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.

http://opiniojuris.org/2008/05/15/tightening-the-citizenship-circle-legally-not-going-to-happen/

3 Responses

  1. As a kind of an aside, Peter you may be interested in the 2004 ‘citizenship referendum’ here in Ireland. Prior to this we had complete jus soli citizenship, which was enshrined in our Constitution. BY this referendum – which was extremely racially motivated (on which more in a second) – an overwhelming majority of the people approved proposals to abolish jus soli citizenship in Ireland. The referendum came about because of representations that people were arriving in Ireland in order to give birth so that their children would have Irish (and, of course, EU) citizenship [the Masters of the main maternity hospitals by the way largely refuted this claim). In addition, there were ‘fears’ that asylum seekers and non-EU citizens were having children here in order to try to avoid deportation on the basis of family rights in the Constitution and the ECHR. Now, it was an extremely populist move – Constitutional amendment is exclusively by popular referendum here – and a sign of how difficult Ireland has found it to negotiate the move from an emmigration society to an immigration society. The US, on the other hand, has historically been an immigration society so I, like Peter, would be v surprised if something analogous happened there.

  2. Fiona, Yes, thanks for this reminder. We’d also probably witness something similar here in the US if constitutional reform were by referendum. I’m not sure that detracts from the observation that jus soli is constitutionally entrenched, though.

    I’d be curious: any pushback to restore full jus soli in Ireland? Any popular sense that the change was a mistake?

  3. Peter – no, none at all unfortunately. The only time the majority of people raised an eyebrow was when it was suggested to them that removing jus soli may have made abortion legal if the unborn child is a ‘non-citizen feotus’ (yes, seriously….) – depending on whether we considered the protection of the unborn child in the Constitution as being based on citizenship or not. But the eyebrows remained raised for only the shortest period of time imaginable…Fortress Ireland was clearly more important…

    Of course, the referendum only went to the People following a political decision to actually propose such a Constitutional change. Thus there was a real sense of moral panic about it all, especially since empirically there really wasn’t any problem as the law stood.

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