Sunday, January 26, 2014
Ownership without Citizenship: The Creation of Noncitizen Property Rights by Allison Brownell Tirres, DePaul University College of Law October 8, 2013 Michigan Journal of Race & Law, Vol. 19, 2013, Forthcoming DePaul Legal Studies Research Paper No. 13-07
Abstract: At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage; and state constitutions, a significant number of which included property rights for noncitizens. Iowa, Wisconsin, California, and Michigan led the way, including these rights in their state constitutions prior to the Civil War. Through close examination of Congressional debates, records of state constitutional conventions, and other historical texts, this article places this significant legal reform in a broader historical context. Lawmakers succeded in untethering notions of citizenship from notions of ownership, creating a more expansive vision of membership in the American polity. Property law was itself a form of immigration law, used not to expel migrants but rather to attract them and, lawmakers hoped, eventually to assimilate them as new Americans. The property reforms discussed here did not, however, result in property rights for all noncitizens; in fact, a majority of states today have some form of property restriction based on alienage. This article suggests that an answer for the persistance of noncitizen property restrictions in American law lies in the nineteenth-century. Reform efforts in this era held the seeds of restrictive policies that would develop later in the twentieth and twenty-first centuries, such as anti-Asian land laws and anti-illegal immigrant housing ordinances. Sources from the ninteenth-century reveal that becoming “American” through property ownership was not a fully inclusive process; from the outset it was limited by assumptions about national origin, race and territorial location.
Mercy in Immigration Law by Allison Brownell Tirres DePaul University College of Law October 11, 2013 Brigham Young University Law Review, 2014, Forthcoming DePaul Legal Studies Research Paper No. 13-11
Abstract: What role should mercy play in immigration law? This essay draws on the robust debate in the criminal law about the role of mercy in the hopes of starting a conversation among immigration law scholars and practitioners. Mercy skeptics argue that mercy contravenes justice, while advocates argue that mercy is a necessary countermeasure to the unrelenting harshness of criminal law today. I argue that the problems of mercy in the criminal law are amplified in the immigration law context. The lack of procedural and substantive protections for immigrants, the acceptance of unfettered discretion and lack of oversight of agency action, and the political subordination of noncitizens all push in the same direction — towards sovereign mercy rather than equitable justice. Sovereign mercy can have laudable effects, as when it encourages the creation of humanitarian programs of immigrant admission. But it can also have harmful effects, departing from important rule of law norms and placing recipients outside the law rather within its protections. I do not seek to resolve these contradictions but rather to draw our attention to them and to encourage scholars and practitioners to look critically at the role of mercy in the regulation of migration.