Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality: Volume 60

This volume marks an important milestone in the publication history of Studies in Law, Politics, and Society, our 60th volume and for me personally, the 50th volume which I have edited or co-edited. During this time interdisciplinary legal studies have mushroomed, now including scholars from law faculties, the social sciences, and the humanities. Throughout its history, the objective of Studies has been to provide a vehicle for the publication of scholarly articles within the broad parameters of interdisciplinary legal scholarship. While other law-related publications publish within a single domain: the humanities; social science; or legal doctrine, Studies seeks to bridge those divides.

Drawing on the work of Hannah Arendt, this essay seeks to show (illegal) alienage in U.S. law in new lights. First, this essay demonstrates how the emergence of a positive law of citizenship, through which the U.S. Supreme Court affirmed the importance of citizenship for rights, is a relatively recent and historically contingent development in U.S. law. Second, this essay shows how the concept of “sovereignty” plays different roles in the U.S. positive law of citizenship and (illegal) alienage. This essay seeks also to evaluate the limits and possibilities of alternatives to “sovereignty” as grounds for the rights of noncitizens in the United States. And it seeks to make the point that the apolitical valences of “territoriality” and “social productivity” vis-à-vis “sovereignty” in U.S. law render illegal alienage in particular misleadingly outside the realm of the political. Ultimately, this essay seeks also to challenge understandings of “sovereignty” in political theory by integrating law and political theory, and to recast legal discourse on illegal alienage by turning attention to “sovereignty.”

This contribution critiques U.S. practices respecting birth citizenship. It first describes the logic of territorial birthright citizenship. The practice makes sense only insofar as place of birth has supplied a proxy for community membership. But many who are born in the United States leave permanently at an early age. It is not clear why they should be able to take their citizenship with them. The paper also critiques the liberalized basis for acquiring citizenship on the basis of parentage. In both cases, birth citizenship creates an increasing disconnect between the formal and organic boundaries of community. This disconnect could be addressed by the adoption of presence requirements beyond birth. Presence requirements would be consistent with liberal values to the extent they would strengthen the solidarities of the liberal state. However, it is unclear that presence gives rise to such solidarities. It is also improbable that presence requirements will be adopted. This both evidences and reinforces the declining salience of citizenship.

Various politicians and public commentators seek to deny birthright citizenship to children born in the United States to undocumented or temporary migrants. Among their claims, critics of universal birthright citizenship contend that the practice flies in the face of liberal principles, in which both individuals and the state should consent to membership. From this perspective, citizenship through naturalization is valorized, since it rests on the affirmative choice of the immigrant and the clear consent of the state. This chapter proposes a different approach to these debates, one that underscores the principles of inclusion and equality. The argument rests on empirical evidence on how those affected by these debates – foreign-born residents and their U.S.-born children – understand belonging in the United States. Interviews with 182 U.S.-born youth and their immigrant parents born in Mexico, China, and Vietnam show that despite a discourse portraying U.S. citizenship as a civic and political affiliation blind to ascriptive traits, many of those interviewed equate “being American” with racial majority status, affluence, and privilege. For many immigrants, membership through naturalization – the exemplar of citizenship by consent – does not overcome a lingering sense of outsider status. Perhaps surprisingly, birthright citizenship offers an egalitarian promise: it is a color-blind and class-blind path to membership. The Citizenship Clause of Fourteenth Amendment provides constitutional legitimacy for the ideals of inclusion and equality, facilitating immigrant integration and communal membership through citizenship.

While many consider court involvement in immigration matters a given, in liberal nation-states, there is actually a substantial degree of variation. This chapter revisits two “critical junctures” in the early immigration histories of Canada and Germany to show that institutions and policy legacies are not just historical backdrop, but actually shaped the strategies of political actors, subsequent institutional configurations, and policy options for long periods of time, thereby revealing unintended consequences, as well as alternative paths that the involvement of the courts (and other actors) could have taken.

This chapter examines recent citizenship policy change in Europe in order to address two important questions. First, are immigrant-receiving states undergoing a “restrictive turn,” making citizenship less accessible to foreigners? Our analysis finds that while certain restrictive developments have certainly occurred, a broader comparative perspective shows that these hardly amount to a larger restrictive trend. Second, regardless of what the restrictive changes amount to, what explains why certain countries have added more onerous requirements for citizenship? In answering this question, we focus on the politics of citizenship. We argue that once citizenship becomes politicized – thus mobilizing the latent anti-immigrant sentiments of the population – the result will likely be either the blocking of liberalizing pressures or the imposition of new restrictive measures. We support this argument by focusing on three countries: a case of genuine restrictiveness (Germany), another where the anti-immigrant rhetoric's bark has been more noticeable than the citizenship policy's bite (the United Kingdom), and one where proposed policy change in the restrictive direction does not add up to a restrictive policy overall, but rather a normalization with other liberal citizenship regimes in Europe (Belgium). We argue that politics accounts for why states adopt restrictive policies, and we conclude that it is premature and inaccurate to suggest that policies of exclusion are converging across Europe.