Citizenship and Its Exclusions: A Classical, Constitutional, and Critical Race Critique

Notes

| 159 Chapter 1 1. Ellen S. Podgor, Jose Padilla, and Martha Stewart, Who Shall Be Charged with Criminal Conduct?, 109 Penn. St. L. Rev. 1059 (2005); Leti Volpp, Impossible Subjects: Illegal Aliens and Alien Citizens, 103 Mich. L. Rev. 1595 (2005). 2. Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2002). 3. Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564 (S.D.N.Y. 2002), rev’d, Padilla ex rel. Newman v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), rev’d, Rumsfeld v. Padilla, 542 U.S. 426 (2004). 4. See, e.g., David Cole, Enemy Aliens, 54 Stan. L. Rev. 953 (2002); Thomas W. Joo, Presumed Disloyal: Executive Power, Judicial Deference , and the Construction of Race before and after September 11, 34 Colum. Hum. Rts. L. Rev. 1 (2002). See also “Rights and the New Reality: Self-Inflicted Wounds; Secret Deportation Hearings, U.S. Citizens Denied Due Process While in Custody. These Evoke Memories of Dictatorships and Undermine the Health of Our Democracy,” L.A. Times, Sept. 10, 2002, at B12 (mentioning that disparate treatment of Hamdi, Lindh, and Padilla drew questions from Senator McCain and other leaders, including at least one federal judge). 5. Natsu Taylor Saito, Interning the “Non-Alien” Other: The Illusory Protections of Citizenship, 68 L. & Contemp. Probs. 173, 20810 (2005) (arguing Padilla is both an internal Other by virtue of his race and ethnicity, and perceived as an external Other as a result of his conversion to Islam and the political associations attributed to him); Joanna Woolman, The Legal Origins of the Term“Enemy Combatant” Do Not Support Its Present-Day Use, 7 J. L. & Soc. Challenges 145, 159-60 (2005); Eric K. Yamamoto, White (House) Lies: Why the Public Must Compel the Courts to Hold the President Accountable for National Security Abuses, 68 Law & Contemp. Probs. 285, 313-14 (2005) (explaining that Lindh, a White American from a middle-class family in California, fit the description for enemy combatant, but the government declined to label him as such; Hamdi, a U.S. citizen of Arab descent, and Padilla, a Puerto Rican, did not fit the description but were labeled enemy combatants). 6. While not the focus of this project, a brief discussion of pertinent law relating to the treatment of citizens suspected of disloyalty would be helpful. The leading case on the subject is Ex parte Milligan, 71 U.S. 2 (1866), in which the Court addressed the propriety of a military court’s jurisdiction over a citizen who was not a member of a military force. The Court held that the military court had no jurisdiction over such a person and rejected the government’s argument that the Bill of Rights did not apply during times of war. Id. at 118-30. The Court concluded that the military trial violated Milligan’s Sixth Amendment right to a trial before an impartial jury and his Fifth Amendment right to a grand jury. Id. The second leading case on the subject is Ex parte Quirin, 317 U.S. 1 (1942). In that case, departing from Milligan, the Court refused to find that either the Fifth or Sixth amendments prevented a naturalized U.S. citizen accused of conspiring with a foreign wartime enemy from being tried by a military Notes 160 | Notes to Chapter 1 tribunal. The Court found no distinction between citizen and foreign belligerents. Id. at 37-38. The Court distinguished Quirin from Milligan by noting that “Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war. . . .” Id. at 45. 7. See, e.g., Juliet Stumpt, Citizens of an Enemy Land: Enemy Combatants, Aliens, and the Constitutional Rights of the Pseudo-Citizen, 38 U.C. Davis L. Rev. 79 (2004). 8. At least one other person has recently argued that the “enemy combatant” cases of Hamdi and Padilla have blurred citizenship constructions. See Stumpt, supra note 7. 9. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1262-84 (1992). 10. Jonathan C. Drimmer, The Nephews of Uncle Sam: The History, Evolution, and Application of Birthright Citizenship in the United States, 9 Geo. Immigr. L.J. 667, 667 (1995). 11. Alexander M. Bickel, The Morality of Consent 33 (Yale Univ. Press 1975). 12. Id. 13. Derek Heater, Citizenship: The Civic Ideal in World History, Politics, and Education 291 (Manchester Univ. Press 1990). 14. The Basic Works...