Abstract
This Comment presents a historical investigation of the violence that establishes nationstate
borders. The analysis deconstructs the U.S.–Mexico border through the 2010 shooting of Sergio Adrián Hernández Güereca, and asks how the framework of human rights may provide justice for this tragedy. In 2015, the Fifth Circuit for the U.S. Court of Appeals heard his parents’ legal case en banc and concluded that, as a “Mexican citizen” standing on “Mexican soil at the time he was shot,” Sergio was afforded no constitutional protection as a matter of law. While the U.S. Supreme Court rejected the appellate court’s decision, it largely agreed with this factual characterization of the border. Sergio was not on “soil,” but rather on a cement culvert that not long ago contained the waters of the Rio Grande. This Comment provides a close reading of Hernandez v. Mesa and analyzes how the formalist lines of territory, citizenship, and time affect constitutional analysis. Along with providing a legal history of the U.S.–Mexico border, the Comment proposes that a human rights paradigm is a historical approach to law that provides a language of justice from the bottom up and must be integrated into U.S. constitutional jurisprudence.
