Arendt, Agamben and the Issue of Hyper-Legality

In Between the Prisoner-Stateless Nexus

Kathleen R. Arnold

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351211246
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

In the Origins of Totalitarianism, Hannah Arendt famously argued that the stateless were so rightless, that it was better to be a criminal who at least had some rights and protections.

In this book, Kathleen R. Arnold examines Arendt's comparison in the context of post-1996 U.S. criminal and immigration policies, arguing that the criminal-stateless binary is significant to contemporary politics and yet flawed. A key distinction made today is that immigrant detention is not imprisonment because it is a civil system. In turn, prisoners are still citizens in some respects but have relatively few rights since the legal underpinnings of "cruel and unusual" have shifted in recent times. The two systems – immigrant detention and the prison system – are also concretely related as they often house both populations and utilize the same techniques (such as administrative segregation). Arnold compellingly argues that prisoners are essentially made into foreigners in these spaces, while immigrants in detention are cast as outlaws.

Examining legal theory, political theory and discussing specific cases to illustrate her claims, Arendt, Agamben and the Issue of Hyper-Legality operates on three levels to expose the degree to which prisoners' rights have been suspended and how immigrant policy and detention cast foreigners as inherently criminal. Less talked about, the government in turn expands sovereign, discretionary power and secrecy at the expense of openness, transparency and democratic community. This book will be of interest to scholars and students of contemporary political theory, philosophy and law, immigration, and incarceration.

1

Personhood

The manipulation of the concept of personhood and the legal distinctions among “persons” pervert the society’s ideals, furthering and maintaining the exploitation, including enslavement, of some by others. Quasipersonhood is constructed within the legal system and deployed with the resulting normalization of the exclusion of certain groups that sets the stage for their exploitation by others within the society.

Karen Bravo, 499¹

Everything depends on the object of humane treatment: the legal protection of slaves, for example, never prohibited mutilation or “correction even unto death,” words that would be echoed in the “torture memos” of the Bush White House on the legal limits of interrogation. Humanitarian claims and benign moral rectitude have always permitted the torments of continued servitude.

Colin Dayan, 185²

Often invoking Hannah Arendt’s work in the Origins of Totalitarianism, contemporary researchers interested in migration, statelessness, and human rights have often assumed that foreigners have fewer rights than citizens and even criminals. A hierarchy is implied, which rests on the idea that a citizen has more rights than a foreigner, a criminal has more rights than a stateless person, and an internment or refugee camp is more lawless than a prison. The foreigner and the camp, in turn, are marked by rightlessness and theoretically, appear to be universal categories, open to anyone unlucky enough to be in this situation. In turn, the rights of the citizen, criminal, and of the prison, are often viewed as inalienable and static. While there is some truth to the binaries, I argue in this chapter that legal personhood is one of the most important political classifications in the United States. In its narrowest sense, personhood is a term that has developed in legal debates since the introduction of the Fourteenth Amendment in 1868, which provided for the legal personhood and citizenship of all individuals “born or naturalized in the United States,” in the first sentence of Section 1 of the amendment.³ In the second sentence of this section, the privileges and immunities clause is applied to citizens but the second half of this sentence was and is used to protect all residents on U.S. soil: “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The use of the word “person” in this sentence, rather than “citizen,” is significant. While the amendment is most often looked at as a way to rectify the issues of slavery and disenfranchisement of African Americans more generally, the term personhood filled in the gaps between ius soli (citizenship based on birth) and naturalization. Indeed, the easy connection made between personhood and citizenship in the first line was clearly not intended for a significant number of residents – for example, women were not enfranchised because of this amendment nor were many other groups. Rather, this amendment provided for a status in between that of an absolutely disenfranchised subject and a citizen.

Nevertheless, it is the development of this legal term in the mid- to late 1800s that shaped a myriad of shifting political inclusions and exclusions. To the degree that personhood is obscured by the resort to the more traditional or conventional binary between citizen and foreigner, the complex web of exclusions that certain groups continue to experience seems mysterious. Examining the role of legal personhood helps to fill in these gaps, making current instances of non-personhood or quasi-personhood less surprising and less novel. In a more abstract sense, this analysis shows how the past influences the present and what modern states like the United States have seemingly left behind or eschewed – the irrational, the barbaric – remain intact. Colin Dayan argues that previous forms of civil death, allegedly defunct techniques of punishment and torture, and broader forms of social ostracism “haunt” current legal practices and ideas, exposing the absurdity of apparently rational systems: “the irrational haunts the civilizing claims of the reasonable. The shadows of the Furies, buried so that the polis could be born, still pursue the icons of order. So the modern state, its counterfeits and its terrors, betrays a subterranean legacy.”⁴ In this chapter, I use the term in the legal sense rather than as a philosophical term or as a term often used by progressive immigration scholars who argue for the “personhood” of immigrants. My use of the term is strictly American, following its unique relationship to race, gender, mental fitness, indigeneity, and class position as historically developed. As Dayan remarks, the law has created these shifting notions of personhood that are nevertheless often referred to as if they were concrete, with accompanying forms of civil death, thus creating life and destroying it normatively and discursively. These legal formulations most often are above and beyond the lived experience of the individual involved.⁵

As I note below, I approach my analysis as the law has – by focusing on groups individually as if one identity mattered more than others. This is due to the fact that policy and law emerged in identitarian terms (e.g. black or a woman or immigrant), ignoring significant overlaps in individual identity and group belonging. That is, the personhood of one group was conceived of differently than that of others, even as politicians, judges and others also compared groups when determining legal status (e.g. in determining who could be a credible witness in reference to debates about “colored” peoples). For these reasons, the history of personhood is not a linear one and was and is often contradictory or illogical.⁶ As is evident below, personhood has sometimes been conceived of as simply a “second class citizen,” indicating that citizenship is an attainable goal, and at others has been closer to a more dehumanized legal subject who may have some inalienable rights, and yet not the right to these rights. As I suggest, when individuals are viewed as persons rather than citizens, their very humanity is in question. Indeed, as Michel Foucault would have predicted, the emergence of this term did not lead to an increasingly inclusive political status – the term was and continues to be used to deny rights and protections. The most shocking aspect of the history I recount below is that immigrants are essentially “non-persons” in many respects and this non-personhood has proliferated in recent years.⁷ But the history of foreigners’ non-personhood was and is inextricably tied to the non-personhood of other marginalized groups who today are called “citizens” and yet treated as foreigners in important ways. Disturbing and even horrifying conditions in detention centers and supermax prisons are the logical extension of non-personhood or quasi-personhood and this rightlessness is made more profound by these geographical spaces in and of themselves. The creation of “enemy combatants” is also rooted in these older forms of non-personhood but also brings to an extreme the condition of non-existence in the legal context. Below I recount a schematic history of personhood⁸ in order to understand the importance of this term, despite its invisibility in mainstream discussions of political inclusion.⁹

Personhood

It is important to understand the historical, political and legal antecedents of today’s issues regarding the legal status of personhood, particularly as this status became more prominent and yet more contested in the mid- to late 1800s.¹⁰ Although authors like Alexis de Tocqueville studied the United States as the most advanced democracy in the world in the 1800s, he noted that a significant number of people weren’t enfranchised.¹¹ Indeed, I would add, they were not merely disenfranchised, which might signal a sort of political indifference or legal void, but their identity often constituted the dialectical opposite of citizen. This clearly led to narratives justifying policies and practices that enslaved many, indentured many others, and confined and exploited even more, not to mention the genocide of Native Americans. Throughout the time period de Tocqueville analyzed, there were varied forms of political inclusion and exclusion but political status alone did not define the conditions and norms to which any particular individual or group was subjected.¹² That is, legal definitions of personhood were not merely the outcome of a bureaucratic decision but rather an indication of social norms, the power of civil society groups, and, very often, economic conditions. A key issue was whether certain individuals who were clearly ineligible for citizenship were still persons before the law. During the 1800s, debates about who constituted a “person” were prevalent for several reasons.

Most importantly, the Constitution does not define citizenship in any depth, much less mention the word “citizen” more than a few times. In the mid-1800s, there were varying levels of membership and rights, including periods of time when immigrants and racial minorities were allowed to vote,¹³ followed by the loss of those rights.¹⁴ Rather than citizenship, personhood became an undefined and yet oft-used term to debate legal status. At its best, personhood was a designation that would allow an individual to be recognized as lawfully present in the United States and entitled to the protections, rights, and privileges afforded by the Constitution. However, a lot of these debates were not merely positive (i.e. conferring rights onto the previously rightless) but also negative, creating what Karen Bravo has argued are “stratified” notions of personhood (or “quasi-personhood” in her words):

¹⁵

It is used to delineate the legal personality of actors within the society, i.e., their rights and obligations, and to further the policies and ideals of the state and polity … The gap between the entities recognized as “persons” and the rights recognized in and enforced on their behalf often contrasts with the physical existence, basic needs, and legal rights of human beings.¹⁶

Quasi-personhood in this sense means “less than”: a sort of personhood that is shaped in opposition to citizenship. By the late 1800s, personhood norms were more clearly defined, although the definitions were not singularly conceived: debates about each group formed a separate but related body of interpretation about the meaning of personhood.¹⁷ It is important to note that through each set of debates, the federal government was shaping and justifying its power, slowly superseding the power of states. And it is interesting that the most important discussions about and policies on personhood occurred after the Civil War, when the federal government had become considerably strengthened. The legal contours of personhood were shaped by four historical trends related to: the status of African Americans, the treatment of foreigners, the legal standing of Native Americans, and the legal status of women.¹⁸

Perhaps obviously, various debates about the rights of slaves and freed African Americans were significant in determining who was a “person” according to the Constitution. As readers probably know, a key question preceding the Civil War was, if and when a slave entered a free state, would s/he then be free? The fugitive slave laws (beginning in 1850) and the Dred Scott case of 1857 diminished the possibility of personhood for African Americans.¹⁹ As in future immigration cases, the Supreme Court ruled that Scott and his family had no right to a federal hearing because he was ineligible for citizenship. To put it differently, Scott was denied personhood, according to the Constitution.²⁰ Up to this point, federal and state institutions had had an ambivalent attitude towards the legal status of African Americans. African Americans were not persons before the law or according to the Constitution, but in criminal cases, their personhood was often fully accepted.²¹ For example, before laws prohibiting the murder of slaves were passed, judges often “stressed slaves’ essential humanity.”²² Conversely if a slave was accused of a crime, they were also treated as persons partly to hold them fully responsible for their alleged crimes and partly because some judges believed that the administration of justice required treatment of the individual in question as a person.²³ The Scott case tipped the balance toward viewing enslaved African Americans as property rather than persons, as well as giving power to states and localities to determine the fate of African Americans.²⁴ The case also resolved the issue of ius soli as it held that African Americans’ birth and residence on U.S. soil would not lead to any sort of legal status whatsoever in any of the states. While the 13^th and 14^th Amendments (discussed below) seemingly resolved the problem of personhood, a more accurate way to view the situation was that while personhood was later conferred on African Americans at federal levels, it was often denied at state and local levels. Interestingly, as I discuss below, a sort of opposite process occurred for immigrants who were denied personhood at the federal level but allowed personhood in states and localities up until 1996.²⁵

Like the treatment of Native Americans and immigrants, African Americans’ exclusion from the rights of citizenship went far beyond an indifferent sort of marginalization. Court decisions during this time period were not merely legal but inextricably bound up with racist norms and beliefs which ensured that mere reform would not resolve the complex web of political, social and economic exclusion that was being formed. But the other similarity linking these groups was that freed slaves were often barred from states entirely – like Chinese Exclusion in the future – and many were “deported” from states or even deported as punishment for crimes beyond the territory of the United States. Arkansas, for example, attempted to “deport all free African America...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction
• 1. Personhood
• 2. Is it Better to be a Criminal than a Stateless Person? Revisiting Arendt’s Famous Comparison
• 3. Blurring Boundaries
• 4. Democratic Sacrifice and Heroism in the Context of Tragedy
• 5. Blurring Paradigms
• 6. Conclusion: Is it Better to Be a Criminal than a Stateless Person?
• Cases Consulted
• Index