Archive for
May, 2008

It’s My Potty, and I’ll Cry If I Want To

by Duncan Hollis

Muslim Views of the United States

by Roger Alford

Just One Question…

by Chris Borgen

Here Comes the Treaty to Ban Cluster Bombs

by Julian Ku

Learning from the Legacy of Telford Taylor

by Chris Borgen

My Guest-Blogging is Coming to an End

by Kenneth Anderson

Well, gentle readers, my week of guest blogging at Opinio Juris is coming to an end. I’ve had a wonderful time, and certainly allowed my indulgences to get indulged in picking topics to write about. Hope you haven’t found it too far adrift from international law. But I want to thank all the folks at Opinio Juris for inviting me to post here. They are all wonderful, and this is one of my favorite blogs. I hope everyone has a lovely summer. I plan to spend mine writing – minimizing the travel and trips, just one board meeting in Europe and an author’s conference. I’m even skipping the trip with my wife and daughter to Guatemala in order to sit home and write. I’ll occasionally post stuff up to my blog but mostly I’ll be working on stuff for publication in journals and book chapters and the like. My best wishes for a lovely summer, and thanks to Opinio Juris.

Ken

The Copenhagen Consensus 2008, Cost Benefit Analysis, Money, and Institutions

by Kenneth Anderson

ICJ Issues Judgment in Malaysia/Singapore Case

by Chris Borgen

Memorial Day and the Second Inaugural Address

by Kenneth Anderson

Memorial Day Photos

by Roger Alford

The Collapse of the “Bioterror” Case Against Dr. Steven Kurtz

by Kevin Jon Heller

What Is Your Neighborhood’s Walk Score?

by Kevin Jon Heller

Securitization and Intermediation in Microfinance: Access to the Capital Markets

by Kenneth Anderson

Power Shifts, Old and New

by Chris Borgen

I’m Holding Out for a Subaru Sandinista…

by Kevin Jon Heller

The ‘New Two Cultures’ of Legal Scholarship: The Humanities and Social Science (A Note to Joe Singer)

by Kenneth Anderson

American Charitable Giving for Natural Disasters Drops – Why?

by Kenneth Anderson

Bad Bots: Battlefield Robots and Counters to Them as Weapons Against the US

by Kenneth Anderson

Battlefield Robots as a Technological Response to ‘Lawfare’, and the Limits to Technological Counters to Bad Behavior

by Kenneth Anderson

Secret Agreements

by Roger Alford

What Is Microfinance Supposed to Do?

by Kenneth Anderson

The Ethically Ideal Autonomous Battlefield Robot as Ethically Ideal Human Soldier? And What Is the Moral Worth of a Human Soldier’s Life?

by Kenneth Anderson

How $300 Can Save Women’s Lives

by Peggy McGuinness

2008 New and Lateral International Law Professor Hires

by Roger Alford

Previewing Benjamin Wittes’ New Book on Law and Terror and Guantanamo

by Kenneth Anderson

Dave Glazier on the Wall Street Journal on Gitmo Defense Attorneys

by Kevin Jon Heller

The Rehabilitation of John Yoo?

by Duncan Hollis

Battlefield Robotics, a Very Brief Introduction

by Kenneth Anderson

Many of us who work in the areas of laws of war and armed conflict have been watching the development of technology because, if history is any guide, changes in technology are a big, quite possibly the biggest, long-term, historical driver of changes in the laws of war. The development of the musket, cross-bow, airplane, machine gun, and so on. We are in an era of accelerated technological change, and naturally many of us are scanning the horizon to identify the technologies that will cause potential disruption and change in international humanitarian law.

One of these areas is cyberwarfare, and I have lots of friends who are taking advantage of their backgrounds in cybertechnologies to consider the question of whether new rules, or adaptations of old rules, will be needed to address, for example, the questions of dual use (civilian and military) of the internet in war. My own interest is somewhat different; I have been drawn, over the last year or two, into questions of robotics on the battlefield (and what follows is very loosely taken from my draft paper and several posts at my blog).

Battlefield robotics is in fact well underway. It is driven by a couple of different pressures. One is the US military’s constant search for force multipliers – a capital intensive, indeed the most capital-intensive military in the history of the planet – looking for ways to use technology to make each individual soldier more effective. A second is the search for force protection – individual soldiers in the Western armies are about as far from cannon fodder as can be, and ways to protect them individually are an important priority. A third, to which I will return in a later post, is the use in asymmetric warfare of violations of the existing laws of war by the enemy, hiding in and among civilians, civilian shields, etc., to which the US military seeks to respond with technological counters.

Considered from an ethical and legal perspective, battlefield robotics has several layers, introducing new ethical and legal questions at each step. The first is the use of robots for observation and surveillance. This does not really raise significant questions, and indeed performs a vital role in allowing the use of battlefield force to be more discriminating. But they have remarkable technological capabilities – miniature spy insects that can fly, act in groups, and are autonomous in the sense that they do not require a human operator to figure out in real time where to go and what to do. Here is a photo computer rendering of a spy spider:

A second layer carries robotics beyond surveillance, and into the use of weapons. Air platforms such as the Predator drone, initially used for surveillance but now equipped with missiles and other weapons, are also well underway. (Bryan M. Carney, “Air Combat by Remote Control,” Wall Street Journal, opinion, Monday, May 12, 2008, is a good short, newspaper article introduction, but there are lots of press articles out there. In general, a good way to keep a newspaper-level handle on the technology development is to read Popular Mechanics robotics columns online.)

The legal and ethical feature of these machines, however, is that they are remote-operated. In that sense they are robotic, but they are operated by a human being in real time – even if that human being is somewhere far away. The military efficiencies in using drone aircraft are hard to overstate – smaller, cheaper, but also do not require having a large part of your air crews and equipment down for rest and maintenance for as long a time as required with humans. You can keep a surveillance drone in the air for long periods of time … there are simply enormous advantages to remote operated aircraft. But again, given that the machine’s weapons are operated in real time by a human being, the ethical and legal questions are not so many (there are some, but I will skip over them). Here is a US Air Force photo of a Predator:

A third layer carries robotics from air drones to the ground. The US military in 2007 deployed for the first time a remote operated ground vehicle with a weapon mounted on top to Iraq for field testing. (It has also been withdrawn again for further work.) Here is a photo of the SWORDS system:

The evolution of this machine is striking – it evolved from the technology developed for use in dealing with landmine and IED removal. The difference is that it now has a weapon mounted on top. But again, it is remote operated by a human being in real time.

Where the rubber meets the road, ethically and legally, of course, is the fourth layer in battlefield robotics development – the development of autonomous battlefield robots, robots that are not simply remote operated by a human in real time, but robots that are programmed with independent decision-making in the use of weapons. We are a long way from that point, if we ever actually reach it, and there can be lots of arguments that it is a line that should not be crossed. But there is no question that this is the direction of technological research.

Part of the reason is that autonomous robot decisionmaking is not merely a feature of military research; it is a central proposition of robotic research generally, and these military applications are spinoffs from a central R&D drive. In a certain sense, indeed, the development of autonomous battlefield robots, with independent control over weapons, draws upon the obverse, for example, of Japanese work into caregiver robots for the elderly: the decision by a robot caregiver whether or not to call 911 is not unrelated to the decision by a battlefield robot whether or not to fire a weapon.

Let me hold off for future posts this week specific questions about law and ethics when it comes to robot soldiers (I know, I know, robotics experts don’t like that kind of lurid term, but I find it irresistible, not least because editors do everywhere). One set of issues involves the questions of how you translate the criteria that human soldiers must use – e.g., is it a legitimate target and what is the proportionality calculation? – into something usable by a machine. But a second set of issues asks whether the use of robots involves anything more than the successful translation of existing laws of war principles into a machine-applicable language. Is there anything different about it being a machine? Or is the problem of autonomous battlefield robots, as a matter of law and ethics, simply one of translation – to try and achieve how the ideal soldier would behave? These are some of the questions I want to take up later this week about genuinely autonomous battlefield robots.

Meanwhile, if you would like some further reading, some of the most fascinating work in the area of ethics and law applied to autonomous battlefield robots is being done by Professor Ronald Arkin at Georgia Tech. (He is completing a book on the subject due out, I believe, next year, and to judge from his several papers, it should be very, very interesting.)

Here are links to two reports from Professo Arkin dealing with the ethical and legal issues and their translation into machine programming:

http://www.cc.gatech.edu/ai/robot-lab/online-publications/formalizationv35.pdf

http://www.cc.gatech.edu/ai/robot-lab/online-publications/MoshkinaArkinTechReport2008.pdf

And finally, Jason Borenstein, also at Georgia Tech, has a very interesting new paper out in a Bepress Journal on ethics and autonomous battlefield robots – requires a Bepress subscription, but here is the abstract page.

With this as an introduction, I will put up some additional posts going to particular ethical and legal issues that I see arising in the development of autonomous battlefield robots. (Thanks Chris and Peggy for help with the images! And welcome Instapundit readers and thanks Glenn Reynolds for the Instalanche! I will be adding posts over the week dealing with issues of ethics and law re autonomous battlefield robots, and will link them in a post chain – check back over the week if you’re interested.)

Child Abuse and the HCCAICA

by Roger Alford

McCain’s Idea for Grilling the Chief Executive

by Kenneth Anderson

Europe’s Untouchables

by Kevin Jon Heller

Russia v. Canada: Power and Interests Confront International Law

by Julian Ku

Welcome to Guest Blogger Ken Anderson

by Peter Spiro

David Rieff, Skeptical on Forcible Humanitarian Intervention in Burma

by Kenneth Anderson

Me, Guest-Blogging

by Kenneth Anderson

In Second Life, a Virtual Darfur is Patrolled by a Virtual Green Lantern Corps

by Chris Borgen

Australia Considers ICJ Genocide Case Against Iran

by Julian Ku

Oscar Pistorious and the Rights of Disabled Athletes

by Kevin Jon Heller

ATS Apartheid Case Affirmed by Supreme Court

by Roger Alford

Wrap-Up Post: W(h)ither America?

by Peter Spiro

Chimene detects some nostalgia in Beyond Citizenship‘s suggestion that America may be unsustainable in the long run. But how could I not be nostalgic? I’m an American, and America has had a pretty good run of it.

At least I recognize the nostalgia. One thing that is both fascinating and frustrating about engaging on citizenship issues is the difficulty in keeping some perspective on the conversation. Most of the scholars addressing American citizenship theory are themselves Americans, and proud ones at that, the progressives as much as the conservatives. I think that sometimes adds an ingredient of wishful thinking to the mix. Americans certainly don’t want to hear about the end of America (unless of course there’s something they can do about it), academics no more than anyone else. There’s something, well, slightly unpatriotic about it.

In fact constitutional law scholars may be more sensitive than others to the nation’s possible dissipation. As John points out, constitutional governance as we know it is ultimately what’s at stake here. Although progressive scholars aren’t openly opposed to supra- and transnational forms of governance, it tends to make them fidget for the same reasons. The shift puts everything up for grabs in a slightly scary way. It’s not just that power might shift away from America to other states, as the latest bestseller argues, it’s that power may shift beyond the state, to zones in which all our received wisdom may just not apply. The United States will be around as a weighty, historic association of individuals, of citizens, into the distant future, but for many it will be a less important component of their identity going forward. America is not for all time. Academics are positioned to be thinking through alternate locations of governance.

Many, many thanks to Alex, Chimene, Cristina, John, Jon, and Ken for participating with their thoughtful and challenging posts in this book roundtable. I think this has been an edifying discussion, or at least I know that I’ve learned a lot in the process. I hope some readers have also found it to be of interest, though I’m sure others will be relieved that we now return to our regular programming!

John Boonstra on R2P and Burma

by Kevin Jon Heller

Who Needs Citizenship?

by Peter Spiro

Thanks to Ken for injecting the Ignatieff observation, with which I emphatically disagree! Nation-states are useful handmaidens to the superclass, but the real elites could do just fine without them, thank you very much. It’s nice to have safe streets in places New York and London, but that’s the business of local governments, not national ones. In locales where things are dicier, there’s always private security. As for the other forms of order that elites depend on, like financial order, again states are useful, but an increasing number of transnational institutions are just fine running on their own non-governmental steam. In any case citizenship in a particular country isn’t an issue for elites: the SEC, for example, works for Singaporean, British and Mexican elites, too.

The tougher (and more typical) challenge is whether non-elites need citizenship. As Alex notes, “the transnational trends that Peter identifies may be working on behalf of but a small—and privileged—slice of humankind.” For her part Cristina asserts that “[e]veryone needs a citizenship, whether because citizenship is, in Arendt’s formulation, the ‘right to have rights,’ or the primary security we have that we cannot be banished from at least one place on earth, or the mechanism for ensuring that everyone belongs somewhere such that every person is the ultimate responsibility of some government.”

At some level that is obviously still true. If you’re not a transnational elite, citizenship is a very nice thing to have, and it’s nicer to have US citizenship than, say, Mexican citizenship. But it’s not what it used to be. We’ve left behind the Arendtian world in which the lack of citizenship left you completely exposed to the sovereign elements. That’s what the human rights revolution is all about.

As for US citizenship, it gets you absolute locational security and the right to vote, and not much else. Wherever the overall naturalization rate is going, there are lots of permanent residents who don’t bother to naturalize, even after decades of territorial presence (more than 25% of those in the country for more than 20 years have yet to acquire citizenship). Why not? Must not be worth that much to them.

My last few words

by Jonathan Weinberg

Thanks again to Peter, without whose terrific book we couldn’t have done this, and who has responded challengingly and gracefully throughout this conversation. It’s been a lot of fun.

I want to reassure John that he really isn’t the only one here skeptical of global governance. Speaking for myself, I’m not such a fan either. Governance institutions tend to suffer from ever-increasing democracy deficits as they grow larger, and global institutions are the largest of all. In my other life, doing Internet and telecom law, the track record of global governance is pretty dispiriting.

It does seem to me, though, that we can believe in the nation-state — and believe that governance should take place on that level — without believing that the U.S. should impose arbitrary limitations on immigration-for-permanent-residence-and-ultimately-citizenship. That is, I believe that we can have a strong nation-state consistently with having borders that are much more open than this country’s are today. This relates to a key theme of Peter’s book that we didn’t really get to in this discussion: Can we have a strong conception of citizenship but only weak limits on entry into citizenship? I think we can (or at least we can have a strong enough conception of citizenship), and Cristina has articulated some of the reasons why. But the rest of that discussion will have to wait for another day.

Global Governance vs. Liberal Democracy? We are going to have to choose

by John Fonte

Patriotic Assimilation

by John Fonte

We have talked a little bit about assimilation. What I believe is important for strengthening our democracy is what I call “patriotic assimilation. I’m going to sketch this out a little.

What is “patriotic assimilation”? First, it does not mean giving up all ethnic traditions, customs, cuisine, and birth languages. It has nothing to do with the food one eats, the religion one practices, the affection that one feels for the land of one’s birth, and the second languages that one speaks. Multiethnicity and ethnic subcultures have always been part of our past.

Patriotic assimilation occurs when a newcomer essentially adopts American civic values and the American heritage as his or her own. It occurs, for example, when newcomers and their children begin to think of American history as “our” history not “their” history. To give a hypothetical example, imagine an eight-grade Korean-American female student studying the Constitutional Convention of 1787.

Does she think of those events in terms of “they” or “we”? Does she envision the creation of the Constitution in Philadelphia as something that “they” (white males of European descent) were involved in 200 years before her ancestors came to America, or does she imagine the Constitutional Convention as something that “we” Americans did as part of “our” history? Does she think in terms of “we” or “they”? “We” implies patriotic assimilation. If she thinks in terms of “we” she has done what millions of immigrants and immigrant children have done in the past. She has adopted America’s story as her story, and she has adopted America’s Founders—Madison, Hamilton, Franklin, Washington—as her ancestors. (This does not mean that she, like other Americans, will not continue to argue about our history and our heritage, nor ignore the times that America has acted ignobly).

Patriotic assimilation does, however, mean exclusive citizenship. One nation’s interests (and values) are the same as another’s. This is true even among democratic nation-states that are very close such as the US and Canada (the World Values Survey shows differences). So, yes, dual allegiance does constitute a major problem for the strength of American democracy. Interestingly I have seen survey data by a major polling company (it will be released in June, I will send it to Peter then) that reveals that 75% of all registered voters believe that newly naturalized American citizens should be required to “give up all allegiance” to their previous nation.

Tightening the Citizenship Circle, Legally: Not Going to Happen

by Peter Spiro

John wonders if I’m being too deterministic in my analysis, and Cristina also clearly sees some possibilities in citizenship policymaking. I agree that there are some important policy choices on the table, such as the ones Cristina discusses in the context of circular migration. But at the core I think there is zero chance of moving citizenship practice in a direction that would reverse its increasingly overinclusive tendencies.

Scaling back birthright citizenship: Not going to happen. This has been on the table since the mid-1990s, with various proposals to limit jus soli citizenship by either constitutional amendment or statute. That was no surprise, in the face of intense anti-immigrant sentiment from some quarters. What is suprising is how little traction these proposals have had. As far as I know, none has so much as been voted out of committee. This experience proves how deeply entrenched birthright citizenship is as a constitutional norm.

Policing dual citizenship: Not going to happen. My lightbulb moment on this, which I describe in the book (p. 73), was a conversation I had at a conference dinner with a House immigration subcommittee staffer, a Republican, around the time that Mexico changed its law on dual citizenship in 1998. If there were going to be a time to attack dual citizenship, that would have been it. I asked whether there were any legislative moves in the works. He said no, there weren’t, letting drop that he had nieces and nephews who were Irish and American and that “they’re good people, too.”

The only legislative proposal I’m aware of on dual citizenship was a bill introduced in 2005 which would have criminalized certain acts associated with dual citizenship, like serving in a foreign army or voting in foreign elections (on the part of naturalized citizens only). That went nowhere. With powerful constituencies in play here beyond the usual immigration sending states (think Ireland, Italy, and Israel) this kind of action is a complete nonstarter.

Raising the bar to naturalization: Not going to happen. This is slightly more plausible, that naturalization requirements could be stiffened. But the clear trend is towards relaxing them, the calls of conservative nationalists notwithstanding (for book length treatments, see here, here, and here, all either out of print or remaindered). There was a possibility in the drawn out effort to revise the test, but the result was minor tinkering. It’s still like the test to get learner’s permit. The only barrier that’s been raised is the application fee, a nontrivial threshhold but obviously one that doesn’t measure membership in the national community.

The fact that citizenship policy has not become a battleground for the immigration wars shows the resilience of inclusiveness. But that inclusiveness, as we have been discussing, may come at a cost.

Final thoughts on cosmopolitanism

by Cristina Rodriguez

I want to wrap up my participation in this on-line symposium by thanking Peter again for his great contribution, and the occasion for what has been for me an engrossing discussion. I also want to chime in on two of the issues raised yesterday.

1. Peter, I think that many, if not most, Americans have come to value their citizenship precisely because of its inclusiveness. The fact that it has become relatively easy to obtain and that we have eliminated all racial barriers to its acquisition is a reason to celebrate it, and to be proud of it. Sure, for some people extending its full scope to groups such as women and blacks may have diminished its value in the short-term, and the possibility of a Latino plurality in the U.S. as the result of contemporary migration may raise anxiety in some quarters. But, over time, people accept these reformulations of the institution, which make it stronger; exclusion becomes a drag on its value. And yes, as Robert Putnam has shown in his work, diversity can breed distrust. But adaptable institutions, such as our citizenship regime, are the keys to knitting diverse people together. Both our jus soli rule and the relatively open path to naturalization likely have been crucial to the United States’ ability (superior to many of our counterparts’ in Europe and elsewhere) to absorb large immigrant populations. I think I share much of Jonathan’s optimism about what he calls the American creed, which may be under pressure by today’s version of globalization, but whose institutional expressions, such as our citizenship regime as it exists today, are universalist in their orientation and therefore likely to survive the explosion of loyalties.

2. Ken, your citation to Michael Ignatieff’s skepticism regarding cosmopolitanism raises an important issue that we have not really discussed—citizenship as legal status. Everyone needs a citizenship, whether because citizenship is, in Arendt’s formulation, the “right to have rights,” or the primary security we have that we cannot be banished from at least one place on earth, or the mechanism for ensuring that everyone belongs somewhere such that every person is the ultimate responsibility of some government. I don’t understand Peter to be dismissing the importance of citizenship as legal status, but (correct me if I’m wrong Peter) he is cosmopolitan in the sense of seeing the need for forms of membership, including with legal significance, that extend beyond the traditional model of one person, one state. I share the skepticism of the sort of cosmopolitanism that believes that people’s attachments to their national contexts are on the wane, and that a more transcendent form of political and cultural identity is preferable—some of which may be animating Peter’s work. But even as I agree that people remain deeply rooted in the societies or cultures in which they were born or raised, it’s hard to deny Peter’s point that we are all more plural than ever before in our interests and affiliations, if only because of the mass diffusion of a heavily American-inflected popular culture across the globe. And mass global migration, which is hardly just a phenomenon of elites, is contributing to the cosmopolitan dynamic. Whether the condition of cultural pluralism in which we live has been or ought to be accompanied by diminished regard for national citizenship is the question. I think Peter would say “yes” to the “has been” part of that formulation, and your military officers would say “no way” to the “ought.” Whether and how we try to bridge that gap is the hard part.

New Blog About the Trial of Alberto Fujimori

by Kevin Jon Heller

Channeling Circular Migration

by Cristina Rodriguez

I would like to return to the theme of how we should approach the dynamics of erosion Peter has identified and to reiterate that I think we should be asking not whether these forces are inevitable, but rather: what are their real costs, and what might be the costs of trying to reverse them? First, even if the overinclusiveness of our constitutional jus soli rule and statutory jus sanguinus provisions, and our increased acceptance of dual nationality, weaken the institution of U.S. citizenship, these are developments we must maintain. Second, though illegal immigration may have its benefits—it arguably is economically efficient, imposes fewer fiscal costs that legal immigration, and screens for the immigrants with the greatest fortitude—it is a form of “membership” that we should strive to reduce. The question on that score is whether we can accomplish the reduction by asserting a sovereign interest in border enforcement, or whether we must expand opportunities and forms of legally sanctioned membership beyond what today’s system allows.

Finally, to me, the most difficult question is posed by circular migration. Whether or not it is occurring with the same frequency as in previous eras and whether or not it is inevitable—something others have been debating—we still need to think, as a matter of policy, about how best to channel it. With respect to semi- and unskilled workers, our current strategy of responding to illegal immigration through strict border enforcement, which Doug Massey has shown is turning what would otherwise be cyclical migration into the semi-permanent settlement of illegal immigrants, seems untenable.

But the question is whether we should permit migrants to cycle in and out of the United States pursuant to some kind of labor migration agreement with Mexico (or other states) as frequently as makes economic sense for Mexico, the U.S., or immigrants themselves. Or, at some point should we expect migrants to make a permanent commitment to the United States or return to their countries of citizenship? I worry about the civil society implications of migrants using the United States as a kind of economic way station, particularly for prolonged periods of time. Circularity reduces incentives for integration (migrants without long-term time horizons in the United States are less likely to invest in acquiring the social capital necessary to be full members), which in turn reduces the willingness of Americans to support immigration more generally and threatens to give rise to sizable cohorts of quasi-members of secondary status.

Some circularity, even in a context where immigrants have become U.S. citizens (or are born with two citizenships), is likely inevitable, and it would be unduly coercive to prevent it. This is not an argument for forcing everyone who steps foot in the United States to stay forever. But actively embracing circularity as immigration policy could institutionalize a practice on a large scale that is inconsistent with what should remain our goal: turning immigrants into citizens to ensure the perpetuation of the American project as a society whose members are all equal participants.

Obviously an important component of making this work is not just willingness on the part of immigrants to make long-term commitments to the United States, but also making the road to citizenship a possibility for those who cross our borders. Peter has already talked about the importance of reducing barriers to naturalization, but I also want to underscore the importance of opening up the road to naturalization to the migrants we are increasingly admitting on a temporary basis (whether by tolerating illegal immigration or authorizing small or large-scale temporary work visas across the labor market spectrum). Expanding the availability of citizenship may contribute to the lessening of its value. But, consistent with my first post on thinness itself having value, my strong intuition is that making citizenship available creates incentives for immigrants to affiliate with and integrate into the United States. Though it could turn out to be empirically false, my strong hunch is that the possibility of permanent security and membership itself gives reasons for immigrants to invest long-term in the communities around them, instead of keeping their sites focused exclusively elsewhere, even if citizenship doesn’t cost them that much. Indeed, the possibility of dual citizenship, which Mexico now allows, may reduce the incentive to invest somewhat; cf. the difficulty I acknowledged previously of participating equally in two different societies. But if we are worried about circular migration reducing attachment to the United States, which Peter might or might not be depending on how ready to accept the inevitable he is, then we should think about how to structure the parameters of circular migration to offset some of its downsides.

Immigrants and Assimilation

by Peter Spiro

I’m not going directly to take on Jon’s latest post on naturalization rates. It’s quite complicated, and Jon’s correct that it has to take into account flows and stock. It’s clear that the rate has been rising. For those interested in a detailed analysis, check out this report by Jeffrey Passel from the Pew Hispanic Center.

That doesn’t answer the question of why immigrants are naturalizing in higher numbers. I agree with Jon that some immigrants in the past have no doubt naturalized for instrumental reasons. I suspect there are more who are doing so today. Dual citizenship again is a crucial factor. In the past, you had to choose. Should I forfeit my original citizenship, something on the order (in Peter Schuck’s formulation) of abandoning your first love? That probably made more likely the convergence of affective and instrumental motivations in the naturalization decision. Today, you can add a citizenship for instrumental reasons (even trivial ones, like getting the better treatment at the airport) without being forced to factor in sentimental factors (and “loyalty”, whatever that means today). (I have some quibbles with Jon’s characterization of practices relating to dual citizenship in the 19th and early 20th century which I’ll hope to point out in a comment to his post.)

The ultimate question here might be whether immigrants are assimilating. (There’s a report out just yesterday from the Manhattan Institute which offers up some conflicting evidence. On the one hand, the study shows some uptick in assimilation among recent arrivals. On the other, it concludes that assimilation is lower today than among immigrants of a century ago. A perfect case of dueling headlines: compare this with this!)

I think the answer is probably yes and no, and I’m not sure it makes a difference. Yes in the sense that most immigrants know the basics of constitutional democracy and American popular culture. No, however, to the extent that they may not be connecting in a way that’s any different from the way that the rest of the world is connecting to the United States. In other words, the immigrant from Manila or Santo Domingo or Seoul or Zacatecas may be assimilated, but not much more assimilated than the family members she left behind.

There may be a partial answer in here to Jon’s most recent post on diasporic communities. It also works with what I call happenstance Americans. Born in the US, citizenship for life, leaves at age 2: that person wil probably end up knowing a fair amount about the United States and be connected to it in various ways, but not necessarily much more than her non-US citizen neighbor in the foreign country in which she now lives. If everyone’s an American, citizenship becomes an arbitrary binary, dividing haves and have-nots in a way that doesn’t reflect social realities on the ground, and it becomes unable to do the sort of work it has in the past.

Nation-States and Cosmopolitans … an Ellipsis from Ignatieff

by Kenneth Anderson

Greetings, everyone – Ken Anderson here. My thanks to Peter and all my friends at Opinio Juris for inviting me as a guest. I am actually guest-blogging next week on Opinio Juris, and am quite fascinated with this book discussion. Peter kindly invited me to join in, but I have been lobbying an editor to let me review Peter’s splendid book, and I think I might damage chances if I say anything substantive here … on a blog (!!)

But the one thing I will add to this conversation is a quote from Michael Ignatieff, his 1990s book, Blood and Belonging. I would be curious as to how, or whether, Peter or others thinks it fits within the discussion of citizenship:

“It is only too apparent that cosmopolitanism is the privilege of those who can take a secure nation-state for granted … The cosmopolitan order of the great cities – London, Los Angeles, New York, Paris – depends critically on the rule-enforcing capacities of the nation-state … In this sense, therefore, cosmopolitans like myself are not beyond the nation; and a cosmopolitan, post-nationalist spirit will always depend, in the end, on the capacity of nation-states to provide security and civility for their citizens. In that sense alone, I am a civic nationalist, someone who believes in the necessity of nations and in the duty of citizens to defend the capacity of nations to provide the security and the rights we all need in order to live cosmopolitan lives.”

I should add that I once quoted this to a class on just war theory and the laws of war, a class at Harvard in the mid-1990s with a large number of US military officers doing a year at the Kennedy School. One of them raised his hand and said, “Well, the cosmopolitan types always expect the citizen types to sacrifice and die for them – and not being very smart, we do.”

The Thinness of American Citizenship: Or, What’s Wrong with Happenstance Americans and Diasporic Communities?

by Jonathan Weinberg

Peter, you argue that there is no core of American identity beyond the popular and political culture (Snoop Dogg, anyone?) that we share with the world. The culture of New York, in other words, is not meaningfully different than that of New Delhi; or in any event, it’s no more distinctively and meaningfully American. I’m wondering, though: if that’s the case, why, exactly, do you think there’s a challenge to citizenship posed by the “happenstance American” born in the U.S. but who spends much of her life outside it? Or by the child growing up in a “diasporic community” said to be socially and culturally disconnected from the larger nation? It seems to me that the reason you think these folks pose a challenge to citizenship is because you do believe that a sufficient period of acculturation and residence, meaningfully situated within the American community, does convey something — knowledge, values, more — that makes you American. The asserted problem with happenstance Americans and folks in disaporic communities is that they don’t absorb that something. But whatever that something is, it looks like American identity.

(Alternatively, I suppose, the problem could be disconnected from knowledge and values; it could be just that those folks may not have sufficient attachment to American community. That concern, I think, would situate you somewhere within the liberal nationalist paradigm you critique in the book. But that’s a topic for another post, if we get to it.)

I suppose I think that there is still an American creed, and that its elements include, among other stuff, a commitment to immigration and to the American experiment — an enterprise of perpetually rebuilding and reconstructing our City upon a Hill, a city that we collectively built, rather than merely inheriting, and that therefore we can rebuild — that we in the U.S. still see as distinctively American. Then again, I may be projecting my own liberal values onto the nation: after all, a lot of the American public are less committed to immigration than I am. I expect there are some members of the public whose version of American identity is premised on closed borders. It may be that what unites us in the U.S. is narcissism. We all tend to see the American experiment as, in Abraham Lincoln’s words, “the last best hope of earth”; we just can’t agree on why.

Why go beyond the Constitution?

by John Fonte

One very quick point on Alex’s argument (discussed by Peter in the post,”Translating citizenship outside the State”) that, in effect, “citizenship will move up the territorial chain.” I agree with Alex descriptively that new kinds of post-national citizenship would be established with new political entities, norms, coercive authority and the like. My problem is normative. It has not been explained how these new institutions can be democratic. Why would we want to go beyond the US Constitution for a new system of post-national governance that can not even be fully articulated?

European Union is post-democratic

by John Fonte

A quick point to Cristina. Even strong supporters of the European Union recognize that the institution has a “democracy deficit.” For decades most of the power and authority of the EU has been exercised within the European Commission (EC), the bureaucracy in Brussels. Legislation is initiated by the EC, not the Parliament or the Council of Ministers which can only refuse to accept legislation already developed by the EC (which they almost never do) or amend the legislation through a complicated process.One of Europe’s most prominent sociologists, Ralf Dahrendorf (former commissioner of the EC, current member of the House of Lords) stated that: “It is not just a joke to say that if the EU itself applied for accession to the EU, it could not be admitted because it is insufficiently democratic.” The nation-states of Europe are democratic, but the institution of the EU is, what I would call “post-democratic.” Hence, I don’t believe we have an example of a democracy beyond the nation-state, possibly we have those below the nation (city-states), but not above.

Cristina is right about federalism, many nation-states have federal systems and this is not a problem for liberal democracy, but the supra-national EU is a problem. Christina is also right to suggest that decision-making on illegal immigration is often de-centralized and contradictory. That does not mean, however, that the vast majority of the American people are not right in favoring border and interior (business) enforcement of our immigration laws.

One point on dual citizenship. The empirical work of Jeffrey Staton, Robert Jackson, and Damarys Canache has found that Latinos who are dual nationals or dual citizens are less likely to have “political-connnectedness” (self-identification as Americans, consideration of the US as real homeland, civic duty) and electoral participation than Latinos who are not dual nationals. This appears to me to strengthen Peter’s general point.

Naturalization numbers and beyond

by Jonathan Weinberg

Peter suggested in a post last night that while there’s been a recent resurgence in naturalization applications, we shouldn’t see that as a resurgence in “the institution of citizenship” because many of those applications may have been instrumentally motivated. There are two things wrong with that, I think. First, near as I can tell, naturalization applications never weakened in the first place. Second, they’ve always been substantially instrumentally motivated.

It’s easy to think that there’s been a big drop in naturalization numbers. Peter writes in his book that “the proportion of foreign-born residents who naturalize has been steadily decreasing, from 63.6 percent in 1970 to 37.4 percent in 2000.” If we adjust those numbers to exclude from the calculation aliens who are here illegally or otherwise are not legally eligible to naturalize, 59% of eligible aliens today are citizens. The comparable figure has been higher at some points in the past. But that doesn’t show that naturalization has declined since those times; here’s why.

Immigrants, natch, are more likely to have naturalized the longer they have lived here. The citizen component of the immigrant population is highest in times of low immigration, when much of the nation’s immigrant population entered long before; it’s lowest after immigration surges, when more immigrants have more recently arrived. In 1920, thus, the country had just seen a major wave of immigration; moreover, the newest immigrants were poorer, less-educated, and slower to naturalize than those who had come before. The result: only 49% of the country’s legal immigrants were naturalized in 1920. After several decades of sharp restrictions on immigration, with assimilation of long-term immigrants, that percentage moved to a high of 79% in 1950. Increasing immigration after that pushed the number back down; just after IRCA added millions of newly-legalized immigrants, the percentage of the legal foreign-born population who were citizens dropped to a low of 38%. It’s been rising since then.

So if we want to learn about immigrants’ propensity to naturalize over time, it’s not helpful to measure the fraction of the total immigrant population who have naturalized at any given moment in history; we do better to look at the percentage of an immigrant cohort who become citizens within a set number of years. (See here for a longer explanation.) In 1920, toward the end of an immigration wave comparable in size to today’s, only 31% of those who had arrived 10-14 years before had become citizens. Twenty-five years ago, in 1983, a comparable 30% of those who had entered ten years earlier had naturalized. But in 2005, fully 50% of those who had arrived ten years earlier had become citizens. That’s not decline followed by resurgence; I’m not aware of any indication from the cohort data that there ever was a decline.

And as for people naturalizing for instrumental reasons: Sure. But so did early-twentieth-century immigrants. Those folks didn’t step out of the pages of The Education of H*y*m*a*n K*a*p*l*a*n: idealistic, severing ties to the homeland, eschewing circular migration, and emotionally unconditionally committed to the U.S. Well, there were people like that, but not everyone was. There was a lot of circular migration (more than today), a lot of transnationalism, and (because the immigrants were human) there was naturalization for instrumental reasons. Nothing new to see there.

On dual nationality: though Peter really really is correct that dual nationality is more important today than it used to be, it’s important not to overplay that. I can sorta see the argument that it dilutes American identity for folks here within the U.S. community also to be active participants in some other polity (though Cristina makes a powerful argument to the contrary). But — again, as Cristina points out — exactly how is it a problem if there are folks outside the U.S., and outside the bounds of meaningful participation in our community, who get to wear the label “American”? So what? It may well be (and I think this is the point of Peter’s mention of the LDS and Episcopal churches) that folks who feel intense affiliation to their organizations are less likely to want affiliation with parallel organizations. Thus, if U.S. citizens uniformly felt huge affinity with the U.S., they’d be less likely to move away in the first place. But the causation there is running in the opposite direction.

Further, while it’s clear that the scope of dual citizenship is greater now, it’s important not to minimize its sweep a hundred years ago. Peter wrote yesterday: “Many immigrants went home, but rules against dual nationality backstopped leaky naturalization rules to keep the community coherent.” But did they? State Department rules provided for the withholding of diplomatic protection for folks deemed to have gone over to the other side; a 1907 statute created a presumption against protection for citizens who took up residence abroad. But the presumption was easily defeated, and there’s at least some authority that the expatriate dual nationals, deprived of protection, nonetheless remained U.S. citizens — which mean that they could not only return here as citizens, see, e.g., Camardo v. Tillinghast, 29 F.2d 527 (1st Cir. 1928), but could pass U.S. citizenship to their children born abroad. (Before 1934, the only requirements for jus sanguinis transmission of citizenship were that the parent have resided in the U.S. at some point in his life and possess a Y chromosome. The child citizen did not need to travel to the U.S. at any point.) The institution of citizenship survived.

The Thinness of American Citizenship: Virtue or Failing? Or Both?

by Peter Spiro

I’d like to take up Cristina’s proposition that “it is precisely the thinness of American citizenship that makes it so valuable to its members.” This is an intriguing possibility but in the end I’m not sure I’m on board.

The characterization is consonant with the traditional understanding of American citizenship as being an open affair, and not amounting to much as a constitutional quantity (as Alexander Bickel famously argued). The historical actualities may have been otherwise, of course. Rogers Smith did a number on the openness trope with Civic Ideals, which documents the many historical barriers to citizenship (racial ones, most notably). My variation on this theme: it was all very well to follow to say that citizenship was available to anyone willing to pledge constitutional faith in a world in which mobility was limited. You had to get here first. Citizenship was still mostly about being here, and that, along with other historically distinctive elements of identity, may have sufficed to cement national solidarities.

Cristina notes the “positive evolution toward inclusiveness, as well as the triumph of autonomy.” So maybe we’re catching up to our aspirations. I agree that there have been welcome developments in lowering thresholds to citizenship (though there could be more, like a recognition that the naturalization exam can act in some cases as a serious barrier). But distinctiveness is the victim of that evolution, posing what I call the citizenship dilemma: the more inclusive citizenship is, the less likely it is to command communal loyalties. Loyalty may be best fostered through freedom to associate, but there still has to be something to associate with.

In other words, what’s the substance of an inclusive American identity? I think that question is even tougher to answer today than in the past.

Translating Citizenship Outside the State

by Peter Spiro

Alex Alenikoff and John Fonte pose contrasting challenges about where citizenship goes beyond the nation-state. Alex argues in effect that citizenship will move up the territorial chain:

[W]hile it is perhaps true that the nation-state form is evolving (even declining), what is ascendant is not a set of other non-political associations; we are not witnessing the rise of world anarchy or the end of history. Rather, we are likely to see the development and strengthening of other political institutions—regional, transnational, some global. These political organizations, institutions, associations—exercising what will be perceived as legitimate legal and coercive authority—will have (and need) members. That is, a decline in citizenship in the nation-state is likely to be accompanied by new kinds of citizenships associated with “polities” that tax and spend, organize armies and police, establish courts, and promulgate what are perceived to be binding norms. There is no reason that standard accounts of citizenship that link governance and a people cannot be stated at the appropriate level of abstraction to apply to new forms of political association.

For his part, John wonders if liberal democracy is possible beyond the state as constituted by citizens.

I think I come out somewhere in between. I agree with Alex that citizenship most readily translates to other forms of territorial governance. Citizenship in the European Union, for example, doesn’t pose a major theoretical challenge. It doesn’t look all that different from citizenship in federal states such as the US.

But anything else is much trickier. I’m hardly proposing the end of history here. But conflict and group definition will increasingly be drawn along non-territorial lines. How does citizenship translate to church, corporate, NGO and other nonstate contexts? Not so clear. Nor does citizenship on the state model translate to the institutions of global governance (no one-worlder me). A major purpose of the book is to start to train sights on these other locations of governance, and to see how we might deploy the lessons of citizenship. That’s already happening; witness all the recent domestic law scholarship on private governance (like this paper), as well as IL work considering democracy and accountability in international institutions (see for instance this recent piece by Grainne De Burca, and this from Bob Keohane). As Cristina notes in her more recent post, “[t]he fact that we are in unmapped territory does not mean that we shouldn’t attempt to think beyond our nation-state centered worldviews.” Perhaps it needs to be more sytematically addressed under Chimene’s heading of “Beyond Citizenship Studies”!

On this score, though, I understand John’s concerns. It’s not clear how one directly transfers core elements of liberal democracy in settings other than the nation-state. Take one person-one vote. To the extent it’s not a fable in the first place, it’s not easy to see how it can be put to work in the new international order (however much Andy Strauss and Richard Falk would have us believe otherwise!). But whether or not democratic citizenship translates to the new order, it won’t help simply to wish it away. That’s where the danger lies, in not recognizing the migration of authority to nonstate and suprastate institutions and allowing abuses of power to go unanswered.

Resisting Erosion

by Cristina Rodriguez

I want to begin this post by addressing John’s claim that it has never happened in history that a democracy has extended beyond the nation state. On the one hand, I share his difficulty in imagining a world where the nation state is not the locus of democratic participation, because it seems to be the form of organization that best facilitates, simultaneously, accountability of public officials and common cause among members.

But, at the risk of venturing into territory with which I am unfamiliar, what about the European Union? And, closer to my comfort zone, what about federalism? The nation state today (as it has always been to some degree) is embedded in sub-national as well as supra-national networks, all of which perform important functions in an increasingly interdependent world, and all of which promote accountability and common cause to some better or worse degree than the nation state itself. I do not take Peter to be suggesting the end of the nation state, or that polities must abandon drawing lines between those who belong and those who do not (the EU, despite expanding conceptions of citizenship beyond the nation state, is nonetheless exclusive). But Peter is challenging us to think about how we might reformulate our citizenship frameworks, or think about redrawing those lines, to better take account of the cross-border relationships and affiliations that have emerged in impressive form in the post-War era. The fact that we are in unmapped territory does not mean that we shouldn’t attempt to think beyond our nation-state centered worldviews. I would be very curious to hear from Peter what shape he imagines new frameworks of affiliation and community might take. Do we need an international right to political participation? Or a political arm to NAFTA, for example?

Along similar lines, I would ask Peter whether in redrawing lines of membership we must accept globalization-driven developments as they have happened, or whether we should actually use immigration and nationality law, and trade and foreign policy, for that matter, to strengthen the attachments to the nation state, or to resist certain aspects of the erosion you describe?
As John points out, there is a deterministic quality to Peter’s book, but I think it is largely warranted. Peter takes a crucial first step in delineating how citizenship frameworks have evolved over time. The question is not whether we can turn back the clock to a (non-existent?) time when American citizenship was not overinclusive and everyone robustly belonged to one place. Rather, the question is what would be the cost of resisting the erosion of citizenship that Peter describes, especially to the extent that the “erosion” has occurred as the result of overturning historical debacles, such as the adoption of a nearly universal jus soli rule in response to Dred Scott, or as the result of progressive advancements, such as the reversal of the rule that women who marry foreigners lose their citizenship.

In my view, the question of when and how we should resist the forces of erosion becomes trickiest when we confront the problems of (1) unlawful immigration; and (2) transnationalism and cyclical migration. I will address the latter in a later post. As for the former, I don’t want to sidetrack this discussion into a debate on illegal immigration since Peter’s book is about much more. I’ll just suggest that is too easy to say, as John does, that “we the people” should simply determine what our immigration policy is, and those who are here illegally are here without the consent of the governed. Decisions about who we want in the United States are not made by the body politic through some sort of centralized, unilateral, and singular decision. As scholars such as Alejandro Portes and Ruben Rumbaut have argued, migration patterns are the product of historical entanglements between nation states. As I have argued in my own work, such patterns are also the result of consumer-driven preferences that operate outside or parallel to the law, and they are the result of various enforcement decisions made by the federal government that reflect a mix of humanitarian and pragmatic judgments made on case-by-case bases, at different points in time. I would not go so far as to say that illegal immigration is beyond our control. But it is important to realize that the sorts of cross-border relationships that challenge our traditional conceptions of citizenship, including illegal immigration, are the result of decentralized, sometimes contradictory, decision-making by various branches of government, along with the people acting simultaneously through their representatives and their private and market choices.

These observations are all by way of saying that, to the extent Peter is arguing that the decline of citizenship is the result of strong and difficult to resist forces, he is making a point we cannot escape by asserting that we have the autonomy to ensure otherwise. And to the extent that he is challenging us to confront these forces head-on, and to rethink how we promote community, he is pushing us in the right direction. I think we can still accomplish a lot within a nation-state centered conception of citizenship, and today more than ever we need strong territorially-anchored frameworks for belonging to promote integration—a point Hiroshi Motomura’s recent work powerfully underscores. As I suggested in my previous post, I am skeptical that we are witnessing “America’s dissipation,” as Peter puts it. But my skepticism does not mean that we should not take steps to strengthen American citizenship in light of transnationalism—a question I’ll take up later.

Citizenship and Beyond

by Chimene Keitner

[Chimene Keitner is Associate Professor at UC-Hastings College of Law and the author of The Paradoxes of Nationalism (SUNY Press 2007).]

The first four chapters of Peter’s thought-provoking book send a clear message: U.S. citizenship is not all it’s cracked up to be. The message can at times seem harsh: “Becoming a citizen entitles one to little more than the right to vote, eligibility for some public benefits programs, and freedom from any threat of deportation” (30-31). Little more than … freedom from any threat of deportation! I thought as I read this, my mind full of the stories of the asylum-seekers I represented as a law student at Yale, and the myriad undocumented domestic workers and day laborers trying to eke out a living here in the Bay Area and elsewhere without the sense of basic security that citizens take for granted. (Thomas McCarthy’s recently released movie The Visitor, which I saw as I was reading Peter’s book, poignantly illustrates these themes of security and belonging.) But Peter resists over-valuing these benefits, just as he rejects an account of meaningful political participation that “fetishizes the ballot” (91). For him, the experiences of aliens at risk of deportation confirm his observation that “[w]ere one to draw a line … it would not fall along the citizen/noncitizen divide but would rather distinguish citizens and legal aliens, on the one hand, and those out of status or with no basis for securing it, on the other” (88). One’s “foundational identity” (a concept I would encourage Peter to expound further) does not come from a U.S. passport, but rather from “a Social Security number and a driver’s license” (90). His conclusion? “Where one would expect it to count the most, the rights of citizenship don’t add up to much” (88).

Although Peter assures us that he offers his observations “as a matter of description, not lamentation” (79), it is difficult to avoid detecting nostalgia in his account of the decline of American distinctiveness, which he characterizes as “the fading of America” (40). In discussing the rise of dual and even triple nationality, he seems to take at face value the nationalist (and monogamist) assumption that “[s]ingular affiliations inherently have greater meaning than nonexclusive relationships” (59). Whether or not this is accurate as an empirical matter, I found myself craving a more probative treatment of the normative and conceptual underpinnings of such assumptions, as well as some comparative discussion of relevant examples, such as the increasingly amalgamated citizenries of the European Union.

The real payoff (for me) comes in chapters five and six, in which Peter sets the agenda for future exploration of the intersection and interaction between identities and interests in law, politics, and international relations. For the academic community, his book could well be titled “Beyond Citizenship Studies.” As he presages in the introduction, “[i]f the state no longer dominates identity, it will inevitably lose ground as a location of governance” (6). In his view, the shift from “binary” to “scalar” modalities of territorial presence (101) calls for no less than a reconceptualization of politics.

I have come to think of the requirements for legitimate and effective governance in terms of three C’s: cohesion, commitment, and compliance. Peter challenges us to think about how to achieve these conditions in a globalized world, where “‘everyone is an American'” (76). These challenges are pressing, but elements of them are also perennial, as I have explored in my own work. (Jean-Jacques Rousseau famously lamented that “il n’y a que des Européens.”) Peter’s book documents the fissures in the American melting pot model and deftly points out the shortcomings in various proffered alternatives for dealing with the pluribus that may transcend the unum. Inevitably, many questions remain. But Peter has certainly advanced the collective conversation about what he calls, in an appropriately plural phrase, “the meanings of ‘we'” (5), which are not reducible to decisions about who is and who is not entitled to a U.S. passport.

Naturalization Numbers Are Going Up. How Can Citizenship Be Going Down?

by Peter Spiro

It’s true, as Alex and Jon point out: the number of immigrants seeking naturalization have in effect gone through the roof. The statistics look dramatic: the volume of applications from the mid-90s onward dwarf figures from earlier decades. More than 1.3 million individuals applied for citizenship in FY 2007. That’s more in one year than the entire decade of the 1960s.

There are a couple of explanations consistent with the proposition that citizenship and national identity are losing their hold. The most prosaic involve bureaucratic oddities, like the switch to hi-tech green cards in 1996 which forced all permanent residents into INS offices. Then there was 9/11. The clear explanation for the recent spike: a big increase in naturalization fees (from $330 to $595). If you were on the fence, better to do it now and save yourself the money. Applications spiked in June 2007, with more than 135,000 applications that month. By March 2008, the total was below 50,000 for the month. Naturalization rates (that is, the proportion of eligible resident aliens who secure naturalization) is up over the past decade though still lower than it was before 1980.

But that still leaves begging why anyone naturalizes at any price. Some clearly do it on the old model, as a rite of serious passage marking the transfer of affiliation from one state to another, for love of their new country. Or to vote. That’s how the MSM continues to portray naturalization.

But I think that an increasing number of natz applicants are doing so for defensive and instrumental reasons. There is anecdotal evidence that many applicants are looking to secure the admission of their parents or married children (permanent residents can’t) or to avoid the chronic backlogs in other family preference admissions. Citizenship is insurance against deportation. There are some reports of individuals naturalizing so that they can go back home (see this study by sociologists Audrey Singer and Greta Gilbertson). In those cases, naturalization actually facilitates transnationality. So citizenship is still worth several hundred dollars and the hassle of dealing with USCIS.

Don’t get me wrong, I have no problem with instrumental naturalization (or other forms of rational action). But it doesn’t fit the standard narratives, and the increase in those acquiring citizenship may not evidence a correlative resurgence in the institution of citizenship.

Is Dual Citizenship Dilutive of Identity?

by Peter Spiro

Cristina asks this question, and she has a good point in arguing, not necessarily. I agree that community affiliation is not a zero-sum proposition and that it is possible to be a fully engaged member of more than one polity. I have argued that plural citizenship should be not merely tolerated but embraced (here, for example). Autonomy arguments are quite powerful for recognizing the right to maintain dual citizenship. One can even frame the question in First Amendment associational terms.

And yet dual citizenship may nonetheless weaken the intensity of national community. The blurring of human geography (where does the “we” end and the “us” take up) would seem almost inherently to dilute the tie. In the American case, in particular, one will also find many who acquire US citizenship as a second or third choice, that is, subordinated to other national attachments.

Now one can, Cristina suggests, have associations in which the presence of weakly affiliated members does not detract from intensity at the core. In other words, overinclusion may not be a problem. I wonder about that. It’s one thing if you’re talking about an association that is weak even at the core, where there’s nothing really at stake. It’s another matter if we’re talking about a location of redistribution. In that case, the more overinclusive the membership terms are, the more membershhip is merely for the asking, the less robust the association is likely to be. (I want to consider Cristina’s related assertion that the thinness of American identity is its virtue in a subsequent post.)

Think the Mormon Church. No weak members there. It seems pretty clearly to present a more intense form of religious affiliation than, say, the Episcopal church, in which weak affiliation is the norm. So overinclusiveness may be institutionally problematic, at least where governance is at stake.

Is Democracy Possible Beyond the State?

by John Fonte

Just returned from Peter’s talk at the Woman’s National Democratic Club. Peter gave a fine talk and it was a very enjoyable event. The questions were submitted in writing and my question wasn’t asked, so I will ask it now.

Is it possible to have democratic self-government without a nation-state or some other entity like a city-state, that has restrictions between who is and who is not a citizen: between “us” and “them” as you put it in your talk? It has nevered happened in history that democracy has extended beyond the state. Marc Plattner has a fine new book out, Democracy Without Borders: Global Challenges to Liberal Democracy. As Plattner states on the page 3, “Very crudely stated, the contention of this book is that we cannot hope to enjoy liberalism (at least in today’s world) unless it is accompanied by democracy, and we cannot enjoy liberal democracy outside the framework of the nation-state.”

Later in the book on Page 107, Plattner quotes political scientists Juan Linz and Alfred Stepan as follows: “Without a state, they argue, “no modern democracy is possible….Modern democratic government is inevitably linkned to stateness. Without a state, there can be no citizenship, without citizenship, there can be no democracy.”

I agree with Plattner, Stephan, and Linz. Please explain how it is possible to have liberal democracy without a nation-state composed of citizens or is what you are talking about in the book (as I stated in my first post) a new type of political regime that is “post-democratic.” That is the regime comes in the historical period “after democracy.”

One other question. The tone of your book appears to be a little “determinist” to me. You are saying certain trends are inevitable and there is nothing that we can do about it. This sounds like a negation of free will and democratic self-government. You appear to be saying that there is nothing that a free people (who would be upset) by the decline in the meaning of citizenship can do about reversing this negative trend. We are not free, we can not exercise democratic self-government appears to be the message. This is the opposite message of Federalist No 1, which says our government is based not on “accident and force” but on “reflection and choice.” We just had lunch at the Woman’s National Democratic Club, isn’t the slogan of one of the Democratic candidates “yes we can.” Which appears to be an affirmation of free self-government. Suggesting that if there are negative trends on the significance of citizenship or anything else, “we the people” can get together and fix the problem? According to this view, no political policy or trend is inevitable and the final decision is made by “we the people,” not impersonal forces of history. A related question would be can’t “we the people” determine our immigration policy and decide who ought and ought not to enter and remain in the United States. In this sense, people who are here illegally are here without the “consent of the governed.” Surely we can take measures to redress this situation, including deporation policies decided by the political branches of the government. It is an issue of democratic self-government.

What do think Peter? Good seeing you today.

Response to Weinberg: Some Things Really Are New

by Peter Spiro

Thanks to Jon for his richly detailed post. It’s true that the last great wave of immigration, at the turn of the nineteenth to twentieth centuries, witnessed some of the same phenomenon, including circular migration and the flowering of immigrant enclaves. But there are at least two developments which make the current picture a very different one.



1. New rules relating multiple citizenship. In the old world, one could go home, but you couldn’t take your US citizenship with you. Although dual nationality per se wasn’t illegal, hairtrigger expatriation rules provided for the loss of US citizenship upon evidence of active participation in another polity. The mere act of voting in a foreign political election resulted in the loss of US citizenship (a measure upheld by the Supreme Court in its 1958 decision in Perez v. Brownell). As a matter of administrative practice, the Department of State withelf diplomatic protection to naturalized Americans who resettled in their homelands. Many immigrants went home, but rules against dual nationality backstopped leaky naturalization rules to keep the community coherent.



Today, it’s almost impossible to lose your citizenship. In line with Afroyim v. Rusk, short of serving as a head of state (which apparently continues to make the folks at Foggy Bottom nervous), you can go home and do whatever you want, with no risk of forfeiting your US passport. The result is a nontrivial group of Americans who may not be very “American”. This includes not just naturalized citizens but also native-born ones who have permanently emigrated. Transformed norms relating to dual citizenship are central to my analysis.



2. Jon’s arguments are consistent with a literature arguing that there’s nothing new in globalization as a general matter. I’m not up to date on the debate (and I certainly don’t have the empirical evidence to back it up), but at some level the thesis has to be wrong. Obviously (as Jon notes), some things are around today that weren’t around a century ago. And they are very relevant to community formations. As much circular migration as there may have been in 1910, you couldn’t go back and forth the way you can now, quickly and cheaply. And you couldn’t stay in touch with your homeland counterparts or fellow diasporans the way you can today, in the wake of the comunications revolution.



So there would seem to be a much greater potential today to sustain transnational communities. That has implications for the integrationist model of American immigration. Sure, newcomers will learn to speak English, but that’s increasingly true everywhere, as English becomes a global second language. The fact of intermarriage has more potential salience. But I wonder



A perceptive external reviewer of my manuscript (you know who you are!)suggested that a major component of my thesis is based on a bet: that the second and following generations of recent immigrants follows a very different path than their predecessors. I think that’s right, but I think the jury is very much still out on the question. I’m mistrustful of press reporting and the social science literature here, insofar as it’s clear how the politics cuts (evidence of integration is good for immigrant advocacy). So we’ll just have to see. But there’s at least the possibility that immigrant communities will stay transnationally segmented on an intergenerational basis, in a way that challenges the coherence of the national identity.

The Normativity of Political Transnationalism

by John Fonte

[John Fonte is Senior Fellow and Director of the Center for American Common Culture at the Hudson Institute.]

Thanks to Peter for inviting me to participate. I am off to see Peter speak here in Washington at the Woman’s National Democratic Club in about thirty minutes and will comment more when I come back. But first let me put forward a very broad issue/question. It seems to me that what Peter is suggesting is the replacement of liberal democracy as it has been traditionally understood with a new type of political regime (whatever name one wants to use). The issue is both descriptive and normative. The future is hard to predict, so I’m more interested in the normative question: Is political transnationalism a good thing or a bad thing.

It seems to me that the American people have a Constitution, judicial institutions, and a democratic political system. Poltical Transnational (such as appealing to foreign courts) is not part of the institutional authority and accountability inherent in the meaning of the phrase: “We the People of the United States.” The transnationalism suggested by Peter is something “outside” of the “People of the United States” and “beyond” the Constitution and our democratic process. Therefore, it could be characterized as extra-constitutional, post-constitutional, or post-democratic. In effect, this transnationalism seeks to achieve results that could not necessarily be achieved through the regular process of American democracy. This clearly raises the core “regime” questions of what constitutes legitimate political authority and who is responsible to whom in a democracy.

I would be interested in hearing Peter’s thought’s (both normative and descriptive) on the issue of whether the polticial transnationalism that he describes will replace (ought to replace) liberal democracy, which has only existed within the institution of the liberal democratic nation-state

Erosion Does Not Mean Decline

by Cristina Rodriguez

[Cristina Rodriguez is Associate Professor of Law, New York University School of Law.]

First, thank you to Peter and to Opinio Juris for making this conversation possible. Among the many things that Beyond Citizenship illuminates is the curious absence of discussion within today’s immigration debate about the changing nature of citizenship. That absence, I think, is suggestive of the salience of Peter’s work, for at least two reason: First, were we to examine closely the state of citizenship, we would be forced to confront its erosion that Peter details in his book, which would be unsettling to many, even if as an empirical matter it turned out to be marginal. Second, and more important, our increased toleration of temporary forms of migration, in its legal and illegal forms, underscores some sort of national desire to simultaneously welcome the immigration that our economy needs while maintaining something of the exclusivity of American citizenship. In other words, we are simultaneously ignoring and fighting the dynamics Peter brings to light.

Peter has given us much to discuss, but I’ll begin with some questions in a vein similar to Alex and Jonathan by challenging the erosion/decline thesis. Their points—that we have limited empirical evidence that thick transnational networks and the rise of dual citizenship are anything more than marginal phenomena, or that today’s state of affairs is much different than times past—are well taken. But I’d like to accept Peter’s erosion thesis as a given and make a case for the value of a thin conception of citizenship by asking him two sets of questions.

Question 1: On page 59, you write that “[s]ingular affiliations inherently have greater meaning than non-exclusive relationships.” Is this assumption really warranted? You briefly entertain the possibility on page 76 that “identity and commitment are not zero-sum quantities”—a statement that to me far better describes how human beings form loyalties. Why not build a thesis around that more positive possibility? To put it slightly differently, instead of analogizing citizenship or belonging to marriage, where having multiple partners necessarily diminishes the status of each of them, why not analogize the multiple national affiliations you describe to the parent-child relationship? Those of us with siblings like to think that our parents love us all equally and that the presence of another does not diminish the worth of the first born. If anything, that presence helps the parent to appreciate the uniqueness of each child by seeing her in relief.

The limitation of this analogy, of course, is that it can be difficult, if not impossible, to live out multiple citizenships with the same intensity. Territoriality remains a good proxy for attachment, because presence in a place necessarily requires interaction with its institutions and people, and significantly limits interaction with communities located elsewhere (telecom and travel notwithstanding). Since we can’t be in two or three places at once, it will be hard to exercise multiple citizenships equally, even if we value them equally. But this problem is not so much one of divided loyalties as one of desuetude, and it is primarily a “problem” for the dual citizen, not for the body politic as a whole. What, Peter, is really the loss to the nation whose citizen chooses to make her primary home and affiliations elsewhere, if that nation otherwise has a large, dynamic population (this observation circles back to Alex’s point)? Does my own attachment to the country in which I was born and raised decline in significance to me because of my awareness of the existence of triple nationals who prefer to channel their participatory energy in Canada or Mexico? In other words, I think the logical connection between the increasingly overinclusive nature of citizenship and the erosion of its value and strength is elusive.

Question 2: Another way of approaching the erosion question is to consider that it is precisely the thinness of American citizenship that makes it so valuable to its members. Over time, we have made the trade-off between giving people the choice to take up their citizenship seriously (whether by permitting dual citizenship or just not demanding very much of those who are Americans and Americans only) versus permitting only those who can demonstrate strong likelihood of affiliation to be citizens in favor of the former—a development that has made the institution of American citizenship dynamic and adaptable. The broad jus soli rule, the absence of a condition subsequent on our jus sanguinus rules, the relative ease of naturalization, and the growing acceptance of dual citizenship all reflect an inclusiveness that is at the core of what makes the United States work as a nation of immigrants.

The United States draws its strength not from narrow or thick definitions of community, but from our citizenship’s aspirational quality, or from our nationality law’s ready willingness to incorporate, with minimal fuss those who choose to be part of the body politic . Cases like Afroyim and the demise of rules whereby women who married foreigners lost their citizenship may reflect the demise of strong legally enforced proxies for loyalties, but they also reflect a positive evolution toward inclusiveness, as well as the triumph of autonomy. Loyalty is arguably best fostered through freedom to associate, and the existence of an unencumbered citizenship is arguably the best mechanism for sustaining attachment to a national community in an era when the number of affiliations open to people are more numerous than ever before.

I suspect that you do not disagree with this last statement, Peter. But these questions/observations are both by way of saying that what you describe as a decline may not in fact be the beginning of the end of American citizenship, but rather a realization of its ultimate promise.

The Salience of Territorial Location: Everything Old is New Again

by Jonathan Weinberg

[Jon Weinberg is Professor of Law at Wayne State University.]

Thanks so much to Opinio Juris for hosting this discussion, and to Peter for making it possible. Peter’s is a terrific and thought-provoking book, even if I do disagree with most of it. In this post, I want to talk about some of its empirical bases. Alex has already pointed out that the data show U.S. naturalization rates to be rising, not falling, so I won’t belabor that point. I’ll turn instead to the argument Peter sets out below that our birthright citizenship and naturalization rules increasingly don’t work. With the declining salience of territorial location, Peter tells us, they’re increasingly disconnected from our larger goals as to who ought to be a citizen. Because the legal and the actual boundaries of our national community don’t coincide, Peter writes, that community is becoming increasingly incoherent.

But is the fit between our citizenship rules and their underlying goals that much worse than in the past? Peter in the book talks about “happenstance Americans”: A child may be born in this country to a visitor, or to an immigrant (legal or illegal) who is here temporarily; that child may move away quickly, following his parents to the country of their birth. Such a person, Peter warns, is a U.S. citizen but has almost no meaningful connection with the United States.

Peter continues that today, children are born in the U.S. whose parents are part of emigrant communities that maintain strong ties with their homelands — “diasporic communities” that “may give the lie to the American tradition of immigrant assimilation.” Globalization has empowered immigrants to the U.S. to maintain their strong ties with their home countries, so that children born and raised in the United States “may pursue their whole lives within their diasporic communities, defined not by geography but by social ties, even if they episodically venture into the larger national community otherwise defined.”

Indeed, Peter argues, the five-year rule for naturalization no longer assures that new naturalized citizens will have absorbed the American identity through the activities and exposures of everyday life. Immigrants can lead their entire lives in “large, geographically concentrated immigrant communities . . . . Such immigrants might as well be back home for purposes of assimilating the American identity. They are, in effect, in a different part of their homeland, one that happens to be physically located in the United States.”

The factors Peter identifies as leading to “happenstance” or uncommitted Americans, though, aren’t unprecedented products of globalization. Peter talks about circular migration as a source of happenstance Americans; a migrant might have an American child during the brief U.S portion of her sojourn and then raise the child elsewhere. But circular migration has long been with us. In the nineteenth and early twentieth centuries, more than half of all immigrants to the U.S. from southern Italy ended up returning home, at least for a time. Indeed, according to one source, the proportion of immigrants returning to their homelands in 1900-1920 was one-and-a-half times as high as the rate in 1971-90.

And more fundamentally, transnationalism — the phenomenon of immigrants’ maintaining active involvement in, and ties to, their homelands — isn’t a new thing. Here’s a quote:

The conception of citizenship itself is rapidly changing and we may have to recognize a sort of world or international citizenship as more logical than the present peripatetic kind, which makes a man an American while here, and an Italian while in Italy. . . . The old barriers are everywhere breaking down. We may even bring ourselves to the point to recognizing foreign “colonies” in our midst, on our own soil, as entitled to partake in the parliamentary life of their mother country.

The passage is nicely complementary to Peter’s concern that, by virtue of the ease of international travel and communication, insular “colonies” of migrants may be so strongly tied to their homelands as to lack primary identification with the United States. The speaker? Gino Speranza, secretary of the Society for the Protection of Italian Immigrants, in 1906.

We’re heard it before about aliens and their children forming insular, self-isolating communities within the United States. Justice Field in Chae Chan Ping talks about Chinese immigrants as having “remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country,” unwilling or unable “to assimilate with our people or to make any change in their habits or modes of living.” Kobayashi points to Japanese-Americans’ asserted inability to “assimilat[e] as an integral part of the white population.” And though lots of folks were more sanguine about European assimilation, you see the same sentiment in connection with the enactment of the restrictionist sentiment of the 1920s. A 1924 newspaper editorial, thus, explained that restricting immigration was desirable precisely because it would “result in the gradual elimination of foreign communities on American soil. There will be no more ‘little Germany,’ ‘little Russia,’ ‘little Poland’ or ‘little Italy.'”

Natch, all those folks were wrong. Immigrants to the United States in the early part of the twentieth century abandoned their mother languages and shifted to (English) monolingualism more quickly than in any other country. To the extent that they didn’t assimilate, their children and grandchildren certainly did. Is there reason to think that Peter’s concerns are better-founded? Modern advances in communication and travel have made transnational ties easier in ways that weren’t thinkable a hundred years ago. But the data don’t support the notion that the affiliations and acculturation of children born into immigrant communities are very different now.

Let’s start with language acquisition. Peter suggests that language acquisition means less in the modern world, when so many immigrants already speak English, than it did a hundred years ago. But a lot of immigrants today enter without language skills; two-thirds of recent immigrants from Latin America, in the 2000 census, reported that they spoke English “not at all” or “not well.” Where the parent doesn’t speak English, the child’s acquisition of English both evidences and makes possible her integration into the larger society. Studies consistently show language acquisition in the second and third generations of modern immigrants to be comparable with that in earlier waves.

Or look at intermarriage. Peter in his book mentions Mexico, the Dominican Republic, Colombia, El Salvador, Cuba, India, China, the Philippines and Korea as potential diaspora homelands. Those nine countries, plus Vietnam, dominate the immigrant flow here from Latin America and Asia. If immigrants to the United States from those countries find themselves in insular, imperviously sealed communities that maintain that insulation across multiple generations, you’d expect to find children of Latin American and Asian immigrants marrying within those communities. So far at least, that’s not especially so. A study of 1990 census data showed nearly two-thirds of U.S.-born Asians marrying non-Asians, and nearly 40% of U.S.-born Hispanics marrying non-Hispanics.

To be sure, immigrants today often live in coethnic enclaves, just as immigrants in the past did. But as Alex wrote a few years back, a “review of the social science research literature on immigration reveals that assimilation . . . appears to be progressing roughly as it always has.”

Bottom line: I’m unconvinced that new globalization trends cause territorial location to be any less salient to citizenship than it ever was. In my next post, I’ll try to talk about American identity and the meaning of citizenship.

Citizenship: Down But Not Out

by T. Alexander Aleinikoff

[T. Alexander Aleinikoff is Dean and Professor of Law at Georgetown University Law Center, and the author of Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard University Press 2002).]

Thanks to Opinio Juris for the chance to offer up a few thoughts on Peter’s provocative book.

Beyond Citizenship argues that the idea of citizenship as deeply meaningful, exclusive and tied to a particular nation state is quickly fading. The traditional U.S. model has been based on “the territorial premise.” But that premise is under serious pressure from the rise in global migration, dual nationality, and the thickening of diasporic and transnational communities. As “[g]lobalization makes possible the intergenerational maintenance of nonterritorial ties,” we are likely to see the “diffusion of identity to various nonstate, and in many cases, nonterritorial forms of association.” Peter’s is a narrative of the irreversible decline of American national identity, as reflected in its citizenship regime:

[T]erritorial presence and strong norms against dual citizenship played crucial functions in maintaining a coherent citizenry coinciding with community on the ground. Those backstops are no longer available to shore up community now breached by the global diffusion of culture and democratic governance.

On this view, national citizenship is de-privileged; it is just one form of association among many. Not only does citizenship offer less, but non-national associations appear able to offer much of what citizenship has traditionally promised.

Peter sees the coming (or already present) world of migration as quite different from the traditional straight-line view of immigrant to resident to citizen. Twentieth century models of the nation-state and citizenship will be increasingly compromised. Our current and future world is one of overlapping legal authorities, and a world of diasporas, migratory circuits, overlapping communities, and dual nationality. But there are problems here as well. First, he overstates the weakening of the U.S. citizenship and national identity. The most recent data (released after publication of the book) shows a sharp rise in naturalization rates. Furthermore, there is no strong evidence—and Peter’s book is largely free of empirical support for his claims—that dual nationality, birth abroad, or citizenship for the children of temporary residents in the U.S. has weakened U.S. citizenship—or that the number of persons in these various categories constitutes a substantial portion of the U.S. population.

Second, the transnational trends that Peter identifies may be working on behalf of but a small—and privileged—slice of humankind. Catherine Dauvergne argues that “[f]or the privileged subjects of globalization, citizenship is becoming more flexible, more states tolerate dual citizenships . . ., formal inequalities are being worked out of citizenship laws, and citizenship requirements are more perfunctory.” However, for those “already disadvantaged and excluded . . . citizenship law is becoming increasingly exclusionary. For illegal migrants, the story is one of citizenship with a vengeance.”

Finally, Peter’s theoretical claim is problematic. He argues that a weakening of national citizenship will ultimately bring it down to the level of other kinds of group associations in civil society. But while it is perhaps true that the nation-state form is evolving (even declining), what is ascendant is not a set of other non-political associations; we are not witnessing the rise of world anarchy or the end of history. Rather, we are likely to see the development and strengthening of other political institutions—regional, transnational, some global. These political organizations, institutions, associations—exercising what will be perceived as legitimate legal and coercive authority—will have (and need) members. That is, a decline in citizenship in the nation-state is likely to be accompanied by new kinds of citizenships associated with “polities” that tax and spend, organize armies and police, establish courts, and promulgate what are perceived to be binding norms. There is no reason that standard accounts of citizenship that link governance and a people cannot be stated at the appropriate level of abstraction to apply to new forms of political association.

This all is not to detract from the salience of Peter’s perspectives to important debates on citizenship. The book presents a serious and distinctive theoretical challenge to the institution of citizenship in the state.

Book Roundtable: American Identity in the Face of Globalization

by Peter Spiro

Thanks to my fellow co-bloggers here at Opinio Juris for the chance to discuss my book Beyond Citizenship: American Identity After Globalization. It’s been an honor (and a lot of fun) to be a part of this project with all of them in this ever-changing young medium. Thanks also to Julian for introducing the discussion on Thursday. I’ll look forward to comments on the book from our guest bloggers and readers over the next couple of days.

I thought I’d lead off with three developments each of which poses a serious challenge to American identity going forward.

1. The declining salience of territorial location. This is a truism of globalization. But it poses a particular threat to the institution of U.S. citizenship. In the face of a contested identity, territorial location has done a lot of work as a proxy for measuring organic membership. Citizenship has been mostly about being here. This is most obviously the case with birthright citizenship: if you are present in the US at the moment of birth, you get citizenship for keeps. In the past, that might have made sense, to the extent that location at birth evidenced a life trajectory. Today, that’s less the case. Think Yaser Hamdi.

Likewise, at the core of naturalization requirements — since 1790 — has been the durational residency requirement. Today it stands at five years. The theory here is that whatever it means to be American, you’ll pick it up through the contacts of everyday life. That seems less true today. One can live a life disconnected from one’s national surroundings like never before, especially in the insulated communities of the new diasporas.

2. The transnational dispersion of democratic values and popular culture. America used to be distinctive in its constitutional values. That bolstered civic notions of American identity. In the absence of religious, ethnic, even linguistic definitions of American identity, we were forged together in our constitutional faith, and that distinguished us from most everyone else.

That of course is no longer true today. Not everyone’s a democrat, but democracy is now a global phenomenon. It’s no longer enought say that Americans are bound together — and set apart from everyone else — by their system of government.

As for cultural definitions of American identity, they don’t work very well either today, if they ever did. There’s no dataset that’s shared only by the national community. When it comes to historical knowledge, it’s been shown that students even at elite colleges like Harvard and Brown would miss the kinds of questions asked on the naturalization exam. When it comes to popular culture, arguably a more broadly shared iconography, the problem is that everyone else shares it, too. There are a lot of people who live in France, Japan, and for that matter Venezuela and Iran (where Baywatch enjoys top ratings) who know much more about American popular culture than I do. Once everyone’s an American, no one is an American.

3. The increasing prominence of transnational memberships in identity composites. Americans have always enjoyed a wealth of memberships in associations other than the state, something noted by observers dating back at least to Toqueville. It’s central to the notion of pluralist democracy. A core tenet of the pluralist ethic is that non-state memberships will be subordinated to membership in the state, which as an umbrella organization supplies the social glue. As Michael Walzer observes, “A citizen, we might say, is a [person] whose largest or most inclusive group is the state.” Most Americans would buy this characterization without giving it much thought, as a matter of reflex.

But it doesn’t work in a world of genuinely transnational affiliations. Many Americans now belong to organizations that are not exclusively or even primarily American in composition. Take an American who is also a member of Greenpeace, Amnesty International, and the Catholic Church, is an employee of Toyota and a woman. For good measure, one might throw in an additional nationality, so that the individual is also a citizen of, say, the Dominican Republic. That is not an exceptional profile, as parts of which the transnational elements are significant. Can we say of this person that her “largest and most inclusive group” remains America?

Yes, the United States remains the most inclusive of these groups in the sense that it will include anti-environmentalists and those for whom human rights are not important, members of other religions, employees of other companies (as well as the unemployed), and men. But that is totally circular – these other groups are all more inclusive than the United States insofar as they are not limited to U.S. citizens. In other words, America is no longer the most inclusive group that many Americans belong to, or at least it is no more inclusive than many others groups of which we are members. That brings citizenship down off its normative pedestal.

I argue in the book that these developments spell the irreversible decline of citizenship and national identity. We’re already seeing that to the extent that citizenship hardly makes a difference any more, in the sense that there’s almost no differential in the rights and responsibilities of citizens and noncitizens. Much as Americans might like to reinscribe the meaning of citizenship, out of a powerful sense of nostalgia, if nothing else, globalization will overwhelm efforts to revive national community.

Is It Time to Invade Burma? (Is It Time to Invade Georgia?)

by Chris Borgen

U.S. Law Professor “Demands” to Represent Iran in Case Against israel

by Julian Ku

Guantanamo’s Collateral Damage

by Peggy McGuinness

How Do You Interpret the Last-in-Time Rule?

by Roger Alford

Opinio Juris Book Discussion: Peter Spiro’s Beyond Citizenship

by Julian Ku

Next week we’ll be hosting a discussion of our own Peter Spiro’s Beyond Citizenship: American Identity After Globalization (Oxford University Press). As readers of this blog know, Peter has many wonderful insights into the way that citizenship and national identity interact in a globalizing environment. (His latest post on Pamela Anderson is just the latest lighthearted example of his much larger project).

The book uses citizenship practice as a lens on national identity, with discussions of birthright citizenship, naturalization, and plural citizenship, as well as of citizenship’s place in defining rights and obligations, all in Peter’s trademark accessible style. We are very fortunate to have four distinguished guest commentators for the event: Alex Aleinikoff, John Fonte, Cristina Rodriguez, and Jonathan Weinberg. Peter will lead off and respond to comments. We’ll look forward to what is sure to be a lively and fascinating discussion!

A Sensible Argument Against a Corporate Human Rights Treaty

by Julian Ku

Here Comes the U.N. Convention on the Rights of Persons with Disabilities

by Julian Ku

Melzer, Targeted Killing in International Law

by Kevin Jon Heller

McCain Equates International Law (in Constitutional Interpretation) as an “Airy Construct”

by Julian Ku

How Do You Chip out of a Mortar Hole?

by Kevin Jon Heller

Pamela Anderson Becomes a US Citizen (But a Member of the Superclass She’s Not)

by Peter Spiro

Reason #856 to Love New Zealand

by Kevin Jon Heller

ICTR “Disowns” Human Rights Watch

by Kevin Jon Heller

Medellin Execution Date Set

by Duncan Hollis

Are Evolving Standards of Decency a One-Way Ratchet?

by Roger Alford

Pope Benedict: International Law Theorist

by Julian Ku

Is There an International Law Right to “Autonomy”?

by Julian Ku

The Role of Precedent at the WTO

by Roger Alford

The Real War on Terrorism

by Julian Ku

John Yoo and the Justice Case — Post at Balkinization

by Kevin Jon Heller

Fine Hiking (Never Mind the Troop Movements)

by Chris Borgen

Washington & Lee Announces New First-Year Transnational Law Course

by Roger Alford