Won Kidane

The Alienage Spectrum Disorder: The Bill of Rights from Chinese Exclusion to Guantanamo

The fundamental notion that increased ties to the polity of the United States would entitle an alien to better rights is deeply-rooted in the jurisprudence. Ordinarily, these rights tend to strengthen as one moves forward from the beginning of the spectrum, which might involve the most attenuated contact, as in the case of enemy aliens detained by United States military in a foreign land or an overseas visa applicant, to the end of the spectrum, which might involve a United States citizen. While this seems to make perfect sense, this article argues that a closer examination of the century-old jurisprudence suggests that the spectrum is indeed replete with inconsistencies, and as such, is utterly disordered. It further contends that the disorder in the alienage spectrum is a result of the awkward exclusion of the so-called aliens from the benefits of maturing notions of equal protection and due process as a result of the pre-rights era of Chinese exclusion, which is a part of the Plessy v. Ferguson legacy. More specifically, the article contends that the source of the disorder is the century-old tug-of-war between the plenary power doctrine, which immunizes congressional acts relating to immigration from judicial review, on the one hand, and contemporary notions of due process and equal protection on the other. At a more philosophical level, the disorder is a product of a tug-of-war between the perception of the Constitution as a compact between a selected group of “people” with the prerogative to exclude all others, on the one hand, and the perception of the Constitution “as a limitation on the Government’s conduct with respect to all whom it seeks to govern” on the other. The interplay between these fundamental assumptions, coupled with historical accidents, has produced a jurisprudence that is incoherent and largely unpredictable. This article purports to define the spectrum, highlight the disorder, identify and characterize the culprit gene, and propose modest reordering steps.