Ghosting at the border: the racialization of extraterritoriality at the US Supreme Court

Abstract

The theoretical association of an inclusive public sphere with liberal democratic governing begs a closer examination. This article pursues forms of disqualification implicit in the idea of political community as a national project, ultimately finding that the exclusion of foreigners does not begin on the far side of the US border, but well within it as an extension of other forms of alienation under the law. My ethnographic starting point is a 2020 US Supreme Court case involving the cross‐border killing of a Mexican teenager by a US border agent. The victim's parents sued on civil rights grounds, but the court's majority voted to dismiss the case, ruling that the Constitution was not available in the circumstances of their son's death. The case shows that theorizing the public sphere as an integrative flow of discourse through public institutions is partial at best. The flow of discourse in this case goes the other way, instantiating ideas of difference – racial, cultural, political, and territorial – that by design preclude inclusion. The precedents cited in the text of the court's opinion show the court selectively racializing extraterritoriality and – even within US territory – restricting full constitutional rights to what it calls ‘members’ of a ‘national political community’. Though specific to the United States, the case informs broader questions arising from the idea of the liberal public sphere as both the means and ends of inclusion. Quoted and paraphrased text include offensive material.