Download Persons and citizens in constitutional thought

Survey
yes no Was this document useful for you?
   Thank you for your participation!

* Your assessment is very important for improving the work of artificial intelligence, which forms the content of this project

Document related concepts

Constitution of Venezuela wikipedia, lookup

Constitutional amendment wikipedia, lookup

Constitution of Chad wikipedia, lookup

Constitution of Hungary wikipedia, lookup

Constitutional Court of Thailand wikipedia, lookup

Constitutional Council (France) wikipedia, lookup

History of the Constitution of Brazil wikipedia, lookup

Constitutional economics wikipedia, lookup

Constitution of Lithuania wikipedia, lookup

Citizenship of the European Union wikipedia, lookup

United States nationality law wikipedia, lookup

Polish Constitutional Court crisis, 2015 wikipedia, lookup

Naturalization wikipedia, lookup

Birth tourism wikipedia, lookup

Right of return wikipedia, lookup

Birthright citizenship in the United States wikipedia, lookup

Transcript
© The Author 2010. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected]
..........................................................................................
Persons and citizens in
constitutional thought
Linda Bosniak*
1. Persons or citizens: Aligned or opposing concepts?
The ideas of citizenship and personhood have an ambiguous relationship in constitutional thought. Often, they are understood as aligned, even as identical. Claims for
“equal citizenship” and “democratic citizenship” are, in effect, claims on behalf of the
rights and recognition of individuals qua persons. American constitutional theorist
Kenneth Karst made this presumed equivalence plain when he wrote that the principle of equal citizenship protects the “crucial interest in being treated by the society as
a person, one who belongs.”1
Frequently, though, citizenship and personhood are regarded as opposing concepts.
Whereas citizenship references national belonging and its associated rights, personhood evokes the rights and dignity of individuals independent of national status.
Personhood stands for the universal, in contrast to citizenship, which is ultimately
exclusionary. The most well-known exponent of this view is Alexander Bickel, who
eschewed a citizenship-centric constitutionalism on grounds it was “regressive” and
“parochial”. He maintained that “the authentic voice of the American Constitution”
finds expression through its protection of persons.2
Much of the ambiguity of the personhood–citizenship relationship results from the
multivalence of the idea of citizenship itself. Analytically, the term is used to indicate
both relations among existing members of a political community and the process of
constituting that community in the first place. Normatively, citizenship is understood
as committed to universalism within the community, but in its community-constitutive
mode, it is associated with bounded national commitments.
Some citizenship proponents regard citizenship as a concept that seeks to mediate
between universality and boundedness and, ultimately, to accommodate them; in this
view, that is precisely citizenship’s function and its value. Citizenship is thus represented
as personhood instantiated or concretized in a particular political community—as
*
1
2
Distinguished Professor, Rutgers Law School, New Jersey. Earlier versions of this essay were presented at
the Harvard Public Law Conference, February 2008, and at the Conference on Human Rights and Immigration: National and International Perspectives, Minerva Center For Human Rights, Hebrew University
in Jerusalem, May 25–27 (2009). Email: [email protected]
Kenneth Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 48
(1977).
ALEXANDER BICKEL, THE MORALITY OF CONSENT 53, 47 (Yale Univ. Press 1975).
I•CON (2010), Vol. 8 No. 1, 9–29
doi: 10.1093/icon/mop031
10
I•CON 8 (2010), 9–29
both the embodiment of the universal and as the framing precondition for it. The presumption is that universality and exclusion are complementary because they operate
in distinct spheres, with universality the aspirational norm in the national “inside” and
exclusivity confined to its outer edges. This “hard-outside–soft-inside” conception of
citizenship is the essence of liberal nationalism.3
In earlier work, however, I have shown that the accommodation of the universal
and particular that citizenship purports to stand for is often unstable and internally
contradictory. As a matter of fact, the border operates not just at the community’s
edges but also in its interior, and structures relationships there. The category of alienage itself embodies this convergence of regulatory domains, and its management elicits
endless jurisdictional disputes about which set of norms is supposed to govern in
any given situation. Further, even where the more universalistic norms are formally
deemed to apply, they are frequently undercut indirectly by the operation and effect
of interiorized borders.
In normative terms, I have also sought to challenge the exclusionary commitments
associated with nationalist conceptions of citizenship. While I have suggested that
the language of citizenship can be deployed “against itself” on behalf of the rights of
noncitizens, this is, effectively, an argument on behalf of the rights of noncitizens qua
persons.4 I have, in short, generally sided with Bickel in his preference for personhood
over citizenship.
In my current work, however, I am interested in thinking about constitutional
personhood’s own hang-ups. In much the same way that the concept of citizenship
has needed critical unpacking, personhood, as a preferred basis for constitutional
subject status demands interrogation as well. Personhood raises as many questions as
it answers, and in the context of constitutional thought, it promises much more than
it can deliver. My purpose here is to sketch some directions for a critical reading of the
idea of constitutional personhood. My focus is United States constitutionalism, but
I will reference other constitutional systems, and many of the observations about the
U.S. will be relevant to other constitutional contexts.
2. Constructed or given?
One way to begin is to turn, again, to Bickel. Thirty years ago, Bickel made a statement
about the relationship between citizenship and personhood in American constitutional law that is well known among scholars of immigration and citizenship. He said:
“It has always been easier, it always will be easier, to think of someone as a noncitizen
than to decide that he is a nonperson.”5
3
4
5
LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP (Princeton Univ. Press
2006).
In short, I have argued, alternatively, that citizenship should be displaced by personhood or unmasked as
covert personhood, though, paradoxically, the idea of citizenship can be utilized to accomplish just this.
Id.
BICKEL, supra note 2, at 53.
Persons and citizens in constitutional thought
11
What is expressed here is both a descriptive and normative claim about the significance of the category of citizenship in our constitutional system. Bickel argued that,
as a historical matter, the Constitution has never set much stock by the category of
citizenship; that one of the most disastrous aspects of Dred Scott6 was that it treated
the denial of rights to slaves and free blacks as turning on their lack of citizenship;
that the framers of the Fourteenth Amendment came close to entrenching this mistake, constitutionally, via passage of the privileges or immunities clause of section 1,
which might have appeared to make rights contingent upon citizenship; but that, in
the end (by way of Slaughterhouse,7 which eviscerated the clause), “innocence was
restored.”8 And Bickel concludes by expressing satisfaction with this state of affairs:
“I find it gratifying . . . that we live under a Constitution to which the concept of
citizenship matters very little.”9
In important ways, Bickel is descriptively right. True, citizenship status is still quite
significant in a variety of settings, and conflicts between citizenship- and personhoodbased groundings of rights persist in various contexts. Still, for a great many purposes,
the “right to have rights”10 is not contingent on the possession of citizenship status.
In the international arena, it is largely persons who are the subjects of human rights
(and, in this respect, the human being is not quite so naked as Hannah Arendt maintained a half century ago).11 The same is true within many liberal states. In the newer
rights charters like Canada’s, most fundamental protections extend to “everyone”—
not to citizens.12 In the U.S. constitutional system, it is persons to whom many rights
belong.13
However, Bickel is not merely saying that citizenship does not (and should not)
count for much. He is also making a claim about the nature of citizenship itself. He
maintains that citizenship is a dangerous category to hang your hat on precisely
because it is a manipulable category. Citizens and noncitizens are not beings found in
nature; they are made and unmade by way of law and politics, and their making and
unmaking can have momentous consequences. Bickel’s is a constructivist account of
citizenship: citizens are made, not born. I have no question that he is right about this.
But recall also that the statement is set out in comparative form. Bickel writes that
it has always been more difficult to declare someone a nonperson than a noncitizen.
Why is that? The implication is that personhood is a less plastic concept than citizenship. The status of person is more fundamental, natural, essential; less of a construct,
6
7
8
9
10
11
12
13
Dred Scott v. Sanford, 60 U.S. 393 (1857).
Slaughter-House Cases, 83 U.S. 36 (1873).
BICKEL, supra note 2.
Id. at 53–54.
Perez v. Brownell, 356 U.S. 44, 64–65 (1957) (Warren, Black & Douglas, JJ. dissenting).
HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (Rev. ed., Harcourt 1973) (1951).
The Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, Schedule B to the
Canada Act 1982, ch. 11 (U.K.), s. 2 (declaring fundamental freedoms for “everyone”).
U.S. CONST. amend. V & XIV. Sometimes this commitment to the rights of persons has been, paradoxically,
described as expressing a principle of “equal citizenship,” as Ken Karst wrote, see supra, note 1, but again,
the subject of this principle here is not status - citizens but persons.
12
I•CON 8 (2010), 9–29
less subject to manipulation. As Bickel writes, “What is not granted cannot be taken
away.”14
But here, his characterization weakens. It is simply not true that personhood is not
granted and not true that it cannot be taken away. Historically, large classes of human
beings were denied recognition as equal legal and moral persons—treated as property
or objects or as otherwise less-than-persons (including as fractions of persons).15 Meanwhile, and conversely, various nonhuman entities have been declared persons for legal
purposes.16 The fact is that the category of person is historically constructed, and there
has been persistent debate about the boundaries of the category, up to the present
period. Think of the disputes about fetuses/embryos,17 about cyborgs and other artificial agents,18 about the great apes,19 about mentally incompetent humans,20 about
corporations. In the contemporary literature on bioethics and in legal and moral philosophy more broadly, we find various efforts to promote or demote certain classes of
beings into or out of the personhood category. Symposia and conferences abound on
the question of who is a person, in virtue of what is someone a person, and so forth. 21
14
15
16
17
18
19
20
21
BICKEL, supra note 2, at 33.
Slavery is the quintessential case.
In American constitutional law, corporations have been considered constitutional persons since 1886.
See Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). The individual states have also
been characterized as persons. For a critical discussion of “the fiction of state personhood,” see Timothy
Zick, Statehood As the New Personhood: The Discovery of Fundamental ‘States’ Rights, 46 WM. & MARY L. REV
213 (2004).
Nathan Schlueter, Constitutional Persons: An Exchange on Abortion, FREE REPUBLIC, Feb. 23, 2003 (exchange
between Robert H. Bork and Nathan Schlueter), http://www.freerepublic.com/focus/news/850234
/posts; Marie Fox, Pre-Person, Commodities or Cyborgs: The Legal Construction and Representation of the
Embryo, 8 HEALTH CARE ANALYSIS 171 (2000); Margaret Little. Abortion and the Margins of Personhood, 39
RUTGERS L.J. 331 (2008).
Samir Chopra & Laurence White, Artificial Agents—Personhood In Law and Philosophy, in ECAI 2004:
PROCEEDINGS OF THE 16TH EUROPEAN CONFERENCE ON ARTIFICIAL INTELLIGENCE 635 (Ramon Lopez De Mantaras &
Lorenza Saitta eds., OCSL Press 2004).
See, e.g., Gary L. Francione, Liberty, Equality and the Great Apes, LE MONDE DIPLOMATIQUE, February 2007;
Lee Hall & Anthony Jon Waters, From Property to Person: The Case of Evelyn Hart, 11 SETON HALL CONST.
L.J. 1 (2000); Donald G. McNeil, Jr., When Human Rights Extend To Nonhumans, N.Y. TIMES, July 13, 2008,
at 3.
Wesley J. Smith, Human Non-Person: Terri Schiavo, Bioethics and Our Future, NATIONAL REVIEW ONLINE, Mar.
29, 2005, http://www.nationalreview.com/smithw/smith200503290755.asp.
There have long been pitched battles over what the criteria for personhood should be (whether rationality, consciousness, sentience, capacity for autonomy), and then fights over which groups, in fact, fulfill
these criteria. The literature is vast. See Ngaire Naffine, Who are Law’s Persons? From Cheshire Cats to
Responsible Subjects, 66 MOD. L. REV. 346 (2003) (for a useful framework on differing conceptions of legal
personhood). See also Ngaire Naffine, Our Legal Lives as Men, Women and Persons, 24 LEG. STUD. 623 (2004)
(distinguishing between three models of personhood structuring the literature: what she calls P-1 (views
that “the legal person is pure abstraction . . . a necessary piece of legal artifice who comes into existence
because law must have a basic unit of analysis”); P-2 (maintaining that “legal personification entails the
recognition of the dignity that resides in a being a discrete and real individual human being”); and P-3
(regarding the person as “quintessentially, an intelligent and responsible subject, that is, a moral agent”).
Persons and citizens in constitutional thought
13
Clearly, these conceptual and definitional debates persist in large part because characterizing someone as a person is consequential: a great deal turns on the possession
of, or the assignment of, personhood. Debate regarding the question “Who is a person?”
is driven, in large part, by what assignment to the category of personhood does, both
expressively and practically. As John Dewey wrote in an essay about corporate legal
personality, the term “person” in the law “signifies what law makes it signify.” And
what it signifies is that the designee is, as Dewey puts it, a “right-and-duty-bearing
unit.”22 I prefer to say that, with assignment of personhood, the bearer is treated as a
subject entitled to rights and recognition.
Thus, while Bickel prefers personhood over citizenship because, as he puts it, the
former is “not granted,” in fact, personhood is a matter of grant. Like citizenship,
personhood is a historical and contingent political construct, whose scope and assignment are endlessly contested.
Still, Bickel is right to say that personhood is not easily taken away, at least not
outright. It is far easier to denationalize someone, one way or another, than to demote
her, once personhood has been acknowledged, to nonperson. Historically speaking,
the assignment of legal personhood seems to have proceeded largely in an expansive
direction, with subtractions from the category of already recognized cases from the
category rare. And notwithstanding all of the disputes over its threshold, there is,
today, a recognized core membership in the category of persons; at a minimum, conscious human beings are deemed to belong to the class. This appears fairly secure.
For those concerned with the rights of status noncitizens, this recognition has
been crucially important. It has meant, in the current climate of intense anxiety over
irregular immigration, that there is a range of arguments that remain basically off the
map in constitutional discourse.23 Twenty-seven years after Plyler v. Doe, the future
22
23
See Symposium, Living on the Edge: The Margins of Legal Personhood, 39 RUTGERS L.J. 237 (2008) (a recent
symposium on the issue of personhood’s boundaries). See, in particular, Kimberly Kessler Ferzan, Symposium Foreword, 39 RUTGERS L.J. 237 (2008) (“marginal” entities, including “the psychopath, the animal,
and the embryo or fetus . . . lie at the margins of our moral and legal communities. Prima facie, they have
some, but lack all, of the capacities necessary for full membership. Because they live on the edge, we must
question whether they may be held responsible and whether they have rights”). See also Ross Poole, On
Being A Person, 74 AUSTRALASIAN J. PHIL. 38 (1996).
John Dewey, The Historic Background of Corporate Legal Personality, 25 YALE L.J. 655 (1926). Dewey denies
that “there are properties which any unit must antecedently and inherently have in order to be a rightsand-duty bearing unit.” Id., at 657. Rather, he says, under a consequentialist and pragmatic definitional
approach, “any such unit would be a person.” In short, the term “person” “legally mean[s] whatever
the law makes it mean.” Id. at 655. See also Ngaire Naffine, Who are Law’s Persons? From Cheshire Cats
to Responsible Subjects, 66 MOD. L. REV. 346, 347 (2003) (“Perhaps the greatest political act of law is the
making of a legal person (simply put, he who can act in law)”).
Though, in light of the recent decision in Rasul by the D.C. Circuit, this is apparently not true in legal
discourse altogether. That court held that “because the plaintiffs are aliens and were located outside
sovereign United States territory at the time their alleged RFRA claim arose, they do not fall with the
definition of ‘person’” for purposes of RFRA. Rasul v. Myers, No. 06-5209, at 43 (D.C. Cir. Jan. 11, 2008),
available at http://www.ll.georgetown.edu/federal/judicial/dc/opinions/06opinions/06-5209a.pdf.
14
I•CON 8 (2010), 9–29
of such social rights as exist for undocumented immigrants is clearly at risk.24 Yet it
is almost unthinkable that the current Supreme Court would undo what the Plyler
court did, unanimously, when it explicitly recognized undocumented immigrants as
constitutional persons. “An alien is surely a ‘person’ in any ordinary sense of that
term,” Justice Brennan wrote. “Aliens, even aliens whose presence in this country is
unlawful, have long been recognized as ‘persons.’”25 The dissenting justices did not
contest this point.26
What is significant about the holding is that it says that unauthorized status under
the immigration laws, even if relevant to the ultimate policy question, simply does
not bear on the question of fundamental constitutional standing.27 The constitutional
personhood of aliens goes without saying, and to that extent could be described as
generally secure.28
On the other hand, there is more than one way to take something away. Personhood
may not be formally withdrawn, and yet it may be diminished in its effect, evaded,
effaced, diluted, displaced. This is the real risk to constitutional personhood for noncitizens and for some citizens, as well; not outright removal but depreciation—at times
specifically imposed by government and at others, perhaps, a function of the inherent
incompleteness of the category itself.
24
25
26
27
28
Although this was a statutory holding, the Court expressly stated that “RFRA’s use of ‘person’ should
be interpreted consistently with the Supreme Court’s interpretation of ‘person’ in the Fifth Amendment
and ‘people’ in the Fourth Amendment to exclude non-resident aliens.” Id. On the U.S. Supreme Court’s
interpretation of “the people” under the Fourth Amendment, and on the issue of territorial location and
its relationship to personhood, see infra text accompanying notes 58–70.
Since the mid-1990s, law and policy toward unauthorized immigrants in the United States have hardened substantially. See, e.g., Linda Bosniak, Opposing Prop. 187: Undocumented Immigrants and the National
Imagination, 28 CONN. L. REV. 555 (1996); Nicolas P. De Genova, Migrant `Illegality’ and Deportability in
Everyday Life, 31 ANN. REV. ANTHROPOLOGY 419 (2002).
Plyler v. Doe, 457 U.S. 202, 210 (1982).
Id. at 243 (Burger, CJ, dissenting) (“I have no quarrel with the conclusion that the Equal Protection
Clause of the Fourteenth Amendment applies to aliens”).
Constitutional representation is another matter. The Fourteenth Amendment of the U.S. Constitution
states: “Representatives shall be apportioned among the several States according to their respective
numbers, counting the whole number of persons in each State, excluding Indians not taxed.” U.S. CONST.
amend XIV. In debates over congressional apportionment, some argue that the term “person” should be
replaced by “citizen” so as to ensure that undocumented immigrants are not counted for congressional
representation purposes. See e.g., Rep. Candace Miller, More Illegal Immigrants, More Seats In Congress?,
AMERICAN RENAISSANCE, Sep. 11, 2007, available at http://www.amren.com/mtnews/archives/2007/
more_illegal_im_1.php. Note, however, that no one in this debate suggests that undocumented immigrants should not count as persons.
That is not to discount the rhetoric among virulent anti-immigrant activists, some of whom continue
to question the basic legal standing of the undocumented. (See e.g., Tom Deweese, The Attack of the
Alien Outlaws, American Policy Center, Sep. 17, 2003, available at http://www.americanpolicy.org/imm/
alienoutlaws.htm: “How do people who aren’t supposed to be in this nation get legal access to our taxpaid courts? Why aren’t they arrested and deported when they show up at the courthouse to file the suit?
Oh, that’s right, our politicians want their votes.”) It is simply to say that in dominant discourse, these
arguments no longer have directly translatable legal traction.
Persons and citizens in constitutional thought
15
3. Personhood, thin and thick
From one perspective, being a “person” in our constitutional system does not take
you very far. It is the de minimis subject location, the ground floor. Although in Plyler,
the immigrants were recognized as constitutional persons, “that only begins the
inquiry,” as Justice Brennan wrote. You are on the field, but your place in the game is
an entirely different matter. To be recognized as a person guarantees very little in the
way of substantive social protection, rights, and responsibilities, and it entails virtually no democratic voice at all. It is common in political theory to hear the claim that
citizenship is overly thin and formalistic, yet, arguably, personhood is far thinner and
more formal still.
For this reason, some have argued that personhood ought to be understood to mean
more: the fact of personhood (or the attribution of personhood or its recognition) ought
to bring with it more substantive entailments and protections, including protection of
basic material, educational, and affiliational needs.29
I am extremely sympathetic to the efforts to attach more substantive entailments to
personhood itself. Still, I think we can make the case that, its thinness notwithstanding, the formal recognition of constitutional personhood is deeply meaningful in some
respects. Compared to the alternative—with nonrecognition, being a constitutional
person represents a great deal. Texas, after all, maintained that unauthorized immigrants were not even recognizable legal subjects—that they were beyond the legal
pale, in effect, outlaws. Recognition of their status as persons means they are within
the pale, within the law, for purposes of basic functioning in contemporary liberal
society.
Notice, furthermore, that from a legal perspective, it is persons who engage in
the market; who participate in remunerated labor, who make contracts, consume
goods, own and transfer property who claim market rights, and are held accountable by market rules. It is persons who lead their lives in the domestic spheres, who
marry and divorce, procreate and recreate, and function as neighbors. It is persons,
as Justice Marshall reminded Texas in the oral arguments for Plyler, who receive
protection by the fire department and the police department and the garbage collectors.30 In short, it is their recognized personhood that allows immigrants, including
the undocumented, to construct and maintain relatively “ordinary lives” in their
29
30
Some argue that personhood should entail the fulfillment of “capabilities.” See, e.g., MARTHA NUSSBAUM,
FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 291 (Belknap Press 2006) (The capabilities
approach “emphasizes the affirmative tasks of the public sphere and the interdependence of liberty with
economic adequacy”).
(The last of these less often public today. . . .) It was Justice Marshall (I believe) who asked the state of
Texas in the oral argument in Plyler: “Could Texas deny [these immigrants] fire protection? . . . You are
talking about denying them all rights that every other similarly situated person has such as fire protection, police protection, garbage collection, things like that. You could take all those things away, it
seems to me, under the state’s argument.” OYEZ (U.S. Supreme Court Media), Plyler v. Doe, No. 80-1538,
http://www.oyez.org/cases/1980–1989/1981/1981_80_1538/argument/ (Note that the transcript
identifies the questioner only as “Unidentified Justice”).
16
I•CON 8 (2010), 9–29
societies of residence. Such lives give rise to the de facto social membership described
by many commentators as representing a sufficient basis for extending amnesty or
regularization.31
I do not want to overstate the point. The critic in me insists on emphasizing that
recognition of (“merely”) formal legal subject status can serve to mask profound
forms of economic and social domination and leave its assignees politically voiceless.
The problem, on this account, is not merely that personhood, as conventionally conceived, is overly thin, but also that assignment of personhood affords hollow freedoms
and thereby effects a kind of legitimizing fraud.
But the liberal in me is still inspired, sometimes moved. Recognition of immigrants’
personhood stands against earlier practices in this and other contexts of personhood’s
outright erasure or its deformation. From this vantage, the formal acknowledgment
of personhood represents not merely the triumph of contract over status but also of
humanization over objectification, social life over social death.32 Both symbolically
and materially, it is an essential condition of the repudiation of caste.
And yet: personhood represents less than some might wish for it, as a practical
matter, and may come to represent less still. This is due not to the imminent demotion to nonperson status of any group, nor merely to personhood’s inherent thinness,
nor even to its mystifications. It is a function, rather, of various forms of evasion and
devaluation through law, which, in the end, render personhood a radically incomplete status. While personhood is indispensable normatively, in other words, personhood per se often falls short, as a practical matter, of ensuring even baseline levels of
constitutional recognition and rights.
4. Evasions of personhood
Constitutional personhood is evaded and constrained in a variety of ways. A key form
of evasion, which I have explored at length elsewhere, derives from personhood’s complex imbrication with the nation’s immigration enforcement regime. As noted above,
the legal and social space created by legal personhood, especially in the case of the
undocumented, is very often undercut by the long and powerful reach of the government’s immigration enforcement authority (of “the border,” broadly conceived).
Frequently, the constraints of the border operate indirectly; they undercut personhood by way of the “ever-present threat of deportation”33, which makes immigrants
31
32
33
See, most recently, Joseph H. Carens, The Case For Amnesty: A Forum on Immigration, BOSTON REVIEW, May–
June 2009, and responses, available at http://bostonreview.net/BR34.3/carens.php.
On humanization over objectification, see PATRICIA WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 153 (Harvard
Univ. Press 1992) (arguing that recognition of the individual as a rights bearer “places one in the referential range of self and others, which elevates one’s status from human body to social being”). On social
life and social death, see GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE (Stanford Univ. Press
1998) (analyzing the divide between individuals enjoying status as political subjects and those reduced
by law to “bare life”).
MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENCE OF PLURALISM AND EQUALITY 58 (Basic Books 1983).
Persons and citizens in constitutional thought
17
unwilling to avail themselves of the rights they would otherwise enjoy as constitutional persons for fear of exposure to the immigration authorities. This chilling effect
illustrates the functional imperialism of the national border. The government’s immigration authority is exercised not only at the nation’s geographic threshold but also
throughout the interior (in an ever-expanding array of social domains);34 it is this
interior application that works to trump the rights of personhood in practical terms.
But the constraint the border imposes on personhood is entirely frontal and direct.35
In some settings, courts declare that the border supersedes the rights of the individual.
Within immigration law (in the immigrant admissions and removal settings), the rule
that government’s immigration power is “plenary” is the principal and best-known
mechanism. A good deal of the law on the rights of noncitizens outside the immigration sphere proper falls into this category as well.36 One striking, recent example is
provided by a federal district court decision denying judicial standing to unauthorized immigrants who sought to sue the state of Oklahoma, which had passed an antiimmigrant statute.37 The court declined to recognize their standing to sue on a theory
of “unclean hands.” While acknowledging that even unauthorized aliens possess a
constitutional right to access the courts, the court stated that for prudential reasons
it would decline to afford standing in this case.38 Had the immigrants sought to sue
on a matter “in no way related” to “their illegal status,” the court said, it would rule
otherwise.39 However, here “the underlying illegality is . . . directly, even causally,
related to the injuries the illegal alien Plaintiffs ask this Court to remedy.”40
What the district court did, here, is make an essential attribute of legal personhood—
the right to challenge one’s treatment under law—unavailable to a class of individuals
34
35
36
37
38
39
40
For example, the workplace, the public hospital, the landlord/tenant relationship, the Department of
Motor Vechicles. See Linda Bosniak, The Undocumented Immigrant: Contending Policy Approaches, in DEBATING
IMMIGRATION 85 (Carol Swain ed., Cambridge Univ. Press 2007) (for a discussion of the constitutive dispute
over the legitimate jurisdiction of “the border”).
Although rights associated with personhood have in some settings served to circumscribe the border’s
reach, (e.g., via provision of basic guarantees of due process in the deportation setting), very often the
imperatives of the border have been deemed to trump individual rights, including rights that are otherwise considered basic to the enjoyment of personhood. For general discussion, see BOSNIAK, supra note 3,
ch. 3.
Id.
The Oklahoma law, among other things, criminally penalizes landlords and employers for hiring/doing
business with undocumented immigrants and requires social-service providers to verify the immigration
status of benefits applicants. Oklahoma Taxpayer and Citizen Protection Act of 2007, OKLA. STAT. ANN.
tit. 21, § 446 (West 2007).
“These illegal alien Plaintiffs seek nothing more than to use this Court as a vehicle for their continued
unlawful presence in this country. To allow these Plaintiffs to do so would make this Court an ‘abetter
of iniquity,’ and this Court finds that simply unpalatable. . . . For these Plaintiffs, the remedy for their
alleged injuries is simple: act in accordance with federal law.” National Coalition of Latino Clergy v. Henry,
Order, Motion to Dismiss, Dec. 12, 2007, at 15–17.
The court cites as an example a tort claim for personal injury in an auto accident. Id. at 16 n.6.
Note that by this standard, the plaintiffs in Plyler would not have had standing to bring suit against the
Texas law that denied undocumented immigrants a free public education.
18
I•CON 8 (2010), 9–29
solely by virtue of their status under the nation’s border laws. This represents an aggressive deployment of the prudential standing doctrine, and it is one that is in tension with
the principle of inclusion embodied in Plyler’s personhood holding—though, again, it is
hardly unprecedented. The point is that personhood operates always—and increasingly,
given growing state and local involvement in immigration enforcement41—in the shadow
of the border, and has often found itself stunted as a result.42
However, the rights and recognition associated with constitutional personhood are
constrained under law in ways that go beyond the direct and indirect action of the
border. In what follows, I want to briefly highlight three constitutional constructs
that either represent or threaten significant evasions of personhood in the current
period. The first is territoriality, the second peoplehood, and the third enemy status.
5. Territoriality/personhood in space
Important as personhood was in the Plyler decision, it was not the fact of their personhood alone that allowed the undocumented immigrant children in that case to challenge the state of Texas under the Constitution. The Equal Protection Clause prohibits
states from denying equal protection of the laws to “persons within their jurisdiction.”
Texas had argued that, even conceding the undocumented are persons, they certainly
cannot be deemed to be “within the state’s jurisdiction” as a consequence of their
unlawful status.43 In response, the Court responded that “the Fourteenth Amendment
was designed to afford its protection to all within the boundaries of a State.” And,
the Court continued, whether we are speaking of the Due Process or Equal Protection
clauses (or, for that matter, the states or the federal government), “our cases reflect
this same territorial theme.” On this point, again, the justices were unanimous.
Like the personhood holding, this territorialist holding is a very powerful bastion
against caste. The U.S. Constitution prohibits treating people in our midst as beyond
the reach of law. Defenders of immigrants’ rights value this holding enormously and
make use of it all the time. We say that the fact the undocumented immigrants are
here, by itself, entitles them to significant constitutional rights and recognition. The
territoriality principle accords legal and ethical significance to “hereness,” appropriately focusing on the social fact of a person’s presence rather than on the legal formality of status to anchor basic constitutional recognition.44
41
42
43
44
For an overview of the issues, see Migration Policy Institute, National Center on Immigrant Integration Policy, State and Local Immigration Regulation, available at http://www.migrationinformation.org/
integration/regulation.cfm.
See generally Linda Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. REV.
1047 (1994); Bosniak, supra note 34.
“In appellants’ view, persons who have entered the United States illegally are not ‘within the jurisdiction’
of a State even if they are present within a State’s boundaries and subject to its laws.” Plyler, 457 U.S. at
211.
See Linda Bosniak, Being Here: Ethical Territoriality and the Rights of Immigrants, 8 THEORETICAL INQUIRIES IN
LAW 389 (2007).
Persons and citizens in constitutional thought
19
Moreover, we need to keep in mind that the territoriality commitment is incompletely recognized today. It is certainly less settled in American law than is the personhood commitment. Especially in the context of the birthright-citizenship debate,
we in the United States are forever having to fend off those who maintain that an
immigrant’s unauthorized presence takes him or her outside the scope of the government’s “jurisdiction” for the purposes of conveying citizenship under the Fourteenth
Amendment’s Citizenship Clause.45 In this context, it is essential to press for the legal
recognition of hereness.
Important as the territoriality principle is, though, it raises some concerns as well.
For one thing, while being present, territorially, has meant enjoyment of constitutional protections, the inverse is also currently true. At least for noncitizens, not being
present means being beyond the reach of the Constitution. The noncitizen who is
located abroad is concededly a person, but because she is not territorially present, she
cannot count on fundamental constitutional rights against territorial government
power. This is not just the negative inference of Plyler; it has been articulated directly
by the U.S. Supreme Court in the case of Johnson v. Eisentrager, where the Court said
that “in extending constitutional protections beyond the citizenry, the Court has been
at pains to point out that it was the alien’s presence within its territorial jurisdiction
that gave the Judiciary power to act.”46 To insist on the special significance of territorial presence, in short, subserves the view that nonpresence is significant as well.47
The question of the territorial scope of a constitution’s application is, today, a
pressing matter of legal policy about which many have commented.48 But these
policy debates are shaped by (usually unarticulated) normative questions about
why someone’s territorial presence or absence should make such a difference in
the nature or existence of constitutional protections in the first place. One might
well ask, Why should we be, fundamentally, a “territorial club?”49 What justifies
45
46
47
48
49
Some countries, including Ireland and New Zealand, have recently amended their constitutions to diminish the significance of territorial presence by denying automatic birthright citizenship to children born
in the country of out-of-status parents. Irish Nationality and Citizenship Act 2004 (Act No. 38/2004)
(Ir.), available at http://www.oireachtas.ie/documents/bills28/acts/2004/a3804.pdf; Cit. Amendment
Act 2005, 2005 S.N.Z. No. 43 (N.Z.). For discussion, see J.M. Mancini and Graham Finlay, “Citizenship
Matters”: Lessons from the Irish Citizenship Referendum, 60 AM. Q. 575, 575 (2008) (“In 2004, by constitutional referendum, Ireland revoked the automatic right to citizenship by territorial birth (jus soli). This
event is of great significance in Europe, where consequently there is no longer a single nation that grants
unrestricted territorial birthright citizenship to people born within its borders, and also represents a trend
toward the revocation of jus soli within nations governed by the common law tradition”).
Johnson v. Eisentrager, 339 U.S. 763 (1950).
Cf. Rasul v. Myers, No. 06-5209, at 43 (D.C. Cir. Jan. 11, 2008), available at http://www.ll.georgetown.edu/
federal/judicial/dc/opinions/06opinions/06-5209a.pdf (“because the plaintiffs are aliens and were
located outside sovereign United States territory at the time their alleged RFRA claim arose, they do not
fall with the definition of ‘person’” for purposes of RFRA).
For an excellent general discussion, see KAL RAUSTIALA, DOES THE CONSTITUTION FOLLOW THE FLAG? THE
EVOLUTION OF TERRITORIALITY IN UNITED STATES LAW (Oxford Univ. Press 2009).
“Patriotism is the demand of the territorial club for priority. . . . I go the whole hog for the territorial club.”
Oliver Wendell Holmes, Letter to Felix Frankfurter, March 27, 1917, in HOLMES AND FRANKFURTER: THEIR
CORRESPONDENCE, 1912–1934 70 (Robert M. Mennel & Christine L. Compson eds., New Hampshire Univ.
Press 1995).
20
I•CON 8 (2010), 9–29
granting ethical priority to those who happen to find themselves on this side of the
line rather than that side?50 These are questions that inevitably arise in a moment
of increasingly “deterritorialized” identities.51
For argument’s sake, however, let us concede that territorial presence should matter
constitutionally and ethically.52 Another difficulty with the requirement is the challenge of operationalizing it. How do we determine if someone is, in fact, territorially
here or not here, territorially in or out? The determination of territoriality is actually
subject to a great degree of manipulation.53 Among other things, governments
often seek to disclaim control over certain territories in order to disavow constitutional responsibility. Take Guantánamo, for example: Is Guantánamo territorially in
the United States? The U.S. government has tried to maintain that it is not within the
nation’s territory in order to support the claim that detainees held there are beyond
the reach of the Constitution.54 Likewise, Puerto Rico. Persons located in Puerto Rico
are regarded as in the nation territorially for many purposes (including subjection to
rule), and yet for others, the courts and Congress continue to treat them as located in
foreign space and, thus, not fully protected—or represented.55
It is also the case that the government will sometimes move people who are, in fact,
here to a place that is not here or deemed to be not here (whether through deportation
or via extraordinary renditions) in order to avoid the responsibilities that we understand
50
51
52
53
54
55
Bosniak, supra note 44.
The literature on deterritorialization is large. In my own work, I have considered some of it in Linda
Bosniak, Multiple Nationality and the Postnational Transformation of Citizenship, 42 VA. J. INT’L. L. 979
(2002).
Note that Neuman and others argue for extension of constitutional protection beyond national borders
in some circumstances but take the constitution’s application to all within the nation’s territory as given.
While territorialism is clearly constitutionally prescribed, it is a distinct and harder question to explain/
justify in purely normative terms why a person’s territorial presence alone should entail inclusion. For
discussion, see Bosniak, supra note 44.
Id.
Against the government’s contention that detainees at Guantánamo, as aliens located outside national
territory, could not avail themselves of the writ of habeas corpus, a Supreme Court majority concluded
in 2004 that Guantánamo “is in every practical respect a United States territory” and thus mandated
access. Rasul v. Bush, 542 U.S. 466, 487 (2004). See also Boumediene v. Bush, 128 S. Ct. 2229, 2248
(2008) (holding that as a matter of constitutional law, detainees at Guantánamo may pursue habeas
corpus claims in U.S. courts notwithstanding statutory habeas stripping provisions, at least in part on
grounds that Guantánamo, while not within the U.S., is subject to its “total military and civil control”).
As the Court wrote in Boumediene: “Guantanamo is not formally part of the United States. . . . [Yet t]
he United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. [The Court rejects] the Government’s argument that, at least as applied to
noncitizens, the Constitution necessarily stops where de jure sovereignty ends.” Id. at 2251–2253. For
a critical pre-9/11 discussion of the deployment of Guantánamo as an extralegal holding space for refugees, see Gerald Neuman, Anomalous Zones, 48 STAN. L. REV. 1197 (1996).
See CHRISTINA DUFFY BURNETT & BURKE MARSHALL, FOREIGN IN A DOMESTIC SENSE: PUERTO RICO, AMERICAN EXPANSION
AND THE CONSTITUTION (Duke Univ. Press 2001).
Persons and citizens in constitutional thought
21
to attach to hereness. 56 Additionally, many states, including the U.S., have created
confounding legal fictions whereby certain geographic spaces are treated as outside
the territory for immigration purposes only.57 The point is that, whether through
recasting of territorial boundaries or rearrangement of persons in space, territoriality
is subject to a great deal of transmutation.
There is, finally, the fact that access to territorial presence—to being here—is itself
a limited commodity. Restrictions on foreigners’ entry and presence render it so. Thus,
even if we concede that territorial presence should matter for a subject’s assignment
of constitutional status, all kinds of fundamental questions remain regarding who, in
the first place, may remain here, how decisions concerning this matter are made, and
whether they are defensible.
The broader point for the moment, however, is that it is actually not personhood
alone that grants someone constitutional subject status in our constitutional system;
it is personhood-plus-territorial presence. And while territoriality can be protective in
some circumstances, it can work against the interests of those who happen to be on
the other side of the territorial line, and that line is, in any event, highly manipulable.
6. Peoplehood/personhood in community
Let us assume a situation in which we have no claimed locational shortfall; the individual in question is recognized as situated within the constitutional space. It may still
be the case that her personhood will fail to protect her from what we usually regard
as fundamental abuses of power. In some constitutional narratives, only persons who
are specifically deemed part of the national political collectivity—parties to the social
contract—are recognized as constitutional subjects.
In 1990, the U.S. Supreme Court wrote, in a case called United States v. VerdugoUrquidez, that the Constitution’s protections of “the people” and its protection of persons are not coextensive.58 “The people,” the Court said, refers to a narrower class of
protected subjects than persons. According to the plurality:
56
57
58
As described by the A.C.L.U., “Beginning in the early 1990s and continuing to this day, the Central Intelligence Agency, together with other U.S. government agencies, has utilized an intelligence-gathering
program involving the transfer of foreign nationals suspected of involvement in terrorism to detention
and interrogation in countries where—in the CIA’s view—federal and international legal safeguards do
not apply.” American Civil Liberties Union, Fact Sheet: Extraordinary Rendition, Dec. 6, 2005, available
at http://www.aclu.org/safefree/extraordinaryrendition/22203res20051206.html. Rendition is practiced by other countries as well. See Thalif Deen, RIGHTS: U.N. Blasts Practice of Outsourcing Torture,
INTER PRESS SERVICE NEWS AGENCY, Nov. 9, 2005, http://www.ipsnews.net/news.asp?idnews = 30949.
See generally Ayelet Shachar, The Shifting Border of Immigration Regulation, 30 MICH. J. INT’L L. 809,
811 (2009) (discussing territorial fictions employed in immigration regulation regime in the U.S. and in
“other leading immigrant destination countries”).
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
22
I•CON 8 (2010), 9–29
“The people” protected by the Fourth Amendment, and by the First and Second Amendments,
and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a
class of persons who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that community.59
This is a view of the “people” as distinct from “persons,” who, the decision suggests,
are simply human beings, irrespective of any relationship to the political community
they might have.
Verdugo concerns the availability of Fourth Amendment protections against unreasonable searches and seizures to a Mexican national arrested by U.S. officials in Mexico.
However, the decision has express relevance to the constitutional status of unauthorized immigrants. The Court states in dictum that while undocumented immigrants
may be persons for purposes of constitutional protection (and while, unlike Verdugo
himself, they are certainly here), it is not at all clear that they are part of “the people.”
Thus, the Court specifically leaves the question whether they would be protected by
the Fourth Amendment to later determination.
What this decision purports to do is to introduce a new element into the hierarchy of constitutional subjects that theorists like Bickel had presumed. It seeks to
add to the traditional personhood–citizenship binary an additional category—
constitutional persons not part of “the people”—from which certain individuals might
come to be excluded. The import of this move extends beyond the Fourth Amendment to encompass invocations of “we the people” more broadly.60 This is a construct
deployed by many theorists and advocates on both the right and the left to express a
republican, social-contractarian conception of rights and belonging in non-citizenship–
specific language. To the extent it is “we the people,” rather than we persons, who
constitute legal subjects, some will be left outside.
As a matter of constitutional interpretation, the Verdugo Court arguably has it
wrong in textual and historical terms. On its face, it is not immediately obvious that
“peoplehood” must represent a constitutional status distinct from either personhood
or citizenship. For example, the idea of “the people” need not be narrower than that
of “persons”; it might well be read simply as the plural of persons61 or as “everyone in
the country.”62 For example, Frederick Douglass read “we the people” to mean “we
59
60
61
62
Id. at 265.
Reference to “the people” in the U.S. Constitution’s Second Amendment (“A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be
infringed.”) raises parallel issues. U.S. CONST. amend II. See Pratheepan Gulasekraram, Aliens With Guns:
Equal Protection, Federal Power, and the Second Amendment, 92 IOWA L. REV. 103 (2007).
“[T]he term ‘the people’ is better understood as a rhetorical counterpoint to ‘the government,’ such
that rights that were reserved to ‘the people’ were to protect all those subject to ‘the government.’”
Verdugo-Urquidez, 494 U.S. at 287 (Brennan, J., dissenting).
“I cannot place any weight on the reference to ‘the people’ in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given
the history of our Nation’s concern over warrantless and unreasonable searches, explicit recognition of
‘the right of the people’ to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.” Id. at 276 (Kennedy, J.,
concurring).
Persons and citizens in constitutional thought
23
the human inhabitants.”63 And even granting that “we the people” signals something beyond shared territory or inhabitance—some kind of social contractarian
or collectivist-based notion of belonging—it is still the case that the body of “the people” could be comprised of, say, everybody participating in the national society
and subject to national law. In this context, common residence in the territory would
serve as the binding element of the collective body, and, as such, most undocumented
immigrants would be included.64
On the other hand, recall that in Dred Scott, the Supreme Court read “[t]he words
‘people of the United States’ and ‘citizens’ [as] synonymous terms, [which] mean the
same thing. They both describe the political body who, according to our republican
institutions, form the sovereignty. . . .”65 Treating “the people” as interchangeable
with “the citizens” remains common; indeed, many courts unthinkingly substitute
one category for the other in cases involving the Fourth Amendment (as in “it would
be foolish to contend that the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of technology”).66
However, it is the plurality opinion in Verdugo that represents the most detailed
examination of the relationship between “persons” and “the people” in any authoritative constitutional pronouncement thus far. And unconvincing or not,67 the Court
does expressly construe “the people” to refer to a “limited class of members.” Justice
Rehnquist declines to specify who, precisely, qualifies for this class, other than to
63
64
65
66
67
“Its language is ‘we the people’; not we the white people, not even we the citizens, not we the privileged
class, not we the high, not we the low, but we the people; not we the horses, sheep, and swine, and wheelbarrows, but we the people, we the human inhabitants. . . .” Frederick Douglass, The Constitution of the
United States: Is it Pro-Slavery or Anti-Slavery (Mar. 26, 1860), available at http://teachingamericanhis
tory.org/library/index.asp?document = 1128 . Note, however, that “inhabitance” is an intrinsically territorial notion.
It is this kind of reading that Jamie Raskin employs when he invokes “we the people” as a political value
undergirding the extension of voting rights for the undocumented. The “We the people” of his essay
functions as a critique of exclusionary understandings of membership based on possession of status citizenship (although, again, his peoplehood is territorialist; indeed, Raskin grounds his argument for inclusion of immigrants in “politics of presence”). Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical,
Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PENN. L. REV. 1391 (1993).
Dred Scott v. Sanford, 60 U.S. 393 (1857).
Kyllo v. United States, 533 U.S. 27, 33–34 (2001). For a thorough discussion of this kind of rhetorical
substitution, including in the Kyllo case, see M. Isabel Medina, Exploring the Use of the Word “Citizen” in
Writings on the Fourth Amendment, 83 IND. L.J. 1557 (2008).
For critical appraisals, see, e.g., Gerald Neuman, Whose Constitution? 100 YALE L.J. 909 (2000); Victor
Romero, Whatever Happened To the Fourth Amendment? Undocumented Immigrants’ Rights After INS v.
Lopez-Mendoza and United States v. Verdugo-Urquidez, 65 S. CAL. L. REV. 999 (1992). I would note in
a textual/historical mode that the choice of the term “the people” in the Fourth Amendment served to
avoid the rhetorically infelicitous prospect of a guarantee in the first clause that read “the right of persons
to be secure in their persons. . . .” (Or, differently put, it cleared the way for use of the term “person” for
“body”). See Verdugo-Urquidez, 494 U.S. at 287 n. 9 (Brennan, J., dissenting) (“The majority’s suggestion
that the Drafters could have used “person” ignores the fact that the Fourth Amendment then would have
begun quite awkwardly: “The right of persons to be secure in their persons . . .”).
24
I•CON 8 (2010), 9–29
say that members must “[be] . . . in the United States voluntarily68 and . . . [accept]
some societal obligations.”69 However precisely the class of “the people” is ultimately
defined in relation to persons, the decision seeks to drive a rhetorical wedge between
the two subject positions. This wedge has been utilized in subsequent cases on the
rights of undocumented noncitizens to effect their constitutional exclusion. Since
Verdugo, several lower court decisions have held, in the Fourth Amendment context,
that undocumented immigrants cannot claim Fourth Amendment protections. In one
Utah decision, for example, the federal district court denied a motion to suppress in a
criminal case on grounds that, by virtue of his unauthorized immigration status, the
defendant cannot be “one of ‘the people’ the [Fourth] Amendment protects.”70
Of course, with any ascendance of “the people” as the prime constitutional subject—
at least where the term is narrowly understood—constitutional personhood will correspondingly count for less.
7. Personhood in war and emergency
A third setting for evasion, or even effacement, of personhood—about which I will
be especially brief—occurs in times of national emergency or war. In the last several
years, the United States has been engaged in what it characterizes as a “war on terror,”
which it has executed in the domestic as well as international arenas. With this has
come a series of enforcement practices that compromise not only the rights of many
individuals but their identity as legal subjects. I have already mentioned extraordinary rendition; this is evasion through territorial ejection.
However, sometimes even those acknowledged to be inside the territory find
their personhood diminished through the imposition of rules produced by “states
of exception.”71 The designation of certain individuals as enemy combatants, for
instance, allows for their incarceration without trial based on secret evidence; their
consignment to remote penal colonies for years on end; and their processing, if at all,
before military tribunals—as well as for interrogation practices widely recognized as
torture. The result is degradation, if not erasure, of the legal identity of persons subject
68
69
70
71
On “voluntary” presence as precondition for membership in social contract, see Dred Scott.
As noted earlier, the opinion leaves the question of undocumented immigrants’ inclusion unresolved.
Note that in dissent in Verdugo-Urquidez, Stevens, J. argued that “the people” should be read to include, at
the least, anyone “lawfully” in the United States. Verdugo-Urquidez, 494 U.S. at 279.
United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, 1255 (D. Utah 2003), aff’d on other grounds,
386 F. 3d 953 (10th Cir. 2004).
The term is Carl Schmidt’s. See CARL SCHMIDT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE THEORY OF SOVEREIGNTY
(George Schwab trans., MIT Press 1985) (1934). Giorgio Agamben has developed the concept extensively in recent years. See especially GIORGIO AGAMBEN, STATE OF EXCEPTION (Kevin Attell trans., Univ. Chicago
Press 2004). Agamben explores, among other things, the difficulty of characterizing states of exception
as legal or extralegal states.
Persons and citizens in constitutional thought
25
to law.72 Moreover, in self-reinforcing fashion, the regime has ensured that those so
designated are unable to contest the proceedings that define them as legal nonpersons
in the first place. The individual has been reduced to “bare life” in Giorgio Agamben’s
phrase73—a status iconically represented in the post-9/11 public imagination by the
caged and hooded prisoners at Guantánamo Bay.
Note that in this setting of national emergency, the individuals affected have not
been stripped of personhood in any direct way.74 Rather, the exigencies of the emergency are viewed as justifying a departure from what is understood to be the usual
rule of respect for basic legal personhood—though certainly the effect of the departure
is to render those so treated as legal “unpersons” in various respects.75
By now there is a voluminous literature on the state of exception in the post 9/11
period. I would underline simply that the “exception,” in this context, is not merely an
exception to the rule of law or to constitutionalism but also to the law’s construction
of the individual who is its regulatory object. War and emergency create a circumstance under which abandonment of standard legal norms appears essential; in this
setting, legal personhood no longer serves as a default counterweight to government
authority. Instead, it becomes a privilege whose suspension for some may be deemed
existentially justified.76
8. Personhood in context
Each of these legal evasions of personhood—via territoriality, peoplehood, and
emergency—empties personhood of some of its value and some of its power. The
person who is said not to be here, the person who is deemed insufficiently connected
with the nation, the person characterized as an enemy, finds that personhood
does not mean so much. Personhood is not directly and formally stripped away, as
nationality can be. Still, these evasions effectively do the same work. But in light of
these evasions, we might respond to Bickel that one does not have to declare someone a constitutional nonperson formally to make her a lesser constitutional subject;
one simply has to make personhood itself count for less.
It is probably clear that I approach these diminutions of personhood critically. My
critique is grounded in a general opposition to social exclusion and erasure through
72
73
74
75
76
For a rich and sobering account of the “dehumanization” wrought by the assignment of enemy combatant status and incarceration of those so designated at Guantánamo, see Muneer I. Ahmad, Resisting
Guantanamo: Rights at the Brink of Dehumanization, American University, WCL Research Paper No. 08-65
(2009), available at SSRN: http://ssrn.com/abstract = 1268422.
AGAMBEN, supra note 71.
But see Ahmad, who argues that the Guantánamo regime not only denies the detainees rights but also
humanity. Ahmad, supra note 72.
GEORGE ORWELL, NINETEEN EIGHTY-FOUR (HARCOURT BRACE, 1949) (“unpersons”). See also Gene Healey,
Jose Padilla: Constitutional Unperson?, MIAMI HERALD, Sept. 24, 2005, available at http://www.cato.
org/pub_display.php?pub_id = 5043.
AGAMBEN, supra note 71; Ahmad, supra note 72.
26
I•CON 8 (2010), 9–29
law. Yet I also recognize that some qualifications of personhood may be inevitable.
Perhaps the rights of personhood simpliciter are incomplete, ultimately. Some will
argue that personhood requires context to be fully actualized; namely, a context that
takes place in some physical space, that entails a relationship among some collective
of persons, and that ensures basic security for the context itself. On this account, we
may disagree about the way in which each parameter of the context is managed by
the state—about opportunistic manipulations of space and people in it, about stingy
framings of the community’s boundaries, about paranoiac overreachings of the
national security apparatus. However, the problem would then lie in execution rather
in principle.
There is something compelling about these arguments. Without context, the person per se appears to be the kind of deracinated self that critics of cosmopolitanism
deplore—an abstract and atomistic monad. We know, by now, that this kind of ontological atomism fails to reflect the embedded realities of social life,77 and I generally
agree that an individualist ethics can be normatively unattractive as well.78
Moreover, there remains a crucial practical point about the limits of personhood
rights. Even if recognized formally as inhering in the human individual, what good
are such rights when there is no sovereign body to enforce them?79 In the absence of
globally enforceable legal protections for persons (discussions of which implicate endlessly difficult questions about intervention, imperialism, and community autonomy),
rights norms associated with the person remain weak. To this extent, personhood’s
purported subjects do remain substantially “naked” in the Arendtian sense80—which
is why, some would argue, we need to locate personhood protections within the shelter of some form of collective peoplehood and/or in some specific physical place. We
need, in short, to instantiate personhood in a social and political context.
Finally and crucially, the discussion here concerns personhood not merely at the
level of general normative political theory but in the setting of constitutionalism as
well; the subject is constitutional personhood. And since a constitution is—after all—a
charter that derives from and binds a particular political community, we might say
77
78
79
80
CHARLES TAYLOR, Atomism, in PHILOSOPHICAL PAPERS: VOLUME 2, PHILOSOPHY AND THE HUMAN SCIENCES 187
(Cambridge Univ. Press 1985); MICHAEL SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (Cambridge Univ. Press,
1982).
Charles Taylor, Cross-Purposes: The Liberal-Communitarian Debate, in LIBERALISM AND THE MORAL LIFE 159
(Nancy L. Rosenblum ed., Harvard Univ. Press 1989) (distinguishing between “ontological” and
“advocacy”-based critiques of individualism. The ontological critique maintains “the impossibility of
atomist society.” The advocacy-based critique urges the superiority of solidarist over atomistic social arrangements).
True, there is growing an international human rights regime, and it has yielded real advances—
normatively throughout much of the world and practically in certain settings, especially in Europe. But
it remains true that when we look at Darfur or Gaza and lots of other places, there is not so much to show
for it.
Hannah Arendt famously wrote that “the right to have rights” inheres in national citizenship rather than
the “nakedness” of humanity. HANNAH ARENDT, ORIGINS OF TOTALITARIANISM (Harcourt, Brace 1951).
Persons and citizens in constitutional thought
27
that constitutional personhood entails an inherently context-situated conception
of personhood, with the context that of the political and social world of a particular
state.
I acknowledge the force of each of these points (though there is, of course, much
more to say about each). Still, I want to insist that constitutional personhood can and
should have more universalizing power than its various mitigators would wish for
it. For one thing, acknowledging the essential requirement of context only takes us
so far, because it leaves us with questions about what the scope of this context is and
about how someone obtains access to it. Who is counted as being “in the context”?
How does one get in, and how and by whom are such decisions made? Whether beingwithin-the-context is understood in terms of legal status (an approach I reject, as
would Bickel) or in territorial terms (better),81 or in situational terms (best; for which,
see below), determining the context’s scope itself implicates questions of power and
justice. And these are questions on which the rights of constitutional personhood bear
directly. Very often, a claim of constitutional personhood is precisely a claim to be
counted or recognized as part of the context.82 (Correspondingly, these claims and their
associated struggles inevitably serve to transform the context itself).
How, then, does one become part of the constitutional context? At times, doing so
might mean physically moving from the territorial outside to the territorial inside—
and here, all of the debates over national border restrictions are implicated. Alternatively, it might entail successfully pressing for recognition of places as inside that had
previously been designated as not-in.
However, there are ways to press the universalizing power of personhood further
while continuing to acknowledge some demands of context. It seems to me that constitutional context can and should be situational and, therefore, potentially beyond
territory. We might, for instance, agree to recognize an individual’s constitutional
personhood in all those situations, wherever they arise, where substantial power
of the state in question is exercised. After all, as Justice Brennan pointed out in his
dissent in Verdugo, an individual subject to this power, wherever located, “becomes,
quite literally, one of the governed.”83 At stake is the constitutional principle Justice
81
82
83
Bosniak, supra note 44.
Cf, Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1879, 1986–87
(“The rights tradition in this country sustains the call that makes those in power at least listen. . . . [The
claim entails] a plea for recognition of membership in a community shared by applicant and judge, much
as reader and author claim the same text”). See also Ahmad, supra note 72 (invoking rights is invocation
of claim to recognition: “I am here”).
Verdugo-Urquidez, 494 U.S. at 284.
28
I•CON 8 (2010), 9–29
Brennan called “mutuality,” whereby exercise of power correspondingly entails constitutional responsibility to those affected.84
Yet I would add to the argument in one key respect.85 Most discussions of the
“mutuality of obligation” approach assume that the constitutional context extends
extraterritorially only where the government has acted affirmatively and directly.
But, it seems to me essential—in line with many powerful critiques of the stateaction doctrine in domestic settings—to recognize the existence of constitutional context where state power is exercised indirectly or passively. Thus, where the state acts
via private surrogates (for example, through the “privatization of torture”),86 where
it facilitates harm by third parties (through, for example, extraordinary rendition),87
and where the state’s inaction itself causes harm, then constitutional responsibility
must still attach. Thus, in the U.S. context, the “American power” whose exercise triggers the constitutional context would be not only the power to make things happen—
whether directly or through delegation—but also failure to protect.88 Of course, determining the threshold of the “substantiality” of government power would have to be
addressed, as would many other line-drawing issues.
84
85
86
87
88
See id. at 294 (Brennan, J., dissenting), citing, among other things, Reid v. Covert, 354 U.S. 1, 5-6 (1957)
(“The United States is entirely a creature of the Constitution. Its power and authority have no other
source. It can only act in accordance with all the limitations imposed by the Constitution”). Note that in
Verdugo, Justice Brennan states merely that we are required to extend constitutional protections to individuals on whom we impose legal obligation. (“If we expect aliens to obey our laws, aliens should be able
to expect that we will obey our Constitution when we investigate, prosecute, and punish them.” Id. at
284.) He does not go so far (as I do) as to say that U.S. constitutional protections are necessary wherever
U.S. government power is exercised. For extensive discussion of “the mutuality of obligation” approach,
see GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW (Princeton
Univ. Press 1996).
Under Neuman’s approach, the constitutional context extends beyond national territory only where “the
nation attempts to exact obedience to its laws” abroad. NEUMAN, supra note 84, at 109. This tracks Justice
Brennan’s formulation of mutuality, as discussed in the previous footnote. I would rather say that the
constitutional context should be understood to extend to those circumstances where the nation imposes
its will abroad, whether or not it seeks to exact legal obedience. On the other hand, since I am conceding
the demands of context, I am not here advocating what Neuman describes as the “universalist” approach
to extraterritorial application of the constitution, pursuant to which the constitution would be deemed to
“restrict all government action against all persons in all places” (id. at 111)—although I also would say
that universalist impulses are intrinsic to the idea of “personhood.”
See, e.g., Laura Dickinson, Accountability of Private Security Contractors under International and Domestic Law, ASIL Insights, Volume 11, Issue 31, Dec. 26, 2007, available at http://www.asil.org/
insights071226.cfm.
Robert M. Chesney, Leaving Guantanamo: The Law of International Detainee Transfers, 40 U. RICH. L. REV.
657, 739–744 (2006) (examining applicability of state-created danger rule to Guantánamo detention
setting).
Failure to protect is not currently recognized as constitutionally a cognizable state action under
United States law. The central authority standing for this proposition is DeShaney v. Winnebago City
Social Services Dept., 489 U.S. 189 (1988). For critical discussion, see e.g., LOUIS MICHAEL SEIDMAN & MARK
V. TUSHNET, REMNANTS OF BELIEF (Oxford Univ. Press, 1996).
Persons and citizens in constitutional thought
29
In principle, this conception of a situationally-based constitutional personhood
would take us beyond the constraints of territorial presence and Verdugoian peoplehood, while still acknowledging some of the context-seeking impulses animating
each: that is, the desire to ground constitutional rights and recognition in relationships, social ties, mutual influences, and imbrications. It is just that the conventional
geographic and conceptual frames for these would be loosened. Such an approach
would continue to bear national context in mind and, to this extent, would not entail
treating the commitment to constitutional personhood as identical with a commitment to ethical universalism.
Nevertheless, I will conclude by suggesting that constitutional personhood’s wagon
is hitched inevitably to ethical universalism, at least in the long run. The very idea of
personhood in liberal-egalitarian thought is ethically expansive. Questions about who
is a person and what personhood entails are endlessly contested, but over time the idea
has swept in more beings and more ways of being (yes, a progress narrative).89 The
idea of personhood tends to want to make itself count for more, and it has generally
been successful in doing so. And this is so because, while it is context-dependent and
context-enabled, the idea of personhood also contains the normative and rhetorical
resources to challenge every context in which it is situated—including the national
constitutional context itself.
89
I do not mean to say that every extension of the concept is normatively desirable. My point here is descriptive
and historical.