American¹ State of Exception²

I.

Sovereignty here does not bear its ordinary meaning.³ Nevertheless, it desires the power to punish. There is no authority when one lives on an island of indistinction. Necessity knows no law for those with need. What is the solution to the problem of colonialism? More colonialism.⁴

II.

Consider this juridical conundrum: if the public powers violate the rights of the people, resistance to oppression is the duty of the citizen. Benjamin, witnesses in spirit, pondering our legacy of natural law as a form of violence.⁵ There are certain principles of natural justice inherent in our character that need no expression in constitutions.⁶

III.

Law functions to eliminate entire categories of people that do not exist and so cannot be integrated into the political system: those who may live or must die, whose lives can be subjugated to the power of death. This is merely a question of legitimacy: are you specifically authorized by the State to be a debtor?⁷

IV.

Justice finds that we are not of the political community brought into existence by our constitution.⁸ This is the modern totalitarianism: a utopia devoid of law, a non-place, where no violence is absolutely outside of the law. There is no legal succession in empire because the nonhuman cannot contract or capitalize: everything is for sale in the frontier.⁹

V.

Citizenship appears to offer us something other than exclusion.¹⁰ Still, we must be raced and we must be dangerous. Or we must be raced and we must be pitiable. Either way we must first exist as bodies in want of intervention.

1. Here “American” means “the United States,” even while I acknowledge that “America” encompasses the entirety of the hemisphere and that other parts of the world make no distinction between North and South America. It is all America and thus we are all Americans. This tension sits at the center of the poem.
2. The state of exception has been theorized extensively, but for my purposes I define it as lacunae of law — spaces where the US Constitution does not apply or applies only in limited fashion. In these spaces Black Americans, Native Americans, and the inhabitants of the US territories, just to name a few, have been exposed to the violence and neglect of the state with lasting and disastrous consequences.
3. Justice Elena Kagan writing for the majority in the US Supreme Court case Puerto Rico v. Sanchez Valle (2016), wherein the Court was tasked with defining the limits of Puerto Rico’s ability to govern itself. Sovereignty has always been a slippery concept, especially so for US colonial subjects.
4. More colonialism (in all its forms and fatalities) has historically been the response to the problem of what to do about colonialism’s legacies. I am referring here to a long US history of Native dispossession, enslavement, segregation, imperialism, over-policing, war, displacement, gentrification, etc.
5. In writing this poem I was thinking alongside philosopher Walter Benjamin’s On the Concept of History, specifically Section VIII in which he wrote: “The tradition of the oppressed teaches us that the ‘emergency situation’ in which we live is the rule. We must arrive at a concept of history which corresponds to this.”
6. From the US Supreme Court case Downes v. Bidwell (1901), part of the notorious Insular Cases which first defined the US’s relationship with its overseas territories. There the Court attempted to carve out a new category for Puerto Rico and its inhabitants — unincorporated territory. In the unincorporated territories the US Constitution did not fully apply, and thus neither did its protections and restraints on Congress, but nevertheless the inhabitants of those places could rely on the inherent justice of the US government to protect them from Congressional despotism and violence. For Puerto Ricans, the histories of the US’s treatment of Native and Black Americans highlighted the limits of that “justice.”
7. From the US Supreme Court Case Puerto Rico v. Franklin California Tax-Free Trust, et al. (2016). Ownership and property lend citizens visibility, but Puerto Rico has become most visible in its indebtedness. The Court was asked to decide whether Puerto Rico had the power to address its debt by passing its own laws. After a complicated dissertation on the nature of US bankruptcy laws and the limits of Puerto Rico’s powers, the Court declared that the territory does not have such power. It remains hyper-visible and deeply in debt.
8. Genealogy: Downes v. Bidwell (1901), invoking Dred Scott v. Sanford (1857), wherein neither the inhabitants of Puerto Rico nor Black Americans were contemplated when the US Constitution was written and so that document was not for them, did not contemplate them, and thus did not protect them. We sat outside the constitution.
9. The frontier: a place unoccupied or occupied by individuals who do not count because they are not citizens or are not civilized or both. Our frontiers have included the entirety of what is now the political United States (Native lands, Hawai‘i, Alaska, Guam, the Marshall Islands, Puerto Rico, the US Virgin Island, American Samoa, the Palmyra Atoll, and other uninhabited archipelagos and keys), Latin America, the Middle East, parts of Asia. It also includes anywhere where gentrification has worked to displace established communities. Puerto Rico is a “new” frontier for rich US residents looking to evade federal taxes.
10. But what is citizenship other than a demarcation of those who belong and those who do not, those who are worthy of protection and those who are not, those who are “legal” and those who are not?