Citizenship: Down But Not Out

by T. Alexander Aleinikoff

[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.

Book Roundtable: American Identity in the Face of Globalization

by Peter Spiro

Thanks to my fellow co-bloggers here at Opinio Juris for the chance to discuss my book Beyond Citizenship: American Identity After Globalization. It’s been an honor (and a lot of fun) to be a part of this project with all of them in this ever-changing young medium. Thanks also to Julian for introducing the discussion on Thursday. I’ll look forward to comments on the book from our guest bloggers and readers over the next couple of days.

I thought I’d lead off with three developments each of which poses a serious challenge to American identity going forward.

1. The declining salience of territorial location. This is a truism of globalization. But it poses a particular threat to the institution of U.S. citizenship. In the face of a contested identity, territorial location has done a lot of work as a proxy for measuring organic membership. Citizenship has been mostly about being here. This is most obviously the case with birthright citizenship: if you are present in the US at the moment of birth, you get citizenship for keeps. In the past, that might have made sense, to the extent that location at birth evidenced a life trajectory. Today, that’s less the case. Think Yaser Hamdi.

Likewise, at the core of naturalization requirements — since 1790 — has been the durational residency requirement. Today it stands at five years. The theory here is that whatever it means to be American, you’ll pick it up through the contacts of everyday life. That seems less true today. One can live a life disconnected from one’s national surroundings like never before, especially in the insulated communities of the new diasporas.

2. The transnational dispersion of democratic values and popular culture. America used to be distinctive in its constitutional values. That bolstered civic notions of American identity. In the absence of religious, ethnic, even linguistic definitions of American identity, we were forged together in our constitutional faith, and that distinguished us from most everyone else.

That of course is no longer true today. Not everyone’s a democrat, but democracy is now a global phenomenon. It’s no longer enought say that Americans are bound together — and set apart from everyone else — by their system of government.

As for cultural definitions of American identity, they don’t work very well either today, if they ever did. There’s no dataset that’s shared only by the national community. When it comes to historical knowledge, it’s been shown that students even at elite colleges like Harvard and Brown would miss the kinds of questions asked on the naturalization exam. When it comes to popular culture, arguably a more broadly shared iconography, the problem is that everyone else shares it, too. There are a lot of people who live in France, Japan, and for that matter Venezuela and Iran (where Baywatch enjoys top ratings) who know much more about American popular culture than I do. Once everyone’s an American, no one is an American.

3. The increasing prominence of transnational memberships in identity composites. Americans have always enjoyed a wealth of memberships in associations other than the state, something noted by observers dating back at least to Toqueville. It’s central to the notion of pluralist democracy. A core tenet of the pluralist ethic is that non-state memberships will be subordinated to membership in the state, which as an umbrella organization supplies the social glue. As Michael Walzer observes, “A citizen, we might say, is a [person] whose largest or most inclusive group is the state.” Most Americans would buy this characterization without giving it much thought, as a matter of reflex.

But it doesn’t work in a world of genuinely transnational affiliations. Many Americans now belong to organizations that are not exclusively or even primarily American in composition. Take an American who is also a member of Greenpeace, Amnesty International, and the Catholic Church, is an employee of Toyota and a woman. For good measure, one might throw in an additional nationality, so that the individual is also a citizen of, say, the Dominican Republic. That is not an exceptional profile, as parts of which the transnational elements are significant. Can we say of this person that her “largest and most inclusive group” remains America?

Yes, the United States remains the most inclusive of these groups in the sense that it will include anti-environmentalists and those for whom human rights are not important, members of other religions, employees of other companies (as well as the unemployed), and men. But that is totally circular – these other groups are all more inclusive than the United States insofar as they are not limited to U.S. citizens. In other words, America is no longer the most inclusive group that many Americans belong to, or at least it is no more inclusive than many others groups of which we are members. That brings citizenship down off its normative pedestal.

I argue in the book that these developments spell the irreversible decline of citizenship and national identity. We’re already seeing that to the extent that citizenship hardly makes a difference any more, in the sense that there’s almost no differential in the rights and responsibilities of citizens and noncitizens. Much as Americans might like to reinscribe the meaning of citizenship, out of a powerful sense of nostalgia, if nothing else, globalization will overwhelm efforts to revive national community.

Opinio Juris Book Discussion: Peter Spiro’s Beyond Citizenship

by Julian Ku

Next week we’ll be hosting a discussion of our own Peter Spiro’s Beyond Citizenship: American Identity After Globalization (Oxford University Press). As readers of this blog know, Peter has many wonderful insights into the way that citizenship and national identity interact in a globalizing environment. (His latest post on Pamela Anderson is just the latest lighthearted example of his much larger project).

The book uses citizenship practice as a lens on national identity, with discussions of birthright citizenship, naturalization, and plural citizenship, as well as of citizenship’s place in defining rights and obligations, all in Peter’s trademark accessible style. We are very fortunate to have four distinguished guest commentators for the event: Alex Aleinikoff, John Fonte, Cristina Rodriguez, and Jonathan Weinberg. Peter will lead off and respond to comments. We’ll look forward to what is sure to be a lively and fascinating discussion!