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.