Kevin Jobe

In August 2021, a U.S. Federal District Court ruled that §1326 of the Immigration Naturalization Act (INA) which criminalizes illegal reentry violated the Equal Protection clause of the Fifth Amendment because it has disparate impact upon and discriminatory intent against Mexican and Latinx individuals. While §1326 has been unsuccessfully challenged in numerous other federal courts, US v. Carrillo-Lopez stands out in its originality of interpretation regarding the discriminatory intent of a federal statute. In this case commentary, the reasoning of the case will be explicated, followed by an analysis of the unique statutory interpretation applied within the context of discriminatory intent doctrine.

Drawing upon Martha Fineman’s vulnerability theory, the paper argues that the legal claims of homeless appellants before and during the COVID-19 pandemic illustrate our universal vulnerability which stems from the essential, life-sustaining activities flowing from the ontological status of the human body. By recognizing that housing availability has constitutional significance because it provides for life-sustaining activities such as sleeping, eating and lying down, I argue that the legal rationale reviewed in the paper underscores the empirical, ontological reality of the body as the basis for a jurisprudence of universal vulnerability. By tracing the constitutional basis of this jurisprudence from Right to Travel to Eighth Amendment grounds during COVID-19, the paper outlines a distinct legal paradigm for understanding vulnerability in its universal, constant and essential form – one of the central premises of vulnerability theory.

When we take into consideration all those who fall under the UN-Habitat’s definition of “houseless” or at risk of houselessness, we see that the central issue of homelessness is not the specific problems or failings of the various subpopulations of the houseless, but rather the structural causes of houselessness themselves: social, political, economic, and ecological factors which deprive and dispossess people of their livelihoods, their labor, their security, and their dignity. However, when debates are framed too narrowly as if the central problem revolves around the special characteristics of a problematic subpopulation (i.e., their deficiency in autonomy), such discussions tend to downplay, ignore, or obscure larger structural causes of houselessness and the role of local and regional struggles and public policy initiatives to meet basic human needs, and provide basic, affordable shelter for vulnerable populations. In this chapter, I explore one such debate over the “autonomy” of the homeless and try to show how the debate too narrowly defines and limits our understanding of homelessness and therefore obscures a broader, needs-based conception of houselessness and the structural issues that underpin various states of houselessness around the globe.

This paper traces the contradictions of liberal ‘police’ power from Hegel’s analysis of modern polizei to a Foucauldian analysis of the 2011 judicial ruling on the police eviction of Occupy Wall Street protestors from Zucotti Plaza in New York. In the first section, I develop insights from Hegel and Foucault’s analysis of the contradictions of liberal police, whereby power in liberal government incorporates an ‘internal principle of limitation’ that distinguishes it from the unlimited internal objectives of the European police state, while finding itself constantly violating its own internal normative principles. In the second section, I situate liberal police within Foucault’s history of police and the development of a political economy of the poor. In the third section, I challenge Foucault’s own portrayal of liberal police as ‘self-limiting’ in the 1978-79 lectures, through a detailed examination of ‘police’ in the life and thought of Benjamin Franklin. In the final section, I draw upon this historical background of police to analyse the police power jurisprudence laid out in the 2011 Waller v. City of New York ruling on the police eviction of protestors from Zucotti Plaza. Here, I argue that the ruling allows us to see how the discourse of ‘police power’ claims to uphold a (neo)liberal economic-juridical order, while at the same time functioning as a mechanism of repression and security against the ‘dangerous’ (democratic) element within the polity.

While Foucault claimed that biopower, as a form of political pastorate, did not exist in ancient Greece, he did take the view, following Hegel, that the ancient ‘ethical community’ [sittlichkeit] constituted a kind of ‘political technology of the individual’, an ancient form of ‘police’. In this paper, I trace Foucault’s conception of ‘police’ in his Tanner Lectures to Hegel’s analysis of politeia as the origin of the modern polizei. Through an examination of politeia in ancient political and military literature, I uncover a military–pastoral technology, founded on the relation not between shepherd–flock, but between leader [hegemon] and follower [epistatae]. I suggest two forms that a military–pastoral technology has taken shape, both in the politeia of the Spartans and in the early American Republic. This line of inquiry, I conclude, would not only suggest that a political pastorate existed in ancient Greece, but would also force us to re-consider modern forms of ‘police’ through the lens of a military–pastoral technology.

This chapter introduces the notion of the coloniality of homelessness as a way to make sense of how the anthropological imaginaries of Euro-American sovereignty were mapped onto a political economy of homelessness and nomadic forms of life and labor. By tracing the conceptual mapping of homelessness through the colonial encounters of anthropology and urban ethnography, we can see how constructions of homeless culture are bound up with the racial logics of Eurocentrism that distinguished superior Aryan races from inferior nomadic ones. The coloniality of homelessness, therefore, refers to the way in which the very notions of home and homelessness were constructed through a chronotopology of modernity that divides bodies and populations into a racial logic of modern and pre-modern forms of space, time, life and labor. This insight, I argue, helps make sense of the claim that the very concept of homelessness obscures the issue of housing, which is itself a project of both neoliberalism and colonialism.

In this paper, I argue that the unique contributions of Foucault’s late work to critical social theory can be identified in the ways in which power relations are refined as the material condition of “politics” as distinguished from that of law, where “politics”: includes both competitive and goal-oriented strategic actions and interactions, excludes the coercive technologies of law embodied in State institutions, presupposes “incomplete” reciprocity between actors engaged in directing others, always entails modes of revealing truth and acting upon the self. By contextualising the break between pastoral power and direction in the 1979–1980 lectures, I show how for the late Foucault, power relations constitute the material condition of “politics” precisely because, unlike relations of control or coercion, their aims and objectives remain open to the possibility of building new relationships and potentially more “political” forms of social action. I conclude by situating this major distinction within Foucault’s unfulfilled project to study the “military dimension” of society, and the relevance and urgency of this project for contemporary struggles against new forms of militarism and austerity.