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Document Type

Article

Publication Date

Spring 2017

Publication Citation

92 Indiana Law Journal 735 (2017)

Abstract

Noncitizens must comply with immigration laws just because citizens say so. The citizenry takes for granted its monopoly on immigration control, but the legitimacy of this arrangement has been called into question by cutting-edge political theorists. One prominent theorist argues, for example, that basic democratic principles require that noncitizens living outside the United States have a say in the formation of immigration law since they must obey it. This Article provides a legal response to these political theory developments, assimilating them, along with the facts on the ground, into an account of “illegal” migration as First Amendment speech.

If noncitizens’ voices are unjustly excluded from the immigration law conversa-tion, then “illegal” migration is speech of necessity—there is no other way for noncitizens to be heard. Protest speech occurs every time a migrant crosses a border without permission and every time a noncitizen chooses to overstay a visa: these defiant actions declare the illegitimacy of immigration law. In turn, the individual speech acts of millions of “illegal” migrants help to foment an immigrants’ rights consciousness and enable groups of migrants to engage in core, protected forms of dissent, like marching in the streets shouting “NOT ONE MORE DEPORTATION” and tweeting #Not1More.

By speaking in these disruptive and unorthodox ways, the undocumented force the citizenry to grapple with the serious constriction of noncitizens’ lives that immigration laws cause. If these millions of protesters had respected our immigration laws by staying at home, pining for—but failing to seize—a better life in the United States, citizens could not know concretely how immigration laws limit noncitizens’ lives, nor learn whether our legal and political system is resilient enough to accommodate mil-lions of people the citizenry did not ask for. Thus, “illegal” migration makes the immigration law conversation more consistent with American free-speech values than it would otherwise be.