The End of America:

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.

Everyone an American, No One an American:

Take six prototypes for puzzling through the contradictions of citizenship and globalization:

1. The child born in San Francisco to a business executive here for three years on an H1B visa who will thereafter return permanently to Italy.

2. The child of a Mexican undocumented alien born in Arkansas who is likely to spend the rest of her life in the United States.

3. The child of an Dominican immigrant born in Washington Heights with both US and Dominican citizenship, who goes to elementary school in Santo Domingo while living with grandparents, inherits property and a business there and ends up voting in Dominican national elections.

4. The child of a Mexican citizen born in Juarez.

5. A tech worker living in Bangalore who's never been to the United States but watches the Simpsons, wears Levis, is employed by Dell, has cousins in the US, follows US politics closely on MSNBC (is a big fan of John McCain), and would eagerly take an oath to uphold the Constitution.

6. A native-born American who moves permanently to Israel after graduating from college.

I left off my first post on my book Beyond Citizenship suggesting that the barriers to citizenship won't and shouldn't be raised. On the politics of birthright citizenship, naturalization, and dual citizenship, see my explanation here. On all three counts, a more restrictive regime is just not in the cards.

On the normative side, for every child of an H1B executive who leaves at age 2 there will be many others who born here who will stay permanently to become organic members of the community, like the child born in Arkansas. If the threshold is raised to exclude such individuals, more members-in-fact will be left outside the citizenship circle. That's a problem of underinclusion. It creates a problem of coherence and raises the specter of intergenerational caste.

As some of you noted in the comments, immigrant insulation isn't a new phenomenon. I think the technologies of globalization change the picture. Diaspora communities may be able to sustain themselves on a transnational basis. With the dramatic rise in the acceptance of dual citizenship, they'll be able to maintain the formal tie as well. So the segmentation could be persistent, as in the Dominican example above. The old model of assimilation may no longer hold.

But here's something that really is new: the underinclusion of members-in-fact outside the territory of the United States.

One of the commenters on my first post pressed the proposition that America is an idea. That's completely consistent with strong civic notions of American citizenship and identity.

At one time, that idea was distinct. No longer. The American idea of constitutional democracy has gone global. That's America's triumph, but it may also be its downfall.

As I ask in the book, if that person in Bangalore wants to take an oath to support the Constitution of the United States, on what grounds can we deny him membership? Indeed, why wouldn't we want to welcome that person to our community. And what of the child born in Juarez, whose interests and identity will be connected to El Paso, Austin, and Washington (perhaps more so than the native-born American who moves to Israel), but who has the bad luck to have been born a mile on the wrong side of the line? On what grounds can she be excluded?

Same thing if we define America in cultural terms. The rest of the world is bathed in American pop culture. (By way of proving the proposition: Baywatch is a top-rated show in even Iran and Venezuela.) As for (somewhat) higher culture, on the other end, it's been shown that most American high school seniors would fail the naturalization test.

So: whatever it means to be American, it's everywhere. But that makes it all the harder to draw the membership line in a meaningful way. The citizenship binary doesn't allow for scalar affiliation. And once community on the ground detaches from membership status, citizenship inevitably decays. As an arbitrary quantity, it will be able to do less work for its members. That explains why the "rights and obligations of citizenship" is already an empty quantity, to which I'll try to turn in my next post.

The Vanishing "Rights and Obligations of Citizenship":

This is a standard refrain of our political discourse, a boilerplate phrase over which we ordinarily have no reason to pause. But (as I describe in Beyond Citizenship) the "rights and obligations of citizenship" have been whittled down to a very small quantity. That reflects and reinforces the diminished meaning of citizenship.

First, on the obligations side, there is a single obligation peculiar to citizenship: jury duty. That's it. Two obligations commonly thought to define citizenship --- military service and taxes --- in fact apply to resident noncitizens as well. Aliens, even undocumented aliens, have to register with the Selective Service. Taxes are extracted largely on the basis of residency, not citizenship (even nonresident noncitizens who have to pay taxes on business interests in the US).

On the rights side, there's only slightly more weight in the citizenship balance. There is the franchise, held out as among the most valuable prerogatives of citizenship. Never mind that about half of voting-age citizens don't bother to cast their ballots. If the vote is thought to equate with political participation, noncitizens have multiple alternative channels to have their voices heard.

For starters, permanent residents can make federal campaign contributions. Noncitizens also have the vehicles of civil society (including powerful churches, unions, and corporations) through which to participate. Many, of course, also have citizen relatives and co-ethnics to advocate their interests through the ordinary political process. And when all else fails, taking to the streets can get the message across pretty effectively, as evidenced by the massive marches in the spring 2006 against proposed immigration reform measures.

There is also eligibility for the federal civil service, which is restricted to citizens (with limited exceptions, including law clerks to federal judges!), and a small number of state public sector positions.

That leaves locational security and some immigration benefits as the most important rights associated with citizenship. If you are a citizen, you are absolutely immune from deportation. As an alien you are less secure. But as a permanent resident alien, you're not that much less secure. Assuming that you stay out of trouble with the criminal law, a green card is the functional equivalent of a passport. That's the salient divide, between legal resident alien and citizen, in considering the meaning of citizenship. But undocumented aliens enjoy a surprisingly level of locational security, too, at least once they're past the border. Interior enforcement is so thin that the average undocumented alien doesn't have much to fear on a day-to-day basis (although admittedly more now than before recent well-publicized raids).

In the book, I chart a historical trajectory in which citizenship has come to mean less over time it terms of what it gives and what it extracts. It was once the case, for instance, that many states restricted land ownership by aliens. Noncitizens were typically barred at the state level from a broad range of professions, including from practicing medicine, accounting, and embalming. Every state in the Union barred aliens from the practice of law. These were significant disabilities that have largely disappeared. On the obligations side, before 1951 aliens could opt out of military service (though at the cost of permanent disbarment from naturalization).

So why not revalue citizenship by infusing the status with a more robust set of rights and responsibilities?

It just won't work. On the rights side, witness the experience with the 1996 welfare reform act, which cut legal immigrants out of important public benefits programs. Within a few years, most of them had been restored. Why? Because there's a general acknowledgment that legal resident aliens are part of the community, too. Another example: even after the foreign influence-peddling scandals of the early Clinton years, proposed legislation to bar contributions from permanent residents went nowhere.

On the obligations side, imagine if you exempted aliens from paying taxes. Who would naturalize at that cost? (To the extent that citizenship does make a significant difference in tax burden — as with US citizens abroad facing estate taxes — it is surely the primary motivation for renunciation.) As for military service, no one really wants to go back to the draft.

That may be the strongest evidence of the diminished condition of citizenship and the state. Dying for your country used to be the paramount obligation of citizenship, what set it apart from other membership organizations, and it was an obligation freely and proudly taken. Today for many the armed forces are a job and not much more (which is by no means to demean those who serve, and those who serve out of patriotism, but judging from recruiting and retention problems they are now a minority). Calls for a return to national service — an important tool for building civic solidarity, as often advocated from the left as the right — have gone nowhere, even in the wake of 9/11 and Iraq. The fact is that most citizens don't feel giving much to their country any more (and most would like to give a lot less, in the form of reduced taxes).

That may be because citizens feel less in common with other citizens. The dynamic then becomes self-reinforcing: to the extent citizenship means less, existing citizens care less about the thresholds to citizenship. But the lower the threshold, the lower the level of commonality, which in turn points towards it meaning less still.

Theories of American Identity (and Why They Are Wanting):

I see four theories of American identity, none of which seem sustainable in the face of the developments I have been describing in previous posts.

The New Nativism: The new nativists sing the praises of an ethnic America, that is, a white one. Their platform hardly concedes the value of admitting any outsiders as immigrants, much less as citizens, for foreigners are taken to represent (for the most part) the dilution of this putative historical purity.

There's a lot of historical support for this position (see Rogers Smith's Civic Ideals) and it fits with the logic of citizenship. Like an exclusive club, the greater the barriers to entry the more valuable the membership. Insofar as citizens in a particular polity do share ethnic, religious, and linguistic roots, the more significant the resulting status is likely to be.

But the future this isn't. According to the 2000 census, almost 25 percent of the those resident define themselves as something other than white, and more than 15 percent speak something other than English as their first language. New nativism has few takers among either policymakers or intellectuals. New nativism just wouldn't work in today's world, short of installing a limited circle of artificially privileged insiders. One can't actually stop the flow of immigrants; new nativism would permanently subordinate these newcomers. The new nativist agenda would lead to something not so different from ancient Athens, in which a small group of individuals comprised the blood aristocracy of citizens, the rest relegated to legally lesser status.

In the end, the new nativism is finding its place somewhere other than the state. Consider the anti-statism of white militias. It's only through a kind of separatism that their conception of America can be vindicated. The new nativists are becoming contemptuous of the very institution of national citizenship, as embodying a different America than the one they seek.

Conservative Nationalism: Unlike the new nativists, conservative nationalists are accepting of newcomers so long as those newcomers accept the old assimilationist premise of American immigration. Conservative nationalists do not shy from asserting exclusive allegiance to an "American way of life," and take the "Americanization" movement of the early twentieth century as the model of incorporation. Conservative nationalists take as self-evident the continuing primacy not only of the nation-state as the primary institution of governance, but also of the United States as enjoying primacy among them. Unlike the nativists, however, they allow that the American ideal can be successfully adopted by immigrants regardless of race or previous nationality. (See here, here, and here for book-length elaborations.)

But conservative nationalism can't withstand the pressures of globalization. Take dual citizenship. Conservative nationalists hew to such old world comparisons of the status to polygamy and the impossibility of "serving two masters." But they can't explain exactly dual citizenship poses concrete harms in today's world (especially as more of their friends and relatives acquire additional nationalities). Beyond vague suggestions that the renunciation oath actually be enforced, conservative nationalists don't have a recipe for how the U.S. can police dual citizenship.

Conservative nationalists preach a thick assimilationism, one that welcomes newcomers but only insofar as they conform to putative American traditions. But conformity is so little a part of American society today, at least in any distinctively American way, as I explained in an earlier post. It is thus improbable that American citizenship will be revived on conservative nationalist terms; the clock can't be turned back.

Multiculturalism: Multiculturalism elevates diversity over unity, with "the politics of difference" as rallying call. In multiculturalism some forms of group membership qualify as identities, and some of these identities are said to entitle group members to differentiated treatment. That is, membership in some groups affords a legal status different from that held by non-members.

But as much as it centers groups, multiculturalism has been very much oriented to the state. Multiculturalism focuses on what group membership will get you by virtue of your national membership, what the nation owes the group. Like affirmative action.

In other words, multiculturalism depends on the existence of national community. But the perspective offers no rationale for the national community, nor can it survive its dissipation. Multiculturalism reifies the state, leaving its existence unexamined. It undermines the possibility of national community insofar as it locates primary identity somewhere other than the state and offers no substitute basis for its persistence, no commonality by which to bind its members.

Liberal nationalism: The liberal nationalists retreat to a more defensible perimeter, with a thin and inclusive articulation of American nationality centered in political values. This sets the liberal and conservative nationalists apart -- where the conservatives would assert thick cultural parameters to American nationality, liberals would pose few if any. As Michael Walzer puts it, "If the manyness of America is cultural, its oneness is political."

Liberal nationalists look to take the best qualities of the nation-state as a form of human association and put them to work in the advancement of liberal ideals. Liberal nationalists, as Bonnie Honig notes in Democracy and the Foreigner, "read democratic theory according to the genre conventions of a popular or modern roman, as a happy-ending love story."

But liberal nationalism cannot reconcile its tenet of inclusiveness with the inherent exclusiveness of citizenship regimes. VC commenters may have an easy time deriding the inclusion of the democracy-affirming individual in Bangalore (intended as a thought experiment only!), but liberal nationalists have a harder time explaining his exclusion.

Nor can the pluralist strand of liberal nationalism process the new transnationalism of civil society. 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 Walzer observes, "A citizen, we might say, is a [person] whose largest or most inclusive group is the state."

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 the Catholic Church, the World Wildlife Fund, does volunteer work for Oxfam, is an executive at Toyota and a woman. For good measure, one might throw in an additional nationality, so that the individual is also a citizen of, say, Italy. 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 relief work is not important, members of other religions, employees of other companies, 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. In my final post tomorrow, I'll take up the "beyond" in Beyond Citizenship. What to do in the face of diminished identification with the state?

America, the Beautiful (What Comes After?)

Citizenship is a tough subject to address as an academic or otherwise. The popular ivory-tower conception of academics notwithstanding, most have nationality and are proud of it (liberals and conservatives alike). Most academics addressing American citizenship as an institution are themselves American. That makes it tough to have the sort of dispassionate discussion one might be able to have with respect to, say, copyright law. Everyone's got something invested in citizenship. Nobody's "against" it, in contrast to the related but distinct issue of immigration policy; it's a consensus institution.

Which says a lot about its continuing vitality, and about the continuing vitality of American citizenship and national community in particular. Citizenship will be around in some form for a long time to come. There's a lot of which to be proud in America's history. The nation-state is a massive, perhaps unparalleled, achievement in the span of human history. And the United States surely marks its highpoint.

But that doesn't necessarily make it for all time. There's a natural tendency on the part of humans (and especially academics) to believe that they live in interesting times (even at the same time that it's held out as a curse). But even discounting for that tendency, we may be witnessing watershed developments that point away from the state and towards other forms of association. It seems to me that academics can add some value by looking beyond immediate policy horizons to grappling with the shift and its many implications.

So what lies beyond citizenship in the state? One thing's clear: it won't be some sort of happy-go-lucky world citizenship. Community is inherent to our existence but community isn't possible without difference. People will continue to distinguish themselves from each other on a group basis, and groups will find themselves in conflict. You can think of the Westphalian system as a sort of multiculturalism on a global scale, with sovereignty as a shield for protecting group difference. The new order we may be moving towards might be a more familiar sort of multiculturalism, beyond the confines of the state.

Can the lessons of citizenship in the state translate to new forms of association (or old ones, like religion) whose importance is rising relative to states? Even if we aren't moving towards one-world government on the model of the state, how can citizenship translate to newly consequential supranational institutions? I close with some thoughts on that in Beyond Citizenship, and that's where I'll close here.

I've enjoyed blogging this week at VC, and thanks to commenters (excepting those who accused me of treason!) and to Eugene for hosting me here.