"Alien" Litigation as Polity-Participation: The Positive Power of a "Voteless Class of Litigants"

Abstract

From the introduction:

The framing title of this Symposium—Noncitizen Participation in the American Polity—seems to present an obvious contradiction: How can noncitizens, who are by legal definition “aliens” and often seen as “outsiders;” who are frequently described as lacking full “membership” in society; and who rarely, if ever, have the right to vote, participate in the polity? In particular, can the undocumented—who by definition have violated U.S. law, who face the existential epithet of being “illegal aliens,” and who have been well-described as living under “a regime of enforced invisibility”—possibly do so? Are they even part of the polity? And if they do somehow manage to participate, how should we assess such actions?

The apparent contradiction is largely illusory. Noncitizen participation in the American polity (including the participation of undocumented noncitizens), though mostly undertaken by means other than voting, has long been a reality in the United States. This historical fact remains true notwithstanding such current initiatives as Arizona’s cynical policy of “attrition through enforcement.”

This Article examines such participation and considers a provocative normative claim: noncitizen polity-participation is a crucial, positive engine of constitutional evolution and, as such, an essential component of politico-legal legitimacy. Justice Kennedy’s opinion was clearly right, in Arizona v. United States, to affirm that “[i]mmigration policy shapes the destiny of the Nation.” This is equally true of noncitizen polity-participation in its various forms. Litigation by noncitizens is a surprisingly large—and surprisingly under-appreciated—aspect of the deep truth also noted by Justice Kennedy, that “[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.”