Naturalized and Native-Born Citizens

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Joe says:

    The lower court cited the disease as clonorchiasis, which Wikipedia tells me is caused by the “Chinese liver fluke” and one gets “infected by eating undercooked, smoked, pickled salted freshwater fish.”

  2. Joe says:

    The opinion ends thusly:

    “The words of the statute being clear, if it unjustly discriminates against the native-born citizen, or is cruel and inhuman in its results, as forcefully contended, the remedy lies with Congress and not with the courts. Their duty is simply to enforce the law as it is written, unless clearly unconstitutional.”

    From today’s vantage point, would this be “clearly unconstitutional”? I hope so.

  3. AndyK says:

    Why? The lodestar of EP jurisprudence is intentional discrimination, not disparate impact. Passing a law to benefit one group (leaving out those cases of scarce resources) without having other groups in mind cannot violate EP absent evidence of conscious, directed discrimination.

    I would say this case is still very good law, as far as constitutional jurisprudence is concerned. Apply the law until such time as it is amended.

  4. AndyK says:

    But I agree it’s a stupid law, so far as that goes.

  5. Joe says:

    I don’t understand the reference to “disparate impact.” It looks to me like is it a classification. It isn’t some neutral law that for whatever reason has disparate results.

    If you by design benefit “one group” alone, you have to have a reasonable ground to do so. If the classification is illegitimate, it is unconstitutional.

    Native born and naturalized are supposed to be on an equal footing in nearly every case (one special exception I believe is you can have your citizenship revoked if naturalized on the basis of fraud).

    What is the reasonable ground for which they are not here? The OP explains the law as an anti-Chinese measure. Is that a legitimate, today, reason to so differentiate?