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New Immigration Articles From SSRN

By immigrationprof

Here are three new immigration articles from the Social Science Research Network (www.ssrn.com)::

“Natural (Native) Born Citizen Defined: Before and After the Fourteenth Amendment” DAN GOODMAN.  ABSTRACT:  Before the Fourteenth Amendment, the governments of the several States were considered separate and distinct sovereignties from each other as well as from the government of the United States. After the Fourteenth Amendment, the governments of the several states are still considered separate and distinct sovereignties from each other as well as from the government of the United States. Before the Fourteenth Amendment, a native born citizen was a citizen of a State, and a native born citizen of the United States, when aboard. Before the Fourteenth Amendment, an alien or foreigner could become a naturalized citizen of the United States or a naturalized citizen of a State. A naturalized citizen of the United States domiciled in a State, became a citizen of that State; that is, a citizen of the United States AS WELL AS a citizen of a State. A naturalized citizen of a State became also a citizen of the United States; that is, a citizen of a State AS WELL AS a citizen of the United States. Before the Fourteenth Amendment, a naturalized citizen of the United States and a naturalized citizen of a State were also a naturalized citizen of the United States, when aboard. Citizenship of the United States was established by the Supreme Court in the case of Dred Scott. Instead of distinguishing between a citizen of a State, under the constitution and laws of the individual State, and a citizen of a State, under the Constitution and laws of the United States, Chief Justice Tanney, in this case, made a distinction between a citizen of a State, under the constitution and laws of the individual State and a citizen of the United States under the Constitution and laws of the United States. Because of this, citizenship of the United States, became a constitutional reality, instead of being an international status. After the Fourteenth Amendment, citizenship of a State and citizenship of the United States were held to be separate and distinct by the Supreme Court in the Slaughterhouse Cases. That a citizen of a State was separate and distinct from a citizen of a United States. After the Fourteenth Amendment, a native born citizen is a citizen of a State, and a native born citizen of the several States, when aboard. After the Fourteenth Amendment, an alien or foreigner could become a naturalized citizen of the United States or a naturalized citizen of a State. A naturalized citizen of the United States residing in a State, becomes a citizen of that State; that is, a citizen of the United States AND a citizen of a State. A naturalized citizen of a State becomes also a citizen of the several States; that is, a citizen of a State AS WELL AS a citizen of the several States. After the Fourteenth Amendment, a naturalized citizen of the United States is a naturalized citizen of the United States, when aboard. After the Fourteenth Amendment, a naturalized citizen of a State is a naturalized citizen of the several States, when aboard. After the Fourteenth Amendment, a citizen of the United States is one who is born in the United States and not a State. And naturalized in the United States and not naturalized in a State. Regarding a foreign corporation, it is neither a citizen of the several States under Article IV, Section 2, Clause 1 of the Constitution of the United States (of America) nor a citizen of the United States under Section 1 of the Fourteenth Amendment. A corporation, before the Fourteenth Amendment, was not considered a citizen of a State, under the Constitution. After the Fourteenth Amendment, a corporation is neither considered a citizen of the several States, under Article IV, Section 2, Clause 1 of the Constitution of the United States (of America) nor a citizen of the United States under Section 1 of the Fourteenth Amendment.

“Persons and Citizens in Constitutional Thought” International Journal of Constitutional Law, Vol. 8, No. 1, pp. 9-29, 2010 LINDA S. BOSNIAK, Rutgers University School of Law, Camden.  ABSTRACT:  The ideas of citizenship and personhood have an ambiguous relationship in constitutional thought. Often, they are understood as aligned, even identical. Claims for “equal citizenship” and “democratic citizenship” are, in effect, claims on behalf of the rights and recognition of individuals qua persons. Frequently, however, citizenship and personhood are regarded as opposing concepts. Whereas citizenship references national belonging and its associated rights, personhood evokes the rights and dignity of individuals independent of national status. Personhood stands for the universal, in contrast to citizenship, which is ultimately exclusionary. Much of the ambiguity of the personhood-citizenship relationship results from the multivalence of the idea of citizenship itself. Analytically, the term is used to reference both re lations among already-presumed members of a political community and the process of constituting that community in the first instance. Normatively, citizenship is understood as committed to universalism within the community, but in its community-constitutive mode, it is associated with bounded national commitments. Idealized accounts treat citizenship as a concept that works to mediate between universality and boundedness and ultimately to accommodate them: in this view, that is precisely citizenship’s function and its value. Citizenship is thus represented as both the embodiment of the universal and as the framing precondition for it. In earlier work, I have shown that the accommodation of the universal and particular that citizenship purports to stand for is often unstable and internally contradictory. Here, I am interested in thinking about constitutional personhood’s own hang-ups. Personhood as a preferred basis for constitutional subject status raises as many questions as it answers, and in the context of constitutional thought, it promises much more than it can deliver. This essay sketches out some directions for a critical reading of the idea of “constitutional personhood.”

Mutual Recognition in European Immigration Policy: Harmonised Protection or Co-Ordinated Exclusion? T. John O’Dowd UCD School of Law in F.A.N.J. Goudappel, R. Oostland & H. Raulus (eds), The Future of Asylum in the European Union: Problems, Proposals and Human Rights (The Hague, Asser Press; 2010.) Abstract: The EU’s migration policy and the nature of the instruments adopted under it are likely to have an increasing impact on national migration controls, over the course of the recently adopted Stockholm Programme and beyond. Two recent examples have been the establishment of minimum procedural standards and the increasing application of the mutual recognition principle in relation to decisions on expulsion and refusal of entry to third-country nationals. This chapter examines the influences upon, and the impact of, Community measures in those two fields—in particular the Return Directive—and seeks to assess what each tells us about the political dynamics behind the development of EU policies and actions in these areas, particularly in the context of the Union’s search for legitimacy through public perception of its effectiveness in assisting in the achievement of key policy goals, even if the content of these remains determined largely by national politics and national policy. A key issue is the adequacy of the guarantees in Union law of effective judicial review of decisions on admission and return. This is particularly relevant to the extra-territorial activities of the Member States and the Union, through operations co-ordinated by FRONTEX for instance. The adequacy of legal safeguards applicable to that extra-territorial migration control is briefly considered. The chapter closes by considering the relevance of opinion amongst MEPs and of national public opinion in relation to the European contribution to migration policy and what developments in this field tell us about the changing nature of the executive order of the EU.

KJ