Why Being a Person Doesn't Matter If You're Not a Citizen

Science fiction has often grappled with the question of the rights of non-human intelligences that are indistinguishable from the rights of humans. They've often come down to the fact that, no matter their origin, people are people who have certain rights. But they might be focusing on the wrong question. The real issue might be whether or not they're citizens.

When it comes to legal rights, there are two prongs: personhood and citizenship. Whereas legal personhood has undergone an expansion in recent years, we've also seen a continuing trend of treating citizens and non-citizens differently. So even if a sentient non-human could fit itself into the mold of a legal person, would they also need to make themselves a citizen to be fully protected?

What Is a Person?

There's a lot that's changed in what the law considers a "person." Natural persons — that is, people that are born — are people. Ever since the abolition of slavery, human beings have all been considered legal people.

The other group of legal people are entities that aren't natural born persons, but are treated as "people" for the purposes of law. Or, in the words of John Chipman Gray: "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties."

Why Being a Person Doesn't Matter If You're Not a Citizen

Traditionally, the legal rights and duties extended to legal persons are the right to own property and the right to sue and be sued. (In a way, Star Trek Voyager's "Author Author" sort of got that: Even if the court didn't want to say the Doctor was a regular person, who could be a legal person with the limited right to own property in his holodrama.)

The legal fiction that makes entities into legal people traditionally applied to corporations, governments, and the like. The logic comes from two sources: 1) that anything comprised of people working in concert has the same rights as the individuals working alone and 2) that entities that aren't natural persons must be treated as legal persons in order for them to do things like enter contracts and own property. A business that couldn't sign a contract wouldn't get very far.

So if an AI was a legal person in the same vein as a corporation, what do their rights look like?

In many countries, legal persons aren't given the same civil rights as natural citizens. But in the United States, we've seen some of those rights extended to legal persons. Such as the protection against unreasonable search and seizure or, recently, speech.

"Corporate personhood" is an idea that retook the spotlight in the aftermath of the Supreme Court's decision in 2010's Citizens United vs. Federal Election Commission. The question goes back to Santa Clara County vs. Southern Pacific Railroad, an 1886 case which included the headnote:

One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.

While a headnote isn't technically legally binding precedent, it provided the basis for a long argument about the rights of corporations as legal people.

Citizens United established that a person's identity as a corporation rather than natural person did not mean it lost First Amendment free speech rights. Leaving aside the question of whether money really does equal speech, what this hints at is that all legal persons, not just natural ones, have rights beyond the traditional ones of property ownership and those associated with lawsuits.

But the analysis of the rights of people, natural or legal, shifts a fair bit if they're not also citizens.

Why Being a Person Doesn't Matter If You're Not a Citizen

The Rights of Citizens

Legal persons have their citizenship determined a number of ways: where they're incorporated, where they're headquartered, or the citizenship of the majority of their members, for example. That's how they can be citizens of a state for purposes of litigation. Citizens United left open the question of whether foreign companies have the same protections as American ones. In the majority opinion, Justice Kennedy wrote:

We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process. Cf. 2 U.S.C. § 441e (contribution and expenditure ban applied to "foreign national[s]"). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.

So, while the Court concluded in Citizens United that the restrictions on speech at issue were unconstitutional, the question of whether their would be different tiers of protection for American legal people and foreign legal people is left open.

The Constitution of the United States makes a couple of distinctions between "citizens" and "people." The vast majority of the rights listed in it are given to "people" rather than to "citizens." However, there is a consistent trend in American jurisprudence to treat citizens and people differently.

Here's the text of Section 1 of the Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There's a division enumerated there between the rights of citizens, generally, and people in general. The due process clause applies to all people and is what protects the kinds of rights that most spring to mind when you think of the rights of people.

The privileges and immunities clause, which refers only to citizens, has lain mostly dormant since the Slaughter-House Cases of 1873, which read that clause as only applying to the federal citizenship. Therefore, the privileges and immunities of citizenship, according to the Slaughter-House Cases, include access to seaports and navigable waterways, the right to run for federal office, the protection of government while on the high seas or in a foreign jurisdition, the right to travel to the seat of government, the right to peaceably assemble and petition the government, the privilege of the writ of habeas corpus, and the right to participate in the government's administration.

In 1990, the Supreme Court held that not all non-citizens have constitutional protections. U.S. v. Verdugo-Urquidez gives non-citizens those rights when they are within the United States and have developed "substantial connections" with it.

The most obvious area of law that treats citizens and non-citizens differently is immigration. Non-citizens can be denied entrance to the United States and deported for even minor infractions. It takes extraordinary circumstances to justify anything similar for American citizens.

Three very contentious areas of law show the continuing divide in the treatment of citizens and non-citizens: detainment, drone strikes, and surveillance.

The Recent History of Detainment

With respect to the detainment of enemy combatants, citizenship remains a major factor for determining habeas corpus rights. In the 1950 case of Johnson v. Eisentranger, the Supreme Court delineated the difference between the rights of citizens and non-citizens thusly:

Modern American law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.

With the citizen we are now little concerned, except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens. Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship nor have they sapped the vitality of a citizen's claims upon his government for protection. If a person's claim to United States citizenship is denied by any official, Congress has directed our courts to entertain his action to declare him to be a citizen 'regardless of whether he is within the United States or abroad.'

As you can see, the Court was very reverent of the power of citizens to apply to the government for legal protection, at home or abroad. For non-citizens, an application for habeas corpus in the case of detention becomes a more arduous process. Alien (non-citizen) enemies, captured and held outside American territory, had no habeas corpus right.

In Hamdi v. Rumsfeld, the Supreme Court, while divided on many issues, did agree that the a U.S. citizen could not be held indefinitely without some form of basic due process and that they were entitled to apply to the courts for enforcement of that right. Non-citizens had a tougher row to hoe.

The government persisted in treating citizens and aliens differently. Only non-citizens, save Hamdi, were detained at Guantanamo. Only non-citizens were eligible for military tribunals. And, under the Military Commissions Act, only non-citizens were stripped of the right to apply for habeas corpus.

First, the Court determined that they had the jurisdiction to consider alien detainees' challenges to detention. In Rasul v. Bush, they determined that they did. In Hamdan v. Rumsfeld, the Court considered whether the military tribunals created by the government provided the alien detainees adequate due process. The Court determined that they didn't. And in Boumediene v. Bush, the Court reaffirmed the three factors used to determine whether the habeas corpus protections put in place were adequate:

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

The Court held that the system that had been put in place weren't adequate.

While the Court found the government's arguments unpersuasive, what this history shows us is that there is a continual attempt to treat non-citizens differently and that the citizen/alien divide continues to be part of the legal analysis of detainment.

Drones and Surveillance

When it comes to the United States' drone program, the government's internal guidelines also treat citizens and aliens differently. So while there have been American deaths in the program, there is a belief by the department that targeting Americans requires extra steps. The policies and procedures for utilizing this kind of force contains the following language:

U.S. Persons. If the United States considers an operation against a terrorist identified as a U.S. person, the Department of Justice will conduct an additional legal analysis to ensure that such action may be conducted against the individual consistent with the Constitution and laws of the United States

And, finally, when it comes to surveillance, the law once again divides citizens and non-citizens. The Foreign Intelligence Surveillance Act (FISA) allows surveillance of "foreign powers" and their agents, without a warrant, for up to a year. There must be "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." If a U.S. person is involved, the government must seek a warrant within three days of starting surveillance.

Conclusion

Whether or not Americans have been the subject of detainment, drone strike, or surveillance doesn't change the fact that there appears to be some drive to treat the citizens differently from non-citizens. In some cases, like keeping foreign influence out of domestic politics, the division makes some sense. But in others, it could just be that politicians want their constituents to feel safer so that they can say drone strikes can only affect "others." In the context of surveillance, at least U.S. persons can point to laws that make an action illegal. Ultimately, to feel as secure as possible, you have to be secure not only in your human rights, but in your citizenship.

Referenced throughout: National Security Law, Fifth Edition by Stephen Dycus, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen

Images: Screencaps by Trekcore, Naturalization Ceremony at Kennedy Space Center by NASA/Wikimedia Commons