Abstract

Issues raising the role of immigration and immigrants and the relationship between the federal government and the states under our constitutional framework have dominated the national dialogue this past year, and promise to continue to challenge us in years to come. They are questions that tested us at the founding of this republic and that continue to challenge us today. Like conversations about religion, conversations about immigrants, refugees, undocumented aliens or noncitizens raise issues of national, cultural and individual identity; they raise a past that does not always reflect a happy history and that many find threatening. The idea of a nation of immigrants evoked by President John F. Kennedy in his book by that name is usually intended to communicate a positive good, but our history as a nation of immigrants is a complicated and troubled one. It is in the search for accuracy, for facts, for compassion and understanding of the role that immigrants and immigration have played in American society, in our understanding of the Constitution, in our understanding of race and how it operated and operates in American society, and the role that states and the federal government have played historically in the development of constitutional norms that govern immigration today, that I explore the subject. In doing so, I develop three ideas: first, the United States has one of the most generous formal immigration policies in the world today, working primarily to unite families and offering immigrants for the most part the promise of equality with U.S. citizens and a welcome to those who would become members of our society, regardless of their country of birth. Unfortunately, while generous by world standards, our immigration laws themselves create harsh inequities for would-be immigrants and for U.S. citizens or immigrants seeking to reunite with their families or pursue opportunities in the United States. Second, and a less comfortable narrative, I explore through facts the role that racial bias has played in the context of immigration. The welcome mat extended to immigrants is often double-edged, and sometimes turns into suspicion, hostility, even hatred, and casts those same individuals we welcomed into “aliens” we would push out. Whether cast as a matter of race, national origin, skin color or religion, we have not always treated groups perceived as “alien” or “different” from us, with a generous spirit. Last, I explore the challenges that issues of immigration pose for the United States in the twenty-first century and how constitutional norms, in particular, norms reflecting federalism concerns may guide our response to those challenges.

KJ