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

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!

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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?

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.

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.

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.

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.

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.

[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 ac