2012 Symposium – Day Two: In Brief

What is the Value of Citizenship?

Peter Spiro, Temple University, The Difference that Citizenship Doesn’t Make

Professor Spiro postulated that citizenship may not actually make that much of a difference in contemporary America. He began by outlining a few elements of citizenship, including obligations, civil rights, public benefits, and locational security. The only distinctive obligation of citizenship not extended to noncitizens, Professor Spiro explained, was that of jury duty. Further, civil rights, especially those related to criminal defendants, have largely been extended to noncitizens through the equal protection doctrine. And  though there has been much worry about a race to the bottom with state-regulated public benefits, this has become largely a thing of the past. Instead, a true division between citizens and noncitizens is seen in the degree of locational security. While no citizens may be banished to a foreign country, noncitizens may be deported if found to be undocumented or convicted of a criminal offense. Professor Spiro pointed out, however, that the roughly 400,000 removals of an estimated 11-14 million undocumented migrants within the United States makes even this risk fairly small. He left the attendees with two interesting thought experiments: 1) Should immigration law scholarship make efforts to look beyond its nationalistic nature, taking into consideration the global context of noncitizen status? and 2) Why is the right to participate in a presidential election reserved for American citizens on a territorial-basis, when the effects can be felt by noncitizens around the world?

Rick Su, SUNY Buffalo, Immigrant Representation in the Reform City

Professor Su turned the discussion to the political participation of naturalized immigrants, particularly in the context of “Big City” politics. In examining why immigrant populations vote at lower rates now than before, he proposed that a difference in municipal political structures over time may be contributing to this disparity. He began with the “Machine City” – characterized by the large bosses and political machinery that mobilized the immigrant population to use the polls as a way of controlling resources. This idea of the vote as a commodity instead of a civic duty, however, gave way to the Progressive era in which the “Reform City,” concerned by corruption, cut off patronage  and turned more of the administration over to the state. A key component of this effort was the restriction of the immigrant vote. Though remnants of both the Machine and the Reform cities remain today, Professor Su remarked upon the proliferation of the “Fragmented City,” in which no one section controls a large piece of the pie.  Patronage and immigrant-voting power may exist at a local level but are largely ineffectual beyond a particular district. Professor Su concluded with a few comments. First, the legacy of these three models may explain the push to encourage state-based immigration enforcement as opposed to locality-based control. Secondly, while political participation has been seen as a sign of assimilation, mass participation by an immigrant group can just as easily be seen as its antithesis.

Polity Participation: Noncitizens & the Expansion of Legal Rights

Dan Kanstroom, Boston College, Empowering the “Voteless Class of Litigants:”  Noncitizens’ Legal Claims as Participation in the Polity

Professor Kanstroom focused his discussion on the ability of noncitizens to politically participate in the American polity through litigation. While some view this opportunity as a nuisance to the justice system, with activist lawyers helping undocumented migrants avoid deportation free of charge, Professor Kanstroom maintained that noncitizen litigation has a much more important role in American society. It is instead a “powerful and essential revitalizing force” for both immigrants and the polity as a whole, perhaps regrettable but assuredly necessary. It compels citizens to clarify what they believe about their own democratic and constitutional principles in a number of ways. These include using noncitizen challenges to re-conceptualize rights in the interests of evolutionary expansion, selecting noncitizens as subjects of a legal social experiment with citizen claims soon to follow, and using litigation to create hardline divisions between citizens and noncitizens. Therefore, Professor Kanstroom contends, noncitizen litigation should be viewed as a means by which to discover a more legitimate and successful American polity

Deep Gulasekaram, Santa Clara Law, Gun Rights as Citizenship Rights

In an interesting change of pace, Professor Gulasekaram used the Second Amendment to provide a prism by which to consider how the polity defines “the people” our Constitution protects. Specifically, he posed what he called an uncomfortable question: what happens when beliefs about equality and gun control converge? Professor Gulasekaram pointed out that as many as twenty-two states make a distinction between citizens and noncitizens with reference to individual gun rights. The court decisions concerning these distinctions do not have a clear rule on what constitutional principles are at stake; they cite the Second Amendment, equal protection, and federal preemption questions. Interestingly, District of Columbia v. Heller uses the language “members of the political community” to define “the people” whose rights are protected under the Second Amendment. In United States v. Verdugo Urquidez, the Court used the term “national community” when explaining why noncitizen residents, but not noncitizens in foreign countries, were protected under the Fourth Amendment. However, the Fifth Circuit has since found that “the people” of the Second Amendment are not “the people” of the Fourth Amendment, signaling that noncitizen do not have protected gun rights. Professor Gulasekaram posed a final series of questions: How can we justify a citizen/noncitizen distinction in light of the Second Amendment’s individual application after Heller? What does this “right of survival” mean in the context of “intergroup hostility” when noncitizen residents are left unprotected? And can constitutional interpretation really help when gun rights and gun controls are a cultural problem?

See a summary of Day One →