2020 Blog

Social Rights—Recap: Economic Rights in Disguise

Risa Goluboff began the Social Rights panel fittingly by posing the "what" question: what are social rights? Are they civil rights, political rights, or civil liberties? As it turns out, what most of the authors in The Constitution in 2020 and what the panelists at the conference were referring to can more accurately be categorized as "economic rights."

 

 Video courtesy of Yale Law School.

 

Goluboff then swiftly introduced a question that would linger throughout the panel: why call these rights, social rights, and not economic rights? In fact, Goluboff suggested that calling these rights, social rights, may doom them from the outset. Historically, social rights have not fared well in America. As part of the nineteenth-century tripartite conception of citizenship, the judiciary refused to enforce social rights, providing them with the weakest protections. In the human rights arena, the Executive, while signing other major rights-based covenants, has failed to ratify the International Covenant on Economic, Social and Cultural Rights.

The second speaker, Jacob Hacker, shifted gears and focused on the "why" question: why should America care about economic rights? Initially, he marshaled compelling statistics to illustrate the surreal stratification in recent years, suggesting that the justification was increasing economic inequality itself. However, it later became clear that the problem was not economic inequality alone. Rather, Hacker's real concern was that economic inequality had resulted in unequal--that is, undemocratic--political representation. Politicians increasingly cater to the concerns of the wealthy, while the voices of lower-income classes have diminished to a "whisper." For Hacker, it was a foregone conclusion that reform must come from the legislature.

The third speaker, Ben Sachs, answered Hacker's invitation to think about the link between economic inequality and political inequality by turning to the "how" question: how should America begin remedying this growing income disparity? Sachs focused on empowering the labor unions as a crucial mechanism for equalizing both economic and political power. Labor unions have the capacity to redistribute a firm's income more equitably to workers, as well as to mobilize and exert sufficient political pressure on the legislature. For Sachs, the best bet for reform lay not in federal legislation, but state and county legislation where the workers' political power exerts its largest influence. (However, that tact would first require reforming federal labor law to free up state and county labor legislation.)

Even if social rights are economic rights in disguise, the panelists seemed to skip from the "why" (economic inequality) to the "how" (the judiciary or the legislature) without addressing the real "what" question--that is, what are economic rights?

Then again, the panelists may not have skipped over anything. For many, the "what" was economic inequality itself. And the "why" consisted of the numerous harms that radiate from economic inequality, whether that was political and racial inequality, or unequal access to health care, housing, and education.

Thus, many panelists and attendees conflated the substance of, and the justification for, economic rights. It seems a worthwhile question to ask which is which.

Are we concerned about economic inequality because it departs from fundamental founding values such as equality irrespective of lineage, and liberty irrespective of class and caste? (Is equality a good in itself?) Or are we concerned about economic inequality because of the myriad secondary harms it reproduces?

While the former lends itself to formulating a principle--a general right to economic equality, the latter lends itself to enumerating a specific list of rights. In terms of methodology, the former suggests we should tackle the problem at its systemic core and address the pariah of political questions: redistribution of wealth. Whereas the latter suggests we should tackle economic inequality from the outside-in via piecemeal reforms addressing each individual secondary harm.

We could be concerned with both questions, and then the key issue may be which approach is more strategic. Indeed, the panelists likely pondered these questions and concluded that addressing the secondary harms would be more realistically achievable in scope and more palatable in avoiding the dreaded associations with excessive regulation, socialism, or worst of all, communism. As suggested during the panel, this calculation probably also resulted in using the label, social rights, as opposed to economic rights.

However, addressing the secondary harms, or even using the term, social rights, leaves open the risk that economic inequality gets lots in the shuffle--that we, for example, address problems of political inequality or access to health care, without ever truly confronting the widening economic gap. There is the danger that we merely soften the blow of economic disadvantage, but sanction it nonetheless.

Finally, even if it is wisest to proceed obliquely, it is debatable which secondary harm is the most crucial to tackle. In William Forbath's piece in The Constitution in 2020, he reminds us that the Fourteenth Amendment was very much written with concern for economic equality in mind, except then it was the "rights of contract and property that were thought to ensure white men the opportunity to pursue a calling and earn a decent livelihood." Personally, when I think of what ensures equal opportunity to pursue a "decent livelihood" today, I immediately think of education, not political representation as Hacker and Sachs did. Education--whether academic, professional, or vocational--strikes me as the main currency (and predictor) for social and economic mobility.

Panel Recap – Roundtable: About the Constitution in 2020

Bringing together four of Yale Law School’s constitutional heavyweights, last Friday’s roundtable discussion was both backward- and forward-looking. Moderated by Duke’s Neil Siegel, the panelists spoke about the Constitution in 2020 as a movement, where it came from and what it aspires to achieve. After Reva Siegel introduced the Constitution in 2020 project, Robert Post spoke on democratic constitutionalism, Jack Balkin examined the purposes of a constitutional theory, Bruce Ackerman highlighted a constitutional concern for economic justice, and all the professors debated the future of the Supreme Court and its appointment process.

 Video courtesy of Yale Law School.

 

Reva Siegel recounted how this "Constitution in 2020" endeavor was instigated in response to a conservative project called the Constitution in 2000. The Constitution in 2000 was a document produced within the Reagan Justice Department in 1988 setting forth favored and disfavored lines of constitutional decisions. The document was a blueprint for change, imagining how a more conservative constitutional terrain could be achieved through judicial appointments and constitutional litigation. It was utopian, but restorative. It was also highly successful. Now it has spawned a responsive vision, the Constitution in 2020 project, which includes conferences, a book, and this blog.

Robert Post followed Professor Siegel, explaining the seeming paradox of “democratic constitutionalism,” one of the constitutional theories at the heart of the 2020 project. “Democratic” evokes politics, the will of the people. “Constitutional” evokes the limits on that political will. But the two are conjoined because a constitution must be democratically legitimate; it must be a constitution of the people. A constitution, given to us by the past, becomes ours through a process of “norm contestations.” Such contestations cause us to read the document differently, and in this way, the cultural values of a generation and that generation’s understanding of the document are linked. For example, the same-sex marriage controversy is being fought in many states, about state laws, but we know that our federal constitution is at stake in these contestations. Such challenges make us reconsider what we think of as part of America’s constitution.

Jack Balkin discussed three basic purposes of a constitutional theory like democratic constitutionalism: (1) legitimation, (2) dissent, and (3) persuasion. When constitutional theories legitimate, they articulate, in a way that people can understand, why what courts, legislatures, or presidents have done is legitimate. Second, when the people in power are not “your people,” you need a theory of interpretation to dissent from what is otherwise decided. Originalism was a classic method of dissent from the early 1970s to early 1990s. Finally, the basic way that the constitution changes over time is that people persuade one another that they are not thinking about the constitution correctly. In this way, an interpretive theory can change constitutional common sense. Appointments are just one piece of the puzzle: changing the constitutional culture through persuasion is more potent.

Finishing up the presentations, Bruce Ackerman distilled the constitutional development of the last two centuries down to two themes: identity (who are we?) and economic justice. These themes have alternated in prominence throughout our history, and Ackerman argued that we should return to a focus on economic justice. Over the last sixty years, we have made a lot of progress on the identity front, but have regressed on the quality of economic life in America. We are a much more unequal society today, economically, than we have been since the Great Depression. Ackerman claims that landmark statutes like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 are part of our constitutional order. Accordingly, he would like to see new landmark statutes on economic justice, environmental issues, and what will happen after the next attack.

Neil Siegel concluded the roundtable by posing questions on the Supreme Court confirmation process and the difference between aspirations and reasonable exectations for 2020 (after all, Justices Scalia and Kennedy will probably still be on the Court in 2020). In response to the first question, Reva Siegel lamented the fact that Americans lack the political vocabulary to talk about how judging is not just politics, but neither is it just impersonal mechanics outside the sphere of discretion.

Professor Balkin responded that the stakes have been increasing with each nomination since the 1980s because the Justices are not leaving the Court with the same frequency. Balkin recommended that the President make an appointment every two years, and if there are more than nine Justices as a result, then the most junior nine should decide most cases.

On the second question—aspirations versus reasonable expectations for the Supreme Court—Ackerman was dismissive, reminding listeners that the Court is historically a laggard in the construction of a new constitutional regime. Brown is a too-memorable exception when the Court took the lead. Reva Siegel reflected on the birth of the Constitution in 2020 project in 2004-2005 and concluded that the country has since changed in ways that were unimaginable then. Change is possible, she reiterated, a fitting and hopeful conclusion to the roundtable.

I will leave you with some questions raised by the panelists’ discussion. Most fundamental to the Constitution in 2020 project: what is the best strategy for changing the constitutional culture? In Professor Balkin's words, how do we take what is off the wall and put it on the wall? Is it through a new constitutional theory, like democratic constitutionalism? Is it through constitutional litigation? Through judicial appointments? Through landmark legislation? Are Article V amendments out of the question? And how central is the Supreme Court to the endeavor? These questions anchored the conference, and the answers we come up with will dictate whether the Constitution in 2020 enjoys the same success as the document that provoked it.

Progressive Constitutional Theory

 

Does an active and progressive national government require liberal constitutional theorists to articulate and then advocate a comprehensively liberal theory of constitutional law?  “No” seemed to be the answer offered by the Constitutional Theory panel at the recent Constitution 2020 conference at the Yale Law School.

 Video courtesy of Yale Law School.

 

For the budding constitutional theorists among us, Jamal Green’s opening comments provide a word of caution.  Since the role of constitutional theorists “is actually quite narrow,” Green claimed that progressives should not worry too much about trying to convince judges to adopt liberal modes of constitutional interpretation.  Contrary to popular belief, Green suggested that originalism, the right’s preferred model of constitutional interpretation, has not actually accomplished as much as its proponents or opponents think.  Rather, it has simply served as a handy rhetorical device the right has used to buttress the work that is done in the political sphere.  Since the left does not have anything as rhetorically useful, progressives should focus primarily on creating a progressive constitutional discourse from which liberal jurists can draw as opportunities arise. 

Sophia Lee also suggested in her comments that being ambitious is not always the best way to bring about progressive change.  Administrative agencies, in particular, offer opportunities for accomplishing progressive objectives in ways that are often ignored.  If our goal as progressives is to see progressive change, how much does it matter the manner in which that change takes place?  Lee’s argument is not simply one of pragmatism, though – since she believes that administrative agencies are actually more competent to sort through certain civil rights questions. 

Richard Primus offered a warning to progressive constitutional theorists who neglect the importance of professional role differentiation.  Political and legal movements are most effective when they are rooted in an “ethical history” that resonates with a national ethos.  This ethical history is effective because it provides a simple framework into which particular principles can be fit.  It traffics in normative values, unlike the disinterested form of history that social scientists use to explain and describe. Since constitutional experts are often historians and theorists, scholars as well as activists, they face the difficult task of balancing political influence and academic integrity.  At the end of the day, scholars must acknowledge their normative commitments but also be very wary of using history simply to buttress a politically useful narrative, according to Primus.

David Law, the last of the four panelists to speak, was perhaps the one least enthralled with those who “fetishize” the constitution and most frustrated by those who see the constitution as some substantive embodiment of a national narrative, rather than simply a technical tool for accomplishing certain policies.  As Law argued, to spend time discussing abstract problems such as the counter-majoritarian difficulty might be intellectually rewarding for a small cadre of constitutional theorists, but it is too many steps removed from the day-to-day processes of constitutional practice to be of much practical worth.

Picking up on the panelists’ preference for modesty, moderator Paul Kahn used his time to question the “theoretical minimalism” that characterizes the pieces in the Constitution 2020 book and the presentations of the Constitutional Theory panelists.  Gone are Bickel and Ely.  Missing are “veils of ignorance,” Herculean judges, and “ideal speech situations.”  In their place we find those who focus on the particular rather than the general and those who advocate change on technocratic rather than philosophical grounds. Kahn, it seemed, was not entirely comfortable with this trend in constitutional theory.

Questions in the audience picked up on some of Kahn’s observations and touched on other important relevant questions.  One audience member asked if constitutional theorists’ theoretical minimalism was the product of a growing recognition that comprehensive theories and histories inevitably leave out certain groups and particular narratives.  Another suggested that certain ethical histories were simply truer than others and that constitutional scholars have an obligation to cite the right history.  Yet another asked if we should try to understand “truth” as primarily rhetorical.

The panelists fielded many tough questions, but others remain.  For constitutional theorists who value bridging theory and practice, how should we mark where one begins and the other ends?  And might it be the case that constitutional scholars do in fact have more influence than the panel suggested?  Could it be that disclaiming influence represents an effort to avoid responsibility for some of the struggles of liberal politics and constitutionalism during the last generation? 
 

Panel Recap -- Opening Remarks

Yale Law School's Dean, Robert Post, opened the Conference with brief remarks that framed the weekend: How can we understand the Constitution as something that is "enduring and permanent, yet changing"?

Panel Recap: Individual Rights

The panelists on the Individual Rights panel pushed the boundaries of the panel’s theme in two ways.  First, they did not engage in a definitional debate as to what individual rights are protected by the Constitution.  They instead focused either on creating a framework that would allow other actors to engage in the interpretation debate or on theorizing new tools for realizing constitutional rights.  Second, the panelists suggested that a progressive vision of individual rights in 2020 may not be focused on the individual at all – the best way to protect individual rights may be through a reimagination of the social infrastructure. 
 
As Professor Rick Garnett noted, the quintessential image associated with individual rights, that of the lone dissenter, is still important; it remains the recipient of these rights and one of its protectors.  However, the de-contextualized individual was largely absent from a conversation about individual rights that was dominated by institutions, social organizations and movements, identity groups, and our social environment.
 
This is not to suggest that the panelists’ presentations were similar; as you'll see, although the panelists shared some common ground, each tackled divergent aspects of this broad category of constitutional rights:

Video courtesy of Yale Law School.

Professor Elizabeth Emens started the discussion off by positing that anti-discrimination law is trapped in an “individual bad actor” model which fails to address institutional structures that lead to disparate impact, and that a progressive vision of individual rights must correct this failure.  She suggested that disability law may be a helpful analytical tool for reimagining “the anti-discrimination project.”  By locating the idea of disability between the individual’s impairment and the social environment, disability law is able to “focus on structural change without losing sight of the individuals,” a focus that Professor Emens is optimistic might benefit anti-discrimination law.
 
 
Professor Garnett and Professor Paul Horwitz both argued institutions are not only mediums through which people may express their rights, but also are [mechanisms?] capable of protecting these rights.  Professor Garnett argued that the right to religious freedom is best protected and served by ensuring that non-state institutions, including churches and other religious organizations, flourish.  Professor Horwitz posited that the First Amendment doctrine would be best served by learning from the best practices these institutions have developed over time, and by reconsidering the relationship between courts, institutions, and the rights themselves.  In the long run, they argue, protecting these institutions may be the best way to protect the rights of the individual—even acknowledging that these institutions may not always support those individual rights. 
 
Professor Alice Ristoph concluded the panelist presentation portion of the session.  She discussed the possibility of identifying an anti-violence norm in the Constitution.  While anti-discrimination would only prevent the use of [more?] force against one group, Professor Ristoph expressed some optimism that the Constitution might contain instead a norm that curtails the government’s use of violence in pursuit of goals such as criminal justice or national security.  She also expressed concern that the constitution and citizens themselves may be used to rationalize government violence.
 
The panelists considered several intriguing questions posed by audience members during the later half of the panel. Professor Emens and Professor Ristoph debated about how much work anti-discrimination might do in bringing about an anti-violence norm.  In response, Paul Kahn, who moderated the panel, suggested that their debate illuminated two distinct views of state action as an actor in the protection of state rights: either rights constrain the state, or they guide the state toward positive obligations of accommodation. 
Judith Resnik challenged the premise that federal courts might assist in identifying and protecting an anti-violence norm, noting that they often have tolerated vast amounts of violence.  She also asked how a social movement might engender actors who are less frightened and more willing to support this norm.  Although her points were directed toward Professor Ristoph, others queried whether different fears—of stigmatization and vulnerability—might prevent people from linking disability law with anti-discrimination law. 
Reva Siegel expressed concern that the accommodation model of disability law may be too general a mode of equality that lacks the “granular, group-specific answers” that are needed because discrimination affects distinct communities and groups differently.
Professor Horwitz acknowledged that he and the other panelists have theories that, if implemented, would substantially change the toolkit currently in use for protecting individual rights.  He considered whether it is worth changing the toolkit, given the transition costs of doing so; and whether these additions and changes illuminate the appropriate tools to use.    
 
The panelists and audience members raised a number of important issues; here, I offer a few additional questions that hopefully build upon these contributions.  First, I noted above that the panelists tread common ground in their treatment of the individual in relation to other actors.  Taking first the theories of Professor Garnett and Professor Horwitz – the strength and historical significance of institutions both support their theories, but also beg the question as to how much stronger non-state actors should be made; is there a tipping point beyond which they will no longer be protectors of individual rights and instead become limits to these rights? Even if social organizations shore up individual rights in the long run, is this enough to warrant the strengthening of institutions that may not be supportive of some rights of the individual? 
 
This question might be asked more broadly of all the panelists: in a discussion of contextualized individual rights, what is the right balance between the lone dissenter, the individual as a social being, non-state institutions, and the government?  Finally, what happens to any of the theses presented when we consider a fact that emerged from the discussion: that individuals, social organizations, and even the state may be either a useful tool for protecting or a roadblock to the realization of constitutional protected rights, in addition to being the intended recipient of these rights?

Panel Recap: Localism and Democracy

At the inception of the American Constitution Society, just eight years ago, this panel might well have been viewed as an anomaly. Federalism was the watchword of conservatives struggling to constrain the power of the national government. How times have changed. As Ernie Young noted in his pre-conference blog post, "During the Bush years, progressives trained since the 1960's to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California's right to go its own way on environmental policy and Massachusetts' prerogatives to allow gay marriage at home and protest human rights violations abroad." The result has been a flourishing progressive federalism movement—or more accurately, as several panelists noted, a federalism without political valence. The four panelists last Saturday spoke to divergent features of today's federalism. What united their presentations was a sense of the dynamism and possibility of the new federalist movement.

Video courtesy of Yale Law School.

 

First to present were Ilya Somin and Ernie Young, who brought opposite perspectives to the question of how diminishing loyalties to particular states have altered the course of federalism. Somin argued that lower barriers to inter-state mobility promote federalism by facilitating "voting with your feet," even as the rise of federal funding reduces states' incentives to attract tax revenues. Young argued, to the contrary, that a resurgence of state loyalties is needed to foster rich cultures of federalist innovation within the states.

 Richard Schragger and Ethan Leib, next to speak, turned to the details of implementing progressive federalism. Schragger made an impassioned pitch for "federalism all the way down" in the tradition of Justice Brandeis, looking to cities rather than states as the real cradles of policy innovation. He argued for a related kind of localism as well, suggesting that "progressives should reassert the relationship between political and economic decentralization." Leib, citing his own experience with a team that seeks to revise the California Constitution, discussed how progressives might focus on state constitutional conventions as immediate opportunities to facilitate progressive change.

Heather Gerken, in her commentary on the panel, sought to connect its themes with those of the Individual Rights panel that preceded it. She argued that the traditional division between rights and structure as constitutional paradigms has limited progressives in their efforts to promote minority rights. Drawing examples from the struggle for racial justice and from her own work on dissenting by deciding, she argued that progressives should embrace federalism as a new structural language for the values of participation and representation.

Along with the panelists and questioners, moderator Judith Resnik suggested several avenues for further thought. First, what is the relevance of trans-local organizations of government actors (what Resnik, along with Josh Civin and Joe Frueh, have called "TOGAs") in progressive federalism? Second, how limiting are the challenges of immobility in American society? Third, what should progressives do about the currently dysfunctional governance of major states?

I'll close by suggesting a few others. One important question is the extent to which federalism will remain without political valence. Are we likely to see a kind of bifurcated federalism, with liberals and conservatives favoring different versions? Another question: Will governance at the local level reproduce the power dynamics of governance at the national level, or—as Gerken suggests—does it afford unique representational opportunities? Finally, given the present Democratic control of Congress and the presidency, will liberals need to endure a future period in the political wilderness in order to heed Justice Brandeis's call—channeled by Schragger—to "end this business of centralization" and "go home, back to the states" to "do their work"?

Paul Horwitz's Post-Conference Thoughts

Professor Paul Horwitz recently posted some thoughts about the 2020 Conference. In addition to commenting on his own panel ("Individual Rights," also featuring Columbia's Elizabeth Emens, Nortre Dame's Rich Garnett, and Seton Hall's Alice Ristroph), he has a few things to say about the 2020 project more broadly. From Prawfsblog:

"What struck me about the conference was that it was directed around a "project" (an oft-used term over the weekend) whose terms are still quite uncertain, and to which not everyone who served as a panelist had signed on.  Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists.  Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable.  Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don't care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives."

 

What's the upshot of these three different groups of panelists all being included in one conference? Read on...

Ilya Somin's Post-Conference Thoughts

After speaking on Saturday's "Localism and Democracy" Panel (along with Virginia's Rich Schragger, Duke's Ernie Young, and UC-Hasting's Ethan Leib), Professor Ilya Somin of George Mason had some thoughts about the current state of thinking on the constitutional "left of center":

 

My dominant impression is that there is a great deal of consensus among left of center con law scholars about which way most important cases should come out, but much less agreement about why." Read more at the Volokh Conspiracy.

 

For his thoughts on the right and constitutional theory more broadly, check out his post over on The Volokh Conspiracy.

Conference Video Coming Soon

The Constitution in 2020 Conference has come and gone, but we're just getting started. We're hoping to post video of the conference panels within the next week, and we'll also have some panel-specific reaction posts once we get the video up. For now, thanks to all those who participated on this site and at the conference itself, and check back soon for the video!

Personhood in Citizenship’s Shadow

Crosspost from Balkinization

 

“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. 

Transforming Citizenship

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.
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Muneer Ahmad is Clinical Professor of Law at Yale Law School. He will be appearing on Friday's "America and the World" panel with Aziz Huq (University of Chicago Law School, "The Transformative Potential of Muslim America"), Jenny Martinez (Stanford Law School, "Constitutional Rights as Human Rights?"), and Jon Michaels (UCLA School of Law, "Executive Authority in a post-Westphalian World").

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