Chaidez and Collateral Consequences: A Seventeenth-Century Perspective

Disclaimer: People with a more than a passing interest in American criminal law may want to skip the next two paragraphs. Alternatively, you can read the full decision, Justice Thomas’s concurring opinion and Justice Sotomayor’s consent here.

A few days ago, the US Supreme Court found with the government in the case of Chaidez v. United States. The case hinged on Roselva Chaidez’s claim that her conviction for mail fraud should be overturned because her defense attorney failed to warn her that entering a guilty plea would almost certainly result in her deportation. This, in turn, depends on the Court’s decision in Padilla v. Kentucky (2010) that defense attorneys have a sixth amdendment obligation to inform defendants where a deportation risk applies. The question that Chaidez raises is whether that finding should be applied retroactively to convictions that occurred before Padilla was decided.

In order to answer that question, Justices turn to the test established in Teague v. Lane (1989) and Strickland v. Washington (1984). The Strickland test asks whether a decision creates a new rule or applies a pre-existing principle. Where the Court finds that a decision created a new standard, it doesn’t apply retroactively to prior convictions; where the Courts merely amplifies a pre-existing principle, it does. One of the complicating factors in this test is the question of whether deportation is a “collateral consequence” of criminal prosecution. If your lawyer fails to warn you of the collateral consequences, (s)he’s not necessarily creating grounds for a mistrial. But the Supreme Court has been remarkably cagey about what does and does not constitute “collateral consequences.” Padilla established that at the very least deportation isn’t like any other collateral consequence. But, as the sharply differing interpretations of Justices Kagan and Sotomayor indicate, whether it ultimately is or is not a “collateral consequence” remains murkier.

And that’s where the seventeenth century comes in. As per the norm in this blog, I’m less interested in assessing the relative merits of Justice Kagan and Justice Sotomayor’s interpretations and more interested in exploring the ways law in the seventeenth-century shares concerns with law today. This, in fairness, has a lot to do with the fact that I tend to read Supreme Court decisions and Edward Coke’s famous commentary on Thomas de Littleton’s Tenures in short succession. Here’s what Coke has has to say about the rights of aliens (or strangers) born to hold property:

“[An alien born out of the king’s allegiance] cannot be heir…albeit he be born within lawful marriage. If made denizen by the king’s letters patent, yet he cannot inherit to his father or any other. But otherwise it is, if he be naturalized by act of parliament; for then he is not accounted in law an alien but a subject. But after one be made denizen, the issue that he has afterwards shall be heir to him, but no issue that he had before. If an alien comes into England and has issue two sons, these two sons are indigenae.” (The curious and/or nerdy can read this section of Coke easily in the ebook version of the 1830 Readable Edition of Coke on Littleton, 8a, here.)

I’ll admit the connection isn’t necessarily or immediately obvious. People who don’t live in the United States can still inherit land here (though occupying it may be a problem). And property isn’t as obviously important in contemporary American law as it was in Littleton’s fifteenth century or Coke’s seventeenth century. We no longer need forty pounds to serve on juries or vote. But legal milestones from Calvin’s case (1608) to the fourteenth amendment (1868) emphasize the importance of property to our conceptions of citizenship. Aside from all else, when the law acknowledges your right to own property, the inescapable corollary is that you own yourself.

So the prohibition against non-denizen aliens inheriting property in fact suggests a much greater exclusion from access to law. For aliens to lose their denizen status, and by extension for Ms. Chaidez or Mr. Padilla to face deportation, placed them outside Coke and Littleton’s sense of the law itself. For them, then, and their conception of the law, alienage (or deportation) would have been no more a corollary consequence than conviction itself.

The Long-Overdue Calvin and SB1070 Wrap-up

Hey Blogger-nauts! It’s seems like an age since we started last considered the Supremes and SB 1070. Probably cause it’s been one. Unfortunately, things have been a little upheaval-y here at Stranger Born. (And many American students, I’ll admit I got a little carried away by the Affordable Care and Patient Protection part of this last SCOTUS term’s decisions.) But even though the health care decision was much higher profile, I think ultimately SB 1070 is just as interesting. For those of you not riveted by Supreme Court proceedings, the majority of the justices struck down most of the Arizona law, allowing only the section that makes it mandatory for Arizona law enforcement officers to check the immigration status of anyone they stop for a crime and suspect of being in the US illegally.

Justice Antonin Scalia has written a dissent, arguing that while control of naturalization clearly rests with Congress, individual states have a sovereign right to police their own borders; interestingly, Scalia, citing Gerald L. Neuman, argues that throughout the first century of American history, “the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases and (in the Southern States) freed blacks.” The case of free people of color (to try and provide the most accurate terminology while keeping up with a tremendously and understandably sensitive evolution of terms) strikes me as a particularly interesting one.

Before the passage of the fourteenth amendment (which, among other things, guaranteed citizenship to all persons born on US soil), freed slaves illuminated the difficulties in the development so brilliantly tracked by Keechang Kim (and discussed in my last post). If “alien or subject/citizen” had replaced “free man or slave” as the fundamental question underpinning Anglo-American approaches to a given individual’s legal rights, where did freed slaves fit in? The fact that Professor Neuman finds evidence in antebellum American legal thought to link states’ efforts to control the migration of freed slaves with efforts to control the movement of groups of aliens is pretty telling.

The tendency to link control of immigration with control of internal migration has been one of the things that’s interested me most about this case. Probably because it reminds me of the post-1603 naturalization rhetoric. For the sake of full disclosure, so did a cloud I saw the other day – I have kind of a one-track mind about the Jacobean succession at the minute. But anyway, the legal antiquarian Sir Henry Spelman fretted in his treatise “On the Union” that Scottish naturalization would involve radical and angry Scottish ministers flooding English parishes and benefices. He noted that ministers from poorer Northern counties were already invading relatively wealthy Southern parishes, which would be unable to support additional Scottish ecclesiastics.
For Spelman, at least as far as office seeking is concerned, Scots not being Norfolk-men seems to matter more than their being Scots. So I’m left wondering: do the legal labels of “citizen” and “alien” ever acquire take on any on-the-ground immediacy or are we always bound to supplant them with “person from my hometown” vs “person from far, far away.”

SCOTUS the Citizen and the Subject, or Calvin in Arizona

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”?

The Legal History Blogger’s Light, Or What This Blog Will Do

Sir John Doddridge lawyer, judge, and offerer of extrajudicial legal opinions died in 1628. In 1629, his guide for aspiring lawyers in the Inns of Court, The Lawyers Light was published. The frontispiece promised readers: “Choyce of bookes moderne. Selection of authours of more antiquitie. Application of either. Accommodation of diuers other vsefull requisits.” It further claimed that this was “all tending to the speedy and more easie attayning o the knowledge of the common law of this kingdome.”

Unsurprisingly, its advice was practically useless for law students, who preferred the readings of statutes held semiannually at the various inns and hanging out in actual courts of law. For a legal history blogger, on the other hand, Doddridge’s effort has distinct possibilities. After all,  providing intellectual context for readings, or reports, or even the occasional bit of fiery parliamentary rhetoric is a big part of what we do. So I’m co-opting Doddridge as a starting point for exploration of law texts, and classical political writing, and continental political writing, and possibly other things too. I’m not as smart, dead, or male as Doddridge is, so my syllabus will be less fixed and more idiosyncratic, but I expect that there’ll still be a lot of overlap.

That said, I still reserve the right to occasionally weigh in with terrible ‘crib’ puns, notes on my often embarrassing attempts to translate law French, and the incongruous results of the occasional geeky (legal history-related) google search. My primary focus will be on that fascinating nexus of law, sovereignty, and subjects’ allegiance. I’m especially interested in what happened to that nexus when Wales and then Ireland and Scotland got thrown into the mix. That said I’m looking forward to hearing whatever you folks have to say about anything and everything early modern law-related.

Happy reading!