Luis E. Chiesa, Pace University School of Law, takes up security and the rights of non-citizens in a new SSRN paper, Outsiders Looking In: The American Legal Discourse of Exclusion. The (new) abstract is here:
This article examines and critiques the American government's use of discourses of exclusion during times of crisis to legitimate the adoption of measures that target certain groups of people primarily on the basis of their status as members of a particular class. The article consists of four parts. In Part I, I discuss the political philosophy of various prominent European and American thinkers in order to explain why discourses of exclusion seem to lie at the heart of social contract theories of the State. This might explicate why governments have always been seduced by the idea that it might be legitimate to safeguard the rights of some (the non-excluded) at the expense of the rights of others (the excluded). The next part briefly recounts several instances in which the government of the United States has placed unfair burdens on some groups of people in order to guarantee the safety of the rest of the population. I focus on four cases, namely: the curtailing of the free speech rights of aliens during the Quasi-War of 1798, the persecution of political dissidents after both world wars, the branding of Japanese Americans as an “enemy race” that needed to be contained in order to avoid another Pearl Harbor, and the recurrent attempt to treat suspected terrorists differently depending on whether or not they are American citizens. This historical inquiry will reveal that the United States government has continuously engaged in the practice of inequitably burdening certain groups of people during times of actual or perceived emergency. In Part III I attempt to demonstrate that the State cannot legitimate the use of an official discourse of exclusion by pointing to the existence of a state of emergency. Even if one accepts that the government can justifiably impose significant burdens on the population during times of emergency, it does not follow that it can do so in an inequitable manner. Besides the fact that enacting measures that target certain groups of people is constitutionally suspect on various grounds, the benefits of making use of such measures do not outweigh the costs. The short-term profits seem to be offset by the fact that trading their liberties for our wellbeing will render us less safe in the long run. Even though these types of measures might help prevent attacks against our nation in the near future, they may also undermine our legitimacy both here and abroad. Ultimately this has the potential of increasing our vulnerability because it will most likely diminish cooperation from those who will probably be in a better position to furnish us with valuable information about possible attacks against our nation. Finally, in Part IV, I discuss the potential perils of attempting to inequitably target certain groups during times of emergency by examining and critiquing the recent enactment of a statute that authorizes the construction of a wall along the U.S.-Mexico border. Contrary to what its proponents have suggested, this measure, which asymmetrically requires Mexicans to assume a burden that is not imposed on our neighbors to the north, will likely augment the risks of a future terrorist attack, not reduce them.