From Plyler to Arizona: Have the Courts Forgotten about Corfield v Coryell?
Dr. Eastman is also the founding director of the Center for Constitutional Jurisprudence, a public interest law firm on whose behalf he has participated as amicus curiae in several Supreme Court cases related to the topic of the Symposium at which this Article was presented, including Hamdi v Rumsfeld, 542 US 507 (2004), and Arizona v United States, 132 S Ct 2492 (2012). He has testified before Congress (Oversight Hearing on Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty before the Subcommittee on Immigration, Border Security, and Claims of the House Committee on the Judiciary, 109th Cong, 1st Sess 57 (2005)), the Arizona Legislature (both the Judiciary and Appropriations Committees on the Birthright Citizenship State Compact bill, Feb 7 and 22, 2011, respectively), and the California Legislature (Assembly Republican Task Force on Illegal Immigration, Oct 11, 2006), on matters related to the subject of this Symposium. The congressional testimony was subsequently published in the Texas Review of Law & Politics and the University of Richmond Law Review. John C. Eastman, Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11, 12 Tex Rev L & Polit 167 (2007); John C. Eastman, Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11, 42 U Richmond L Rev 955 (2008). Other related publications include: John C. Eastman, The States Enter the Illegal Immigration Fray, in Carissa Hessick and Jack Chin, eds, Illegals in the Backyard: State and Local Regulation of Immigration Policy (NYU forthcoming 2013); John C. Eastman, Papers, Please: Does the Constitution Permit the States a Role in Immigration Enforcement?, 35 Harv J L & Pub Pol 1 (2012); John Eastman and Ediberto Román, Debate on Birthright Citizenship, 6 FIU L Rev 293 (2011); John C. Eastman and Karen J. Lugo, Arizona’s Immigration Storm, 12 Engage 68 (June 2011). Portions of this Article have been drawn from some of those prior publications.
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The theme of the Symposium at which this Article was presented was Immigration Law and Institutional Design. Our mission, as Symposium participants, was to assess the efficacy of the institutions that adopt and enforce our immigration laws. But before we can possibly make an efficacy assessment, we must address a normative question, namely, just what is it that our immigration laws seek to accomplish? It seems to me that there are three mutually exclusive alternatives or, perhaps more accurately, three principal points on a continuum of policy alternatives: (1) open borders, with unconstrained immigration and naturalization; (2) closed borders, with no permanent immigration and naturalization, only temporary visas for students, tourists, and so forth; and (3) controlled borders, with limited immigration and naturalization according to some established standard.
This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.
This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.
The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article develops an original account of data’s structural law—the processes, institutional arrangements, transparency rules, and control mechanisms that, we argue, create distinctive structural dynamics for data’s acquisition and appropriation to public projects. Doing so requires us to reconsider how law treats the category of power to which data belongs. Data is an instrument of power. The Constitution facilitates popular control over material forms of power through distinctive strategies, ranging from defaults to accounting mechanisms. Assessing data’s structural ecosystem against that backdrop allows us to both map the structural law of data and provide an initial diagnosis of its deficits. Drawing on our respective fields—law and computer science—we conclude by suggesting legal and technical pathways to asserting greater procedural, institutional, and popular control over the government’s data.
Thanks to Laura Appleman, Monica Bell, Tan Boston, Curtis Bradley, Emily Buss, Adam Chilton, Justin Driver, Jessica Eaglin, Sheldon Evans, Lee Fennell, James Forman, Cynthia Godsoe, Nyamagaga Gondwe, Bernard Harcourt, Hajin Kim, Brian Leiter, Aaron Littman, Jamelia Morgan, Renagh O’Leary, Farah Peterson, James Gray Pope, Eric Posner, Judith Resnik, Mara Revkin, Anna Roberts, Cristina Rodríguez, Jocelyn Simonson, Kate Skolnick, Fred Smith, Stephen Smith, David Strauss, I. India Thusi, Christopher Williams, and Quinn Yeargain for thoughtful comments and conversations, and the participants of The University of Chicago Faculty Workshop, Northwestern Faculty Workshop, Yale Public Law Workshop, CrimFest, Decarceration Workshop, and Criminal Justice Roundtable for their helpful engagement. Thanks also to the editors at The University of Chicago Law Review for their excellent editorial support. The author thanks the Paul H. Leffmann Fund for research support.
In recent years, many states passed constitutional amendments prohibiting modern day slavery in the form of forced prison labor allowed by the Thirteenth Amendment. However, the state amendments' text alone has not ended prison slavery in those states. This Article examines why. It grounds its discussion in the history of American slavery after the Civil War as well as the various attempts of legislation, litigation, and constitutional amendments to dismantle forced prison labor. Drawing on this discussion, it suggests how organizers might craft these amendments and how judges and lawyers should interpret them. It argues that, ultimately, amending constitutional text alone is not enough. To achieve their goals amendments must work in tandem with litigation, governmental structural reform, and the inevitable political battles that arise over the shape of the criminal legal system.
I would like to thank Professors William Baude and Eugene Volokh, as well as Owen Hoepfner, Hank Minor, Quinten Rimolde, and David Stras, for early readthroughs and helpful conversations. I would also like to thank the editors and staff of The University of Chicago Law Review for their great edits.
In 1977, a company convicted of conspiring with the mob asked President Carter for a pardon. The government speculated that the President could so exercise the pardon power, but ultimately no pardon ever issued. Nearly fifty years later, President Trump has pardoned a company convicted of violating the Bank Secrecy Act. People are again speculating that the pardon power covers companies, but few can offer evidence either way. History shows that the pardon power covers companies. Before the Founding, the King would often pardon corporations. Both the city of London and the Massachusetts Bay Company were pardoned before the Founders were even born. This tradition was the background against which the Pardon Clause and many of its state analogs were drafted. That the President can pardon companies might feel surprising or even unsettling. But the prerogative fits comfortably into the nation's separation of powers. Congress can make exercising the power less attractive by withholding refunded fines or shifting crimes to civil infractions. These checks come with more tradeoffs when exercised int he context of human beings, which might explain why Congress has not exercised them so far.