Citizenship Exceptionalism: How the Deportation Power Has Reduced Constitutional Protection for Everyone

In the 1970s Alexander Bickel exalted how little citizenship mattered when it came to constitutional rights.  In his view, the Constitutional only cared whether the person claiming constitutional protection was a person, and citizenship mattered little. According to Bickel because both the Fifth and Fourteenth amendment referred to "persons" rather than citizens when discussing due process or equal protection, citizenship was simply "not important." Bickel celebrated this feature of the US constitution, and this viewed was in part influenced and echoed Hannah Arendt's fearful pronouncement that "citizenship" was the "right to have rights." Bickel was casting the US Constitution as an exception to this rule. 

Citizenship however has always been of extreme importance to those who feared exile. As Martha Jones described, antebellum free blacks saw Johnson v. McIntosh and the Indian Removal Act coupled with the Colonization Movement as highlighting the importance of establishing citizenship to protect against forced exile and deportation. 

Even as the United States established birthright citizenship with the 14th Amendment in 1868, the Chinese exclusion cases decided twenty years later made it clear that deportation was an unreviewable power that was beyond the reach of the 14th Amendment. 

Even though the underlying doctrinal framework had been established with Chinese Exclusion, it wasn't until the deportation "machine" became established and fully wielded as a national policy that its implications would be realized. 

In his lecture Linus Chan will describe how the growing reality of immigration detention and deportation has transformed our understanding of constitutional due process and equal protection away from "personhood" into something where citizenship becomes all too relevant. He will also discuss how centering this conversation on citizenship weakens the Constitution for everyone, citizen and non-citizen alike.

Linus Chan is an associate professor of clinical law and the director of the Detainee Rights Clinic. He is an immigration attorney that focuses on removal defense for those detained by Immigration and Customs Enforcement. He also teaches in the area of intersection of criminal and immigration law.