Un-Natural Law? Alito on Non-Resident Aliens

The Washington Post ran a fairly disturbing analysis of some of Alito’s opinions written opinions while serving as a senior lawyer in the Reagan Justice Department. Of particular interest–to me–was his rendering regarding the constitutional rights that are afforded (or not!) to not just illegal immigrants but also non-resident aliens–of which I am one! (I’m a Canadian, for the record–which will explain quite a lot for some of my critics.) In a January 1986 memo to the FBI director Alito said that constitutional rules that applied to citizens (in particular, the prohibition of spreading ‘stigmatizing’ information about someone) did not apply to nonresident immigrants. He also cited a 1950 Supreme Court case “to support the contention that nonresident immigarnts of other countries had ‘no due process rights’ under the Constitution.”

One could point out just a couple of serious concerns here: first, this is just the kind of aggressive limitation of legal protection that fuels the current administration’s “exceptional” stance vis-a-vis the Geneva Convention and a host of other human rights expectations for non-American citizens in custody. Second, such a constructionist or conventional notion of rights would seem to contradict Alito’s own natural law philosophy. I’m no fan of natural law theory, but at least it mitigates against this kind of commodified treatment of non-resident aliens.