|
|
 |
|
|
|
H-NET BOOK REVIEW
Published by H-Law@msu.edu (July, 1997)
Gerald L. Neuman. _Strangers to the Constitution:
Immigrants, Borders, and
Fundamental Law_. Princeton: Princeton
University Press, 1996. xii + 283
pp. Notes, bibliography, and index. $39.50 (cloth), ISBN 0-691-04360-4.
Reviewed for H-Law by Louis C. Anthes <lqa9210@is2.nyu.edu>,
New York
University
Law and Nationhood in the New World Order
In _Strangers to the Constitution_, Professor
Gerald Neuman of Columbia
Law School approaches head-on current controversies relating to
illegal
aliens, foreign nationals, and constitutional rights both from
historical
and theoretical perspectives. Arguing that "no human being
subject to the
governance of the United States should be a stranger to the Constitution"
(p. 189), Neuman urges Americans to ratify a "constitutional
geography" in
which government action at home or abroad would almost always
bring with
it basic constitutional rights to citizens and aliens. Although
Neuman
addresses several discrete policy debates, _Strangers to the Constitution_
effectively invites us to recognize the broad significance of
the
challenges posed by global migration and the American-led "New
World
Order."
The book divides its topic into two sections--"the
past" and "the present
and the future." In the first section, Neuman summarizes
the current
state of historical knowledge to show two things. First, he explains
how
immigration regulation has been historically exempted in large
part from
constitutional scrutiny--the one glaring exception being the guarantee
of
"birthright citizenship" to American-born children of
aliens. Second, he
explains how substantive constitutional rights have been essentially
withheld from foreign nationals who otherwise find themselves
subject to
federal power. Neuman deserves high praise both for advancing
these two
points in clear and accessible ways and for making an original
argument
that deserves closer attention from American historians. He shows
that,
if we believe that Americans enjoyed "open borders"
from 1789 until the
1924 National Origins Act, we believe a myth--because state and
local
government has always regulated the movement of people across
legal
borders through the use of criminal laws, vagrancy laws, quarantine
laws,
registration laws, and (before 1865) the law of slavery. On this
point, I
found Neuman's book to fit quite well with the challenging new
synthesis
of nineteenth-century legal history offered by University of Chicago
historian William Novak, author of _The People's Welfare_ (1996).
Novak
argues that the states' police powers, which combined to form
what he
calls the "well-regulated society," pervaded Americans'
everyday lives
from the founding through the late nineteenth century. Taken
together,
Neuman's and Novak's studies suggest that our sense of statehood
has been
worked out in rather provincial politics and mundane spheres of
law
enforcement, rather than the airy realm of constitutional abstactions.
And as Neuman recognizes, although the Fourteenth Amendment certainly
changed the rules of the game, it too has a specific history--classically
recounted by Professor William E. Nelson of New York University
Law
School in _The Fourteenth Amendment: From Political Principle
to Judicial
Doctrine_ (1988)--which could not possibly eclipse all localist
expressions of American identity.
Switching gears in his book's second section,
Neuman turns to policy
analysis. Using the elegant notion of "constitutional geography"--the
political realm in which constitutional rights apply and where
federal
power reaches, though not coterminously--Neuman examines issues
concerning
the constitutional rights of aliens abroad, rights of immigrants,
and
birthright citizenship. In each case, he favors protecting and
expanding
the constitutional rights of these groups. He also identifies
a unifying
normative principle of his rights-based politics--the principle
of what
might be called "where the federal government acts, constitutional
rights
must follow"--and in the process rejects competing principles
based on
universal rights and social contractarian rights. This principle,
evocative of the maxim "the Constitution follows the Flag,"
in fact goes
further--for it would not only extend rights abroad but preserve
birthright citizenship and extend aliens' rights within the national
boundaries of the United States. Those who may be sympathetic
to Neuman's
goals might nevertheless be suspicious that his principle could
invite
mischief in the way the Fourteenth Amendment was used to make
citizens out
of corporations as explained by Professor Morton Horwitz of Harvard
Law
School in _The Transformation of American Law: The Crisis of
Legal
Orthodoxy_ (1992). Would Neuman's principle permit foreign corporations
adversely affected by American law to invoke the "takings"
clauses of the
Fifth and Fourteenth Amendments? Neuman does not fully consider
the
unhappy consequences of enacting a principle of constitutional
interpretation that would effectively bind any exercise of federal
power
in a global context.
Neuman's book suggests that he is stretching
to make broad and
sophisticated claims about the nature of sovereignty even though
his feet
seem firmly planted in concrete debates over restrictionism.
Indeed,
Neuman's passions are most clearly communicated in his spirited
defense of
"birthright citizenship," a constitutional right carefully
criticized by
legal scholars Peter Schuck and Rogers Smith in their study _Citizenship
without Consent_ (1985). Neuman is probably correct that abandoning
that
right will divide American-born children into separate and unequal
castes
based on the citizenship of their parents: beach-going, healthy,
educated
children nurtured in suburban cul-de-sacs, versus exploited, unvaccinated,
illiterate aliens coping in the city's streets. It is that future
that
Neuman's writing depicts most vividly, especially in comparison
to his
defense of the rights of foreign nationals affected by American
law
abroad.
Whether or not expanding the scope of fundamental
law will ultimately
vaccinate children living in Los Angeles, Neuman's entry into
the
normative terrain staked out by Schuck and Smith implicitly accepts
the
problematic assumption that Fourteenth Amendment jurisprudence
is the
heart of our national community. Given the current configuration
of
politics in the United States, and in particular in California,
Neuman's
constitutional evangelism--a faith rooted in Equal Protection
law and in
the public policy of affirmative action--seems stubbornly nostalgic,
even
quixotic. Most observers of all political stripes agree that
liberal
constitutionalism is now (and has been for a while) on the defensive.
Instead of preaching the gospel, Neuman might have marked out
a less
ambitious but more workable position by first defending the constitutional
status quo regarding birthright citizenship--perhaps along the
lines of
the argument made by Professor Christopher L. Eisgruber of New
York
University Law School in "Birthright Citizenship and the
Constitution"
(_NYU Law Review_ 72 (1997): 54-96)--and then extending his historical
analysis of the idea of America as a community expressed in the
tradition
of what Novak calls "the well-regulated society." The
Constitution never
has and cannot bear the weight of what philosopher John Dewey
called "The
Great Community."
Nevertheless, Neuman's bold book should provoke
historians to reexamine
the legal history of immigration, and it will undoubtedly influence
constitutional theorists and policy-makers.
Copyright (c) 1997 by H-Net, all rights
reserved. This work
may be copied for non-profit educational use if proper credit
is given to the author and the list. For other permission,
please contact H-Net@h-net.msu.edu.