Volume 7 Number 2 (February 1997), pp. 72-75.  

STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW by Gerald L. Neuman; (Princeton: Princeton University Press, 1996).

Reviewed by John Blakeman, Department of Political Science, Baylor University

Gerald Neuman addresses one topic now dominating our current political discourse in Strangers to the Constitution, namely, the debate over immigration. Both the federal and state governments have responded to an influx of aliens into the United States that is often perceived as harmful to our systems of social welfare, health care, public education, among other things. Based on the circumstances, it is easy to argue that current immigration law should be critically reassessed.

For Professor Neuman, our system of immigration laws needs to be reassessed due to problems that inhere in our constitutional system. That is, often the Constitution itself is unclear concerning the rights and responsibilities of aliens. Moreover, interpretations of the Constitution since 1787 on issues of alienage have not helped either, and have only served to make more difficult current debate on the role of aliens and immigrants under the Constitution.

Neuman offers an historical and, as he terms it, argumentative analysis of "the constitutional foundations of immigration law and alien's rights in the United States. Immigration law has long been treated as outside the constitutional mainstream." As he puts it, immigrants present special problems for our constitutional system. Judges (and others) in the United States have historically been hesitant to extend constitutional rights and liberties to individuals crossing into the sovereign territory of the United States from foreign nations or international territory. Neuman's goal is to "find persuasive contemporary answers within the framework of U.S. constitutional practice" to questions as to why constitutional protections should be extended to aliens.

Professor Neuman begins by discussing the scope of the Constitution on the issue of immigration. He asserts that four main interpretive approaches to immigration have emerged in American constitutional history. A universalist approach stipulates that the Constitution creates rights with no express limitations as to the persons or places covered. The membership models approach assert that the Constitution only applies to members of the social contract. The mutuality of legal obligation approach demands that when the United States government imposes legal obligations on aliens, it should in turn confer legal rights on those individuals. Finally, the global due process approach maintains that constitutional rights can be applicable worldwide to citizens and non-citizens, but those rights may be limited or denied by a countervailing government interest. Neuman returns to these categories later in his discussion, but he first covers some historical data that he deems important to understanding the immigration problems that we face today.

Professor Neuman's historical research on immigration law in the United States is interesting, to say the least, since it seems to contradict current understandings of how and why immigration has been regulated. That the United States has always had open borders, for Neuman, is simply a myth. As he puts it, historically neither Congress nor the states ever imposed quantitative restrictions on immigration. But qualitative restrictions to keep out criminals, the indigent, or those who carried certain diseases were imposed between roughly 1790 and the 1880s. States played a very active role in defining their own immigration policies, based on their historic and constitutional police powers. This history matters for Neuman, since "the long history of state regulation of migration on local police power grounds undercuts the argument for applying the political question doctrine and related forms of extraordinary deference to all federal immigration rules."(19) That is, the history of state involvement in defining immigration law and policy means that exclusive federal jurisdiction over immigration has not always been the case, contrary to the assumptions of the doctrines of judicial deference. Neuman's research on state policies is very interesting, but his argument is troublesome. Using past state practice to justify less judicial deference at the federal level ignores, or at least downplays, the doctrines of self-restraint that federal judges, especially Supreme Court justices, have developed over time to avoid clashing with executive prerogatives in foreign affairs. Indeed, immigration policy is problematic for our constitutional system because it affects both domestic and international interests; to argue that state involvement in immigration policy historically should justify the non-application of, for instance, the political question doctrine, overlooks the international aspects of judicial deference concerning immigration in particular as it is linked to issues of foreign affairs.

Neuman continues his historical analysis by next focusing on the young United States' first attempts at defining immigration policy, namely, the Alien and Sedition Acts in 1798. For anyone who teaches constitutional law, the Alien and Sedition Acts present a unique opportunity to discuss with students some of the fundamental disagreements that the framers of the Constitution (at least those serving in Congress) and their contemporaries had concerning the powers of the federal government. When public law scholars talk of the Alien and Sedition Acts, however, they tend to focus only on the sedition laws that expose the profound disagreement between the Federalists and Jeffersonians on the issue of government power, a debate that still resonates today Neuman demonstrates, though, that fundamental disagreement over the status of aliens in the 1790s was also very prevalent. The debate over the Alien Acts reveals that the Federalists adhered to a social contract policy; only those who were part of the compact could claim constitutional rights. Madison and Jefferson, on the other hand, argued that the common law demands that "alien friends" are entitled to the protection of federal laws and the Constitution. For Neuman, this signifies that the "mutuality of obligation" approach to immigration was evident in the early history of the American Republic, and indeed was adhered to in modified form by the Supreme Court. Based on this principle, some states even allowed aliens limited voting rights. However, Neuman argues that the mutuality of obligation approach did not remain constant. "The approach...dominated courts in the nineteenth century but faced a resurgence of its membership [social contract] rival in the wake of overseas expansionism at the turn of the century...developments since then have produced a mosaic of inconsistent rules and rationales."(73) Neuman's historical overview of immigration law and policy is very informative. He demonstrates that our view of history on the question of immigration is not always accurate, which is a very important point considering the high stakes involved in current immigration policy debate.

The last half of Neuman's work concerns current constitutional problems associated with immigration law. Space considerations prevent a complete accounting of his arguments here. One of Neuman's primary assertions is that the "mutuality of obligations" approach to immigration has led to the modern recognition by the Supreme Court that aliens "both inside and outside the borders of the United States enjoy the protection of certain constitutional rights."(118) Yet, when aliens cross into the United States, they face immigration laws that retain an "anomalous position...in American constitutional law." For Neuman, "current constitutional doctrine is unclear about whether the constitutional rights of aliens impose constraints on the substantive criteria adopted by Congress for the admission, exclusion, and deportation of aliens."(118) That is, does constitutional law impose judicially enforceable standards on immigration policy? Neuman seems to argue that it does, although his definition of what these judicial standards are is not so clear. As he points out, there are compelling arguments for judicial supervision of the substance of immigration policy, based in part on the limited constitutional rights historically extended to aliens by the Supreme Court. Thus, invocation of the political questions doctrine, or other doctrines of judicial self-restraint, are not necessarily legitimate. Neuman gives a compelling constitutional argument as to why judges should be more active in overseeing immigration policies, but he does not adequately account for the fact that some doctrines of judicial restraint are also related to the international position of the United States. That is, federal judges in particular are generally loath to interfere with the foreign affairs powers of the executive branch, and have developed restraint-oriented principles that reflect that. Indeed, for Neuman, the international dimension does not really matter. For instance, state sovereignty as defined by international law accords broad discretion to a state's treatment of its nationals and territory. Sovereignty also serves to justify restrictive immigration policies in nations in the world system. As Neuman puts it, "an absolute right to exclude each alien for good reasons, bad reasons, or no reasons is not inherent in sovereignty."(122) I would agree with Neuman that "sovereignty is a more relativized concept today," but I disagree that there are now limits on state sovereignty that translate into constraints on state immigration policies. State practice indicates otherwise, and often the practice of states is the most important factor in international law. Our Constitution may indeed place judicially-imposed limits on immigration policy, but those limits cannot be divorced from a larger international context--the context of state sovereignty, and the ability of the executive branch to carry out a foreign policy generally unfettered by ill-informed judicial intervention.

I am unable to cover all of Neuman's arguments in Strangers to the Constitution. In all, I found the book interesting and thought provoking, and it does offer a new approach to the issues of immigration law and policy. Neuman's historical research demonstrates that immigration policy in the United States has always been in a state of flux, and often the federal judiciary has served to clarify and complicate the matter. Professor Neuman's arguments are worthwhile, and certainly contribute to the dialogue over immigration law and policy. Adding the constitutional dimension to issues of immigration can only enrich the overall debate over who can enter and remain in the United States, and what particular rights and obligations they possess. However, focusing on this constitutional dimension overlooks problems of international law and foreign policy that will, in a pragmatic way, only serve to weaken attempts to judge immigration law by constitutional standards. That is, if we are expecting federal judges to develop doctrines to apply the Constitution to issues of immigration law, ignoring the development of judicial self-restraint in the context of foreign affairs does not help. Immigration law and policy in the United States, as in most nations, is driven by many factors. One factor that cannot be ignored is the current state of international law and its emphasis on state sovereignty. Until the extreme effects of state sovereignty can be dampened--and many argue that state sovereignty has already been significantly limited by human rights law--asking federal judges to interpose the Constitution in immigration issues may be an unattainable goal.

Copyright 1997