New Immigration Articles
Here are two new immigration law articles posted by the Social Science Research Network (www.ssrn.com):
Christian Joppke’s volume is a timely intervention into the highly-charged question of ethnicity and its proper role in the construction of citizenship and immigration regimes. If nations and societies are about a common past as well as a common future, how should they choose future members from the outside? Liberal democratic states are committed to laws and preferences that are universalist and meritocratic. Yet considerations of community and commonality, solidarity and identity, inevitably lead to legal preferences for one or another kind of kinsmen – by race, national origin, language, religion, etc. The solidarity of homogenous collective individuals in the nation, the nation as the totality of society, is gone. What James Scott famously and wrongly called the “high modernist state,” namely “society as a military parade,” is (and was) a phantasm. The real “high modernist state” is one that has stable democratic institutions and a functioning market economy. It is not much interested in uniformity or nationalism; it is at most an integument for the individual’s exercise of liberty, equality, and property rights. Effective human rights are now the measure of, rather than a constraint on, sovereignty. Citizenship is increasingly territorial rather than descent-based, and naturalization increasingly requires only language acquisition and a professed commitment to constitutional democracy. Ethnicity and citizenship are decoupled as never before while dual citizenship is no longer either avoided or disparaged. BLOGGER’S NOTE: PROFESSOR ABRAHAM’S SCHOLARSHIP IS ALWAYS PROVOCATIVE AND INSIGHTFUL.
Few subjects can match the pure polarizing power of illegal immigration. Yet surprisingly little attention has been devoted to identifying, much less evaluating, the critical assumptions that have driven either the perceptions or the policy prescriptions of the opposing camps. To fill that gap, this article asks a fundamental question: Who is the undocumented immigrant? Drawing on the grand tradition of Henry Hart and his successors, this article uses dialectic to explore what lies at the heart of the contentious debate over illegal immigration. Through a spirited dialogue between two fictional professors with polar opposite views on illegal immigration, the article paints sharply contrasting portraits of undocumented immigrants. As the two antagonists debate both the impact of illegal immigration and the appropriate policy responses, the moderator notices two recurring patterns. First, the more restrictive position reflects what this article calls “aggregation,” or “clustering.” This position visualizes undocumented immigrants en masse and thus emphasizes their collective impact on the host society. The less restrictive position, in contrast, starts with a mental picture of individual undocumented immigrants and their families, and consequently is more prone to emphasize the impact of a proposed policy on the individual immigrants. Second, while both sides agree that every undocumented immigrant is by definition both a lawbreaker and a resident, they attach different emphases to these two components of identity. On every policy response that they debate, emphasis on the lawbreaker attribute turns out to be a necessary predicate for almost all the arguments in support of the stricter view, while emphasis on the resident attribute turns out to be a necessary predicate for almost all the arguments in support of lenity. When the dialogue concludes, the article turns to the relevant social science literature. Drawing on the empirical data from that literature, the article demonstrates that in their daily lives undocumented immigrants resemble other residents far more than they resemble other lawbreakers. Because the opposing arguments rely so heavily on their respective depictions of undocumented immigrants as lawbreakers versus residents, that empirical conclusion supplies a strong normative case for generally lenient policy responses to illegal immigration. At the same time, the article encourages a fuller and more balanced public discourse that acknowledges and weighs the effects of proposed immigration policies on both the individual and the larger society. To that end, the article mines the same empirical literature for insights on the nature and magnitude of those effects. While the overall impact of illegal immigration on the larger society cannot be conclusively described as either a net positive or a net negative, the effects of the various policy proposals on the interests of the undocumented immigrants themselves tend to be more clearly positive or negative – another reason for prioritizing the individual interests when the policy questions are otherwise close. BLOGGER’S NOTE: PROFESSOR LEGOMSKY’S SCHOLARSHIP IS ALWAYS A “MUST READ” FOR STUDENTS OF IMMIGRATION LAW AND POLICY.
KJ