Aliens, Citizens and Incorp through Priv. & Imm. Clause
Scarberry, Mark
Mark.Scarberry at PEPPERDINE.EDU
Mon Sep 17 11:25:27 PDT 2001
This issue may have been fully covered in the literature, in which case a
citation would be appreciated. In any case, here are some of my
not-very-original thoughts:
I understand most scholars believe incorporation of the Bill of Rights
against the states is actually more justified under the Priv. & Imm. Clause
of the 14th amendment than under the Due Process clause of the 14h
Amendment. The source of incorporation could matter greatly especially in
times of international conflict when resident aliens are involved. On the
other hand, treatment of resident aliens seems a particularly federal
matter, rather than a matter for the states. Any comments on (1) the effect
of recognizing that incorporation is through the priv. & imm. clause, and
(2) the likelihood that the Supreme Court might shift its theoretical basis
for incorp. to the Priv. & Imm. clause?
One particular question might be whether the Equal Protection clause (which
applies to persons not to citizens) could provide aliens with many of the
protections of the Bill of Rights. The US S. Ct. has held of course that the
Due Process clause of the 5th Amendment has an equal protection component
that has almost the same content as against the feds that the Equal Prot.
clause has against the states. (I suppose it is the same, except that
alienage is not a suspect classification, as far as I can tell, when federal
acion is involved.) Thus a protection not explicitly provided against the
feds but explicitly provided against the states--namely, equal
protection--is extended to us as against the federal government. Could the
Equal Protection clause of the 14th amendment analogously be interpreted to
give to aliens many of the protections not explicitly provided to them?
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