Author:Kenneth L. Karst

Page 65

The status of aliens?persons who are not citizens of the United States?presented perplexing constitutional problems in this country only after the great waves of IMMIGRATION began in the nineteenth century. The question seems not to have troubled the Framers of the Constitution. JAMES MADISON, in THE FEDERALIST #42, defended the power of Congress to set a uniform rule of NATURALIZATION as a means for easing interstate friction. Absent such a congressional law, he argued, State A might grant CITIZENSHIP to an alien who, on moving to State B, would become entitled to most of the PRIVILEGES AND IMMUNITIES granted by State B to its citizens. Evidently it was assumed from the beginning that aliens were not protected by Article IV's privileges and immunities clause, and it is still the conventional wisdom?although not unchallenged?that aliens cannot claim "the privileges and immunities of citizens of the United States" guaranteed by the FOURTEENTH AMENDMENT.

Alienage has sometimes been treated as synonymous with dissent, or even disloyalty. The ALIEN AND SEDITION ACTS (1798), for example, were aimed not only at American citizens who opposed President JOHN ADAMS but also at their supporters among French and Irish immigrants. The PALMER RAIDS of 1919?1920 culminated in the DEPORTATION of hundreds of alien anarchists and others suspected of SUBVERSIVE ACTIVITIES. At the outbreak of WORLD WAR II, Attorney General FRANCIS BIDDLE was determined to avoid the mass internment of aliens; in the event, however, Biddle deferred to War Department pressure, and more than 100,000 persons of Japanese ancestry, alien and citizen alike, were removed from their West Coast homes and taken to camps in the interior. (See JAPANESE AMERICAN CASES, 1943?1944.)

When the KENTUCKY RESOLUTIONS (1798) protested against the Alien and Sedition Acts, they defended not so much the rights of aliens as STATES ' RIGHTS. Indeed, the rights of aliens were not a major concern in the nation's early years. Even the federal courts' DIVERSITY JURISDICTION could be invoked in a case involving aliens only when citizens of a state were on the other side, as HODGSON V. BOWERBANK (1809) held. For this jurisdictional purpose, a "citizen" of a state still means a United States citizen who is also a state citizen. (An alien can sue another alien in a state court.) Thus, while a state can grant "state citizen-ship"?can allow aliens to vote, hold public office, or receive state benefits?that state citizenship does not qualify a person as a "citizen" within the meaning of the...

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