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http://ssrn.com/abstract=1600412
 
 

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Reclaiming the Immigration Constitution of the Early Republic


James E. Pfander


Northwestern University School of Law

Theresa Wardon


affiliation not provided to SSRN

May 3, 2010

Virginia Law Review, Vol. 96, No. 1, 2010
Northwestern Public Law Research Paper No. 10-13

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.

Number of Pages in PDF File: 84

Keywords: Immigration, naturalization, constitutional history, early republic, plenary power

JEL Classification: K19, K39

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Date posted: May 6, 2010  

Suggested Citation

Pfander, James E. and Wardon, Theresa, Reclaiming the Immigration Constitution of the Early Republic (May 3, 2010). Virginia Law Review, Vol. 96, No. 1, 2010; Northwestern Public Law Research Paper No. 10-13. Available at SSRN: http://ssrn.com/abstract=1600412

Contact Information

James E. Pfander (Contact Author)
Northwestern University School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
Theresa Wardon
affiliation not provided to SSRN ( email )
Feedback to SSRN


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