I should start with an apology: I meant to post some more about Fortescue earlier, but I got distracted reading the transcripts from the Arizona vs. US oral arguments which came before the Supreme Court of the United States (SCOTUS) at the end of last month. I am, I suppose, a bit of a SCOTUS nerd. Isn’t everyone?

And, setting politics aside (a difficult thing here at Stranger Born!), the case, which tests the Constitutionality of SB1070, Arizona’s rather infamous new immigration law, is fascinating. And I’ll probably wind up with several posts about it — partly cause it’s such an interesting question for those of us interested in the history of legal status and partly because SCOTUS’s finding and any additional opinions are still pending.

But I wanted to start with an observation about the difficulty Justice Scalia had talking about categories of legal status. Among the provisions of SB1070, Arizona’s immigration law, is a requirement that Arizona law enforcement officers must check up on the immigration status of anyone they stop (for speeding, for example) and suspect of being in Arizona illegally. On page 47 of the transcripts of oral argument, Justice Scalia and Gen. Verrilli (counsel for the US) discussed concerns about harassment in the course of enforcing this part of the law.  Justice Scalia dismissed the notion that Verrilli could be objecting to the harassment of “illegal immigrants,” instead suggesting that “you [Verrilli] must be talking about other people who have nothing to do with — with our immigration laws. Okay? Citizens and — other people, right?” (For those interested in the full exchange, it’s 47:12-48:3 in the official transcript, which can be found here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-182.pdf)

Again, trying very hard to leave partisan politics at the door, I can’t help but be struck by the difficulty Scalia has here articulating exactly which categories of people (besides citizens) “have nothing to do with” US immigration law. For one thing, it’s pretty strongly reminiscent of the complicated taxonomy of alien friends and alien enemies that Coke rehashed while reporting Calvin’s case. (Fun fact: I was an inch away from calling this blog “alien friend.”) Coke noted in his Report that denying alien friends their right to hold the necessary property to live on would be “in effect to deny them trade and traffick, which is the life of every Island.” For Coke, the question of legal status had pretty obvious and wide-reaching consequences, even for the alien friends who traded and trafficked among subjects with the state’s knowledge and blessing.

The legal historian Keechang Kim has a really provocative book about this stuff called Aliens in Medieval Law (and published by Cambridge University Press in 2000). It offers an account of how “subject vs alien” became a legal distinction more significant, more fundamental even, than “free man vs. villein” or even “outlaw vs. ‘inlaw.'” Looking at Arizona, you have to wonder whether we haven’t come full circle. Given the hesitation around “citizens — and other people” who should be protected from harassment, are we moving into an era when the fundamental distinction of legal status is no longer “subject (or citizen) vs. alien” but rather “pulled over vs. still driving”?