Being here: Ethical territoriality and the rights of immigrants

Theoretical Inquiries in Law

Volumn 8, Issue 2, 2007, Pages

  Bosniak, Linda ^a  

^a and law in the military   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547260197     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1155     Document Type: Review

References (80)

1. For an excellent recent analysis of the legal significance in the United States of geographical presence and lack thereof, see Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501 (2005).
2. On this account, a person's rights increase the closer to the center that the she or he progresses. See T. ALEXANDER ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 2 (5th ed. 2003).
3. To say territoriality is a physical fact is not quite accurate, as I will explain below. See infra text accompanying notes 31-34.
4. Linda Bosniak, Membership, Equality, and the Difference That Alienage Makes, 69 N.Y.U. L. REV. 1047 (1994);
5. see also LINDABOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP ch. 3 (2006)
6. [hereinafter BOSNIAK, THE CITIZEN AND THE ALIEN]. In The Citizen and the Alien, my concern is the tensions between these commitments, whereas in this Article, I consider what they share in common.
7. I elaborate these arguments at length in BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 4.
8. MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 59 (1983).
9. Id.
10. Id. at 60-61. The European guestworker programs of the 1970s were similarly defective: ostensibly democratic communities imported foreigners to function as "live-in servants" to do the society's "dirty work," but these workers had no prospect of ever moving beyond that status.
11. Id. at 43.
12. BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 4, ch. 3.
13. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
14. This is a powerful strand of constitutional doctrine that has fundamentally structured the treatment of noncitizens in the United States. It is the strand that has competed with the so-called "plenary power doctrine" in immigration law, according to which the national state is largely unconstrained in exercising its sovereign right to regulate borders. In fact, noncitizens are subject to both regimes, which are often in conflict. See BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 4, ch. 3.
15. For discussion of the difference that alienage makes in U.S. law, see BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 4, chs. 3, 4.
16. I say "directly" because Walzer does not appear to oppose all indirect forms of constraint on the rights of noncitizens. Given Walzer's commitment to a national community's right to maintain an admissions policy, he presumably would endorse the community's authority to deport noncitizens in some circumstances. However, the deployment of the deportation threat as a means of social control is subject to explicit critique by Walzer. See infra note 26.
17. Again, in Walzer's formulation, "to the extent that immigrants who live and work within a national community are not recognized as members, they are subject to nothing short of 'tyranny.'" WALZER, supra note 6, at 59.
18. Id. at 39.
19. Id.
20. The last two sentences in the text appear in almost identical form in my discussion of Walzer in BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 4, at 40.
21. As Walzer says, "the theory of distributive justice must vindicate at one and the same time the . . . right of closure and the political inclusiveness of existing communities." WALZER, supra note 6, at 63.
22. I have called this construct a "hard-on-the-outside and soft-on-the-inside" conception of citizenship. BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 4, chs. 1, 5, 6.
23. Sphere separation is a central concern of Walzer's throughout Spheres of Justice. See the discussion in BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 4, ch. 3. In his work, separation is not merely a descriptive reality but also a normative imperative.
24. "I am not surreptitiously questioning the validity of laws regulating the admission of immigrants to this country. For present purposes, I am prepared to assert that these laws are just." Owen Fiss, The Immigrant as Pariah, BOSTON REV., Oct.-Nov. 1998, at 4,
25. reprinted in A COMMUNITY OF EQUALS: THE CONSTITUTIONAL PROTECTION OF NEW AMERICANS 3, 16 (Joshua Cohen & Joel Rogers eds., 1999) [hereinafter Fiss, The Immigrant as Pariah].
26. See response by Mark Tushnet, Open Borders, in A COMMUNITY OF EQUALS: THE CONSTITUTIONAL PROTECTION OF NEW AMERICANS, supra, at 69, 69 ("Owen Fiss's proposal doesn't go far enough. He assumes that an immigration policy founded on creating legal barriers to people's entry into this country is just.").
27. Fiss, The Immigrant as Pariah, supra note 20, at 16.
28. See especially SAMUEL SCHEFFLER, BOUNDARIES AND ALLEGIANCES: PROBLEMS OF JUSTICE AND RESPONSIBILITY IN LIBERAL THOUGHT (2002).
29. There are certainly debates to be had about its normative attractiveness in the first instance. The commitment to exclusion at the borders has been criticized by a number of analysts. See discussion infra text accompanying note 27.
30. Fiss, The Immigrant as Pariah, supra note 20, at 16.
31. In fact, a lot of the fights over the rights of immigrants in the U.S. are disputes over the question of how far the border legitimately extends within the national society. So, for example, in the debates over whether undocumented immigrants should be entitled to driver's licenses, we are arguing about whether this is legitimately a border control question or whether it is a question about the rights of territorially present persons. For further discussion, see LINDA BOSNIAK, THE UNDOCUMENTED IMMIGRANT: CONTENDING POLICY APPROACHES IN DEBATING IMMIGRATION (Carol Swain ed., forthcoming 2007).
32. This is an effect Walzer recognizes, though not specifically in relation to the undocumented: a democratic community is undermined when some of its residents are subject to what he calls the "everpresent threat of deportation." WALZER, supra note 6, at 58.
33. These points have been powerfully made by a handful of theorists in legal and political theory, including Joseph Carens and, more recently, Ayelet Shachar. See Joseph Carens, Aliens and Citizens: The Case for Open Borders, 49 REV. POL. 251 (1987);
34. Ayelet Shachar, Children of a Lesser State: Sustaining Global Inequality Through Citizenship Laws, in NOMOS XLIV: CHILD, FAMILY AND THE STATE 13 (Stephen Macedo & Iris Marion Young eds., 2002). But these arguments tend to be regarded as utopian in nature and fail to have much influence on the mainstream debates, not merely in the policy arena but in the academy as well.
35. According to Mae Ngai, Before 1891 there were no provisions in our immigration laws to deport an immigrant who entered without permission. (Indeed, hardly any requirements for admission existed.) Thereafter, Congress enacted statutes of limitations of one to five years for deportable offenses. This policy recognized an important reality about illegal immigrants: They settle, raise families and acquire property - in other words, they become part of the nation's economic and social fabric. In the first decades of the 20th century, it was considered unconscionable to expel such people. Judge Learned Hand of New York said that deportation, especially when it tore people from their homes and families, was "barbarous and cruel."
36. Mae M. Ngai, We Need a Deportation Deadline: Statute of Limitations on Unlawful Entry Would Humanely Address Illegal Immigration, WASH. POST, June 14, 2005, at A21.
37. This is the same concern that opponents of various amnesty or legalization programs express.
38. It is the same charge of territorial opportunism that is directed against socalled birth tourists. The iconic image is that of the impoverished Mexican woman who manages to drag herself across the Rio Grande just before giving birth in order to convey U.S. birthright citizenship on her newborn. But there are more affluent versions as well. See Barbara Demick, Women Take Trips to Give Birth in U.S.: For South Koreans, American Citizenship is Best Present for Baby, MILWAUKEE J. SENTINEL, June 2, 2002, available at http://www.findarticles.com/p/articles/mi_qn4196/ is_20020602/ai_n10796512.
39. The government sought to take advantage of the rule in U.S. law that noncitizens located outside U.S. territory are entirely unprotected by the Constitution. See Johnson v. Eistentrager, 339 U.S. 763 (1950). This is, of course, a territoriality rule that is both the inverse, and corollary, of the one I am concerned with in this Article. In this context, lack of territorial presence - at least for noncitizens - means lack of rights and recognition.
40. In Rasul v. Bush, 542 U.S. 466 (2004), the U.S. Supreme Court repudiated the government's claim that Guantanamo is outside the U.S., holding that the individuals seeking redress have "for more than two years . . . been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."
41. Id. at 467.
42. According to the Supreme Court, Puerto Rico is "foreign in a domestic sense." Downes v. Bidwell, 182 U.S. 244 (1901). For an important volume addressing the meaning and import of this phrase, see CHRISTINA DUFFY BURNETT & BURKE MARSHALL, FOREIGN IN A DOMESTIC SENSE: PUERTO RICO, AMERICAN EXPANSION AND THE C ONSTITUTION (2001).
43. The entry fiction "holds that excludable aliens are to be treated as if detained at the border despite their physical presence in the United States." Lynch v. Cannatella, 810 F.2d 1363, 1373 (5th Cir. 1987).
44. See especially Shaughnessy v. United States ex rel Mezei, 345 U.S. 206 (1953), which held that a returning lawful permanent resident being held on Ellis Island was not within the United States and therefore not entitled to invoke the Constitution on his behalf to challenge his indefinite detention. This case has never been overruled and is still invoked by the Court as governing law.
45. See Zadvydas v. Davis, 121 S. Ct. 2491 (2001).
46. "Rendition is the CIA's antiseptic term for its practice of sending captured terrorist suspects to other countries for interrogation." David Ignatius, Rendition Realities, WASH. POST, Mar. 9, 2005, at A21.
47. See generally Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 106.
48. It is interesting to note that this is a question that anti-immigrant advocates pose all the time. They query why the fact that a person has managed, by hook or by crook, to get herself "in" should, by itself, confer advantage. Implicit in such a critique is not merely unhappiness about possible irregular entry but also the conviction that merely being here should not be enough to trigger obligations and recognition; there has to be something more. The "something more" that many anti-immigrant advocates believe must exist is formal legal status, acquired through rule-following and state consent. But even if we reject such formalism, we are still faced with the question of why territoriality alone should be enough.
49. Raustiala, supra note 1, at 2546.
50. There are, of course, other uses of the term "territoriality." With the rise of the Westphalian State system, territoriality became the rule associated with the scope of sovereign state power: In the classic model, a sovereign state enjoyed plenary power within the territory and was constrained from acting outside it. But territoriality as a rule about scope of power - about jurisdiction - and territoriality as a rule about the basis for rights and recognition of individuals are not the same thing; indeed, they could be in tension. Classically, a sovereign was entitled to treat persons within its territory as it desired, without constraint. The commitment to ethical territoriality, in contrast, specifically acts as a limit on state discretion; it is a requirement of a particular kind of state action toward individuals within that state's territory.
51. In using the language of "affiliations," I am borrowing from HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006). Motomura describes "immigration as affiliation" as a way of viewing the rights and incorporation of immigrants that "depend[s] on the ties that they have formed in this country."
52. Id. at 11.
53. My use of affiliation is also meant to reference the "ties formed" by immigrants. But my account differs from Motomura's in this respect: Motomura regards "immigration as affiliation" as an approach to immigrants' rights that "evolved" out of an earlier commitment to "territorial personhood," pursuant to which "simply being present in the United States bestows certain . . . rights." Id. at 10. In contrast, I am using the idea of affiliation to explain why ethical territorialism has emotional and political resonance. I view an affiliations conception of membership, in other words, as a way of making sense of territorialism's purchase - although in my analysis I also show how territorialism and affiliationism are in some ways distinct.
54. Yishai Blank, Spheres of Citizenship, 8 THEORETICAL INQUIRIES L. 411 (2007).
55. Doreen Massey, Geographies of Responsibility, 86B GEOGRAFISKA ANNALER 5 (2004).
56. Some characterize the relationship that exists between particular people and their territory in quasi-essentialist terms. For instance, David Miller writes, Through custom and practice as well as by explicit political decision [members of a political community] create laws, establish individual or collective property rights, engage in public works, shape the physical appearance of the territory. Over time this takes on symbolic significance as they bury their dead in certain places, establish shrines or secular monuments and so forth. All of these activities give them an attachment to the land that cannot be matched by any rival claimants.
57. DAVID MILLER, Secession and the Principle of Nationality, in CITIZENSHIP AND NATIONAL IDENTITY 110, 116 (2000). An "attachment to the land" concept does not seem to support the ethical territorial position, because it presupposes an already-existing membership community that maintains an ongoing relationship with the land in question. The ethical territorial view is far more open, holding that the fact of presence within the state's borders, even if of recent vintage, is itself the basis for community membership.
58. The word "inhabit" interestingly highlights this ambiguity regarding the ethical significance of territorial presence versus residence. The American Heritage Dictionary contains two definitions for the term: "1. To live or reside in. 2. To be present in; fill." AMERICAN HERITAGE DICTIONARY 901 (4th ed. 2000).
59. Joseph Carens, On Belonging: What We Owe People Who Stay, BOSTON REV., Summer 2005, at 16.
60. See generally United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
61. See Carens, supra note 43, at 19 ("The general principle with which I began - the longer the stay, the stronger the claim - applies even in the case of those who have settled without authorization, and for the same reasons. When people settle in a country they form connections and attachments that over time make them members of the society. After a while, the conditions of admission become irrelevant.").
62. Walzer emphasizes the normative significance of the social contribution through labor made by immigrant workers in his examination of alien status. WALZER, supra note 6, at 52-61.
63. See Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447, 470-88 (2000).
64. If the world is too big for the development of community affiliations, so, too, is a nation. See Bruce Robbins, Introduction: Part I, in COSMOPOLITICS: THINKING AND FEELING BEYOND THE NATION 6 (Pheng Chea & Bruce Robbins eds., 1998).
65. For further discussion, see Bosniak, supra note 47, at 489-509.
66. WALZER, supra note 6, at 61.
67. Gerald Neuman has described such a concept in American constitutional law as the "mutuality of obligation" approach. GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS AND FUNDAMENTAL LAW (1996) (especially ch. 6).
68. See also Raustiala, supra note 1.
69. See NEUMAN, supra note 50, on "mutuality of obligation."
70. In U.S. constitutional law, citizens abroad may claim protections against the exercise of American power, but aliens abroad may not. Compare Reid v. Covert, 354 U.S. 1 (1957),
71. with Johnson v. Eistentrager, 339 U.S. 763 (1950).
72. See generally NEUMAN, supra note 50, at 99-100 (arguing on behalf of a "modern form of the mutuality [of obligation] approach . . . [which] extends constitutional rights to aliens abroad . . . in those situations in which the United States claims an individual's obedience to its commands on the basis of its legitimate authority").
73. Kal Raustiala's outline of a "despatialized understanding of legal rules and protections" is a good starting point. See Raustiala, supra note 1.
74. Iris Marion Young, Responsibility and Global Justice: A Social Connection Model, 23 SOC. PHIL. & POL'Y 102, 102 (2006);
75. see also Iris Young, From Guilt to Solidarity: Sweatshops and Political Responsibility, DISSENT, Spring 2003, at 39. Many other theorists across the disciplines have certainly paved the way.
76. See, e.g., CHARLES BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS (1979);
77. Thomas Pogge, Cosmopolitanism and Sovereignty, 103 ETHICS 48 (1992);
78. Martha Nussbaum, Patriotism and Cosmopolitanism, BOSTON REV., Oct.-Nov. 1994, at 19;
79. Robbins, supra note 48;
80. Massey, supra note 41.