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Geoffrey Heeren

excerpted from: Geoffrey Heeren, Persons Who Are Not the People: the Changing Rights of Immigrants in the United States, 44 Columbia Human Rights Law Review367 (Winter, 2013) (328 Footnotes Omitted)

This nation was seemingly founded on the idea that all persons enjoy core rights of “life, liberty, and the pursuit of happiness.” In the years since, Americans have come to little consensus about what these rights mean; scholars cannot even seem to agree on the value of rights. Regardless of how much Americans debate the content of their rights, it is clear that the promise of the Declaration of Independence--that all persons have core freedoms--is one that resonates. Thus, U.S. courts have long agreed that non-citizens are entitled to certain basic rights, like the right to equal protection.

Yet if the Declaration of Independence begins by referencing universal human rights, the Constitution starts by reference to a select club of rights-holding members. In the Preamble, it is “the People” who “secure the blessings of liberty” to themselves and their “posterity.” And it was quite clear at the time that “the People” did not include all persons within the territory of the United States; many of the drafters owned slaves whose liberty they forcefully restricted.

From the beginning, there was a fierce debate about whether non-citizens were part of “the People.” Concerned about the importation of dangerous revolutionary ideas from France, the late-eighteenth-century Congress passed a series of anti-immigrant measures known today as the “Alien Acts.” In debates over these measures, Federalists argued that all rights stemmed from the Constitution, which was a kind of compact between citizens; thus, only citizens could assert rights. In contrast, the Jeffersonian Republicans argued that the Constitution referred to persons, not citizens, and that all persons were therefore entitled to constitutional protections. The Republicans also based their arguments on theories of natural rights, human rights, and “mutuality of obligation”--the notion that because immigrants were subject to U.S. law, they were also entitled to invoke the protection of the Constitution.

In the years since, U.S. courts have teetered between these two arguments, ultimately coming to rest at a wobbly compromise between the two. For example, everybody supposedly has a general right of free expression, but only some people have a right to express their opinions through voting. The former right comes from a view about individual autonomy that pervades our legal system; the latter from our structure of government. It might therefore be said that there are two types of rights in the United States today: rights that belong to every person and rights that belong to “the People” who are members of our political system. Relatedly, there are two potential sources of rights: personhood and polity.

The implications and philosophical roots of these two rights paradigms-- personhood and membership--will be explored in Part V. For now it is enough to note that they have each impacted the rights of non-citizens. There are two important points that are necessary to understand how these two paradigms have played out. First, courts are more likely to respect non-citizens' membership rights in certain contexts than in others. Second, non-citizens' legal status has influenced their rights of membership and even personhood.

The context in which courts are least likely to uphold immigrants' membership rights is in deportation and exclusion cases, because of something called the ““plenary power” doctrine. The story of plenary power begins with Chae Chan Ping v. United States, or the “Chinese Exclusion Case.” In Chae Chan Ping, the Supreme Court refused to address the country's discriminatory bar on the admission of Chinese immigrants, even in the case of an excluded Chinese resident who had previously been granted the right to re-enter. The Court's justification was that it would generally defer to the political branches of government when it comes to the exclusion or deportation of non-citizens, since they have plenary power in the area of foreign relations. Over the years, the Court has frequently relied on this doctrine to support judicial non-intervention in cases involving the removal of non-citizens.

However, in cases outside the context of exclusion and deportation (sometimes called “alienage” cases), the Court has affirmed that immigrants enjoy a host of rights. The boundaries of immigrants' rights are fluid, but at times, non-citizens have enjoyed not only rights of personhood, but considerable membership rights. The allocation of these rights has been complicated by distinctions between different classes of non-citizens--a set of distinctions that has grown increasingly complex and legalistic as immigration law has evolved. Occasionally, these distinctions have even filtered into courts' analyses of rights that historically all persons in the United States have possessed, meaning that non-citizens' basic rights of personhood have sometimes been contested. The remainder of this section will consider some of the individual rights that non-citizens in the United States have possessed.