'Within Its Jurisdiction': Moving Boundaries, People, and the Law of Migration

43 Pages Posted: 29 Sep 2016

Date Written: September 28, 2016


The sense that migration systems are deeply flawed is shared around the world and across the political spectrum, albeit with very different views about how to respond. In this brief essay focused on the United States, I map the transformation in the twentieth century of human movement into a crime and explore the relevance of U.S. constitutional commitments to this country’s law of the border. For the title, I have borrowed the phrase “within its jurisdiction” from the Constitution’s Fourteenth Amendment to invite reflection not only on the meaning of its promise that no state shall “deny to any person within its jurisdiction the equal protection of the laws” but also on the role that territory plays in thinking through this country’s assertions of power over and its responsibilities toward migrants.

I begin by sketching how unnatural borders are, in the sense that they are artifacts of law rather than of land. Indeed, law makes relevant different physical boundaries, as the legal import of border crossing changes. For example, entering the United States without authorization was not a federal crime until 1929, and the federal government prosecuted relatively few individuals until the 1990s. Moreover, in the early 1940s, the U.S. Supreme Court inveighed against a Pennsylvania statute mandating the public registration of “aliens” as an anathema to the country’s commitment to liberty. Today reporting requirements — imposed on employers as well as aliens — have become commonplace. The increase in the criminalization of migration is part of a broader array of techniques to stigmatize migrants.

The movement of people across territories provides one template for border analyses. But borders are constructed and transversed within law itself, and a second border site that I explore here is the permeability of legal categories. Criminal law was once thought to be discrete from immigration law; today a set of practices are aptly labeled “crim-imm,” as migrants gain the valence of criminals (“illegals”) and criminal infractions become the trigger for deportation. Likewise, the boundary between the rights of citizens and of aliens narrows; the normalization of oversight and stigmatization of aliens makes more legally plausible forms of control over citizens.

Yet a third border that some are eager to maintain is a line between U.S. constitutional interpretation and “foreign law.” But just as this country has its roots in and derives ongoing vitality from migrants, so too does U.S. law draw from and domesticate foreign sources. The ports of entry for non-U.S. law in this federation include all the branches of both the state and federal systems.

I close by sketching the profound liberalization of a fourth border, which is not often the subject of discussion: the unfettered movement of objects through the mail. Letters and packages once took circuitous routes and had to be paid for on delivery. But in 1874, 21 countries created what became the Universal Postal Union (UPU) — and thereby launched the second oldest international organization of governments in the world. Through modifying what were then understood to be the prerogatives of sovereignty, the founders of the UPU sought to forge a “single unit for the exchange of postal correspondence, standardized and simplified postal rates and procedures.” This effort reflected the interdependent utilities that mail can have in transforming economies and interpersonal relationships. Although the mail is not often seen to be a site of politics, the UPU and national delivery systems created egalitarian and subsidized opportunities for generally uncensored interactions.

In short, depending on where one trains one’s eye, it is apparent that some borders are being erased while others are being put into place. My purpose in linking these domains is not to equate them but to clarify the role that law and political imagination play in border construction. I show how reliant on border crossings we are, detail the harms of the criminalization of human movement, and argue the uselessness of using any single nation-state as the unit of analysis when thinking about the migration of people, law, or objects.

Keywords: migration, territoriality, "crim-imm," deportation, constitutional interpretation, postal services, transnationalism, political bureaucracies, sovereignty, federalism

Suggested Citation

Resnik, Judith, 'Within Its Jurisdiction': Moving Boundaries, People, and the Law of Migration (September 28, 2016). Yale Law School, Public Law Research Paper No. 580. Available at SSRN: https://ssrn.com/abstract=2825134 or http://dx.doi.org/10.2139/ssrn.2825134

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

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