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").

Constitutional Rights as Human Rights?

Crosspost from Balkinization

A decade ago, lawyers in the United States who worked on cases involving mistreatment of prisoners might have talked about those cases as involving “police brutality.” The lawyers would have described them as falling under the rubric of constitutional litigation involving “civil rights” and “civil liberties.” Today, those same lawyers might describe the same mistreatment of prisoners as “torture” and a violation of “human rights.”

Does the difference in terminology matter, or is this merely a reflection of a “trendy” but superficial globalization? The shift towards the use and consideration of international human rights law by domestic advocacy groups in the United States is a fairly recent phenomenon (though one with historical precursors). As the ACLU’s website explains:

“In 2004, the ACLU created a Human Rights Program (HRP) specifically dedicated to holding the U.S. government accountable to universal human rights principles in addition to rights guaranteed by the U.S. Constitution. HRP is part of a reemerging movement of U.S. based organizations that uses the international human rights framework in domestic rights advocacy.”

Are American constitutional lawyers talking about international human rights the legal equivalent of a pretentious francophilic suburbanite air kissing her friends and declaring the latest sweater at Target to be “très chic”? Is reference to international human rights law a useful strategy for progressive constitutional advocates, or does it simply invite criticism and attack on the grounds that dangerous and undemocratic “foreign” influences are being illegitimately injected into our legal system? Am I calling in the black helicopters here?

Accuse me of having drunk too much of the international human rights Kool-Aid if you wish, but I believe that thoughtful engagement with the broader international human rights movement by progressive constitutional advocates is good for America and good for the world. Why?

The language of international human rights has become a dominant global discourse. There are well-known criticisms of this discourse, to be sure, but the language of human rights has exerted a powerful influence on the way that people around the globe think and talk about issues of fundamental importance to the way people live their lives – from their ability to speak freely, participate in government, practice religion, shape their families and other social connections, engage with government and civil society on terms of equality, achieve the minimum conditions of material prosperity necessary for a life of dignity – water, food, shelter, medical care, education. We can’t participate in this global conversation if we don’t speak the same language as progressive advocates in other countries.

International human rights law addresses many of the same issues and concerns as U.S. constitutional law, though there are of course quite important differences between the two bodies of law. Most obviously, international law embraces a broader vision of rights including not only civil and political rights, but also economic and social rights.  In this respect, the global human rights regime echoes the framework put forth by Franklin Roosevelt in his “Four Freedoms Speech” in 1941 – freedom from want, freedom from fear, freedom of speech and expression, freedom of religion.  The drafting of important international human rights instruments in the aftermath of World War II was heavily influenced by these ideas.  Roosevelt’s concern for security – freedom from fear – as a basic human need also resonates today in attempts to balance individual liberty with the need for protection against violence, either by states or non-state actors. In the international legal order, however, freedom from fear finds its institutional home in the collective security framework of the U.N. Charter rather than in human rights law; and the tension between security and rights is no less evident in international law than national legal systems. Understanding security as a human rights issue, however, is vital to confronting many of the challenges America will face in the coming decades.

International human rights law differs from U.S. constitutional law in other important ways as well. It emphasizes personhood over citizenship as a foundation for rights (though of course, many parts of the Constitution speak of persons and people, not citizens). Its focus on human dignity finds echoes in many post World War II constitutions, but not so explicitly in the text of our own Constitution. It operates within a different institutional framework, in which litigation is often less important than documenting and publicizing abuses; raising awareness of issues; generating political pressure; lobbying and diplomacy.

Far from making international human rights law irrelevant to a progressive constitutional vision, these differences in perspective and strategy can be quite useful in rethinking a way forward in the coming decades. As Rachel Moran and David Cole, among others, discuss in their contributions to the Constitution in 2020, even progressive theories of constitutional law that place great weight on citizenship run the risk of undermining the basic dignity afforded to non-citizens.  Many of the essays in the volume address issues of economic and social inequality and inadequacy. And many address the idea of the Constitution – and constitutional rights – outside the courts.  International human rights law speaks to all of these concerns.

The United States has long been a leader in international human rights. Core international instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are modeled on rights established and developed in U.S. constitutional law. Our nation has been a powerful advocate for human rights in its diplomacy and in important international fora.

Today, as many have pointed out, the United States role as a global human rights leader is imperiled. Why? Recent policies of the United States government, especially detention and interrogation in connection with the “war on terror”, have involved significant and very high-profile human rights violations. Members of the Bush Administration openly defended practices that constitute torture. In other areas of individual rights, the U.S. also does not compare favorably with other developed democracies. Death penalty? Gays in the military? Universal health care? Decent primary education? To be sure, in some areas such as free speech, the U.S. has adopted standards that are more protective of individual rights than other nations. But the United States faces serious challenges in our claims of preeminent leadership in the human rights field.  

When our Supreme Court disses foreign and international courts, the judges on those courts become less likely to care what the U.S. Supreme Court thinks. As several recent articles have pointed out, constitutional courts around the world are increasingly likely to cite the European Court of Human Rights or the Inter-American Court of Human Rights rather than the U.S. Supreme Court. As Vicki Jackson points out in her essay, when we act as if we have nothing to learn from the rest of the world, we run the risk of being left out of, and thereby unable to contribute to, the development of, a global body of law that is likely to have an important impact on U.S. interests in decades to come.

More importantly, when U.S. behavior evinces a double-standard – acting as if the rules of international human rights law apply to other countries but not to us – we increase the likelihood that other countries will claim that they, too, are not bound by these allegedly universal principles.

Like various contributors to the Constitution in 2020 volume -- including Harold Koh, David Cole, Vicki Jackson, Judith Resnik and others -- I believe the United States has a key role to play in shaping the world outside our borders. 

We will be a stronger, wealthier, and safer country in 2020 if other countries respect human rights. 

Moreover, U.S. constitutional law may well benefit from consideration of the way that similar issues are conceptualized and resolved in international human rights law. Even if we do not always cite foreign or international sources in our briefs, it is useful for progressive advocates to know something about how our counterparts in other countries conceptualize an issue.  Maybe even talk with those counterparts. Just as advocates for the abolition of slavery in the nineteenth century drew strength from transnational networks of religious and civil society groups, progressive advocates in the U.S. today may strengthen their efforts by building bridges to those advocating on similar issues in other nations.  (And a note to anyone who came upon this blog posting after googling “black helicopters”:  I’m not talking about giving up sovereignty, or being bound by the views of foreigners – I’m talking about respectfully considering the wise and considered views of others before making our own minds up.)

The United States does not and cannot exist in isolation from the rest of the world, and any vision for American constitutional law in the coming decades must recognize this fact – not incidentally, not as an afterthought, but as a fundamental part of understanding the nature of our society, our economy, and our government. 

Jenny S. Martinez is Professor of Law and Justin M. Roach, Jr. Faculty Scholar at Stanford Law School. She will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Aziz Huq (University of Chicago Law School, "The Transformative Potential of Muslim America"), and Jon Michaels (University of California Law School-Los Angeles, "Executive Authority in a post-Westphalian World").

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