Uprootedness as (Cruel and Unusual) Punishment

384 |

New Criminal Law Review, Vol. 11, Number 3, pps 384–408. ISSN 1933-4192, electronic ISSN1933-4206. © 2008 by the Regents of the University of California. All rights reserved. Please directall requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/nclr.2008.11.3.384.

UPROOTEDNESS AS (CRUEL AND UNUSUAL) PUNISHMENTLeo Zaibert*

In spite of some protestations to the contrary, some of the practices that theUnited States immigration law permits are punitive. They are, moreover, terri-bly severe. If American citizens were to be treated in the ways in which somenoncitizens are treated in the United States, they would be victims of crueland unusual punishment. The paper seeks to show the implausibility of theeuphemistic maneuvers that seek to deny this fact, by appealing to arguments putforth by the United States Supreme Court. In particular, the paper argues thatthe reasons why the United States Supreme Court considers expatriation to becruel and unusual punishment apply as well to some instances of deportation.

H.L.A. Hart coined the expression “definitional stop” to refer to a rathercommon form of “abuse of definition,” in the context of preventing thefacile utilitarian response to the attack that utilitarianism could justifypunishing the innocent.1 The utilitarian response would take the form ofclaiming that “punishing the innocent” is simply a conceptual or defini-tional impossibility; i.e., utilitarians would say that, by definition, punish-ment is of the guilty. But this response, obviously, misses the very substanceof the attack: utilitarianism can justify harming (victimizing, abusing, etc.)an innocent person.

Legal discourse is rife with disingenuous uses of euphemisms, dys-phemisms, and many other merely terminological moves of these sorts.

*Associate Professor, Department of Philosophy, University of Wisconsin-Parkside.

With thanks to Thom Brooks, Markus Dubber, Antony Duff, Douglas Husak, Gerhard

Øverland, and Anna Schur.

1. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 5

(1995).

NCLR1103_02.qxd 10/13/08 16:06 Page 384

For example, Justice Clarence Thomas has argued that conditions ofimprisonment are not part of the definition of punishment,2 as he hasclaimed that “Judges and juries—but not jailers—impose punishment.Punishment, from the time of the Founding through the present day, hasalways meant a fine, penalty, or confinement inflicted upon a person bythe authority of the law and the judgment and sentence of a court, forsome crime or offense committed by him”.3 This reasoning, i.e., thisapplying of the definitional stop, allows him to deny the relief provided bythe Eighth Amendment to cases in which prisoners may have been abusedin prison, even if the abuse was perfectly predictable.4

In this article I wish to explore another abuse of definition that gets inthe way of advancing the important, substantive discussion of the punitiveaspects of immigration law. It is commonly argued that deportation is nota concern for the criminal law. The arguments for this blunt assertion arereminiscent of the definitional stop—and thus I wish to investigate the realpunitive nature of some practices of the United States immigration law.

I chose the word “uprootedness” in the title above—perhaps an oddword for a paper on criminal law theory—advisedly. I wish to discuss thepunitive nature of some cases in which a person is forced to leave herhomeland, i.e., cases in which she is uprooted. Of course, in general,legalese thrives on a certain terminological expansiveness; regarding theparticular phenomenon of uprooting people, however, this expansivenessseems to turn into full-blown terminological incontinence: thus, we hearof expatriation, denationalization, denaturalization, removal, exclusion,expulsion, banishment, relocation, transportation, extradition, deporta-tion, urged “voluntary departures,” and so on. Some of these terms domark interesting differences between genuinely different phenomena,5

but there are similarities between most of these terms that tend to beoverlooked.

U PROOTE DN ESS AS (CR U E L AN D U N USUAL) PU N ISH M E NT | 385

2. See Thomas’s dissenting opinion on Hudson v. MacMillan 503 U.S. 22 (1992), and

in general see Farmer v. Brennan 511 U.S. 825 (1994), United States v. Bailey 444 U.S. 394

(1980), Wilson v. Seiter 501 U.S. 294 (1991).

3. Farmer v. Brennan, 511 U.S. at 839.

4. I have discussed the role of definitions, including its abuses, in my Punishment and

Retribution (2006) (especially in chapter one).

5. In this article I will use “denationalization” and “expatriation” as synonyms, follow-

ing the U.S. Supreme Court’s usage; “denaturalization” only applies to naturalized citizens,

and “deportation” to noncitizens.

NCLR1103_02.qxd 10/13/08 16:06 Page 385

By talking about uprootedness, I do not wish to add yet another termto the already long list just presented; rather, I wish to refer to the veryphenomenon of forcibly removing someone from her homeland, whateverthe favored legal term used to describe this phenomenon may turn out tobe. The thesis I shall defend is straightforward: sometimes, officially as aresult of a merely administrative procedure of immigration law but ulti-mately as a result of a criminal act, people are uprooted; this uprooting isboth a matter of criminal law (i.e., it is punishment) and, as punishment,cruel and unusual.

I refer to “people” and not “citizens” in the previous paragraph alsoadvisedly: sometimes a country can be someone’s homeland, even if thatsomeone is not a citizen of that country and sometimes someone can be acitizen of a country without it being her homeland. The Supreme Courtof the United States, after tortuous (and deeply divided) decisions, andafter overturning itself, has finally (one would hope) concluded that expa-triation of native American citizens is simply illegal.6 Moreover, the Courthas also admitted that expatriation is punishment and that it is cruel andunusual—and in fact, before it forbade expatriation tout court,7 it explic-itly permitted expatriation when it deemed it not punitive, forbidding itonly when it saw it as punitive.8 But the Court has always been of onevoice in that the excessive harshness of uprootedness apply only toAmerican citizens by birth (predictably, if we were to uproot an American-by-choice (and not by birth), we would no longer be expatriating—wewould merely be denaturalizing).

In contrast to the Court’s focus on expatriation, I wish to focus ondeportation, which for my current purposes is the most important way ofuprooting people. Deportation is customarily seen as a mere administrativeprocedure; issues of deportation hardly ever appear on criminal lawyers’radar screens, relegated as they customarily are to a different area of the law.Yet, what is at stake is the very distinction between the criminal and theseother areas of the law, i.e., the very boundaries of the criminal law. I shall

| N E W C R I M I NAL LAW R E VI E W | VOL . 11 | NO. 3 | SU M M E R 2008386

6. The Supreme Court has so decided in two different decisions, and for two different

reasons: Trop v. Dulles, 356 U.S. 86 (1958) and Afroyim v. Rusk, 387 U.S. 253 (1967). I will

discuss these decisions below.

7. In Afroyim v. Rusk, 387 U.S. 253 and passim.

8. In Trop v. Dulles, 356 U.S. 86.

NCLR1103_02.qxd 10/13/08 16:06 86

Leo Zaibert

Note

delete 'and' and add: ", just as"

argue that the distinction between the criminal law and the merely admin-istrative aspects of immigration law (regarding deportation) is at best blurry,and at worst unintelligible.

Deportation, moreover, deeply affects the actual lives of millions ofhuman beings. The magnitude of the problem of deportation is, I suspect,also missing from the radar screen of ordinary folks. Most people wouldbe more than a bit surprised to find out that for the period between 1985

and 2005, the official number of people the United States deported, addedto the number of people that the United States asked to “voluntarily”depart, is close to thirty million. The exact official number is 27,185,674.9

In spite of the massive proportions of deportation in the United States,library searches using the keyword “deportation” yield precious little in theway of research of this phenomenon—above all, the results relate to thetotalitarian regimes of Hitler and Stalin.

Needless to say, I am not suggesting that the United States is to beequated with the brutal regimes of Hitler and Stalin; in fact, the UnitedStates continues to have one of the most generous refugee and asylum pro-grams in the world.10 I am merely stating the number of people we deport(and ask to voluntarily depart) in order to highlight the truly colossal mag-nitude of the phenomenon. Neither do I wish to contest the right of astate to pass and enforce humane immigration laws, and to upheld andprotect its borders. I am sure that many, perhaps most, of the close to thirtymillion people who have been deported/departed from the United Statesin the last twenty years were treated fairly, but, as I will argue, the degreeof harshness in the treatment the United States inflicted upon at least somepeople—those who are, in effect, uprooted—renders such treatmentimmoral, and illegal.


9. Figures calculated from the data found in Department of Homeland Security’s

Yearbook of Immigration Statistics: 2005, available at http://www.dhs.gov/ximgtn/

statistics/publications/YrBk05En.shtm, last accessed on September 15, 2007.

10. “Since the Second World War, more refugees have found permanent homes in the

United States than in any other country.” United Nations High Commissioner for

Refugees, UNCHR Resettlement Handbook and Country Chapter: United States 2

(2004), http://www.unhcr.org/protect/PROTECTION/3c5e5a764.pdf, last accessed on

September 4, 2007. For the FY 2004, the United States expected to grant refugee status to

slightly over 52,000 people, see id. at 13.

NCLR1103_02.qxd 10/13/08 16:06 Page 387

1. J USTICE B R E N NAN’S ABOUT FACE

March 31, 1958, witnessed a rather interesting development in the historyof the United States Supreme Court. On this day, the Court decided thenow famous cases of Perez v. Brownell and Trop v. Dulles,11 both concern-ing expatriation. Perez v. Brownell concerns the case of a United States cit-izen (by birth) who voted in foreign elections; the majority concluded thatthis act of suffrage constituted a voluntary abandonment of nationality,whereas the minority denied such conclusion. Trop v. Dulles concerns thecase of the expatriation of a United States citizen (by birth) on the groundsof his court-martial conviction and dishonorable discharge from the armyfor wartime desertion.

In both cases the Court was divided 5–4; eight of the Justices voted sim-ilarly throughout the two decisions: the same four Justices who, grossomodo, were in favor of expatriation in one case were also in favor of expa-triation in the other case; the four Justices who were, grosso modo, againstexpatriation in one case, were also against expatriation in the other case.The only Justice to change his vote was Justice Brennan: he was in favorof expatriation in one case and against expatriation in the other. While itis not important for my purposes in this article to determine whetherBrennan was right in both cases, the examination of Brennan’s rationalefor his different positions is crucial for my goals of criticizing current poli-cies regarding deportation.

Thus, Brennan favored the expatriation of a citizen (the voter) who hadcommitted no crime, but opposed the expatriation of a citizen (the deserter)who committed a serious crime. Brennan admitted that “[t]he loss of cit-izenship may have as ominous significance for the individual in the onecase as in the other,” and then he rhetorically asked “Why then does notthe Constitution prevent the expatriation of the voter as well as the deserter?”12

Brennan further recognized that his position was “concededly, paradoxi-cal.”13 Yet, the air of paradox to which Brennan alludes only obtains if weforget about the distinctiveness of the criminal law and about the much-needed safeguards that protect citizens from potential abuses of the state’spunitive power. Whether or not Brennan was correct in thinking that by


11. Perez v. Brownell, 356 U.S. 44 (1958), Trop v. Dulles, 356 U.S. 86.

12. Trop v. Dulles, 356 U.S. at 105.

13. Id.

NCLR1103_02.qxd 10/13/08 16:06 Page 388

voting in a foreign election a citizen divests himself of his nationality, hewas correct in thinking that citizens exercising their right to renouncetheir nationality is not a punitive matter at all.14 Thus, while his positionmay seem paradoxical, contradictory it surely was not.

Once we stop seeing the two cases as being on the same normativeplane, and once we stop expecting some sort of karmic desert-based con-clusion to the two cases, the airs of paradox tend to dissipate. Granted, awartime deserter, in principle (e.g., during a just and legitimate war, etc.),deserves blame and punishment for his action, whereas to renounce one’snationality is, in principle, not blameworthy. But these considerationsabout desert say nothing about what the state should do about these cases;and even if the state can legitimately punish the deserter, the Court con-cluded that expatriation was too harsh a punishment. Lurking in the back-ground, of course, is the question as to why we should stop at desertion.Why not expatriate murderers? Or rapists? Or, more in tune with the cur-rent zeitgeist, drug dealers, or even drug users? (Those who think that thelast suggestion is excessive should skip to section three at once.)

The Court’s strategy (i.e., Brennan’s strategy) for treating the two casesdifferently is twofold. The first step is to argue that since, in the Court’sview, the act of voting in a foreign election constitutes a manifestation ofthe will to abandon one’s nationality, and such abandonment occurs simul-taneously with—i.e., by means of—the voting, this “expatriation” is notreally imposed by the state. After all, amongst the rights of the citizen wefind the right to renounce citizenship, and the citizen in Perez v. Brownellis merely exercising this right. But this view is made all the more implausi-ble when the very person who allegedly voluntarily abandoned his nation-ality expresses that his intention was never to do that. In fact, this view wasshort-lived: less than a decade later (on May 29, 1967) the Supreme Courtoverturned Perez v. Brownell, in the no less famous Afroyim v. Rusk.15


14. Theoretically speaking, however, and insofar as I have elsewhere (Zaibert, supra note 4,

at chapters one and two) argued that self-punishment is perfectly possible, it could be sug-

gested that perhaps a citizen can vote in a foreign election in order to punish himself, but

the suggestion that the voters in a foreign election in Perez v. Brownell and in Afroyim v.

Rusk were divesting themselves of their nationality as a form of self-punishment is rather

implausible—if for no other reason than they were unaware that their action had any dena-

tionalizing consequences whatsoever.

15. Thus, according to the Supreme Court itself, Brennan (together with four other

Justices) was wrong in favoring expatriation in Perez v. Brownell.

NCLR1103_02.qxd 10/13/08 16:06 Page 389

The second step in the Court’s strategy has itself two parts. The Courtseeks to show, first, that in Trop v. Dulles expatriation is meted out, ineffect, as a punishment, and second, that this punishment is illegal, inso-far as it is cruel and unusual. I will devote the rest of this section to thefirst part of the Court’s strategy, and then sections two and three below todiscussing its second part.

Predictably, government officials argued that, technically speaking,denationalization is not a punishment at all. As the Court reports, “theGovernment contends that this statute [section 401(g) of the NationalityAct of 1940, allowing for denationalization of deserters] does not imposea penalty and that constitutional limitations on the power of Congress topunish are therefore inapplicable.”16 As for the government’s argument,the majority expresses its view with more than a hint of sarcasm:

[w]e are told this is so [i.e., that expatriation is not punitive] because a com-mittee of Cabinet members, in recommending this legislation to theCongress, said it “technically is not a penal law.” How simple would be thetasks of constitutional adjudication and of law generally if specific prob-lems could be solved by inspection of the labels pasted on them!17

The government’s argument is, of course, a perfectly crafted instance ofthe definitional stop, and the Court’s majority did well in disregarding it.Once we reject the vicious use of the definitional stop, it would be easy toshow that to denationalize the deserter is to punish him. For example,elsewhere I have defended the following account of punishment. A pun-ishes B when:

(1) A believes that X is a bad thing.

(2) A believes that X is an action of B.

(3) A believes that B is a moral agent.

(4) A believes that there are no excuses, justifications or other cir-cumstances which preclude blame.

(5) A believes that the world would have been a better place had Bnot done X.

(6) A believes that the world would be a better place if something wouldhappen to B, something which would somehow offset B’s Xing.



17. Id. at 94–95.

NCLR1103_02.qxd 10/13/08 16:06 Page 390

(7) B’s having X’ed tends to make A feel something negative, that is,a reactive emotion, like outrage, indignation or resentment.

(8) A, as a consequence of having the beliefs and emotions listed in(1) through (7), does something to B, which A believes it ispainful for B to endure, as a response to B’s having X’ed.18

According to my account, then, the punitive character of the expatria-tion of the deserter is perfectly clear. But, lest my claim be thought todepend on my own perhaps idiosyncratic account of punishment, considerthe orthodox account of punishment in the literature: the Flew-Benn-Hart definition of punishment. These are the five elements constitutive ofthe “standard case” of punishment:

(i) It must involve pain or other consequences normally consideredunpleasant.

(ii) It must be for an offence against rules.

(iii) It must be for an actual or supposed offender for his offence.

(iv) It must be intentionally administered by human beings otherthan the offender.

(v) It must be imposed and administered by an authority constitutedby a legal system against which the offense is committed.19

Whatever the (important) differences between my account and Flew-Benn-Hart’s account of punishment, both accounts render the expatria-tion of the deserter equally punitive. And yet, Supreme Court Justicesargued for the nonpunitive character of denationalization in ways that didnot involve the definitional stop (or at least not blatantly). Thus, and sinceI believe that the expatriation of the deserter is indeed punitive, I need totake a look at two additional Court arguments.

The first argument is that in order to determine whether or not inflictinga certain treatment on a person is punitive, we should look at the purpose withwhich this treatment was inflicted. If the purpose is punitive, then thetreatment is punitive; otherwise it is not. In fact, even Justices in the major-ity in Trop v. Dulles—that is, those who thought that the expatriation ofthe deserter was punitive—seemed to give credit to this way of determin-ing what punishment is. Consider what the Court seems to have in mind.


18. Zaibert, supra note 4, at 33.

19. Hart, supra note 1, at 4–5.

NCLR1103_02.qxd 10/13/08 16:06 Page 391

The Court has recognized that any statute decreeing some adversity as aconsequence of certain conduct may have both a penal and a nonpenaleffect. The controlling nature of such statutes normally depends on the evi-dent purpose of the legislature. The point may be illustrated by the situa-tion of an ordinary felon. A person who commits a bank robbery, forinstance, loses his right to liberty and often his right to vote. If, in the exer-cise of the power to protect banks, both sanctions were imposed for thepurpose of punishing bank robbers, the statutes authorizing both disabili-ties would be penal. But because the purpose of the latter statute is to des-ignate a reasonable ground of eligibility for voting, this law is sustained asa nonpenal exercise of the power to regulate the franchise.20

According to the Supreme Court’s view, then, taking away someone’s rightto vote as a result of his having committed a crime is not itself a punishment,or a part of a punishment (since it was not meant as such). But this sort ofapproach is problematic in that it relies too much on internal mental statesof the person inflicting the treatment (in this case, the legislator). If as aresponse to an insult I were to slap you, and if I would later wish to deny thatthe slap was punishment, all I would need to say is that the purpose that Ihad in mind as I slapped you was not punitive (I did not want to deter, reha-bilitate, or reform you (or anyone else), etc.)— I just wanted to do calis-thenics. Grotesque as my example admittedly is, it is not terribly differentfrom the Court’s own example. The potential for abusive, disingenuousapplication of the Court’s favored criterion of punitiveness is reminiscent ofthe infamous doctrine of double effect, the very conspicuous excesses ofwhich I have discussed elsewhere, and that were ridiculed, too, by BlaisePascal in his Provincial Letters.21 I do not deny that intentions do play a roleas to whether a certain infliction of painful or unwanted treatment is pun-ishment; surely some of the punisher’s intentions can be seen as part of whatpunishment is. But to the extent that these intentions are treated as the only,or the crucial, aspect of the definition of punishment, to the same extent suchaccount of punishment is susceptible to well-known abuses.

The other Court argument for the nonpunitive character of the expa-triation of the deserter is, for my current purposes, extremely useful. Allowme to cite a long passage from Trop v. Dulles :


20. Trop v. Dulles, 356 U.S. at 96–97.

21. See, e.g., Leo Zaibert, Five Ways Patricia Can Kill Her Husband: A Theory of

Intentionality and Blame (2005), and Blaise Pascal, The Provincial Letters (1967).

NCLR1103_02.qxd 10/13/08 16:06 Page 392

Leo Zaibert

Note

delete 'that' and write 'which'

Leo Zaibert

Note

delete 'the' and write 'that'

The Government argues that the sanction of denationalization imposed bySection 401 (g) is not a penalty because deportation has not been so con-sidered by this Court. While deportation is undoubtedly a harsh sanctionthat has a severe penal effect, this Court has in the past sustained deporta-tion as an exercise of the sovereign’s power to determine the conditionsupon which an alien may reside in this country. For example, the statuteauthorizing deportation of an alien convicted under the 1917 EspionageAct was viewed, not as designed to punish him for the crime of espionage,but as an implementation of the sovereign power to exclude, from whichthe deporting power is derived. This view of deportation may be highly fic-tional, but even if its validity is conceded, it is wholly inapplicable to thiscase. No one contends that the Government has, in addition to the powerto exclude all aliens, a sweeping power to denationalize all citizens. Nordoes comparison to denaturalization eliminate the penal effect of dena-tionalization in this case. Denaturalization is not imposed to penalize thealien for having falsified his application for citizenship; if it were, it wouldbe a punishment. Rather, it is imposed in the exercise of the power to makerules for the naturalization of aliens. In short, the fact that deportation anddenaturalization for fraudulent procurement of citizenship may be imposedfor purposes other than punishment affords no basis for saying that in thiscase denationalization is not a punishment.22

This passage displays the sorts of implausible, transparent uses ofeuphemisms that I have criticized from the outset of the paper: whiledeportation is a “harsh sanction” with “severe penal effect,” it is somehownot a “penalty” (and not a punishment). Moreover, we see the previous(purpose-based) argument already reproduced here, for the Court’s seemsto agree (albeit without much conviction—it admits that this view is“highly fictional”) that to deport an alien spy is not to punish him simplybecause this was not “designed” to be a punishment. But the Court’s refer-ring to deportation is something new, and it would have been interestingto see the Court examine the punitiveness of deportation. Yet, the major-ity in Trop v. Dulles, although rightly skeptical as to the allegedly non-punitive nature of deportation, did not really need to deal with whetheror not some deportations are punitive. Thus, the whole issue of deporta-tion was swiftly swept under the rug.

I favor exactly the opposite strategy to that of the government in Tropv. Dulles. While there the government seeks to argue that expatriating a


22. Trop v. Dulles, 356 U.S. at 98–99, emphases added.

NCLR1103_02.qxd 10/13/08 16:06 Page 393

deserter is not punishment insofar as deportation is (in its view) not pun-ishment either,23 I will suggest that insofar as some cases of denationaliza-tion constitute cruel and unusual punishment, those cases of deportation(and indeed those cases of denaturalization) that are relevantly similar todenationalization should also be considered cruel and unusual punish-ment. My strategy is much more honest, insofar as it requires investigat-ing the consequences of the removal of a person from a country, in them-selves, and then deciding whether or not they are punitive. Of course, thetask is made difficult, if not impossible, by embracing the “design” or“purpose” test. We need an account of punishment that is not amenableto the fickle and disingenuous manipulations of what someone says herintentions were. Since we certainly do not simply ask a defendant what herintentions were, why should we do it with the legislator or the punisher?I stand by my account of punishment presented above, but if the readerprefers to endorse the Flew-Benn-Hart account of punishment, this willdo, too, for the denationalization of the deserter will turn out to be pun-ishment in either case.

2. TH E D E S E RT OF TH E D E S E RTE R

Although the Court eventually declared, in Afroyim v. Rusk, all expatria-tion to be unconstitutional, the argument there did not really turn onwhether or not expatriation always constitutes cruel and unusual punish-ment: the main argument the Court adduced is that, as a matter of con-stitutional law, Congress simply does not have the power to expatriate.Punitive or not, harshly punitive or not, the Court in Afroyim v. Ruskargued that expatriation was always illegal. I find the arguments inAfroyim v. Rusk compelling. The decision, however, has had an unintendednegative side effect: it has obscured the rather important debate regardingthe punitiveness and the harshness of denationalization—and of otherforms of uprooting people, such as deportation.

I shall proceed assuming that the majority of the Supreme Court inTrop v. Dulles was correct in realizing that denationalization is punitive,and that, as such, it falls under the purview of the different safeguards


23 The Court’s position finds support in the 1893 decision Fong Yue Ting v. United

States, 149 U.S. 698 (1893) (to which I shall return in the latest section of the article).

NCLR1103_02.qxd 10/13/08 16:06 Page 394

Leo Zaibert

Note

delete 'was' and write 'is'

protecting citizens from potential abuses of the state’s punitive power. But,of course, to admit that a certain practice is punishment is not thereby toadmit that such punishment is excessive or otherwise unjustified. Forexample, one may admit that deporting an alien who is shown to havebeen engaged in espionage is punitive, though one would still be capableof admitting that this punishment is not unjustified. In fact, someone maybe willing to accept that expatriation is a justified punishment for a borncitizen who spies against or otherwise betrays his country. (“Justified” heremeans “deserved.”)

In the previous section I suggested that Brennan’s worries regarding analleged paradox in his positions in Perez v. Brownell and Trop v. Dullesbetray his endorsement of a sort of karmic, desert-based view of the world.I wish now to argue that this view is both inconsistent and naive. It isinconsistent insofar as Brennan is not really interested in just deserts: he isagainst even entertaining the possibility that expatriating a deserter couldbe fair (in the sense of it being deserved). Oratio obliqua, Brennan claims:“He who refuses to act as an American should no longer be an American,”and rhetorically questions “what could be fairer? But I cannot see that thisis anything other than forcing retribution from the offender—nakedvengeance.”24 Brennan is no friend of retributivism. Given my own quali-fied defense of retributivism, but also given my denunciation of therhetorical alchemy carried out by means of the alleged distinction betweenpunishment and revenge, I cannot agree with Justice Brennan on thispoint.25 Merely invoking the term “revenge” (as if it conjured up all sortsof evils) is not enough. Cases must instead be judged by their merits: per-haps a given deserter does deserve to be expatriated.

Brennan’s position is naive insofar as it ignores that even if we stipulatethat deserters may in fact deserve to be expatriated, it is far from clear thatthe state should do so. The reasons for not expatriating the deserter, evenstipulating that he deserved it, are different from those fundamentallysound but still too legalistic reasons adduced in Afroyim v. Rusk. After all,general reasons associated with the proper limits to state action also sug-gest that the state should not expatriate its citizens. Consider, briefly, myargument against the death penalty. I believe that people could commitatrocities of such immense magnitude that they would indeed deserve to



25. See, e.g., Leo Zaibert, Punishment and Revenge, 25 Law and Phil. 81–118 (2006).

NCLR1103_02.qxd 10/13/08 16:06 Page 395

die—in fact, in cases of truly atrocious acts, merely to kill the perpetratormay be an overlenient coup de grace. In theory, some people may deserveto suffer a great deal, to be tortured, before they are killed. (Hitler, and hismany henchmen, clearly belong in this group; Hitler’s suicide, orHimmler’s or Goebbels’s, etc., have nothing to do with honorable self-punishment (such as, say, the Japanese seppuku), but merely with avoidingpunishment.) And yet, even if some people deserve torture, no civilizedstate should torture, regardless of whether or not such torture would bedeserved. Just as it is unconscionable to allow a civilized state to make surethat really evil people are tortured in proportion to the evil they havecaused, I take it that a civilized state should not, by way of punishment,kill people—even if they deserve it (and even if the majority favored it).

This digression on the death penalty and torture is not just meant tohighlight the difference between what people deserve and what should, inthe final analysis, be done to them; it is also a segue into the examinationof the Court’s arguments, in Trop v. Dulles, for claiming that denational-ization constitutes cruel and unusual punishment. The argument could bemade that the state should never strip its citizens of their nationality, evenif we assumed that they deserve to be so stripped. And this is importantto me insofar as I will eventually advance the thesis that these very argu-ments can be extended to some cases of deportation—i.e., I will argue thatthe Supreme Court of the United States must accept that the state shouldnot deport some people, even if they deserve it; some deportations consti-tute cruel and unusual punishment.

Now, the Court’s position vis-à-vis the harshness of expatriation seemsimplausible ab initio, insofar as the Court’s condemnation of expatriationas cruel and unusual punishment needs to be contrasted to its positionwhereby a death sentence is not cruel and unusual punishment.26 In otherwords, to be expatriated is too harsh, but to be killed is not—a rather puz-zling stance, to say the least. I suspect that many people in death row, ifnot most or even all of them, would gladly trade their death sentence fordenationalization. Granted, that death row inmates would rather be dena-tionalized than be killed does not prove that the Court’s argument isinvalid, but, if I am right, the preference of those in a position to choose


26. For the constitutionality of the death penalty, see Gregg v. Georgia, 428 U.S. 153

(1976).

NCLR1103_02.qxd 10/13/08 16:06 Page 396

would not be an insignificant fact, and should point in the direction offurther recalibrating the scales of cruelty with which the Court operates.The dissenting Justices in Trop v. Dulles seem to express this very senti-ment when they say that:

[e]ven assuming, arguendo, that § 401 (g) can be said to impose “punish-ment,” to insist that denationalization is “cruel and unusual” punishmentis to stretch that concept beyond the breaking point. It seems scarcelyarguable that loss of citizenship is within the Eighth Amendment’s prohi-bition because disproportionate to an offense that is capital and has been sofrom the first year of Independence. Is constitutional dialectic so empty ofreason that it can be seriously urged that loss of citizenship is a fate worsethan death?27

But my agreement with dissenting Justices does not go very far. Forwhile the dissenting Justices want to defend the legality of both the deathpenalty and denationalization, I, in contrast, want to claim that both areillegal. The Justices in the majority, in any event, do have a reply to thedissenters:

At the outset, let us put to one side the death penalty as an index of theconstitutional limit on punishment. Whatever the arguments may beagainst capital punishment, both on moral grounds and in terms of accom-plishing the purposes of punishment—and they are forceful—the deathpenalty has been employed throughout our history, and, in a day when itis still widely accepted, it cannot be said to violate the constitutional con-cept of cruelty. But it is equally plain that the existence of the death penaltyis not a license to the Government to devise any punishment short of deathwithin the limit of its imagination.28

It probably needs not too much arguing to assert that a life subjectedto torture is worse than dying at once—coups de grace are, after all, oftenreally merciful, and a matter of grace. That life after being denationalized(or after being denaturalized, or after being deported—after being uprooted,in short) is worse than having no life at all is a much more debatableproposition. But for as long as the Supreme Court keeps telling us that“[t]he exact scope of the constitutional phrase ‘cruel and unusual’ has not



28. Id. at 99.

NCLR1103_02.qxd 10/13/08 16:06 Page 397

been detailed by this Court” and that “[t]he [Eighth] Amendment mustdraw its meaning from the evolving standards of decency that mark theprogress of a maturing society,” we are not likely to make much progress—either in comparing death to denationalization in particular, or in ourunderstating of the implications of punishment in general.29 Moreover, ifthe standard of “cruel and unusual” is this vague, then there seems to bevery little reason indeed to deny that some instances of deportation con-stitute cruel and unusual punishment, too. I will come back to thespecifics of deportation in the last section of the article, but for now, I shallfocus on the following question: What exactly do the Justices in themajority in Trop v. Dulles think is so bad about denationalization so as torender it cruel and unusual punishment?

Unfortunately, while the majority tells us that expatriation “is a form ofpunishment more primitive than torture, for it destroys for the individualthe political existence that was centuries in the development,”30 it doesprecious little in the way of arguing why this is so. Whatever the exactsense of “primitive” the Court has in mind, the claim that expatriation ismore primitive than torture strikes me as obviously false: I am quite con-fident that humans were torturing each other long before there were anynationalities. Most of what the majority seems to have to explicitly sayabout the evils of denationalization is contained in this brief passage:

[The denationalized person’s] very existence is at the sufferance of the coun-try in which he happens to find himself. While any one country mayaccord him some rights, and presumably as long as he remained in thiscountry he would enjoy the limited rights of an alien, no country need doso because he is stateless. Furthermore, his enjoyment of even the limitedrights of an alien might be subject to termination at any time by reason ofdeportation. In short, the expatriate has lost the right to have rights.31

I have several problems with this passage, all of which relate to what Itake to be the Justices’ narrow obsession with legal rights. First, if the dena-tionalized person is allowed to remain in the United States, the Court pre-sumes that she would enjoy the limited rights that aliens enjoy. But whilelegal aliens in the United States have fewer rights than citizens of the


29. Id. at 99, 100.

30. Id. at 101.

31. Id. at 101–02.

NCLR1103_02.qxd 10/13/08 16:06 Page 398

United States, the difference in terms of quality of life is not colossal, andit certainly does not warrant claiming that legal aliens in the United Stateshave lives that are very bad at all. Thus, if, by way of punishment, some-one who was initially a United States citizen were to be forced to live thelife of a legal alien in the United States, it is difficult to see how this wouldbe to subject this person to cruel and unusual punishment. Second, I failto see the significance of the reference to the termination of the enjoymentof rights caused by her potential deportation. For if the person is deported,she would be deported, I presume, to a nation that will protect some ofher rights. Yet, my main problem is with what I take to be the centralargument of the Court: the expatriated person becomes stateless, and thushas lost the right to have rights.

3. R IG HTS, CITI Z E N S H I P, AN D HAR S H N E SS

While it takes no great perspicuity to realize that being stateless is a badthing, no great perspicuity is needed, either, to realize the falsity of the asser-tion that to be stateless is to lose “the right to have rights,” not only for thereasons discussed in the preceding section but also and particularly in lightof the 1948 Universal Declaration of Human Rights.32 The Declaration lists aseries of rights that humans have, regardless of whether or not they have anationality. Incidentally, the declaration seems to me to be open to criti-cisms, precisely in connection with its Article 15, which asserts both thateveryone has the right to a nationality and that no one should be arbitrarilydeprived of his nationality. Thus, the Declaration admits that denationaliza-tion, when not arbitrary, may be imposed. But, if a country nonarbitrarilydenationalizes one of its citizens, who is supposed to ensure that anothercountry gives him citizenship, so as to satisfy the first part of the article?

In any event, the many rights contained in the Declaration are notdependent on Article 15; the rights mentioned in Article 15 are on a parwith the articles mentioned in the other articles. In other words, humanrights are granted to humans, even to stateless humans. Thus, statelessnessdoes not entail having no rights, thus challenging the accuracy of the fash-ionable but infelicitous locution “losing the right to have rights.” Humanrights cannot, from the legal perspective, be lost. Furthermore, if rights


32. See http://www.un.org/Overview/rights.html, last accessed on May 20, 2008.

NCLR1103_02.qxd 10/13/08 16:06 Page 399

Leo Zaibert

Note

delete 'admits' and write 'seems to admit'

Leo Zaibert

Note

delete 'Thus' (begin the sentence with 'Statelessness'

were the sort of entity over which you could have rights, then, of course,infinite regress would threaten. For if someone could lose the right to haverights, she could also lose the right to have the right to have rights, and soon, ad infinitum. This is an unnecessarily clumsy expression; even themost tenuous acquaintance with stylistic and ontological parsimonyshould recommend its abandonment.

To be sure, to lose one nationality is to lose many rights; and it is to losemany other important things, not all of which are amenable to a narrowlegalistic interpretation. But it is precisely these other things that theCourt in Trop v. Dulles did not directly address; had it done so, it wouldhave been unable to swiftly sweep the discussion of deportation under therug. A denationalized person, even if she is automatically granted citizen-ship by another country, is uprooted, and thus she loses all sorts of emo-tional ties with the nation that denationalizes her. It is hard to imaginethat these ties are not fundamentally important for that person’s sense ofidentity, for her very sense of self, and for her very sanity. To be denation-alized is to be forcibly uprooted, to be forcibly removed from a place thatby necessity forms an integral part of what a person is.

The Harvard Law Review Association’s “Note: The Functionality ofCitizenship” captures part of the manifoldness of citizenship in this passage:

Citizenship contains two essential aspects. The first is a “functional” aspect:the legal relationship between the individual and the United States. The func-tional content of U.S. citizenship rests in “alienage distinctions”, the differ-ences between the rights and duties of U.S. citizens and those of the mostprivileged alien group. . . . The second aspect is nonfunctional: a sense of cul-tural identity and community that pervades all members of the nation. Thisethos of nationhood, which this Note calls “nationality”, is no less importantto the existence of a nation-state despite being difficult to define.33

The members of the Harvard Law Review Association rightly emphasizethat the importance of the nonfunctional aspect of citizenship should notbe underestimated merely because of the difficulties surrounding its defini-tion. Modern nation-states have a “state” element and a “nation” element,and the nation element “is no less meaningful merely because it describes amembership that is often expressed in rhetorical or emotional terms.”34


33. The Functionality of Citizenship, 110 Harv. L. Rev. 1814–31 (1997).

34. Id. at 1816.

NCLR1103_02.qxd 10/13/08 16:06 Page 400

Leo Zaibert

Note

insert, between the comma after sure and the word 'to': however,'

When a citizen is denationalized, she loses the functional aspects of citi-zenship. If she is not also forced to leave the nation, however, she does notlose the nonfunctional aspects of citizenship. The life of most permanentresidents in the United States, for example, is not particularly dismal (theirgreatest source of unhappiness is, perhaps, the very fear of deportation thatresults from an unfair immigration system). Some people remain permanentresidents (without applying for citizenship) for many years, simply becausethey are not attracted by the sorts of advantages attached to full-blown citi-zenship. Some people are not interested in voting, or in running for publicoffice, and they would not miss these advantages of citizenship. And it isperfectly possible that some of these noncitizens who live in the UnitedStates, even some who live here illegally, actually have very strong feelings ofallegiance, gratitude, and loyalty toward this country. But when people whohave been living in a given country for many years, who have formed fami-lies and other solid relationships there, are forcibly uprooted, then they losewhatever functional aspects they formally or informally enjoyed, and theylose, too, the nonfunctional aspects of their attachment to this country.

Arguably, the most painful losses that a denationalized person wouldendure are, precisely, those associated with the nonfunctional aspects ofcitizenship. I take it that if a citizen of a country were to be forced to leaveher homeland unless she accepted that she is no longer allowed to vote orto run for office, she would (in spite of the harshness of the choice) stillchoose to stay in her homeland. The place in which we live means a lot tous, and much more so when this is the place in which we, and our chil-dren, have grown up, the place in which we have most (or all) of our mem-ories, the place in which we work, pay taxes, grow old, etc. And losing theconnection to a place with precisely the characteristics just listed is whatsome noncitizens lose when they are deported (or excluded, banished,etc.). The most promising argument for the cruelty of denationalization—though never explicitly expressed in Trop v. Dulles—turns out to be relatedto the loss of these ties and connections to one’s home—which may ormay not be the country of one’s citizenship.

In Trop v. Dulles, the Supreme Court finds some sort of consolation inthe fact that “in its material forms no one can today judge the precise con-sequences of expatriation, for happily American law has had little experiencewith this status.”35 In contrast, however, American law has had, unhappily,



NCLR1103_02.qxd 10/13/08 16:06 Page 401

ample experience—to the tune of almost thirty million cases per year in thelast twenty years alone—with other forms of forcible displacement, likedeportation and forced “voluntary” departure. And yet the one lesson ofour limited experience with denationalization has not been extended toapply in the context of our immense experience with deportation. TheSupreme Court of the United States has declared denationalization to be socruel as to be illegal, and there exists no principled, reasonable way to dis-tinguish the cruelty that denationalization brings to its citizens from thecruelty that deportation brings to some noncitizens. The United States,however, continues to remain indifferent to the cruel treatment that itinflicts on throngs of human beings. Consider a few specific cases.

Kari Rein, a legal permanent resident who lives in Oregon, wasdetained at the airport upon returning from a family vacation in her nativeNorway, and placed on deportation proceedings for a crime of which shewas convicted ten years earlier, and for which she had served her sentence.The crime was to possess marijuana plants that she grew for her own con-sumption. At the time she was placed in deportation proceedings, she hadlegally resided in the United States for over fifteen years, was married toan American citizen, and was the mother of two. Of course, many, myselfincluded, would find the “official” punishment for this crime (a mala pro-hibita, victimless crime, if there ever was one) immoral and unjustified;but to additionally deport Mrs. Rein, and thus to disrupt her whole exis-tence, is harsh enough to fall under the purview of the EighthAmendment’s protections.

Eventually, Mrs. Rein was pardoned by Oregon’s governor in 2004. Asthe Associated Press reported, a few months after her pardon, and“although she no longer faced deportation after [Governor] Kulongoskiissued his pardon, Rein was afraid to travel back to Norway. She knewthere was one way to eliminate any problems at the border: become a U.S.citizen.”36 Who can blame Mrs. Rein for seeing naturalization as (partly)an assurance (of sorts—naturalized citizens can still be denaturalized) thatshe will not be subjected to ignominious, cruel treatment again? And yet,should not the government of the United States hope that people becamecitizens based on other, loftier rationales?


36. The Associated Press, Woman, Pardoned by Kulongoski, Becomes Citizen,

December 14, 2004.

NCLR1103_02.qxd 10/13/08 16:06 Page 402

Leo Zaibert

Note

delete 'per year'

There is another interesting aspect of Mrs. Rein’s case: the fact that shewas granted an executive pardon. The role of the gracious executive pardonin this case is reminiscent of the famous Shaughnessy v. United States case,which the majority in Trop v. Dulles case discussed as they staved off thedissenters’ facile assumption that whatever hardships deportation causes toa person, the person has always access to the legal system to seek relief:

The suggestion that judicial relief will be available to alleviate the potentialrigors of statelessness [or deportation] assumes too much. Underminingsuch assumption is the still fresh memory of Shaughnessy v. United States exrel. Mezei, where an alien, resident in this country for 25 years, returnedfrom a visit abroad to find himself barred from this country and from allothers to which he turned. Summary imprisonment on Ellis Island was hisfate, without any judicial examination of the grounds of his confinement.This Court denied relief, and the intolerable situation was remedied afterfour years’ imprisonment only through executive action as a matter ofgrace.37

Issues of justice should, as far as possible, be treated within our justicesystem, not outside of it. Much has been written as to the general con-nection between mercy and justice,38 but there is no doubt that executivepardons are outside the justice system. They are gracious, supererogatory,and in some sense anachronistic prerogatives of the sovereign, for whichthese sovereigns need give no explanations, and for which they are notlegally accountable. I would assume that Governor Kulongoski thoughtthat Mrs. Rein’s deportation was unfair, and, thus, that his pardon was away of correcting this unfairness. But why not correct these sorts of injus-tices from within the justice system? Why should a society passively awaitthe vagaries of executive grace and remain indifferent to the systemicinjustice of some of its laws?

Human Rights Watch has reported countless cases of people placedon deportation proceedings, or actually deported, which are at least as


37. Trop v. Dulles, 356 U.S. at 102 n.36.

38. For more on the philosophical tension between justice and mercy, see, e.g., Claudia

Card, On Mercy, 81 Phil. Rev. 182–207 (1972); Martha Nussbaum, Equity and Mercy, 22

Phil. & Pub. Aff. 83–125 (1993). For the significance of executive pardons see, e.g., Austin

Sarat and Nasser Hussain, On Lawful Lawlessness: George Ryan, Executive Clemency, and

the Rhetoric of Sparing Life, 56 Stan. L. Rev. 1307–44 (2004).

NCLR1103_02.qxd 10/13/08 16:06 Page 403

shockingly unfair as Mrs. Rein’s case. As they report, “in 2005, 64.6 percentof the immigrants deported were removed for non-violent offenses likedrug convictions, illegal entry, and larceny; 20.9 percent were removed forviolent offenses; and 14.7 percent were removed for ‘other’ crimes.”39

While the evident over-criminalization ethos in the United States ismorally and politically objectionable in itself, it affects noncitizens in aneven more scandalously objectionable way.40 Consider a couple of specificcases amongst the many described by Human Rights Watch:

24-year-old Mario Pacheco entered the United States with his mother in1981 when he was two months old. He lived in Chicago with his parents asa lawful permanent resident for 20 years, where he attended public schools.Mario obtained his general equivalency diploma (GED) and went to workright away. At the age of 19, in 2001, Mario was convicted for possession of2.5 grams of marijuana with intent to distribute, which is a misdemeanoroffense under Illinois law, but is also considered an aggravated felony underimmigration law. The drugs were discovered in Mario’s car after he wasstopped for a broken taillight. Mario explained that he was hanging outwith the wrong crowd at the time, that he often drove friends in his car, andthat the drugs belonged to one of his friends. He was sentenced to one yearof “supervision”—a sentence that is less severe than probation. At this writ-ing [2007], Mario was still trying to appeal his deportation, but hisprospects did not look good. Mario works about 60 hours a week in theshipping department at a large warehouse and is the father of three U.S. cit-izen children, ages two to six. Mario’s parents also spoke with a HumanRights Watch researcher. They both are lawful permanent residents: hismother has worked at the same company for more than 20 years and has agraduate degree in business, which she obtained by attending courses atnight while working full time. His mother spoke about how stressful herson’s impending deportation was for her and the family: “If you do some-thing very bad, then I’m not saying anything about that. But he’s beingpunished for something he did when he was a teenager. He didn’t even goto jail”.41


39. Forced Apart: Families Separated and Immigrants Harmed by United States

Deportation Policy, in 19 Human Rights Watch 3(G), 5–6 (2007).

40. For more on overcriminalization see Douglas Husak, Overcriminalization: The

Limits of the Criminal Law (2007), and Markus Dirk Dubber, Victims in the War on

Crime (2006).

41. Forced Apart, supra note 39, at 21–22.

NCLR1103_02.qxd 10/13/08 16:06 Page 404


Or consider this case:

Ricardo S. was also facing separation from his U.S. citizen wife and twochildren because of an aggravated felony drug conviction. He was ordereddeported because of a conviction for possession with intent to distribute asmall amount of heroin, for which he was advised by a defense attorney toplead guilty. In return for his guilty plea, he received no jail time but wasordered to pay a fine of $500 and serve two years probation, which he com-pleted without incident. Ricardo S. had no other criminal convictions andworked in construction in the Chicago area. His conviction was brought tothe attention of the immigration authorities because he and his U.S. citi-zen wife, who were married in 2001, applied to adjust Ricardo S.’s status tothat of a lawful permanent resident. Looking back on his one conviction,Ricardo S. said, “I feel bad about it because of my family. If I was by myself,without my wife or any children, it would have been a lot different. But Ifeel real bad for them. . . . Maybe if they would have caught me with a tonof drugs [I could understand them wanting to deport me], or if I ever mur-dered somebody. But it was the only one. . . . I wish that [when I appliedfor my green card] they would have just told me I didn’t qualify. I have kidswho are citizens and a wife who is a citizen but I wish they would have justlet me continue working to support my family. . .”42

Cases such as these are, sadly, extremely numerous; I hope that it is notnecessary to keep summarizing tragic stories like these. I hope too that itis clear that the harshness of these sorts of deportations does not dependon one’s position regarding drug policy or (over-)criminalization in general.Even someone in favor of criminalizing drug use, and of punishing itseverely, would, in good conscience, admit that to deport Mario Pachecoor Ricardo S., and to separate them from their families, friends, jobs, etc.,is an extraordinarily harsh sanction—much harder, in any event, than theone they would have suffered had they been citizens.

In cases such as Mario Pacheco’s the absurdity of the distinctionbetween citizens and noncitizens is strikingly obvious. Mr. Pacheco cameto the United States, legally, when he was two months old. How is his rela-tionship to the United States different from that of someone who wasborn there? How is it different, moreover, from that of someone who cameto the United States, in his mother’s womb, merely three months beforeMr. Pacheco (and, insofar as having been born there, is a citizen of the

42. Id. at 22–23.

NCLR1103_02.qxd 10/13/08 16:06 Page 405

United States)? Is it really plausible to claim that Mr. Pacheco’s relation-ship to the United States is less meaningful than that of someone born toAmerican parents abroad, who was duly registered in the pertinentAmerican embassy, but who has never lived in the United States? And yet,the latter is not deportable, and has many more rights and protectionsthan Mr. Pacheco.

Legal systems need to draw sharp lines, fiat boundaries of sorts, which,though often reasonable, seem doomed to be somewhat arbitrary; think ofthe required age to obtain a driver’s license, or to drink alcohol, etc. Butwhen the arbitrariness of the line gives rise to systemic injustice, itbecomes pertinent to revisit the fiat boundaries we have set up. When thesystemic injustice gives rise to truly cruel and indecent treatments to largenumbers of people, as does the distinction between citizen and noncitizen,revisiting the system becomes more than merely pertinent—it becomes anurgent obligation. The central—and compelling—intuition undergirdingthe whole edifice of political philosophy is, in John Rawls’ words, that ina fair society “no one should be advantaged or disadvantaged by naturalfortune or social circumstance.”43 The United States immigration laws,however, let moral luck run amok.

4. E PI LOG U E: BACK TO MAD I SON

While I have here criticized the United States immigration policy, I do notintend this article as a piece of advocacy. I have not merely claimed thataspects of the United States immigration law are immoral and illegal; Ihave done so by way of deploying the arguments that the very UnitedStates Supreme Court has employed in arguing that denationalizationconstitutes cruel and unusual punishment (and hence that it is bothimmoral and illegal). Those wishing to object to my conclusions by sug-gesting that I rely too much on an allegedly slippery moral languageshould perforce be criticizing the United States Supreme Court, andindeed the very Eighth Amendment. For it is the Court, as it analyzes themeaning of the Eighth Amendment, that invokes “evolving standardsof decency.” I inherit this language and argue that to deport (or depart)


43. John Rawls, A Theory of Justice 16 (1999).

NCLR1103_02.qxd 10/13/08 16:06 Page 406

Mrs. Rein, or Mr. Pacheco, Mr. Ricardo S., and many of the throngs ofpeople the United States deports (or departs) every year is indecent (inthe Supreme Court’s sense), and that it does constitute cruel and unusu-al punishment.

The history of United States immigration law displays a marked tight-ening of the treatment afforded to noncitizens. The draconian treatmentto which noncitizens are regularly subjected by the United States govern-ment would be clearly illegal if it were inflicted on United States citizens.Most civilized nations around the globe, for example, when adjudicatingcases of deportation, are legally required to consider factors having to dowith the proportionality between the effects of the deportation and theseriousness of act giving rise to it. Most nations are legally required to takeinto account the familial relations that the potential deportee has to thedeporting country, the length of her stay on the deporting nation, andother factors that, rather obviously, help determine the decency of thepotential deportation. The United States used to take things of this sortinto consideration in deportation cases; they were included in section212(c) of the Immigration and Naturalization Act, but the section wassummarily eliminated by the United States Congress in 1996.44 TheUnited States thus stands alone amongst civilized nations in not even con-sidering these issues in deportation cases.

But the United States is not merely alone in the context of civilizednations, it has also turned its back on the teachings of its own better men.In another famous Supreme Court decision, one in which the Courtunconvincingly decided that deportation was not a punishment, a dis-senting Justice Brewer followed his remark that it is unnecessary to citeanyone in support of “the [obvious] proposition that deportation is pun-ishment” by actually citing the following passage from one of the framersof the United States Constitution:

If the banishment of an alien from a country into which he has been invitedas the asylum most auspicious to his happiness; a country where he mayhave formed the most tender connections; where he may have invested hisentire property, and acquired property of the real and permanent, as well asthe movable and temporary kind; where he enjoys, under the laws, a greater


44. For more on this elimination, and on Congressional discussions about it and reac-

tions to it, see, e.g., Forced Apart, supra note 39, at 28.

NCLR1103_02.qxd 10/13/08 16:06 Page 407


45. Fong Yue Ting v. United States, 149 U.S. 698, 740–41 (1893). (Justice Field, in his

own dissent, also echoed James Madison; see, e.g., id. at 745.) See also James Madison, The

Virginia Report of 1799–1800, Touching the Alien and Sedition Laws: Together with the

Virginia Resolutions of December 21, 1798, the Debate and Proceedings Thereon in the

House of Delegates of Virginia, and Several Other Documents Illustrative of the Report

and Resolutions 204 (1850).

46. Madison, supra note 45 at 69.

share of the blessings of personal security and personal liberty than he canelsewhere hope for; . . . if, moreover, in the execution of the sentenceagainst him, he is to be exposed, not only to the ordinary dangers of thesea, but to the peculiar casualties incident to a crisis of war and of unusuallicentiousness on that element, and possibly to vindictive purposes, whichhis immigration itself may have provoked; if a banishment of this sort benot a punishment, and among the severest of punishments, it will be diffi-cult to imagine a doom to which the name can be applied.45

“Invited” aliens are, at least, all legal aliens in a country. Yet, and follow-ing Justice Brewer’s lead, I will end my article with another bit of wisdomfrom James Madison, in which he talks about uprooting aliens in general,whether or not they were invited:

But it had been said, that the sending off of aliens was no punishment: itwas a kind of preventive justice. Language like this was the offspring of acold heart and muddy understanding. What! Was it no punishment to ban-ish a fellow-man from a country where he has invested his all? Where hehas formed the strongest imaginable ties? [. . .] Let those who advocate thisdoctrine, bring the case home to themselves, and inquire if they would notconceive it a punishment to be banished from a country which containedtheir all.46

Perhaps, the clear advantage that Madison has over me vis-à-vis elo-quence and gravitas is compensated for by historical events that occurredafter his death. Madison, after all, wrote these lines before the SupremeCourt had clearly established the illegality of expatriation. My task is thusmuch easier than his: it is simply to argue, as I have done here, that thoseauthoritative arguments of the Supreme Court that show expatriation tobe cruel and unusual punishment also show that other forms of uprootingpeople, such as deportation and urged voluntary departures, are, in casessuch as the ones I have presented, cruel and unusual punishment.

NCLR1103_02.qxd 10/13/08 16:06 Page 408

Uprootedness as (Cruel and Unusual) Punishment

Documents

Transcript of Uprootedness as (Cruel and Unusual) Punishment