Constitutional Rights for Nonresident Aliens: A Doctrinal and Normative Argument

Drexel Law Review 8 (2015): 53-111

59 Pages Posted: 5 Dec 2014 Last revised: 27 Apr 2016

See all articles by Alec D. Walen

Alec D. Walen

Rutgers School of Law; Rutgers, The State University of New Jersey - Department of Philosophy

Date Written: June 5, 2015

Abstract

The decision in Boumediene v Bush, 553 U.S. 723 (2008), held that nonresident aliens (NRAs) detained for years in Guantanamo have a constitutional right to bring a habeas petition to challenge their detention. But the larger issue of constitutional rights for NRAs remains unresolved. Do NRAs outside of Guantanamo have constitutional rights? If so, do they enjoy more substantial protections, such as those under the Fourth and Fifth Amendments?

I argue here that the doctrine remains unclear, the text is likewise unclear, originalist arguments should carry little force, but the normative argument is clear. As a condition of the legitimacy of U.S. law, NRAs must enjoy a range of constitutional rights that protect them from unjust harm at the hands of the United States. This argument is the general part of a pair of articles; the other part argues specifically that NRAs enjoy Fourth Amendment rights not to be subject to unreasonable searches and seizures — see Alec Walen, Fourth Amendment Rights for Nonresident Aliens, German Law Journal, Forthcoming.

Keywords: constitutional rights, nonresident aliens, democratic legitimacy

Suggested Citation

Walen, Alec D. and Walen, Alec D., Constitutional Rights for Nonresident Aliens: A Doctrinal and Normative Argument (June 5, 2015). Drexel Law Review 8 (2015): 53-111, Available at SSRN: https://ssrn.com/abstract=2533579 or http://dx.doi.org/10.2139/ssrn.2533579

Alec D. Walen (Contact Author)

Rutgers, The State University of New Jersey - Department of Philosophy ( email )

106 Somerset St
5th Floor
New Brunswick, NJ 08901
United States

Rutgers School of Law ( email )

217 North 5th Street
Camden, NJ 08102
United States

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