Greetings to Volokh Co-Conspirators, and thanks to Eugene for the opportunity to post a few thoughts on my new book, Beyond Citizenship: American Identity After Globalization. I’m a regular over at the international law blog Opinio Juris, with which I think many of you will be familiar, but the book is oriented more to constitutional and political theory, so I’m glad to have the audience here as well.
The book is very much intended to provoke. The bottom line, only somewhat overstated: American identity is unsustainable, and citizenship practice proves it.
Citizenship practice in the sense of the legal regime governing the status of citizenship: the book examines birthright citizenship, naturalization, dual citizenship, and the rights and responsibilities that singularly attach to citizenship (or not), all in both historical and contemporary perspective. From there it confronts the prevailing theories of American national identity, and finds them all wanting in the face of globalization.
A major theme is the declining significance of territory and how that undermines a central premise of America’s citizenship regime. The acquisition of citizenship has been correlated with territorial presence. That’s most obviously true of birthright citizenship: if you are born in the territory of the United States, you are a citizen for life, no other questions asked.
But it’s also true about naturalization. The core requirement for acquiring citizenship after birth has been residence, dating all the way back to the first naturalization statute in 1790. After bobbing around in the Republic’s early years, the default durational residency requirement has been five years, reduced most notably to three in the case of spouses of US citizens. Naturalization applicants must also show English language capacity and memorize some facts of US history and government, but those requirements are subject to various waivers. By contrast, applicants can’t game the residence requirement.
So citizenship is mostly about being here.
That made sense as a historical matter. Whatever it has meant to be American, one can have been expected to discover, learn, and incorporate it through the contacts of everyday life. In the context of birthright citizenship, the premise has been that birth in the United States would translate into a life in the United States. With naturalization, the immigrant would have been expected to pick up American traits, of culture and politics, through the five years residence. The reduction for spouses fits in to this approach: you get it more quickly through pillow talk than out on the streets.
Today, however, the territorial premise looks shaky. Why assume that the person born here will spend the rest of her life here? The rule of jus soli is a strange one, if you think about it: why should location at the instant of birth determine one’s status for life? In an era of growing circular migration flows, more individuals are settling in countries other than that of birth. (Insert Yaser Hamdi as poster child here.)
As for naturalization, it is now possible to be here, and not be here. One can as a member of many insulated immigrant communities be physically proximate but no closer than one was before entry. Globalization has transformed the geographies of human community.
In these respects, the birthright citizenship and naturalization regimes are overinclusive. Many become members who have no organic connection to the existing citizenry.
That might make for a strong argument for raising the bar to citizenship. But as I’ll discuss in my next post, that’s not likely to happen, nor should it. Either way, the national community becomes increasingly incoherent, with important implications for the nation-state as a location of governance going forward.