Over the last five years, the United States has held around 37,000 people in immigration detention every day. Over 70% are held without any chance of bond. For those who manage to obtain a bond hearing, they bear the burden of proving that they are neither dangerous nor a flight risk. This scheme would be plainly illegal under the constitutional law governing other forms of civil confinement. But current precedent suggests that immigration detention is and always has been exceptional.
This Article argues that immigration detention exceptionalism is a modern doctrine, not one compelled by history. Immigration detention, at its inception, was part of a system of mass civil confinement of the poor—in workhouses, juvenile facilities, and mental asylums—that lacked meaningful constitutional limits. This civil confinement system also functioned as a form of state immigration control, both targeting immigrants and confining them at rates wildly disproportionate to citizens. Immigration detention was not exceptional for its lack of constitutional safeguards, which was an unremarkable feature of all civil confinement systems at the time.
Immigration detention’s initial exemption from the constitutional law that has come to govern other forms of civil confinement was largely a historical accident. Immigration detention was the first domino to fall in a backlash against the mass civil confinement of the mid-century. When the Court began constitutionally regulating other forms of civil confinement, the thirty-year hiatus on immigration detention had already begun. As a result, when the Court in the 1970s placed constitutional limits on all other forms of civil confinement, it simply had no cause to address immigration detention. Only recently has the modern Court—citing anachronistic nineteenth-century precedent—placed immigration detention on a different constitutional footing than its civil-confinement counterparts.
This Article shows how the detention of immigrants, far from being exceptional, was at its inception a central part of civil confinement. This history reframes immigration detention exceptionalism as a modern innovation, undercutting the Court’s defense of the current regime and placing the arguments for transforming immigration detention on even firmer footing.
* Forrester Fellow, Tulane University Law School. Too many people to list have provided generous feedback that helped me develop this Article. I owe special thanks to Ahilan Arulanantham, Andrew Manuel Crespo, Alina Das, anneke dunbar-gronke, Kate Evans, Adam Feibelman, Laila Hlass, Martha Minow, Steven Schaus, Alveena Shah, Laura Lane Steele, Phil Torrey, and Mary Yanik for encouragement on early drafts. I am also particularly indebted to Andrea Armstrong, Jennifer Chacón, Adam Cox, Brandon Garrett, and Allegra McLeod for thoughtful commentary at later stages. I am grateful to Eunice Lee, Sandy Mayson, and Gerald Neuman for pointing me toward helpful historical sources. This Article also benefited from workshops in LatCrit 2021, Tulane’s Intellectual Life Series, and the Immigration Law Teachers & Scholars Workshop 2022. Finally, enormous thanks to the diligent editors of the Stanford Law Review for all their hard work improving this piece.