"Alien" Litigation as Polity-Participation: The Positive Power of a "Voteless Class of Litigants"

By Kanstroom, Daniel | The William and Mary Bill of Rights Journal, December 2012 | Go to article overview

"Alien" Litigation as Polity-Participation: The Positive Power of a "Voteless Class of Litigants"


Kanstroom, Daniel, The William and Mary Bill of Rights Journal


Well-funded illegal alien activists in Southern California have found a new way to attack Americans fighting for secure borders and enforcement of current immigration laws. The fight has moved from the streets where they wave the [sic] their Mexican flag to America's civil courtrooms.

- Quote from an article posted on Ron Paul Forums, Feb. 9, 20101

Immigration policy shapes the destiny of the Nation.

- Arizona v. United States2

Again and again, the cure for corruption, withdrawal, and alienation is . . . aliens.

- Bonnie Honig, Democracy and the Foreigner3

Introduction

The framing title of this Symposium - Noncitizen Participation in the American Polity - seems to present an obvious contradiction: How can noncitizens, who are by legal definition "aliens"4 and often seen as "outsiders;"5 who are frequently de scribed as lacking full "membership" in society;6 and who rarely, if ever, have the right to vote, participate in the polity? In particular, can the undocumented - who by definition have violated U.S. law, who face the existential epithet of being "illegal aliens," and who have been well-described as living under "a regime of enforced invisibility"7 - possibly do so? Are they even part of the polity? And if they do somehow manage to participate, how should we assess such actions?

The apparent contradiction is largely illusory. Noncitizen participation in the American polity (including the participation of undocumented noncitizens), though mostly undertaken by means other than voting, has long been a reality in the United States.8 This historical fact remains true notwithstanding such current initiatives as Arizona's cynical policy of "attrition through enforcement."9

This Article examines such participation and considers a provocative normative claim: noncitizen polity-participation is a crucial, positive engine of constitutional evolution and, as such, an essential component of politico-legal legitimacy. Justice Kennedy's opinion was clearly right, in Arizona v. United States, to affirm that "[immigration policy shapes the destiny of the Nation."10 This is equally true of noncitizen polity-participation in its various forms.11 Litigation by noncitizens is a surprisingly large - and surprisingly under-appreciated - aspect of the deep truth also noted by Justice Kennedy, that "[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here."12

Litigation by noncitizens is always a controversial topic, especially when cases are brought by the undocumented or their advocates. As a prominent retired ICE agent has put it:

Allow me to understand this correctly. Illegal aliens, people who have committed a crime by entering this country illegally, and who continue to commit additional crimes by using counterfeit documents to project a status they are not entitled to, are suing cities and citizens for disrupting their RIGHT to work in the US, even though they have no such right? ... It's time for the good citizens of this country to fight back through the courts . . . .13

An online commenter responded, "They do have nerve. How on earth can anyone living in a country illegally have the audacity to sue for ANYTHING. . . . Only in America."14

Such sentiments have percolated up into legislative proposals. In 2010, Texas State Representative Leo Berman (R-Tyler) introduced a bill that sought to prevent people who are in this country illegally from filing lawsuits or other claims in Texas courts.15 "If he is in the United States illegally, he shouldn't have access to our courts," explained Berman.16 Even federal judges have expressed concerns of this type. In 2010, the District Court for the Northern District of Oklahoma considered challenges to the Oklahoma Taxpayer and Citizen Protection Act of 2007, which had sought to prohibit various forms of polity-participation by noncitizens. …

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