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Bosniak on Citizenship & Personhood

By Larry Solum

Linda S. Bosniak (Rutgers University School of Law, Camden) has posted <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1578394">Persons and Citizens in Constitutional Thought</a> (International Journal of Constitutional Law, Vol. 8, No. 1, pp. 9-29, 2010) on SSRN. Here is the abstract:<ul> The ideas of citizenship and personhood have an ambiguous relationship in constitutional thought. Often, they are understood as aligned, even identical. Claims for "equal citizenship" and "democratic citizenship" are, in effect, claims on behalf of the rights and recognition of individuals qua persons. Frequently, however, citizenship and personhood are regarded as opposing concepts. Whereas citizenship references national belonging and its associated rights, personhood evokes the rights and dignity of individuals independent of national status. Personhood stands for the universal, in contrast to citizenship, which is ultimately exclusionary. <br /><br /> Much of the ambiguity of the personhood-citizenship relationship results from the multivalence of the idea of citizenship itself. Analytically, the term is used to reference both relations among already-presumed members of a political community and the process of constituting that community in the first instance. Normatively, citizenship is understood as committed to universalism within the community, but in its community-constitutive mode, it is associated with bounded national commitments. Idealized accounts treat citizenship as a concept that works to mediate between universality and boundedness and ultimately to accommodate them: in this view, that is precisely citizenship's function and its value. Citizenship is thus represented as both the embodiment of the universal and as the framing precondition for it. <br /><br /> In earlier work, I have shown that the accommodation of the universal and particular that citizenship purports to stand for is often unstable and internally contradictory. Here, I am interested in thinking about constitutional personhood's own hang-ups. Personhood as a preferred basis for constitutional subject status raises as many questions as it answers, and in the context of constitutional thought, it promises much more than it can deliver. This essay sketches out some directions for a critical reading of the idea of "constitutional personhood."</ul> <span href="http://" style="color: #0000bf; "><strong>Highly recommended!</strong></span><p><font color="#0000BF"><strong>This essay takes on an issue that I find deeply interesting--the relationship between three forms of personhood (moral personhood, legal personhood, and constitutional personhood).  Not all legal persons are (necessarily) moral persons--corporations are clearly legal persons, but may not be moral persons.  And it is at least possible that there are moral persons who are not recognized as legal persons: for example, it is at least possible that we might come to view some nonhuman species as moral persons (whales, perhaps) without recognizing their legal personhood.  I am inclined to the view that constitutional personhood should and does extend to all moral persons.</strong></font><span style="color: #0000bf; "><strong> Bosniak says the following about these questions:</strong></span></p> <ul> [C]haracterizing someone as a person is consequential: a great deal turns on the possession of, or the assignment of, personhood. Debate regarding the question "Who is a person?" is driven, in large part, by what assignment to the category of personhood does, both expressively and practically. As John Dewey wrote in an essay about corporate legal personality, the term "person" in the law "signifies what law makes it signify." And what it signifies is that the designee is, as Dewey puts it, a "right-and-duty-bearing unit."22 I prefer to say that, with assignment of personhood, the bearer is treated as a subject entitled to rights and recognition.<br /><br /> Thus, while Bickel prefers personhood over citizenship because, as he puts it, the former is "not granted," in fact, personhood is a matter of grant. Like citizenship, personhood is a historical and contingent political construct, whose scope and assignment are endlessly contested.</ul> <span style="color: #0000bf; "><strong>This seems to me fundamentally wrong--at least if given a <span style="text-decoration: underline;">deep</span> reading. Of course, in a "<span style="text-decoration: underline;">shallow</span>" sense personhood is constructed--whether we call someone a person depends on our practices. Thus, the word "persons" has been used in a way that excludes various groups (e.g., slaves). But the same thing is true of the word "human". In the case of "human," however, it is clear (I believe) that the category is not constructed in a </strong></span><span style="text-decoration: underline;"><span style="color: #0000bf; "><strong>deep</strong></span></span><span style="color: #0000bf; "><strong> sense. "Human" names a natural kind--a biological species. </strong></span><p><span style="color: #0000bf; "><strong>The fact that some individuals and cultures have mistakenly excluded some groups from their use of the word "human" does not entail that these groups were not human. Nor does it entail that the kind we call "human" is constructed "all the way down."</strong></span></p><p><span style="color: #0000bf; "><strong>This same point is true of the moral or functional kind that we call "persons." Of course, usage of the word "person" is socially constructed in the shallow sense, but the moral personhood is not itself socially constructed: <span style="text-decoration: underline;">moral personhood is a real feature of the world, not a human construction.</span></strong></span></p>

Full post as published by Legal Theory Blog on March 31, 2010 (boomark / email).