Courts, the new constitutionalism and immigrant rights英文文献.pdfVIP

European Journal of Political Research 43: 823–844, 2004 823 Courts, the new constitutionalism and immigrant rights: The case of the French Conseil Constitutionnel CHRISTIAN JOPPKE1 ELIA MARZAL2 1International University Bremen, Germany; 2European University Institute, Florence, Italy Abstract. This article examines the role of courts in the creation of immigrant rights. Immi- grant 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 jurispru- dence 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 enor- mous 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. A persistent puzzle across Western states is the disparity between mass publics that are generally opposed, if not hostile, to immigration and increased rights for immigrants, who in important respects have come to acquire a status close to that of citizenship.1 This rights increase is inexplicable in terms of the usual logic of democratic politics, investigated in the epics of political sociology from T.H. Marshall to Charles Tilly, in which the conflict potential and mobilizing capacity of excluded groups have set the path toward their successive inclu- sion. Immigrants, as non-citizens, lack the status of membership that is a formal prerequisite for substantive inclusion. In a world divided into states with mutu- ally