Erosion Does Not Mean Decline

[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.