Monday, May 3, 2010

Beyond Citizenship: Bosniak's Theory of Personhood in Constitutional Law

What's the difference between a citizen and a person?  Sometimes the difference is profound, as demonstrated by the current controversies surrounding Arizona Immigration Law, SB 1070, which we've most recently discussed here. 

Other times, citizenship and personhood are conflated, especially in constitutional discourse surrounding equality (think of the phrase "second-class citizen").

Bosniak ConLawProf Linda Bosniak (pictured left)  trenchantly argues in favor of personhood in her latest article, Persons and Citizens in Constitutional Thought,  8 International Journal of Constitutional Law 9-29 (2010) (on ssrn here). For Bosniak, it is important to "challenge the exclusionary commitments associated with nationalist conceptions of citizenship," and to prefer "personhood" over "citizenship."   Thus, I think Bosniak would eshew the theoretical project of "sexual citizenship," an endeavor I have critiqued, positing "personhood" as more acceptable.

But as Bosniak notes,

In much the same way that the concept of citizenship has needed critical unpacking, personhood, as a preferred basis for constitutional subject status demands interrogation as well. Personhood raises as many questions as it answers, and in the context of constitutional thought, it promises much more than it can deliver.  

Thus she looks at personhood in a variety of contexts, including the very "thin" personhood that is afforded to "aliens" and contrasted with citizenship.  Yet she also theorizes about the ways in which personhood can be evaded:  "territoriality," "community" (consider persons in contrast to "the people"), and situations of "war and emergency."  Personhood have many problems, as Bosniak demonstrates, but she concludes that "while it is context-dependent and context-enabled, the idea of personhood also contains the normative and rhetorical resources to challenge every context in which it is situated — including the national constitutional context itself."

Add Bosniak's brief but rich article to your summer reading list and perhaps your syllabus.


Comparative Constitutionalism, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Interpretation, Scholarship, Teaching Tips, Theory | Permalink

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I've read somewhere that "Personhood stands for the universal, in contrast to citizenship, which is ultimately exclusionary". Such a great explanation. I was really confused at first.. It was a good read though

Posted by: Citizenship | Mar 17, 2011 8:28:12 AM

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