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The Fading Sense of Citizenship Print E-mail
By Hadley Arkes   
Tuesday, 11 October 2011

The late Fr. Richard Neuhaus did a classic piece once on the question of whether an atheist could be a “good citizen.” But to ask what a “good citizen” or a good member of the political community would be is to bring us back to the original question of what the polis or the polity is.  

Is it more like a hotel, where people take up residence? In that case, the connection generates no moral demands apart from the requirement of paying the rent and obeying the house rules. Or is the polis more truly, as Aristotle taught us, a moral association:  a place where the members share certain understandings of the things that are just or unjust; where they agree to be ruled by procedures they regard, by and large, as just; and where they take it as their chief mission to cultivate that sense of justice among one another through the lessons they teach through the laws? 

Fr. Neuhaus had no doubt that an atheist could be a good citizen in a polity reduced in its moral character to the equivalent of a hotel. But a good citizen, he argued, was one who could actually give a moral defense of that regime to which he had knowingly given his allegiance. And there, he thought that the atheist who would call into question the ground of all of our moral judgments would be distinctly disarmed and disabled.   

Now of course, not all atheists will fit that description. But Fr. Neuhaus’s argument would apply to that army of moral skeptics or relativists who fill out the American academy these days. But I put that issue aside and focus mainly on that matter of citizenship, which keeps arising in different ways in our politics.

A couple of weeks ago we heard protests over the killing of Anwar Al-Alwaki, in Yemen. Al-Alwaki was a prominent figure in Al-Qaeda, connected with several attacks on Americans, including the shootings at Fort Hood. But he had been born in the United States, and by the standards shaped over the years by the courts, he was an American citizen. Yet nothing he had done had severed that moral link of  citizenship, and in the judgment of many lawyers and judges, nothing he had done would deprive him of the special protection that the laws would accord to a citizen, as apart from ordinary thugs directing murderous assaults on Americans.

             Yaser Hamdi: legal precedent

Seven years ago, in Hamdi v. Rumsfeld, Yaser Hamdi had been caught in Afghanistan with an assault rifle, and for all one could see, he was fighting on the side of the Taliban. By his father’s account, young Hamdi was there doing “relief” work, mainly minding his own business. For Justice Scalia, it mattered profoundly that Hamdi was an American citizen. The Congress had not suspended the Writ of Habeas Corpus, and so he thought that Hamdi should be either tried for treason or released. 

The Court was willing to order, at least, a review of the information that was used to justify the detention of Hamdi. But Clarence Thomas in dissent opposed this willingness of the judges to draw to themselves the power to review acts taken on the battlefield, and he saw even further:  As he reminded us, rights to “life” preceded rights to “liberty.” If it were necessary for  a court to review the decision to detain a citizen acting as an enemy combatant, would it not be even more imperative to review a decision to kill that man on the battlefield? Thomas recalled the killing of one such citizen by a CIA drone. And in that way he anticipated precisely the argument that would be made over Al-Alwaki.

But the Obama Administration has found its own “low door under the wall.” It doesn’t wish to detain enemy combatants in the Guantanamo prison it professes to find abhorrent; nor does it wish to have them interrogated, for the useful information they can provide, if it means interrogating with methods – shall we say? – severe. And so the Obama team eases its moral sensibility simply by ordering the killing of these people by drones. 

The point has been made aptly that the Biblical injunction “honor thy father and mother” could not have been referring simply to the biological parents. For in that case we would be enjoined to honor the man who sired us in the course of rape. Obligations can flow only to those who have fulfilled the moral definition of parenting – those who have been there to protect and sustain. 

We have recognized, then, that there are moral terms that mark even an association as natural as the family. And yet people can be expelled from the family – they can be cast away and disinherited – when they sever the moral bonds that connect them even to those who had borne them.  

Why is it so astonishing then to consider that the community may tenably sever the connection of citizenship with those who have come to reject the principles that mark their country and show a willingness to use deadly force against their countrymen? To say that this connection can never be severed without the consent of the citizen himself is to say that the polity has no moral character, no moral terms that could ever be broken.  

It is to say that we are no more to each other than fellow residents in a hotel.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is
Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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Comments (9)Add Comment
written by Manfred, October 11, 2011
Gosh, Dr. Arkes, I feel that I live in a hotel. In the room next to mine, two men are copulating, but the manager assures me they are married. On the other side, a woman is aborting her baby, but again, the manager assures me it is legal. Down the hall, a lesbian couple had one partner inseminated and they are the proud parents of a bouncing baby boy. In ten years they will be discussing transgender surgery for him. The polis? I can't discuss morality with Catholics! You know your society has turned a corner when the living envy the dead.
written by Richard A, October 11, 2011
But if the government is permitted unilaterally to declare that a citizen is no longer a citizen, and even to launch a lethal attack against him, how is that not in effect making him the subject of a bill of attainder? Or is the executive permitted, in this case, an action expressly prohibited to the legislative?
written by Bill G., October 11, 2011
I really have been trying to figure this out. I can see so many sides of this argument.

Yes he was a US citizen, but he was in a foreign country waging a war on the US. Does that not make him an enemy combatant, and therefor a legitimate target for military action?

On the other hand, where does the geographic distinction end? If he were in say, North Dakota, hiding out in the hills, would he still be considered a legitimate military target under the rules of engagement that are being used here?

If he is a legitimate military target, who would NOT be considered a legitimate target under these rules?

If he is not a legitimate military target, and is a civilian engaged in a criminal or treasonous endeavor, would this be an extra judicial assassination?

written by Tony A., October 11, 2011
It is ironic that Dr. Arkes begins with a reference to Fr. Neuhaus, as his argument is precisely that which is now being used to force Catholics (and others) from the public square - e.g., Illinois, where the Church is being forced out of handling adoptions & foster care. As Manfred suggests above, religious believers are considered by many, especially the ruling elite, to have "reject[ed] the principles that mark their country."
written by Christopher Manion, October 11, 2011
A fine discourse, but begging the question in the penultimate paragraph. "[T]he community may tenably sever the connection of citizenship," but the fundamental question remains, how and by whom? By a secret cadre of unelected White House employees who decide, in order to shield the president from possible accusations that such decisions are made by presidential whim and fiat? That is the fundamental issue.

For the rest, it's clear that a "community" can't "communicate" very well if it has no goods and acknowledges no truths in "common." That is where we are. hence, the entire exercise "tenably" tends towards a positivist foray, commingled with a constitutional collapse that parallels the moral one.

Some years ago -- under Clinton, I believe -- Fr. Neuhaus' magazine suggested that the regime was illegitimate. What has made it more legitimate since, that a secret army (run by the former commanding general, Petraeus) can, on the direction of people whose names we have never known, decide who has sundered his ties with his fellow man, and is thus required to be killed?

written by Other Joe, October 11, 2011
It should be obvious by now that most in the Democratic Party as it is presently led, believe that the ends justify the means and that intellectual consistency is regularly sacrificed in the interest of temporary political advantage. In other words, moral principles are not gauged in any real sense at all. Justice itself becomes an unmoored, motor-less hulk driven by the winds and tides of political expediency. For the atheist there are only goals. Pathways need not be followed. In the matter of citizen combatants for a foreign power, those individuals make the choice, which used to be called treason. Likewise the enemy who declares war defines the initial conditions of combat. Those who conduct war without uniforms, without borders, hiding among non-participants for "cover" and who make a policy of slaughtering those unable to defend themselves, narrow greatly the possible responses. Also, any government can turn on its own people at any time. The only thing that prevents it is a shared moral outlook. We see again and again that atheist governments are unable to pull back from violence against the governed when some end is desired or diminution of power is feared.
written by John Anderson, October 11, 2011
It is unfortunate that not all of the i's were dotted and t's crossed in the assassination of Al-Alwaki. Like the situation in Gitmo, there was a legal procedure that could have been followed in pursuit of the same ends, but which wasn't.

One thing I'm still unclear on is whether an American citizen can have dual citizenship. I always thought that it was a don't-ask-don't-tell situation. In other words, if I was also a citizen on Finland, I had better not let the U.S. find out. Al-Alwaki was also a citizen of Yemen. If so, I thought that his U.S. citizenship could have been revoked.
written by Hadley Arkes, October 11, 2011
Before I dash to the airport and get a flight back to Amherst, Mass., I wanted to thank the readers who responded, even though a few had not quite grasped the argument here. There is far more to be said on this subject, in all of its layers, than I could say in the space we have here. Perhaps this should be the first installment.

I want to point out to my friends how the subject looks to us differently when we speak of the 'government' making these decisions rather than the community acting through its government. And so the pro-choicers will say that the "government" is trying to tell us what we may do with our own bodies, The pro-lifers will say that "the law casts its protection" on the unborn child. Instead of saying that the government strips people of their citizenship, it is much different when we say that the community has come to the judgment that certain people have severed their connection to us by their moral defection--by their willingness to share secrets on weaponry with an enemy putting American soldiers in danger--and indeed putting the country itself in danger of losing its freedom when the secrets were put in the hands of Stalin's regime. During the Civil war the Congress voted to remove American citizenship to people who served as officers under the Confederacy--people, that is, who had been willing to defect in order to sustain a regime of slavery and to make war on the fathers and sons of American families.

During the Second World War the Nazis landed saboteurs in Florida and New Jersey, and the group contained at least one American citizen, as I recall. His citizenship did not win him any special favors, including the trial by jury to which he might have been entitled under the Constitution. FDR ordered military trials, which meted out swift justice--and executions. It used to be thought that serving in the armed forces of another country, or taking up citizenship by voting in a foreign election, were grounds that could justify the removal of citizenship. But the Supreme Court has peeled away these layers of restriction one by one in a pattern of incoherence; for what the judges have unfolded is an understanding of citizenship quite detached from moral significance--and moral requirements.

When readers lament that they are living in a hotel right now,they are merely confirming the world that the courts have taken the lead in reshaping for us. When people point out that Catholics are indeed at odds with the law, or the principles that are coming more and more to define our way of life, they are confirming what Fr. Schall and I have been arguing. But that means that we have no choice but to meet that challenge of the "culture wars." We cannot find the solution or a remedy in ordering up a polity utterly divorced from moral meanings,reflected in the laws. There is no way for that to be done. We are constituted, as human beings, with a moral nature, and our moral judgments will find expression in the laws. We cannot have a law that does not enforce judgments of right and wrong. The only question is, Whose judgments will they be? If we recede from the field, we know the morality that will be imposed on us, more and more surely, with the hand of law.

When my friend Chris Manion raises the question of who will make these decisions, the answer in the past was that they would made through laws passed by a Congress elected by the American people and reflecting then the moral temper of the American people. They should not be made in arbitrary decisions by people in administration, quite untethered from any statute passed by Congress. If we ask how these decisions would be made, the answer is that they would be made in the way that Chris Manion's late, distinguished father would make them as I listened to his radio broadcasts in the 50's. I'm certain that his warnings about Communists, posing lethal dangers to the country, were not instructions to deal with the problem through administrative discretion. He was sounding again the moral requirements of citizenship, and the measures he sought were measures of the law, measures that were deliberated upon in public before they were enacted.

As I say, there is far more to be said here--and that for another time.
written by Manfred, October 11, 2011
Dr. Arkes: You are the law professor so I should defer to you, but I have a very difficult time defending the measures taken in a "war" which was never declared. Extraordinary rendition, foreign citizens in prisons in what was formerly an Iron Curtain country to be tortured by the CIA, waterboarding? How can this ever be sanctioned? The last declared war we fought ended in 1945. We have killed millions of people since including 53 million aborted Americans. I new in the 1990s that Iraq was going to be invaded because Saddam had fired Scuds into Israel during Desert Storm and he had paid the families of suicide bombers who had struck in Israel. I received a phone call on 9/11 from one of my friends who had told me of the anticipated invasion to tell me that the "political cover" to invade Iraq had just occurred and the invasion was just a matter of time. A recent book reviewed in the Sunday NY Times by an author named Pillar states that the Bush Administration "will go to their graves" without announcing the real reason for the war.

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