I gratefully acknowledge the summer research grant from John Carroll University which enabled me to carry out the research on which this article is based. Fellow participants in Alan Ryan's 1996 NEH summer seminar on liberty and democracy provided sound advice. I also wish to thank Dwight Hahn, Mel Durchslag, and Patrick Eagan for reading earlier drafts of the article.

1. Dobson, Jon Andre, “ Verdugo–Urquidez: A Move Away from Belief in the Universal Pre–Existing Rights of All People,” South Dakota Law Review 36 (1991): 120–35, 139 Google Scholar.

2. See, for example, Neuman, Gerald L., Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton: Princeton University Press, 1996)Google Scholar; Shain, Barry Alan, The Myth of American Individualism (Princeton: Princeton University Press, 1994)Google Scholar; Smith, Rogers M., “Beyond Tocqueville: The Multiple Traditions in America,” American Political Science Review 87 (1993): 549–66CrossRefGoogle Scholar; Levinson, Sanford, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1989): 637–59CrossRefGoogle Scholar; Williams, David C., “Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,” Yale Law Journal 101 (1991): 551–615 CrossRefGoogle Scholar; and Wood, Gordon S., The Radicalism of the American Revolution (New York: Alfred A. Knopf, 1991)Google Scholar.

3. Shain, , Myth of American Individualism, p. 4 Google Scholar.

4. Verdugo's attorneys offer a more complex account of the circumstances surrounding Verdugo's arrest. According to their brief to the Supreme Court, Verdugo was kidnapped from Mexico at the direction of U.S. agents. “Soon after the kidnaping … a formal accusation was filed by the prosecutor in the State of Baja California, Mexico, charging … six men with kidnaping. These men were subsequently permitted to enter the United States where they were apparently admitted to the Federal Witness Protection Program.” See “Petition for Writ to be heard by the Supreme Court,” United States v. Verdugo–Urquidez, US Supreme Court Records and Briefs #88–1353: 8a. Microform.

5. Verdugo, 259.

6. Within the context of the plurality dictum on “the people” and the social contact, the Verdugo majority used precedent to construct its opinion, especially Johnson v. Eisentrager, 339 US 763 (1950), which held that the Fifth Amendment does not confer rights on enemy aliens, and the early twentieth century Insular Cases, which denied Fifth Amendment rights to people in American colonies (unincorporated, or “insular” possessions, then Hawaii, Puerto Rico, and the Philippines).

7. Verdugo, 264; Neuman, , Strangers to the Constitution, p. 6 Google Scholar.

8. Ibid., 265.

9. Ibid., 259–60.

10. Ibid., 265.

11. Ibid., 273. See Dobson's “Verdugo–Urquidez: A Move Away from Belief in the Universal Pre–Existing Rights of All People,” and Scaperlanda's, Michael “The Domestic Fourth Amendment Rights of Aliens: To What Extent Do They Survive United States v. Verdugo–Urquidez? ” Missouri Law Review 56 (1991): 213–43Google Scholar, which criticize the restrictive “compact thinking” of the Court in Verdugo, according to which only parties to the social contract can claim rights against the government. Instead, they advocate a universalist approach, which rests upon a natural rights understanding of universal, pre–existing rights of all people and holds that “constitutional provisions that create rights…should be interpreted as applicable to every person at every place” unless specifically otherwise indicated ( Neuman, Gerald L., “Whose Constitution?” Yale Law Journal 100 [1991]: 916 CrossRefGoogle Scholar). Koff, Douglas, in “Post–Verdugo–Urquidez: The Sufficient–Connection Test—Substantially Ambiguous, Substantially Unworkable,” Columbia Human Rights Law Review 25 (1994): 435–92Google Scholar, calls the “sufficient connection” standard vague and unworkable, and leans toward a more inclusive approach to the application of rights. But the law review literature generated by Verdugo is mostly concerned with issues relating to the extraterritorial application of the Fourth Amendment. The flavor of these is somewhat conveyed by the title of a Brooklyn Journal of International Law case note (December 1991: 617–38): “Hands Across the Border: The Long Reach of United States Agents Abroad, and the Short Reach of the Fourth Amendment.” A second Supreme Court decision stemming from the Camarena murder, United States v. Alvarez–Machain (112 US 2188 [1992]), similarly inspired word–smiths with, for example, references to the new “catch and snatch” policy of the U.S. government (“The Drug War and the Vanishing Fourth Amendment,” Criminal Justice Journal 14 [1992]: 229–308 Google Scholar).

12. Verdugo, 276.

13. Ibid., 279.

14. Ibid., 287, 279.

15. Neuman, , Strangers to the Constitution, pp. 7–8 Google Scholar.

16. Verdugo, 284.

17. Neuman, , Strangers to the Constitution, p. 99 Google Scholar.

18. The “mutuality of obligation” tradition focuses on the sphere in which American “municipal” law (as distinct from international law or natural law) operates and has deep roots in nineteenth–century theorizing about the territorial nation–state. (See Neuman, , Strangers to the Constitution, pp. 7–8 Google Scholar.) From the perspective of the late twentieth century, and as mutuality has evolved, its concerns for individual rights and self–limited government power underscore its affinities with liberalism and pluralism. Neuman associates the origins of mutuality with James Madison and John Marshall; recent jurists in the tradition, besides William Brennan, include Hugo Black and Harry Blackmun.

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20. Ibid., p. 122.

21. McGee, Michael C., “In Search of ‘the People’: a Rhetorical Alternative,” The Quarterly Journal of Speech 61 (1975): 235–49CrossRefGoogle Scholar, and “The ‘Ideograph’: A Link Between Rhetoric and Ideology,” The Quarterly Journal of Speech 66 (1980): 1–16 CrossRefGoogle Scholar.

22. United States District Court for the Southern District of California, United States v. Verdugo–Urquidez, D.C. No. CR–86–0107–JLI: 81a.

23. Roger W. Haines, Jr., “Appellant's Brief,” Appeal from the United States District Court for the Southern District of California, United States v. Verdugo–Urquidez, C.A. No. 87–5061 (Ninth Circuit).

24. Ibid., pp. 44, 12.

25. Ibid., p. 47.

26. United States v. Verdugo–Urquidez, No. CR–87–422–ER (CD Cal., Nov. 22, 1988) 856 F. 2nd 1214 (9th Circuit): 1219.

27. Story, Joseph, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), pp. 295–96Google Scholar, cited in Judge Thompson's majority opinion in United States v. Verdugo–Urquidez, No. CR–87–422–ER (CD Cal., Nov. 22,1988) 856 F. 2nd 1214 (9th Circuit), US Supreme Court Records and Briefs #88–1353: 14a. microform.

28. Ibid., 10a.

29. Ibid., 19–20a.

30. Ninth Circuit majority opinion, non–microform, 1217, following Reid v. Covert, 351 US 487 (1957).

31. Ninth Circuit, microform, 20–21a.

32. Ibid., 19–20a.

33. Ibid., 10a.

34. Ninth Circuit opinion, non–microform, 1232.

35. Ninth Circuit, microform, 58a.

36. Ibid., 57a.

37. American Civil Liberties Union, “Brief for Amici Curiae,” United States v. Verdugo–Urquidez #88–1353, ACLU Records, MC #001–1795, United States v. Verdugo–Urquidez, 1988–89: 22. Used by permission of Princeton University.

38. Dred Scott v. Sandford 60 US 393, 703, emphasis added.

39. Ninth Circuit, microform, 50a, emphasis added.

40. Ibid., 49a, 51a.

41. Ibid., 50–51a.

42. Ibid.

43. Ibid., 49a.

44. Ibid., 51a.

45. Starr, Kenneth W., “Petitioner's Brief,” United States v. Verdugo–Urquidez, US Supreme Court Records and Briefs #88–1353 (1989), 9. microformGoogle Scholar.

46. Starr, Kenneth W., “Reply Brief for the United States,” United States v. Verdugo–Urquidez. US Supreme Court Records and Briefs #88–1353 (1990), 4, n3Google Scholar. As for the particulars of Verdugo's legal status, Starr remarks: “Although respondent apparently received a green card in 1970, there is nothing in the record to suggest that he has remained a resident alien since that time. Indeed, if the question is deemed material, we are prepared to prove on remand that at the time of his arrest respondent advised immigration officials that he had resided and worked in Mexico continuously since 1980.”

47. ACLU, “Brief for Amici Curae,” p. 10.

48. Starr, “Reply Brief,” p. 9.

49. Consistent with his privileging of the voluntaristic notion of membership in the nation, citizenship is not the issue here for Starr, who asserts that “we have not argued that Fourth Amendment protections apply only to citizens” (p. 4, n.3), making “the people” a different category than the citizenry. As for Rehnquist, he does not talk about citizens except to recall Felix Frankfurter's dissent in Reid v. Covert, to the effect that he is unsure even about who among citizens, under what circumstances, are “entitled to the full range of constitutional protections” (Verdugo, 270).

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51. Verdugo, 264, emphasis added.

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62. Here I am building especially upon Williams, “Civic Republicanism”; Shain, The Myth of American Individualism; and Neuman, “Whose Constitution?” and Strangers to the Constitution.

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68. Ibid., p. 17.

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73. Levinson, “The Embarrassing Second Amendment,” and Williams, “Civic Republicanism.”

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78. Ibid., p. 614; also see Deudney, Daniel, “Binding Sovereigns: authorities, structures, and geopolitics in Philadelphian systems,” in State Sovereignty as Social Construct, ed. Biersteker, Thomas and Weber, Cynthia (Cambridge: Cambridge University Press, 1996), pp. 190–239 CrossRefGoogle Scholar.

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81. If there is a foundational social contract in America's past, its revolutionary character is more nearly expressed in the Declaration of Independence (“pure Locke,” in Jefferson's words) than in the Constitution; and a revolution, as has been famously said, is not a tea party. The Declaration may have severed allegiance to Parliament and king, but the creation of allegiance to the emergent nation which accompanied it was accomplished by force. Well before the Declaration of Independence, in 1775, the Continental Army began to administer loyalty oaths, disarm and arrest suspected Tories, and force colonists to declare themselves for the new order. In January 1776, the Continental Congress took over from the Army and passed the Tory Act, the terms of which disarmed anyone not committed to the cause of independence and imprisoned all “dangerous Tories.” Nicholas N. Kittrie remarks that “although ultimately successful in achieving widespread legitimacy in the eyes of its citizenry, the early American government was often perceived to be unjust or even despotic” ( The War Against Authority: From the Crisis of Legitimacy to a New Social Contract [Baltimore: The Johns Hopkins University Press, 1995], pp. 94–95, 107 Google Scholar).

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86. Ibid.

87. Kittrie, The War Against Authority.

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90. Ibid., p. 14.

91. Simone Chambers, in a fascinating account of Canada's present crisis of political identity, explicitly rejects the foundational contract model of political affiliation. Canadians, she observes, “are not in a state of nature, [and they] disagree deeply on the ‘goods’ to be secured by political association.” For Canadians, “assimilation and homogenization are no longer either morally or practically acceptable means of achieving ‘agreement.’” See her “Contract or Conversation? Theoretical Lessons from the Canadian Constitutional Crisis,” Politics and Society 26 (1998)Google Scholar: Expanded Academic ASAP Database Search (Infotrac Searchbank), pages 14–15 of 56 pages.

92. Koff, Douglas, in “Post–Verdugo–Urquidez,” p. 459 Google Scholar, referring to Torres v. State (818 S.W. 2nd 141, Tex. Crim. App.)- Koff notes without elaboration that the decision in Torres was “vacated in part on other grounds.”

93. Aleinikoff, “The Tightening Circle,” and Neuman, Strangers to the Constitution.

94. Section 7 of Proposition 187 proposed to change Sections 48215.D and E of California's Education Code to require verification of the legal status of parents and guardians of all children enrolled in the public schools, and to expel the children of those persons who could not document their own legal status. As opponents of the initiative observed, the initiative was in direct conflict with Plyler v. Doe (457 US 202, 1982), in which the Supreme Court held (in a deeply split decision) that the equal protection clause of the Fourteenth Amendment opened the public schools to all children. But by denying children (wherever they were born) services based on their parents' or guardians' status, Proposition 187 also flew in the face of the Fourteenth Amendment's citizenship clause. Once again, the spiritual predecessor is Dred Scott, which created, for a while, a hereditary caste of native–born, legally free Americans with no political rights and limited protections against government action–inhabitants, but not members of “the people.”

95. Neuman, Strangers to the Constitution.

96. Ibid., p. 189.

97. Chambers, , “Contract or Conversation?” p. 33 Google Scholar.

98. Singer, , “Cultural versus Contractual Nations,” p. 16 Google Scholar.

99. Shain, , Myth of American Individualism, p. 38 Google Scholar.