Panel Recap -- America and the World

The Constitution 2020 Conference opened powerfully with a panel that engaged questions essential to defining a vision of progressive constitutionalism: Who ‘counts’ as American?  And what kind of law ‘counts’ as American?

The panelists, along with their moderator, Bruce Ackerman, tested the boundaries between citizen and non-citizen, and between U.S. and international law, in the context of national security, foreign policy, immigration enforcement, and discrimination against minorities since September 11, 2001.

The panel opened with Aziz Huq (University of Chicago Law School) and Muneer Ahmad (Yale Law School), who tackled issues on citizenship, personhood, and advocacy. Their comments framed an approach to the question of who ‘counts’ as American. Then Jon Michaels (University of California Law School – Los Angeles) and Oona Hathaway (Yale Law School) reflected on the need to reintroduce democracy to determine what kind of law ‘counts’ as American law. Their proposals paid special attention to checking executive power in national security and foreign policy matters.

Video Courtesy of Yale Law School

Who ‘counts’ as American?

Since September 11, 2001, Muslim Americans have had a common encounter with discrimination that has often placed them outside the circle of who ‘counts’ as American. While discrimination can and has alienated Muslims, Aziz Huq proposed that this shared experience also has the power to form the otherwise diverse and fragmented community into a single interest group that can reclaim core constitutional rights, such as free speech, freedom of religion, and privacy.

As credible advocates for constitutional change, Muslim Americans can powerfully advocate to base counter-terrorism operations on trust and cooperation with the Muslim community, rather than on surveillance and suspicion. Huq urged that we open foreign policy decision-making to a diversity of voices, including Muslim Americans, because “without voice, loyalty often erodes.”

Muneer Ahmad then identified the citizen/non-citizen divide as a major barrier to expanding who ‘counts’ as American to communities with immigrant populations. Traditionally, the rights granted to citizens and persons in the Constitution are considered independent sources of rights, but Ahmad argued that the two are in fact tethered together so that “citizenship circumscribes personhood.”

Citizenship exceeds personhood across our legal system. In order to secure protections of personhood for their clients in court, for example, immigrant rights advocates must argue that their clients are citizen-like – hard-working individuals who go to church, don’t have a record, and have the support of family and friends. In other words, lawyers must argue that their clients are super-citizens who represent a form of social rather than constitutional citizenship. However, the rights of personhood will never meet the full level of rights that citizenship provides. Immigrant rights advocates therefore necessarily reinforce the citizen/non-citizen divide and the paradox continues.

How can progressives expand who ‘counts’ as American under our Constitution given the dominance of the citizen/non-citizen divide? We can either expand the ambit of citizenship, Ahmad suggested, or re-imagine citizenship entirely to better match a globalized world where people have multiple loyalties and identities.

What law ‘counts’ as American?

Turning to the sweeping powers of the executive since September 11, 2001, Jon Michaels and Oona Hathaway reflected on what law ought to ‘count’ as American. Jon Michaels noted that the Bush administration bypassed constitutional requirements; it gathered information from corporations about their customers, used foreign interrogators, and engaged in domestic wiretapping, for example.

The problem of unchecked executive power is not specific to the fight against Al Qaeda, however, but rather a result of broader globalization processes where "the law lags behind," Michaels argued. Social, technological, and economic trends in globalization blurred traditional legal boundaries, allowing the Bush administration to aggrandize power and operate military and national security apparatus free of traditional regulation. Michaels concluded that Congress and the courts ought to check executive power in the future through structural change rather than ad hoc regulation.

Oona Hathaway brought the discussion into an international framework, examining America's relationship to other nations through its dual powers of making law and making war.  Hathaway noted that most of U.S. foreign policy is made by the President acting alone, authorized by Congressional authority delegated some forty years earlier. Similarly, under our Constitution, Congress gives the President limited authority to make war, but those limitations have been ignored when expired, reducing Congress' role to paying war bills.

Hathaway argued that progressives should bring congressional oversight and democratic legitimacy back into international law and foreign engagement. Specifically, Hathaway and Bruce Ackerman are working on a proposal that would create a new default rule that makes Congressional authorization for war expire in two years time.

Take a look at the video to learn more about their proposal -- and dig deeper into all of these rich reflections on a progressive vision for constitutional change.

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.

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").

The Democratic Case for Tackling Economic Inequality

Crosspost from Balkinization

I share the assessment of the eminent legal scholars writing in The Constitution in 2020 that constitutional law and the judiciary offer limited promise as means of remedying the economic inequality and insecurity that are so much a part of contemporary America. But it will not do, I think, to end the assessment there. In the fraught history of social rights that William Forbath tells, there is also a larger moral about the kinds of appeals that such a movement must make if it is to succeed. The moral is that these appeals have to be grounded in an articulated vision of citizenship that makes clear why widespread economic inequality and insecurity is so starkly at odds with political equality.

This a deeply American way of approaching the problem—far more so than the idea of positive rights—and it has a long and distinguished lineage in democratic thought. Indeed, for centuries, the dominant assessment of the problem of economic distribution in a democracy saw the concentration of property and power at the top of the economic pyramid as dangerous to democracy precisely because it raised the prospect of a wealthy oligarchy corrupting political institutions.

During the Founding period, the concern that the wealthy would gain undue influence coexisted with the well-documented worries about the tyranny of the propertyless majority. The Founders saw the new American republic as marked by a highly favorable starting point: a distribution of property much broader than that found in the class-bound Old World. And they were convinced that preservation of this broad distribution was not just good in itself but essential to the institutional functioning of democracy. To be sure, they feared challenges to private property from below, but they also feared the rise of an aristocracy, which they believed just as fatal to an independent democratic republic.

New life was breathed into this perspective during the Jacksonian era (“the rich and powerful too often bend the acts of government to their selfish purposes” remain the most remembered words of Jackson veto of the national bank). Yet it rose to its greatest prominence during the Progressive Era. Progressives were alarmed about the growing concentration of wealth and income and the increasingly evident social costs of industrialization. What worried them most, however, was the distortion of politics by private economic power, the translation of economic inequality into political inequality, which in turn reinforced economic inequality. Vast excesses of wealth meant vast excesses of power, a reality directly at odds with the promise of political equality.

Running as a third-party candidate in 1912, Theodore Roosevelt summed up the critique in a famous broadside against “special interests”:

The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man’s making shall be the servant and the not the master of the man who made it. The citizens of the United States must effectively control the mighty commercial forces which they themselves have brought into being….The absence of effective state, and, especially, national restraint upon unfair money getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power.

The next Roosevelt in the Oval Office, facing down the greatest economic crisis the nation had ever seen, put the point even more sharply:

For too many of us the political equality we once had was meaningless in the face of economic inequality. A small group had concentrated in their own hands an almost complete control over other people’s property; other people’s money; other people’s labor—other people’s lives. For too many of us life was no longer free; liberty no longer real; men could no longer follow the pursuit of happiness.

Against economic tyranny such as this, the American citizen could appeal only to the organized power of government. The collapse of 1929 showed up the despotism for what it was. The election of 1932 was the people’s mandate to end it. Under that mandate it is being ended.

The Progressive critique was rooted in the classical republican view, but also gained power from the rise of legal realism, as Cass Sunstein and others have noted. Legal realism insisted, rightly, that markets are inevitably shaped and channeled by political forces, dependent on the rules that are set up and enforced by those who control the coercive power of the state. And the legal realists also rightly argued that walling markets off completely from redistributive and regulatory demands required at least as strenuous an exercise of government power as intervening in them. Laissez-faire is a political choice, one with distinct and sometimes unpleasant consequences, and one that requires a great deal of government intervention to arise and survive.

Lest this critique be seen as deeply radical in spirit, it is worth quoting a little-noticed passage in Adam Smith’s 1776 The Wealth of Nations, now viewed as the bible of limited-government free-market economics. “Wherever there is great property,” Smith wrote, “there is great inequality. Civil government, so far as it is instituted for the security of property, is in reality, instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.”  A clearer statement of the legal-realist view of a century and a half later would be hard to find.

The fact that markets are constructed through public policies and shaped by democratic politics—and therefore that they could be reshaped to produce better outcomes—was a central observation of progressive reformers in the early twentieth century. It should also be a central argument of today’s progressives. So it is important to understand what it means and does not mean. It does not mean that democratic politics always produces well-functioning markets, or that government intervention is always justified or desirable. Rather, it is a more fundamental point. For good or ill, democratic politics makes markets. The debate over good or bad economic policies should not be over whether government is involved, for it always is. The debate should be over whether it is involved in a way conductive to a good society.

For the Progressives, the answer to that question in the early twentieth century was no, as it should be for progressives today. Policies passed in the name of free markets and justified with reference to the sanctity of private property had the effect of creating markets that were mainly in the interests of a narrow economic elite. Efforts to address these inequities were blocked in legislatures highly attentive to business concerns. Where laws promoting social reform were passed, they were thrown out by the courts. Greater economic inequality led to greater political inequality, which in turn led to government policies that reflected the interests of those at the top, worsening or at least hardening class divisions. Swamped by the tides of inequality and insecurity, democracy was giving way to oligarchy—the very concern that the recent dramatic growth in inequality and our present economic crisis have cast in stark relief.

The implication, hopefully obvious by now, is that efforts to reduce inequality can be justified not just on egalitarian grounds, but also on democratic grounds. As the political scientist Sidney Verba has written, democracy is based on the ideal of equal potential consideration of every citizen’s interests. In theory, this ideal is compatible with vast inequalities in other spheres of social life. Even the poorest citizen has the formal right to vote, after all. The problems arise when large and growing resource inequalities translate into substantial, cumulative, and self-reinforcing inequalities of political power. Sadly,  these sorts of political inequalities have become increasingly apparent in American democratic practice.

This is not the place to lay out all the reasons for my concerns. Instead, I will merely refer readers to the work of the American Political Science Association’s Task Force on Inequality and American Democracy, of which I was part. The Task Force considered the effects of growing economic inequality on democratic practice from a variety of perspectives and drawing on a huge range of cutting-edge research. Its conclusion was that growing inequality did indeed threaten political equality in the United States:

Generations of Americans have worked to equalize citizen voice across lines of income, race, and gender. Today, however, the voices of American citizens are raised and heard unequally. The privileged participate more than others and are increasingly well organized to press their demands on government. Public officials, in turn, are much more responsive to the privileged than to average citizens and the least affluent. Citizens with lower or moderate incomes speak with a whisper that is lost on the ears of inattentive government officials, while the advantaged roar with a clarity and consistency that policy-makers readily hear and routinely follow.

What we have, in short, is a classic story of cumulative advantages—people who have more are being heard more by political leaders, and what government does reflects that. The political scientists Larry Bartels and Martin Gilens have found, for instance, that the votes of elected representatives and the direction of public policy are both vastly more responsive to the opinions of high-income citizens (as measured by surveys) than they are to the opinions of Americans of more modest means.

In sum, we should challenge the stark economic disparities of our day not just because they challenge our moral sensibilities, but because they pose a direct threat to political equality. And we should also challenge them because, contrary to the anti-government rhetoric of the last generation, public measures to expand economic equality and security can materially improve the quality of democratic citizenship. Indeed, as the Task Force on Inequality and American Democracy reports, some of the most vibrant examples of twentieth-century American public policy—the GI Bill, support for collective bargaining between management and unions,  Social Security—were successful not just in reducing economic inequality, but also in empowering citizens. By providing Americans across the income spectrum with resources, skills, and motives for democratic citizenship, each of these policies substantially evened out disparities of participation and influence in American politics, helping to reinforce the broad-based character of postwar prosperity.

We would do well to embrace this goal again today.
Jacob Hacker
is the Stanley B. Resor Professor of Political Science at Yale University and a Resident Fellow at the Institution for Social and Policy Studies. He will be appearing on Saturday's "Social Rights" panel with Risa Goluboff (University of Virginia School of Law, "Social Rights") and Benjamin Sachs (Harvard Law School, "Locating Union Rights").

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