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Rhetorics of “the People”: The Supreme Court, the Social Contract, and the Constitution

Published online by Cambridge University Press:  18 September 2015

Pamela A. Mason
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Abstract

This article explores the federal judiciary's use of eighteenth–century social contract theory in United States v. Verdugo–Urquidez (494 US 259) to interpret the constitutional rhetoric of “the people” for our time. The principal version of social contract theory at play in Verdugo recalls a republican ideology which forms an old and volatile current in American political thought, an ideology which supports a far more exclusionary standard of membership in the nation than has obtained for most of this century, and which has important implications for the construction of political authority it is enlisted to support.

Type
Research Article
Information
The Review of Politics , Volume 61 , Issue 2 , Spring 1999 , pp. 275 - 302
Copyright
Copyright © University of Notre Dame 1999

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References

I gratefully acknowledge the summer research grant from John Carroll University which enabled me to carry out the research on which this article is based. Fellow participants in Alan Ryan's 1996 NEH summer seminar on liberty and democracy provided sound advice. I also wish to thank Dwight Hahn, Mel Durchslag, and Patrick Eagan for reading earlier drafts of the article.

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4. Verdugo's attorneys offer a more complex account of the circumstances surrounding Verdugo's arrest. According to their brief to the Supreme Court, Verdugo was kidnapped from Mexico at the direction of U.S. agents. “Soon after the kidnaping … a formal accusation was filed by the prosecutor in the State of Baja California, Mexico, charging … six men with kidnaping. These men were subsequently permitted to enter the United States where they were apparently admitted to the Federal Witness Protection Program.” See “Petition for Writ to be heard by the Supreme Court,” United States v. Verdugo–Urquidez, US Supreme Court Records and Briefs #88–1353: 8a. Microform.

5. Verdugo, 259.

6. Within the context of the plurality dictum on “the people” and the social contact, the Verdugo majority used precedent to construct its opinion, especially Johnson v. Eisentrager, 339 US 763 (1950), which held that the Fifth Amendment does not confer rights on enemy aliens, and the early twentieth century Insular Cases, which denied Fifth Amendment rights to people in American colonies (unincorporated, or “insular” possessions, then Hawaii, Puerto Rico, and the Philippines).

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23. Roger W. Haines, Jr., “Appellant's Brief,” Appeal from the United States District Court for the Southern District of California, United States v. Verdugo–Urquidez, C.A. No. 87–5061 (Ninth Circuit).

24. Ibid., pp. 44, 12.

25. Ibid., p. 47.

26. United States v. Verdugo–Urquidez, No. CR–87–422–ER (CD Cal., Nov. 22, 1988) 856 F. 2nd 1214 (9th Circuit): 1219.

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28. Ibid., 10a.

29. Ibid., 19–20a.

30. Ninth Circuit majority opinion, non–microform, 1217, following Reid v. Covert, 351 US 487 (1957).

31. Ninth Circuit, microform, 20–21a.

32. Ibid., 19–20a.

33. Ibid., 10a.

34. Ninth Circuit opinion, non–microform, 1232.

35. Ninth Circuit, microform, 58a.

36. Ibid., 57a.

37. American Civil Liberties Union, “Brief for Amici Curiae,” United States v. Verdugo–Urquidez #88–1353, ACLU Records, MC #001–1795, United States v. Verdugo–Urquidez, 1988–89: 22. Used by permission of Princeton University.

38. Dred Scott v. Sandford 60 US 393, 703, emphasis added.

39. Ninth Circuit, microform, 50a, emphasis added.

40. Ibid., 49a, 51a.

41. Ibid., 50–51a.

42. Ibid.

43. Ibid., 49a.

44. Ibid., 51a.

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47. ACLU, “Brief for Amici Curae,” p. 10.

48. Starr, “Reply Brief,” p. 9.

49. Consistent with his privileging of the voluntaristic notion of membership in the nation, citizenship is not the issue here for Starr, who asserts that “we have not argued that Fourth Amendment protections apply only to citizens” (p. 4, n.3), making “the people” a different category than the citizenry. As for Rehnquist, he does not talk about citizens except to recall Felix Frankfurter's dissent in Reid v. Covert, to the effect that he is unsure even about who among citizens, under what circumstances, are “entitled to the full range of constitutional protections” (Verdugo, 270).

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62. Here I am building especially upon Williams, “Civic Republicanism”; Shain, The Myth of American Individualism; and Neuman, “Whose Constitution?” and Strangers to the Constitution.

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87. Kittrie, The War Against Authority.

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90. Ibid., p. 14.

91. Simone Chambers, in a fascinating account of Canada's present crisis of political identity, explicitly rejects the foundational contract model of political affiliation. Canadians, she observes, “are not in a state of nature, [and they] disagree deeply on the ‘goods’ to be secured by political association.” For Canadians, “assimilation and homogenization are no longer either morally or practically acceptable means of achieving ‘agreement.’” See her “Contract or Conversation? Theoretical Lessons from the Canadian Constitutional Crisis,” Politics and Society 26 (1998)Google Scholar: Expanded Academic ASAP Database Search (Infotrac Searchbank), pages 14–15 of 56 pages.

92. Koff, Douglas, in “Post–Verdugo–Urquidez,” p. 459 Google Scholar, referring to Torres v. State (818 S.W. 2nd 141, Tex. Crim. App.)- Koff notes without elaboration that the decision in Torres was “vacated in part on other grounds.”

93. Aleinikoff, “The Tightening Circle,” and Neuman, Strangers to the Constitution.

94. Section 7 of Proposition 187 proposed to change Sections 48215.D and E of California's Education Code to require verification of the legal status of parents and guardians of all children enrolled in the public schools, and to expel the children of those persons who could not document their own legal status. As opponents of the initiative observed, the initiative was in direct conflict with Plyler v. Doe (457 US 202, 1982), in which the Supreme Court held (in a deeply split decision) that the equal protection clause of the Fourteenth Amendment opened the public schools to all children. But by denying children (wherever they were born) services based on their parents' or guardians' status, Proposition 187 also flew in the face of the Fourteenth Amendment's citizenship clause. Once again, the spiritual predecessor is Dred Scott, which created, for a while, a hereditary caste of native–born, legally free Americans with no political rights and limited protections against government action–inhabitants, but not members of “the people.”

95. Neuman, Strangers to the Constitution.

96. Ibid., p. 189.

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98. Singer, , “Cultural versus Contractual Nations,” p. 16 Google Scholar.

99. Shain, , Myth of American Individualism, p. 38 Google Scholar.