Data publikacji: 18 gru 2020
Zakres stron: 107 - 118
DOI: https://doi.org/10.2478/bjals-2020-0023
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© 2021 John Vlahoplus, published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
No. 20-366 (Oct. 16, 2020). New York v. Trump, 20-CV-5770 (RCW) (PWH) (JMF) (S.D.N.Y. Sept. 10, 2020) at 85 (excluding them would violate “Congress's delegation of its constitutional responsibility to count the whole number of persons in each State and to apportion members of the House of Representatives among the States according to their respective numbers under 2 U.S.C. § 2a and 13 U.S.C. § 141.”),
However, many arguments for the President go further and assert that the Constitution supports or even compels the exclusion.
This Article details and rebuts the constitutional arguments of the President and amici. It utilizes only materials and events up to the 1868 ratification of the Fourteenth Amendment because that amendment applies to apportionment and because some Justices may apply an original public meaning approach to interpreting the relevant text.
The President claims that apportionment historically included aliens only “because the law provided them with a direct pathway to citizenship—mainly, an oath of loyalty and five years of residence in the United States,” citing the naturalization Act of Apr. 14, 1802 and statements of members of Congress in 1866. President's Memorandum,
The President also dismisses “historical evidence about the treatment of aliens” for apportionment purposes, arguing that it “does not and cannot resolve the distinct question whether President's Memorandum,
The Constitution forbade Congress to prohibit “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit” prior to 1808. U.S. C
Congress had previously sidestepped the 1808 limitation by federalizing state laws prohibiting the entry of free Blacks. Many states prohibited their entry, and in 1803 some—apparently those that allowed slavery—pushed Congress to incorporate their statutes in federal law.
A congressional bill proposed in February of 1803 would have forbidden anyone to bring, or cause to be brought, any Black person into any state whose law prohibited their entry.
Others members of Congress opposed the bill as unconstitutionally overbroad in “destroying and abridging the rights of free negroes and persons of color, who were citizens of one State,” by preventing their entry into “certain [other] States.”
Because of these restrictions and the prohibition on slave trading, Treasury Secretary Cobb advised the Charleston collector of the customs in 1858 to refuse a vessel permission to depart for Africa for the purpose of boarding Blacks there and bringing them to the United States.
Congress also considered other restrictions on immigration, including a proposal in 1856 to prevent immigration by foreign criminals and paupers.
Not all early American immigration restrictions targeted race. A 1782 Virginia statute forbade British subjects to enter the state, declared those who did to be prisoners of war, and required them to be jailed and either exchanged or sent to a British post.
In 1786 a group of citizens met in Petersburg, Virginia because “sundry persons” had been residing in the town “above twelve months” contrary to the latter statute, “giv[ing] much uneasiness to a majority of this meeting.” 4 C
Colonial provisions also limited admission of Catholics, Germans, and persons considered to be “indigent or immoral and vicious,” among others. 3 P 2 W
The President and his amici argue that unlawfully resident aliens are outside the jurisdiction of the United States, Brief President's Memorandum,
These arguments are inconsistent with the legal history of apportionment.
Unlawfully resident aliens are within the jurisdiction of the United States. As Chief Justice Marshall explained in 1812,
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. The Schooner Exchange v. McFaddon, 11 U.S. 116, 136 (1812) (Marshall, C.J.).
The claim that the United States lacks jurisdiction over unlawfully resident aliens, or that its jurisdiction over them is only partial,
Unlawfully resident aliens also owe allegiance to the United States. Under the common law, both alien friends and alien enemies who are within the realm benefit from the protection of the sovereign and therefore owe allegiance and can be liable for treason, In critiquing Justice Gray's opinion in H
Under the same principle, even prisoners of war owe allegiance and can be liable for treason:
[A] prisoner at war is not adhering to the King's enemies, for he is here under protection from the King. If he conspires against the life of the King, it is high treason; if he is killed, it is murder; he does not therefore stand in the same situation as when in a state of actual hostility.
Alien enemies who are in the country owe allegiance even though the nation may choose whether to deport them or allow them to remain. Representative Sewall noted in discussing the controversial alien bill in 1798, for example, that not “all alien enemies shall be sent out of the country; but that persons of that description who are not suspected of being inimical to the interests of this country, shall be protected.” J
An alien's allegiance is not limited to the duration of their presence. Aliens—including alien enemies—continue to owe allegiance and be liable for treason after departing the country if they leave family or property behind and thereby continue to benefit from the sovereign's protection.
The President and amici argue further that the Constitution only permits the counting of “inhabitants,” which they define thickly to mean lawfully and permanently resident by reference among other sources to the continental theorist Vattel's understanding of “inhabitants” and “citizens.”
The Court recently refused to accept thick definitions of words like “elector,” “ballot,” and “vote” in litigation over the electoral college.
The President asserts that unlawfully resident aliens should not be allowed “to redistribute ‘political power’ within” the United States through apportionment because that would be “fundamentally antithetical” to principles governing “the sovereign's rights to define the polity (‘the people’).” [T]he government, being republican, must necessarily be in the hands of the people exclusively; and any participation of unnaturalized aliens in the rights of representation and suffrage would be inconsistent with the nature of the government. It is inconceivable that the American people should have intended to authorize unnaturalized foreigners, in any way, to augment or influence the representative power of any portion of the people; and it is equally inconceivable that they should have intended, in this way, to naturalize all such, and confer on them the rights of citizens, seeing they have expressly provided another mode for the purpose. It is therefore probably true that aliens cannot be counted, either as “free persons” or “other persons,” in apportioning Representatives to “the people of the several States.” T
But the Federalist 54 sets out the rationale for counting enslaved people for purposes of apportionment. It applies as well to resident aliens, whether lawfully present or not:
In being protected . . . in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The Federalist 54 (Alexander Hamilton or James Madison).
The President attempts to separate the “personhood” of unlawfully resident aliens from their potential status as “inhabitants.”
The constitutional arguments of the President and his amici fail. Apportionment did not historically include aliens because of any path to citizenship. Federal, state, and colonial laws restricted immigration long before 1868. Americans were aware of illegal residence even before the adoption of the Constitution.
Unlawfully resident aliens are within the jurisdiction of and owe allegiance to the United States. They need not be part of the polity to be counted. It is enough that they are members of the society. The Court should decide