What Difference Does Citizenship Make? Even Less, After Boumediene

by Peter Spiro

Roger points to the importance of territory in marking the boundaries of citizenship. The other key element in constitutional cartography has been citizenship status, at least since Reid v. Covert. When it comes to enjoying the protection of the Constitution abroad, as a general matter citizens get it, noncitizens don’t.

Justice Kennedy’s opinion in Boumediene appears to slice at that in both directions. First, he plays up the fact that Black’s absolutist opinion in Reid was a plurality only, and that the case did not overrule In re Ross, in which a citizen’s right to trial by jury was found not to apply in the context of consular court prosecutions outside the territory of the United States. Notwithstanding the lack of five votes, Black’s opinion in Reid is typically treated as representing a pretty absolute rule of constitutional law: for citizens, the constitution is portable. Is Kennedy backtracking from that here? If so, having citizenship now gets you less.

(There is also the decision today in Munaf, in which the Court throws the bone of statutory habeas to citizen petitioners, in part by virtue of their status as such, only to find no relief with a decision playing hard on the retrograde territorialist logic of Schooner Exchange v. McFaddon.)

More obviously, the lack of citizenship may be less of a disability post-Boumediene. It’s still a part of the picture: on page 36 of the slip, where Kennedy lays out the test for determining the reach of the Suspension Clause, citizenship is in effect included as half a factor (and one that’s then completely ignored, for obvious reasons). Citizenship status seems to be one of the elements of formalism that Kennedy has in his cross hairs (the other being sovereignty). This doesn’t mean that noncitizen status is by any means irrelevant — Kennedy concurred in Verdugo-Urquidez, with some language playing up the citizenship factor — but perhaps to the extent “practical obstacles” to the application of constitutional rights don’t inhere, noncitizens now have an opening they didn’t have yesterday.


One Response

  1. I would say that those non-citizens had an opening yesterday under the international law principle of minimum standards of due process. One can look also to the Convention on the Elimination of All Forms of Racial Discrimination and other human rights treaties post WWII as working hard to raise the floor for human rights in all countries signator.

    What I think is going on here is that non-citizens rights are being brought closer to those traditionally seen only for citizens because the kind of distinction citizen/non-citizen that was a hallmark in the pre-Universal Declaration of Human Rights world in the 1940’s are less possible when state action has such dramatic effect on so many kinds of people.

    The national rights and human rights are being overlaid to state the obvious in a way that people of the 1940’s generation like Jackson or before would have difficulty understanding intuitively.

    I think many Americans today also have difficulty conceiving of the human rights strata as they are seen as inuring to people present in a foreign land.

    Americans are not educated in the fact that those human rights inure to their benefit and to those of non-citizens in the United States. Our Constitutional focus seems to blind many of us to that strata of rule of law protection.

    It is an ignorance which many of our political leaders attempt to make us think is a virtue.



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