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.”

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.    

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.