Their own evidence concedes that it will repeatedly fail and that only discursive mobilization can solve

II. RIGHTS, EXCLUSION, AND STRUGGLES FOR INCLUSION: A GENERAL FRAMEWORK My theoretical interpretation of historical experience is somewhat unusual in that it suggests that rights conventions are complicit in excluding certain persons from full citizenship and protecting social hierarchy, as well as in advancing the causes of inclusion and formal equality.4 The basic logic at stake is that citizen rights in every polity are grounded in general criteria defining the deserving person, or legal subject, who qualifies for rights.5 That constructed image of the qualified or deserving individual subject is often reflected in nationalist ideals6 of heroic virtue. It is also manifest in the construction of aliens as the dangerous “Other” that, as a negative mirror image, reinforces national ideals and conceptions of virtue or merit.7 In short, at various historical moments, dominant groups—working both through the sovereign power of the state8 and in civil society—extend rights to people whom they view as like themselves, and deny some or all rights to others in turn. In most modern constitutional republics, the general legitimating criteria for rights qualification usually emanate from individual capacities to demonstrate disciplined, rational self-governance. Dominant or insider groups rely on a variety of ascriptive markers—for example, race, ethnicity, nationality, gender or sex, religion, and education—as well as personal behavior to justify such assessments of deserved inclusion or exclusionary “Other-ing,” although these markers are often viewed through the stereotypical lens shared by insiders.9 From the start, the default standard for the disciplined rights-bearing individual in the United States, for example, has been the propertied white male. Every claim of rights thus raises the question, at least implicitly, about whether claimants actually qualify by this norm as members of the community of rights-bearing subjects. Qualification for rights in the United States has entitled people to expect and demand treatment according to principles of “liberal” law, including due process, equal protection, freedom of civic and political participation, humane treatment, and the other rights we often identify with our Bill of Rights and “rule of law” generally. Those who are deemed as entitled to less than full citizen status, by contrast, are vulnerable to treatment that is more discretionary, arbitrary, coercive, and even brutally violent: what often is called “repressive law”10 or lawless “social abandonment.”11 We know those subjugated Others by different labels at different times: slaves, indentured and other types of servants, indigenous peoples, dependent women, and others treated as forms of “property”; immigrant aliens from Asia, Mexico, and the Global South for the last century, continuing today, and still lingering for subsequent generations; and the ubiquitous labels of un-American, subversive, and/or dangerous criminals.12 Periods of anxiety or fear often exacerbate exclusionary actions and the denial of rights privileges for specific groups (as well as, to a certain degree, for all persons) in the name of security or life.13 This point is well illustrated by the post-civil rights legacy of the domestic mass incarceration state, and the recent War on Terror’s campaign against dangerous Others, such as enemy combatants. This recent experience is hardly unique, however; periods of division, anxiety, and fear over dangerous Others at home and abroad have been more the norm in American life than the exception.14 At the same time, liberal rights traditions provide those persons and groups denied full citizen status potential discursive and institutional resources that can be mobilized to challenge, exclusion, hierarchy, and subjection to repressive law. In the US, such mobilization of rights has usually required people marked as Others to attempt to demonstrate the discipline, virtue, and merit associated with the “white standard” of insiders in order to qualify for rights as full citizens.15 Sometimes the equality principle of liberalism can even be pushed beyond its formal abstract terms to demands for more substantive social justice, often called social or positive rights. Very often, efforts to overcome repressive exclusion or to advance social rights fail. And, while they sometimes succeed, even then success is limited and entails a long process of struggle. In any case, rights “cut both ways”—routinely fortifying as well as sometimes facilitating challenges to exclusion, repression, and hierarchy.16