What Difference Does Citizenship Make? Even Less, After Boumediene
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.