Harisiades v. Shaughnessy: A Case Study in the Vulnerability of Resident Aliens
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Description
We owe the ancient Greeks a great debt for inventing the polis-a geographically-defined community of citizens who regard themselves as members of a self-contained political unit. When, at the close of the Oresteia, Orestes, guilty of matricide with an explanation, is delivered from the Furies to the citizens of Athens for human judgment, notions of man-made law and the polis merge, paving the way for the modern state. Ever since, although we have argued bitterly about how law should be made and what it should say, the intellectual partnership between law and the polis has remained almost as constant as sex and the city. But the very idea of the polis has a darker side. The concept of an inclusionary community of citizens with legal rights and duties linked to a shared political unit necessarily carries with it the seeds of the “alien-other” who lives outside the charmed circle that defines the political unit. The limits of the circle can be conceptual or physical. The Athenians drew the conceptual circle relatively narrowly, including enough people to qualify Athens as the first experiment in democratic rule, but excluding women, slaves, paupers and aliens. Ever since, political theory has been dominated by a struggle to define and re-define the contours of that circle, ranging from efforts to draw it narrowly on the basis of divine right, physical strength, intellect, race, religion, ethnicity, gender, and wealth to efforts to enlarge the circle to encompass all who live in the community or under its rule. The story of American law has been an ever-expanding circle of political membership, characterized by the establishment of democracy, relatively generous naturalization, the end of slavery, the banning of racial discrimination in access to the ballot, the political emancipation of women, the enfranchisement of eighteen-year-olds, the abolition of literacy tests for voting, and the elimination of all vestiges of property qualifications for full citizenship. One group—aliens—has remained outside. Since the polis needs the counterpoint of the alien-other for its continued coherence, excluding aliens residing abroad from the circle is understandable, perhaps inevitable. Expanding it to include aliens living outside the geographical boundary of the polis challenges the very idea of a self-contained, inclusionary political unit; witness the halting efforts to build the European community, the agony of the American Civil War, the fight over the International Criminal Court, the contested status of the United Nations, and the contemporary disagreement over the judicial enforceability of customary international law. But no such conceptual problem complicates the status of lawful permanent resident aliens (LPRs), persons who have been admitted to the polis for long-term residence, but who have not acquired citizenship. Should they be treated as being inside or outside the circle? The answer is of enormous practical importance to LPRs, ultimately defining the level of legal security they enjoy in their new homes. If LPRs are placed outside the circle, their status is fragile and vulnerable. In the chilling words of the distinguished panel of the Second Circuit in Harisiades, their “license to remain is revocable at the sovereign's will.” If, on the other hand, LPRs are invited into the circle, they share many, if not all, the legal protections available to full citizens, including constitutional protection against banishment for controversial political or religious beliefs and associations. Finally, as we shall see, if the circle is drawn in an irregular, arbitrary manner, the lives of LPRs exhibit a baffling mixture of legal protection and extreme vulnerability. This is the story of how the Supreme Court drew the circle very narrowly in Harisiades v. Shaughnessy, so narrowly that LPRs residing in the United States remain exposed to banishment during recurrent outbreaks of fear and mistrust.
Source Publication
Immigration Stories
Source Editors/Authors
David A. Martin, Peter H. Schuck
Publication Date
2005
Recommended Citation
Neuborne, Burt, "Harisiades v. Shaughnessy: A Case Study in the Vulnerability of Resident Aliens" (2005). Faculty Chapters. 1340.
https://gretchen.law.nyu.edu/fac-chapt/1340
