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118 Colum. L. Rev. 2447 (2018)
Constructing Citizenship: Exclusion and Inclusion through the Governance of Basic Necessities

handle is hein.journals/clr118 and id is 2541 raw text is: ESSAY CONSTRUCTING CITIZENSHIP: EXCLUSION AND INCLUSION THROUGH THE GOVERNANCE OF BASIC NECESSITIES K. Sabeel Rahman* While income inequality has become an increasingly central focus of public policy debate and public law scholarship, systemic inequality and exclusion are produced not just by disparities in income but also by more hidden and pernicious background rules that systematically disadvantage and subordinate certain constituencies. This Essay focuses on a particularly crucial-and often underappreciated-site for the construction and contestation of systemic inequality and exclusion: the provision of, and terms of access to, basic necessities like water, housing, and healthcare. We can think of these necessities as public goods, which carry a greater moral and political importance as foundational goods and services that make other forms of social, economic, or political activity possible and thus carry a greater moral and political importance. Drawing on historical and contemporary accounts, this Essay argues that the administration of these essential public goods represents one of the major ways in which law and public policy construct systemic forms of inequality and exclusion. This Essay identifies a set of exclusionary strategies, including bureaucratic exclusion, privatization, and fragmentation, through which law constructs * Associate Professor of Law, Brooklyn Law School; Visiting Professor of Law, Harvard Law School (2017); Fellow, Roosevelt Institute. Thank you to the editors at the Columbia Law Review for extremely helpful comments and editorial support. I am grateful to a number of friends and colleagues for helpful comments and enlightening discussions throughout this project, in particular: Aziza Ahmed, Julian Arato, Corey Brettschneider, Josh Cohen, Prithvi Datta, Nestor Davidson, Ros Dixon, Cary Franklin, Jerry Frug, Cynthia Godsoe, David Grewal, Janet Halley, Susan Herman, Vicki Jackson, Ted Janger, Olati Johnson, Joy Kanwar, Amy Kapczynski, Jeremy Kessler, Molly Land, Adam Lebovitz, Brian Lee, Youngjae Lee, John Manning, Gillian Metzger, Eloise Pasachoff, David Pozen, Jed Purdy, Kate Redburn, Daphna Renan, Alice Ristroph, Liz Schneider, Jed Shugerman, Jocelyn Simonson, Joe Singer, Julie Suk, and Zephyr Teachout. I am also grateful to convenors and participants of several workshops at which early versions of this paper were presented, including the Center for Constitutional Governance Economic Constitutionalism Workshop at Columbia Law School (April 2017); the Harvard Law School Public Law Workshop (January 2018); the Brooklyn Law School Brown Bag workshop series (January 2018); the Fordham Law School Legal Theory Workshop (January 2018); the Cardozo Law School faculty workshop (February 2018); and the University of Connecticut Law School faculty workshop (February 2018). Thanks to Ian Eppler, Emma Goold, Michael Myones, and Jonathan Yang for fantastic research assistance. Thanks as well to the Brooklyn Law School Summer Research Fund for support in the development of this Essay. 2447

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