ABSTRACT
This chapter discusses how claims of excess law ignore how geographical spaces suspend the law; how personhood status is not merely second-class citizenship but often a denigrated or subordinate status; and how hyper-legality can also be wielded by the warfare state and not the welfare state. It points out that even when prisoners or detainees resist oppression through hunger strikes or lip-sewing and succeed in educating the public about their conditions,these acts of protest should not be viewed as evidence that the “system” somehow works. Alternatively, the trauma of civil death and confinement cannot be ignored, even if detainees are released or some prisoners are found innocent. The aim is not to discredit acts of resistance but to remind readers that significant success will only occur when broader power structures that criminalize political status are challenged. The conclusion investigates two potentially radical proposals. The first proposal is to support church-based sanctuary, which provides a form of sanctuary that would revive older forms of asylum – a concern that Arendt expressed in explaining how the stateless lacked the right to rights. Church-based sanctuary would also poke “holes” in national territory not to uproot but to perform what Agamben calls “reciprocal exterritoriality.” The second proposal is to adopt a broad due process balancing test on U.S. soil for immigrants and prisoners alike – thus no one would lack rights even if these provisions were weaker for new arrivals. This test would also be extended to foreign areas and international waters when a person or group comes under U.S. authority. Both proposals are simple and yet revolutionary in their potential to dismantle the forms of disenfranchisement, coercion, and uprootedness identified by Arendt and Agamben.
