It was this critique that propelled both the legal reconstruction of foreignness and the Court's discovery of an extra-constitutional regulatory authority that was inherent in the nation's sovereignty and essential to its “self-preservation.” The Article concludes, in Part V, by considering how this historical genealogy challenges the central orthodoxy of modern constitutional immigration law.
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V. Conclusion: “Sovereignty” and the Constitution of Foreignness
When Congress regulates the right of non-citizens to enter or remain within United States territory, it does so based on an extra-constitutional authority “inherent in sovereignty, and essential to self-preservation.” In this formulation, the constitutional exceptionalism of the federal immigration power appears almost sui generis-in the words of the Supreme Court, a timeless “maxim of international law.” This Article challenges this central orthodoxy of modern constitutional immigration law in two ways.
First, it reveals that the inherent sovereignty rationale came into being only in the 1880s and 1890s, after a century of constitutionally unexceptional state and federal authority. Throughout much of the nineteenth century, the Court figured immigrants not as foreigners, but simply as persons, whose effect on the health, morals, and welfare of the community was, like that of other persons, citizens and non-citizens alike, subject to the police power of the individual states. Even after the Court redefined immigrants as articles of commerce in the 1870s, it did not distinguish between human commercial goods transported from a neighboring state and those transported across an ocean. The Commerce Clause, like the police power, was indifferent to citizenship. When we look back at the state police and federal commerce frameworks today, after more than a century of plenary power, it is striking that the Court found nothing conceptually distinctive, let alone constitutionally exceptional, about a statute that regulates foreigners engaged in the process of immigration. The decidedly unexceptional manner in which the law operated on foreigners traveling to and landing in the United States defies the constitutional singularity, so crucial to modern constitutional immigration law, of a distinct class of “immigration laws” that govern the admission and removal of foreigners.
Second, and perhaps more fundamentally, the Article denaturalizes the concept of foreignness that underwrites immigration exceptionalism. For late-nineteenth century Americans, foreignness came to signify far more than the absence of citizenship. As wage labor became ascendant in the post-Civil War era, and as “native” workers confronted increasingly intense wage competition from recent immigrants, legislators, judges, labor leaders, and social scientists began to doubt both the regenerative power of American economic and political culture and, most importantly, the moral natures of immigrants themselves. Contemporaries concluded that simply exposing immigrants to republican institutions afforded little value as a force of assimilation if the requisite economic conditions and racial material were lacking. As Americans reimagined their polity as a social and political body, the health of which depended less on the vitality of its economic and political life than on the collective natural endowments of its constituent members, foreignness itself became a token of fundamental, indelible moral difference. The Supreme Court then translated the discourse of indelible foreignness into a potent and durable rationale for immigration exceptionalism, forging the immigration power into an instrument of national “self-preservation” to be deployed against invading armies of racially degraded, economically and politically unassimilable foreigners.
Even today, generations after the United States abandoned Chinese exclusion and national origins quotas, immigrants' constitutional estrangement-the principle that foreignness per se rightly dictates the nature of the authority to which they are subject-remains an axiomatic feature of the federal immigration power. For modern judicial and scholarly defenders of immigration exceptionalism, the indecorous rhetoric that clutters the historical origins of the plenary power doctrine does not diminish its legal soundness and continued legitimacy. Once we strip away the Court's racism and the overwrought metaphor of alien invasion, the argument runs, there remains, as a logical concomitant of national sovereignty, an inherent power to govern the admission and expulsion of non-citizens. After all, outside of the Naturalization Clause the Constitution is silent on the federal government's power to regulate immigration; but such authority must exist somewhere.
Yet even if one concedes that the principle of territorial sovereignty implies an authority to govern the right of non-citizens to enter into and remain within territory, it is unclear why the exercise of such authority also requires that immigrants be denied important constitutional rights to which they, as persons, would otherwise be entitled. (Recall that for the fifteen years preceding the Court's decision in The Chinese Exclusion Case, Congress already enjoyed exclusive authority to regulate immigration under the commerce power.) Why should a body of federal law concerned overwhelmingly with ordinary matters of labor, economic dependency, and crime-the issues that dominate the vast majority of immigration regulation-be “conclusive upon the judiciary”? Why would we consign a regulatory domain dominated by patently unexceptional subject matter to the “political branches” of government, where it is buffered against judicially enforceable constitutional constraints? This Article demonstrates that it was the very same elements of Justice Field's opinion that modern defenders of plenary power would like to dismiss as anachronistic dicta that enabled the Court to bridge the gaping chasm between its novel legal rationale for federal authority and the purpose and subject matter of most immigration lawmaking and enforcement. It was precisely immigrants' fundamental, indelible foreignness-their racial difference, their inability to assimilate, their destructive effect on American citizenship-that gave substance to the metaphor of racial invasion, and thus to the analogy between immigration regulation and war. Indeed, the tropes of invasion and war allude to Congress's Article I authority to “repel Invasions” and “declare war” without strictly invoking them, thus summoning the tradition of judicial deference that accompanies these archetypal “political” powers. The Court's intemperate defense of American citizenship against invading foreign races cannot, therefore, be swept aside like some unseemly discursive debris of a bygone era, cluttering the logically sound foundation of immigration exceptionalism; rather, it is the cornerstone of the entire edifice.
Assistant Professor, University of Baltimore School of Law. M.A. History, University of Chicago, 1995.