Reclaiming the Immigration Constitution of the Early Republic
James E. Pfander
Northwestern University School of Law
affiliation not provided to SSRN
May 3, 2010
Virginia Law Review, Vol. 96, No. 1, 2010
Northwestern Public Law Research Paper No. 10-13
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.
Number of Pages in PDF File: 84
Keywords: Immigration, naturalization, constitutional history, early republic, plenary power
JEL Classification: K19, K39
Date posted: May 6, 2010
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