The Inside-Out Constitution: Immigration Exceptionalism Explained

J Bomhoff, D Dyzenhaus, T Poole, The Double-Facing Constitution (CUP 2020)

34 Pages Posted: 1 Sep 2020

See all articles by Audrey Macklin

Audrey Macklin

University of Toronto - Faculty of Law

Date Written: January 1 2020

Abstract

This paper examines the contemporary Canadian version of immigration exceptionalism formulated by the Supreme Court of Canada in its interpretation of the Canadian Charter of Rights and Freedoms. I trace the doctrinal techniques that eviscerate constitutional rights protection in immigration law. This is not a “whodunit” – everyone knows the culprit is sovereignty, conventionally understood. The question I explore is how it is ope-rationalized in a modern constitution, and at what cost. I do this through a close reading of jurisprudence about the deport-ability of the non-citizen resident. I illustrate the role of prerogative power in – depending on one’s perspective – locating the non-citizen on the inside of the legal order (qua subject of law) while simultaneously placing the non-citizen outside the constitution (qua object of sovereignty). While my focus is on Canada and its particular articulation of immigration exceptionalism, I believe that the analysis resonates broadly across the domestic variants of other jurisdictions.

Keywords: Sovereignty, Immigration, Migration, Citizenship, Deportation, Human Rights, Deportation, Constitutionalism, Exceptionalism, Canada

Suggested Citation

Macklin, Audrey, The Inside-Out Constitution: Immigration Exceptionalism Explained (January 1 2020). J Bomhoff, D Dyzenhaus, T Poole, The Double-Facing Constitution (CUP 2020), Available at SSRN: https://ssrn.com/abstract=3659337

Audrey Macklin (Contact Author)

University of Toronto - Faculty of Law ( email )

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