Police as Supercitizens.

AuthorArsiniega, Brittany

We propose the concept of law enforcement officers as supercitizens in the body politic of the United States. We explore the ways in which citizenship in the United States is, and has always been, contingent, giving rise to both infracitizens and supercitizens. Infracitizens are those whose experiences of citizenship come with fewer privileges than the prototpyical (white, male) citizen, whereas supercitizens enjoy benefits and privileges, both under law (dejure) and by social practice (de facto) not afforded to other members of society. We document the myriad ways in which the supercitizenship of US police manifests in modern US society and suggest that such supercitizenship stands as an impediment to meaningful police reform.



If any person shall ... assault or beat any sheriff, coroner, constable or other officer, or person duly authorised, in serving or executing any process ... every person so offending, shall on conviction be fined in a sum not exceeding five hundred dollars, and also, be imprisoned in the common jail of the county, for any time not exceeding two years; provided any officer whatever that may or shall assault or beat any individual under color of his commission, without being compelled in self-defence to do so, shall on conviction, be fined in a sum not exceeding five hundred dollars, as the jury may recommend. This statutory language makes clear one example of the special legal protections afforded to law enforcement officers under nineteenth century Georgia law. A civilian who assaults or beats an officer can be both fined and imprisoned for up to two years; an officer who assaults or beats a civilian is subject only to a possible fine.

Such special treatment of law enforcement officers continues into the present day. Modern Georgia law statutorily prohibits aggravated assault and continues to perpetuate the distinction--now more than two centuries old---between nonpolice and police with regard to punishment. Aggravated assault against nonpolice "shall be punished by imprisonment for not less than one nor more than 20 years." In contrast, aggravated assault against law enforcement officers (called peace officers in Georgia law) results in "imprisonment for not less than five nor more than 20 years." (1) Augmented punishments for assault against police are just one example of how local, state, and federal laws in the United States enshrine a system in which police are deemed more valuable members of society than other citizens. But the privileged form of citizenship that law enforcement officers enjoy is visible far beyond differential punishments for assault. And the law is certainly not the only area of US life where law enforcement officers expect, and receive, special treatment.

This article proposes the concept of law enforcement officers as supercitizens who enjoy special privileges of membership in US society not afforded to any other members. Various legal, social, and cultural protections for law enforcement officers create and perpetuate a system in which police occupy a special caste in US society. Police officers themselves recognize, embrace, and actively perpetuate the differentiation between categories of us (law enforcement) and them (civilians), jealously guarding their special treatment under law and in society generally. It is beyond the scope of our commentary to evaluate whether such supercitzenship is meritorious or desirable; we aim instead to detail the ways in which, good or bad, police supercitizenship exists as a core feature of the US experience.

In the first section of this commentary we establish the foundation of stratified and contingent citizenship as an idea. We highlight research showing that there is no single manifestation of citizenship, with uniform rights and responsibilities, that is universally enjoyed. Instead, it is well-established that some (like law enforcement officers and soldiers) enjoy supercitizenship, while others (African Americans and other non-whites, undocumented individuals, and women) suffer the consequences of infracitizenship. We conceive of citizenship as stratified and contingent, a spectrum of rights and benefits with law enforcement officers occupying the privileges of one extreme. In the second section, we propose a succinct conception of law enforcement officers in the United States as supercitizens, briefly describing the characteristics and consequences of such supercitizenship. In the third section, we present the myriad ways in which this supercitizenship manifests in modern society, ranging from legal protections (de jure supercitizenship) to social and cultural deference and insularity (defacto supercitizenship).

Stratified Citizenship in the United States

Legal historians and scholars have long contended that US citizenship and the rights, obligations, and privileges associated with it, are not decisive and stagnant categories. We find, in the historical ambiguity about rights and citizenship, a scholarly and legal ground primed for an investigation of supercitizenship. It is exactly due to the fact that the history is so ripe with examples of its opposite--a type of infracitizenship, in which formalized citizens have fewer rights and obligations than the title bestows--that we can look for those moments and places where some citizens are bestowed with greater legal and social privileges.

In the United States, born and naturalized citizenship has been both given and taken away. Citizenship has been revoked from those who join another nations military or for other reasons, like the famous anarchist Emma Goldman who lost the citizenship she acquired through marriage after her divorce. Even after the passage of the Fourteenth Amendment drastically expanded those eligible for birthright citizenship in the United States, some people who have called themselves citizens were not able, and still cannot, enjoy or oblige practices associated with the title. This category includes those historically and contemporaneously denied the right to vote: Black men and women in various parts of the South before 1965, white women before 1921, or people convicted of a crime. For these citizens, being denied the privileges that make national belonging manifest was tantamount to formal and legal exclusion. And yet, at other moments, foreign-born white immigrants were given unfettered access to both naturalization and the privileges enjoyed by native-born whites. Scholars looking to further our understanding of citizenship in the United States need to excavate the fluctuating relationship between formal citizenry and why, where, and for whom the associated practices of citizenship are not just denied but in some cases enhanced.

The dominant modern liberal conception of the term citizenship emphasizes rights, whereas the alternative civic republican model emphasizes duties (Heater 1999). We do not pretend in this short commentary to offer a comprehensive review of the complex history and evolution of the concept of citizenship. For that, we point readers in the direction of Derek Heater, who offers a number of in-depth studies of the history of citizenship over time.

We understand citizenship to be about the relationship between an individual and the state, and embrace Heater's view that "civic identity is enshrined in the rights conveyed by the state and the duties performed by the individual citizens"(Heater 2004, (2); emphasis added). In this essay, we focus on the first element of Heater's definition: citizenship as a bundle of rights conveyed by the state. Different tiers or strata of citizenship, then, imply the presence of different bundles of rights provided by the government to different groups.We call this element of citizenship dejure citizenship, meaning citizenship by law: the rights that governments convey to their citizens that are formally prescribed under law. For example, acquiring and using a passport, in its current iteration, is an exercise of citizenship prescribed by law (Robertson 2010).

We push Heater's definition further by envisioning citizenship not just as dejure, which is necessarily top-down. Instead, we also examine defacto citizenship, reflecting our understanding that citizenship entails not only rights conveyed by the state but also social practices that constitute citizenship. As legal historian Martha Jones (2018, 11) has written, "For some, being a citizen was the gateway to rights ... For others, exercising rights was evidence of citizenship" (see also Benton-Cohen 2018). Other scholars have noted the distinction between dejure and defacto forms of belonging in society. Donato and Hanson (2012), for example, wrote about the ways in which Mexican Americans were legally categorized as White in the Southwest, though the American public did not recognize that category and instead treated Mexican Americans as socially "colored" in their schools and communities.

It is not only the state that decides who enjoys the rights of citizenship, and the extent of those rights. It is the residents of a country themselves, in the way they treat one another and the claims they make against the state, who also build and maintain stratified citizenship. After all, the Fourteenth Amendment formally granted formerly enslaved people de jure citizenship, and the Fifteenth Amendment guaranteed the right to vote, a core benefit of such citizenship. Yet social practice was slow to change, meaning that formerly enslaved people and their descendants continued to be excluded from de facto citizenship in many parts of the United States. Stratified citizenship, then, can result both from state action--different benefits or rights written into law--and also from social practice.


Tiers of citizenship have existed under American law since the colonial period, with race and gender featuring prominently in the...

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