The Citizenship Of Negative Rights

A proposal by Senator Joe Lieberman:

It’s time for us to look at whether we want to amend that law [depriving citizenship of those who enlist in foreign militaries against the US] to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.

Lieberman, in other words, would take away a U.S. citizen’s rights upon that citizen merely being accused of terrorism. This is populism at its most detestable and frightening.  Had Lieberman at least said that citizenship could be stripped after conviction of such a crime, well, I still wouldn’t like that, either, but it would be a little bit better.

After all, if we’re talking about people convicted and not merely accused of crimes, well, what exactly does such a person lose?  Life, liberty, or property, obviously; a convicted felon may be imprisoned or fined or executed, depending on the statute authorizing punishment and the crime of which the felon was convicted. That’s what the criminal justice system is all about.

A felon loses his franchise; felons are deprived of their right to vote upon conviction. The right to vote is, of course, the right to participate in forming the government, and therefore it is consent to be governed.  When you take away someone’s right to vote, you are saying that their consent to be governed is now irrelevant; such a person is a “subject” rather than a “citizen,” at least in one sense of the word “citizenship.”

Another sense of the word, however, is that a citizen is a “participant in society.”  In theory, a felon can go out into the work force and get a job; while getting a good job upon release from prison is difficult for many felons, it is not impossible, particularly if the felon possesses appropriate skills or education.  Felons are not deprived of their property even while incarcerated unless their property is substantially related to the crime of which they were convicted (e.g., drug dealers do not get to retain property rights in their drugs or guns, but unless the government and prove that it was bought with drug money, they can keep their houses and cars). Convicted felons can enter in to contracts. They retain their rights to free speech, free worship, and to petition the courts for redress of grievances, and when they are in court, they get the same due process that would be given to a non-felon in their situation. Soldiers may not be quartered in their houses. Generally, they can get passports (unless they are on parole and the terms of the parole prohibit international travel), and they can travel between the states freely.  Felons, upon release from prison, are in many senses of the word, meaningful participants in larger society.

There are some other rights that felons lose, too.  The ability to own a firearm. The ability to serve on a jury. Some but not all privacy rights; felons can be and often are made to register their residence and periodically report on their activities to law enforcement agencies (e.g., Megan’s Law).

Thing is, we do these things to convicted felons already — we take away rights and civic abilities which we would not and should never tolerate being done to a law-abiding citizen.

Felons also retain certain civic duties. Men under age 40 may be required to register with the Selective Service despite their status as felons (this does not mean the military will want them, but they are still required to register).  They must obey lawful orders of the police and the courts; they must comply with all laws the same as non-felons.  And most importantly, they must pay taxes. (This despite their inability to vote; while we tend to think of this an an exception to the concept of “no taxation without representation” this is not a rational or principled exception but rather an accident of history.)

So if what Lieberman is talking about were things like this, well, it really wouldn’t be much of a stretch anyway.  Convicted felons, even upon release from prison, are not really full citizens anyway since, as I’ve demonstrated by example above, they do not possess the full suite of rights that an unconvicted person does.  But what Lieberman is really talking about are due process, bail, and cruel and unusual punishment. 

But let’s also give a thought to the abstract concept of what “rights” are in the first place.  Our Constitution does not speak very much about the rights of the individual, but rather mainly about the extent of the government’s ability to exert power.  Political scientists refer to this with phrases like, “Federal constitutional rights are phrased in the negative, not in the affirmative.”  A Constitutional right in this nation is the “right” stop the government from doing certain things to you.  Thus, our rights as citizens are phrased as restrictions on what the government can do:  “Congress shall make no law respecting an Establishment of religion…” and “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

So, if Lieberman’s proposal is intended to be meaningful, he would expand the government’s power, to grant the government power to inflict punishment without due process, without the right to counsel, without availability of the writ of habeas corpus, to impose excessive bail and to inflict cruel and unusual punishment. In the American constitutional scheme, depriving the individual of rights is the same thing as making the government more powerful as to that individual.

Since the “rights” of a citizen are really limits on the power of the government, to not be a citizen means that the government can do certain things to you which it could not do to a citizen. But even people we think of as non-citizens (say, law-abiding tourists from another nation, or a resident alien with a green card) are still beneficiaries of the limits on the powers of the government set forth in the Constitution; and indeed, they like anyone else within the government’s power have the ability to petition the courts to enforce those limits on governmental power.

In other words, the government cannot deprive an alien of due process anyway.  The government cannot demand excessive bail from an alien anyway.  The government cannot impose cruel and unusual punishment on an alien anyway.  Stripping someone of their citizenship by statute does not give the government the Constitutional power to do the things Lieberman wants it to be able to do.

What, then, would stripping a convicted terrorist of U.S. citizenship do?  It would not enable the government to deprive the terrorist of life, liberty, or property without due process.  It would not enable the government to hold the person without bail, without assistance of counsel, or otherwise do with this person as it pleased (absent some other circumstance creating an already-existing exception to those legal doctrines).  It would not make extraction of information from such a person easier, more effective, faster, or more reliable.  It would not make securing a conviction against such a person any easier.  It would not make us safer, more secure, wealthier, or more free.

What it would really do, of course, is put Joe Lieberman on record as really, really not liking terrorists. Well, Senator Joe, I’m willing to give you credit for that pretty much just on your say-so. You really don’t need to be monkeying with the Constitution to prove it and frankly, I’d rather you didn’t.