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8. A New Vision of Citizenship?
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| 147 8 A New Vision of Citizenship? On June 12, 2008, your country’s Supreme Court ruled that a few hundred detainees held at an off-shore military base had the constitutional right to challenge their imprisonment in federal court by writ of habeas corpus, striking down the alternative military review process established by your country’s congressional and executive branches for the so-called enemy combatants. Though the decision was from a divided Court (5-4 decision) and led the headlines in print and on conservative talk shows, your country’s civil rights organizations, such as the Centre for Constitutional Rights, declared the decision “a historic victory for Executive accountability.” Despite this purported civil rights victory, the media and pundits alike failed to recognize that the decision unfortunately also had the consequence of confirming the denial of civil rights to millions of your country’s citizens. Specifically, in reaching its decision concerning the rights of these prisoners, the Court also endorsed your country’s expansionist past, which resulted in maintaining millions of your citizens in a subordinate or second -class citizenship status. The citizens who remained disenfranchised by this decision were the inhabitants of your country’s overseas island conquests acquired at the turn of the nineteenth and twentieth centuries. The inhabitants of these lands were never afforded the complement of constitutional rights their mainland counterparts enjoy. Surprisingly, there was no mention in the media or even academic circles concerning the maintenance of this subordinate status for millions of your countrymen and women. The illusion of membership and equality of citizenship remain intact. Fact or Fiction? Unfortunately, not unlike the fictional tale set forth in the beginning of this book, the above hypothetical is based on actual events. In Boumediene v. Bush,1 the Supreme Court of the United States recognized certain constitu- 148 | A New Vision of Citizenship? tional rights for the detainees in Guantanamo Bay, but in doing so, further confirmed the disenfranchised status of millions of U.S. citizens living in U.S. dependent territories. The reason why the Court, in an essentially criminal case pertaining to noncitizens, dealt with the rights of overseas-island-inhabitant U.S. citizens is that the government argued that the Constitution did not fully apply abroad.2 The Court therefore was compelled to address the Constitution’s extraterritorial application. The Court specifically addressed one of the subjects of this book’s grouping of subordinate citizens, stating, “Fundamental questions regarding the Constitution’s geographic scope first arose at the dawn of the 20th century when the Nation acquired noncontiguous Territories: Puerto Rico, Guam, and the Philippines. . . .”3 Citing the Insular Cases addressed in this book, the Court somewhat astonishingly justified the failure to fully apply the Constitution to the U.S. citizens because “the former Spanish colonies operated under a civil-law system , without experience in the various aspects of the Anglo-American legal tradition,” which resulted in the Court’s creation of the legal fiction of the incorporation doctrine. As mentioned previously, the incorporation doctrine provided that the U.S. Constitution only applied fully to territories destined for statehood.4 With very little analysis, the U.S. Supreme Court this past year essentially declared that even after a century under U.S. rule of most of these territories, the inhabitants of such lands were still unfit to accept Anglo-American legal concepts. In an analysis that resembles the travesty of the Dred Scott case of over a century ago, the highest court of this land formally endorsed the subordinate status of the U.S. citizens of this country’s overseas territories. This is just the latest example of a Western democracy endorsing the gradations of membership. Ironically, such an open and bold confirmation of the notion of inferior membership has gone virtually unnoticed in academic or other public arenas. By rejecting the government’s argument that the noncitizens designated as enemy combatants and detained in a nonstate territory have no constitutional rights, the Boumediene Court appeared to address the century-long question of whether the U.S. Constitution applied to all U.S. territories. The Court, however, refused to go that far. By failing to do so, it maintained a status quo that subordinates the rights millions of U. S. citizens who happen to reside in lands captured, but not incorporated, by the United States. As a result, millions continue to exist in an alien-citizen paradox, whereby they are U.S. citizens by birth but do not enjoy basic...