Title

Independence and Immigration

Document Type

Article

Publication Date

March 2016

Abstract

The Declaration of Independence articulates principles about the colonists’ decision to leave one polity and join another—that is, the very act that lies at the heart of immigration itself. It is not surprising, then, to find that the Declaration has influenced the constitutional foundations of immigration law. Perhaps most important, the Declaration’s claim that certain rights are universal, including the right to make a new life in a new nation, has led courts to find that the Constitution protects even undocumented noncitizens living in the United States. And yet the Declaration’s influence has been limited, for its universalist philosophy has never been extended to the rules governing the entry and removal of noncitizens—rules that the Supreme Court has long held fall under the “plenary power” of Congress and thus which are almost wholly unconstrained by the Constitution. This Article explores the Declaration’s role in creating the strange dichotomy between the laws that regulate noncitizens, which are subject to constitutional constraints, and the laws that select them for admission and removal, which are not.

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