Mary De Ming Fan, Citizenship Perception Strain in Cases of Crime and War: On Law and Intuition, 2010 Mich. St. L. Rev. 1 (2010), https://digitalcommons.law.uw.edu/faculty-articles/118
Michigan State Law Review
citizenship, illegal aliens
The jurisprudence on crime and war has repeatedly indicated that citizenship matters in determining the scope and applicability of constitutional protections. Just how citizenship matters and what vision of the citizen controls have been murky, however. A rich literature has developed deploring how the nation and the jurisprudence have appeared to slip beneath the baseline of protections when faced with formal citizens who challenge our popular notions about what citizens look like, feel like, and do. What warrants further examination is why this may be so. Understanding the processes that may blur the doctrine and lead to slippage in citizenship perception and protection is a step towards fashioning a standard that provides for greater doctrinal clarity and stability. This is the aim of this Article.[para] The Article argues that jurisprudential blurriness about the relevance of citizenship for the scope of legal protections stems in part from the confounding of our intuitions and categorical perception by the in-between categories of the citizen-like alien, alienated citizen, and citizen perceived as alien. Debates and doctrine slip between formal positive definitions of citizenship and our intuitions about the functional indicia of belonging. The Article argues for redressing the resulting blurriness and instability by regularizing our intuitions into a transparent rule to regulate which conception of citizenship should be deployed in defining the quantum of rights and protections due. Intuitions about citizenship's substance cannot be a basis for derogation from the minimum floor of rights and protections that would otherwise apply based on formal citizenship status. Functional ideas about citizenship despite formal status may, however, be a basis to accord protections above the minimum that would otherwise be dictated because of formal legal status.[para} Part I of the Article introduces three background concepts to frame the analysis. First, the multivalent and multiple meanings of citizenship are introduced. Second, the Article presents research regarding categorical cognition predicated on prototypes. Third, the Article introduces the idea of the affect heuristic and the interplay of intuition and affect with cognition on decisionmaking and judgment.[para] Part II presents an account of how the cognition and intuition of citizenship account for the slippage in the jurisprudence on the relevance of citizenship for the quantum of rights in the affectively charged contexts of crime and war. This Part examines the journey of jurisprudence through tumultuous times since the landmark ruling in Ex parte Milligan [71 U.S. (4 Wall.) 2, 119-21 (1866)] conceiving of citizenship as the mast that moors us to our constitutional commitments. This Part focuses on two-way slippage past the formal shell of citizenship in (1) dipping below the baseline for formal citizens who are suspected of being functionally non-citizens; and (2) extending protections beyond formal citizens to those possessing sufficient attributes associated with citizenship, though formally designated aliens.[para] Part III proposes a protective principle to regulate shifts between formal and functional conceptions of citizenship in determining the scope of rights. While functional conceptions of citizenship unmoored from formal status can be a basis for according a more robust complement of rights, they cannot be the basis for going below the baseline of protections for formal citizens. The protective principle elucidated systematizes our intuitions into a regularized rule that can help guide judicial interpretation, legislative crafting, and executive and military decisions.