Exploring the use of the word "citizen" in writings on the fourth amendment

Indiana Law Journal

Volumn 83, Issue 4, 2008, Pages 1557-1588

  Medina, M Isabel ^a  

^a LOYOLA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 56149122973     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (205)

1. LAWRENCE DURRELL, CLEA (1960).
2. U.S. CONST. amend. IV.
3. U.S. Census Bureau, 2006 American Community Survey, S0501. Selected Characteristics of the Native and Foreign-Born Populations, http://factfinder. census.gov/servlet/STTable?_bm=y&geo_id=01000US&qr_name= ACS_2006_EST_GOO_S0501&ds_name=AC.
4. th Cir. 2000) cert denied sub nom., Sanchez-Guillen v. United States, 531 U.S. 889 (2000); see, e.g., Alfredo Mirandé, Is There a Mexican Exception to the Fourth Amendment?, 55 FLA. L. REV. 365, 381-89 (2003).
5. See, e.g., Weeks v. United States, 232 U.S. 383, 397-98 (1914); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotcs, 403 U.S. 388, 392-95 (1971).
6. See Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950).
7. See e.g., United States v. Conroy, 589 F.2d 1258, 1264 (5th Cir. 1979) ("The Fourth Amendment not only protects all within our bounds; it also shelters our citizens wherever they may be in the world from unreasonable searches by our own government."); United States v. Rose, 570 F.2d 1358, 1362 (9th Cir. 1978) ("[I]f American law enforcement officials participated in the foreign search, or if the foreign authorities actually conducting the search were acting as agents for their American counterparts, the exclusionary rule can be invoked."); United States v. Toscanino, 500 F.2d 267, 280 (2d Cir. 1974) ("That the Bill of Rights has extraterritorial application to the conduct abroad of federal agents directed against United States citizens is well settled."); Best v. United States, 184 F.2d 131, 138 (1st Cir. 1950) ("[T]he protection of the Fourth Amendment extends to United States citizens in foreign countries under occupation by our armed forces."); United States v. Bin Laden, 126 F. Supp. 2d 264, 270 (S.D.N.Y. 2000) ("The Supreme Court cases on point suggest that the Fourth Amendment applies to United States citizens abroad.").
8. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984).
9. See, e.g., Martinez-Aguero v. Gonzalez, Civ. No. EP-03-CA-411 (KC), 2005 U.S. Dist. LEXIS 2412, *16-*60 (W.D. Tex. Feb. 2, 2005); United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, 1273-74 (D. Utah 2003), aff'd on other grounds, 386 F.3d 953 (10th Cir. 2004); United States v. Quitterez, 983 F. Supp. 905,911 (N.D. Cal. 1998), rev'd on other grounds, 203 F.3d 833 (9th Cir. 1999).
10. See United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990); United States v. Davis, 905 F.2d 245, 250-51 (9th Cir. 1990) (concerning searches on the high seas); United States v. Peterson, 812 F.2d 486, 495 (9th Cir. 1987). But see United States v. Juda, 797 F. Supp. 774, 781 (N.D.Cal. 1992) (holding that the Fourth Amendment applies to resident aliens in searches conducted by U.S. agents abroad). See generally Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501 (2005) (exploring the concept of territoriality-the author calls it "legal spatiality"-and arguing that it should be as inapplicable to limit the rights of non-citizens as it may be to citizens).
11. See Lopez-Mendoza, 468 U.S. at 1050. But see Salgado-Diaz v. Ashcroft, 395 F.3d 1158, 1166 (9th Ck. 2005); Gonzalez-Rivera v. INS, 22 F.3d 1441, 1452 (9th Cir. 1994). See generally Judy C. Wong, Egregious Fourth Amendment Violations and the Use of the Exclusionary Rule in Deportation Hearings: The Need for Substantive Equal Protection Rights for Undocumented Immigrants, 28 COLUM. HUM. RTS. L. REV. 431 (1997).
12. See United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975) (finding Mexican appearance relevant to establishing individualized reasonable suspicion to a stop person suspected of having entered the United States illegally). But see United States v. Montero-Camargo, 208 F.3d 1122, 1132 (9th Cir. 2000) (finding Mexican appearance not relevant to establish individualized reasonable suspicion to stop because Hispanics/Latinos are too sizable a portion of the population); Mena v. City of Simi Valley, 332 F.3d 1255, 1264-65 (9th Cir. 2003), vacated and remanded sub nom. Muehler v. Mena, 544 U.S. 93 (2005); Farm Labor Org. Comm. v. Ohio St. Highway Patrol, 991 F. Supp. 895, 901 (N.D. Ohio 1997). Some cases have posed the issue to be one of standing to raise the Fourth Amendment privacy right. See, e.g., Juda, 797 F. Supp. at 781.
13. See Johnson v. Eisentrager, 339 U.S. 763, 775-76 (1950). It is not clear that the Eisentrager analysis would apply in the context of the criminal prosecution of an enemy alien by federal or state law enforcement officials.
14. United States v. Martines-Fuerte, 428 U.S. 543 (1976).
15. INS v. Delgado, 466 U.S. 210 (1983). See Of Katz and "Aliens ": Privacy Expecations and the Immigration Raids, 41 U.C. DAVIS L. REV. 101 (2008) (noting an even greater demise to Fourth Amendment protections for non-citizens than articulated in this essay).
16. The permanent immigration checkpoint within 100 miles of the U.S. Mexico border set up to detect unauthorized entries and challenged in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), was challenged by at least one permanent resident alien and a U.S. citizen. 428 U.S. at 547-48. The INS practices challenged in INS v. Delgado, 466 U.S. 210 (1983), were challenged by citizens and permanent resident aliens. 466 U.S. at 213 n.1.
17. See Martinez-Aguero v. Gonzalez, Civ. No. EP-03-CA-411 (KC), 2005 U.S. Dist. LEXIS 2412, *16-*60 (W.D. Tex. Feb. 2, 2005); v. No. EP-03-CA-411 (KC), 2005 U.S. Dist. LEXIS 2412, *16-*60 (W.D. Tex. Feb. 2, 2005); United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254,1273-74 (D. Utah 2003), aff'd on other grounds, 386 F.3d 953 (10th Cir. 2004).
18. See Martinez-Aguero, 2005 U.S. Dist. LEXIS at *16; Esparza-Mendoza, 265 F. Supp. 2d at 1257; United States v. Iribe, 806 F. Supp. 917, 919 (D. Colo. 1992), rev'd in part on other grounds, aff'd in part, 11 F.3d 1553 (10th Cir. 1993); see also United States v. Tehrani, 826 F. Supp. 789, 793 (D. Vt. 1993), aff'd, 49 F. 3d 54 (2d Cir. 1995); Riechmann v. State, 581 So. 2d 133, 138 (Fla. 1991).
19. See United States v. Flores-Montano, 541 U.S. 149, 155-56 (2004) (applying Fourth Amendment analysis to the search of a permanent resident alien's vehicle at the border upon entry into the United States); United States v. Uscanga-Rarnirez, 475 F.3d 1024, 1027 (8th Cir. 2007); United States v. Torres-Castro, 470 F.3d 992, 1000 (10th Cir. 2006); Martinez-Aguero v. Gonzalez, 459 F.3d 618, 624, (5th Cir. 2006); United States v. Esparza-Mendoza, 386 F.3d 953, 960 (10th Cir. 2004); United States v. Herrera-Ochoa, 245 F.3d 495, 498 (5th Cir. 2001); Iribe, 806 F. Supp. at 921. But see United States v. Hernandez-Reyes, 501 F. Supp. 2d 852, 855 n.3 (W.D. Tex. 2007). See also James G. Connell, III & René L. Valladares, Search and Seizure Protections for Undocumented Aliens: The Territoriality and Voluntary Presence Principles in Fourth Amendment Law, 34 AM. CRIM. L. REV. 1293 (1997).
20. Esparza-Mendoza, 265 F. Supp. 2d at 1255.
21. Id.
22. MICHAEL HOEFER, NANCY RYTINA & CHRISTOPHER CAMPBELL, ESTIMATES OF THE UNAUTHORIZED IMMIGRANT POPULATION RESIDING IN THE UNITED STATES: JANUARY 2005 1 (2006), http://www.dhs.gov/xlibrary/assets/statistics/publications/ILL_PE_2005.pdf
23. 8 U.S.C. § 1151 (2005). For an explanation of the immigrant visa categories and the application of the numerical quotas see STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 241-46 (4th ed. 2005); THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN & HIROSHI MOTOMURA, IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 274-87 (5th ed. 2003).
24. See 8 U.S.C. §§ 1325-1326 (2005); 8 U.S.C. §§ 1183(a)(9)(A), (B) and (C) (2005).
25. See HOEFER ET AL., supra note 22, at 1 ; see also JEFFREY S. PASSEL, PEW HISPANIC CTR., ESTIMATES OF THE SEE AND CHARACTERISTICS OF THE UNDOCUMENTED POPULATION 1 (2005), http://www.pewhispanic.org/fdes/reports/44.pdf.
26. PASSEL, supra note 25, at 7.
27. See, e.g., Kevin R. Johnson, "Aliens " and the U.S. Immigration Laws:The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER-AM. L. REV. 263, 282-88 (1996); Mirandé, supra note 4, at 385-89; Mae M. Ngai, The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the United States, 1921-1965, 21 LAW & HIST. REV. 69, 85-89 (2003).
28. United States v. Esparza-Mendoza, 386 F.3d 953, 959-60 (10th Cir. 2004). The Tenth Circuit concluded that Mr. Esparza-Mendoza's encounter with the police was consensual and, therefore, did not implicate the Fourth Amendment. The court expressly disavowed reliance on the lower court's reasoning. See also Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625-26 (5th Cir. 2006); United States v. Guitterez, 983 F. Supp. 905, 911-16 (N.D. Cal. 1998) rev'd on other grounds, 203 F.3d 833 (9th Cir. 1999).
29. 536 U.S. 194, 204-07 (2002).
30. 534 U.S. 112, 119-21 (2001).
31. 533 U.S. 194 (2001). The Katz opinion opens with a reference to the word "citizen." Id. at 197 ("In this case a citizen alleged excessive force was used to arrest him."). The case deals with a claim of excessive force during an arrest of an animal rights protester at a political event. Thus, the use of the word "citizen" draws attention to the political rights at stake and tends to suggest that citizens enjoy greater First Amendment political protest rights than do non-citizens. 32. 533 U.S. 27, 33-34 (2001) ("It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.").
32. 532 U.S. 318, 342 (2001); id. at 360 (O'Connor, J., dissenting).
33. I present one actual set of results with some trepidation because of its arbitrary nature. The research is the result of word searches through Lexis databases. The smallest change to the search definitions causes a numerical difference in the results. Thus, the results are not submitted with a claim that the search represents an absolutely accurate count of the entire world of Fourth Amendment cases for any particular period of time, nor in any confidence that I have captured the entire world of cases that have used the term "citizen" in connection with the Fourth Amendment. They are submitted, however, comfortable in the sense that they establish that the use occurs, has occurred in the past and is occurring now with more frequency. See infra app. A.
34. See, e.g., Mena v. City of Simi Valley, 332 F.3d 1255, 1262 (9th Cir. 2003) ("The Fourth Amendment protects citizens from unreasonable government seizures."), vacated and remanded sub nom. Muehler v. Mena, 544 U.S. 93 (2005). The Mena court cited to the Fourth and Fourteenth Amendments. Mena is an interesting example because Mena was a resident alien, not a U.S. citizen, and the Ninth Circuit's use of the word "citizen" follows directly after its pronouncement that "there is no doubt that Mena has alleged a violation of her constitutional rights under the Fourth Amendment." Id.
35. See, e.g., Carroll v. United States, 267 U.S. 132, 149, 164, 168 (1925). In the years 1929 to 1931, for example, 25 cases out of a total of 685 cases that discussed or cited to the Fourth Amendment used the word "citizen." Ten out of the 685 used the word "citizen" in the context of a Fourth Amendment issue and six out of those ten used the term descriptively. See United States v. Kozan, 37 F. 2d 415, 418 (E.D. N.Y. 1930) ("It is a critical decision for any citizen to make who desires to preserve simultaneously his physical integrity and his constitutional rights, when confronted by a police official who proclaims his fourth visitation of the citizen's premises."); Kempf v. United States, 33 F. 2d 4 (1st Cir. 1929); United States v. Blich, 45 F. 2d 627 (1930); United States v. O'Connell, 43 F. 2d 1005 (S.D.N.Y. 1930); Camden County Beverage Co. v. Blair, 46 F. 2d 648 (D.N.J. 1930); United States v. Rogato, 39 F. 2d 171 (M.D. Pa. 1930).
36. 267 U.S. 132 (1925).
37. Id. at 149.
38. Id. at 153-54.
39. There is inherent danger in parsing the language of the Supreme Court (or of any court opinion for that matter) in this manner; it is dicta, after all, and the Carroll opinion itself is a good example of the danger. The Court later makes a reference to the difference in treatment between travelers at the point of entry into the country and "those lawfully within the country.. . [who] have a right to free passage." Id. at 154. We could interpret that language to suggest that those unlawfully within the country might have different Fourth Amendment standards applied to them. Id. at 154.
40. See infra app. A.
41. Mapp v. Ohio, 367 U.S. 643 (1961).
42. See infra app. A.
43. 494 U.S. 259 (1990).
44. Id. at 271-72.
45. Id.
46. See supra note 34 and accompanying text.
47. See infra app. A.
48. Saucier v. Katz, 533 U.S. 194 (2001); Kyllo v. United States, 533 U.S. 27 (2001); Florida v. Thomas, 532 U.S. 774 (2001); Atwater v. City of Lago Vista, 532 U.S. 318 (2001); Ferguson v. City of Charleston, 532 U.S. 67 (2001); Illinois v. McArthur, 531 U.S. 326 (2001); City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
49. 533 U.S. 27 (2001).
50. Id. at 32.
51. Id. at 34.
52. Id. at 35, 40.
53. Id. at 38.
54. Id. at 39.
55. Id. at 33-34.
56. 533 U.S. 194 (2001).
57. Id. at 197.
58. Id. at 198.
59. Id. at 197.
60. Id.
61. The initial search was conducted on March 27, 2003 on the Lexis database using the search terms "person w/25 citizen w/25 fourth." The search was conducted on the "Law Reviews, Combined" file. That search yielded 770 documents. Out of those 770 documents 232 used the terms interchangeably. The search reported here was conducted on April 25, 2004 on the Lexis database using the search terms "citizen w/15 person w/25 fourth w/5 amendment." The search was conducted in the U.S. & Canadian Law Reviews, Combined Lexis file. The results of both searches are available from the author. See, e.g., Akhil Reed Amar & Vikram David Amar, The New Regulation Allowing Federal Agents to Monitor Attorney-Client Conversations: Why It Threatens Fourth Amendment Values, 34 CONN. L. REV. 1163 (2002); Dana E. Christman, Change and Continuity: A Historical Perspective of Campus Search and Seizure Issues, 2002 B.Y.U. EDUC. &L.J. 141; Stanley H. Friedelbaum, The Quest for Privacy: State Courts and an Elusive Right, 65 ALB. L. REV. 945 (2002); Michael Steven Green, The Paradox of Auxiliary Rights: The Privilege Against Self-Incrimination and the Right to Keep and Bear Arms, 52 DUKE L.J. 113 (2002); Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 COLUM. L. REV. 1413 (2002); Wayne A. Logan, An Exception Swallows a Rule: Police Authority to Search Incident to Arrest, 19 YALE L. & POL'Y REV. 381 (2001); Tracey Maclin, Let Sleeping Dogs Lie: Why the Supreme Court Should Leave Fourth Amendment History Unabridged, 82 B.U.L. REV. 895 (2002); William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137 (2002); Kathryn R. Urbonya, Determining Reasonableness Under the Fourth Amendment: Physical Force to Control and Punish Students, 10 CORNELL J.L. & PUB. POL'Y 397 (2001); Jessica Kobos, Note, Kyllo v. United States: A Lukewarm Interpretation of the Fourth Amendment, 64 MONT. L. REV. 519 (2003); Kathleen R. Sandy, Commentary, The Discrimination Inherent in America's Drug War: Hidden Racism Revealed by Examining the Hysteria Over Crack, 54 ALA. L. REV. 665 (2003); Stephen W. Tountas, Note, Carnivore: Is the Regulation of Wireless Technology a Legally Viable Option to Curtail the Growth of Cybercrime?, 11 WASH. U. J.L. & POL'Y 351 (2003).
62. See, e.g., Akhil Reed Amar, Lord Camden Meets Federalism - Using State Constitutions to Counter Federal Abuses, 27 RUTGERS L.J. 845 (1996); Akhil Reed Amar, Substance and Method in the Year 2000, 28 PEPP. L. REV. 601 (2001); Peter Erlinder, Florida v. J.L. - Withdrawing Permission to "Lie with Impunity ": The Demise of "Truly Anonymous " Informants and the Resurrection of the Aguilar/Spinelli Test for Probable Cause, 4 U. PA. J. CONST. L. 1 (2001); Kobos, supra note 62, at 519, 520 (2003) ("The Fourth Amendment protects ordinary citizens from unjustifiable government invasion of their private homes and papers."); George P. Varghese, Comment, A Sense of Purpose: The Role of Law Enforcement in Foreign Intelligence Surveillance, 152 U. PA. L. REV. 385 (2003).
63. See, e.g., Alyssa Sacks, Essay, Can Attempted Seizures be Unreasonable?: Applying the Law of Attempt to the Fourth Amendment, 37 CAL. W.L. REV. 427, 429 (2001).
64. See, e.g., Thomas Y. Davies, Denying a Right by Disregarding Doctrine: How Illinois v. Rodriguez Demeans Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 TENN. L. REV. 1, 22 (1991) ("citizen's own privacy interests under the Fourth Amendment"(emphasis in original)); Craig S. Lerner, The Reasonableness of Probable Cause, 81 TEX. L. REV. 951, 993 (2003) ("privacy concerns of citizens"); Ellen S. Podgor, International Computer Fraud: A Paradign for Limiting National Jurisdiction, 35 U.C. DAVIS L. REV. 267, 309 (2002) ("level of privacy afforded to citizens"); Timothy P. Terrell & Anne R. Jacobs, Privacy, Technology, and Terrorism: Bartnicki, Kyllo, and the Normative Struggle Behind Competing Claims to Solitude and Security, 51 EMORY L.J. 1469, 1482 (2002) ("privacy to which citizens are entitled").
65. See, e.g., Yale Kamisar, Trends and Developments with Respect to that Amendment "Central to Enjoyment of Other Guarantees of the Bill of Rights, " 17 U. MICH. J.L. REFORM 409, 410 (1984); Robert H. Whorf, Consent Searches Following Routine Traffic Stops: The Troubled Jurisprudence of a Doomed Drug Interdiction Technique, 28 OHIO N.U. L. Rev. 1, 30, 35, 36, 53, 59 (2001).
66. 8 U.S.C. §§ 1401-1489 (2000 & Supp. 2005).
67. Will Kymlica & Wayne Norman, Return of the Citizen: A Survey of Recent Work on Citizenship Theory, 104 ETHICS 352, 352 (1994); LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP 17 (2006).
68. Kymlica & Norman, supra note 68, at 353.
69. BOSNIAK, supra note 68.
70. Id. at 77-101. As Bosniak acknowledges, her own thinking on the issue of citizenship has developed from questioning its use in grounding constitutional rights, to accepting citizenship as an appropriate basis for rights. Id. at 79. My purpose in this piece is to identify a particular practice that I suggest is problematic for the application and development of Fourth Amendment law, not to develop a theoretical basis for rejecting the idea that citizenship, not humanity, may appropriately provide the limits or boundaries of human or constitutional rights. My own thinking, however, has followed an opposite trajectory to Bosniak's.
71. Kymlica & Norman, supra note 68, at 369.
72. See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (applying the protection of the Fourteenth Amendment to resident non-citizens).
73. In fact, citizenship may not provide the boundary to extraterritorial application of the Fourth Amendment. Whether an individual has "substantial connections" to the United States may. See supra note 39 and accompanying text.
74. See T. Alexander Aleinikoff, Citizens, Aliens, Membership and the Constitution, 7 CONST. COMMENT. 9 (1990); Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 WIS. L. REV. 955; Ngai, supra note 27; Victor C. Romero, Domestic Fourth Amendment Rights of Undocumented Immigrants: On Guitterez and the Tort Law/Immigration Law Parallel, 35 HARV. C.R.-C.L. L. REV. 57, 84-91 (2000) [hereinafter Romero, On Guitterez]; Michael Scaperlanda, Partial Membership: Aliens and the Constitutional Community, 81 IOWA L. REV. 707 (1996); Victor C. Romero, Note, Whatever Happened to the Fourth Amendment? : Undocumented Immigrants'Rights After INS v. Lopez-Mendoza and United States v. Verdugo-Urquidez, 65 S. CAL. L. REV. 999 (1992) [hereinafter Romero, Whatever Happened?].
75. See Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 IOWA L. REV. 1449 (2006); Michael J. Wishnie, Immigrants and the Right to Petition, 78 N.Y.U. L. REV. 667 (2003).
76. Rubèn Rumbaut, Roberto G. Gonzales, Golnaz Komaie & Charlie V. Morgan, Debunking the Myth of Immigrant Criminality: Imprisonment Among First and Second Generation Young Men, MIGRATION INFO. SOURCE, June 2006, http://www.migrationinformation.org/Feature/display. cfm?id=403. This study found that the incarceration rate of the U.S. born (3.51%) was four times the rate of the foreign born (0.86%). Id. at 4. They noted that the lowest incarceration rates among Los Angeles immigrants are seen for the least educated groups. They further found that the longer immigrants stayed in the United States the higher the incarceration rates. Id. at 7-9.
77. U.S. Census Bureau, 2006 American Community Survey, Selected Characteristics of the Native and Foreign-Born Populations (Sept. 27, 2007), http://factfinder.census.gov/home/saff/main.html?_lang=en (follow "Data Sets" hyperlink; then follow "American Community Survey" hyperlink; then, making sure the 2006 American Community Survey is selected, follow the "Enter a table number" hyperlink; type in "S0501" and click "Go").
78. Id.
79. U.S. CENSUS BUREAU, AMERICAN COMMUNITY SURVEY, PUERTO RICO COMMUNITY SURVEY: 2006 SURVEY DEFINITIONS 33, http://www.census.gov/acs/www/Downloads/2006/usedata/Subject_Definitions. pdf.
80. See Stephen H. Legomsky, The New Path of Immigration Lava: Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE L.REV. 469 (2007); Maria Isabel Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud, 5 GEO. MASON L. REV. 669, 674-75; Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control After Sept. 11th, 25 B.C. THIRD WORLD L.J. 81 (2005); Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367 (2006).
81. See Kristina M. Campbell, Local Illegal Immigration Relief Act Ordinances: A Legal, Policy, and Litigation Analysis, 84 DENV. U. L. REV. 1041 (2007); Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice, and the Proper Role for Enforcement, 2007 U. CHI. LEGAL F. 27.
82. James Pinkerton, Localized Immigration Enforcement on Rise - Federal Inaction Means More than Ever, Nation 's Law Agencies Take Issue into Own Hands, HOUSTON CHRON., Oct. 9, 2007, at A1.
83. Rubèn Rumbaut has explored the myth that immigrants tend to be more involved in criminal activity than the native-born population (at least for first generation immigrants). Rumbaut et al., supra note 77.
84. See text at notes 91-118.
85. See Maria Isabel Medina, Confronting the Rights Deficit at Home: Is the Nation Prepared in the Aftermath of Katrina? Confronting the Myth of Efficiency, 43 CAL. W. L. REV. 9, 19 (2006).
86. See, e.g, Korematsu v. United States, 323 U.S. 214 (1944) (upholding exclusion of U.S. citizens of Japanese descent from the West Coast without individualized hearing, finding that they posed an imminent threat to national security); Juan F. Perea, "Am I an American or Not? " Reflections on Citizenship, Americanization, and Race, in IMMIGRATION AND CITIZENSHIP IN THE TWENTY-FIRST CENTURY 49 (Noah M.J. Pickus ed., 1998).
87. See, e.g., Kevin R. Johnson, The Case for African American and Latina/o Cooperation in Challenging Racial Profiling in Law Enforcement, 55 FLA. L. REV. 341 (2003).
88. U.S. CONST. amend. IV.
89. See Hudson v. Michigan, 547 U.S. 586, 590-91 (2006); Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 382 (1914).
90. United States v. Leon, 468 U.S. 897, 906-08 (1984) (holding that the exclusionary rule does not apply when police act in objective good faith pursuant to a warrant based on probable cause); see also INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (holding that the exclusionary rule does not apply to deportation hearings unless police act egregiously); Stone v. Powell, 428 U.S. 465 (1976) (holding that the exclusionary rule may not be raised on federal habeas if state prisoners had a full and fair opportunity to raise in state proceedings); United States v. Janis, 428 U.S. 433 (1976) (holding that the exclusionary rule does not apply in federal civil tax assessment proceedings); United States v. Calandra, 414 U.S. 338 (1974) (holding that the exclusionary rule does not apply to grand jury proceedings).
91. See supra note 91.
92. See Lopez-Mendoza, 468 U.S. at 1045-46; Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); Sissoko v. Rocha, 440 F.3d 1145 (9th Cir. 2006) (affirming dental of qualified immunity to INS agent who wrongfully detained non-citizen).
93. See Muehler v. Mena, 544 U.S. 93 (2005) (vacating and remanding suit brought under 42 U.S.C. § 1983 by a permanent resident alien for a Fourth Amendment violation where plaintiff had been awarded $10,000 in actual damages and $20,000 per officer in punitive damages for a total of $60,000); Donald Dripps, The Case for the Contingent Exclusionary Rule, 38 AM. CRIM. L. REV. 1 (2001); Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000); Tracey Maclin, When the Cure for the Fourth Amendment is Worse than the Disease, 67 S. CAL. L. REV. 1, 61-62 (1994); Report to the Attorney General on the Search and Seizure Exclusionary Rule, 21 U. MICH. J.L. REFORM 573, 626-29 (1989). Akhil Amar has suggested that the exclusionary rule is unnecessary to deter police abuses because tort remedies will suffice. Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 785-800 (1994) [hereinafter Amar, First Principles]. As Professor Amar has noted, however, current doctrine on sovereign immunity makes the tort remedy problematic. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1507-09 (1987). Moreover, it was the failure of tort remedies in checking police misconduct that, in part, led the Court to adopt the exclusionary rule and apply it to the states.
94. In the words of Justice White: The suggestion that alternative remedies, such as civil suits, provide adequate protection is unrealistic. Contrary to the situation in criminal cases, once the Government has improperly obtained evidence against an illegal alien, he is removed from the country and is therefore in no position to file civil actions in federal courts. Moreover, those who are legally in the country but are nonetheless subjected to illegal searches and seizures are likely to be poor and uneducated, and many will not speak English. It is doubtful that the threat of civil suits by these persons will strike fear into the hearts of those who enforce the Nation's immigration laws. Lopez-Mendoza, 468 U.S. at 1055 (White, J., dissenting).
95. See infra text accompanying notes 109-16.
96. California v. Ciraolo, 476 U.S. 207, 211 (1986).
97. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). 99. 367 U.S. 643 (1961).
98. See United States v. Arvizu, 534 U.S. 266, 273 (2002); Terry v. Ohio, 392 U.S. 1, 9 (1968).
99. See United States v. Flores-Montano, 541 U.S. 149, 152 (2004); United States v. Montoyade Hernandez, 473 U.S. 531, 538 (1985); United States v. Ramsey, 431 U.S. 606, 619 (1977).
100. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding that Fourth Amendment Warrants Clause does not apply extraterritorially to the search of a foreign residence owned by a foreign national being prosecuted in U.S. courts); United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254 (N.D. Utah 2003).
101. Reid v. Covert, 354 U.S. 1 (1957) (discussing extraterritorial military trials of civilians); Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that a nonresident enemy alien did not have a right of access to U.S. courts).
102. See, e.g., Reid, 354 U.S. at 1; Eisentrager, 339 U.S. at 763; United States v. Barona, 56 F.3d 1087 (9th Cir. 1995); United States v. Vilar, No. S3 05-CR-621, 2007 U.S. Dist. LEXIS 26993, at *1 (S.D.N.Y. Apr. 4, 2007); United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000); Roberto Iraola, A Primer on Legal Issues Surrounding the Extraterritorial Apprehension of Criminals, 29 AM. J. CRIM. L. 1 (2001); Sapna G. Lalmalani, Extraordinary Rendition Meets the U.S. Citizen: United States' Responsibility Under the Fourth Amendment, 5 CONN. PUB. INT. L.J. 1 (2005); Gerald L. Neuman, Whose Constitution?, 100 YALEL J. 909, 914 (1991).
103. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1040-41 (1984). See generally NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 116 (1937); Amar, First Principles, supra note 95 (writing after the Verdugo-Urquidez opinion).
104. LASSON, supra note 106.
105. See, e.g., Arnar, First Principles, supra note 95 (writing after the Verdugo-Urquidez opinion). Professor Amar explored the issue of what "the people" in the context of the Fourth Amendment might mean in subsequent publications. AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 64-68 (1998).
106. See Bosniak, supra note 75, at 978-82; Austin T. Fragomen, Jr., Searching for Illegal Aliens: The Immigration Service Encounters the Fourth Amendment, 13 SAN DIEGO L. REV. 82 (1975); Immigration Policy and the Rights of Aliens, 96 HARV. L. REV. 1286, 1372-82 (1983); Ann M. Overbeck, Comment, A Sobering Look at the Constitutionality of DUI Roadblocks, 54 U. CIN. L. REV. 579, 602-04 (1985). See generally ELIZABETH HULL, WITHOUT JUSTICE FOR ALL: THE CONSTITUTIONAL RIGHTS OF ALIENS (1985).
107. Lopez-Mendoza, 468 U.S. at 1032. Professor Lasson pointed out that the Supreme Court in Fong Yue Ting v. United States, 149 U.S. 698 (1893), had concluded that the Fourth Amendment, as well as other Bill of Rights protections, did not apply to deportation proceedings. LASSON, supra note 106, at 116 n.30. The Fong Yue Ting view of deportation as civil proceedings is still used by the Court today, but not its view of due process. Zadvydas v. Davis, 533 U.S. 678 (2001); Landon v. Plasencia, 459 U.S. 21 (1982). With regards to the Fourth Amendment, the modem distinction between civil and criminal proceedings was introduced by the Court in United States v. Janis, 428 U.S. 433 (1976). In Janis, the Court held that the exclusionary rule did not apply in a federal civil tax assessment proceeding. The Court used a cost benefit analysis, weighing the "likely social benefits of excluding unlawfully seized evidence against the likely costs." Lopez-Mendoza, 468 U.S. at 1041 (citing Janis, 428 U.S. 433). The Lopez-Mendoza Court did not rely on Fong Yue Ting but placed its holding squarely within the reasoning established in the Janis line of cases in which it had limited the reach of the exclusionary rule.
108. 468 U.S. 1032 (1984).
109. Id. at 1042-50.
110. Id. at 1045.
111. Id. at 1050-51. See also Judy C. Wong, Egregious Fourth Amendment Violations and the Use of the Exclusionary Rule in Deportation Hearings: The Need for Substantive Equal Protection Rights for Undocumented Immigrants, 28 COLUM. HUM. RTS. L. REV. 431 (1997).
112. The Court stated: Respondent Sandoval-Sanchez has a more substantial claim. He objected not to his compelled presence at a deportation proceeding, but to evidence offered at that proceeding. The general rule in a criminal proceeding is that statements and other evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the link between the evidence and the unlawful conduct is not too attenuated.... The reach of the exclusionary rule beyond the context of a criminal prosecution, however, is less clear. Lopez-Mendoza, 468 U.S. at 1040-41.
113. See United States v. Leon, 468 U.S. 897 (1984) (decided the same year as Lopez-Mendoza and holding that the exclusionary rule does not apply when police officers act in objective good faith pursuant to a warrant based on probable cause); Stone v. Powell, 428 U.S. 465 (1976) (Fourth Amendment violations may not be raised on federal habeas by state prisoners if they had a full and fair opportunity to litigate the Fourth Amendment violation in their state proceedings); United States v. Janis, 428 U.S. 433 (1976) (exclusionary rule does not apply in federal civil tax assessment proceeding); United States v. Calandra, 414 U.S. 338 (1974) (exclusionary rule does not apply to grand jury proceedings).
114. See supra note 82 and accompanying text; Bill Ong Hing, The Immigrant as Criminal: Punishing Dreamers, 9 HASTINGS WOMEN'S L.J. 79, 90-94 (1998).
115. United States v. Verdugo-Urquidez, 494 U.S. 259, 272 (1990). But see Romero, On Guitterez, supra note 75, at 60-61 (suggesting that Verdugo-Urquidez does affect application of the Fourth Amendment to noncitizens facing prosecution in United States courts).
116. Verdugo-Urquidez, 494 U.S. at 262-63. Verdugo-Urquidez was convicted for his part in the kidnapping and murder of Enrique Camarena Salazar. United States v. Verdugo-Urquidez, No. CR-87-422-ER (C.D. Cal., Nov. 22, 1988). Humberto Alvarez-Machain, the physician accused of supervising Camarena's torture, was kidnapped in Mexico and forcibly brought to the United States where he was arrested by DEA agents. United States v. Alvarez-Machain, 504 U.S. 655,657-58 (1992). He was ultimately acquitted. Sosa v. Alvarez-Machain, 542 U.S. 692, 796-98 (2004); see also Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, Continued, 84 AM. J. INT'L. L. 444 (1990); Andreas F. Lowenfeld, Commentary, Kidnapping by Government Order: A Follow-Up, 84 AM. J. INT'L. L. 712 (1990).
117. The DEA web site contains a biography of Special Agent Enrique Camarena Salazar. Drug Enforcement Admin., Biographies of DEA Agents and Employees Killed in Action, http://www.usdoj.gov/dea/agency/10bios.htmiteamarena. Camarena's murder inspired Red Ribbon Week, an event conducted in many public high schools
118. Verdugo-Urquidez, 494 U.S. at 262.
119. Id.
120. Id.
121. Id.
122. Id. at 262-63.
123. Id.
124. United States v. Verdugo-Urquidez, 856 F. 2d 1214, 1217-18 (9th Cir. 1988), rev'd, 494 U.S. 259 (1990).
125. Verdugo-Urquidez, 494 U.S. at 259.
126. Verdugo-Urquidez, 856 F.2d at 1218 (relying in part on Reid v. Covert, 354 U.S. 1 (1957)).
127. Id.
128. Id. (discussing "the people" as referenced in the preamble of the Constitution).
129. Id.
130. Id. at 1219-21.
131. Id. at 1220-21.
132. Id. at 1221-24.
133. Id. at 1223-24 (emphasis in original).
134. United States v. Verdugo-Unjuidez, 494 U.S. 259, 274-75 (1990).
135. Id. at 265.
136. Id. at 265-66.
137. Id. at 265.
138. Id. at 264-66.
139. Id. at 265.
140. Id. at 267.
141. Id. at 269-70.
142. Id. at 270-74.
143. Id. at 272 ("The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions... and such assumptions - even on jurisdictional issues - are not binding in future cases that directly raise the questions... Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us." (citations omitted)).
144. Id. at 273. ("The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among 'the people' of the United States.")
145. Id.
146. Id. at 273-74.
147. Id.
148. Id.
149. Id. at 261. Chief Justice Rehnquist's majority opinion was joined by Justices White, O'Connor, Scalia and Kennedy. Justice Stevens concurred in the judgment but, like Justice Kennedy, expressly disavowed the majority discussion about the "people." Instead, Justice Stevens concluded that the challenged search was reasonable because conducted with the approval and cooperation of Mexican authorities. Justice Stevens believed the Warrant Clause did not apply to searches of noncitizen's homes in foreign jurisdictions "because American magistrates have no power to authorize such searches." Id. at 279 (Stevens, J., concurring in the judgment). Justice Brennan, joined by Justice Marshall, wrote a dissenting opinion, as did Justice Blackmun.
150. Id. at 275-78 (Kennedy, J., concurring).
151. Id. at 278.
152. Id. at 275-76.
153. See, e.g., United States v. Vilar, No. S3 05-CR-621, 2007 U.S. Dist. LEXIS 26993, at * 1 (S.D.N.Y. Apr. 4, 2007); United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000); see also Reid v. Covert, 354 U.S. 1 (1957) (holding that a U.S. citizen arrested and accused by U.S. military authorities in a foreign country for the murder of her military spouse was entitled to the protection of the Fifth and Sixth Amendments and, thus, could not be subjected to military process). Reid was discussed at length in the Verdugo-Urquidez opinions. Verdugo-Urquidez, 494 U.S. at 269-70, 277-78; Corey M. Then, Note, Searches and Seizures of Americans Abroad: Re-examining the Fourth Amendment's Warrant Clause and the Foreign Intelligence Exception Five Years after United States v. Bin Laden, 55 DUKE L.J. 1059 (2006).
154. Verdugo-Urquidez, 494 U.S. at 266.
155. Id. at 264-75.
156. Id. at 271-72.
157. Id. at 271.
158. Id. at 272. However, this distinction, based on location/territoriality/geography, is precisely the distinction that traditionally has been used to determine whether or not the Constitution applies to government action.
159. United States v. Bravo, 489 F.3d 1, 9 (1st Cir. 2007); United States v. Zakharov, 468 F.3d 1171, 1179 (9th Cir. 2006); Wang Zong Xiao v. Reno, 81 F.3d 808, 816 (9th Cir. 1996); United States v. Barona, 56 F.3d 1087,1093 (9th Cir. 1995); Lamont v. Woods, 948 F.2d 825, 834 (2d Cir. 1991); United States v. Castrillon, No. S2 05 Cr. 156 (CM), 2007 U.S. Dist. Lexis 61451, at *1, *7 (S.D.N.Y. Aug. 15, 2007); United States v. Lizarraga-Caceres, No. 8:07-cr-99-T-23TBM, 2007 U.S. Dist. Lexis 45107, at *1, *32 (M.D. Fla. June 8, 2007); United States v. Baboolal, 2006 U.S. Dist. Lexis 40645, at *1, *3 (E.D. Wis. June 16, 2006).
160. See supra text at notes 20-28.
161. Romero, On Guitterez, supra note 75, at 73-75; Romero, Whatever Happened?', supra note 66, at 1012-15.
162. Romero, On Guitterez, supra note 75, at 74.
163. James Connell and Rene Valladares agree the voluntary presence analysis works for extraterritorial applications. James G. Connell, III & Rene L. Valladares, Search and Seizure Protections for Undocumented Aliens: The Territoriality and Voluntary Presence Principles in Fourth Amendment Law, 34 AM. CRIM. L. REV. 1293, 1339-52 (1997). Professor Romero seems to suggest that status may be one of several factors in determining whether protection applies. Romero, On Guitterez, supra note 75, at 63-64.
164. GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION, at ix, 103-17 (1996).
165. See United States v. Verdugo-Urquidez, 494 U.S. 259, 278-97 (1990) (Brennan, J., dissenting); id. at 297-98 (Blackmun, J., dissenting).
166. 265 F. Supp. 2d 1254 (D. Utah 2003), aff'd on other grounds, 386 F. 3d 953 (10th Cir. 2004).
167. See United States v. Guitterez, 983 F. Supp. 905, (N.D. Ca. 1998), rev'd on other grounds, No. 98-10170, 1999 U.S. App. Lexis 32230, at *1 (9th Cir. 1999).
168. Esparza-Mendoza, 265 F. Supp. 2d 1254.
169. Id. at 1256.
170. Id.
171. Id. at 1256-57.
172. Id. at 1255.
173. Id.
174. Id. at 1257-59.
175. Id. at 1271-72.
176. Id.
177. Id.
178. Id. at 1272.
179. Id. at 1259-70.
180. Id. at 1262-64, 1268-70. See text at notes 166-68.
181. See Amar, THE BILL OF RIGHTS, supra note 107, at 67.
182. See NEUMAN, supra note 166, at 20-51.
183. See Romero, On Guitterez, supra note 75 ; Romero, Whatever Happened?, supra note 75.
184. United States v. Verdugo-Urquidez, 494 U.S. 259, 272-73 (1990).
185. Id. at 276 (Kennedy, J., concurring).
186. Id. at 287 (Brennan, J., dissenting).
187. Chief Justice Taney also explored the meaning of the words "the people" in Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 404, 410-11 (1857) (holding the words "the people of the United States" refer to the political body who form the sovereignty, are synonymous with "citizens" and do not include slaves from Africa or their descendants). Alexander Bickel explored this use of the term in his book THE MORALITY OF CONSENT in which he contended that citizenship appropriately lacked meaningful legal significance. ALEXANDER BICKEL, THE MORALITY OF CONSENT 36-42, 52-54 (1975).
188. See, e.g., Lucinda M. Finley, Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 NOTRE DAME L. REV. 886 (1989); Johnson, supra note 27.
189. E.g., Johnson, supra note 27; Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 547 n.4 (1990); Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1428 (1995); Gerald M. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, 1977 S. CT. REV. 275, 303; see also Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J. 611, 652 (2003) (noting use of the terms "criminal alien" and "aggravated felon" and the use of language in penology).
190. Johnson, supra note 27, at 272.
191. See Nguyen v. INS, 533 U.S. 53 (2001). The practice of deporting or banishing citizens has ancient roots. Deportation to another country was an accepted English method of dealing with convicts. See DANIEL KANSTROOM, DEPORTATION NATION: OUTSIDERS IN AMERICAN HISTORY 26 (2007); ROBERT HUGHES, THE FATAL SHORE 36-42 (1986).
192. 8 U.S.C. § 1227 (2000 & Supp. 2006).
193. See Detroit Free Press v. Ashcroft, 303 F.3d 681, 704 (6th Cir. 2002).
194. Compare Demore v. Kim, 538 U.S. 510 (2003), Zadvydas v. Davis, 533 U.S. 678 (2001), and Carlson v. London, 342 U.S. 524 (1952) with Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Rumsfeld v. Padilla, 542 U.S. 426 (2004).
195. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,127 S. Ct. 2738 (2007); Grutter v. Bollinger, 539 U.S. 306 (2003). But see United States v. Whren, 517 U.S. 806 (1996); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Bernard Harcourt, United States v. Brignoni-Ponce and United States v. Martinez-Fuerte: The Road to Racial Profiling, in CRIMINAL PROCEDURE STORIES 315-49 (Carol Streiker ed., 2006).
196. See Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N. Y.U. ANN. SURV. AM. L. 295 (2002); Kevin R. Johnson, Racial Profiling After September 11: The Department of Justice 's 2003 Guidelines, 50 LOY. L. REV. 67 (2004); Kevin Lapp, Pressing Public Necessity: The Unconstitutionality of the Absconder Apprehension Initiative, 29 N. Y.U. REV. L. & Soc. CHANGE 573 (2005).
197. For a defense of granting the suffrage to non-U.S. citizens, see Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391 (1993).
198. Since the 1990's legal scholarship on citizenship has flourished. See, e.g., BOSNIAK, supra note 68 ; HIROSHI MOTOMURA, AMERICANS IN WATTING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006); NEUMAN, supra note 167; ROGERS M. SMITH, CIVIL IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997). Discussion of this scholarship is beyond the province of this piece. For Latent treatment of citizenship, see Raquel Aldana, On Rights, Federal Citizenship, and the "Alien, " 46 WASHBURN L.J. 263 (2007); Ruben J. Garcia, Across the Borders: Immigrant Status and Identity in Law and Latent Theory, 55 FLA. L. REV. 511 (2003); George A. Martinez, Immigration and the Meaning of United States Citizenship: Whiteness and Assimilation, 46 WASHBURN L.J. 335 (2007).
199. 17 U.S. (4 Wheat.) 316, 414 (1819).
200. 60 U.S. (19 How.) 393, 404, 410-11 (1857).
201. 88 U.S. (21 Wall.) 162 (1875) (holding that although women are citizens of the United States and they are members of its political community they do not have a right to vote).
202. See CHARLES DICKENS, A TALE OF TWO CITIES (Signet Classic 1997) (1859).
203. See id. at 249-51; 273-74.
204. See Kay Hailbronner, Fifty Years of the Basic Law - Migration, Citizenship, and Asylum, 53 SMU L. REV. 519, 529-30 (2000).
205. BICKEL, supra note 189, at 53.