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.