Tuesday, May 25, 2010

Pfander and Wardon on the "Immigration Constitution" in the Early Republic

James E. Pfander, Northwestern University School of Law, and Theresa Wardon, have posted Reclaiming the Immigration Constitution of the Early Republic, which also appears in Virginia Law Review 96 (2010 ). Here’s the abstract:
In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to individuals who have already arrived in this country. The paper also argues against Congress’s practice of adopting private legislation. These contentions, in turn, provide the foundation for a criticism of the so-called public rights doctrine and its use to justify restrictions on the judicial role.