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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
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.


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