The ubiquitous exclusion/inclusion binary is not a helpful frame to measure the depth and reach of constitutionalism and human rights. Inscription of the law over subjugated bodies and spaces continues to subscribe to an enduring grammar of modernity’s engagement with alterity. This grammar is not one of exclusion, but, rather, forms a three-pronged matrix engagement: engulfment/exception/subordination. The Other is not “discovered,” left out or left alone — excluded from operations of constitutional regimes, and then gradually incorporated as a rights-bearing subject. The Other is always-already engulfed in operations of modern law, placed in zones of exception, and positioned in states of subordination.
Wanted Dead & Alive: Modern Law, Universality, and the Colonial Exception, 33 Wis. Int'l L.J. 532