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Anyone have a response to this Bosniak 02 card?   Expanding citizens’ rights through the 14th amendment is predicated on hyper-nationalist protection of insiders, turning non-citizens into national threats and human waste

Bosniak 02 Linda Bosniak, Professor of Law, Rutgers Law School-Camden. This article was written when the author was a Faculty Fellow, Program in Law and Public Affairs, Princeton University. Ohio State Law Journal Volume 63, Number 5, 2002 Constitutional Citizenship Through the Prism of Alienage http://moritzlaw.osu.edu/students/groups/oslj/files/2012/03/63.5.bosniak.pdf

But even if citizenship for aliens is not objectionable in the way that second-class citizenship is, there remains the question of whether the notion of “alien citizenship” is coherent by its own terms. Can Ely, Bobbit, Karst, and the others persuasively maintain that persons constitute the rightful subjects of most constitutional rights, while at the same time characterizing the substance of those rights as a form of citizenship?[118] How far can the claim of citizenship for aliens extend? At one level, answering this question is a matter of constitutional interpretation. Certainly, the scholars I have focused on see themselves as making interpretive arguments about the meaning of the Fourteenth Amendment; they are interested precisely in how that amendment accommodates (or fails to accommodate) the mandates of personhood rights and citizenship. Should the Constitution, after the Fourteenth Amendment’s passage, be read as “now identif[ying] personhood with United States citizenship,”[119] or did the Amendment intend a sharp divide between them? There are various aspects to the debate in the constitutional literature. Much of the debate has taken the form of a dispute over the relationship between the Equal Protection and Due Process Clauses (which speak of persons), on the one hand, and the Privileges or Immunities Clause, on the other. Scholars have asked, among other things: Are these clauses to be read as overlapping in meaning?[120] If so, is the Privileges or Immunities Clause redundant? If not, what does its reference to “the rights of citizens” add to the mix (read both in light of and in spite of Slaughterhouse)?[121] Are the rights referred to narrower than the rights guaranteed to persons in the other clauses?[122] Much ink has been spilled on these and related questions in the constitutional commentary, and scholars remain widely divided on these issues. But assessing the coherence of the idea of alien citizenship is a matter that requires going beyond a parsing of constitutional history and text; it requires us to consider, as well, questions of normative constitutional theory. As Karst has written, citizenship—equal citizenship—is not merely a technical constitutional concept; it is also “an ideal, a cluster of value premises.”[123] To evaluate the plausibility of the concept of alien citizenship, therefore, we need to consider it in light of these premises. I have argued that any claim to the effect that aliens do and should enjoy aspects of substantive citizenship effectively amounts to a claim that the constitutional tradition which accords rights to persons is perfectly compatible with an understanding of rights conceived as a form of citizenship. The question we are faced with, therefore, is whether the claim is true: whether the constitutional commitments of rights-to-persons and the constitutional conception of rights-as-citizenship are indeed complementary. The answer, it seems to me, is that their compatibility only goes so far. This is because rights-citizenship is usually conceived as embodying not only universalist values, but nationalist values as well. On first reading, the ideal of equal citizenship seems inextricably linked to an ethic of rights based on personhood. As many commentators have argued, the principle of equal citizenship embodies a commitment to universality. Kenneth Karst writes that under this principle, “[e]very individual is . . . presumptively entitled to treatment in our public life as a person . . . deserv[ing of] respect.”[124] The ideal of equal citizenship is grounded in a commitment to justice and recognition “for all.”[125] It is this grand universalism, which accords rights to persons by virtue of their common humanity, that accounts for much of the concept’s powerful political resonance. Yet upon further review, it becomes clear that “everyone” does not quite mean everyone. For despite equal citizenship’s professed commitment to universality, the universality championed is, in fact, a circumscribed one. The constraints on universality’s scope are the result of the other core animating ideal of the equal citizenship principle—that of community membership, or “belonging,” in Karst’s term. The notion of belonging is insistently inclusive within the community. Yet the value of “belonging” also presupposes community boundaries—boundaries which ultimately divide insiders from outsiders.[126] “By drawing a circle and designating those within the circle as sovereign and equal,” Alex Aleinikoff has written, “the concept of citizenship perforce treats those outside the circle . . . as less than full members.”[127] Most theorists of equal citizenship have tended to disregard citizenship’s exclusionary aspect in their work. Like many social and political theorists, they “tend[ ] to take the existence of a bounded national ‘society’ for granted and to focus on institutions and processes internal to that society.”[128] Their focus on citizenship within the national community, in turn, allows them to treat citizenship as a universalist ideal with an inherently expansive logic. Karst, for instance, writes of equal citizenship’s “expanding . . . circle of belonging,”[129] though he has always acknowledged that the process of inclusion remains incomplete. This expansive conception of citizenship was expressed by political theorist Michael Walzer, who similarly posits a citizenship that progressively incorporates outsider groups. He writes: “Slaves, workers, new immigrants, Jews, Blacks, women—all of them move into the circle of the protected, even if the protection they actually get is still unequal or inadequate.”[130] This statement captures the predominant conception of citizenship among mainstream constitutional scholars. Focusing on the nation’s interior, they approach citizenship—at least ideally—as a source of progressively inclusive and egalitarian values.[131] It has thus fallen to those scholars specifically concerned with the community’s threshold to attend to citizenship’s nationally-exclusionary dimension.[132] Most often, it is the analysts concerned with immigration and with the law’s constraints on access to citizenship status who acknowledge and examine citizenship’s boundary-enforcing aspect.[133] Yet while most scholars who champion the concept of equal citizenship tend to ignore citizenship’s exclusionary face, it is ultimately presupposed in their project. First of all, as I have said, constitutional scholars often characterize equal citizenship not merely as the universal enjoyment of rights but also as the experience of community belonging or membership. Communities, of course, have insides and outsides which are constituted by some sort of boundary, however permeable it may be. Furthermore, many constitutional theorists make their case on behalf of equal citizenship by linking it to a particular form of community belonging which they express through the concept of “national union” or “national unity.”[134] Karst, for instance, writes that “[t]he union of the American people is a constitutional value of the first importance.”[135] And it is a value that is inextricably linked with the value of equal citizenship; national unity is seen as a precondition for the practice of equal citizenship, and equal citizenship, in turn, is viewed as a necessary condition for the continued well-being of the community.[136] In Karst’s view, “constitutional equality can be seen as part of the social cement that holds our nation together,”[137] while the “interdependence of citizens that is the foundation for the national union” likewise serves to “strengthen the material and moral foundations of equal citizenship.”[138] A number of other constitutional scholars have similarly linked equal citizenship with a normative conception of “national unity.”[139] None of these scholars appears to see any inherent tension between the normative commitments associated with national unity and equal citizenship’s universalist commitments. On the contrary, they regard equal citizenship and national unity as mutually necessary and mutually reinforcing parts of a whole. And they are surely right that citizenship’s dual commitments are often productively complementary within the ambit of the nation. In particular, it seems indisputable that schisms internal to the nation along class or caste or state lines have thwarted struggles for universal and equal rights within the nation; and conversely, it is clear that a sense of national identification and community solidarity has animated many efforts to give content and effect to the equal citizenship principle in this country. Yet while these constitutional scholars apparently regard the ideal of national unity as an antidote to divisiveness and fragmentation internal to the nation,[140] I would contend that the practice of ensuring the “belonging” and “unity” of the nation’s members simultaneously, and inevitably, signals the existence of a sharp divide between insiders and outsiders to the nation. For one thing, the very rhetoric of national unity rather unavoidably serves to conjure up the specter of foreign threat. In general, political and scholarly discourse rallying to a position of “national unity” is quite often meant to evoke a defensive posture in relation to a danger posed by non-national outsiders—at least as often as (and in the recent period, far more than)—to evoke a domestic campaign against internal fragmentation and divisiveness.[141] While I am quite certain that those scholars who link equal citizenship with the ideal of national unity have no intention of conveying any such defensive and nationalist message, the term’s reverberations are hard to deny. And even if we discount such paranoiac associations, the ideal of “national unity” remains essentially a nationalist construct in ethical terms. Describing national unity as a foundation of the equal citizenship principle at the very least conveys the message that we maintain a special commitment to the well-being of members of our own national community—that we feel a kinship with them and maintain moral obligations to them above all others.[142] In this ethical nationalist formulation, we still presume a class of foreigners whose existence defines a national “us,” and although they are not constructed as overtly dangerous, their experiences and interests are nevertheless assumed to be of lesser significance to us than those of our compatriots.[143] In sum, while constitutional scholars thus tend to avoid direct attention to citizenship in its bounded aspect and focus on the community’s interior, their substantive accounts of equal citizenship within the nation often presuppose such boundaries. Citizenship’s universalism is, in this regard, a circumscribed universalism, constrained by a concurrent commitment to ethical nationalism. That the normative ideal of equal citizenship in constitutional thought is, in the end, a nationally-bounded universalist project of course poses important questions at the level of political theory—including questions about the moral justifiability of preferring the interests of national insiders over national outsiders in a world characterized by vastly unequal life chances.[144] While these are pressing matters, I am concerned for the moment not so much with the legitimacy of nationalism per se as with understanding the relationship between citizenship’s nationalist and universalist commitments in the first instance. How can citizenship be both universalist and bounded simultaneously? To the extent that the division between citizenship’s dual commitments is acknowledged by scholars at all, the usual assumption is that each applies to a different jurisdictional sphere or domain.[145] It is presumed, as a rule, that citizenship’s nationalist commitments are relevant at the borders, facing outward, and that citizenship’s universalist commitments are relevant within the community, facing in. It is presumed, in other words, that while citizenship embodies a universalist ethic within the community, it is exclusionary at the community’s edges.[146] This Janus-like image of citizenship is often accurate—but not always. On the one hand, citizenship’s universalist commitments are sometimes brought to bear at the nation’s borders. Humanitarian admissions policies, and rules requiring due process in deportation proceedings, are powerful examples.[147] On the other hand, and more significant here, citizenship’s exclusionary commitments are not always confined to the state’s territorial perimeter, but are sometimes brought to bear even within the nation’s territory. When this happens, principles of universal citizenship and bounded citizenship occupy the same (internal) terrain.[148] The case of aliens makes this clear—and here we come full circle. On the one hand, the equal citizenship principle regards aliens as entitled to equal regard and recognition as persons residing in our community. Karst argues that “it is important to extend most of the content of the equal citizenship principle to aliens . . . because for most purposes [aliens] are members of our society.”[149] This is the universalist strand of the equal citizenship principle at work, and it has been highly influential, for aliens do enjoy many fundamental rights as members. At the same time, however, Karst also suggests that aliens—even lawful permanent resident aliens—may be properly regarded as outsiders to the nation’s “political community” by virtue of the primary allegiance they maintain to their home states. As a consequence, he maintains, they may legitimately be denied political rights, including the right to vote.[150] The principle of equal citizenship, in this context, permits and perhaps even requires, the exclusion of outsiders from the political community—the same community in which universal equal citizenship is practiced. The condition of undocumented immigrants pointedly illustrates the dynamic. The equal citizenship principle is usually understood to demand the extension of core constitutional rights to the undocumented. The Supreme Court expressed the point plainly: “Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to [basic] constitutional protection.”[151] Yet many proponents of equal citizenship also tolerate the exclusion of these immigrants—particularly the culpable adults[152]—from other core benefits of membership,[153] and most seem to regard as acceptable, and perhaps even necessary, their subjection to deportation on grounds of unlawful entry or presence.[154] Significantly, the threat or actuality of deportation works to undercut equal citizenship not merely directly but also indirectly: these immigrants are often unwilling to invoke the rights they are formally entitled to for fear of coming to the attention of the immigration authorities.[155] The result, once again, is that while equal citizenship requires rights for everyone, it also tolerates, and perhaps even demands, the exclusion of certain territorially-present non-nationals—with the effect that the inclusive force of the principle of equal citizenship is both directly and indirectly compromised. The ambiguous status of aliens under an equal citizenship regime makes clear that the marriage of personhood with equal citizenship proposed by Karst and the others is bound to be a partially unstable union. However compatible the idea of equal citizenship is with rights for persons qua persons in most cases, the idea of citizenship also presupposes a bounded national community. This is a community characterized by exclusionary commitments—political and territorial commitments—that will inevitably clash with a pure personhood rights approach. And it is precisely in the context of aliens’ rights where that tension is most likely to emerge. For all of these reasons, the claim by Karst, Bobbit, Ely, and the others to the effect that aliens can be the subjects of citizenship, and their suggestion that the revitalization of the idea of constitutional citizenship need not, in principle, result in a total diminution of rights for aliens, each seem quite plausible. There is, nevertheless, an intrinsic limit to the citizenship that aliens can enjoy. Theirs is something of a second-class citizenship—though this is not second-class citizenship in its classical form, pursuant to which those afforded the formal status of citizenship are nevertheless denied many of the rights of citizenship in law and in practice. This is, instead, a second-class citizenship in which the individuals involved enjoy many of the substantive rights of citizenship even in the absence of formal citizenship status; and yet the scope of the rights they enjoy is, at the same time, constrained by virtue of citizenship’s other substantive commitments which include a commitment to national exclusivity and closure.

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Taking a look at the 14th amendment, the only citizen requirement is for the privileges and immunities clause.  This Rights K only links to plans that grant rights to citizens only.  The Due Process Clause and the Equal Protection Clause of the 14th amendment apply to all persons in the US and do not discriminate between aliens and citizens.  Thus, the Bosniak 02 card doesn't link. 

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