Citizenship: Down But Not Out

[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.