The question of citizenship is fraught for us in the United States. The year was 1857 when the U.S. Supreme Court decided the Dred Scott case (Dred Scott v. Sandford). Scott was a man born into slavery. His “master,” his “owner,” was John Emerson. Emerson brought Scott up into the free state of Illinois and then moved to the Wisconsin Territory in an area that would become Minnesota.

Having lived some years in free states, Dred Scott sought to sue his owner for his own freedom, and for the freedom of his wife, Harriet, and their two daughters, Eliza and Lizzie. The case went all the way to the Supreme Court. The Supreme Court, led by Chief Justice Roger B. Taney decided 7-2 that since a slave was not a citizen of the United States, a slave could not sue a citizen for his or her own freedom.

The Dred Scott case is generally considered one of the worst decisions ever made by the United States Supreme Court. If you are not a citizen, the law does not protect you. If the law does not protect you you are not recognized by the law as a person. This condition is called by the Italian philosopher Gorgio Agamben, “homo sacer.” Homo sacer is the individual who is not recognized by the law, and hence, anyone can do essentially any harm to the homo sacer.

Examples of homo sacer have been the European Jews in the countries occupied by the Nazis. Native Americans living on reservations. Women denied the right to vote.

In each case, “citizens” have been entitled to kill, rape, cheat, steal from, or do other forms of violence to these people who are only partially, or not at all, included under the law.

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This, it seems to me, is the real question of “citizenship” today. If it is determined that one is not a citizen that means that one is effectively a non-person. The government, or anyone else, can do whatever they want to that person with impunity from the law.

Of course we need immigration laws, and therefore citizenship laws. But the question is, how does the law regard the non-citizen? In the Dred Scott case, the non-citizen was a non-person, with no claim to fairness under the law. The census question about citizenship seems to me to have the same aim, to deprive people of fairness under law, to, in short, deny people the status of being people.

People are people first, and citizens second. The law should regard all people as people first, which means a commitment to fair treatment under the law, first, then the question of special rights of citizenship can be considered as a secondary consideration. The contemporary United States does not look back on the Dred Scott United States favorably. May we be more favorably regarded by our own future United States of America.