Mark Lilla’s essay in the New York Review of Books regarding France’s response to the series of Islamic terrorist attacks against the Republic carried out on Metropolitan French soil has sparked a thought in me regarding the nature of “citizen” for a nation. The passage in question is this [via Power Line; the full essay is behind the NYRB‘s paywall]:
The Hollande government responded in kind [to public Islamist threats]…. Most controversially he called for binationals convicted of terrorist crimes to be stripped of French nationality, a proposal that runs up against current constitutional and European jurisprudence but has been Hollande’s most popular move since being elected.
Withdraw the terrorist’s citizenship and throw him out of the country. What’s wrong with that? International law makes it illegal to create a stateless person, hence the Hollande administration’s decision to limit withdrawal of French citizenship to those already possessing another nation’s citizenship status also—a binational.
American citizenship under existing domestic statutes and case law also cannot be withdrawn; see, for instance, Afroyim v Rusk, a 1967 Supreme Court ruling which denied the ability of the government to rescind the citizenship of an established citizen. There is a constitutional question attached.
However. The underlying philosophy of our political nation, our concept of social compact, is very much a Lockean philosophy, and our Constitution is steeped in that view: a consensual government, yes, but also very much a matter of discriminating between those within our social compact and abiding by our compact’s rules—those who are members of the compact and those only resident here with the compact’s permission (and by whose residence have agreed to abide by our compact’s rules)—and those outside out social compact, whether physically or otherwise.
Herein lies my thought. An earlier definition of “outlaw” is in Locke’s Second Treatise of Government: a man who is within a social compact but who by his criminal actions has placed himself outside the compact. In Locke’s view, any criminal act, whether directed particularly against an individual member of the compact or against the compact as an entity, was an attack on the compact as a whole; hence the criminal’s outlaw status. That outlaw status had an important outcome apart from his simple eligibility for suitable punishment for his actions: outlaw status also placed the criminal outside the protections of the social compact; the outlaw had no recourse to the compact’s laws or courts or anything else.
We Americans, though, have parsed criminal acts into two key categories, attacks against individuals and attacks against government or society. Only criminality directed at our society or government are attacks against our compact as a whole. Clearly, though, terrorist attacks against Americans—individually or in groups—are attacks against our society, are attacks against our social compact. American citizens who are terrorists, by their actions, place themselves outside our social compact and thereby lose the protections of our compact.
We should acknowledge that wholly voluntary self-placement: withdraw citizenship from such an erstwhile American in addition to the existing sanctions against his terrorism. After the terrorist has served out that sanction, he should be ejected from our nation.
Obviously, there are some mechanics that would need to be grunted through to enact this sort of thing, not least of which is that constitutionality question. But that doesn’t refute the principle; it’s only a barrier on the path to be corrected and overcome. One expression of the barrier, from Afroyim v Rusk, was expressed by Justice Hugo Black, writing for the Court, said in part
In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.
Certainly. But We the People can instruct our employee government to enact a law that severs our relationship with an outlaw by taking away his citizenship, his right to be among us and to enjoy the protections of our compact. If it’s cleaner for us to make our instruction via the Constitution’s Article V, then so be it. Again, though, the means is a speed bump, not an impenetrable barrier.
International law? That enjoins against creating a stateless person. It does not, though, obligate us in any way to find this outlaw a place to be somewhere else before we acknowledge his decision to stop being a member of our compact. In addition to enjoining us, it obligates other nations to find a place within them for him to be. That’s a moral obligation, to be sure, and not a legal one. Thus, international law needs to be corrected and updated to deal with terrorists as outlaws. Or we need to withdraw from this law.