The status of aliens—persons who are not citizens of the United States—presented perplexing constitutional problems in this country only after the great waves of immigration began in the nineteenth century. The question seems not to have troubled the Framers of the Constitution. james madison, in the federalist #42, defended the power of Congress to set a uniform rule of naturalization as a means for easing interstate friction. Absent such a congressional law, he argued, State A might grant citizenship to an alien who, on moving to State B, would become entitled to most of the privileges and immunities granted by State B to its citizens. Evidently it was assumed from the beginning that aliens were not protected by Article IV's privileges and immunities clause, and it is still the conventional wisdom—although not unchallenged—that aliens cannot claim "the privileges and immunities of citizens of the United States" guaranteed by the fourteenth amendment.
Alienage has sometimes been treated as synonymous with dissent, or even disloyalty. The alien and sedition acts (1798), for example, were aimed not only at American citizens who opposed President john adams but also at their supporters among French and Irish immigrants. The palmer raids of 1919–1920 culminated in the deportation of hundreds of alien anarchists and others suspected of subversive activities. At the outbreak of world war ii, Attorney General francis biddle was determined to avoid the mass internment of aliens; in the event, however, Biddle deferred to War Department pressure, and more than 100,000 persons of Japanese ancestry, alien and citizen alike, were removed from their West Coast homes and taken to camps in the interior. (See japanese american cases, 1943–1944.)
When the kentucky resolutions (1798) protested against the Alien and Sedition Acts, they defended not so much the rights of aliens as states ' rights. Indeed, the rights of aliens were not a major concern in the nation's early years. Even the federal courts' diversity jurisdiction could be invoked in a case involving aliens only when citizens of a state were on the other side, as hodgson v. bowerbank (1809) held. For this jurisdictional purpose, a "citizen" of a state still means a United States citizen who is also a state citizen. (An alien can sue another alien in a state court.) Thus, while a state can grant "state citizen-ship"—can allow aliens to vote, hold public office, or receive state benefits—that state citizenship does not qualify a person as a "citizen" within the meaning of the Constitution. Some states have previously allowed aliens to vote; even today, some states allow aliens to hold public office.
Most individual rights protected by the Constitution are not limited to "citizens" but extend to "people" or "persons," including aliens. An exception is the right to vote, protected by the fifteenth, nineteenth, and twenty-sixth amendments, which is limited to citizens. Aliens do not, of course, have the constitutional freedom of entry into the country that citizens have; aliens' stay here can be conditioned on conduct—for example, the retention of student status—that could not constitutionally be required of citizens. An alien, but not a citizen, can be deported for certain violations of law. In wartime, the property of enemy aliens can be confiscated. Yet aliens are subject to many of the obligations fastened on citizens: they pay taxes along with the rest of us, and, if Congress so disposes, they are as susceptible as citizens to conscription into the armed forces.
Congress, by authorizing the admission of some aliens for permanent residence, accepts those admittees as at least limited members of the national community. The civil rights act of 1866, for example, protects a resident alien against state legislation that interferes with the alien's earning a livelihood. The vitality of the preemption doctrine in such cases no doubt rests on two assumptions: that the national government, not the states, has the primary responsibility for the nation's dealings with foreign countries, and that the regulation of another country's nationals is likely to affect those dealings.
Throughout our history, state laws have discriminated against aliens by disqualifying them from various forms of public and private employment, and from receiving public assistance benefits. Early decisions of the Supreme Court mostly upheld these laws, ignoring their evident tensions with congressional policy and rejecting claims based on the Fourteenth Amendment's equal protection clause. Two decisions in 1948, oyama v. california and takahashi v. fish & game commission, undermined the earlier precedents, and in the 1970s the Court made a frontal assault on state discriminations against aliens.
A legislative classification based on the status of alien-age, the Court announced in graham v. richardson (1971), was a suspect classification, analogous to a racial classification. Thus, justifications offered to support the classification must pass the test of strict scrutiny. State restrictions of welfare benefits, on the basis of alienage, were accordingly invalidated. Two years later, this reasoning was extended to invalidate a law disqualifying aliens from a state's civil service, sugarman v. dougall (1973), and a law barring aliens from the practice of law, in re griffiths (1973). The string of invalidations of state laws continued with Examining Board v. Flores de Otero (1976) (disqualification to be a civil engineer) and Nyquist v. Mauclet (1977) (limiting eligibility for state scholarship aid).
In the Sugarman opinion, the Court had remarked that some state discriminations against aliens would not have to pass strict judicial scrutiny. The right to vote in state elections, or to hold high public office, might be limited to United States citizens on the theory that such rights are closely connected with the idea of membership in a political community. By the end of the decade, these words had become the foundation for a large exception to the principle of strict scrutiny of alienage classifications. The "political community" notion was extended to a broad category of public employees performing "government functions" requiring the exercise of discretion and responsibility. Disqualification of aliens from such jobs would be upheld if it was supported by a rational basis. foley v. connelie (1978) thus upheld a law disqualifying aliens to serve as state troopers, and ambach v. norwick (1979) upheld a law barring aliens from teaching in public schools unless they had shown an intent to become U.S. citizens. Cabell v. Chavez-Salido (1982) extended the same reasoning to state probation officers.
At the same time, the Court made clear that when Congress discriminated against aliens, nothing like strict judicial scrutiny was appropriate. Mathews v. Diaz (1976) announced an extremely deferential standard of review for such congressional laws, saying that the strong federal interest in regulating foreign affairs provided a close analogy to the doctrine of political questions—which suggests, of course, essentially no judicial scrutiny at all.
It was argued for a time that the preemption doctrine provides the most complete explanation of the Court's results in alienage cases. The early 1970s decisions, grounded on equal protection theory, instead might have been rested on congressional laws such as the 1866 act. The decisions on "governmental functions," seen in this light, would amount to a recognition that Congress has not admitted resident aliens to the "political community." On this theory, because Congress has not admitted "undocumented" aliens for any purpose at all, state laws regulating them would be viewed favorably. In plyler v. doe (1982), the Supreme Court rejected this line of reasoning and held, 5–4, that Texas had denied equal protection by refusing free public education to children not lawfully admitted to the country while providing it for all other children. The majority, conceding that Congress might authorize some forms of state discrimination, discerned no such authorization in Congress's silence.
The preemption analysis, no less than an equal protection analysis, leaves the key term ("political community") for manipulation; on either theory, for example, the school teacher case seems wrongly decided. And the equal protection approach has one advantage that is undeniable: it focuses the judiciary on questions that bear some relation to life—substantive questions about degrees of discrimination and proffered justifications—rather than on the metaphysics of preemption.
Kenneth L. Karst
Note 1975 Aliens' Right to Teach: Political Socialization and the Public Schools. Yale Law Journal 85:90–111.
——1979 A Dual Standard for State Discrimination Against Aliens. Harvard Law Review 92:1516–1537.
——1979 The Equal Treatment of Aliens: Preemption or Equal Protection? Stanford Law Review 31:1069–1091.
——1980 State Burdens on Resident Aliens: A New Preemption Analysis. Yale Law Journal 89:940–961.
Preston, William, Jr. 1963 Aliens and Dissenters: Federal Suppression of Radicals, 1903–1933. Cambridge, Mass.: Harvard University Press.
Rosberg, Gerald M. 1977 The Protection of Aliens from Discriminatory Treatment by the National Government. Supreme Court Review 1977:275–339.
alien, in law, any person residing in one political community while owing allegiance to another. A procedure known as naturalization permits aliens to become citizens.
Each nation establishes conditions upon which aliens will be admitted, and makes laws concerning them. Most countries, including the United States, forbid or limit the admission of criminals, paupers, and the diseased. Certain groups and nationalities may be unconditionally excluded from legal residence, but such discrimination is likely to cause international friction.
Aliens, while they reside in a country, are subject to its laws and not to those of their home country, except in cases of extraterritoriality jurisdiction. A state distinguishes between aliens who are merely traveling or living there temporarily and those who have come to stay or work; wider powers are assumed over the second group. In the United States, permanent resident status may entitle an alien to a "green card," and thus to seek employment, and aliens have many of the privileges afforded to citizens, including public assistance and the right to attend public schools, even if they are in the country illegally. The Immigration and Nationality (McCarran-Walter) Act of 1952 requires aliens to register each year with the Bureau of Citizenship and Immigration Services (formerly the Immigration and Naturalization Service).
As citizens of another country, aliens may call on it to intercede in legal matters. Their home state may point out or protest injustice and may also threaten reprisals; such situations have frequently caused international disputes. On the other hand, aliens may find asylum in a country to which they have fled, unless treaties of extradition provide for their return. A state may for political or legal reasons expel an alien who has been admitted, by a procedure called deportation.
In time of war, laws governing aliens are usually stricter, and enemy aliens (nationals of enemy countries) may be restricted in various ways. Treaties between most governments provide for reasonable periods at the beginning of hostilities during which aliens may withdraw under supervision. World War II saw registration requirements and the exclusion of enemy aliens from certain U.S. areas, but the removal from their homes and internment in camps of Japanese on the West Coast applied to Americans of Japanese descent as well as to aliens.
Population and economic pressures periodically cause host countries to become less hospitable to aliens. In the 20th cent., U.S. immigration and deportation laws have changed in reaction to varying conditions. The "Red Scare" at the end of World War I brought a wave of deportations of anarchists and other radicals. A 1986 federal immigration bill, aimed at reducing the number of illegal aliens, allowed many of those who had been in the country for some time to apply for amnesty and stay legally, and millions took advantage.
In the 1990s politicians, including many in such states as California, where large numbers of illegal aliens reside, introduced state or federal legislation aimed at denying various privileges and benefits to aliens, in some cases even to those legally in the United States. A 1996 federal act led to a rapid increase in deportation of aliens who had not immigrated legally, and the INS grew to become the largest federal law-enforcement agency.
Illegal immigration has remained a contentious issue in the 21st cent., especially in those states bordering Mexico. Arizona voters, for example, passed (2004) a measure that requires public officials to turn in illegal immigrants who seek public services, including police and fire assistance, and in 2010 its legislature enacted a second measure that required local law officers to check the status of anyone they stopped who they believe might be an illegal alien. A number of other states have since adopted or considered laws intended to arrest or penalize illegal immigrants or those who hire or aid them, but a 2012 U.S. Supreme Court decision largely limited to the federal government the right to enact and enforce immigration law.
Despite the success of Stanley Kubrick's 2001: A Space Odyssey in 1968, science fiction films were often viewed as juvenile and escapist. Much of that changed in the late 1970s and the 1980s thanks to a new wave of films which challenged the notions of science fiction film, led by Alien, directed by Ridley Scott in 1979. The film was a critical and commercial success, garnering several awards including an Academy award nomination for Best Art Direction, an Oscar for Best Visual Effects, a Saturn Award from the Academy of Science Fiction, Horror, and Fantasy Films for Best Science Fiction Film, a Golden Globe nomination for Best Original Score, and a prestigious Hugo Award for Best Dramatic Presentation. Its adult sensibilities were enhanced by a stellar cast which included Tom Skerrit, Sigourney Weaver, Yaphet Kotto, John Hurt, Veronica Cartwright, and Harry Dean Stanton.
Inspired by It, The Terror From Beyond Space, Alien deftly combined the genres of horror and science fiction to create a thoroughly chilling and suspenseful drama. The slogan used to market the film aptly describes the film's effect: "In space, no one can hear you scream." The storyline involved the crew of the Nostromo, an interplanetary cargo ship. They answer the distress call of an alien vessel, only to discover a derelict ship with no life forms. At least that is what they think, until further investigation reveals a number of large eggs. One "hatches" and the emergent life form attaches itself to a crew member. In an effort to save the man's life, they bring him back aboard their ship, where the creature escapes, grows at an accelerated rate, and continues through the rest of the film hunting the humans one by one. The film is often noted for its progressive politics. The film presented a racially mixed crew, with well-drawn class distinctions. The members of the upper echelon, represented by the science officer Ash, are cold and literally not-human (he is an artificial life form). It is later revealed in the story that the crew is put at risk purposely for the benefit of "the company," who wants to secure the alien life form for profit ventures. One of the most discussed aspects of the film was the prominence of the female characters, notably that of Ripley, played by Weaver. The film reflects changing gender roles in the culture for it posits Ripley as the hero of the film. She is intelligent, resourceful, and courageous, managing to save herself and destroy the creature.
The success of the film spawned three sequels, which as Thomas Doherty describes, were not so much sequels as extensions, for they continued the original storyline, concentrating on its aftermath. James Cameron, straight off the success of the box-office action film The Terminator, directed the second installment, Aliens, released in 1986. He continued the Alien tradition of genre blending by adding to the horror and science fiction elements that of the war film and action adventure. Unlike the first film which utilized a slow, creeping pace to enhance suspense, Aliens makes use of fast pacing and jumpcuts to enhance tension. Here, Ripley, the only expert on the alien species, volunteers to assist a marine unit assigned to rescue colonists from a planet overrun by the creatures. Again, she proves herself, eventually resting command from the incompetent lieutenant who leads them. She survives the second installment to return in Alien 3, directed by David Fincher in 1992. Alien Resurrection (Alien 4), directed by Jean-Pierre Juenet, was released in 1997.
Creed, Barbara. "Horror and the Monstrous Feminine." In The Dread of Difference. Edited by Barry Keith Grant. Austin, University of Texas Press, 1996, pp. 35-65.
Doherty, Thomas. "Gender, Genre, and the Aliens Trilogy." In The Dread of Difference. Austin, University of Texas Press, 1996, pp. 181-199.
a·li·en / ˈālyən; ˈālēən/ • adj. belonging to a foreign country or nation. ∎ unfamiliar and disturbing or distasteful: bossing anyone around was alien to him. ∎ relating to or denoting beings supposedly from other worlds; extraterrestrial: an alien spacecraft. ∎ (of a plant or animal species) introduced from another country and later naturalized. • n. a foreigner, esp. one who is not a naturalized citizen of the country where they are living: an illegal alien. ∎ a hypothetical or fictional being from another world. ∎ a plant or animal species originally introduced from another country and later naturalized. DERIVATIVES: al·ien·ness n.
Alien ★★★? 1979 (R)
Terse direction, stunning sets and special effects, and a well-seasoned cast save this from being another “Slimy monster from Outerspace” story. Instead it's a grisly rollercoaster of suspense and fear (and a huge boxoffice hit). Intergalactic freighter's crew is invaded by an unstoppable carnivorous alien intent on picking off the crew one by one. While the cast mostly bitches and banters while awaiting the horror of their imminent departure, Weaver is exceptional as Ripley, a self-reliant survivor who goes toe to toe with the Big Ugly. Futuristic, in the belly of the beast visual design creates a vivid sense of claustrophobic doom enhanced further by the ominous score. Oscar-winning special effects include the classic baby alien busting out of the crew guy's chest routine, a rib-splitting ten on the gore meter. Successfully followed by “Aliens” and “Alien 3.” 116m/C VHS, DVD, UMD. GB Tom Skerritt, Sigourney Weaver, Veronica Cartwright, Yaphet Kotto, Harry Dean Stanton, Ian Holm, John Hurt, Bolaji Badejo; D: Ridley Scott; W: Dan O'Bannon; C: Derek Vanlint; M: Jerry Goldsmith; V: Helen Horton. Oscars '79: Visual FX, Natl. Film Reg. '02.
So alien vb. XIV — (O)F. aliéner; earlier synon. of alienate (XVI), which was preceded by the pp. †alienate (XV) — L. aliēnātus, pp. of aliēnāre. alienable XVII. alienation XIV. — (O)F. or L.