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Nowadays it is hard to find a country that is favorable to immigration. In the affluent OECD states, many of which are plagued by mass unemployment, heavy strains upon the basic institutions of the welfare state, and uncertain economic prospects, immigration is widely viewed as a burden for their economies rather than a benefit. Not surprisingly, the EU member states make many efforts to discourage legal and illegal immigration and to make the sojourn of those who have not been dissuaded as unpleasant as possible. Given their character as constitutional states and their commitment to basic human rights, these states do, of course, seek to maintain a minimum standard of human existence below which nobody should fall. This standard seems to be quite malleable. Owen Fiss's argument is a welcome opportunity to compare different constitutional approaches to the problem.
Take, for example, Germany, a country which after World War II established a tradition of hospitality towards refugees and victims of political persecution, but which does not provide legal means of "normal" immigration. Naturalization is a matter of administrative discretion and does not occur in large numbers. What Fiss calls "political disability"–the exclusion of aliens from political participation, particularly from the right to vote–implies the definition of the nation as a "community of citizens;" yet according to the predominant (albeit increasingly challenged) theories of the state and of democracy, there is no citizenship without nationality. Hence aliens cannot be citizens.
Rather than delving into this question, I would like to turn to what Fiss calls "social disability." Here I leave aside the category of the permanent legal alien residents–largely the "guest workers" of the 1960s and 70s and their families–because they are by and large fairly well integrated and no longer live at the margin of society. This, however, is not the case with all other kinds of immigrants, be they refugees from countries ridden by war or civil war, asylum-seekers, or illegal labor immigrants. Obviously the situation of the illegal immigrants is the worst. They live in a state of complete lawlessness because they cannot even claim the rights due them from their (illegal) labor contract with their employers without revealing their illegal residence and being immediately deported. Thus, it has frequently happened that illegal employers pay wages far below the standard and inform or threaten to inform the police about the immigrants' illegal stay. These immigrants are exposed to all kinds of blackmail and live in a shadowy world outside civilized society. In comparison to them the legal residents–asylum-seekers and refugees–are of course in a better situation because they are recognized as legal persons with legal capacity. But this does not mean that they have a share in the benefits of the receiving society. For instance, asylum-seekers are excluded from the right to freedom of movement, to work, or to live in a private home; indeed, they are usually forced to live in camps. Moreover, their material standard of living has been continuously declining; and the government's most recent measure (July 1998) has deprived them even of the right to appropriate medical care. Undoubtedly social disability is imposed on them.
Interestingly, neither of the two constitutional arguments examined by Fiss, which could potentially protect immigrants from social disability, can be applied to the German case. Although it is stated in Article 3 Paragraph 3 of the Basic Law that no person shall be prejudiced because of, among other things, birth, race, language, or national origin, it is still possible that aliens be given fewer rights than Germans since the constitution itself makes a distinction between basic rights, which are only accessible to Germans, and universally applicable rights. Moreover, discrimination is justified in Germany on grounds similar to those invoked in American constitutional doctrine. It can be claimed that if the unequal allotment of social benefits to immigrants is a necessary and appropriate means for the realization of a legitimate social purpose, then Article 3 Paragraph 3 is not violated.
By contrast, it would be quite difficult to make use of Fiss's central argument in the German constitutional discourse. The claim that a law is unconstitutional if it transforms immigrants into pariahs, i.e., if it creates "a social structure that is inconsistent with the conception of community embodied in the Constitution" is essentially consequentialist. It presupposes an idea or vision of a society that is incompatible with certain circumstances, such as the existence of a pariah-like population. The constitutional lawyers and the courts have to realize or to redesign this vision and determine whether the current state of affairs is compatible with it or not. This is of course a difficult undertaking because both constitutional lawyers and the courts may disagree about the true idea of the society enshrined in the constitution, more so than about the question of what a particular constitutional individual right may require for a particular claimant.
More crucially, Fiss's approach may lead the court in a particular case to the judgment that the act or omission under scrutiny does not lead to a social structure that violates the constitutional concept of a "good society," much as it may violate essential human needs. In other words: the protection of the neediest who have to strive for their status as a member of the society may be accomplished more appropriately and more efficiently through categorical rather than consequentialist arguments. The standard of "social disability" can be construed as relative, depending upon the overall picture that the constitution draws of society according to the divergent interpretations of constitutional lawyers and courts. If, instead, we accept the criterion of human dignity, the space for divergent interpretations of the responsibilities that society has to fulfill is much narrower. To be sure, it still exists; the German legislation which is subject to the almost sacramental protection of human dignity in Article 1 of the Basic Law bears sufficient evidence to this condition. The public debates in Germany about the reasonable standard of living that must not be denied even illegal immigrants clearly show that the categorical concept of human dignity is malleable. Still, I think that Fiss's functional approach leaves more room for opportunistic interpretations of the constitution than a standard which grounds society's responsibilities towards immigrants on an individual right.
A final remark: from the point of view of German constitutional law, Fiss's assumption that the judiciary is the appropriate institution of corrective justice is not plausible. In the European continental tradition the primary protection of the individual rests with the parliaments. If, as is certainly the case, the parliament cannot be regarded as the locus of either actual or virtual representation of immigrants, the latter's last resort is the courts. But in the German tradition the courts are not supposed to correct society's structural deficiencies. They protect individuals against a wrong and prejudiced application of the law, not against wrong and prejudiced laws themselves.
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