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.
I can only hope you're not serious here. The Founding Fathers laid out ideas/coda to achieve a society that enabled the highest ideals/aspirations of Man, yet designed realistically by his limitations.
It was NOT about 'being here'.
You could make a MUCH better case regarding citizenship participation rates. Still not an incredibly strong case, but much better than the one you made (which is pretty darn weak).
I recognize the issue, and I acknowledge that it is something that can't simply be ignored... but that is primarily due to the 'edge' cases, which will need to be resolved in a reasonable and hopefully systematic sense.
Since the most important meaning of "citizenship" is shared commitment to our Constitution and our public virtues, perhaps the takeaway is that "native" Americans (not "native Americans") should have to pass the same test before *they* can become citizens.
-- to Elliot Reed: one major difference is the possibility of intergenerationally sustained ties to homeland communities. The technology of globalization enables (by an order of magnitude) the possibilities for insulation. Dual citizenship plays into this in important ways: now you can maintain the formal tie with the homeland as well as the socio-cultural one.
-- to M: read Sassen's work closely, and you'll see that she sees a qualitatively different situation here, one of (as she calls it) "unsettlement". Remember, her first big book was called "Losing Control: Sovereignty in an Age of Globalization."
-- to Chris Muir: very true, but it was still mostly about being here. Other than an oath, good moral character, and white skin, residence was the only threshold to citizenship in the original naturalization statute. Granted, that was a period in which oaths meant something. But the assumption behind the original statute (discussed in my book) was one of absorption by proximity.
America isn't a place: it's an idea.
As I grade a batch of unimpressive Intro. to American Government exams by "The Dumbest Generation," I must agree.
If the alternative model is elective full citzenship via a Starship Troopers model of voluntary community service, well that's fine by me. :)
America isn't a place: it's an idea."
I'm sure that'll be a great comfort to you when we're all speaking Spanish.
I was wondering whether you were going to address this particular point. Assmilation becomes less important when the "old country" and its culture are just a phone call or mouse click away. Perhaps even more significantly, 21st century media has also enabled what might be called a "cafeteria culture", in which everyone - immigrants and natives alike - can create their very own cultural experience, picking and choosing from any number of sources from all over the world. This may be the final triumph of cultural freedom, but it comes at a steep price: the demise of coherent nations defined by culture.
In other words, if you and I are right, then what we're talking about isn't just the end of America as a nation-state - it's the end of the very concept of the nation-state.
That's funny I always thought America was a sovereign nation state with boundaries. If it's just an idea then everyone and anyone can be an American. I suppose that means anyone and everyone can enter the territory with no questions asked and claim whatever legal benefits accrue to being an American. Of course that makes the US something like a patch of water on the high seas or a patch of ground in Antarctica. Is that what you mean?
American is particularly vulnerable on this score, especially with resoect to instrumental citizenship (giving rise to what I call a nation of "second choicers"). Unlike other nations, there's not much of a core (as for "America as an idea" - I'll post on that tomorrow). But the logic -- and that's really what I'm working from, the logic of globalization -- applies to the state as an institution, and not just the American state.
M has given me a welcome excuse to refresh my acquaintance with Sassen's work. If I remember correctly, she (among others) does in fact argue that there's nothing much new here -- but that it's the Middle Ages, not earlier twentieth century, that supplies the historical predicate.
Also, it's not clear to me what the impact of "increasing globalization" is on your average working class immigrant. Cheap international phone calls and email are nice, but they hardly replace your entire local social group. Maybe they can go back to the old country to visit, but they won't be able to take really extended trips because of the residency requirement. So it seems to me that there will still be some substantial interaction with locals, who may be mostly from your country, but are they really more insular now than in the past?
You know, just for your sake, I'm crossing my fingers &hoping we *are* all speaking Spanish.
I would rather have my country run by civic-minded Hispanic immigrants than by redneck bigots.
Which parts of Latin American governance are you most looking forward to importing?
give me the bigots
In any case, it's phenomenally unlikely that Spanish would replace English. Typically the language spoken by the rich and powerful (who are English speakers in this case) wipes out the language of the poor/weak, rather than the other way around. Spanish-speaking immigrants have a lot more incentive to learn English than English speakers have to learn Spanish, which is why large numbers of Spanish-speaking immigrants bother to learn English, while few English-speaking native-born Americans bother to learn Spanish (except for maybe a few years in high school, after which they don't bother to keep it up).
Your contempt for genuine Americans is noted.
"over two hundred years of white bigots makes a success; then you have mexico.
give me the bigots"
Your recognition of reality is noted. :)
"Giving citizenship to the child of people here illegally is something that can and should be changed. I see no reason for it and much to said against it. Taken to it's logical extreme we would grant citizenship to a child borne of a member of an invasion force."
In fact, we do that with every 'anchor baby' born on our soil.
"Assmilation becomes less important when the "old country" and its culture are just a phone call or mouse click away. Perhaps even more significantly, 21st century media has also enabled what might be called a "cafeteria culture", in which everyone - immigrants and natives alike - can create their very own cultural experience, picking and choosing from any number of sources from all over the world. This may be the final triumph of cultural freedom, but it comes at a steep price: the demise of coherent nations defined by culture. "
The old concept of America as 'melting pot' worked in a time and place where people genuinely sacrificed to come here, when they gave up their ancestral connections, learned English, converted to Christianity, and so on; they were changed by America instead of only changing it. What resulted was the greatest and noblest society in the history of the world, a melting pot where the dross of every culture was boiled away and only the best elements were kept. As you point out, that doesn't happen anymore; people come to America and keep all their old connections; there are places along the border in Texas where you could live for generations without knowing a word of English.
If America is to survive as a nation and as a culture, we need to revitalize the old concept of Blut und Boden. Not in the racist sense, of course, but we need to strip out all the multicultural 'all cultures are equal except for white male Americans' rubbish polluting our society. We need to teach our children - and the children of immigrants, if we have to permit them in our schools - that American culture is morally superior to other cultures, and that being born and raised American is something to be proud of.
How do you define being here illegally? Would we retroactively strip a child of American citizenship if say, it turns out his mother was an international student illegally working a part time job (happens more than you might think) at the time she gave birth?
It also seems there is a real possibility of creating stateless children who wouldn't have a legal right to reside anywhere. Would we just let them live in the U.S. as refugees rather than citizens?
Finally, the reason for it, aside from the fact that it is a firm legal rule not subject to the latest bureaucratic whimsy, is to avoid creating several generations of an immigrant underclass both with limited civil rights and limited attachment to American life.
Globalization has been an increasing trend now for some decades, but putting the cart before the horse tends to be counter productive. For example, like increasing curves in general, as applied to populations, they very much tend to level off (e.g., Malthus's theorized population exponentiation curve compared to the a merely arithmetic curve associated with food production) or are otherwise attenuated or "accomodated" by various other offsetting trends in terms of their predicted significance. Again, Malthus is a noteworthy touchstone here. Horse, first, then the cart.
As a provocative volume it sounds intriguing, it's generally good to think in a well considered manner about the future - but it also sounds as if some advocacy and ideological interests are, implicitly and/or otherwise, afoot. I also wonder about philosophical considerations and assumptions; as humans, we are after all temporally and spatially oriented, no matter how much we travel and communicate around the globe.
I know we do that and we should stop.
"How do you define being here illegally?"
Someone not on a valid tourist visa, without a residency permit? I don't see any problem here.
"Would we retroactively strip a child of American citizenship if say, it turns out his mother was an international student illegally working a part time job (happens more than you might think) at the time she gave birth?"
Yes we would. That which is obtained through fraud should be forfeited. That's one reason we have punitive laws-- deterrence.
"It also seems there is a real possibility of creating stateless children who wouldn't have a legal right to reside anywhere."
It really sucks when you break the law. Let the UN handle it, they love this kind of thing. You might as well say the US should provide a home for all stateless people. I don't see why we have this obligation.
I was not at all assumming you'd be oriented along some simple or standard axes since this is, presumably, a decidedly future oriented volume reflecting some appreciable thought and learning and a disciplined effort. Too, as with your own design, in part I was being provocative, though I would hope in a fruitful and fully warranted manner, respectful of the subject matter. That subject matter is, after all, reflective of no mean or narrow scope and import. (Likewise and in general, I'm wary of modernity's seemingly recurring tendencies wherein ideas - often supported with some philosophical idealism - outstrip real world considerations.)
More specifically, yes, the fact we are spatially as well as temporally oriented does not inherently suggest we are so between the 49th parallel and the Rio Grande. But in substantial part the considerations at hand positively require that we think of specific people, not people in the abstract, and some portion of the world's population is so oriented, much as many others are not so oriented (stressing both what we are and what we are not, in spatial and temporal terms). I strongly suspect there is ontological significance at play here, though admit that's a general and intuitive sense only at this stage. Still, for its provocative and other advertised qualities, I'm much tempted to purchase the volume, the subject matter alone is intriguing and, imo, positively demands a provocative approach, properly conceived.
Globalization will never succeed in the U.S.A. unless:
(1) all goods and services are provided union-only;
(2) employee unions are global in all respects.
It is not rocket science to figure-out a middle-class will NOT exist when "outsourcing" gets the job done non-union at less than poverty wages w/no benefits whatsoever.
In a nutshell, absent a middle-class, there is no U.S.A., only chaos beyond anything you could ever remotely comprehend.
As it stands, the economy is already tanked, foreclosure rates seem circa-1930 and abrupt climate change may well result in mass migration of humanity to higher, arid ground the moment the polar ice breaks away, melts and causes the sea-level to rise.
Here's a plan:
(1) revert to 91% taxation on America's highest earners;
(2) revert to import taxes to a level American consumers will choose to buy cameras made in Rochester and shoes made in Boston;
(3) rebuild America's critical infracture in a manner deleting oil from the equation altogether;
(4) discontine learning/teaching/testing to A/B/C/D;
(5) require Article III players to undergo neuro-psychological testing prior to appointment and during tenure.
You seem to delight in the possibility of opening up a legal can of worms without thinking through all the consequences as a responsible adult. And the children of illegal immigrants as an objective fact have not broken any laws.
Any non-citizen illegally on US soil is breaking the law with every breath he takes, and deserves the consequences thereof. This includes the children of illegal immigrants, should the law - God willing - be changed to make US citizenship hereditary and only hereditary.
(1) revert to 91% taxation on America's highest earners;
(2) revert to import taxes to a level American consumers will choose to buy cameras made in Rochester and shoes made in Boston;
(3) rebuild America's critical infracture in a manner deleting oil from the equation altogether;
(4) discontine learning/teaching/testing to A/B/C/D;
(5) require Article III players to undergo neuro-psychological testing prior to appointment and during tenure."
Never mind the other politics-of-envy crap; we should have thought police to make certain judges stay liberal? Seriously?
And people say fascism is a 'conservative' pathology.
¡Si! ¿Porque no?
Dude, where I live we've been speaking Spanish for 300 years.
Well, the more fool you then. Yup, I think pretty much everyone can aspire to be an American. Sadly, I'm afraid a lot of people commenting on this don't.
If you're really going to push this, then I say, as a Choctaw Indian, that you foreigners should get the hell out.
You mean should be Constitution be amended to make US citizenship hereditary and only hereditary.
The Indian experience supports my argument. They should have kept the foreigners out, but they didn't. As a result they had to suffer for it. We should learn from their mistake and not repeat it.
What are the consequences?
"And the children of illegal immigrants as an objective fact have not broken any laws."
How is that relevant? If your parents steal a car and give it to you, does that mean you get to keep because they didn't tell you it was stolen? I don't understand why children should get to keep the fruit of their parents fraud. If we allow this then we encourage more law breaking. All these arguments pretty much lead to the same place, an erosion of American. Perhaps this is what you want, if so at least be honest about it.
Please point us to the law you think they have broken otherwise I don't see the argument. You can't just rely on your vague intuition that this is the sort of thing that should be illegal to establish it is. Even if you can find the relevant law on point (that makes it genuinely illegal not merely something we can civilly deport you for) there is the issue of whether their lack of culpability places them in an implicit exception to the law until they are 18 (even illegal children who try to run away back to their home country will be returned by most local police forces).
It really sucks when you break the law. Let the UN handle it, they love this kind of thing. You might as well say the US should provide a home for all stateless people. I don't see why we have this obligation.
Okay the UN can handle it as soon as you vote to cede to them part of UN soverign territory they can use to house people. Short of that the UN can only handle refugees if a member state is willing to accept them. What are you going to do when every other nation state says their your problem we won't take them? Shoot them? Leave them on a boat at sea?
"How do you define being here illegally?"
Someone not on a valid tourist visa, without a residency permit? I don't see any problem here.
There is a real issue here but there is also a simple solution. Obviously we have to sunset 'discovering' someone lacked citizenship at some point. We don't want it to be possible to do some research and have someone's citizenship revoked because it turns out that all of their great-great grandparents were here illegally. Thus you *could* simply deny citizenship to anyone whose parents were actually deported or otherwise stopped possessing permanent residences in the US before their children were 18 and were not US citizens during any part of that time.
Bad idea but you could work out the rules.
---
Anyway I don't think this citizenship concern really matters for America. We are so big and industrialized that by the time globalization really starts pressuring us to change things the rest of the world will have largely moved beyond nationalism and we will just eliminate our immigration laws like everyone else.
After all the only real reason for immigration restrictions is extreme economic inequality. As globalization eliminates that people will stop bothering with immigration restrictions. It sounds extreme now but give it a 100 years and the world will look crazily different.
Right now the children of illegal migrants borne here are US citizens. If they were born somewhere else they should be deported to the country of their birth. If we change current law to deny citizenship to the children of illegal migrants there are several options for dealing with them. We can pressure the parents' country to take them, and the US has the capacity to do this if it so chooses. This policy should take care of most cases. Otherwise they become stateless persons because of their parents. As such it's mainly their parents problem to deal with the mess they themselves created. If their parents abandon them, then we give them to the UN and then it's their problem to house them until they find a country for them. The UN has handled DP cases before and it can do it again. Once the US denies citizenship to "anchor babies" this will become a non-problem because it removes the incentive to come here illegally and have a baby.
"... will have largely moved beyond nationalism and we will just eliminate our immigration laws like everyone else."
Anything can happen in an imaginary world. We could all end up playing Second Life all day too.
"Never mind the other politics-of-envy crap; we should have thought police to make certain judges stay liberal? Seriously?
And people say fascism is a 'conservative' pathology."
This entire Globalization theory offered by Professor Spiro fails to take into account ABRUPT CLIMATE CHANGE (ACC).
Face it, ACC will not only require us to manufacture the stuff we need right here in the U.S.A., it will also require us to keep a very watchful eye on those holding power over our lives. After all ACC is a pretty stressful concept.
FYI, neuro-psychological testing is administered to the ICBM trigger guys and EMS guys. Why not the Article III guys?
If/when sea levels rise to the point the Atlantic Ocean starts at Lake Okeechobee, the last thing we need are Article III judges who scream "the walls are moving" and "the CIA is plotting against me" like Chief Justice Rhenquist did in 1981 when he was confined as delusional.
PEACE
The US constitution gives US persons the right to travel. But it does not confer an unrestricted right to people in other countries to cross the US border. As far as I know every country in the world controls its borders. Borders are one of the core principles of national sovereignty.
"Amend the Constitution to strike out part of the Fourteenth Amendment so we can punish children because their parents committed the crime of crossing a border ..."
It's not clear we need to amend the constitution to do away with "anchor babies." Moreover denying children the fruits of their parents' fraud is not a "punishment." As I said before, if a child unknowingly receives a stolen car from his parents, he has no right to keep it, and he's not "punished" by being compelled to give it back.
I will never understand the way the people who claim to support liberty in all other arenas completely lose it when we're talking about the liberty to cross national borders.
Do I have the liberty to come live in your house, avail myself of your stuff, raise my kids there, and demand a say in how the house is run? No? What's the matter, don't you support liberty? Your house is just a piece of territory, and territory is of declining significance, so I don't know why you're completely losing it over this issue.
Give us your tired, your poor, your huddled masses...Never mind. Stay away. No one allowed who cannot trace their ancestry back a certain specified number of generations. The problem is, how many generations do we need to go back? I'm sure that all of these anti-hispanic bigots who are so terrified that someone else might want to come to this country to work hard and pursue the "American dream" have a good number in mind - one less than the number of generations that their family has been here.
Fortunately, I am 100% Creek, so I get to stay under any calculus you can come up with.
I know of a young woman who says she doesn't believe in private property. When you ask her if she keeps the door to her house open so anyone can come in and take what they want she admits she doesn't. But she thinks she really should, and just compromises her values and locks the door.
The Germanic migrants known as "Saxons" invaded Britain starting the 5th Century after the collapse of Roman authority. Eventually the Saxons came to dominate and largely replace the Romano-Britons. Ironically the Saxons were initially invited in. Big mistake. Similarly the American Indians got replaced by invading migrants from Europe. Big mistake on their part too. Why should Americans make the same mistake and eventually get replaced by the sheer force of numbers by a migrant wave from the third world? Explain to me why it would be in our interest to do such a thing?
It matters not that you are Creek as your people lost the battle many years ago. Perhaps they should have fought harder.
This goes back to the other immigration thread EV started. OK, we're going to allow in the huddled masses of poor. But there are some 5 or 6 billion poor people. Do they all get to come? If not, how many get to come? Why do we want poor people at all? Why aren't the required skills for entry higher than simply "energetic enough to get here physically by one method or another"?
Numbers matter. Personal qualities matter.
Zarkov: Yep. My ancestors were murdered and raped and pillaged into oblivion, but it was "many years ago" so that makes it okay.
It is in our national interest to have a continual influx of new people and new ideas and new cultural influences. America is not going to be destroyed by invading mexicans any more than it was destroyed by invading Irish or Chinese or Poles or whatever.
The examples you give are of cultures and nations supplanted by, largely, armed force and military action. Indians were not supplanted by people moving in and refusing to speak Cherokee or Arapaho - they were supplanted by means of wholesale slaughter. My British history is weak, but wasn't the big change to modern Britian started with the invasion of William of Normandy in 1066? I don't recall that being an invitation.
They were, and they also did likewise to each other and other tribes. Pre state people, defined as bands, tribes and chiefdoms, existed in a state of almost continuous warfare. See War Before Civilization b Keeley. According to Keeley the practice of ritual cannibalism was also common in both North and South America. But all this is besides the main point. It was not to the benefit of the Indians to get replaced by migrating Europeans, and it's not in the benefit of Americans to get replaced by someone else.
"America is not going to be destroyed by invading mexicans ..."
Tell that to the people in Southern California who have seen a significant deterioration in their quality life as the result of massive Mexican migration. Why is it in the interest of the US to import the underclass from other countries? Especially an underclass with a high birth rate compared to the native population. Demography is destiny.
As for the Irish, German and Italian immigrants they were actually more skilled and educated that the average American early in the 20th Century. No so with Mexicans who provide mostly low skill labor. Did you know that 65% of the Italian immigrants returned home because they couldn't make a successful life here. Remember there was little welfare in those days. We also had very little immigration between 1925 and 1970. Do the US suffer for this? If so how?
"The examples you give are of cultures and nations supplanted by, largely, armed force and military action."
Not necessarily so with the Saxons. Historians debate as to how much warfare went on between the Romano-Britons and the Saxons. But in any case, the replacement was gradual and not the result of a specific battle like 1066. Mass migration has consequences, it always did and will continue to do so.
Exactly backwards!
I like the idea of having immigrants who want to work hard and make a good life for themselves.
I like it, too. I like it even better when it is coupled with the high tech skills we need - supposedly we're a post-industrial information economy now, right? - and not just a warm body.
The fact that they have brown skin and speak a different language is irrelevant.
Yes, I don't care what skin color an immigrant has or what language the immigrant speaks so long as he or she has a certain IQ / level of education / proven level of income.
They will change and assimilate in a very short time, just as they have always done.
A large gamble to make on a dubious hypothesis. And again, numbers matter. There is a given level of immigration at which the immigrants will not assimilate quickly. Let's say a billion immigrants arrived in the next few years who did not speak English and were from an alien culture. Tell me why and how they would assimilate quickly.