Flickering Lamp Beside the Golden Door: Immigration, the Constitution, & Undocumented Aliens in the 1990s

Case Western Reserve Journal of International Law Volume 30 | Issue 1 1998 Flickering Lamp Beside the Golden Door: Immigration, the Constitution, & Undocumented Aliens in the 1990s Michael R. Curran Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Michael R. Curran, Flickering Lamp Beside the Golden Door: Immigration, the Constitution, & Undocumented Aliens in the 1990s, 30 Case W. Res. J. Int'l L. 57 (1998) Available at: https://scholarlycommons.law.case.edu/jil/vol30/iss1/2 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. FLICKERING LAMP BESIDE THE GOLDEN DOOR: IMMIGRATION, THE CONSTITUTION, & UNDOCUMENTED ALIENS IN THE 1990s Michael R. Curran* TABLE OF CONTENTS INTRODUCTION: AMERICA APPROACHES THE 21ST CENTURY ................................. 58 II. THE UNDOCUMENTED ALIEN DEBATE: WHY THEY COME AND 'THE BURDEN ON SOCIETY"................. 61 A. Labels: Aliens, Immigrants, Natives, Nationals, and Citizens .............................. 62 B. Why They Come and the Debate About Burdens ...... 68 I. HISTORICAL AND LEGAL SKETCH OF THE RIGHTS OF . * B.B.A_. 1991 magna cur laude, Baruch College of the City University of New York; J.D., 1996, St. John's University School of Law; human resources manager for The Mount Sinai Medical Center, The Metropolitan Museum of Art, and other organizations; member of the New York and New Jersey bars; active participant in New York pro bono organizations, particularly the SHIELD Project and Robert B. Kay Community Outreach Law Program of the Association of the Bar of the City of New York (the latter dealing with immigrant issues). I am indebted to the sage counsel and essential support of Professor Philip Weinberg of the St. John's University School-of Law during the ongoing writing and revisions to this article and to the "spirited inspiration" of Professor David Gregory, also of St. John's. Additionally, I am indebted to the many individuals from all over the globe whom I have met in the United States and elsewhere, who have given me perspective on what America means to the rest of the world and why these folks would leave their homes and come to U.S. shores. I dedicate this Article to my sons - Andrew, Patrick, and Matthew - and my grandmother Marie (Earley) Falconer, and the nineteenth and twentieth century immigrant antecedents of my own family. I wish to express thanks to Ms. Lauren Moran (former Editor in Chief) and Mr. Eric Cheng (former Articles Editor), Case Western Reserve Law School Class of 1997, and most particularly to Ms. Lesli Esposito, Editor in Chief, Case Western Reserve Law School Class of 1998. This Article was originally written in the Spring of 1996 and was revised in early 1997, prior to the implementation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, most of the provisions of which went into effect on April 1, 1997. At publication, many in the immigrant community are reeling from the pronounced restrictionist and punitive effect of many of the act's provisions, which were avowedly intended by Congress to "plug the loopholes" in the Immigration and Nationality Act (INA). CASE W. RES. J. INT'L L. [V/ol. 30:57 AUTHORIZED AND UNDOCUMENTED ALIENS ......... 79 A. Early Days: The Development of Federal Immigration Law 82 B. Modem Constitutional Rights of Legal and Undocumented Aliens ...................... 101 IV. THE RECENT LEGAL DEBATE ON UNDOCUMENTED ALIENS .... ............................. 105 A. Making an Entrance ....................... 107 B. Aliens and Public Benefits: Proposition 187 and Progeny 116 C. Culture Clash: The Newly Arrived Encounter Those Who Came Before ............................... 126 V. NORMATIVE VERSUS CONSTITUTIONAL CONCERNS: A WORD ABOUT PLENARY POWER AND NATURAL LAW 132 VI. CONCLUSION: WHEN THEY KNOCK WHO WILL ANSWER?......................... 139 To the stranger the gates of my house are not closed; the rice jar is on the left, and the sweetmeats on the right, as you enter. Two sayings of the Master: Hospitality is the virtue of the son and the wisdom of the ancestor. The superior man is lighthearted after the cropgathering; he makes a festival. When the stranger is in your melon patch observe him not too closely; inattention is often the highest form of civility. Happiness, Peace, and Prosperity. Hop Sing' I. INTRODUCTION: AMERICA APPROACHES THE 21ST CENTURY Peek into any U.S. hotel or restaurant kitchen, and you are likely to spy foreigners without green cards through the dishwater steam. These workers are known as "illegal aliens" or more benignly as "undocumented workers," depending on your view of the issue. Foreigners unauthorized to work in the United States can also be found in garment factories, tomato fields, parking garages, taxi cabs, behind a broom, and performing a host of other tasks whose common features are long hours, scut work, and low pay. Millions of such workers continue to flood the BRET HARTE, Wan Lee, The Pagan, in THE OUTCASTS OF POKER FLAT AND OTHER TALES 214 (New Am. Libr. ed. 1961) (from THE WRITINGS OF BRET HARTE, Houghton Mifflin & Co. 1896-1904). 1998] FLICKERING LAMP BESIDE THE GOLDEN DOOR labor force, despite a long-fought 1986 immigration-reform law that liberalized legal immigration in exchange for what was supposed to be a crackdown on unlawful entry and employment.' WHAT MAKES CONTEMPORARY AMERICA? Is it the varied and still- vast natural contours of her lands? Does she emanate from new ideas, traditions, and effervescent dreams? Does America present herself to the world as a place of constitutional bounties rich in enumerated rights and privileges derived from the rule of law? Or does Columbia's true glory shine in the polyglot, melting pot of cultures - a rich layering over Anglo-Saxon and Judeo-Christian traditions, nuanced today by nearly every race, creed, and cultural mix on the face of the earth? In the present-day United States, the people and their representatives talk of the many sources of change quaking American society. Americans, for example, have varying feelings about the downsizing, reorganizing, and reengineering of American businesses and institutions, and the impact on the economy and jobs of the technological revolution.3 Managed 2 See Robert Kuttner, Illegal Immigration: Would a National ID Card Help?, in ARGUING IMMGRATION: ARE NEw IMMIGRANTS A WEALTH OF DmvEsrry ... OR A CRUSHING BURDEN? 81 (Nicolaus Mills ed., 1994) [hereinafter ARGUING IMMIGRATION]. The terminology is debatable. It makes more sense in many cases to use the term "undocumented" vs. "illegal" a (...truncated)