Issue 4

Immigration’s Family Values

This Article takes an institutional approach to analyzing how the law determines parentage in diverse doctrinal contexts. We argue that immigration and citizenship law use different parentage tests than family law not because lawmakers have failed to properly incorporate family law principles but because lawmakers’ interests are not the same in the immigration context. State family law’s primary interests are protecting children, preserving well-functioning parent-child relationships, and ensuring that each child has two parents who are designated as legally and financially responsible. Immigration and citizenship law, in contrast, implicate the federal government’s interest in achieving optimal numbers of immigrants and citizens. In addition, because the benefits of lawful immigrant status and U.S. citizenship are so extensive, an important state interest in determining parentage in the immigration and citizenship context is the ferreting out and prevention of fraud. As a general rule, the context in which parentage disputes arise in immigration and citizenship cases differs greatly from the circumstances that lead to custody or divorce proceedings. Thus, the “family values” espoused by immigration and citizenship law are very different from those we are accustomed to seeing in family court.

Where immigration and citizenship law fail, they fail on their own terms, and we must understand their core values in order to critique them and to offer workable solutions. For example, current federal policy privileges interests in optimal citizenship and immigration and in fraud prevention at the expense of allowing U.S. citizens and lawful permanent residents to exercise their own liberty interests in preserving parent-child relationships. We critique this policy, however, not because it deviates from state family law principles but because it fails to recognize the government’s interests in preserving the family relationships of its citizens.

The Original Public Meaning Of The Fifth Amendment Applied To Substantive, Prosecutorial Use Of Pre-Miranda Warning Silence

This Note applies the original public meaning of the Fifth Amendment’s self-incrimination clause to silence maintained before Miranda warnings are given. After beginning with a brief defense of originalism applied to pre-Miranda silence, the Note shows how the history of the right, the understanding at the founding, and the underlying justification of individual autonomy support proscribing the use of pre-Miranda silence as evidence of guilt. It then shows that the original understanding fits comfortably within current Supreme Court precedent. Finally, the Note responds to some counterarguments.

The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure

Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent with the text and original understanding of the Constitution. In this article, I show how the scholarly impasse that has pitted constitutionalism and judicial independence on the one hand versus text and history on the other can be overcome. In particular, I show that something important has changed in the years since the Constitution was ratified: the gap between the independence of state and federal judges. At the time of the founding, much like their federal counterparts, no state judges were elected and the vast majority of them enjoyed life tenure. Precisely the opposite is true today. As such, the consequences of depriving federal courts of jurisdiction to hear constitutional claims were much different then than they are today. Because state courts were the background against which Article III of the Constitution was written and ratified, these changes enable the answer to the question of whether jurisdiction stripping is constitutional to change as well. In other words, just because jurisdiction stripping was constitutional in 1789 does not mean it must be constitutional today, and it does not mean we must ignore the original understanding of the Constitution to reach that conclusion. The history I have uncovered in this Article has the potential to reshape many other jurisdictional doctrines of the federal courts.

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