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Earlier today, I participated in a radio program on “What the US Constitution Says About Immigration.” WDET Detroit radio host Stephen Henderson led the discussion, which included Yale Law School Professor Cristina Rodriguez, and myself. The audio is available here.

The discussion focused much more on big-picture issues about immigration and constitutional law, than about specific present-day controversies. But it may be all the more valuable for that reason.

Prof. Rodriguez is one of the nation’s leading experts on immigration law, and coauthor (with Adam Cox) of The President and Immigration Law, an excellent recent book on this topic. The book was the subject of an online symposium organized by the Yale Journal on Regulation. My contribution to that symposium is here.

During the program, I at one point noted that, while there has been great moral progress on many issues since the Founding, on immigration there has been significant retrogression. Today, we routinely accept immigration restrictions that James Madison and others among the Founders would have denounced as unjust and unconstitutional. These policies are deeply at odds with the principles underlying the Declaration of Independence. This degeneration is a dramatic example of how moral progress is not inevitable.

We also discussed how courts have (wrongly, in my view) exempted immigration restrictions from many of the constitutional constraints that apply to other exercises of government power.

 

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