April 2010, Volume 96, Issue 2
Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency
by James Pfander and Theresa Wardon
96 Va. L. Rev. 359 (2010)
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First, the paper offers the first considered examination of the immigration constitution of the early Republic. We find, both in the text of the Naturalization Clause and in its early application, a strong commitment to norms of prospectivity, uniformity and transparency. These norms rule out retrospective changes in the law and foreclose the practice of case-by-case private legislation in the naturalization field.
Second, the paper shows that the framers perceived the rules of naturalization as tantamount to rules of immigration law. This identity followed from the close association of citizenship and the right to own land. In a pre-industrial economy, where travel to the new world was relatively expensive and almost invariably permanent, easy rules of naturalization translated into a liberal immigration policy. One finds recognition of the essential identity of naturalization and immigration in such varying sources as the naturalization grievance of the Declaration of Independence and the comments of James Madison on the nation’s first naturalization bill. This identity, in turn, suggests that limits on congressional power in the naturalization arena can readily apply to immigration law.
Third, we apply these norms of uniformity, prospectivity, and transparency to a range of problems in modern immigration and naturalization law. For example, we argue 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. We also argue against Congress’s practice of adopting private legislation. These claims, 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.
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