Cosmopolitan Culpability: The Dynamics of Mitigated Punishment and Migration

A version of this article originally appeared in Inquiries Journal.Annamaneni, Keerthana. “Towards a Theory of Leniency for Immigrants.” Inquiries Journal12.04 (2020). <http://www.inquiriesjournal.com/a?id=1783>

“I am not an American citizen, but there is no way I am not an American,” wrote Lundy Khoy, a 40-year-old green card holder who arrived in the United States when she was just one.[1]

Born in a Thai refugee camp to parents who had fled the Cambodian Genocide, Khoy grew up in Virginia and eventually enrolled at George Mason University.[2] One night in the spring of 2000, Khoy was walking with her American-born college friend, when she was stopped by a police officer and searched. Khoy’s friends had introduced her to Ecstasy—and she was carrying seven tabs when she was stopped.[3] She was arrested and later charged with possession and intent to sell, a felony in Virginia.[4] Khoy pleaded guilty—worried “that a trial would increase [her] family’s suffering and embarrassment”—and was sentenced to five years in prison.[5] Ultimately, her sentence was suspended, and she spent three months in prison and four years on probation.[6]

But Khoy’s punishment did not end upon her release. In 2004, Khoy, then 23, took her report card to show her probation officer her recent improvements in college.[7] There, she faced a throng of Immigration and Customs Enforcement officers who informed her that her conviction would most likely result in her deportation.[8] “For me this was a second punishment for the very same crime, and this one, though never discussed or even mentioned three years earlier when I pleaded guilty, was worse than the first,” Khoy later wrote.[9] Though Khoy had no family in Cambodia, though she had never lived in Cambodia, though no one had previously informed her that her felony charge could bring about her deportation, Khoy was then sent to a detention center for almost nine months.[10] Although Khoy was later released and pardoned by the governor of Virginia for her felony, she could still be deported at any time, and she no longer has the right to become an American citizen.[11]

Khoy’s case elucidates a central paradox in the United States’ criminal justice and immigration systems. Immigrants often face two sets of punishments for the same crime: a criminal punishment and potential deportation. Though the Fifth Amendment of the Constitution prohibits this form of legal double jeopardy—“No person shall…be subject for the same offense to be twice put in jeopardy of life or limb”—immigrants de facto regularly face exacerbated punishments.[12] The existing challenges of the American justice system and the practical stakes of reimagining punishment for immigrants is abundantly clear.

In this paper, I will grapple with the theoretical dimensions of punishing immigrants. Thus far, political theorists have grappled with questions of cosmopolitan citizenship and immigration and with concerns regarding punishment and moral culpability. In The Rights of Others, Seyla Benhabib constructs a meaningful vision for global justice. Her work and the body of literature that she responds to helps redefine political communities across national borders and develops a path towards genuine cosmopolitan citizenship. Simultaneously, philosophers, including Gideon Yaffe, have produced groundbreaking theoretical work about criminal punishments. Specifically, Yaffe argues that people who cannot vote—especially children—are less morally culpable for their crimes and should receive mitigated punishments. At first glance, these two bodies of literature tackle two distinct topics: issues of citizenship and punishment, respectively. Seldom are these two literatures put in conversation. My paper aims to do just that, given that redefining our political community has serious implications for whom the state can legitimately punish, just as the state’s move to punish certain marginalized groups can actually work to redefine our political community. In other words, I hope that exploring the boundaries of political community and theories of criminal punishment together can help illuminate new dimensions of both issues.

In this paper, I will begin by reconstructing Gideon Yaffe’s argument in his seminal text The Age of Culpability. Yaffe states that minors should receive more lenient punishments for criminal offenses than adults because minors cannot vote. Yaffe carves out minors as a unique exception, noting that though felons and immigrants/visitors are also denied the vote, his argument does not apply to them. However, I am interested in grappling with Yaffe’s argument and understanding how, despite his reservations, his argument can also apply to some immigrants. In other words, I will attempt to answer the following question: should immigrants and visitors receive more lenient criminal punishments, given the fact that they cannot vote? In this paper, I answer in the affirmative. I thus aim to theorize a more lenient justice system for immigrants, asylum seekers, and all groups that are, to varying degrees, marginalized by our political community. 

I. Summary of Argument

In his compelling account of juvenile justice, The Age of Culpability, Gideon Yaffe provides a philosophically rigorous justification for the claim that “children should be given a break when they do wrong; they ought to be treated more leniently than adults.”[13] While his claim may be conventional, his reasoning is highly novel. Yaffe rejects the notion that children deserve “a break,” or lenient punishments, because children and adults are intrinsically different.[14] Children deserve leniency because children are denied the vote and cannot author their laws to the same degree that adults can. Yaffe concludes that children are less complicit in their governing structures and are “diminished in culpability” for their wrongdoing compared to adults.[15]

Yaffe adds contestable caveats to his otherwise intriguing argument. This rationale, he notes, does not apply to other groups in the polity that also lack the vote. Specifically, immigrants do not deserve a break, although immigrants without citizenship in a host country are also denied the vote.[16] Central to his argument is the “not my laws”[17] complaint; when someone lacks opportunities to author her laws, she can legitimately complain that the laws are not her own and that she has fewer “legal reasons” to follow those laws. In turn, her culpability diminishes, and the state should punish her leniently. According to Yaffe, children can legitimately launch the “not my laws” complaint because they cannot vote.[18] Therefore, they deserve “a break.”[19]

   Visitors, however, cannot legitimately launch the “not my laws” complaint and therefore, must comply with laws even if they are not complicit in authoring those laws. Yaffe reasons that visitors cannot launch the “not my laws” complaint because visitors to a country are analogous to visitors to a home. Just as house guests would violate rules of etiquette by claiming that they did not have to obey house rules since they did not choose those rules,[20] visitors to a country cannot complain that the country’s norms are not theirs and therefore do not apply to them.”[21] More specifically, he argues that “[v]isiting is in part constituted by waiver of a right to complain about the inapplicability to oneself of the norms that are authoritative for citizens.”[22] In other words, Yaffe believes that legal norms bar visitors from launching these complaints, and accepting these legal norms is a condition of being a visitor. “[P]art of what it is to be a visitor is to accept the legality of the norm barring the complaint that you offered in this dialogue,” argues Yaffe.[23]

According to Yaffe, the state is justified in conditioning visitor status on giving up “not my laws” complaints because the visitor has the choice to accept the condition or not. Visitors can choose not to enter the host country and can return home.[24] Second, visitors have a genuine choice when they face punishment for violating the host country’s laws.[25] They can accept their punishment, a condition of being a visitor, or they can disavow visitor status and legitimately launch the “not my laws” objection. Yaffe does not expand on what “disavowing” one’s status would entail in practice, nor does he explain how the government may treat those without visitor status. Putting aside these concerns with his argument, I will summarize his arguments thus: the fact that visitors have a genuine choice to enter the host country and remain in the host country demonstrates that the state can justifiably make demands of the visitor. Namely, the state can require the visitor to give up the “not my laws” complaint. Thus, the visitor can be punished like a citizen, even though the visitor does not have the right to author the host country’s laws by voting.

In the following sections, I will aim to show how Yaffe’s argument masks a fallacious logic. I agree that visitors cannot launch the “not my laws” objection; they cannot legitimately argue that they do not have to follow the host country’s laws because they do not author the host country’s laws. However, Yaffe and I diverge in our reasoning. Yaffe argues that visitors cannot launch this critique because they give up the right to object when they choose to visit. This argument, though, elides the extent to which visitors choose to visit a country. I hope to show that visitors rarely have a “genuine choice” to enter or remain in a country, chipping away at Yaffe’s logic.

Instead, I will argue that visitors do author a country’s laws, even if they cannot vote. To show how visitors play an active role in self-governance, I will turn to Seyla Benhabib’s novel concept of “democratic iterations.” Her notion that visitors do shape their governing structures and share the burden of complicity makes the “not my laws” objection untenable. Still, though, visitors are complicit in the laws of their host country to a lesser extent than citizens. Visitors, I argue, should not be treated with impunity but should receive lenient punishments. In other words, I accept Yaffe’s premise—that visitors cannot legitimately launch the objection that the laws are not her own—while also accepting a fundamentally different account of citizenship. I hope to pave the way for a radically different conclusion: visitors deserve[26] more lenient punishments than citizens.

II. Yaffe’s Account of Visiting

Yaffe’s claim that visitors, unlike children, do not deserve a “break” in the justice system begins with a faulty understanding of what it means to “visit” a country. For Yaffe, visiting has two key characteristics: first, that visiting is a choice; and second, that visiting “is in part constituted by waiver of a right to complain about the inapplicability to oneself of the norms that are authoritative for citizens.”[27] Yaffe premises his conclusion—that visitors should not receive lenient punishments—on this specific understanding of visiting. I will first critique Yaffe’s account of “visiting.” I will then will demonstrate how Seyla Benhabib’s account of disaggregated citizenship and democratic iterations provides a useful alternative to Yaffe’s account of visiting.

Yaffe’s account of visiting has critical shortcomings. Yaffe argues, for instance, that a visitor can “choose” between a) relinquishing the “not my laws” complaint, accepting the host country’s laws, and remaining in the country or b) maintaining the “not my laws” complaint, disavowing visitor status, and leaving the country. “I believe this is a genuine choice; disavowing one’s status is a real option,” he writes.[28] Here, the extent to which this choice is “genuine” is significant. If visitors do not really have a choice between these options, then the state cannot justifiably require visitors to give up the “not my laws” objection to gain visitor status. To put it plainly, visitors’ ability to choose justifies the state’s requirement.

Though Yaffe believes this choice is “genuine,” I contest this claim. Yaffe argues that people face a legitimate choice because they can always return to their own laws. But this view of visiting overlooks the lived experiences of asylum seekers and other stateless people. These people do not have an alternative to the laws of their host country, in the same way that children do not have an alternative set of laws to claim as their own. For stateless people, among others, the “choice” to waive their “right to complain about the inapplicability…of the norms that are authoritative for citizens”[29] is hardly a free choice, since they have no viable alternative. For other visitors, too, even those who are not asylees or stateless, disavowing visitor status can hardly be reduced to a simple “genuine” choice. Take the case of a visitor who moved to a country a decade ago, developed intimate personal connections, gained new skills and a new job, and purchased a home in his host country. For him, deciding whether to leave the country is not a simple, free choice, as Yaffe suggests, because his options are severely curtailed. Even if he would not face physical danger by returning to his country of origin, he would lose his livelihood, his property, and his support system. Yaffe’s “genuine choice” framework thus does not adequately reflect the complex decision-making calculus that most visitors face when they must decide whether to keep their visitor status or disavow their status and return to their country of origin.

Yaffe does recognize that many visitors may not choose to disavow their visitor status, since once one disavows their status, “the state would be under no obligation to constrain its power in the ways that it constrains it when directed at citizens” or visitors.[30] Despite the possibility of facing serious harm for disavowing their status, visitors face a “genuine choice,” according to Yaffe. In contrast, I believe that these limitations indicate that visitors do not face a meaningful choice, because meaningful choices require viable, attractive options. Therefore, the state’s requirement that visitors “[waive] their right to complain about the inapplicability to oneself of the norms that are authoritative for citizens”[31] is not legitimate since the state cannot make demands of the visitor without providing viable alternatives.[32]

In Yaffe’s framework, if the state cannot legitimately demand that visitors relinquish the “not my laws” objection, then visitors can justifiably launch this objection. As a result, visitors would be less culpable and should receive lenient punishments. However, in the next section, I will use a radically different theory of citizenship to demonstrate why visitors still may not launch the “not my laws” objection

III. Benhabib’s Account of Visiting

Yaffe’s belief that visitors have the “genuine choice” to disavow their citizenship is connected to his problematic view of citizenship as a binary concept. Yaffe has divided society into static categories of citizens and visitors, and he allows for no fluidity between the two categories. For Yaffe, citizens author their own laws and cannot launch the “not my laws” objection. In contrast, visitors choose to accept their visitor status and the requisite obligation to follow their host country’s laws and thus cannot launch the “not my laws” objection. Citizens are complicit; vistors are not complicit, but must accept being punished as though they are. The fundamental problem in Yaffe’s account rests not in his conclusion—that visitors cannot fully launch the “not my laws” objection—but in his problematic understanding of visiting. Turning to alternative understandings of visiting and citizenship—namely, Seyla Benhabib’s theory of disaggregated citizenship—allows us to demonstrate that visitors are, in fact, complicit in their governing structures. Thus, “visitors” cannot entirely launch the “not my laws” objection.

In The Rights of Others, Seyla Benhabib dismantles the binary of “citizen” and “visitor” by putting forward the novel concept of “disaggregated citizenship.” She argues that citizenship can be “disaggregated into three components: collective identity; privileges of political membership; and social rights and claims.”[33] To illustrate her intervention, Benhabib turns to the rights regimes of the European Union, where “rights of citizens of member countries of the EU are sharply delineated from those of third-country nationals, within a patchwork of local, national, and supranational rights regimes.”[34] In the EU, a Greek man who moves to Belgium, for instance, has the right to take up a job and to “vote as well as stand for office in local elections and in elections for the Parliament in Europe.”[35] Clearly, the Greek man is entitled to certain political rights without being a citizen and plays a part in authoring his own laws. In other words, “the entitlement to rights is no longer dependent upon the status of citizenship.”[36]

As Benhabib rightly points out, our view of citizenship shapes our understanding of democratic legitimacy and self-governance, concepts that are fundamental to Yaffe’s theory of punishment. When we reject understanding “we, the people” as a “homogenous citizenry” and accept, instead, disaggregated citizenship, we must also reject the idea that only the idealized homogenous citizenry—a citizenry with collective identity, political privileges, and social rights—authors the laws.[37] When we instead fully embrace disaggregated citizenry, we “move toward a vision of reflexive acts of constitution-making which are cognizant of the fact that political entities act in an environment crowded with other political actors.”[38] Thus, individuals with some aspects of disaggregated citizenship, but not others, are not shut out of the process of constitution-making. This diverse set of actors is not a passive collection of visitors who “choose” to accept the state’s requirements without complaint in the way Yaffe imagines them; far from it. When we take disaggregated citizenship seriously, we begin to construe visitors as active agents who, by virtue of possessing disaggregated rights, shape their polis and become complicit in its laws and actions in novel ways.

While Yaffe holds that individuals primarily shape their laws through formal political processes, like voting, Benhabib recognizes that individuals wield influence in much broader ways. Visitors with disaggregated rights thus shape their polis through what Benhabib calls “democratic iterations.” For Benhabib, democratic iterations are “complex processes of public argument, deliberation, and exchange” through which rights claims and principles are “contested and contextualized, invoked and revoked, posited and positioned.”[39] Through democratic iterations, a democratic people does not just repeat principles, but transforms principles, as every iteration both preserves and dissolves the established precedent. In this way, democratic iterations do away with the notion that the polity’s foundational principles are “impervious to transformative acts of will” and accepted as given.[40]

Democratic iterations are especially useful when considering visitors because they demonstrate how individuals who are excluded from formal processes of shaping the law—such as voting—still wield influence over the law in other ways. In the following section, I hope to demonstrate how visitors have used democratic iterations to influence their polity. Through a contemporary case study, I will show that visitors are agents and are parts of the demos. As a result, visitors are necessarily complicit in their host countries’ governing structures. We can conclude that visitors are both authors and subjects of the law and can be legitimately punished by the state for the same reasons that the state may punish formal citizens.

Democratic iterations mediate between the universal and the particular, the moral and the ethical. In other words, democratic iterations enable the demos to retain sovereignty while also aspiring for universal human rights. Democratic iterations are thus connected to jurisgenerative politics: “iterative acts through which a democratic people…reappropriates and reinterprets” norms and principles.[41] In contrast, as Robert Cover argues, courts can be “jurispathic,” rather than jurisgenerative. That is, courts preclude the plurality of meanings of law, instead acting on “the need to suppress law, to choose between to or more laws, to impose upon laws a hierarchy.”[42] Whereas jurisgenerative courts restrict the plurality of meaning of law, democratic iterations, through which the demos proves to be both the “subject” and “the author” of its laws, [43] initiates the “creation of legal meaning.”[44]

IV. Democratic Iterations and “Visitors”

Benhabib is not clear about how democratic iterations should be interpreted, and my interpretation can be contested. Others interpret democratic iterations in the following way: members of the demos who are formal citizens—“insiders”— drive democratic iterations, but their iterative process is profoundly influenced by universal norms and by outsiders, or visitors. Max Pensky writes that membership in constitutional states is, to a large extent, incoherent because “it is always grounded in terms that extend well beyond the territorial limits that are required for the idea of a constitutional state to make any sense.”[45] This interpretation illuminates the following impenetrable paradox: the demos, constituted of citizens and insiders, is “sovereign,” and “the sovereignty of this demos derives its legitimacy from its adherence to fundamental human rights principles.”[46] This demos “define[s] and renegotiate[s]” the boundaries of the demos through democratic iterations.[47] Although “we the people,” the sovereign people who make up “the demos,” can come to include new members, visitors and outsiders do not directly participate in democratic iterations. As people who “do not share the dominant culture’s memories and morals,” visitors instead push the demos to redefine their principles in novel ways that better respond to the demands of “democratic universalism.” [48] Still, visitors are not themselves agents in the process of democratic iterations.

Though this interpretation of Benhabib’s argument is persuasive, its logic seems, at times, circular. According to this interpretation, democratic iterations help generate criteria for political membership and define the demos, but participation in those iterations is premised on preexisting criteria for political membership. Further, members of the demos must be amenable to participating in democratic iterations and to jurisgenerative politics for democratic iterations to function properly. If the community is not open to democratic iterations—or if it embraces democratic closure—then democratic iterations will consistently be jurispathic. Benhabib has argued that “the presence of others who do not share the dominant culture’s memories and morals poses a challenge to the democratic legislature to rearticulate the meaning of democratic universalism.”[49] But as Aleinikoff points out, there are many instances in which the presence of immigrants might not lead the demos to become more open.[50] In short, I posit that excluding “visitors” from democratic iterations may actually limit the demos’ capacity to open itself up to democratic universalism and catalyze the jurispathic potential of democratic iterations.

Instead, I favor an interpretation of democratic iterations that views visitors as agents who actively participate in democratic iterations. Inevitably, my interpretation can also fall victim to several formidable critiques; for instance, Aleinikoff’s anxiety about “infinite regress” seems salient here. He notes that the “first question for discourse theory must be, who is entitled to be a member of the conversation. To say that any resident migrant has the right to participate in the conversation is to assert as a postulate the very issue that is under discussion in the conversation—the right of membership.”[51]  Many eminent scholars, including Benhabib, have tackled these shortcomings in debates that I will not rehash here. Instead, I aim to demonstrate how visitors participate in democratic iterations through one salient case study. I hope to depict how visitors shape formal laws, upend the social contract, and push the polity to reconfigure itself around new boundaries.

V. Democratic Iterations in Practice

On February 16, 2017, immigrants across the country staged boycotts and strikes to protest the Trump administration’s immigration policies.[52] Just days before the protest, Immigrations and Customs Enforcement had arrested 680 people in immigration raids all over the country.[53] In response, the day of protest, entitled the “Day Without Immigrants,” advocated immigrants to “stay home from work or school, close their businesses and abstain from shopping.”[54] The immigrants participating in the protest aimed to underscore the centrality of “visitors” to American culture and the American economy. Through protests, boycotts, and strikes—all forms of democratic iterations—these protesters urged American citizens and lawmakers to reconsider their guiding principles and to redefine their understanding of citizenship.

The nationwide protest was led not by a national organization, but by immigrants across the country, who spread message of the strike through social media, especially Facebook and WhatsApp.[55] One teacher in Charlotte, North Carolina reported “empty desks today as over half of my class stays home,” while over 250 businesses in the Charlotte region closed for the protest.[56] In Kansas City, Missouri, hundreds of “visitors” and citizens gathered around City Hall, chanting “USA!” in support of immigrants’ place in the United States.[57]  In D.C., businesses staffed and owned by immigrants closed for the day, and at least two schools shut down in solidarity with immigrants.[58] As The New York Times reported, the protests even began to affect the federal government, when “the Pentagon warned its employees that a number of its food concessions, including Sbarro’s, Starbucks and Taco Bell, were closed because immigrant employees had stayed home and that they could expect longer lines at restaurants that were open.”[59]

Immigrants’ protests in 2017 demonstrates the contemporary power of democratic iterations and the role that “visitors”—or outsiders—play in iterative processes. Through their discourse, immigrants not only demanded that role in American schools, businesses, and the workforce be recognized, but have also actually urged a new understanding of the American demos. Though the Trump Administration had scaled up immigration raids, immigrant-protesters publicly questioned federal immigration policies by arguing that the American demos includes immigrants. They have redefined the polity and asserted that citizenship is an inalienable right.

During Obama’s presidency, democratic iterations were similarly critical to achieving immigration reform. Undocumented immigrants in the United States as children known as “Dreamers” have used nationwide protests, rallies, and other forms of democratic iterations to lobby the Obama Administration for immigration reform.[60] Though there is no specific start date for Dreamers’ movement, undocumented immigrants picked up traction during Obama’s first term and have grown a far-reaching movement of immigrants who campaigned for reform.[61] As POLITICO reported, Dreamers across the country “began to reveal their status, sometimes in public coming-out ceremonies” and used their personal experiences with immigration to mobilize and build coalitions to campaign against Obama’s deportations.[62] Furthermore, campaigns such as the 2010 Dream Walk expanded the movement’s national reach. In 2010, four immigrants hiked from Miami to Washington D.C., raising awareness about their vulnerability to arrest and deportation and building support for the Dream Act.[63] Dreamers thus protested and lobbied the White House, and ultimately, President Obama established the Deferred Action for Childhood Arrivals program (DACA), which prevented 800,000 Dreamers from being deported.[64] In this way, these immigrants may be “visitors,” but they have participated in democratic iterations, the process of repeating and transforming principles through argument and contestation. By virtue of participating in democratic iterations, immigrants help shape their governing structures. Therefore, they are not merely “outsiders” who retain distance from their polity, but political actors who are complicit in their polity.

VI. Complicity and Culpability

If we accept that visitors, like formal citizens, are complicit in their host countries’ governing structures by virtue of “having a say” through democratic iterations, we must also conclude that the state can legitimately punish visitors. Yaffe reconstructs this argument as follows: Individuals “have a say” in their government when they have “an entitlement to exert influence, not to have influence.”[65] Drawing on his argument, I posit that visitors have the right to participate in formal or informal processes that can influence their governing structures and “have a say,” even if their work does not meaningfully impact their governing structures. These visitors are complicit and can be legitimately punished. However, visitors should also be punished more leniently than citizens because visitors are less culpable than citizens. To fully explicate this claim, I will first reconstruct and build on Yaffe’s understanding of culpability.

First, Yaffe believes that the degree to which we are complicit is directly connected to the extent to which we “have a say” over our governing structures. Those of us who have more of a say over our laws are also more complicit in our laws. In turn, our complicity in governing structures also gives us legal reasons to follow the law. The more complicit we are, the “stronger are [our] legal reasons to refrain from crime because the more complicit he is the more the standards with respect to which he is judged are his standards.”[66] In other words, people with more say over the law help shape their laws; they thus have stronger reasons to obey their laws.[67]

A person’s degree of criminal culpability, argues Yaffe, directly corresponds to the strength of her “legal reasons” to obey the law, and therefore to their complicity. Yaffe argues that people are criminally culpable when they act in a way that is “discordant with the legal reasons in which the act is in violation of a norm of criminal law.”[68] Analyzing and objecting to Yaffe’s discussion of culpability is outside the scope of my argument, but it is important to note that for Yaffe, culpability arises from irrational behavior, and disobeying the law is more irrational when the offender has had more say over those laws. In other words, when a person has the power to shape her own laws, she is more culpable for breaking them. The state, in turn, should legitimately punish people who are more culpable with harsh punishments. Simultaneously, the state should punish people who are less culpable with lenient punishments. Now, if we accept this framework, visitors should receive lenient punishments if and only if they are less culpable than others.

VII. Reduced Culpability of Visitors

According to Yaffe’s philosophically rigorous framework, people who have less of a say than others are less culpable for their actions and deserve lenient sentence. For Yaffe, people can have more or less of a say in three important ways. First, “one can be entitled to exert more or less influence.”[69] Politicians, for instance, are entitled to exerting more influence over governing structures than others because politicians have the right to vote on legislation. Second, “one can be entitled to be free of more or fewer obstacles to exertion of one’s influence.”[70] You might be entitled to the state helping you travel to your polling location if and only if you live within 5 miles of the location. If you live 6 miles from your polling location, you are not entitled to the state helping you with these obstacles, which limits the say you have. Finally, Yaffe argues that “one can actually face more or fewer obstacles than one is entitled to be free of.”[71] For instance, if you are entitled the right to peaceful protest, but in reality, the state does not protect your right to protest, then you face more obstacles than you are entitled to face. As a result, you have “less of a say” in your governing structures than you are entitled to have.

If we adhere to Yaffe’s delineation of the ways in which someone may have “less of a say” than others, we begin to see how visitors are denied “a say” in many ways, though they shape their polity through democratic iterations. First, visitors are “entitled to exert [less] influence” than citizens (1).[72] Citizens are entitled to more influence than visitors precisely because citizens are afforded more disaggregated rights than visitors. Disaggregated rights are distributed unequally, and those who are afforded more rights also have more opportunities to shape their laws. Specifically, Benhabib describes the three components of disaggregated citizenship as “collective identity, privileges of political membership, and social rights and claims.”[73] To be sure, “entitlement to rights is no longer dependent upon the status of citizenship,”[74] and in the United States, visitors can, to varying degrees, receive all of these rights. Still, citizens, on the whole, receive more components of disaggregated rights than visitors, especially regarding the privileges of political membership. Though visitors can shape their polity in informal ways through protest, discourse, and public contestation— citizens can also shape their polity in formal ways, such as by voting in referendums or voting for legislators who best represent their interests.

These formal mechanisms of law-making often mediate the informal discursive processes of democratic iterations.[75] For instance, immigrants protesting Trump’s immigration policies through boycotts and protests can participate in democratic iterations and work within a kind of “community lawmaking” paradigm.[76] Still, citizens with formal voting rights have an important privilege, as they can vote legislators out of office or threaten to do so to push legislators to act. Democratic iterations are thus being used to articulate new principles and to challenge the status quo, but certainly, citizens with formal political rights possess a critical component of disaggregated citizenship that visitors may not access.

To be clear, I do not believe that democratic will-formation is a primarily formal law-making process, and I do not believe that formal political rights—the right to vote, for instance—wields more or less power than the aspects of democratic iterations that are open to visitors. I simply mean to show that constitution is both “legal framework” and “the creation of concrete social relationships,” and reimagining the polity requires both formal law-making processes, which shape legal framework, and informal democratic iterations, which shape social relationships.[77] As a result, though visitors have the right to use democratic iterations for the “forging of social relationships,” visitors are closed off from many formal processes that citizens can access.[78] And because visitors have less of an ability to transform their laws, they are less complicit in their laws, have fewer legal reasons to follow their laws, and are ultimately less culpable for disobeying the law.

Visitors also have less of a say than citizens because they are “entitled to be free of obstacles” when exerting their influence (2).[79] I posit that people participating in democratic iterations are entitled to fewer protections than people exercising their right to vote. As just one example, let us turn to the “scarf affairs” which started in France in 1989.[80] Benhabib reconstructs how the National Assembly’s banning of the headscarf “pitted the right to freedom of conscience, which all French citizens and residents alike are entitled to, against the specific French understanding of the separation of church and state.”[81] In opposition, a group of scarf-wearing Muslim teenagers decided to wear the scarf, despite the national ban. Through exercising their freedom of religion as French citizens and as agents, these teenagers “touched upon the self-understanding of French republicanism” throughout the country and forced the ongoing process of redefining French values, an exemplar of democratic iterations at play.[82] Benhabib summarizes their point as “the protection of the equal right to religious freedom…should be considered more fundamental [than]… laïcism.”[83] In other words, these Muslim teenagers were resignifying the wearing of the scarf; they were engines of democratic iterations, the ongoing process of articulating and exercising their rights and transforming established precedent in the process.

Though they simply “used the freedom given to them by French society and French political traditions” to make a conscious political statement, the Muslim teenagers faced significant backlash.[84] In fact, in 1996, 23 Muslim girls were expelled from their schools for wearing their headscarves. The Conseil d’Etat stated that “‘the wearing by students, in the schools, of signs whereby they believe to be manifesting their adherence to one religion …would constitute an act of pressure, provocation, proselytizing, or propaganda, threatening to the dignity or liberty of [others].’”[85]

Visitors who challenge precedent through democratic iterations can thus be sanctioned if agents of state power believe that the cosmopolitan norms being engaged are not compatible with state sovereignty. In this way, those participating in democratic iterations are often not entitled to state protections, since iterations do not just “repeat,” but “transform,” and “transform[ing] what passes as the valid or established view of an authoritative precedent” has historically been met with state violence, rather than protections.[86] To be sure, citizens are not entitled to be free of all obstacles when exerting their influence. Certainly, the United States struggles with voting disenfranchisement. Still, though voting protections are limited, the mere existence of automatic voter registration, election day voting registration, opportunities to vote early or by mail, and provisions to make voting accessible for people with disabilities illuminates key ways that formal rights are crystallized and protected in ways that informal means of law-making, like democratic iterations, are not. Thus, I posit that formal political rights receive greater state protections than informal democratic iterations.[87]

Finally, visitors have less of a say because they often “actually face [more] obstacles than free of.”[88] Consider, for instance, undocumented immigrants in the United States who are entitled to exercise their free speech and participate in protests or democratic iterations. Doing so, however, could subject them to more scrutiny by state actors and could bring about their deportation. Though “insiders” and citizens may also face obstacles when attempting to exercise their rights, I would posit that this burden falls more heavily on visitors.

In sum, I have drawn upon Yaffe’s framework of the three ways in which individuals may have a diminished say and may be less culpable. Visitors are entitled to exercise less influence than citizens; they are entitled to be free of fewer obstacles than citizens; and they face more obstacles than they are entitled to face.

VII. Implications

In this paper, I have demonstrated how visitors are complicit in their polity because of their ability to participate in democratic iterations. Still, I have maintained that visitors are less culpable than citizens because they have “less of a say” than citizens. Therefore, visitors should receive a mitigated punishment, according to Yaffe’s framework, which connects culpability and leniency. This theory towards lenient punishments for immigrants has profound implications for both theories of democratic iterations and theories of punishment. I cannot here address all of the potential ways forward, but in my conclusion, I will aim to raise a few possible implications.

To start, democratic iterations can pave a way towards a justice system that views crime as a tear in our collective social fabric and punishment as a way to mend social relationships. In other words, pairing democratic iterations with theories of punishment may offer new normative arguments in favor of restorative justice, as opposed to retributive justice. To clarify this claim, I turn to Craig Calhoun, who differentiated “constitution as legal framework” from “constitution as the creation of concrete social relationships: of bonds of mutual commitment forged in shared action, of institutions, and of shared modalities of practical action.”[89] Though Calhoun himself does not connect “constitution” to democratic iterations, I believe that the two conceptual interventions are deeply interrelated. Participating in democratic iterations enables us to see our constitution as comprised of not only formal laws, but also social relationships. Democratic iterations are one way to transform the social relationships that Calhoun refers to. For instance, immigrants participating in the “Day Without Immigrants” did not just appeal to formal law-making processes; they appealed to their communities, to fellow Americans, urged them to reconsider principles of citizenship fundamental to their shared polity. Through democratic iterations, they configured constitution as social relationship—not merely constitution as legal framework.

When we begin to recognize these social relationships that are fundamental to law and that are shaped by democratic iterations, we begin to glean new perspectives on crime and punishment, as well. Namely, if we restrict ourselves to the lens of “constitution as legal framework,” then crime constitutes disobeying a formal rule; but if we imagine constitution as social relationships, then crime can be viewed as damaging a social relationship. In other words, democratic iterations seek to transform the social relationships that some crimes may violate. When we begin to see crimes through the lens of broken relationships, we can also begin to imagine new punishments that more closely attend to those broken relationships. Here, restorative justice, which prioritizes healing broken trust between offenders and their broader community, can be one of many possible endpoints.  

 On the other hand, the model of punishment that I put forward in this paper—a framework for granting visitors more lenient punishments than citizens—can also inform and strengthen democratic iterations’ potential for jurisgenerativity, rather than jurispathology. On its own, democratic iteration is a highly unpredictable concept and can produce jurispathic results. For instance, when Raghunandan Yandamuri, an Indian “visitor” living in the United States, was convicted of killing two other Indian residents in Philadelphia, the Philadelphia community publicly and privately pushed for the state to sentence him to death.[90] Many articulated seemingly jurispathic principles of democratic closure. This example, among others, demonstrates the jurispathic potential of democratic iterations.

However, ensuring that visitors receive more lenient punishments than citizens could also help ensure that democratic iterations tend towards jurisgenerativity. In my view, democratic iterations that are controlled by people who also have more power and are in the majority can more readily fall into the trap of jurispathology. Criminalizing immigrants with harsh punishments can feed this jurispathology in several ways. First, criminalizing immigrants further limits their disaggregated rights, both by restricting their access to social rights and by pulling them away from their communities. Harsh punishments prevent immigrants from forging social relationships and becoming a part of the collective in a meaningful way. When these aspects of their disaggregated citizenship are weakened, immigrants also begin to lose their potential to meaningfully participate in democratic iterations, since participating in democratic iterations depends on having disaggregated rights. Further, on a more fundamental level, individuals who receive harsh punishments and are ripped away from their communities for extended periods of time simply cannot participate in democratic iterations, since democratic iterations rely on public discourse.

When we instead reduce harsh penalties for immigrants, we enable immigrants to participate in democratic iterations. In turn, iterations that include immigrants and outsiders give voice to new perspectives that have been historically marginalized. Broadening the community of people that can partake in democratic iterations is thus not only normatively important; I believe this can also mitigate the jurispathic potential of democratic iterations leading to jurispathology and instead pave a way towards jurisgenerativity.

Bibliography

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Benhabib, Seyla. Another Cosmopolitanism. Oxford, UK: Oxford University Press, 2006.

———. “Claiming Rights across Borders: International Human Rights and Democratic Sovereignty.” The American Political Science Review 103, no. 4 (November 2009): 691-704. JSTOR.

———. The Rights of Others: Aliens, Residents, and Citizens. Cambridge, UK: Cambridge University Press, 2011.

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Dmonoske, Camille. “75 Percent Of Immigration Raid Arrests Were For Criminal Convictions, DHS Says.” NPR.org, February 13, 2017. https://www.npr.org/sections/thetwo-way/2017/02/13/515032423/75-percent-of-immigration-raid-arrests-were-for-criminal-convictions-dhs-says.

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Thomassen, Lasse. “The Politics of Iterability: Benhabib, the Hijab, and Democratic Iterations.” The University of Chicago Press 31, no. 1 (January 2011): 128-49. JSTOR.

Yaffe, Gideon. The Age of Culpability. Oxford, UK: Oxford University Press, 2018.

References

[1] Lundy Khoy, “Mr. Trump: I Am an Immigrant with a Criminal Record,” The New York Times (New York, NY), November 24, 2016.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Cornell Law School, “Fifth Amendment,” Legal Information Institute, https://www.law.cornell.edu/constitution/fifth_amendment.

[13] Gideon Yaffe, The Age of Culpability (Oxford, UK: Oxford University Press , 2018), 1.

[14] Yaffe, The Age of Culpability, 10.

[15] Yaffe, The Age of Culpability, 11.

[16] Yaffe, The Age of Culpability, 185.

[17] I should note that this is my shorthand; Professor Yaffe does not use this phrase.

[18] Yaffe, The Age of Culpability, 182.

[19] Yaffe, The Age of Culpability, 185.

[20] This understanding of visitors to your home is, of course, contestable, especially given Derrida’s profound work on hospitality. However, I will not draw out this argument in this paper.

[21] Yaffe, The Age of Culpability, 191.

[22] Yaffe, The Age of Culpability, 191.

[23] Yaffe, The Age of Culpability, 191.

[24] Yaffe, The Age of Culpability, 193.

[25] Yaffe, The Age of Culpability, 191.

[26] This is a strictly retributivist justification for punishment and has many flaws. Unfortunately, though, a detailed discussion of the flaws of retributivism are outside the scope of my argument.

[27] Yaffe, The Age of Culpability, 191.

[28] Yaffe, The Age of Culpability, 193.

[29] Yaffe, The Age of Culpability, 193.

[30] Yaffe, The Age of Culpability, 193.

[31] Yaffe, The Age of Culpability, 191.

[32] This is a premise that I am sure many can contest. One might argue that the state can legitimately demand that visitors accept certain regulations without providing viable alternatives. The literature on this subject is significant, and I won’t rehash those arguments here. For the sake of my argument, I will just assume this to be true.

[33] Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge, UK: Cambridge University Press, 2011), 145.

[34] Benhabib, The Rights, 146.

[35] Benhabib, The Rights, 148.

[36] Benhabib, The Rights, 154.

[37] Benhabib, The Rights, 175.

[38] Benhabib, The Rights, 176.

[39] Benhabib, The Rights, 179.

[40] Benhabib, The Rights, 181.

[41] Benhabib, The Rights, 180.

[42] R.M. Cover et al., Narrative, Violence, and the Law: The Essays of Robert Cover, Law, Meaning, and Violence (University of Michigan Press, 1992), 139, https://books.google.com/books?id=5CKZJoVoy48C.

[43] Benhabib, The Rights, 181.

[44] Cover et al., Narrative, Violence, and the Law: The Essays of Robert Cover, 103.

[45] Max Pensky, Ends of Solidarity: Discourse Theory in Ethics and Politics (Albany, NY: State University of New York Press, 2008), 122.

[46] Benhabib, The Rights, 178.

[47] Benhabib, The Rights, 181.

[48] Benhabib, The Rights, 212.

[49] Benhabib, The Rights, 212.

[50] T. Alexander Aleinikoff, “Comments on the Rights of Others,” European Journal of Political Theory 6, no. 4 (2007): 424–30.

[51] T. Alexander Aleinikoff, “Comments on the Rights of Others,” European Journal of Political Theory, October 2007, 427, digital file.

[52] Liz Robbins and Annie Correal, “On a ‘Day Without Immigrants,’ Workers Show Their Presence by Staying Home,” The New York Times, February 16, 2017, sec. New York, https://www.nytimes.com/2017/02/16/nyregion/day-without-immigrants-boycott-trump-policy.html.

[53] Camille Dmonoske, “75 Percent Of Immigration Raid Arrests Were For Criminal Convictions, DHS Says,” NPR.org, February 13, 2017, https://www.npr.org/sections/thetwo-way/2017/02/13/515032423/75-percent-of-immigration-raid-arrests-were-for-criminal-convictions-dhs-says.

[54] Robbins and Correal, “On a ‘Day Without Immigrants,’ Workers Show Their Presence by Staying Home.”

[55] Robbins and Correal.

[56] Bill Chappell, “‘A Day Without Immigrants’ Promises A National Strike Thursday,” NPR.org, February 16, 2017, https://www.npr.org/sections/thetwo-way/2017/02/16/515555428/a-day-without-immigrants-promises-a-national-strike-thursday.

[57] Chappell.

[58] Chappell.

[59] Robbins and Correal, “On a ‘Day Without Immigrants,’ Workers Show Their Presence by Staying Home.”

[60] Julia Preston, “How the Dreamers Learned to Play Politics,” POLITICO, September 9, 2017, https://www.politico.com/magazine/story/2017/09/09/dreamers-daca-learned-to-play-politics-215588.

[61] Preston.

[62] Preston.

[63] Preston.

[64] Preston.

[65] Yaffe, The Age of Culpability, 160.

[66] Yaffe, The Age of Culpability, 164.

[67] Yaffe, The Age of Culpability, 165.

[68] Yaffe, The Age of Culpability, 172.

[69] Yaffe, The Age of Culpability, 162.

[70] Yaffe, The Age of Culpability, 162.

[71] Yaffe, The Age of Culpability, 162.

[72] Yaffe, The Age of Culpability, 162.

[73] Benhabib, The Rights, 145.

[74] Benhabib, The Rights, 153.

[75] I see community law as akin to the kind of law-making that takes place through democratic iterations, but I believe that the power of community law is mediated through formal law. I do not have space here to outline fully this argument, but I have found Professor Cover’s work particularly useful. See Cover, Robert. “The Supreme Court, 1982 Term.” Harvard Law Review 97, no. 1 (November 1983): 70-295. https://www.jstor.org/stable/1340787.

[76] Judith Resnik, “Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover,” Yale Journal of Law and Humanities 17, no. 1 (January 2005): 18, digital file.

[77] Craig Calhoun, “Imagining Solidarity: Cosmopolitanism, Constitutional Patriotism, and the Public Sphere,” Public Culture 14, no. 1 (2002): 152, digital file.

[78] Calhoun, “Imagining Solidarity,” 159.

[79] Yaffe, The Age of Culpability, 162.

[80] Benhabib, The Rights, 181.

[81] Benhabib, The Rights, 181.

[82] Benhabib, The Rights, 186.

[83] Benhabib, The Rights, 194.

[84] Benhabib, The Rights, 187.

[85] Benhabib, The Rights, 188.

[86] Benhabib, The Rights, 190.

[87] To be clear, I think that fully discussing this claim would require another paper on its own, and I am sure that people could contest this claim reasonably well. But again, giving ample evidence for this claim is not the focus of my argument.

[88] Yaffe, The Age of Culpability, 162.

[89] Calhoun, “Imagining Solidarity,” 152.

[90] Anonymous post to Facebook web forum, “Death Penalty for Raghu Yandamuri,” https://www.facebook.com/DeathPenaltyForRaghuYandamuri/.