Opinio Juris

I want to wrap up my participation in this on-line symposium by thanking Peter again for his great contribution, and the occasion for what has been for me an engrossing discussion. I also want to chime in on two of the issues raised yesterday.

1. Peter, I think that many, if not most, Americans have come to value their citizenship precisely because of its inclusiveness. The fact that it has become relatively easy to obtain and that we have eliminated all racial barriers to its acquisition is a reason to celebrate it, and to be proud of it. Sure, for some people extending its full scope to groups such as women and blacks may have diminished its value in the short-term, and the possibility of a Latino plurality in the U.S. as the result of contemporary migration may raise anxiety in some quarters. But, over time, people accept these reformulations of the institution, which make it stronger; exclusion becomes a drag on its value. And yes, as Robert Putnam has shown in his work, diversity can breed distrust. But adaptable institutions, such as our citizenship regime, are the keys to knitting diverse people together. Both our jus soli rule and the relatively open path to naturalization likely have been crucial to the United States’ ability (superior to many of our counterparts’ in Europe and elsewhere) to absorb large immigrant populations. I think I share much of Jonathan’s optimism about what he calls the American creed, which may be under pressure by today’s version of globalization, but whose institutional expressions, such as our citizenship regime as it exists today, are universalist in their orientation and therefore likely to survive the explosion of loyalties.

2. Ken, your citation to Michael Ignatieff’s skepticism regarding cosmopolitanism raises an important issue that we have not really discussed—citizenship as legal status. Everyone needs a citizenship, whether because citizenship is, in Arendt’s formulation, the “right to have rights,” or the primary security we have that we cannot be banished from at least one place on earth, or the mechanism for ensuring that everyone belongs somewhere such that every person is the ultimate responsibility of some government. I don’t understand Peter to be dismissing the importance of citizenship as legal status, but (correct me if I’m wrong Peter) he is cosmopolitan in the sense of seeing the need for forms of membership, including with legal significance, that extend beyond the traditional model of one person, one state. I share the skepticism of the sort of cosmopolitanism that believes that people’s attachments to their national contexts are on the wane, and that a more transcendent form of political and cultural identity is preferable—some of which may be animating Peter’s work. But even as I agree that people remain deeply rooted in the societies or cultures in which they were born or raised, it’s hard to deny Peter’s point that we are all more plural than ever before in our interests and affiliations, if only because of the mass diffusion of a heavily American-inflected popular culture across the globe. And mass global migration, which is hardly just a phenomenon of elites, is contributing to the cosmopolitan dynamic. Whether the condition of cultural pluralism in which we live has been or ought to be accompanied by diminished regard for national citizenship is the question. I think Peter would say "yes" to the “has been” part of that formulation, and your military officers would say “no way” to the “ought.” Whether and how we try to bridge that gap is the hard part.

I would like to return to the theme of how we should approach the dynamics of erosion Peter has identified and to reiterate that I think we should be asking not whether these forces are inevitable, but rather: what are their real costs, and what might be the costs of trying to reverse them? First, even if the overinclusiveness of our constitutional jus soli rule and statutory jus sanguinus provisions, and our increased acceptance of dual nationality, weaken the institution of U.S. citizenship, these are developments we must maintain. Second, though illegal immigration may have its benefits—it arguably is economically efficient, imposes fewer fiscal costs that legal immigration, and screens for the immigrants with the greatest fortitude—it is a form of “membership” that we should strive to reduce. The question on that score is whether we can accomplish the reduction by asserting a sovereign interest in border enforcement, or whether we must expand opportunities and forms of legally sanctioned membership beyond what today’s system allows.

Finally, to me, the most difficult question is posed by circular migration. Whether or not it is occurring with the same frequency as in previous eras and whether or not it is inevitable—something others have been debating—we still need to think, as a matter of policy, about how best to channel it. With respect to semi- and unskilled workers, our current strategy of responding to illegal immigration through strict border enforcement, which Doug Massey has shown is turning what would otherwise be cyclical migration into the semi-permanent settlement of illegal immigrants, seems untenable.

But the question is whether we should permit migrants to cycle in and out of the United States pursuant to some kind of labor migration agreement with Mexico (or other states) as frequently as makes economic sense for Mexico, the U.S., or immigrants themselves. Or, at some point should we expect migrants to make a permanent commitment to the United States or return to their countries of citizenship? I worry about the civil society implications of migrants using the United States as a kind of economic way station, particularly for prolonged periods of time. Circularity reduces incentives for integration (migrants without long-term time horizons in the United States are less likely to invest in acquiring the social capital necessary to be full members), which in turn reduces the willingness of Americans to support immigration more generally and threatens to give rise to sizable cohorts of quasi-members of secondary status.

Some circularity, even in a context where immigrants have become U.S. citizens (or are born with two citizenships), is likely inevitable, and it would be unduly coercive to prevent it. This is not an argument for forcing everyone who steps foot in the United States to stay forever. But actively embracing circularity as immigration policy could institutionalize a practice on a large scale that is inconsistent with what should remain our goal: turning immigrants into citizens to ensure the perpetuation of the American project as a society whose members are all equal participants.

Obviously an important component of making this work is not just willingness on the part of immigrants to make long-term commitments to the United States, but also making the road to citizenship a possibility for those who cross our borders. Peter has already talked about the importance of reducing barriers to naturalization, but I also want to underscore the importance of opening up the road to naturalization to the migrants we are increasingly admitting on a temporary basis (whether by tolerating illegal immigration or authorizing small or large-scale temporary work visas across the labor market spectrum). Expanding the availability of citizenship may contribute to the lessening of its value. But, consistent with my first post on thinness itself having value, my strong intuition is that making citizenship available creates incentives for immigrants to affiliate with and integrate into the United States. Though it could turn out to be empirically false, my strong hunch is that the possibility of permanent security and membership itself gives reasons for immigrants to invest long-term in the communities around them, instead of keeping their sites focused exclusively elsewhere, even if citizenship doesn’t cost them that much. Indeed, the possibility of dual citizenship, which Mexico now allows, may reduce the incentive to invest somewhat; cf. the difficulty I acknowledged previously of participating equally in two different societies. But if we are worried about circular migration reducing attachment to the United States, which Peter might or might not be depending on how ready to accept the inevitable he is, then we should think about how to structure the parameters of circular migration to offset some of its downsides.

I want to begin this post by addressing John’s claim that it has never happened in history that a democracy has extended beyond the nation state. On the one hand, I share his difficulty in imagining a world where the nation state is not the locus of democratic participation, because it seems to be the form of organization that best facilitates, simultaneously, accountability of public officials and common cause among members.

But, at the risk of venturing into territory with which I am unfamiliar, what about the European Union? And, closer to my comfort zone, what about federalism? The nation state today (as it has always been to some degree) is embedded in sub-national as well as supra-national networks, all of which perform important functions in an increasingly interdependent world, and all of which promote accountability and common cause to some better or worse degree than the nation state itself. I do not take Peter to be suggesting the end of the nation state, or that polities must abandon drawing lines between those who belong and those who do not (the EU, despite expanding conceptions of citizenship beyond the nation state, is nonetheless exclusive). But Peter is challenging us to think about how we might reformulate our citizenship frameworks, or think about redrawing those lines, to better take account of the cross-border relationships and affiliations that have emerged in impressive form in the post-War era. The fact that we are in unmapped territory does not mean that we shouldn’t attempt to think beyond our nation-state centered worldviews. I would be very curious to hear from Peter what shape he imagines new frameworks of affiliation and community might take. Do we need an international right to political participation? Or a political arm to NAFTA, for example?

Along similar lines, I would ask Peter whether in redrawing lines of membership we must accept globalization-driven developments as they have happened, or whether we should actually use immigration and nationality law, and trade and foreign policy, for that matter, to strengthen the attachments to the nation state, or to resist certain aspects of the erosion you describe?
As John points out, there is a deterministic quality to Peter’s book, but I think it is largely warranted. Peter takes a crucial first step in delineating how citizenship frameworks have evolved over time. The question is not whether we can turn back the clock to a (non-existent?) time when American citizenship was not overinclusive and everyone robustly belonged to one place. Rather, the question is what would be the cost of resisting the erosion of citizenship that Peter describes, especially to the extent that the “erosion” has occurred as the result of overturning historical debacles, such as the adoption of a nearly universal jus soli rule in response to Dred Scott, or as the result of progressive advancements, such as the reversal of the rule that women who marry foreigners lose their citizenship.

In my view, the question of when and how we should resist the forces of erosion becomes trickiest when we confront the problems of (1) unlawful immigration; and (2) transnationalism and cyclical migration. I will address the latter in a later post. As for the former, I don’t want to sidetrack this discussion into a debate on illegal immigration since Peter’s book is about much more. I’ll just suggest that is too easy to say, as John does, that “we the people” should simply determine what our immigration policy is, and those who are here illegally are here without the consent of the governed. Decisions about who we want in the United States are not made by the body politic through some sort of centralized, unilateral, and singular decision. As scholars such as Alejandro Portes and Ruben Rumbaut have argued, migration patterns are the product of historical entanglements between nation states. As I have argued in my own work, such patterns are also the result of consumer-driven preferences that operate outside or parallel to the law, and they are the result of various enforcement decisions made by the federal government that reflect a mix of humanitarian and pragmatic judgments made on case-by-case bases, at different points in time. I would not go so far as to say that illegal immigration is beyond our control. But it is important to realize that the sorts of cross-border relationships that challenge our traditional conceptions of citizenship, including illegal immigration, are the result of decentralized, sometimes contradictory, decision-making by various branches of government, along with the people acting simultaneously through their representatives and their private and market choices.

These observations are all by way of saying that, to the extent Peter is arguing that the decline of citizenship is the result of strong and difficult to resist forces, he is making a point we cannot escape by asserting that we have the autonomy to ensure otherwise. And to the extent that he is challenging us to confront these forces head-on, and to rethink how we promote community, he is pushing us in the right direction. I think we can still accomplish a lot within a nation-state centered conception of citizenship, and today more than ever we need strong territorially-anchored frameworks for belonging to promote integration—a point Hiroshi Motomura’s recent work powerfully underscores. As I suggested in my previous post, I am skeptical that we are witnessing “America’s dissipation,” as Peter puts it. But my skepticism does not mean that we should not take steps to strengthen American citizenship in light of transnationalism—a question I’ll take up later.