By Yakov Malkiel
Immigration laws control transitions between “alienhood” and citizenship.[1] These two legal categories are statuses: that is, they assign rights and obligations to people based on their unchosen characteristics, in this case their birthplaces and their parents’ identities. The arc of legal history has bent away from relying on statuses and toward treating all people as equals. By continuing to revolve around statuses, our immigration laws thus reflect attitudes that we have mostly rejected.
I. From “Aliens” to Citizens
Like many before it, this election cycle has placed immigration at center stage. Some presidential candidates have described the rate at which noncitizens are entering the United States as a crisis and an important failing of the current administration. Longstanding pressure on the President has culminated in his recent Proclamation on Securing the Border. At times like this, it is important to revisit the underpinnings of our jurisprudential attitudes toward immigration and the laws that control it.
The immigration laws determine whether and when “aliens” may become “citizens.” Our legal system draws a sharp distinction between these two categories of people. The distinction determines an array of legal rights and obligations. Typically, only citizens are entitled to vote and to hold office. Citizens receive special constitutional protections and governmental benefits. And noncitizens may be removed from the country’s territory.
Two key factors determine a person’s access to citizenship. Both are “beyond the[] control” of anyone: they are (1) the person’s place of birth and (2) the identities of the person’s parents. In essence, you may have a right to U.S. citizenship if you were born on U.S. soil or if your parents are U.S. citizens. The pathways to citizenship of anyone who was born abroad to non-citizen parents are narrow and uncertain.
The traditional name for a legal category that assigns rights and obligations to people based on unchosen characteristics is a “status.” English scholar Edward Jenks classically defined statuses as groups of people that the law treats differently because of “conspicuous differences . . . that by no decision of their own can they get rid of.” That definition remains in use. It aptly describes both citizenship and “alienhood” under today’s laws.
II. From Status to Equality
Few theories about the history of law and society have been as influential as Sir Henry Sumner Maine’s aphorism that “the movement of the progressive societies has hitherto been a movement from Status to Contract.” Scholars say that Maine’s usage of the term “status” mirrored Jenks’s: Maine also meant a legal category that assigns rights and obligations to people based on their unchosen characteristics.
Maine viewed his theory as both descriptive and prescriptive. He thought that, as a matter of historical fact, the law has gradually been assigning rights and obligations less on the basis of unchosen statuses, and more on the basis of voluntary arrangements. Maine also approved of this development, as indicated by his use of the adjective “progressive.”
For present purposes, it is important to disaggregate the “from status” and “to contract” halves of Maine’s theory. The “to contract” half has drawn overwhelming critiques. The critics have observed that modern legal systems have limited the extent to which contracts are permitted to dictate legal consequences. Statutes and regulations control rights and obligations that people cannot always modify. The same critics have emphasized the virtues of restrictions on contractual freedom: such restrictions can deliver benefits to the public and protect the people who most need protecting (such as underage work seekers).
By comparison, quarrels with the “from status” half of Maine’s theory have been essentially semantic. Almost as soon as Maine articulated his aphorism, scholars began to point out that the law continues to recognize new types of statuses, such as “employee,” “insured,” “tenant,” and “shipper.” Of course, these are not the types of categories that arise out of people’s unchosen attributes. They depend on voluntary acts, such as the acceptance of a job offer. To the extent that such legal categories are now commonly called “statuses,” the logical critique of Maine is that he (and Jenks) used the term “status” in an outdatedly narrow sense.
Setting semantics aside, the “from status” half of Maine’s theory continues to offer vibrant lessons. Like Maine’s aphorism overall, these lessons are both prescriptive and descriptive.
The theory that the law is gradually moving away from assigning rights and obligations based on unchosen characteristics reflects an appealing prescriptive principle: the belief that all people are born equal. That belief is the essential opposite of the traditional assumption that rights and responsibilities are appropriately assigned on the basis of unchosen characteristics. Jenks recognized this point, writing that the ancient proliferation of statuses has waned “as a result of the modern tendency towards legal equality.” The prescriptive teaching of Maine’s aphorism is that the law should steadily eliminate statuses and replace them with equal protections.
The corresponding descriptive proposition is that, from a bird’s eye view, the arc of legal history has bent away from status and toward equality. This observation should not be allowed to obscure the unacceptable inequalities of both our history and our present. But it is supported by certain datapoints. Writing in 1861, Maine himself was especially interested in the law’s abandonment of the feudal statuses of “noble,” “vassal,” and “serf.” Two years later, the Emancipation Proclamation ended American slavery. In 1920, the Nineteenth Amendment equalized the voting rights of men and women. During the fifties and sixties, some legal consequences of African-American heredity were outlawed by Brown and Loving. The Civil Rights Acts of the sixties tackled additional unequal consequences of gender and race. Recent decisions such as Windsor, Obergefell, and Bostock have made analogous efforts to equalize the legal implications of all sexual orientations.
Each one of these developments has reflected a reduced role for status in the law and a corresponding expansion of legal equality. Each one has been a step toward disentangling people’s rights and obligations from their unchosen attributes. Each one has enlarged the universe of people whose unchosen attributes are legally irrelevant and who are instead treated as equals.
III. From Outlaws to Siblings
Citizenship and “alienhood” have survived the law’s gradual rejection of status as an acceptable regulatory device. The Supreme Court made this clear in Mathews v. Diaz, stating matter-of-factly that “a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and [‘]aliens[’] may justify attributes and benefits for one class not accorded to the other.”
The persistence of these two statuses is a puzzle. Why exactly does the law continue to assign divergent rights and obligations to people based on their places of birth and their parents’ identities? We rarely see this question posed, perhaps because citizenship and “alienhood” are categories so time-honored that they seem natural. But it is puzzling that these categories have remained vital even as we have jettisoned the law’s traditional willingness to derive rights and obligations from nobility, vassalhood, serfdom, slavery, race, gender, and sexual orientation.
Logically speaking, there may be two fundamental approaches toward explaining the continued vitality of citizenship and “alienhood.” One is that our society truly views noncitizens as unequal people. Maybe we have come only so far from those Founders who believed that all people are born equal, as long as they are born male and white. The analogous view today may be that all people are born equal, as long as they are born on U.S. soil or to American parents. Some political and philosophical thought seems to be satisfied implicitly with this type of attitude.
A second explanation is less ideological and more practical or apologetic. Perhaps we believe that noncitizens deserve equal treatment, but that we aren’t equipped to provide it. Maybe there are more rights-deserving people in the world than the United States is able to accommodate. It still may be puzzling that among all the rights-deserving people, we choose to favor the citizens; but perhaps that reality is too deeply ingrained to be upended just yet.
The existence of these two explanations does not end the analysis. Each of them yields very different policy implications. In a nutshell, if only practical constraints curb the degree to which we grant equal treatment to noncitizens, then we should be maximizing—to the extent that reality tolerates—the number of noncitizens we naturalize, as well as the scope of the rights that we make available to noncitizens. Such efforts are unnecessary if we are content to view noncitizens as unequal.
Our fundamental attitude toward noncitizens may specially impact our attitudes toward those who attempt to immigrate in violation of the applicable laws. In his Letter from Birmingham City Jail, Dr. Martin Luther King, Jr. described the experience of the holders of an unequal status upon being told to obey the laws that enforce that status. Dr. King’s topic was segregation based on race, not exclusion based on parentage and place of birth. But the parallels are distinct:
All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation . . . ends up relegating persons to the status of things.
An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. . . . A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law.
People bearing the more-powerful status of citizenship are those who make the laws that deny various legal rights to people bearing the less-powerful status of “alienhood.” When we call on noncitizens to obey those laws, we ought to ask ourselves: Are we treating them as equals? Would we find such laws acceptable as applied to our siblings? Dr. King described the resulting practical dilemma as follows: “Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice?”
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[1] The Law Review considers the terms 'aliens' and 'alienhood' to be degrading and harmful. While we discourage their use, they are employed here to underscore the negative and exclusionary language historically and currently used by the legal system toward noncitizens.
The author is a graduate of Tel-Aviv University (LL.B.) and Yale Law School (LL.M.). Among other responsibilities, he is an adjunct professor at New England Law Boston. This essay is dedicated to the memory of Analisa R. Smith-Perez, an extremist for love and justice who is badly missed.
