an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
“It has always been easier, it always will be easier, to think of someone as a noncitizen than to decide he is a nonperson.” – Alexander Bickel
“We asked for workers and people came.” –Max Frisch
“Under no circumstances can an American citizen be tried in a military commission.” –Senator Lindsay Graham
There is something humiliating about having to argue that your client is a person. And yet, for those of us who represent noncitizens, we are forced to argue personhood all the time. This is true of lawyers representing prisoners at Guantánamo, where dehumanization was both a means and an end, but it is also true in the representation of immigrants in the United States, where the definitional exclusion from citizenship forces us into the realm of personhood. In both instances, even as we argue personhood, we do so in citizenship’s shadow. This is because instead of being independent sources of rights, citizenship and personhood are tethered. As we look toward 2020, we need to consider what citizenship will mean then. I want to suggest that neither constitutional citizenship, as Bruce Ackerman argues for in his chapter and elsewhere, nor personhood, advocated in this volume by Rachel Moran and David Cole, is by itself sufficient to address the inequalities now afflicting noncitizens in the United States. Instead, we might think of personhood as a strategy that, in both success and defeat, leads to a newly imagined American citizenship.
It is a commonplace to say that in this age of globalization, traditional notions of citizenship are under strain, as the growth of transnational and supranational institutions, phenomena, and practices, has spawned new forms of citizenship and new citizenship practices. But in the U.S. we have seen a reassertion of citizenship, especially after the September 11th attacks, but even before. Curiously, a citizenship move is now being made from both the right and the left: from the right, a post-9/11 nationalist, citizenship exceptionalism, and from the left, a call to a reinvigorated constitutional citizenship as a touchstone for progressive politics. In response to both of these moves, yet another segment of the left has urged the embrace of constitutional personhood as a more inclusive approach than the citizenship turn.
Citizenship on the Right
The citizenship move from the right should not be underestimated. The national security framework of post-9/11 America provided a ready response to globalization’s pressures on state sovereignty, and a rationale for a resurgent citizenship. This is clearest in the context of Guantánamo, an exercise in extraordinary state violence that was, and continues to be, reserved for noncitizens. The political commitment to a two-tiered system of rights, with citizenship as the dividing line, carried over from the Executive (whose Presidential Military Order purported to authorize the detention of “enemy combatants”) to the Congress, which, in its passage of the Military Commissions Act of 2006, attempted to strip habeas rights of only noncitizen “enemy combatants,” and to authorize a military commission system reserved only for noncitizens. Although the Supreme Court rejected the habeas-stripping provisions as unconstitutional in Boumediene v. Bush, the military commissions continue (albeit in suspended form) for noncitizens alone, while citizens are unquestionably entitled to the full panoply of rights and protections of a regular trial in federal court.
We know that law is broadcast and not telegraphed. As such, the doctrinal citizen/noncitizen divide at Guantánamo has not been limited to the island camps, but instead bleeds into political and cultural understandings in the territorial United States, creating or reinforcing vulnerabilities among immigrant communities here. This is especially true among Arab, Muslim, and South Asian communities. The dehumanization of Arabs, Muslims, and South Asians at Guantánamo necessarily has a spillover effect on the personhood status of these communities here.
Citizenship on the Left
It is in this political context that the citizenship vs. personhood debate on the left must be considered. Guantánamo aside, we know that, as a historical matter, citizenship has been a tool of exclusion as often as a conceptual source of rights; black subordination, racial regulation of other non-white populations, and the exclusion of women have all been achieved in part through citizenship practices, as have colonial rule and expropriation. And yet, this dark history notwithstanding, citizenship retains a shiny appeal as an instrument of emancipation. As a matter of rhetoric, but also in practice, the promise of citizenship, or more accurately, of full citizenship, features centrally in the liberal democratic project.
I am skeptical of the citizenship turn because of its inherent limitations as applied to noncitizens. As Linda Bosniak has shown, the paradox of citizenship is not merely that, as demonstrated by history, it lacks political valance. Rather, citizenship is constitutively ambivalent, or perhaps more accurately, bivalent. By its very nature, citizenship offers the promise of inclusion through the practice of exclusion, the composition of a coherent “us” through the rebuffing (or expelling) of the “them.” Given this structural contradiction, we must question whether the emancipatory potential of citizenship isn’t forever delimited by its exclusionary edge.
And yet, as a practical matter, arguing the personhood of immigrants often implicates citizenship. This brings me back to the work of immigrants’ rights advocates. Precisely because citizenship is unavailable to our clients, in much of our work we are trying to assert personhood-based rights. When we bring cases on behalf of immigrant workers who have been cheated out of their wages, we often argue explicitly that their citizenship status is irrelevant, which, implicitly, is an argument that their entitlement to wage protections derives from their personhood. When we seek to have evidence excluded in immigration court because of Fourth Amendment violations by immigration agents, we are asserting that immigrants are part of “the people”—the polity. When we bring habeas corpus suits to gain the release of immigrants from prolonged detention, or when we argue that due process requires the appointment of counsel for a mentally ill respondent in deportation proceedings, we are, once more, arguing personhood.
Sadly, in the contemporary moment, and throughout much of American history, asserting the personhood of immigrants has been both a legal and a factual argument. We claim the legal protection of personhood, but must demonstrate the factual reality of personhood because of a pervasive culture of dehumanization of immigrants. To put it more bluntly, we argue that our clients are people, because so much of our politics and culture argues that they are not. Guantánamo is the extreme example here, but there are innumerable instances of the dehumanization of Latinos for decades.
Personhood’s Voice, Citizenship’s Language
As a matter of advocacy, then, many immigrants’ rights advocates feel compelled to perform their clients’ personhood in order to secure the rights that come with it. Often times, this is done in the language of citizenship, even though as a doctrinal matter, citizenship is irrelevant. Thus, the narrative frame of the case emphasizes that the clients are hard-working, involved in civic organizations in their community, go to church, pay their taxes, provide financial and social support to family and friends, and have no criminal record. By this account, they are model citizens in every way but for status citizenship. Indeed, not only are the clients made out to conform to social citizenship norms, they over-conform, performing a kind of super-citizenship that is neither expected nor typical of the status citizen.
On one level, the lawyering choices I am describing merely reflect the common practice of constructing sympathetic clients. But when it comes to representing noncitizens, the construction of the sympathetic client necessarily sounds in citizenship. Indeed, the claim to rights is, as Martha Minow has argued, an insistence upon shared membership in a common community. When that claim to membership is made by a noncitizen, it necessarily echoes citizenship as the paradigm of membership in the nation.
This suggests a hidden work that status citizenship may do in the exercise of rights. For most status citizens, citizenship certifies the rights-claimant as worthy of her rights. This is Arendt’s conception of citizenship as the right to have rights: it is the political right to have legal rights. Status citizenship is an unimpeachable, dispositive document of political legitimacy, and therefore, of rights-bearing. It has a talismanic quality, ending before it can begin any question as to whether the subject is rights-bearing.To assert status citizenship is to establish irrebuttably one’s rights entitlement. This is a kind of work that, in the current moment, personhood simply cannot do.
The performative claim is not that the immigrant has rights based on personhood, but on an idealized version of the life that the rights certified by status citizenship are intended to enable. The lawyering approach here bears a similarity to the framework of “earned citizenship” that has come to prevail in the most recent efforts at comprehensive immigration reform. In both cases, the argument is that the noncitizen is entitled not just to rights, but the free exercise of rights, because of the behavioral similarity they bear to status citizens; by this argument, the immigrant is sufficiently citizen-like so as to justify closing the rights gap between them. Thus, even when asserting seemingly personhood-based rights, status citizenship remains the point the reference. The exercise of rights by immigrants, then, is still tethered to status citizenship, as the narrative prerequisite for rights resides in a projection of the life of a rights-bearing status citizen.
If, in order to prevail in the exercise of a putatively personhood-based right, one must mimic (and simultaneously, outperform) the imagined life of the status citizen, then we cannot fairly say that personhood exists as a source of rights independent of citizenship. The absence of noncitizens’ status citizenship haunts the client’s personhood claims, such that personhood is, paradoxically, read through the lens of citizenship. Citizenship becomes the hallmark of personhood, the constructed defining the natural, and robbing personhood of its universalist claims. The dilemma, then, is for practitioner and theoretician alike, to conjure a notion of personhood-based rights that is meaningful in a world in which status citizenship, and in particular, its exclusionary edge, remains deeply salient.
Rather than force a reconciliation of these structurally irreconcilable features of citizenship, perhaps we should welcome their contradictions. While the lawyering burden of performing a client’s social citizenship may undermine the integrity of personhood as a source of rights, it also undermines status citizenship by calling the question of why someone so citizen-like may enjoy only some and not all of the rights of the status citizen. Perhaps, then, it is not that a continued or expanded development of personhood-based rights will overcome the exclusionary boundaries of status citizenship, but instead will so profoundly reinforce those boundaries, and bring them into such sharp relief, as to make them untenable. The logic of citizenship’s exclusionary edge would be temporarily disproved, thus necessitating a renegotiation of boundaries.
This is one way of understanding the language of “earned citizenship” that has prevailed among many advocates of comprehensive immigration reform. By performing the noncitizen’s citizen-like qualities—demonstrating continuity of past employment, lack of serious criminal record, satisfaction of tax obligations, English-language proficiency and civics knowledge —advocates seek to make the citizen/noncitizen divide unsustainable, for a brief historical moment, for a finite population. Robust personhood claims, then, culminate in the simultaneous enlargement of citizenship’s emancipatory realm and reassertion of its exclusionary edges. The transformation is thus only partial, and status citizenship retains its upper hand. But partial transformation is a good deal more than we have today, and would be a welcome accomplishment by the year 2020. Posted
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