Judge Karen Nelson Moore of the U.S. Court of Appeals for the Sixth Circuit focused on a timely and politically charged topic, “Aliens and the Constitution,” when she delivered the 44th James Madison Lecture on October 16. Introducing the event, Dean Richard Revesz offered a tribute to Judge M. Blane Michael ’68 of the U.S. Court of Appeals for the Fourth Circuit, a past Madison Lecturer, who passed away in 2011.
A former clerk for Supreme Court Justice Harry Blackmun, who delivered the Madison Lecture in 1984, Moore observed that “today courts and civic leaders alike grapple with difficult questions as to the proper treatment of millions of individuals, either living among us or interacting with our government, but not bearing the title of United States citizen. I would submit that formulating the answers to these difficult questions requires us to articulate and refine our shared conception of civil liberty, national purpose, and identity as a nation.” With pending Supreme Court cases on Arizona voting rights and Guantánamo Bay detainees, these issues, she argued, were more pressing than ever.
Moore invoked three overarching questions questions: what constitutional rights aliens have; when and how treating aliens differently than citizens violates the Constitution; and whether all aliens should have identical constitutional rights. She then suggested that James Madison’s writings seem to indicate that aliens do have constitutional rights, although those rights are not unlimited and vary according to how closely an alien is tied to the U.S. by a variety of criteria.
In her lecture, Moore covered an array of points of law regarding unauthorized aliens, including constitutional references to aliens and cases involving illegal immigrants and detainees charged with terrorism. Further, she said, Congress has created specific categories of aliens in making immigration law. As a result, Moore explained, aliens can be thought of in a constitutional setting, an immigration setting, and a national security setting, with each context playing an important role in the legal implications: “As U.S. criminal prosecutions and investigations become more global in scope, questions more frequently arise as to how far in a territorial sense and to which classes of aliens those rights extend.”
Despite limitations on aliens’ constitutional rights, Moore said, “That aliens are protected by our core foundational and governing document says much about our identity as a nation. The rights we cherish deeply inhere in the dignity of the human being and do not attach only to those with the label of citizen. Madison himself recognized that the fundamental principles in our Constitution are about respect for all persons, whether or not they are citizens. That such rights were recognized early in our constitutional history and are still recognized today is to be celebrated.”
The perpetually thorny issue of those immigrants living in the U.S. illegally, she said, involves unsanctioned residents with “the contradiction of often having the most deeply rooted community ties to the United States despite their unauthorized status. It is thus not surprising that the constitutional rights of this group remain in the greatest state of uncertainty.”
Moore stressed the seriousness of the questions, in terms of both law and national security, raised in grappling with “constitutional alienage jurisprudence”: “How far outside the territorial bounds of the United States does the Constitution extend, and what are the implications of an alien enemy label to the robustness of the Constitution’s reach and protections? The extent to which our constitutional norms apply to aliens is a deeply complicated question which intersects with important and contested realms of executive and legislative power.”
Watch the full video of the event (1 hr, 22 min):
Posted on October 26, 2012