We Will All Be Free or None Will Be: Why Federal Power Is not Plenary, but Limited and Supreme
27 Tex. Hisp. J. L. Pol'y ___ (2021, Forthcoming)
110 Pages Posted: 3 Dec 2020
Date Written: 2020
Emma Lazarus, who gave us the poem The New Colossus inscribed on the Statue of Liberty on Ellis Island, is also credited for giving us the principle, “Until we are all free, we are none of us free.” The root of this principle traces back to the founding contributions of James Wilson. It also stretches into present day public consciousness through the works of Martin Luther King, Jr. in support of equal rights in America.
The idea of the equality of rights being essential to the freedom and rights of each person consists in the ancient law of the citizen. It was old when Paul of Tarsus used it to appeal to Rome in the Court of Festus in Caesarea. That Court secured his right to immigrate into the capital to further vindicate his equal rights to the free exercise of religion.
The Pilgrims of Plymouth Colony and later of Rhode Island similarly sought to secure this equality of rights to themselves by their immigration to America. Foreigners in a land of Native Americans who they thought to be Indians, the Pilgrims vindicated their religious rights upon a purchase rather than conquest or discovery. This was symbolized by Roger Williams’ escape into a snow storm, to make an appeal among the Natives for his life.
Following Williams’ example, the American Revolutionaries declared their rights upon purchases from the original owners of the land, i.e., the Native Americans. They appealed as Paul and Williams did to the rights of an immigrant rather than the sanguine rights of blood or high-birth—and their cause was vindicated upon what Phillis Wheatley coined “the heaven defended line,” i.e., the equal rights of humanity.
Thus, for the first several decades of its existence the United States held its doors open to immigrants. But over the years a movement to exclude immigrants began to take form in the States. It was lifted into exclusive federal purview in Prigg v. Pennsylvania, and was finally extended in Chae Chan Ping as the plenary power to exclude immigrants, which is the entire basis of federal Immigration Law as we know it today.
This article will demonstrate how the judicial assertion of plenary rather than limited powers is the root of Immigration Law in America, and it will provide strategies to reverse Donald J. Trump’s recent assertion of Immigration Law as a source of unbounded Executive Power.
Keywords: immigration law, citizenship, constitutional law, separation of powers, prigg, chae chan ping, chinese exclusion, james wilson, nfib v. sebelius, eleventh amendment, unitary executive theory
JEL Classification: K00, K10, K30, K37
Suggested Citation: Suggested Citation