Virtual citizenship: Migrants and the constitutional polity

This study concerns how ought constitutionalism resolve the question of undesired migrants. Through a comparative study of Germany and the United States it examines the principles whereby constitutional democracy justifies and maintains its borders from unwanted migrants. Constitutionalism, which offers a balance between democratic impulse and rule of law, has generally not protected the rights of migrants. Immigration has largely remained a positive legal construct with final authority resting with the political institutions. Through principles of international law, control over immigration has been the sovereign right of the nation-state. While principles of international sovereignty have provided the justification for the exclusion and expulsion of migrants, the legitimacy of constitutional democracy necessitates that the justification be based in a conception of constitutional sovereignty.; While citizenship policies of most liberal democracies have converged, the predictions of “liberalization” of citizenship and extension of rights to aliens have ignored the constitutional understanding of migrants that has largely remained unchanged and exclusive. In focusing on immigration policy, migration theorists have missed the importance of foundational constitutional principles.; A comparison of Germany and the United States reveals different constitutional understandings of the relationship of migrants to the public order, national sovereignty and procedural self-reinvention of collective identity. While the German constitutional scheme has placed migrants within the normative hierarchy that seeks to secure the “public order,” the United States has theorized migrants as outside of the constitution and subject to external sovereignty that seeks to secure the territory from foreign threats. While the United States' understanding has allowed for greater integration, the German understanding has, on the whole, led to more secure safeguards against the curtailment of rights.; I argue that the conceptualization of migration as an exception and migrants as outside of the constitutional order has never corresponded with the need for the movement of people across national borders. I argue that the need for migration ought to be constitutionalized as a foundational matter. Only in this way can the Courts begin to form constitutional principles that distinguish migrants in their capacity as foreign subjects versus their status as persons in the collective public.