Legal Borderlands: Law and the Construction of American Borders.

• Author: Bosniak, Linda
• Position: Book review

LEGAL BORDERLANDS: LAW AND THE CONSTRUCTION OF AMERICAN BORDERS. Mary L. Dudziak (1) and Leti Volpp, (2) eds. Johns Hopkins University Press. 2006. Pp. viii + 421. $19.95 (paper).

"Every theory addresses some questions as its central questions, and thereby makes other questions peripheral." (4)

Contemporary American constitutional thought is largely inward-looking. Most U.S. constitutional law scholarship "assumes the state," as Alex Aleinikoff recently noted, (5) and this means, among other things, that constitutional discourse focuses on relations among already-presumed members in an already-constituted national space. The subjects and location of constitutionalism, the "we" and the "here," are presupposed and unproblematized.

The fact that they are reflects a longstanding habit of insular thinking in the field. Constitutional scholarship's unwavering focus has long been the national self. And as this approach is conventionally practiced, there is not much world beyond this self. The American nation--with its myriad internal complexities and fascinations--is cast as the world entire.

Although rarely acknowledged in explicit terms, this insularity--this self-absorption--reflects a dominant tradition in Anglo-American normative political thought. Rawls' theory of justice presupposed a conception of "a democratic society [that is] a complete and closed social system." (6) In his early work, he aimed to develop principles for "the basic structure of society conceived for the time being as a closed system isolated from other societies." (7) Much constitutional scholarship in recent decades has treated the American nation as a kind of Rawlsian island.

Yet Rawls himself later recognized that the insularity premise is ultimately implausable and limiting, (8) and it appears American constitutional law scholarship is gradually coming to understand this as well. Today, the fields of comparative constitutionalism, foreign affairs and international law are growth areas--a trend that reflects increasing awareness that our constitutional community is one among many others rather than a universe unto itself. Some constitutional scholars are also beginning to place globalization of economic and social life on the intellectual agenda, recognizing the need to understand the national self as located in a broader transnational field. Getting beyond insularity, no doubt, will take time. Not infrequently, the world beyond the national self elicits more lip service than analytic integration. Still, there is little doubt that the comparative, the international, the global, are pressing in. The constitutional community's location in a broader world, and the fact of its imbrications with outside others, are increasingly shaping constitutional thought--as they must if it is to be of real theoretical and practical value in coming decades.

On the other hand, the problem of perspectival insularity cannot be remedied simply by recognizing the nation's global situatedness and its relations with legal actors and regimes beyond our own. It is not enough, that is, to supplement inward-looking constitutionalism by ensuring more air time for outward-oriented approaches--by adding more courses and conferences and SSRN websites on the global and diplomatic and comparative dimensions of constitutional studies. Although essential, this supplementation strategy only takes us part of the way. What it entails, in effect, is the posting of additional sentries at the frontier between the domestic and the foreign, with the new enlistees aiming outward rather than inward.

The problem with this image is that it presumes the existence of a firm divide between national-self and outside-other, between the domestic and the foreign, that doesn't hold up. Certainly, some issues fall neatly on one side of the line or the other, thus justifying a division of labor between inward and outward-looking constitutionalism. But it is also true that the national self and its others converge in a multiplicity of moments and manners and locations, and these convergences complicate the presumed divide between the in-here and the out-there. The domestic and the foreign often run up against each other. Whether formally or informally, violently or uneventfully, they interact; they mutually engage.

Notably, those occasions and locations of interaction between the domestic and the foreign are themselves neither entirely domestic nor entirely foreign; they are interstitial spaces, characterized by what anthropologists call liminality. (9) Whether arising at the nation's geographic frontiers or its figurative ones, they require their own attention as an analytical matter.

And, indeed, attention is now being paid in many disciplines, via the subfield of "border studies." (10) The consistent analytical premise of border studies is that the boundaries between the domestic and the foreign themselves constitute a sphere or set of spheres with their own distinct set of dynamics, their own ecologies, which require their own scholarly focus.

Purely for empirical reasons, then, making sense of the contemporary legal and political and social landscape requires attending not just to the national inside and the national outside, but to those domains of interaction at the border between them. Yet once again the significance of attending to these liminal spaces and moments is more than additive. The border between the domestic and the foreign is not merely a "third space" which demands attention in its own right (11)--although it does. A focus on national boundaries makes clear, additionally, that there are really no unalloyed domestic and foreign spaces after all. The nation's inside and its outside are always interpenetrated, always marbled through with one another. Border studies anatomize these domains of interface; and in the process, allow us to see how the domestic and the foreign are constantly making and remaking one another.

One implication is that attending to the nation's edges, wherever those are located, is of essential importance even for those whose primary interest remains inward-looking, domestic constitutional law. (12) For it turns out that the constitutional inside is comprised not merely by matters of "ruling and being ruled" and other issues conventionally understood to lie at the heart of the field, (13) but by all of the rules and practices that govern the scope--personal and territorial--of the community within which people are ruling and being ruled. Policies and practices regarding immigration and citizenship status, extraterritorial jurisdiction, military occupation, management of territorial possessions, assignment of enemy combatant status in war, rights of noncitizens, status of refugees and escapees--all of these infuse and give shape to the presumptive "who" and "where" which serve as backdrop to many of the questions that are conventionally considered to lie at the core of constitutional inquiry.

This excellent volume of essays directs its gaze precisely at the domains of interaction between the foreign and the domestic in the context of the American nation-state. Originally published as a special issue of the American Quarterly, it is a collection of articles by scholars in law, literature and history who are devoted to making sense of the United States by way of its legally constructed edges. Sometimes these edges are located at the nation's geographic frontier, but just as often they can be found on the other side of the world or in very heart of the nation's territory. And it is often in, and through, the bodies and minds of persons--whether they happen to be territorially inside or not--that these edges are most consequential. As the collection's editors Mary Dudziak and Leti Volpp write in their introduction, the volume's essays address not only "spaces on the edge of American sovereignty," but also "internal places at the heart of American identity" (p. 2). These are the legal "borderlands" of the volume's title.

Dudziak, a legal historian, and Volpp, a...