Courts, the New Constitutionalism and Immigrant Rights: The Case of the French Conseil Constitutionnel

Abstract

This article examines the role of courts in the creation of immigrant rights. Immigrant rights are located within a broader 'new constitutionalism' (especially in postwar Europe), in which courts have abandoned their traditional passiveness toward the political process and taken on the role of de facto legislator. Analyzing the immigration jurisprudence of the French Conseil Constitutionnel, we argue that courts are torn between two opposite imperatives: to protect an especially vulnerable category of people from the enormous police powers of the modern administrative state; and to respect an elementary exigency of sovereign stateness - that is, the capacity to draw a distinction between 'citizens' and 'aliens' as differently situated persons without a right of entry and permanence.