SPECIAL ISSUE: WHO BELONGS?

IMMIGRATION, CITIZENSHIP, AND

THE CONSTITUTION OF LEGALITY
STUDIES IN LAW, POLITICS,
AND SOCIETY
Series Editor: Austin Sarat
Recent Volumes:
Volumes 1–2: Edited by Rita J. Simon
Volume 3: Edited by Steven Spitzer
Volumes 4–9: Edited by Steven Spitzer and
Andrew S. Scull
Volumes 10–16: Edited by Susan S. Sibey and Austin Sarat
Volumes 17–33: Edited by Austin Sarat and Patricia Ewick
Volumes 34–60: Edited by Austin Sarat
STUDIES IN LAW, POLITICS, AND SOCIETY VOLUME 60

SPECIAL ISSUE:
WHO BELONGS?
IMMIGRATION,
CITIZENSHIP, AND
THE CONSTITUTION
OF LEGALITY
EDITED BY
AUSTIN SARAT
Department of Law, Jurisprudence & Social
Thought and Political Science, Amherst College, USA

United Kingdom – North America – Japan

India – Malaysia – China
Emerald Group Publishing Limited
Howard House, Wagon Lane, Bingley BD16 1WA, UK

First edition 2013

Copyright r 2013 Emerald Group Publishing Limited

Reprints and permission service

Contact: permissions@emeraldinsight.com

No part of this book may be reproduced, stored in a retrieval system, transmitted in any
form or by any means electronic, mechanical, photocopying, recording or otherwise
without either the prior written permission of the publisher or a licence permitting
restricted copying issued in the UK by The Copyright Licensing Agency and in the USA
by The Copyright Clearance Center. Any opinions expressed in the chapters are those
of the authors. Whilst Emerald makes every effort to ensure the quality and accuracy of
its content, Emerald makes no representation implied or otherwise, as to the chapters’
suitability and application and disclaims any warranties, express or implied, to their use.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

ISBN: 978-1-78190-431-2
ISSN: 1059-4337 (Series)
CONTENTS

LIST OF CONTRIBUTORS vii

EDITORIAL BOARD ix

INTRODUCTION FROM SERIES EDITOR xi

SOVEREIGNTY AND ITS ALTERNATIVES: ON THE

TERMS OF (ILLEGAL) ALIENAGE IN U.S. LAW
Hamsa M. Murthy 1

INTERROGATING BIRTHRIGHT CITIZENSHIP

Peter J. Spiro 29

BEING AMERICAN/BECOMING AMERICAN:

BIRTHRIGHT CITIZENSHIP AND IMMIGRANTS’
MEMBERSHIP IN THE UNITED STATES
Irene Bloemraad 55

EXTENDING HOSPITALITY? HISTORY,

COURTS, AND THE EXECUTIVE
Dagmar Soennecken 85

EVALUATING AND EXPLAINING THE

RESTRICTIVE BACKLASH IN CITIZENSHIP
POLICY IN EUROPE
Sara Wallace Goodman and Marc Morje´ Howard 111

v
LIST OF CONTRIBUTORS

Irene Bloemraad Department of Sociology, University of

California, Berkeley, CA, USA
Sara Wallace Goodman Department of Political Science,
University of California, Irvine, CA, USA
Marc Morje´ Howard Department of Government, Georgetown
University, Washington, DC, USA
Hamsa M. Murthy Department of Jurisprudence and
Social Policy, University of California,
Berkeley, CA, USA
Dagmar Soennecken School of Public Policy & Administration
and Department of Social Science, York
University, Canada
Peter J. Spiro Beasley School of Law, Temple
University, Philadelphia, PA, USA

vii
EDITORIAL BOARD
Gad Barzilai
Department of Political
Science, University of
Washington and Tel Aviv
University, Israel
Paul Berman
Department of Law, George
Washington University,
USA
Roger Cotterrell
Department of Legal
Theory, Queen Mary
College, University of
London, UK
Jennifer Culbert
Department of Political
Science, Johns Hopkins
University, USA
Eve Darian-Smith
Department of Global
Studies, University of
California, Santa Barbara,
USA
David Delaney
Department of Law,
Jurisprudence, and Social
Thought, Amherst College,
USA
ix
Florence Dore
Department of English,
University of North
Carolina, USA
David Engel
Department of Law, State
University of New York at
Buffalo, USA
Anthony Farley
Department of Law,
Albany Law School,
USA
David Garland
Department of Law,
New York University,
USA
Jonathan Goldberg-Hiller
Department of Political
Science, University of
Hawaii, USA
Laura Gomez
Department of Law,
University of California,
Los Angeles, USA
Piyel Haldar
Department of Law,
Birkbeck College, University
of London, UK
x EDITORIAL BOARD
Thomas Hilbink
Open Society Institute, USA
Desmond Manderson
Department of Law, College
of Law and College of
Arts & Social Sciences,
Australian National
University, Australia
Jennifer Mnookin
Department of Law,
University of California,
Los Angeles, USA
Laura Beth Nielsen
Research Fellow, American
Bar Foundation, USA
Paul Passavant
Department of
Political Science,
Hobart and William Smith
College, USA
Susan Schmeiser
Department of Law,
University of Connecticut,
USA
Jonathan Simon
Department of
Jurisprudence and Social
Policy, University of
California, Berkeley,
USA
Marianna Valverde
Department of Criminology,
University of Toronto,
Canada
Alison Young
Department of Criminology
University of Melbourne,
Australia
INTRODUCTION FROM SERIES EDITOR

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 inter-
disciplinary 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.
We encourage submissions from a broad range of legal scholars and
welcome articles exemplifying different theoretical perspectives and
methodological approaches. And, long before globalization was fashion-
able, Studies had already established itself as a venue for scholars from
many different parts of the globe.
Finally, as this particular volume on citizenship and the meaning of
identity in the context of the law exemplifies, Studies combines theoretical
sophistication and policy relevance, while never sacrificing the former for
the latter. I look forward eagerly to a future in which Studies continues to
lead the way in the development of a distinctively international and
interdisciplinary brand of legal scholarship.

Austin Sarat
Editor

xi
SOVEREIGNTY AND ITS
ALTERNATIVES: ON THE
TERMS OF (ILLEGAL)
ALIENAGE IN U.S. LAW

Hamsa M. Murthy

The concept of human rights can again be meaningful only if they are redefined as a right to
the human condition itself and the right never to be dependent on some inborn human
dignity, which de facto, aside from its guarantee by fellow men, does not exist.
– Hannah Arendt
The Burden of Our Time

Happiness isyofficial identification documents.

Millions of ‘‘economic’’ and other migrants have taken advantage of improved

communications in recent years to seek new lives in more developed countries. However,
they should not be confused (as they often are) with refugees, who are fleeing persecution or
war, rather than moving for personal or financial reasons. Modern migratory patterns can
be extremely complex and contain a mix of economic migrants, refugees, and others.
Separating genuine refugees from various other groups through fair asylum procedures, in
accordance with the 1951 Convention, can be a daunting task for governments.
– Office of the United Nations High Commissioner for Refugees1

Men do not wield or submit to sovereignty. They wield or submit to power. Authority and
power are factsysovereignty is not a fact.
– F. H. Hinsley
Sovereignty

Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality
Studies in Law, Politics, and Society, Volume 60, 1–27
Copyright r 2013 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000060005
1
2 HAMSA M. MURTHY

ABSTRACT
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.’’

INTRODUCTION
In 1951, Hannah Arendt wrote in The Origins of Totalitarianism that
stateless persons had become by then, ‘‘the most symptomatic group in
contemporary politics’’ (Arendt, 1951, p. 277). She wrote of a post World
War I world in which ‘‘out of the liquidation of the two multinational states
of pre-war Europe, Russia and Austria-Hungary, two victims groups
emerged whose sufferings were different from those of all others in the era
between the wars’’ (p. 268). These new victims, Arendt noted, were the
‘‘stateless and the minorities,’’ who had no governments to represent and to
protect them (pp. 268–269). These apatrides and refugees, rendered so by
mass denationalizations and civil wars, were prevented from maintaining
even their supposedly ‘‘inalienable’’ or ‘‘human’’ rights.
For Arendt, the post World War I explosion in the number of stateless
persons and refugees revealed not a lack of ‘‘civilization,’’ but rather that
‘‘there was no longer any ‘uncivilized’ spot on earth’’ (p. 297). Nation-states
had come to insist upon the prerogative to exclude as a fundamental
incident of their sovereignties. These nation-states had come to occupy fully
the inhabitable surface of the world. The ‘‘abstract nakedness of being
Sovereignty and Its Alternatives 3

human’’ (p. 299) turned out to be concomitant not with the realization of
‘‘basic human rights,’’ as might have been hoped or expected. Rather, ‘‘the
abstract nakedness of being human’’ turned out to be concomitant only with
exclusion and deprivation.
This essay demonstrates how Arendt’s text can be used as a lens through
which to view contemporary law and the phenomenon of illegal alienage in
new legal and political theoretical lights. Admittedly, illegal alienage was not
on Arendt’s radar when she wrote The Origins of Totalitarianism. However,
the underlying dynamic which Arendt identified – the historically contingent
emergence of positive laws of citizenship and alienage as incidents of the
sovereignty of nation-states – is important for contemporary scholars of
public law, citizenship and immigration studies, political theory, and illegal
alienage to recognize and analyze. Indeed, while refugees or stateless persons
may continue to be, in the now well-known terms of Arendt, ‘‘symptomatic’’
of the paradoxes of nation-state sovereignty and human rights in late
modernity, it is rather the ‘‘illegal alien’’ that has become in the last three
decades, ‘‘the central and singularly intractable problem of immigration
policyyand a lightening rod in [U.S.] domestic national politics more
generally’’ (Ngai, 2004, p. 265).
As a matter of history, the attention garnered by illegal alienage in U.S.
law and politics has increased since quotas were imposed on migration from
the Western Hemisphere in 1965, and as refugee adjudication became
formally part of U.S. law in 1980. With the formalization of refugee
adjudication in particular, illegal alienage has emerged as beyond the scope
of legalized humanitarian charity and thus the ultimate category of
‘‘remainders’’ in U.S. immigration and alienage law.2
And on another, less illuminated but more theoretical register related
to the historical points above, as refugee status in particular has come to
occupy fully the category of bona fide political injury in immigration and
alienage law across countries, illegal aliens have been cast as primarily
economic actors, as the first quotation in this essay’s epigraph exemplifies.
This bifurcation, between authentically politically injured migrants and the
authentically political sovereign nation-state on the one hand, and the merely
economically injured or economically motivated migrants on the other
hand, limits the ability of ‘‘illegal aliens’’ to make cognizable claims against
‘‘sovereign’’ nation-states in formal immigration and alienage law. Where
‘‘political sovereignty’’ lurks as the ultimate trump card, as it does in
immigration and alienage law, conceptual exclusion from the realm of the
political (and relegation to alternative normative registers) limits the claims
‘‘illegal aliens’’ can make against ‘‘sovereign’’ nation-states.3
4 HAMSA M. MURTHY

Drawing on Arendt’s work, this essay contains two primary arguments.

First, this essay shows how the emergence of a positive law of citizenship,
through which the U.S. Supreme Court pronounced 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. As the third quotation in this essay’s epigraph states,
‘‘sovereignty is not a fact.’’ Rather, ‘‘sovereignty’’ is a concept that is given
meaning through declarations of law in late modernity.
The U.S. Supreme Court cases on citizenship-stripping through which the
U.S. Supreme Court pronounced the importance of citizenship for rights,
deal only with the rightful content of ‘‘sovereignty.’’ In contrast, the cases
on (illegal) alienage contain at least two competing normative themes –
‘‘sovereignty’’ and some alternative to ‘‘sovereignty,’’ such as ‘‘territori-
ality’’ or ‘‘social productivity.’’ This essay seeks to evaluate the significance,
limits, and possibilities of these 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
problematically outside the realm of the political, or rather, ‘‘the sovereign.’’
Ultimately, the overarching concern of this essay is ‘‘sovereignty,’’ as it
appears in the U.S. positive law of citizenship and (illegal) alienage. The
focus on law is crucial. Political theorists may argue that ‘‘sovereignty’’ is
simply the ‘‘right to control the territory’’ (see, e.g., Krasner, 1999). In
making this equivalence summarily as a matter of theory, political theorists
tend not to pay attention to how modern law articulates and concretizes
‘‘sovereignty’’ in imperfect ways that differ from this theoretical proposi-
tion. Because political theorists generally do not attend to specific
articulations and silences of law, they tend to miss the fact that
‘‘sovereignty’’ and ‘‘territoriality’’ are distinct and often even oppositional
normative grounds in U.S. alienage law. Therefore, political theorists
generally elide the contextual meanings of these words in law as well as the
fact that these words animate different state institutions, particularly in the
context of U.S. immigration and alienage law. While ‘‘sovereignty’’
generally refers to a prerogative that rests with Congress, ‘‘territoriality,’’
in U.S. legal discourse, generally empowers the federal judiciary to insist
upon certain rights for foreigners. ‘‘Sovereignty’’ and ‘‘territoriality’’ have
thus emerged as alternative normative registers, the former generally for the
withholding rights from noncitizens, and the latter generally for the granting
of rights to noncitizens in U.S. law. This essay will show ultimately how
Sovereignty and Its Alternatives 5

‘‘sovereignty’’ and its alternatives in U.S. immigration and alienage law may
share certain aspects in common.
Four further sections comprise this essay. The first takes up the relatively
recent historical development of positive law of U.S. citizenship, vis-à-vis
‘‘sovereignty.’’ The second section moves from citizenship to (illegal)
alienage and takes up the emergence in the nineteenth century of
‘‘territoriality’’ as an alternative normative register to ‘‘sovereignty.’’ The
third section more critically evaluates this legally constructed ‘‘territori-
ality.’’ Finally, the fourth section identifies the rise of ‘‘social’’ concerns in
U.S. immigration and alienage law as a particular alternative to
‘‘sovereignty.’’
The figures of stateless persons and refugees with which this essay began
will return at the end of this essay. While this essay is primarily about
‘‘sovereignty,’’ the conceptual and political theoretical contrast between
illegal alienage and refugee status in particular is an important leitmotif that
sheds more light, by way of contrast, on the apolitical conceptual
construction of illegal alienage.

WHEN HANNAH ARENDT GOES TO THE SUPREME

COURT: ON RE-HISTORICIZING CITIZENSHIP AS
‘‘THE RIGHT TO HAVE RIGHTS’’
Legal scholars and political theorists working within the liberal tradition
generally presume that all modern law is necessarily written, positive law,
and that the lack of written, positive law signifies (undesirable) pre-legality.4
This section seeks, following Arendt, to show by contrast how, in the realms
of immigration and alienage law, the need for written, positive law is itself
contingent and has the effects of strengthening the authority of the
institutions that promulgate this law. In addition, as Arendt’s work
illuminates, written positive law also has the effect of rendering other
forms of human interaction, speech, and political action as ‘‘extra-legal’’
and therefore normatively suspect.5 This has particular implications for
immigration and alienage law, which, more than any other form of modern
law, trade in the terms of status rather than action.
Henry Maine (1877) famously described the development of western law
as a progressive move ‘‘from status to contract,’’ where the individual is seen
increasingly in terms of contract and action rather than status. Immigration
and alienage laws, which developed in earnest in the nineteenth century in
6 HAMSA M. MURTHY

the U.S., reintroduce the concept of ‘‘status,’’ albeit in a new, seemingly less
illiberal light.
More than any other prominent political theorist or philosopher of the
twentieth century, Hannah Arendt recognized the centrality of questions of
human migration and the rapidly developing positive laws of immigration
and alienage for the most urgent political questions of the day. As she wrote
in Origins of Totalitarianism:
The state inherited as its supreme function the protection of all inhabitants in its territory
no matter what their nationality, and was supposed to act as a supreme legal institution.
The tragedy of the nation-state was that the people’s rising national consciousness
interfered with these functions. In the name of the will of the people the state was forced
to recognize only ‘‘nationals’’ as citizens, to grant full civil and political rights only to
those who belonged to the national community by right of origin and fact of birth. This
meant that the state was partly transformed from an instrument of law into an
instrument of the nation. (Arendt, 1951, p. 123)

To be sure, the paradigmatically ‘‘tragic’’ nation-state that ultimately

came to recognize ‘‘only ‘nationals’ as citizens’’ was, for Arendt, the
German nation-state that had been engaging in the practice of denationa-
lization at least since World War I. But the fundamental problematic that
Arendt poignantly identified, namely the pivoting of the state ‘‘from an
instrument of law’’ into an ‘‘instrument of the nation,’’ all ‘‘in the name of
the will of the people’’ is, in essence, still the primary theoretical conundrum
of immigration and alienage law in all modern liberal democratic nation-
states. Even the United States, the modern political entity that had, for
Arendt, come closest to achieving the ‘‘condition of nationless statehood,’’6
struggled in her own time, and continues to struggle today, with the
questions of when and how the principles of nationalism – or rather more
specifically, the combined principles of ‘‘national sovereignty’’ and
‘‘democracy’’ – necessitate the exclusion and/or the differential treatment
of noncitizens.
The above point about democracy is crucial. Although in recent years
‘‘nationalism’’ and its close cousin, ‘‘national sovereignty’’ have been met
with suspicion among political theorists, ‘‘democracy’’ has remained
generally unassailable. Arendt, however, pointed to the deployment of
‘‘democracy’’ as a powerful justification for the differential treatment of
foreigners when she noted that the shifting of modern states from
‘‘instruments of law’’ to ‘‘instruments of nations’’ has happened ‘‘in the
name of the will of the people’’ (emphasis added). Careful interrogations of
explicit and implicit deployments of ‘‘democracy’’ as justification for the
exclusions of foreigners in various ways remain elusive.7 But ‘‘democracy,’’
Sovereignty and Its Alternatives 7

too must be looked at closely, in theory and on the ground, as both a mode
of justification for the exclusion of foreigners, and as a mode of their
inclusion.
In sum, Arendt’s theoretical apparatus is thus instructive for any analysis
of immigration and alienage in the United States, or any other
contemporary liberal democracy, not because Arendt was necessarily a
theorist of ‘‘open borders,’’ but precisely because Arendt was more generally
critical of declarations of law in modern, large nation-states, where law
seeks to declare borders, belonging, and rights in the name of citizens. And
the utility of Arendt’s framework for analysis of contemporary immigration
and alienage law goes well beyond Arendt’s point about the importance of
citizenship for rights in the twentieth century, or her sympathetic concern
for stateless persons and refugees (the two propositions for which scholars
of immigration most frequently cite her) to the more fundamental attributes
of her political thinking, as the ensuing discussion of mid-twentieth century
U.S. Supreme Court law seeks to demonstrate.
In 1958, in the case of Perez v. Brownell,8 then Chief Justice Earl Warren
objected strenuously to the Supreme Court’s upholding of a Congressional
statute that stripped Clemente Martinez Perez of his U.S. citizenship.
Writing in dissent, Warren argued that Congress was acting beyond the
rightful scope of its authority when it posited in 1940 that a native-born
citizen of the United States would necessarily forfeit his U.S. citizenship if he
were to vote in a foreign election.9 ‘‘Citizenship,’’ Warren proclaimed, ‘‘is
man’s basic right for it is nothing less than the right to have rights.’’10
Clemente Martinez Perez’s life story, which gave Warren the occasion for
his famous pronouncement on citizenship, was a narrative that exemplified
the conundrum of running into an incrementally constructed and equally
incrementally legalized U.S./Mexico border. Clemente Martinez Perez’s case
is arguably among the first modern illegal alienage cases, though not legally
framed as such11 Perez was born in El Paso, Texas in 1909, a time when
unregulated movement across the United States/Mexico border was
commonplace. He lived with his parents in Texas until age 9 or 10, at
which point he moved to Mexico with his parents. In 1928, he learned that
he had been born in the United States.12
Meanwhile, in 1924, the federal government passed a law that required
passports and visas for entrance to the United States,13 and in 1929, it began
using its discretionary administrative powers to deny these newly necessary
visas to Mexicans on grounds of putative illiteracy and likelihood to become
a public charge (Ngai, 2004, pp. 54–55). In 1943, Perez entered the United
States as a Mexican contract laborer, and he returned to Mexico in 1944. In
8 HAMSA M. MURTHY

1947, he applied for admission to the United States as a U.S. citizen. The
U.S. Immigration Service denied him entry on the grounds of his own
statements that he had voted in a Mexican election and failed to register for
the draft in the United States during World War II, thereby expatriating
himself under the Nationality Act of 1940. In 1952, Perez entered the United
States again as a contract laborer, and in 1953, he petitioned a federal
district court in San Francisco for a declaratory judgment stating that he
was in fact a U.S. citizen.14 Using the word ‘‘nationality’’ with more ease
than the word ‘‘citizenship,’’ the district court ruled that Perez ‘‘lost his said
nationality of the United States of America under the Nationality Act of
1940.’’15
Perez’s attorneys argued that expatriation could only result from a
voluntary relinquishment of citizenship on the part of a citizen, and that
Congress may not create a set of other incidentally ‘‘expatriating acts.’’16 A
majority of the Supreme Court could not accept this argument. The Court
affirmed that Congress was acting within the rightful scope of its power in
creating such ‘‘expatriating acts,’’ and that Perez could indeed have his U.S.
citizenship so stripped.
The Perez majority reasoned that although the Constitution did not
specifically grant to Congress the power to enact legislation for purpose of
governing ‘‘foreign affairs,’’ Congress must nonetheless have such a power
as an incident of the U.S.’s nation-state sovereignty (p. 57). Further,
although the Fourteenth Amendment stipulated that ‘‘All persons born or
naturalized in the United Statesyare citizens of the United States,’’ no
language in the Amendment, noted the Court, prevented Congress from
taking this citizenship away (p. 58). And even further, because voting in a
foreign election was an act ‘‘pregnant with the possibility of embroiling this
country in disputes with other nations’’ (p. 60) Congress must necessarily be
allowed to strip the citizenship of one who could so potentially embarrass
the United States. The Court, painting the image of a strikingly insecure
nation-state, reasoned that Clemente Martinez Perez’s lost birthright U.S.
citizenship must necessarily remain lost.
A mere nine years later, in Afroyim v. Rusk, the Court concluded that it had
been totally wrong in Perez.17Afroyim presented the Court with a Polish-born,
naturalized U.S. citizen who voted in an Israeli election in 1951 and thus lost
his U.S. citizenship at the altar of the same federal statute that had stripped
even the less willful, ostensibly more hapless Perez of his birthright U.S.
citizenship. But for the Afroyim Court, ‘‘inherent nation-state sovereignty’’ no
longer entailed the power to take away U.S. citizenship from those who would
not willingly relinquish it, as it had for the Perez Court just nine years prior.
Sovereignty and Its Alternatives 9

In 1967, in Afroyim v. Rusk, the Court declared that ‘‘In our country the
people are sovereign and the Government cannot sever its relationship to
the people by taking away their citizenship’’ (p. 257). For the Afroyim Court,
the Fourteenth Amendment’s silence on the issue of citizenship-stripping
meant not that Congress could engage in the practice if it wished, as the
Perez Court had reasoned, but rather precisely that Congress could not. For
the Afroyim Court, the Fourteenth Amendment’s words, ‘‘All persons born
or naturalized in the United Statesyare citizens of the United States,’’
contained ‘‘no indication of a fleeting citizenship, good at the moment it
is acquired but subject to destruction by the Government at any time’’
(p. 262). Thus, a once permissive silence in the Fourteenth Amendment
became a prohibitive silence. And because the Afroyim Court formulated
‘‘sovereignty’’ to rest now upon the shoulders of ‘‘the people,’’ the
government could not reduce the logically prior ‘‘people’’ by stripping
some, or perhaps potentially even all among them, of their citizenship. U.S.
citizenship, it seemed, was finally secure. But it was secure because the
Supreme Court finally declared it to be so in an era when such declaration
had become necessary.
Perez v. Brownell, although relegated to the nefarious category of fully
overturned U.S. Supreme Court case law, has continued to be cited in legal
scholarship on account of Earl Warren’s proclamation and protest that
‘‘Citizenship is man’s basic right for it is nothing less than the right to have
rights’’ (see, e.g., Aleinikoff, 1986, Note 42). However, as Warren himself
noted later in the passage, as a technical matter of U.S. law at the time,
citizenship was not in fact the only basis or ground for rights. Aliens did
enjoy some rights, despite always being subject to possible deportation. But
for Warren, such technicalities aside, the centrality of nation-state citizen-
ship to rights appeared unquestionable by 1958.
As others have noted, Warren echoed Hannah Arendt, though he did not
directly cite her.18 In 1951, in The Origins of Totalitarianism Arendt had
written:

We became aware of the existence of a right to have rights (and that means to live in a
framework where one is judged by one’s actions and opinions) and a right to belong to
some kind of organized community, only when millions of people emerged who have
lost and could not regain these rights because of the new global political situation.
(pp. 296–297)

The ‘‘new global political situation’’ to which Arendt was referring was
the post World War I era, during which new nation-states were carved out
of Eastern European soil. Ethnic or national minorities within these new
10 HAMSA M. MURTHY

states, wrought from the remnants of the Austro-Hungarian Empire,

suffered discrimination and citizenship stripping.
But the ‘‘new political situation’’ of the early twentieth century only made
excruciatingly visible something that, for Arendt, had begun with the
French Revolution. The French Declaration of the Rights of Man marked
the moment in which ‘‘man, and not God’s command or the customs of
history,’’ became ‘‘the source of Law’’ (p. 290). Ironically, as quickly as man
emerged as the source and speaker of law unto himself with certain so-called
inalienable rights, ‘‘he disappeared again into a member of a people’’ (p.
291). Arendt thus eulogized the ‘‘rights of man’’ as simply man. She
illuminated the fact that man, by the end of World War I, had to have his
belonging confirmed or rather declared by the positive law of a nation-state
in order to be assured of any rights at all, despite, or rather perhaps because
of his emergence as a lawgiver during the French Revolution. For Arendt,
the nation-state and its monopolistic ability to declare the rights of
citizenship, and consequently, also of alienage, had come to efface not only
man, as the ostensibly liberated source of law, but also the loss of other
important forms of political belonging. These occluded forms of political
belonging were engendered, organized, and made by man’s own speech and
actions in an open public sphere of actors rather than by prior or posterior
declarations of legislatures or judges.19
Thus, despite the similarity between Warren’s words and Arendt’s, and
despite legal scholars’ quickness to equate their statements, Warren and
Arendt made very different points in 1958 and 1951 respectively. While
Warren wrote declaratively ‘‘Citizenship is man’s basic right’’ Arendt wrote
more generally that after World War I, ‘‘We became aware of the existence
of a right to have rights.’’ Arendt strikingly did not use the word
‘‘citizenship,’’ suggesting that this problem of a ‘‘right to have rights’’ is
not limited to citizenship. She historicized and lamented the emergence of
this first or enabling right, whatever may be its foundation or name. Warren,
in contrast, dehistoricized and naturalized nation-state citizenship.
Perhaps because they have come to see Arendt’s text through Warren’s
famous dissent, or perhaps because they are immediately concerned with
arguing in a normative tenor against particular deprivations of citizenship,
U.S. legal and socio-legal commentators have generally missed Arendt’s
fundamentally historicizing critique of nation-state citizenship as ‘‘the right
to have rights,’’ and have themselves arguably unwittingly reified national
citizenship in the process.
Most importantly, in equating Warren’s no doubt contextually
‘‘progressive’’ position with that of Arendt, legal commentators have
Sovereignty and Its Alternatives 11

overlooked Arendt’s more general critique of the positive laws of political

membership. Under the lens of Arendt’s critique not of citizenship or state-
lessness per se, but rather of the modern nation-state law that necessitated
citizenship and made it so crucial in the twentieth century, Perez v. Brownell
and Afroyim v. Rusk appear as fundamentally similar artifacts rather than
the former nefarious and the latter magnanimous. Under one legal theory of
sovereignty and the Fourteenth Amendment, citizenship could be taken
away for a particular act. Nine years later, under another judicial view of the
same set of words, citizenship could not be taken away for this very act. As
the Perez and Afroyim cases taken together demonstrate, in the postwar era,
judge-made nation-state law became ultimately necessary to determine the
security and meaning, ironically, of even citizenship, ostensibly the primary
bulwark against the exercise of nation-state sovereignty, whatever it may be.
In terms of Arendt’s critique, that the courts had to declare that Congress
could not strip one’s U.S. citizenship against his will suggested not
necessarily only progressive legal ‘‘development,’’ or the ‘‘securing’’ of
important rights for historically subordinated persons, but also that some
prior certainty about citizenship had been lost.

FROM THE DILEMMAS OF CITIZENSHIP TO THE

DILEMMAS OF (ILLEGAL) ALIENAGE
The prior section has presented an argument that the emergence of a need
for a judge-made law to prevent U.S. citizenship stripping in the post World
War II era reveals how, even in a liberal democratic country that prided
itself on adherence to principles of freedom and limited government,
questions of citizenship and nation-state sovereignty had, by 1958, become
unstable. In moving from a discussion of the terms of the U.S. nation-state
law of ‘‘citizenship’’ to the U.S. nation-state law of ‘‘alienage,’’ new
questions emerge: If, as a matter of law, U.S. citizenship ultimately became
secure from involuntary withdrawal only because the Fourteenth Amend-
ment conceivably nullified Congress’s implied power to regulate foreign
affairs on the backs of citizens, were it not for whom Congress itself would
not exist, then what are the terms of ‘‘alienage,’’ where aliens are precisely
not part of ‘‘the people?’’
This section addresses these questions and shows how alienage cases
reveal alternatives to ‘‘nation-state sovereignty’’ in a way that the citizenship
cases discussed above did not and needed not. In the citizenship cases
12 HAMSA M. MURTHY

discussed in the previous section, the Court envisioned itself to be

determining the content of ‘‘sovereignty’’ and only ‘‘sovereignty.’’ In
contrast, the cases on alienage reflect recourse to alternatives to
‘‘sovereignty’’ in a way that the citizenship cases do not. This difference is
significant, as the ensuing sections show.
The U.S. nation-state law of alienage began primarily in the face of
Chinese immigration to the United States that threatened the racially
limited conception of U.S. nationhood in the late nineteenth century. The
nineteenth century terms of the U.S. law of alienage reveal the gradual
consolidation of nominally unfettered Congressional authority to limit entry
into the territory. Where this sovereign authority is limited, it is not limited
through a complete reformulation of sovereignty, as in the citizenship cases
discussed above, but rather by way of invocation of the ‘‘territorial
jurisdiction’’ of the federal courts. However, while scholars of U.S.
immigration and alienage law generally see these two lines of cases as
oppositional, with the former as generally ‘‘anti-immigrant’’ and the latter
as ‘‘pro-immigrant,’’ considering the two lines of cases anew from the
vantage point of Arendt’s critique of the law of nation-states suggests their
similarity. Crucially, both lines of cases have the effect of constituting and
buttressing national territorial consciousness and the power of a ‘‘national’’
state through declarations of law. While the former trades in inherent
authority, or ‘‘nation-state sovereignty,’’ to delimit exit and entry at the
national border, the latter applies law throughout a national territory. Both
constitute the nation through declarations of law, the former through the
imagery of borders, and the latter with reference to a uniformity of law
across the territorial inside. While legal scholars interpret the latter cases in
particular to stand for the proposition that there exists a norm of ‘‘universal
personhood’’ in U.S. Constitutional law, they overstate the extent to which
personhood alone is, or rather can now be spoken of, as a viable ground for
rights. The discussion below demonstrates this point.
In immigration and alienage law, the fact of nation-state sovereignty is
itself constantly constructed and reconstructed through the very positing of
the immigration and alienage law it merely grounds. The act of positing the
law draws the boundaries of the political community, whose seemingly
already existing sovereignty as a political community ostensibly grounded
the law that was just posited. This sovereignty, like the people of ‘‘we the
people’’ is at once the source of the emanating judgment, and yet also a
product of this judgment.
Jacques Derrida (1986, p. 10) makes a similar point about the
performative aspects of certain similarly declarative legal moments in his
Sovereignty and Its Alternatives 13

essay on the U.S. Declaration of Independence. Derrida notes, ‘‘The ‘we’ of

the declaration speaks ‘in the name of the people.’ But this people do not yet
exist. They do not exist as an entity, it does not exist, before this declaration,
not as suchyThe signature invents the signer.’’
Unlike the founding of the American republic, however, the performative
aspects of immigration and alienage law have not to do with the initial
constitution of a newly wrought and suddenly speaking, and potentially
equal group of citizens, as in ‘‘we the people.’’ Rather, in modern
immigration law, what is at stake is the construction of an already existing
community’s ‘‘sovereignty’’ against a changing but always necessarily
outside set of foreigners. In modern alienage law, at stake are the rights that
noncitizens may or may not share with citizens, coupled with exposition of
the grounds for the extension or non-extension of such rights. The
performative dynamic that Derrida describes thus repeats itself again and
again in a unique way in immigration and alienage law. The ‘‘sovereignty’’
that justifies territorial exclusion and the reserving of certain rights for
citizens is at once ostensibly the source of the emanating judgments and also
a product of those very judgments. This construction implies a particularly
positivist conception of law, as the analysis of the deployment of the concept
of sovereignty in foundational U.S. immigration and alienage law reveals.
Defending Congressional statutes passed in 1882 and 1888 that severely
restricted the immigration of Chinese nationals, the U.S. Supreme Court
declared in 1889 in Chae Chan Ping v. U.S., a case referred to by one recent
commentator as ‘‘the granddaddy of all immigration cases’’ (Legomsky,
2002, p. 13):

The power of exclusion of foreigners being an incident of sovereignty belonging to the

government of the United States, as part of the sovereign powers delegated by the
Constitution, the right to its exercise at any time when in the judgment of the
government, the interests of the country require it, cannot be granted away or restrained
on behalf of anyone.20

The Chae Chang Ping Court’s language, delivered in the face of silence on
the part of the U.S. Constitution as to Congress’s authority to regulate
immigration, depended on the notion of intrinsic nation-state sovereignty to
overcome the lack of an enumerated immigration power in the U.S.
Constitution. The ‘‘judgment of the government’’ as to the ‘‘interests of the
country’’ is the sole relevant consideration where the foreigner is a subject of
law and where exercise of nation-state sovereignty against the foreigner is at
issue. The case provided the view that law and also justice for the foreigner
are whatever Congress declares them to be. In this most positive of laws,
14 HAMSA M. MURTHY

there is transparently no necessary link at all between law and justice; the
‘‘validity’’ of law inheres in law’s source rather than its content.
A subsequent 1892 case, Ekiu v. the United States extended Congress’s
broad power to speak the justice of foreigners in whatever a manner it saw
fit to the executive branch. Ekiu posited unabashedly, ‘‘[T]he decisions of
executive or administrative officers, acting within powers expressly
conferred by Congress, are due process of law.’’21 And rounding out the
foundational inquiry into the relationship between nation-state sovereignty
and alienage, the 1893 case Fong Yue Ting provided that the power to
deport (not just the power to exclude at the border) was also an inalienable
right of ‘‘sovereign’’ nations, and one that may be exercised entirely through
administrative officers.22
‘‘Sovereignty’’ is thus a familiar, if shadowy, figure in U.S. immigration
and alienage law. But as legal commentators repeatedly and sometimes
triumphantly point out, the bodies of immigration law and alienage law in
the United States evince not just one, but rather two tropes – ‘‘sovereignty’’
as rule, and ‘‘territoriality’’ or ‘‘ethical territoriality’’ as its exception.
Conventionally and often triumphantly opposed to the three cases discussed
above is the 1896 case Wong Wing v. United States, nominally the first case
about ‘‘illegal alienage’’ to reach the U.S. Supreme Court.23
In 1892, four men charged with being ‘‘Chinese persons unlawfully within
the United States’’ were sentenced by a commissioner in a federal court in
Michigan to 60 days of hard labor and then deportation to China, pursuant
to an 1892 Congressional statute. Counsel for the Chinese nationals argued
that the provision of the statute that prescribed hard labor prior to
deposition inflicted ‘‘an infamous punishment’’ and thus violated the Fifth
and Sixth Amendments of the Bill of Rights, which together declared ‘‘that
no person shall be held to answer for a capital or otherwise infamous crime
unless on the presentment or indictment of a grand jury, and that in all
criminal prosecutions the accused shall enjoy the right to a speedy and
public trialy’’ (p. 234).
In declaring the portion of the statute that imposed hard labor prior to
deportation to be unconstitutional, the Court spoke of infelicitous
jurisdiction rather than of any universal, noncitizen personhood. According
to the Wong Wing Court, ‘‘To declare unlawful residence within the country
to be an infamous crime, punishable by deprivation of liberty and property,
would be to pass out of the sphere of constitutional legislation, unless
provision were made that the fact of guilt should first be established by a
judicial trial’’ (p. 237). As such, according to the Court, the commissioner
who sentenced the Chinese men to hard labor acted not unjustly, but rather
Sovereignty and Its Alternatives 15

‘‘without jurisdiction’’ (p. 238). In naming the relevant infelicity to be one of

an improper declaration rather than injustice, the Court revealed the
centrality of a law that was characterized by its commonality to the national
territory, and indeed, constitutive of this territory. The Court also revealed
little concern as to the content of justice in this law. The Court did not
appear to be categorically against the imposition of hard labor prior to
deportation. It rather insisted that such a penalty would be a criminal
penalty and as such, that guilt must be established by a judicial trial.
In coming to its conclusion, the Wong Wing Court drew heavily upon an
1886 case, Yick Wo v. Hopkins, in which the Supreme Court had held that
San Francisco could not use a facially neutral law to curtail the businesses of
legally resident, Chinese laundry operators.24 As the Wong Wing Court
noted, Yick Wo had indeed posited that, ‘‘The Fourteenth Amendment to
the Constitution is not confined to the protection of citizens. It says: ‘Nor
shall any State deprive any person of life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the law.’ These provisions are universal in their application to
all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or nationality’’ (p. 238). For the Wong Wing
Court, the Fourteenth Amendment’s deployment of the word ‘‘person,’’ and
crucially, the Yick Wo Court’s seeming insistence that the ‘‘within its
jurisdiction’’ applied both to the Due Process Clause of the Fourteenth
Amendment, where the prepositional phrase does not appear, and to the
Equal Protection Clause, where the phrase does appear, suggested that the
Fifth and Sixth Amendments, which spoke of a ‘‘person’’ and ‘‘the accused’’
respectively, must also apply to noncitizens as well as to citizens. For the
Wong Wing Court, all hypothetical persons and all accused persons that the
Fifth and Sixth Amendments had spoken of had become conceivable only
within a territorial jurisdiction.
Scholarly debate continues to this day as to whether Yick Wo was indeed
‘‘pro Chinese,’’ ‘‘pro alien,’’ or rather more simply and more crudely ‘‘pro
laundry’’ in an era in which the federal government strongly disfavored the
meddling of states and localities in any kind of profit producing enterprise
(see, e.g., Chin, 2008). While this discussion as to why Yick Wo came out the
way it did is likely interminable, Yick Wo’s terms nonetheless crucially
reveal an inextricable link between ‘‘personhood’’ and ‘‘territorial jurisdic-
tion’’ in U.S. law by the end of the nineteenth century. In the Fourteenth
Amendment and in the Fifth and Sixth Amendments, in Yick Wo, and in the
recitation of Yick Wo found in Wong Wing, the words ‘‘person’’ or
‘‘accused’’ appear in places that one might expect to find the word
16 HAMSA M. MURTHY

‘‘citizen.’’25 And the phrase ‘‘within the territorial jurisdiction’’ appears after
the word ‘‘person’’ in the section of the Fourteenth Amendment that
promises ‘‘equal protection of the laws,’’ if not in the Fifth and Sixth
Amendments. But ‘‘jurisdiction,’’ or rather the speech of the law of the
(territorial) community, always already preceded ‘‘personhood’’ (here the
normative significance of being merely a person) in an age when
communities were presumed to be made and remade only by nation-state
positive law.
The 1982 decision Plyler v. Doe is the final case in the set of cases that
legal scholars conventionally invoke to suggest ‘‘territoriality’’ as an
alternative normative register to sovereignty and Congressional plenary
power in modern U.S. immigration and alienage jurisprudence.26 As a
decidedly late twentieth-century case, Plyler reveals ‘‘social’’ concerns and
terms not in evidence in the late nineteenth-century Yick Wo and Wong
Wing cases, as the subsequent subsection of this essay will discuss in more
detail. For the present discussion on jurisdiction, Plyler marks the site of the
final answer to the question of whether jurisdiction could be anything other
than ‘‘territorial,’’ or put slightly differently, whether there could be any
personhood outside of the positive law of the national territory. Unsurpris-
ingly, the answer in Plyler was a resounding ‘‘no.’’
In Plyler, the Supreme Court found itself addressing the constitutionality
of a 1975 Texas statute which withheld from school districts state funds for
the education of children not legally authorized to be in the United States.
Further, the statute authorized school districts to deny illegal alien children
enrollment in schools (p. 206). Ultimately, in response to a class action filed
by students of Mexican origin who could not prove legal immigration status,
the Supreme Court held that the Texas statute violated the Equal Protection
Clause of the Fourteenth Amendment.
More important for the present discussion is the Plyler Court’s
commentary on the question of jurisdiction. The State of Texas argued
that there could be no equal protection infirmity at hand because the
Equal Protection Clause of the Fourteenth Amendment, unlike the Due
Process Clause of the same, contained the ‘‘within its jurisdiction’’ phrase
immediately after the word ‘‘person.’’ The State of Texas argued that
because they were not lawfully admitted, illegal aliens were not within
Texas’s jurisdiction and therefore could not be beneficiaries of whatever it
was that was in this matter ‘‘the equal protection of the laws’’ (p. 211).
The text of the Plyler case gives no indication that the State of Texas
suggested that the illegal aliens within its borders were subject to a different
kind of law, if not its territorial jurisdiction. In its brief to the court, however,
Sovereignty and Its Alternatives 17

Texas argued, ‘‘If an illegal entrant is not ‘within the United States,’ he is also
not a person within a state’s jurisdiction.’’27 But the State of Texas’s argument
fell on ears deaf to such an argument at least since the late nineteenth century.
The Plyler Court’s preferred imagery on the issue of jurisdiction was thus one
of federal positive law totally infiltrating a territory, regardless of whether
aliens had been blessed or anointed by law during admission. The Court noted
in summary, ‘‘Use of the phrase ‘within its jurisdiction’ thus does not detract
from, but rather confirms, the understanding that the protection of the
Fourteenth Amendment extends to anyone, citizen or stranger, who is subject
to the laws of a State, and reaches into every corner of a State’s territory’’
(p. 215). The subject of the predicate ‘‘reaches into every corner of a State’s
territory’’ is unclear. Presumably, ‘‘protection’’ is that which ‘‘reaches into
every corner of a State’s territory,’’ but in order for ‘‘protection’’ to extend, so
too much the positive law out of which ‘‘protection’’ emerges. Ultimately, the
image is profoundly one of the complete territorial reach of positive law and
thus the complete construction and rule of the territory. There exists, in the
imagery of Plyler, no conceptual outside to the territorial reach of federal law.
In sum, the aim here has not been to call into question the legal
correctness, importance, or even the liberality of these three landmark U.S.
Supreme Court cases. Rather, it has been to show these cases in lights
different from those in which they are usually presented. Specifically, the
aim here has been to show that what may be practical alternatives in
alienage law, namely ‘‘sovereignty’’ and ‘‘territoriality,’’ are alike in at least
one important sense: they together presume and rely exclusively upon an
understanding of law as only territorial positive law. But ‘‘sovereignty’’ and
‘‘territoriality’’ are also different in an important sense. While sovereignty is
overtly political, territoriality appears to be less so. As the next section will
discuss, this territorial conception of both law and justice bears particular
tension in contemporary normative debates, even as it is a significant and
important ground for the rights of illegal aliens in the United States.

THE LIMITS OF ‘‘ETHICAL TERRITORIALITY’’28

For legal scholars of U.S. immigration and alienage law who are concerned
with advocating for the rights of noncitizens, as a practical matter,
‘‘sovereignty’’ is generally the problem, and ‘‘territoriality’’ is generally the
preferred available solution, given the case law discussed above. They have
considered and critiqued the strong trope of nation-state sovereignty found
in these bodies of law, particularly in light of the failure of the U.S. Supreme
18 HAMSA M. MURTHY

Court to overturn the foundational statement of this sovereignty found in

Chae Chan Ping. They have suggested that ‘‘territoriality’’ holds the
antidote to sovereignty.
For example, T. Alexander Aleinikoff (2002, p. 183) has argued in a
normative tenor that ‘‘both sovereignty and membership need to be
reconceptualized in less rigid terms if we are to establish a political
regimeythat justly rules over the territory and inhabitants of the United
States.’’ For Aleinikoff, a certain strong conception of the sovereignty of the
nation-state vis-à-vis aliens appears to be the anachronistic obstacle
obstructing the path to more legal rights for aliens on U.S. territory.
Aleinikoff thus appears to suggest the replacement of ‘‘national sover-
eignty’’ with ‘‘national territory’’ as a more desirable normative engine for
immigration and alienage law.
Linda Bosniak has pointed out that alienage law, as distinct from
immigration law, does offer relatively more rights for the foreigner because
‘‘alienage as a legal category lies in the world of social relationships among
territorially present persons’’ (Bosniak, 2006, p. 38). Bosniak has further
attended to the tension between the lack of relief for a foreigner at the
border in the Chae Chan Ping case, and the more foreigner friendly holdings
of Yick Wo, Wong Wing, and Plyler v. Doe, where the rights of territorially
present aliens were at issue. Bosniak argues that taken together, these cases
demonstrate ‘‘a separate sphere of constitutional rights and obligations
available to all persons who are present within the United States territory, or
some part thereof’’ (2006, p. 55).
Both Aleinikoff and Bosniak do not discuss the ‘‘territorial jurisdiction’’
that is a necessary precondition of the limited territorial rights of aliens.
While ‘‘national sovereignty’’ and ‘‘territorial personhood’’ may appear to
Bosniak and to Aleinikoff as fundamentally oppositional, with the latter as
the best possible articulation of a ground for the generous treatment of
territorially present aliens, from the point of view of Arendt’s critique of the
positive laws of political community, as discussed above, national
sovereignty and national territorial personhood are two sides of the same
coin. Both reify national territory, national borders, and crucially the
positive law that constructs this territory and these borders. Both say little
about the actions of noncitizens.
Further, recognizable ‘‘universal personhood’’ would exist only within the
territory, suggesting that legally relevant ‘‘personhood’’ somehow does not
exist beyond the territory. In other words, grounding issues of justice and
the foreigner primarily in the language of national territory suggests that
those outside U.S. territory would never have moral claims to U.S. residence
Sovereignty and Its Alternatives 19

or citizenship, and that those inside the territory would have greater moral
claims merely by virtue of their presence within the territory, not on account
of their actions as persons. While these corollaries may be acceptable to
some proponents of ‘‘territorial personhood,’’ it does not follow why a
‘‘person’’ on the territorial inside is morally any different than a ‘‘person’’
on the territorial outside, if mere personhood is truly the only ground for
rights (cf. Bosniak, 2007). As the above discussion has argued, the U.S. legal
decisions that proffer the oxymoronic ‘‘universal territorial personhood’’
view may be seen rather to entail the construction and strengthening of a
territorial state through the uniform application of territorial jurisdiction
(Yick Wo and Wong Wing) and/or to manage, in addition, the concern
about economic or other inherently social aspirations across the territory
(Plyler).
More recently, Linda Bosniak has turned a critical eye toward the concept
of ‘‘ethical territoriality’’ in U.S. alienage law. She has argued that ‘‘[ethical
territoriality] promises more than it delivers. The rights and recognition it
actually demands for territorially present noncitizens are limited’’ (Bosniak,
2007, p. 409). To overcome the limits of territoriality as a ground for the
rights of noncitizens, Bosniak suggests the need for a ‘‘normative political
theory that attends to transnational connections.’’ Bosniak quotes hopefully
and suggestively from a 2006 work of political theorist Iris Marion Young,
which states that ‘‘Claims that obligations of justice extend globally for
some issues, then, are grounded in the fact that some structural social
processes connect people across the world without regard to political
boundaries.’’ Bosniak herself adds, ‘‘In the meanwhile, those of us working
on behalf of immigrants find ourselves facing a lag-time between our social
reality and our prevailing political concepts’’ (Bosniak 2007, p. 410). Young
and Bosniak thus appear to offer transnational ‘‘social processes’’ and
‘‘social reality’’ as possible antidotes to even ‘‘territoriality’’ or ‘‘ethical
territoriality,’’ though Bosniak concedes that the salience of ‘‘social
processes’’ as a justificatory ground for immediate legal advocacy on behalf
of immigrants is likely limited, presumably on account of the considerable
stronghold of the ‘‘sovereignty’’ vs. ‘‘territoriality’’ binary in U.S. law.
Nevertheless, an important new question emerges as to possible relation-
ships between the concepts of ‘‘territoriality’’ and ‘‘social processes and
reality’’ in law. Can recourse to ‘‘social process and reality’’ transcend the
difficulties and limitations posed by ‘‘ethical territoriality’’ as a ground for
the rights of foreigners? Young and Bosniak’s ostensible struggle to
articulate how it is that transnational ‘‘social process’’ could be something
more than ‘‘merely social’’ or even ‘‘merely international’’ in the face of the
20 HAMSA M. MURTHY

still powerful ‘‘nation-state sovereignty’’ is significant. This essay concludes

by addressing the emergence of a particular social consciousness in the
twentieth century U.S. positive law of illegal alienage.

ON THE IMPLICATIONS OF THE ‘‘RISE OF THE

SOCIAL’’ IN U.S. IMMIGRATION AND
ALIENAGE LAW
While the sections above have sought to demonstrate the implications of
Arendt’s critique of positive law for the U.S. laws of citizenship, alienage,
and illegal alienage, this final section takes as its point of departure
something that, as noted above, evinces itself in the course of juxtaposing
Plyler with the earlier nineteenth century cases that also confronted legal
alienage and illegal alienage. Though it held that illegal alien children were
not a suspect class requiring special constitutional protection, nor that
education was a fundamental right, the Court in Plyler nonetheless also held
that the State of Texas could not deny public primary and secondary school
education to illegal alien children. In doing so, the Plyler Court spoke of
‘‘the observation of social scientists’’ that public schools ‘‘inculcate
fundamental values necessary to the maintenance of a democratic political
system’’ (p. 221). In addition, the Court noted that, ‘‘education provides the
basic tools by which individuals might lead economically productive lives to
the benefit of us all’’ (p. 221). The Plyler Court thus deployed terms of
sociality and future economic productivity of a population in a way that the
Yick Wo and Wong Wing Courts did not.29 The text of Plyler thus reveals a
‘‘rise of the social’’ where illegal alienage is at issue. By turning to a ‘‘social’’
justification, the Plyler Court was able to grant educational rights to the
children of illegal aliens at the same as it reaffirmed that education was not a
‘‘fundamental right’’ and held that the children of illegal aliens were not a
‘‘suspect class’’ deserving of special protection. The ‘‘social’’ in Plyler may
be ‘‘pro alien’’ in its ultimate effect. But with what significant limits or
unexpected consequences? The Plyler case suggests that a turn to the
‘‘social’’ in alienage law effaces political recognition at law. Despite
employing some language about ‘‘fundamental values’’ and a ‘‘democratic
political system’’ the Plyler Court ultimately characterizes the children of
illegal aliens as potential resources, rather than as an unambiguously
politically deserving class (Constable, 1993).
Sovereignty and Its Alternatives 21

Here again, the work of Arendt is instructive. Though her ostensible

contempt for the ‘‘social’’ has offended many of her readers (Canovan, 1998,
p. xiii) a major preoccupation of Arendt’s work was the transformation of
political society into an increasingly producing and consuming one,
particularly in the twentieth century. If, for Marx, this was part of an
inevitable historical transformation, for Arendt, the process was much more
contingent. While she may have scoffed at the ‘‘economic’’ and ‘‘social’’ as
modes of government Arendt’s identification of the rise of social concerns in
politics is borne out in the language of the twentieth-century U.S. law of
political community and indeed in contemporary normative scholarly work
on immigration and alienage. At its core, Arendt’s critique of the ‘‘social,’’
found primarily in The Human Condition, had primarily to do with the
presumption of lack of political will and political recognition that the
‘‘social’’ as a ground for decision-making often brings with it. As such,
Arendt’s concern was with a ‘‘social’’ that effaces the ‘‘political,’’ or rather
depoliticizes the political and dehumanizes political subjects, capable of
unique thought and actions, into instruments of production, to be merely
governed for their productivity (Arendt, 1958, pp. 22–73).
As Hanna Pitkin has noted, the concept of ‘‘the social’’ is a pervasive and
yet profoundly unresolved one in the corpus of Arendt’s writings (1998). Yet
Arendt’s concern with the ‘‘rise of the social,’’ whatever its ultimate role in
Arendt’s theorizing, is strikingly borne out both in the Plyler Court’s
concern about the future economic productivity of a population and in the
general characterization of illegal aliens as primarily ‘‘merely economic
migrants.’’
Whatever its limitations, Arendt’s critique of ‘‘the social’’ suggests the
limitations of any conceptual opposition of the ‘‘pure politics’’ of ‘‘national
sovereignty’’ and ‘‘purely political persecution’’ on the one hand, against
the ‘‘mere economics’’ of illegal alienage on the other hand. As the refugee,
a figure prominent in Arendt’s mind, has become the paradigmatic figure of
recognizable political injury in twentieth-century U.S. law and international
law, the illegal alien has been constructed in opposition as a ‘‘merely
economic’’ migrant. The illegal alien is recognized by the state only because
of territorial presence, not on account of anything specific having to do
with her ‘‘personhood,’’ experiences, thoughts, or actions. As such, the
illegal alien is (asymmetrically) a potentially productive resource at best,
but also always, already a violator of law and the state’s sovereignty, which
ultimately undergirds the law of territory. Consequently, the Plyler Court
extended the privilege of public education to the children of illegal aliens as
a matter of policy, not of law (cf. Constable, 1993). Where ‘‘law’’ recognizes
22 HAMSA M. MURTHY

the claimant as deserving political actor vis-à-vis the sovereignty of the

state, ‘‘policy’’ recognizes only the state and its prerogatives (cf. Constable,
1993).
The ultimate category of ‘‘remainders’’ in U.S. immigration and alienage
law has thus shifted significantly from refugees and stateless persons to
illegal aliens, between 1951 when Arendt published Origins of Totalitarian-
ism, and 1982, when the U.S. Supreme Court published its Plyler opinion.
As Macklin (2007, p. 336) has noted, just as Arendt was publishing The
Origins of Totalitarianism, a new kind of international positive law on
refugees was emerging, as were new international administrative institutions
ostensibly determined to address the issue.30 The Office of the United
Nations High Commission on Refugees came into being on January 1, 1951.
In July 1951 the Geneva Convention on the Status of Refugees was signed.
The 1951 Convention concerned itself only with the aftermath of the
European wars of the previous decades; the Office of the High Commis-
sioner on Refugees was expected to solve its assigned problem and therefore
work itself completely out of existence in three years. Unsurprisingly, the
‘‘refugee problem’’ persisted. Furthermore, despite the 1951 Convention’s
undeniable post War War II, European genealogy, it became evident that
refugees existed beyond the European continent. As such, a 1967 Protocol to
the 1951 Convention eliminated the temporal and geographic limitations of
the 1951 Convention (Anker, 1994), suggesting that what was once
conceived of an exceptional situation of emergency had come to be
understood by then as a normal state of modern politics.
The narrowness of the U.S. statutory law of the refugee renders the
nationals of many countries ‘‘merely illegal aliens’’ rather than ‘‘deserving
refugees.’’ Refugee admissions to the United States number in the few
thousands each year; refugees become legal permanent residents. Those
deemed bona fide refugees join a recognizable trajectory toward citizenship,
should they desire to naturalize. They become immediately embedded in the
broader categories of ‘‘legal permanent residents’’ and then ‘‘citizens.’’ In
contrast, illegal aliens join no such trajectory and are added to a growing
number of already present illegal aliens. Therefore, illegal alienage has
emerged in the last three decades as the ultimate category of the remainders,
and the paradigmatic problem of U.S. immigration and alienage law, at
once created by law but also perceived as necessarily outside of the law
(cf. Coutin, 2000; Ngai, 2004).
A key point that this essay has sought to make is that illegal aliens are
indeed at once created by law and also outside the law, but not only because
they are unauthorized and therefore live sociologically within ‘‘shadows’’ or
Sovereignty and Its Alternatives 23

‘‘spaces of illegality,’’ as other scholars have noted. Rather, illegal aliens are
also outside the law because they are currently cast conceptually by law as
(merely) social migrants or territorially present persons – precariously
within the territory, which accords them some rights in the name of its own
‘‘territorial jurisdiction,’’ but at once outside the sphere of the political.31
The ramifications of this latter conceptual exclusion merit more attention
from political and legal theorists as well as socio-legal scholars. While there
may indeed be valid reasons for prioritizing the claims of those who suffer
particular types of persecution, the enduring question with which Arendt’s
critiques of leave us is the question of how to re-contextualize in more
nuanced political, but ‘‘non-territorial’’ and ‘‘nonsocial’’ terms the claims of
the now ‘‘merely social or economic’’ migrant. By mapping the constitutive
relationships of ‘‘sovereignty’’ and its alternatives as they are deployed in
U.S. law, this essay has sought to map anew the extant political theoretical
terrain of (illegal) alienage in U.S. law.

NOTES
1. Both quotations are taken from documents posted on the United Nations High
Commissioner for Refugees (UNHCR) website, http://www.unhcr.org/basics.html,
last accessed October 20, 2010. The first is from a document entitled ‘‘The World’s
Stateless People, Q&A.’’ A publication date is not noted. The second is taken from a
document entitled ‘‘1951 Refugee Convention Questions & Answers,’’ published
September 2007.
2. The term ‘‘remainders’’ is borrowed from the text of Bonnie Honig’s book
Political Theory and the Displacement of Politics (1993). In her book, Honig uses the
term ‘‘remainders’’ to refer to political disputes and political action that the state is
not able to contain by way of administrative plan or distributive program. Honig,
like other theorists who celebrate the conflict inherent in democracy, views the
uncontrollable aspects of modern ‘‘statecraft’’ or political life with great fondness.
My use of the term ‘‘remainders’’ is less normatively celebratory than Honig’s, but I
also mean to signify that which remains and does not fit into any easily governable
category, despite the nation-state’s best efforts to stipulate that it does not exist.
3. With respect to asylum in particular, Price (2009, pp. 13–14 ) argues that ‘‘we
should continue to think about asylum’s purpose in political rather than
humanitarian terms.’’ Price would likely support the bifurcation between the
authentically political injured migrant (refugee or aslyum seeker) and the merely
social or economic migrant without papers (illegal alien). He adds, ‘‘[P]ersecuted
people face a distinctive kind of harm that sets them apart from other people who
need protection abroad. They do not merely experience insecurity; they are targeted
for harm in a manner that repudiates their claim to political membership.’’ Price thus
names more clearly than most courts and scholars what he thinks asylum is meant to
give back to a successful applicant – political membership. But Price overestimates
24 HAMSA M. MURTHY

the capacity of those not politically persecuted at the moment, but nonetheless
severely beleaguered, to participate in political community.
4. By ‘‘positive law’’ I mean law as an enacted system of rules that is written,
emerges from an identifiable source, and has no necessary relation to justice. The
validity of positive law is not a question of its justice, but rather a question of its
source. See Constable (2005) for an elaboration of this point and also for a
discussion of how silence, not simply ‘‘natural law,’’ is an important alternative to
positive law because it shows positive law’s limits. Positive law’s lack of relationship
to justice is an aspect of positive law that most legal scholars, trained as they are to
search for ‘‘the law’’ in statute books and case law, scarcely consider. Illegal alienage,
however, is a contemporary phenomenon that seems to highlight that ‘‘law’’ and
‘‘justice’’ are not necessarily the same, that illegal alienage may be normatively more
than simply about ‘‘law-breaking.’’
5. Critical theorists, who share an intellectual tradition with Arendt, have brought
up this problem of unwittingly strengthening state institutions particularly with
reference to feminist legal reform projects. Wendy Brown (1995), for example, has
argued that appealing to the state for redress sometimes has the unfortunate side
effect of strengthening the power of the state to construct identity and also to
promote certain essentialist conceptions of gender. The question of whether appeals
to state institutions have the undesirable side effect of strengthening the state
becomes even more complicated in analyzing the politics of immigration and
alienage, as the identity category at issue, namely alienage, is entirely a product of the
state. Nonetheless, looking at immigration and alienage law through the warnings
posed by critical theorists suggests that the ‘‘state’’ may not be as unitary or as
powerful as critical theorists presume.
6. The phrase is taken from Ronald Beiner’s essay, ‘‘Hannah Arendt as a Critic of
Nationalism.’’ See Beiner (2003, p. 140).
7. See Song (2009) for discussion of the ways in which defenders of citizenship in
liberal democratic nation-states must better defend closed national borders vis-à-vis
democratic theory. Contemporary democratic theory, Song argues, suggests, at least
at first glance, the need for radical inclusion of noncitizens and those beyond a state’s
territorial borders in so far as the state’s actions affects these (nominal) outsiders.
8. Perez v. Brownell, 356 U.S. 44 (1958).
9. Specifically, at issue in the case was Section 401 (e) of the Nationality Act of
1940, 54 Stat.1137. Lower courts had ruled that Perez lost his U.S. citizenship for the
additional reason, stipulated in Section 401 (j) of the same Act, of having remained
‘‘outside of the jurisdiction of the United States in time of war or during a period
declared by the President to be a period of national emergency for the purpose of
evading or avoiding training and service in the land or naval forces of the United
States.’’ The Supreme Court in Perez declined to rule on the constitutionality of the
latter provision.
10. Perez v. Brownell, 356 U.S. at 64 (C.J. Warren, dissenting).
11. Ngai (2004, pp. 127–128) makes a similar point about Perez, but her emphasis
is on Perez as an exemplar of ‘‘the heterogeneous and transnational character of the
Mexican/ American political subject.’’ My interest here is in the language through
which the Perez Court conceived of possible relationships between nation-state
Sovereignty and Its Alternatives 25

sovereignty and Perez’s would be ‘‘citizenship’’ rights, given the facts that the Court
had before it.
12. Perez v. Brownell, Brief for the Petitioner, 3.
13. See Act of May 25, 1924, Sec 2(a).
14. Perez v. Brownell, Brief for the Petitioner, 3–4.
15. Perez v. Brownell, Transcript of Record, 11–12. In its very last sentence, the
district court opinion notes, ‘‘[P]laintiff is not a national or a citizen of the United
States of America.’’ Warren notes in his dissent that it is disingenuous to speak in
terms of loss of nationality only, as if loss of nationality is not loss of citizenship in
this case. See Perez v. Brownell, 356 U.S. at 63 (C. J. Warren, dissenting. While
‘‘nationality’’ may have been a broader term, referring to those who were under U.S.
rule despite not being citizens (as, for example, the citizens of contemporary Puerto
Rico or formerly, the citizens of the Philippines), Warren’s statement reflected the
then already apparent disparity between the ‘‘rights of nationality’’ and the ‘‘rights of
citizenship.’’
16. Perez v. Brownell, Brief for the Petitioner, 4–6.
17. Afroyim v. Rusk, 387 U.S. 253 (1967).
18. The only work published after 1951 which Warren cites to support this
proposition is a comment in the Yale Law Journal, 64 Yale L. J. 1164 (1955). This
comment does not cite Arendt. Aleinikoff (1986) appears to be the first U.S. legal
scholar to remark upon this similarity between the words of Arendt and Warren.
19. Arendt privileges speech and political action over work. The view of
citizenship that owes to Arendt and is introduced in this essay is likely what others
dismiss as ‘‘high citizenship.’’ But it does not have to be necessarily thought of as
‘‘high,’’ or ‘‘anachronistic,’’ but more practice or action-based, and thus less
adequately delimited by positive law. Again, positive law presents a particular
problem of justice in matters of alienage because it evaluates persons not primarily
on the basis of actions, but rather on the basis of status as noncitizens. As a matter of
legal history, which, by showing law’s past also opens up possibilities for its future,
the mixed jury, where community was based on language, and law and community
were conceived to inhere primarily in language and custom, presents a less positivist
conception of both law and citizenship (Constable, 1994). Because we in the present
are so accustomed to thinking of citizenship as necessarily a status determined by
closed borders and the positive law that makes these borders closed, thinking
‘‘outside these borders,’’ as it were, appears difficult. Thinking in terms of
‘‘transnationalism’’ or ‘‘cosmopolitanism,’’ two words that invoke overcoming,
surpassing, or transcending still wholly constituted nation-states with likely
‘‘transnational’’ or ‘‘cosmopolitan’’ forms of positive law is not as oppositional as
may first meet the eye (cf. Honig, 2003). The goal here is to suggest another way of
thinking, namely that there are limits to the power of positive law in matters of
immigration, alienage, and national politics in general, and that these limits have
already opened up new possibilities for present and future law.
20. Chae Chang Ping v. U.S., 130 U.S. 581, 583 (1889).
21. Ekiu v. U.S., 142 U.S. 651 (1892).
22. Fong Yue Ting v. U.S., 149 U.S. 698 (1893).
23. Wong Wing v. U.S., 163 U.S. 228 (1896).
24. Yick Wo v. Hopkins, 118 U.S. 356.
26 HAMSA M. MURTHY

25. The historical reasons for this, though interesting on their own terms, is
beyond the scope of the analysis here. Briefly, ‘‘citizenship’’ was ambiguous both
during the founding of the U.S. (the period in which the Bill of Rights were crafted)
and also after the emancipation of slaves after the Civil War (the period when the
Fourteenth Amendment was crafted). During the founding period, the ambiguity of
citizenship extended to the citizenship of the once British subjects who now together
constituted ‘‘we the people.’’ The extent to which once British subjects could decide
to no longer be British subjects in favor of being U.S. citizens was a most
inconvenient issue. See Cohen (2007) for a discussion of this problem.
26. Plyler v. Doe, 457 U.S. 202 (1982).
27. 1980 U.S. Briefs 1538, 24.
28. Again, the term ‘‘ethical territoriality’’ is taken from Bosniak (2007,
pp. 389–390). She defines the term as ‘‘the conviction that rights and recognition
should extend to all persons who are territorially present within the geographical
space of a nation-state by virtue of that presence.’’
29. Constable (1993) takes up these very passages and analyzes them with
reference to Foucault’s conception of the interplay of sovereignty and govern-
mentality in modern law. Drawing on Foucault, Constable makes a similar point to
the one made here with reference to Arendt. A distinction, however, between the
discussion of Plyler here and Constable’s discussion of the same case is that the
analysis here seeks to juxtapose ‘‘territoriality’’ and ‘‘the social’’ as alternate grounds
for the rights of illegal aliens.
30. In her text, Arendt was particularly dismissive and critical of the League of
Nations, which was then charged with safeguarding the rights of those whom the
Minority Treaties covered. She wrote, ‘‘Not that the minorities would trust the
League of Nations any more than they had trusted the state peoples. The League,
after all, was composed of national statesmen whose sympathies could not but be
with the unhappy new governments which were hampered and opposed on principle
by between 25 and 50 percent of their inhabitants. Therefore, the creators of the
Minority Treaties were soon forced to interpret their real intentions more strictly and
to point out the ‘duties’ the minorities owed to the new statesy’’ (Arendt, 1951,
p. 272).
31. For a particularly interesting sociological discussion of how many undocu-
mented immigrants experience both inclusion and exclusion in daily life see
Menjivar (2006). This sociological analysis echoes the conceptual point of this
essay, namely that illegal aliens are at once within the territorial jurisdiction of the
United States and at the same time, outside the sovereign political space.

REFERENCES
Aleinikoff, T. A. (1986). Symposium on law and community: Theories of loss of citizenship, 84
Michigan Law Review, 1471.
Aleinikoff, T. A. (2002). Semblances of sovereignty: The constitution, the state, and American
citizenship. Cambridge: Harvard University Press.
Anker, D. (1994). The law of asylum in the United States. Washington, DC: American
Immigration Foundation.
Sovereignty and Its Alternatives 27

Arendt, H. (1951). The origins of totalitarianism. New York, NY: Harcourt.

Arendt, H. (1998 [1958]). The human condition. Chicago, IL: University of Chicago Press.
Beiner, R. (2003). Liberalism, nationalism, and citizenship: Essays on the problem of political
community. Vancouver: University of British Columbia Press.
Bosniak, L. (2006). The citizen and the alien: Dilemmas of contemporary membership. Princeton,
NJ: Princeton University Press.
Bosniak, L. (2007). Being here: Ethical territoriality and the rights of immigrants. Theoretical
Inquiries in Law, 389.
Brown, W. (1995). States of injury: Power and freedom in late modernity. Princeton, NJ:
Princeton University Press.
Canovan, M. (1998). Introduction.’’ The human condition. Chicago, IL: University of Chicago
Press..
Chin, G. (2008). Unexplainable on grounds of race: Doubts about Yick Wo. University of
Illinois Law Review, 1359.
Cohen, E. (2007). Carved from the inside out. In C. Swain (Ed.), Debating immigration.
New York, NY: Cambridge University Press.
Constable, M. (1993). Sovereignty and governmentality in modern american immigration law.
Studies in Law, Politics, and Society, 249.
Constable, M. (2005). Just silences: The limits and possibilities of modern law. Princeton, NJ:
Princeton University Press.
Constable, M. (1994). The law of the other: The mixed jury and changing conceptions of
citizenship, law, and knowledge. Chicago, IL: University of Chicago Press.
Coutin, S. (2000). Legalizing moves: Salvadoran immigrants’ struggle for U.S. residency.
Ann Arbor, MI: University of Michigan Press.
Derrida, J. (1986). Declarations of independence. New Political Science, 7.
Hinsley, F. H. (1966). Sovereignty. New York, NY: Basic Books.
Honig, B. (1993). Political theory and the displacement of politics. Ithaca, NY: Cornell
University Press.
Honig, B. (2003). Democracy and the foreigner. Princeton, NJ: Princeton University Press.
Krasner, S. (1999). Sovereignty: Organized hypocrisy. Princeton, NJ: Princeton University Press.
Legomsky, S. (2002). Immigration and refugee law and policy. New York, NY: Foundation
Press.
Macklin, A. (2007). Who is the citizen’s other? Considering the heft of citizenship. Theoretical
Inquiries in Law, 333.
Maine, H. (1877). Ancient Law. New York, NY: H. Holt and Company.
Menjivar, C. (2006). Liminal legality: Salvadoran and Guatemalan immigrants’ lives in the
United States. American Journal of Sociology, 999.
Ngai, M. (2004). Impossible subjects: Illegal aliens and the making of modern America. Princeton,
NJ: Princeton University Press.
Pitkin, H. (1998). The attack of the blob: Hannah Arendt’s concept of the social. Chicago, IL:
University of Chicago Press.
Price, M. (2009). Rethinking asylum: History, purpose, and limits. New York, NY: Cambridge
University Press.
Song, S. (2009). Democracy and noncitizen voting rights. Citizenship Studies, 607.
Waldron, J. (2000). Arendt’s constitutional politics. In D. Villa (Ed.), The Cambridge companion
to Hannah Arendt. Cambridge: Cambridge University Press.
INTERROGATING BIRTHRIGHT
CITIZENSHIP

Peter J. Spiro

ABSTRACT
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 require-
ments 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.

Born in the United States but removed at an early age when his parents
returned to Saudi Arabia, Yasser Hamdi did not even know that he was a
U.S. citizen at the time of his apprehension by U.S. forces in Afghanistan

Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality
Studies in Law, Politics, and Society, Volume 60, 29–53
Copyright r 2013 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000060006
29
30 PETER J. SPIRO

and his subsequent transfer to Guantanamo Bay. When discovered, his

citizenship status resulted in his relocation to the mainland; the Supreme
Court ultimately found him entitled to procedural due process, in a decision
that by its terms hinged on the fact that he was an ‘‘American.’’ Hamdi was
in no way a member of the community of Americans defined in any on-the-
ground, organic sense. And yet most commentators accepted his status as a
citizen and associated rights (e.g., Berman, 2002). Perhaps more surpris-
ingly, no one in the Bush Administration nor on the Supreme Court
suggested that he should be considered otherwise.
Birthright citizenship presents a puzzle. Why should location at the
moment of birth determine one’s life-long national membership?
This contribution considers the question in both historical and
contemporary context. By birthright citizenship, I mean the near-absolute
rule of jus soli under which birth in the territory of the United States
qualifies an individual for citizenship on a constitutionally irrevocable basis.
The paper first describes the logic of birthright citizenship. The practice
makes sense only insofar as place of birth correlates with lifetime
trajectories, that is, insofar as place of birth has supplied a proxy for social
membership. That empirical premise supported a human rights justification
for a strong jus soli regime.
The premise looks unstable in contemporary perspective. Hamdi’s case is
not an outlier. As circular migration increases, many who are born in the
United States will leave permanently at an early age. It is not clear why they
should be able to take their citizenship with them. In this context, I also
critique the liberalized basis for acquiring citizenship on the basis of
parentage, under which individuals born abroad to U.S. citizens are
extended citizenship for life with no requirement that they ever so much as
set foot in the territory of the United States. Their numbers will also grow as
the number of naturalized U.S. citizens return to their homelands. In both
cases, the prospect is an increasing disconnect between the formal and social
boundaries of community.
This disconnect could be addressed by the adoption of presence
requirements beyond birth. In the jus soli framework, individuals born to
noncitizens in the territory of the United States would be required to live in
the United States for some period thereafter, at which point community
membership could more safely be assumed. Other countries use this
approach. Similarly, as was formerly the case under U.S. nationality law,
individuals born to citizens outside the United States could be required to
establish residency in the United States for some subsequent period by way
of perfecting their citizenship status.
Interrogating Birthright Citizenship 31

Both changes would be consistent with liberal values and with

international human rights regimes. Citizenship has never been for the
asking. It is an inherently exclusionary institution. Insofar as the liberal state
must be built on territorially located ‘‘communities of character,’’ in
Walzer’s formulation, liberal nationalists might be expected to accept the
changes. As long as habitual residents are afforded relatively easy access to
citizenship and the full membership that it represents, it is not clear how
they would defend the membership of nonresidents, at least where other
metrics betray a lack of community membership.
Citizenship scholars in the United States have for the most part failed to
train critical sights on absolute birthright citizenship. Given the prevalence
of alternative approaches in other countries, this failure may be explained by
the political valence of birthright citizenship and its relationship to highly
charged debates regarding immigration policy. A liberal critique of absolute
birthright citizenship, it is feared, will play into a restrictionist agenda.
However, it is unlikely that the United States will move to condition birth
citizenship on residency requirements. Beyond the academy, this is a matter
of politics, ordinary and constitutional. More interestingly, it may evidence
the declining salience of citizenship as a form of association. To the extent
that the birth citizenship regime is overinclusive of community, the
phenomenon creates a feedback loop of diminishing expectations. The less
salience citizenship has to community, the less its boundaries will be policed,
which will in turn make it less salient still.

THE EVOLUTION OF TERRITORIAL BIRTHRIGHT

CITIZENSHIP IN THE UNITED STATES
All states have provided for the automatic conferral of birth citizenship to
some class of persons, by way of ensuring perpetuation of the community.
Birth citizenship has been granted either on the basis of parentage (known
as the rule of jus sanguinis, the right of the blood) or place of birth (jus soli,
or right of the soil). In the ancient world, birth citizenship was extended only
on the parentage criteria. In Greece and Rome children enjoyed citizenship
at birth only where at least one of their parents was a citizen (at some points,
both parents had to be citizens in order for the status to pass to their
children). Acceptance of slavery and other forms of status subordination
demanded a jus sanguinis approach, for the population of slaves and other
noncitizens needed to be maintained along with that of the citizenry. Even
32 PETER J. SPIRO

with the abolishment of slavery, the rule of jus sanguinis still persisted into
the modern era in civil law countries such as Germany and France.
The rule of jus soli was established under the English common law. In the
1608 decision in Calvin’s Case, Edward Coke held that a child automatically
and indissolubly became a subject of the sovereign into whose protection he
was born. This conclusion evolved from the medieval system of hierarchical
status and reciprocal obligation; the child enjoyed protection of the
sovereign, in return for which ‘‘Ligeance or Obedience of the Subject to
the Sovereign [was] due by the Law of Nature.’’ The theory did not hinge on
a territorial principle. However, as a practical matter it rendered the place of
birth determinative for purposes of nationality. In the overwhelming
majority of cases, a child would enjoy the protection of the sovereign in
whose territory he was born and thus be deemed a subject of that sovereign.
The common law rule was adopted by the newly independent United
States as a matter of custom and as applied to whites only. The original U.S.
Constitution made no provision for the determination of citizenship beyond
affording Congress the power to adopt standards for naturalization. The
first Congress extended birth citizenship to the children of American citizen
fathers born abroad, but not where the father had never been resident in the
United States, thus adopting a limited form of jus sanguinis.
The issue of birth citizenship stood at the core of the race controversy.
The South would not have accepted an absolute rule of jus soli. That would
have translated into citizenship for the children of slaves, which would have
interfered with their property rights under the slavery regime. The South
could not tolerate national citizenship even of free blacks and their
offspring. Slaveholding interests saw free blacks as subversive of the
institution and as instruments and instigators of slave revolt. Many slave
states had what were considered necessary protective measures constraining
the activities of free blacks sojourning in their jurisdictions, in some cases
barring the entry of free blacks altogether (Neuman, 1996, pp. 34–40). Such
laws would have been unconstitutional had free blacks enjoyed the status of
national citizens. For their part, antislavery forces would have rejected a
rule of jus soli excluding blacks. Jus soli was uncontested as a matter of
practice with respect to whites, most importantly with respect to the children
of immigrants, who often could not claim citizenship through parentage
(Kettner, 1978). In the face of the race question, however, the issue did not
lend itself to political resolution.
The courts could not avoid the issue. The matter came to a head in Dred
Scott v. Sandford. Scott claimed that he became a free man when his owner
transported him into a territory in which slavery was prohibited. In order
Interrogating Birthright Citizenship 33

for the Court to entertain that claim, it first had to find that if free, Scott
would qualify as a citizen, for the courts were jurisdictionally empowered to
hear claims of citizens only. The Court concluded that blacks could not hold
citizenship in the nation.
The Fourteenth Amendment reversed Dred Scott, providing that ‘‘all
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and the state wherein
they reside.’’ The provision codified the common-law rule and adopted a
territorial basis for birth citizenship under which place of birth became the
determinant of citizenship status at birth. Thereafter blacks born in the
United States enjoyed a constitutionally protected right to national
citizenship. With respect to most others, the territorial basis for birth
citizenship was settled.
The Fourteenth Amendment left room for ambiguity with respect to
significant groups, however. First were the children of Asian immigrants
who remained ineligible to become citizens under racially qualified
naturalization measures (which persisted in some form until 1952). In
Wong Kim Ark (1898), the Supreme Court found such individuals entitled to
citizenship, concluding that the Fourteenth Amendment was not intended to
diminish the common-law rule and highlighting a specific purpose on the
part of its sponsors to include the children of such Asian immigrants.
Second was the question of how the Citizenship Clause applied to Native
Americans. In this context the qualifying phrase ‘‘subject to the jurisdiction
thereof’’ created the ambiguity. In Elk v. Wilkins (1884), the Supreme Court
found Indians not constitutionally entitled to birth citizenship. The Court
characterized Indians as owing ‘‘immediate allegiance to their several
tribes,’’ and thus ‘‘were not part of the people of the United States.’’
Congress, however, subsequently extended birth citizenship to Native
Americans by statute, in 1887 to those not living on tribal lands and in 1924
to all Native Americans. Similar statutory grants of birth citizenship have
been extended to those born in Puerto Rico, Guam, and (with the exception
of American Samoa) all other U.S. territories. As a matter of personal
status, individuals acquiring citizenship through these statutory provisions
and not by virtue of the Fourteenth Amendment suffer no disadvantage. No
effort has been made to reverse these extensions of birth citizenship, at least
not by anyone outside the communities affected.1 Birthright citizenship by
statute has been indistinguishable from birthright citizenship under the
Constitution.
Third, there has been the question of how the Citizenship Clause applies
to the children of undocumented aliens. The Supreme Court has never
34 PETER J. SPIRO

definitively resolved the issue. Instead, the citizenship of such individuals has
been assumed for legal and other purposes. It is reflected in the fact that one
need only prove birth in the United States, and not the lawful immigration
status of one’s parents, in order to claim citizenship for such purposes as
passport issuance.
The Fourteenth Amendment, coupled with the cases, statutes, and
administrative practice, adds up to a near-absolute rule of territorial
birthright citizenship. Any child born in the United States, with the minor
exception of the children of diplomats accredited to the United States, is a
citizen at birth.

THE LOGIC OF BIRTHRIGHT CITIZENSHIP

The logic of territorially determined citizenship has been powerful as a
historical matter, in both an instrumental and normative frame. From the
state’s perspective, the rule guaranteed the growth of the citizenry and the
manpower required to support the nation’s defense (Torpey, 2000, p. 72).
For a country of immigration, territorial birthright citizenship served as a
mechanism of legal assimilation. Even if immigrants failed to naturalize (a
process requiring an affirmative application), their children passively
acquired citizenship. Without birthright citizenship, the population of the
United States would have been a citizenship patchwork. This would have
been intolerable in a day when allegiance to sovereign implicated substantial
obligation.
Expansive territorial birth citizenship has also translated into continuing
administrative efficiencies. To claim citizenship, one need prove place of
birth in the United States only. If citizenship were contingent on a parent’s
citizenship or lawful immigration status, individual citizenship cases would
often pose difficult evidentiary calls, taxing the immigration bureaucracy
(Brubaker, 1992, p. 32; Shachar, 2009, pp. 140–141).
In a normative frame, the strict rule of jus soli has ensured that status
discrimination against undocumented aliens will not generate a hereditary
underclass. Jus soli stands on an anti-caste foundation (Bosniak, 2007).
Undocumented status results in a variety of legally sanctioned disabilities,
including the locational insecurity. This insecurity makes illegal aliens
vulnerable to exploitation. In the labor context, for instance, where
although they technically enjoy the protection of the law they are as a
practical matter unlikely to seek vindication under it. They are also ineligible
Interrogating Birthright Citizenship 35

for most public benefits. Allowing such discrimination on an intergenera-

tional basis would present human rights concerns.
The anti-caste argument may not be one about citizenship so much as it is
about legal residency status. Affording the children of undocumented aliens
some sort of permanent residence status could satisfy the objection.
Noncitizens born in the United States could be immunized from deportation
even if they engaged in criminal behavior that would otherwise render them
deportable on a substantive due process basis (Aleinikoff, 2002). As legal
residents they would enjoy almost all the rights (save some rights of political
participation) that are enjoyed by citizens.
Legal residency, however, would not fully satisfy anti-caste concerns.
Persons born in the United States, regardless of parentage, could in many
cases be expected to make their lives in the country and to become members
of the national community as a matter of social fact. In that case, any status
less than full membership violates equality norms. To the extent that
children born in the territory of the United States are likely to become
members of the community, equality demands the extension of citizenship.
This may explain why birth citizenship is extended to the children of legal
immigrants. Likewise, illegal immigrants often become members of the
community as a matter of social definition (often leading ordinary lives, even
against the threat of deportation). In historical cycles of amnesty, they have
been regularized as legal residents and thereafter as citizens. The children of
these immigrants have been as likely, as a matter of social existence, to
become a part of the community as have the children of legal immigrants.
The law of birth citizenship has reflected this phenomenon. To the extent
that the children of immigrants (legal and illegal) have become members of
the community, it would offend liberal values not to afford them full status
equality. These values are entrenched as a metanorm of Western
constitutional democracy. As Walzer observes, modern liberal democracy
cannot comprehend the classical institution of the metic, the hereditary
status above slave but below citizen (Walzer, 1983). It is not merely
progressivism that supports equal legal membership for those who are
members in fact, but rather an understanding that pervades the political
spectrum. Equality of status among community members presents an
incommensurable value.
In comparative perspective, Germany supplies further support for the
proposition. In Germany, citizenship law issues have been the focus of
major national debates. It had long been the case that children born in
German territory to non-Germans were denied citizenship at birth, although
they were granted all other rights of legal residence (including the
36 PETER J. SPIRO

substantial benefits of the German welfare state). This regime resulted in

successive generations of noncitizens, especially from Turkey. Birth citizen-
ship was denied even the child of the parent born and thereafter resident in
Germany. In the face of sustained protests from the Turkish community, the
regime proved unsustainable. In 2000 the German citizenship law was
amended to extend citizenship on a limited jus soli basis.
Because those born in Germany had been afforded near equal legal status
even as noncitizens, developments there cannot be fully explained from a
rights perspective. The longstanding approach failed to recognize the multi-
generational Turkish inhabitants as the members of the community that
they had become. German opposition to reform can be interpreted through
this frame. Opposition to birth citizenship has been founded on the ground
that the German-born Turks were in fact not a part of the German
community, nor likely to integrate to it simply by virtue of their birth and
subsequent territorial residence. The Turks had come to Germany as guest
workers; there had been no intention of assimilation, and assimilation was
retarded, but to some degree nonetheless inevitable. Germany had been the
last Western stronghold of an exclusively jus sanguinis regime (Joppke, 2010,
p. 40). Its recent recognition of the territorial premise demonstrates that far
from uniquely American, some form of jus soli may now represent an
emerging international norm.
In the United States, the fact and tradition of integration established the
territorial premise as a cornerstone of citizenship practice. The issue was
about recognizing the membership of those already a part of the community
through birth and presence thereafter. This community lens undermines
policy arguments against birthright citizenship, such as those advanced by
Schuck and Smith (1985). The danger of intergenerational caste outweighs
the marginal additional incentive for illegal immigration. Citizenship is not a
zero-sum proposition, a question of who will be granted one of a limited
number of admission slots. It is a mechanism for drawing the boundaries of
the community, whether it be small or large, and for facilitating self-
governance within the polity.

BIRTHPLACE CITIZENSHIP AND CIRCULAR

MIGRATION
Place of birth once largely coincided with subsequent community identity.
As such it was a proxy for measuring actual community membership.
Interrogating Birthright Citizenship 37

Birthplace supplied a correlate for the ultimate, but less determinable,

objective of the citizenship decision to mark community boundaries. To the
extent that place of birth no longer represents an accurate predictor of life
associations, continued use of the territorial premise creates a disjunction
between the legal and organic boundaries of the national community.
As a community marker, the territorial premise has historically been
overinclusive. There have been persons who have secured citizenship under
it who have no affective tie to the American community. Although born in
the United States, some individuals have not matured as American in any
social sense. In the face of limited mobility and the integrationist tradition,
this group of citizens has never been proportionally large. In an inter-
national context in which multiple nationality was highly disfavored, those
who through accident of birthplace were extended U.S. citizenship often
renounced or forfeited it by actively engaging as citizens of the other country
of genuine affiliation (Spiro, 2008, ch. 3). In these circumstances, the
administrative convenience of birthplace as a predictor of actual community
attachment outweighed any community dilution that might occur through
inexact ascriptions of citizenship at birth.
The correlation between birthplace and ultimate community affiliation is
waning. Greater global mobility means that fewer individuals will make their
lives in the countries in which they were born. The number of temporary
immigrants is growing among both employment-based immigrants and
members of the new diasporas. The phenomenon of ‘‘return’’ migration is
historically well-established. Even in an era of costly transportation, an
estimated 25% of all immigrants during the late nineteenth and early
twentieth centuries ended up returning to their countries of origin (Wyman,
1993). The possibilities for return and ‘‘circular’’ migration have been
enhanced with globalization. Many aliens who come to the United States will
remain here on a temporary basis only. Return migration implicates birth
citizenship when immigrants leave the United States after having children in
U.S. territory. In the wake of the global economic crisis, the number of
immigrants returning to their homelands is growing.
All immigrant classes are represented among return migrants. Among
them are the growing numbers of legal nonimmigrants, aliens who are legally
admitted (in most cases) for a limited period of time only. The number of
nonimmigrants entering the United States has doubled since 1990. For
purposes of birth citizenship, many nonimmigrant categories are mostly
though not completely irrelevant. Although few visitors on tourist or six-
month business visas are likely to give birth in that authorized period, a small
but increasing number of pregnant women travel to the United States with
38 PETER J. SPIRO

the objective of securing birth citizenship for their children, an intention not
inconsistent with the terms of short-term entry. More significant are
increasing numbers of longer-term non-immigrants. Holders of preferred
employment visas (the H-1B and L visas) are eligible to stay for up to six
years. Extrapolating from estimates of the number of foreign-born,
naturalized citizens, and undocumented aliens, there are at least 1.5 million
noncitizens present in the United States as legal nonimmigrants.2 This group
is one that cycles through as some depart and others arrive. The cumulative
numbers are nontrivial. Some visa holders will adjust their status to that of
permanent residents and thereafter naturalize, and children born here may in
that case affiliate to the community. Many others will transfer out to their
countries of origin.
Undocumented immigrants also engage in circular migration. Some enter
or remain in the country in violation of the immigration laws but do not
permanently resettle here. Of the estimated more than 10–12 million
undocumented aliens present in the United States, many will return to their
homelands. One pre-crash study estimated that every year one in three
undocumented aliens from Mexico will return there, concluding that the
‘‘vast majority’’ of all migrants to the United States from Mexico currently
reside in Mexico (Riosmena, 2004; see also Massey, 2005). This number has
increased in the wake of the economic downturn. Temporary immigrants
also include naturalized American citizens and green-card holders who
subsequently return permanently to their homeland. Of the total population
of foreign born who entered the country before 1980, according to the
census bureau, more than 10% left during the decade 1980–1990 alone.
For temporary immigrants, the possibility of childbearing in the United
States is not remote. For children born during the presence in the United
States, the cost of maintaining U.S. citizenship after departure is low, even
though they mature outside the national community defined in social terms.
Prevailing tolerance of multiple nationality and the insubstantial burdens of
citizenship will give them little incentive subsequently to renounce the status.
Tolerance of multiple nationality reduces the cost of maintaining U.S.
citizenship because it permits the maintenance of citizenship of place of
residence and affective ties. The maintenance of U.S. citizenship while
permanently resident outside the United States involves marginal additional
obligations. U.S. citizens resident abroad must file income tax returns, but in
most cases there tax liability will be minimized by bilateral tax treaties under
which taxes paid to country of residence are credited for U.S. tax purposes.
There is also evidence of mixed compliance on the part of external citizens.
Recent efforts to enforce the filing requirement against nominal citizens
Interrogating Birthright Citizenship 39

have been condemned. Male citizens aged 18–25 living abroad must register
for the Selective Service against the improbable prospect of revived
conscription. There are no other obligations associated with citizenship
among those living abroad.

FIXING HAPPENSTANCE CITIZENSHIP

Circular migrants may have no tie to the United States other than place of
birth and a limited residency during childhood. Their parents are in most
cases not American citizens and do not reside in the United States. As global
mobility increases, this group of happenstance Americans will grow.
Children of temporary immigrants, rather than those of undocumented
aliens, present the best case against an expansive, territorially delimited birth
citizenship. The normative case for affording citizenship for life to the child
born to an elite professional during a temporary stay in the United States is
thin. In the absence of jus soli, if the parent remained in the United States as
a permanent resident and then as a naturalized citizen, the child could
naturalize with the parent or on her own. For those who return to a parent’s
country of origin, the citizenship rule is overinclusive.
Three fixes are available to correct this overinclusion. One would be to
make citizenship benefits contingent on territorial presence. Some benefits of
citizenship are by their nature not contingent on presence. These include
eligibility for a passport and for diplomatic protection outside the United
States. The absolute right to enter the United States is perhaps the most
significant benefit that attaches distinctively to citizenship. By definition, this
benefit cannot be territorially restricted. The right of entry allows citizens
located outside the United States to return in order to secure other public
benefits when needed. Beyond these practical difficulties, there is a global
trend away from making citizenship benefits territorially contingent. Even
the franchise is becoming more broadly extended to external populations
(Spiro, 2002). U.S. law guarantees the right of non-resident citizens to vote
in presidential elections, for example.
Second, states could police dual citizenship. U.S. law formerly terminated
citizenship on a variety of grounds associated with the active exercise of
citizenship in another state. Voting in a foreign political election, for
example, resulted in the termination of citizenship, a practice upheld as
constitutional by the Supreme Court in Perez v. Brownell (1958). However,
U.S. law has become completely tolerant of dual citizenship (Spiro, 2008).
Given the large numbers of dual citizens, from a variety of powerful
40 PETER J. SPIRO

constituencies (including Irish and Jewish Americans, each of which has

easy access to dual citizenship), this fix seems politically unlikely. It would
exclude many individuals who do enjoy social membership in the national
community at the same time that they enjoy social membership in other
national communities. Not all dual citizens are nominal Americans. Policing
dual citizenship would unduly interfere with the capacity for individuals to
actuate national identity (Spiro, 2010).
A more practicable fix for overinclusion would involve the imposition of
some period of residency in addition to territorial birth for purposes of
citizenship acquisition. This approach has been labeled ‘‘jus soli after birth’’
(Howard, 2009). A number of countries have adopted jus soli after birth.
The United Kingdom and Australia, for example, once maintained absolute
jus soli regimes along the lines of America’s current one. Statutory
amendments in the mid-1980s limited citizenship based on place of birth
alone to the children of citizens and permanent resident aliens. However,
any children born on UK or Australian territory who remains resident as of
his or her tenth birthday becomes a citizen by operation of law.
Other states have also adopted jus soli after birth. Examples include
Belgium (children born to parents resident at least 10 years before birth, or
child born and living continuously in territory until age of 18), Peru
(registration at age 18), and Iran (same) (Waldrauch, 2006, p. 129). The
practice is prevalent in Africa (Manby, 2009, p. 36). In Spain, persons born
to noncitizen parents in national territory must register one year after birth
in order to secure jus soli citizenship. Lister proposes that a birth-plus-one
regime would be consistent with justice requirements (2010, pp. 207–209).
Sweden dispenses with the factor or birthplace altogether, automatically
extending citizenship to any minor after a period of five years’ residency.
The regimes are consistent with international human rights norms.
International law has only recently come to bear on nationality practices in
any respect, at least with respect to denial of nationality. International law
constrained practice only with respect to overreaching (claims to individuals
with whom a state had no real connection). To the extent that international
law is beginning to articulate a right of ‘‘access to citizenship,’’ modified jus
soli regimes of these sorts will conform (Spiro, 2011).

BIRTHRIGHT CITIZENSHIP ON THE BASIS OF

PARENTAGE
Birth citizenship has also been extended to individuals born outside the
United States on the basis of parentage. All nations make some such
Interrogating Birthright Citizenship 41

provision for citizenship based on parentage. Where attachments to the

country of parental citizenship are clear, citizenship is extended at birth
notwithstanding birth location outside of the country. Birthright citizenship
by virtue of territorial location and by virtue of parentage are not ordinarily
considered symmetric.3 However, both make a life citizenship determination
at the time of an individual’s birth.
In contrast to territorial birth citizenship, which considers the location of
birth as a singular determinant, birth citizenship on the basis of parentage is
qualified under U.S. law. Citizenship passes by descent only where the
parent has satisfied a residency requirement. This residency requirement
dates to the first nationality law applying to those born abroad, enacted in
1790, which granted citizenship to the foreign-born child of a U.S. citizen
father but only where the father had been previously a resident of the United
States. (It was not until 1934 that the same approach applied to the children
of U.S. citizen mothers.) The nationality laws were subsequently refined to
distinguish between cases in which both parents are citizens and those in
which one is a citizen and one a noncitizen. In the former case, the child is a
citizen at birth if either parent has resided in the United States at any time.
In the latter, it was formerly required that the citizen parent have been
present for at least 10 years in the United States (5 after attaining the age of 14)
before the child’s birth in order for the citizenship to descend.4 The child herself
was required to spend at least five years in the United States before the age of
28 in order to maintain the status. (Loss of citizenship for failure to satisfy the
residency requirement was upheld by the Supreme Court in 1971 in Rogers v.
Bellei.) That law was amended in 1978 to eliminate any subsequent presence
requirement on the part of the child and in 1986 to reduce the parental presence
requirement to five years (two following the age of 14). Under the current
regime, U.S. citizenship extends to a child whose parent was herself born
abroad so long as the citizen parent was present in the United States for at least
five years before the child’s birth. The child is subject to no presence
requirement. Individuals can hold U.S. citizenship on a lifelong basis without
ever setting foot in the United States.5
The law of U.S. citizenship does not reflect recognition of a bloodline
community. Citizenship by descent is recognized only where the parent has
maintained the territorial connection. Some countries allow citizenship to
descend through several generations born and residing in another country.
Germany previously recognized a latent citizenship in ethnic German
communities that had left German territories centuries ago for Eastern
Europe and Central Asia. Israel continues today to recognize the citizenship
of qualifying Jews wherever born.
On the other hand, U.S. citizenship by parentage has arguably grown
more overinclusive as has citizenship on the basis of birthplace. Under
42 PETER J. SPIRO

previous law, sustained presence on the part of a parent at the required

duration of 10 years (in cases where only one parent was a citizen) was
meaningful in terms of evidencing a continuing attachment to the United
States (especially in the face of more restrictive rules relating to dual
nationality) and the likelihood of transmitting that attachment to a child.
Under the current provision and in the face of greater mobility, it is less
clear that the law marks any meaningful boundary. Five years’ presence in
the United States does not imply strong social connection to the national
community. Many among the global elites come to the United States for
college education and early professional experience for that period of time.
That presence would confirm no strong American identity.
The global economic downturn will prompt a greater number of
naturalized Americans to return to their homelands. Their children will
enjoy U.S. citizenship even if born outside the United States. In most cases,
naturalized citizens will satisfy the presence requirements for citizenship to
descend. (The requirement is a presence, not residency, requirement, and
can be satisfied by presence in the United States as a noncitizen.) That,
likewise, might typically result in the extension of citizenship in the absence
of substantial community ties. The relaxed residency requirement for
citizenship by descent could give rise to an American diaspora, at least as a
legal matter, at the same time as American identity seems no more capable
of bloodline descent than in the past. U.S. passports will come to be held by
another growing group of happenstance Americans. These individuals will
hold formal status as citizens even though they lack social membership in
the national community.
The numbers of such individuals is small, at least in the short term and
relative to the numbers of such happenstance citizens who secure citizenship
via jus soli. But there remains the prospect of a group of citizens who share
no bond with other citizens other than the status. The rules for citizenship
by descent thus also contribute to a less meaningful delimitation of the
national community.
As with overinclusive territorial birth citizenship, the fix would be to
adopt a presence requirement subsequent to birth, consistent with Shachar’s
conception of a jus nexi (Shachar, 2009, ch. 6). The former regime could be
restored, under which children of a qualifying citizens born abroad were
required to satisfy a presence requirement by way of perfecting the status.
Citizenship by descent is warranted in many cases on a social-membership
metric. A paradigm case would be the flip side of the nonimmigrant example
highlighted above – U.S. citizen parents who bear a child abroad during a
temporary absence. The place of birth does not reflect a lack of community
Interrogating Birthright Citizenship 43

attachment. The child is not a social outsider. It would serve little purpose to
impose naturalization requirements on her. But where a parent has moved
permanently abroad and the child spends little or no time in the United
States, the claim to nationality is attenuated. A condition subsequent of
residence would (on average) result in a citizenry that better maps onto
community on the ground. Other countries apply such a requirement, which
would be consistent with international human rights norms.

LIBERALISM AND BOUNDED BIRTH

CITIZENSHIP
Added residency requirements in the context of birthright citizenship both
by location and parentage would also appear consistent with liberal values.
Citizenship is an inherently exclusionary institution. As such, it poses a
foundational challenge to liberalism. If one accepts citizenship’s legitimacy,
the question is, who is acceptably excluded. Most liberal theorists frame the
question in territorial terms (Bosniak, 2007). This flows from self-
governance paradigms in which governance is undertaken on a territorial
basis and ‘‘society’’ is defined in territorial terms. Because those who are
territorially present are affected by territorially defined government, they
should enjoy a say in constituting that government and equality as a matter
of civil, political, and social rights. Liberal theorists assume a default
position under which citizenship is available to all habitual residents within
a national territory. As Joppke observes, ‘‘[t]he legitimacy of the modern
state hinges on the congruence between the subjects and objects of rule’’
(2010, p. 36).
Reasonable supplementary residency conditions to birth citizenship
would conform with liberal premises. The fact that an individual was
present in U.S. territory at the moment of birth but not thereafter does not
establish a claim to membership. Likewise with respect to an individual born
outside the United States to a citizen parent, which child never lives in the
United States. The circumstances of the birth moment does not itself
evidence inclusion in the group that is entitled to participate in governance,
because (so liberal theory would have it) they are not affected by
governmental decisionmaking. If they are thereafter present for some
period of time, the claim is established. (It remains unclear what birth
circumstances add to that claim.)
There are many reasons to object to the terms of the Guantanamo
detention, but there is no obvious reason why Yaser Hamdi should have
44 PETER J. SPIRO

been distinguished from other detainees simply because he was born and
spent a few infant years in Louisiana. Nor (counterfactually) if Hamdi had
been born in Saudi Arabia to a naturalized U.S. citizen father and spent no
time in the United States thereafter.
Liberalism would appear not only to accept but to demand the exclusion
of individuals possessing only the birth-moment connection. The territorial
premise assumes that those living within a defined space will share more
than an interest in governance, or at least that the interest in self-governance
will spillover over to spawn other commonalities. The result, again, is
‘‘society,’’ which is itself necessary to the liberal state. In Walzer’s
characterization, liberal governance is contingent on underlying ‘‘commu-
nities of character’’ (Walzer, 1983). Similarly, Shachar vaunts the import-
ance of ‘‘rubbing elbows at corner stores’’ by way of enhancing social
connectedness key to democratic governance (Shachar, 2009, p. 167).
Bosniak proposes an ‘‘ethical territorialism’’ (2007). Benhabib speaks of the
‘‘crucial link between democratic self-governance and territorial representa-
tion,’’ conceiving the ‘‘scope of democratic legitimacy’’ to be contingent on
‘‘the demos which has circumscribed itself as a people upon a given
territory’’ (2004, p. 219). To maintain character, communities must main-
tain their territorial coherence.
By implication, those communities cannot transcend territorial bound-
aries, at least not in a fashion that is salient to governance. This reinforces
the suggestion that birth citizenship regime is overinclusive. To the extent
that communities do not maintain their character, they will not be able to
sustain the special obligations required of members (Shachar, 2009). They
will not be able to sustain the distinctive features of the liberal state,
including the redistribution of rights and resources. This would appear to
make imperative the exclusion from the citizenry of nontrivial populations
of territorially disconnected individuals, especially where absence is likely to
coincide with social disconnectedness. Liberalism’s logic might even require
the result, even though it implicates a greater degree of exclusion.

BIRTH CITIZENSHIP AND THE FALL OF

TERRITORIALISM
The above discussion accepts liberalism’s territorial premise, as both a
descriptive and normative matter. Any frame centering territorialism will
have trouble digesting the current birth citizenship regime, in which
Interrogating Birthright Citizenship 45

membership is not contingent on durational presence. But territorialism is

being eroded by global forces, allowing for membership and interests to be
defined without regard to location (Maier, 2007). This development
undermines the utility of the proposed residency supplement to both jus
soli and jus sanguinis citizenship. Presence may no longer evidence
community attachment. The erosion of territoriality calls into question the
binary orientation of citizenship itself. This is demonstrated by normative
claims to membership of those who have no claim to citizenship on the basis
of either location or parentage.
Large diaspora populations, for example, challenge the territorial metric.
Children born to members of strong diasporic communities may remain
territorially present in the United States into maturity. The possibility is that
territorial presence will no longer result in the development of affective ties,
as attachments are directed to a homeland or other transnational
community. Whether the children of recent immigrant waves from such
countries as Mexico, India, the Philippines, and Dominican Republic
sustain a primary identity with their homelands or transfer it to the United
States is an open question. Globalization makes possible the intergenera-
tional maintenance of non-territorial ties. As Appadurai notes, ‘‘[f]or every
nation-state that has exported significant numbers of its populations to the
United States y there is now a delocalized transnation’’6 (1996, p. 172).
This phenomenon may be subversive of the American tradition of
immigrant integration. The fact of birth in the United States, even as
combined with subsequent presence thereafter, will not necessarily predict
attachment to the American community, such as the community persists as
a meaningful quantity. Members of diasporas are more likely to
subsequently move to their parents’ homeland. Those who do remain in
the United States may pursue their entire lives within their diasporic
communities, defined not by geography but by social ties, even if they
episodically venture into the larger national community otherwise defined.
They are co-occupants, not co-residents (Bosniak, 2007, p. 406). Many, and
now perhaps most, retain citizenship in the homeland state, as the barriers
to plural nationality have been lowered. Reduced travel and communica-
tions costs make more likely the sustaining of diaspora ties. One can stay in
more active touch with one’s roots than was possible in the past, and not
just in the detached community of emigres. It has become increasingly
common for immigrants to send their American-born children back home
for schooling. Distinctive cultural practices of a transnational nature are
persisting into the American-born generations, as with the return of Indian-
Americans to India for arranged marriages.
46 PETER J. SPIRO

These trends point to the possible persistence of segmented identities.

Insofar as individuals are present in the United States but have minimal
social attachments outside the diasporic community, supplementing the
birth citizenship regime with additional presence requirements will only
imperfectly correlate citizenship to community.
In the context of naturalization, some liberals have responded to the
phenomenon of segmented identities by calling for the application of more
robust criteria beyond durational residence. Naturalization testing relating
to political and cultural knowledge and/or assimilation has been a focal
point of these calls. The liberal case for naturalization tests goes to the
facilitation of social solidarities and the protection of liberal values (Orgad,
2010). Some theorists have opposed the imposition of more searching testing
requirements on the grounds that it will raise the barriers to naturalization
for some habitual residents. Such states as the Netherlands and Denmark
have nonetheless deepened such criteria. In the United States, some
citizenship scholars have likewise advocated greater testing requirements
(Pickus, 2007). However, there have been no parallel efforts to reduce the
greater risk of social non-membership among those securing citizenship
through territorial birth. Those who advocate enhanced testing of
naturalization applicants, at least in the United States, have bracketed the
risk that some who secure citizenship through birth in the United States will
lack community attachment notwithstanding continued territorial presence.
However, the case for enhanced metrics of integration in the naturalization
context buttresses the case for added qualifications for the birth citizenship.
More subversive than internally detached communities are scalar
community attachments on the part of those with no formal claim to
citizenship. The overinclusiveness of birth citizenship’s territorial premise is
coupled with an underinclusivesness. Just as territorial presence may no
longer correlate with affective ties to the community, territorial absence may
no longer correlate with the lack of such ties. By social, economic, or
political definitions of national community, many born and living abroad,
with no tie of ancestry, are members of it as a matter of social fact if not as a
matter of law. A citizenship premised on territorial definitions of community
fails to account of them. No other mechanism appears which can.
The border regions establish the proposition as a threshold matter,
especially communities along the U.S.–Mexican border. Municipalities there
may comprise unitary metropolitan complexes. Individuals cross the border
to work, shop, and go to school; own property on both sides; and have
families that span the divide. Socially and economically the two sides are
integrated. What is of political interest to those on one side of the border is
Interrogating Birthright Citizenship 47

of interest to those on the other side. For example, the Mexican resident of
Ciudad Juarez has a significant interest in decisionmaking by municipal
authorities in El Paso, the state legislature in Austin, and the federal
government in Washington. She will likely be affected by environmental,
labor, fiscal, law enforcement, and education policy at all three levels, in
addition to immigration and associated border control measures set by the
federal government.
The fact of integrated border communities is reflected in various legal
regimes. Municipal authorities establish various joint policymaking
structures and may for some purposes eliminate distinctions based on place
of residence. Under Texas law, Mexican residents are eligible for in-state
tuition rates at state universities located in border counties. Federal
immigration law provides for the border crossing cards critical to cross-
boundary interaction in border zones, good only for day-travel within
25 miles of the border.
As a thought experiment, one might consider extending citizenship to
such populations. The conventional conception would reject this proposi-
tion on the grounds that those who are born on the other side of the border
are Mexican, not American, represented by and having allegiance to the
Mexican authorities, not American ones. These are constructions, not facts.
That those born on the Mexican side of the border have interests in Mexican
governance issues does not exclude the possibility of an interest in those
denominated as American. To the extent that they are integrated into
communities that are in significant part comprised of U.S. citizens and U.S.
territory, the label ‘‘American’’ might apply as a non-status description. If
the person born and living in Ciudad Juarez is part of a community
including El Paso, there is some sense in which that person is American.
Consistent with liberal conceptions of self-government, formal status
designations arguably should reflect that membership. From a justice
perspective, it is a matter of accountability. To the extent that the Ciudad
Juarez resident has integral interests in U.S. decisionmaking, she should
enjoy a voice in those processes. That resident may also have substantial
social ties to the United States. Those interests and ties will be in many cases
much more significant than the citizen’s interest, especially where the citizen
has acquired the status in the absence of any real tie to America.
Citizenship law cannot account for those who are on the other side. A
person born on the Mexican side of the border is not a U.S. citizen at birth.
His birth there will not help qualify him for subsequent acquisition of the
status. The law could not be reformulated in any practicable way to extend
citizenship at birth to persons in border regions. The challenge would defy
48 PETER J. SPIRO

both the jus soli and jus sanguinis approaches to birth citizenship. It would
go against all citizenship traditions. It would also challenge entrenched
notions of international law. To designate those outside one’s territory with
no parental tie as citizens would be taken as an affront to the other country’s
sovereignty. Finally, such a regime, however delimited, would have greater
problems of over-inclusiveness than the existing territorial regime. No better
line would offer itself by way of substitute for the border itself. Including
some strip of borderland would inevitably include many whose affective and
other attachments mostly lie elsewhere.
The challenge might be resolved by unbundling citizenship into
component rights. In the border zones, this functional approach is reflected
in the in-state tuition arrangement, joint governance structures, and border
crossing cards. These could evolve into more elaborate institutions. One
might construct fully integrated, border-spanning municipal governments,
with binational voting eligibility. This would present a variation on
noncitizen voting in local government within state territory (Earnest, 2008).
Functional approaches have potential utility in disaggregating interests
and matching them to modes of participation. However, the functional
approach is not a substitute for citizenship and may be subversive of it. To
the extent that citizenship gives rise to expressive, status, and/or rights
contingencies, it is not capable of substitution. This is illuminated by the
example of Turks in Germany described above, who as denizens enjoyed
most rights of citizenship. Alternatively, insofar as rights historically
singular to citizenship are allocated to noncitizens, it will devalue the
institution of citizenship (Schuck, 1989).
The border-zone challenge extends to communities beyond the territorial
space of the border. As Lipschutz observes, ‘‘borderlands are no longer
restricted to border areas; they can be anywhere’’ (2004, p. 32). Diasporic
communities suggest the overinclusiveness of the birth citizenship regime,
even as supplemented with a durational presence requirement, insofar as it
extends citizenship to persons whose affective attachments may lie
elsewhere. However, it also suggests underinclusiveness. A key feature of
recent diasporic migrations is that those who stay behind maintain their
attachment to those who leave. They come to have a significant stake in the
fortunes of the emigrant in his new place of residence and/or nationality.
These communities are often bridged by families. Communities in such
countries as El Salvador, the Dominican Republic, or the Philippines have
intimate continuing social, economic, and political ties to communities
established in the United States. In some countries, the largest source of
foreign exchange is remittances from immigrants to the United States. Some
Interrogating Birthright Citizenship 49

local homeland communities depend on emigres to fund such basic public

works as schools and roads (Fitzgerald, 2009). The boundaries of human
community transcend territorial ones in a way that citizenship cannot
process. The important, direct interests that homeland individuals have in
U.S. conditions are not reflected in any legal regime. The membership of
homeland diasporas would be less amenable to recognition in the birth
citizenship regime than that of border communities. A legal regime could
not distinguish between different degrees of connection. Functional
approaches are also likely to fall short in this context, though it has been
proposed that global interests in who serves as president of the United States
should be matched with a global franchise for U.S. presidential elections
(Sellers, 2004).
Territorial presence may no longer evidence membership, and absence
may no longer evidence a lack of membership. The territorial premise is
challenged from both directions. It is no longer clear who belongs and who
does not belong. Territorial metrics of any description are degraded. Adding
a presence requirement to the existing birth citizenship regime would not
reverse the problem of overinclusiveness at the same time that it would
aggravate the problem of exclusion.

THE FUTURE OF BIRTH CITIZENSHIP

There is little prospect of adopting a supplementary birth citizenship
requirement, or of otherwise scaling back the birth citizenship regime. As a
matter of U.S. constitutional politics, the absolute rule of territorial birth
citizenship is well entrenched. This is demonstrated in the frontal assault of
proposals that would limit territorial birth citizenship to the children of
citizens and legal immigrants. Even in the context of intense anti-immigrant
sentiment, these proposals (whether framed in statutory or constitutional
terms) have made little headway. The entrenchment is all the more evident
in the face of respectable academic commentary justifying a more restrictive
regime (Shuck & Smith, 1985). The lack of a definitive ruling from the
Supreme Court notwithstanding, the children of undocumented aliens born
on U.S. soil will continue to qualify for citizenship on the basis of birthplace
alone.
Proposals to scale back birthright citizenship were not targeted at the
birth citizenship contexts isolated in this paper, that of happenstance
Americans extended citizenship by accident of place of birth or parentage.
That is explained by the detachment of these citizenship variants from
50 PETER J. SPIRO

immigration policy. No one is making angry phone calls to legislators about

the citizenship of the children of H1B professionals or of attenuated parent
citizens living abroad. Those provisions of the nationality law are not
politicized. The Hamdi case supplied a control test. To the extent that it
failed to provoke sustained calls to deny citizenship to the children of
transient immigrants, no other case is likely to. Meanwhile, the legislative
trend over recent decades has been to relax birth citizenship on the basis of
descent, not to tighten it.
The lack of controversy surrounding these practices may also be
explained by the widening circles of membership. The child of nonimmi-
grant parents who returns to a homeland in infancy may not be perceived as
all that foreign in maturity (e.g., the H1B child who returns to the United
Kingdom). The child of a nonresident citizen parent or grandparent has a tie
to the American community, even if a tenuous one, that reinforces other
forms of commonality. Those forms of commonality are now found among
many who were not born in the United States or who have no U.S. citizen
forerunners. The citizenship boundary then becomes artificial, and there is
no possibility of its reinscription.
It may also be the case that citizenship by itself (as opposed to legal
residency) is no longer considered a valuable good. In that case, its
distribution will be less vigorously contested. As with easy naturalization
and tolerance of dual citizenship, an expansive birth citizenship policy
reinforces the lack of consequence. To the extent that citizenship as a legal
status no longer reflects distinctive communal bonds, the less meaning will
attach to the category. A citizenship that denotes nothing more than place of
birth or parental status will not bear the burdens of redistributive sacrifices.

ACKNOWLEDGMENT
Thanks to participants at workshops at the Wharton School, Santa Clara
University Law School, Hofstra Law School, and at Rutgers-Camden Law
School for helpful comments on earlier drafts.

NOTES
1. One Native American law scholar has argued that the automatic extension of
citizenship to Native Americans at birth is identity-destructive (Porter, 1999). A
group of Puerto Rican nationals attempted to renounce their U.S. citizenship while
Interrogating Birthright Citizenship 51

remaining resident in Puerto Rico, an attempt rejected by the State Department and
the courts in Lozada Colon v. U.S. Department of State.
2. As of 2003, of an estimated 34 million foreign-born residents, 11.3 million were
naturalized citizens, 12.2 million were legal permanent residents, and 9 million were
undocumented, which would leave 1.5 million foreign-born on temporary visas (Fix
et al., 2003).
3. This is in part explained by the fact that the territorial birthright citizenship is
inscribed as a rule of constitutional law where birthright citizenship by parentage is
extended by statute, and by other historical contingencies. For normative purposes,
the differences are immaterial.
4. Under this regime, Barack Obama would not have been a citizen at birth
(and thus, arguably, not a ‘‘natural born citizen’’ for purposes of presidential
eligibility) if he had been born in Kenya instead of Hawaii, his 18-year-old mother
not yet having satisfied the residency requirement at the time of Obama’s birth. This
may explain in small part the traction of conspiracy theories asserting Obama’s
ineligibility to hold the office of the presidency as someone other than a ‘‘natural
born’’ citizen.
5. Although through naturalization rather than birth, it is now possible to secure
citizenship through a single grandparent if the grandparent satisfies the five-year
residency requirement, under 8 U.S.C. y 1433(a)(2)(B). That is, an individual may
naturalize as an American even if her parent citizen never resided in the United
States so long as the parent’s parent did.
6. A number of studies purport to demonstrate the integration of more recent
immigrants, for instance on the basis of English language acquisition. Such metrics
are typically insufficient to demonstrate community attachment (just because one
speaks English does not demonstrate social membership in the American
community, however defined – one quarter of the world’s population now speaks
English). These studies also tend to be infected by ‘‘methodological nationalism,’’
which ‘‘equate[s] society with the nation-state and conflate[s] national interests with
the purposes of social science’’ (Wimmer & Schiller, 2003).

REFERENCES
Aleinikoff, T. A. (2002). Semblances of sovereignty. Cambridge: Harvard University Press.
Appadurai, A. (1996). Modernity at large. Minneapolis, MN: University of Minnesota Press.
Berman, P. (2002). The globalization of jurisdiction. University of Pennsylvania Law Review,
151, 311–426.
Benhabib, S. (2004). The rights of others: Aliens, residents and citizens. Cambridge: Cambridge
University Press.
Bosniak, L. (2007). Being here: Ethical territoriality and the rights of immigrants. Theoretical
Inquiries in Law, 8, 389–410.
Brubaker, R. (1992). Citizenship and nationhood in France and Germany. Cambridge: Harvard
University Press.
Earnest, D. (2008). Old nations, new voters: Nationalism, transnationalism, and democracy in the
era of global migration. Albany, NY: SUNY Press.
52 PETER J. SPIRO

Fix, M., et al. (2003). Immigrant families and workers: Trends in naturalization. Washington,
DC: Urban Institute.
Fitzgerald, D. (2009). A nation of emigrants: How Mexico manages its migration. Berkeley, CA:
University of California Press.
Howard, M. (2009). The politics of citizenship in Europe. Cambridge: Cambridge University
Press.
Joppke, C. (2010). Citizenship and immigration. Cambridge: Polity Press.
Kettner, J. (1978). The development of American citizenship, 1608–1870. Chapel Hill, NC:
University of North Carolina Press.
Lipschutz, R. (2004). Constituting political community: Globalization, citizenship, and human
rights. In A. Brysk & G. Shafir (Eds.), People out of place: Globalization, human rights,
and the citizenship gap (pp. 29–51). London: Routledge.
Lister, M. (2010). Citizenship, in the immigration context. Maryland Law Review, 70, 175–233.
Maier, C. (2007). ‘‘Being There’’: Place, territory, and identity. In S. Benhabib (Ed.), Identities,
affiliations, and allegiances. Cambridge: Cambridge University Press.
Manby, B. (2009). Citizenship law in Africa. New York, NY: Open Society Institute.
Massey, D. (2005). Five Myths about immigration: Common misconceptions underlying U.S.
border-enforcement policy. Washington, DC: American Immigration Law Foundation.
Neuman, G. (1996). Strangers to the constitution. Princeton, NJ: Princeton University Press.
Orgad, L. (2010). Illiberal liberalism: Cultural restrictions on migration and access to
citizenship in Europe. American Journal of Comparative Law, 58, 53–105.
Pickus, N. (2007). True faith and allegiance: Immigration and American civic nationalism.
Princeton, NJ: Princeton University Press.
Porter, R. (1999). The demise of the Ongwehoweh and the rise of the native Americans:
Redressing: The genocidal act of forcing American citizenship upon indigenous peoples.
Harvard BlackLetter Journal, 15, 107–183.
Riosmena, F. (2004). Return versus settlement among undocumented Mexican migrants 1980–
1996. In J. Durand & D. Massey (Eds.), Crossing the border: Research from the Mexican
Migration Project. New York, NY: Russell Sage Foundation.
Schuck, P. (1989). Membership in the liberal polity: The devaluation of American citizenship.
Georgetown Immigration Law Journal, 3, 1–13.
Schuck, P., & Smith, R. (1985). Citizenship without consent. New Haven, CT: Yale University
Press.
Sellers, F. (2004). A world wishing to cast its vote. Washington Post, November 21, p. B1.
Shachar, A. (2009). The birthright lottery. Cambridge: Harvard University Press.
Spiro, P. (2002). Political rights and dual nationality. In D. Martin & K. Hailbronner (Eds.),
Rights and duties of dual nationals: Evolution and prospects. Leiden: Kluwer.
Spiro, P. (2008). Beyond citizenship. Oxford: Oxford University Press.
Spiro, P. (2010). Dual citizenship as human right. International Journal of Constitutional Law,
8(1), 111–130.
Spiro, P. (2011). A new international law of citizenship. American Journal of International Law,
105, 694–746.
Torpey, J. (2000). The invention of the passport: Surveillance. citizenship, and the state.
Cambridge: Cambridge University Press.
Waldrauch, H. (2006). Acquisition of nationality. In R. Bauböck, R. Bauböck, E. Ersbøll &
H. Waldrauch (Eds.), Acquisition and loss of nationality: Policies and trends in 15
European countries. Amsterdam: Amsterdam University Press.
Interrogating Birthright Citizenship 53

Walzer, M. (1983). Spheres of justice. New York, NY: Basic Books.

Wimmer, A., & Schiller, N. (2003). Methodological nationalism, the social sciences, and the
study of migration: An essay in historical Epistemology. International Migration Review,
37, 576–610.
Wyman, M. (1993). Round-trip to America: The immigrants return to Europe 1880–1930. Ithaca,
NY: Cornell University Press.
BEING AMERICAN/BECOMING
AMERICAN: BIRTHRIGHT
CITIZENSHIP AND IMMIGRANTS’
MEMBERSHIP IN THE UNITED
STATES1

Irene Bloemraad

ABSTRACT
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 – under-
stand belonging in the United States. Interviews with 182 U.S.-born youth
and their immigrant parents born in Mexico, China, and Vietnam show

Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality
Studies in Law, Politics, and Society, Volume 60, 55–84
Copyright r 2013 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000060007
55
56 IRENE BLOEMRAAD

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.

In November 2010, soon after the Republican Party secured a majority in the
U.S. House of Representatives, Steve King (R-Iowa) declared that one of the
first pieces of business for the House Subcommittee on Immigration Policy and
Enforcement would be to deny birthright citizenship to the children of
undocumented migrants. Currently, the Fourteenth Amendment ensures that a
child born in the United States automatically receives U.S. citizenship,
regardless of his or her parents’ legal status.2 Citing the intentions of nineteenth
century lawmakers, fears that birthright citizenship increases migration through
‘‘anchor babies,’’ concerns about rewarding illegal behavior, and worry over
cash-strapped social programs, King joined a chorus of politicians challenging
automatic birthright citizenship under the Fourteenth Amendment.3
Political attacks against birthright citizenship find reflection in – and gain
legitimacy from – the writings of political and legal scholars. In particular,
Peter Schuck and Rogers Smith’s 1985 book, Citizenship Without Consent,
serves as a frequent source of historical material and legal reasoning
presented by those in favor of restrictive birthright citizenship (see, e.g.,
Feere, 2010). Schuck and Smith argue that consent was a foundational
principle of the American Revolution. The citizenship of new members
should rest on the consent of both would-be members and the state. Other
scholars criticize birthright citizenship on different grounds, for example, as
a quasi-feudal system perpetuating global inequality, but they concur that
the practice flies in the face of modern philosophies of membership based on
social contract and deliberative choice (e.g., Shachar, 2009).
Thus, for individuals like Representative King, providing birthright
citizenship to the children of undocumented migrants is illegitimate since the
state never consented to their parents’ presence.4 In contrast, King has gone
on record to underscore his participation in naturalization ceremonies ‘‘to
Being American/Becoming American 57

welcome new citizens as full-fledged members of the American experiment in

democracy and our constitutional Republic.’’5 Citizenship through natur-
alization is valorized, since it is based on the affirmative choice of the
immigrant and the clear consent of the state.
Rather than focusing on consent, I propose an approach to citizenship that
underscores the principles of inclusion and equality. The primary purpose of
the Fourteenth Amendment was to ensure equal citizenship status for freed
slaves and their descendents. Within three decades, the Supreme Court used
the amendment to guarantee the citizenship of the U.S.-born children of
Chinese immigrants who were, themselves, barred by statute from citizenship
through naturalization. Of course, other laws, judicial decisions, and
everyday practices made the ideal of equality through citizenship hollow
for many groups throughout U.S. history. The rights-holding, normative
American was a white male, preferably someone of property and the
Protestant faith. Nevertheless, the Constitutional enshrinement of birthright
citizenship can be understood, especially by immigrants and people of color,
as a victory for greater inclusion and a protection against future attempts to
exclude based on race or ancestry.
Various observers have thus labeled attempts to re-interpret the Four-
teenth Amendment as a return to an exclusionary tradition of ‘‘ascriptive
Americanism’’ since denying birthright citizenship to the children of
undocumented parents would affect Latino and Asian-origin communities
most heavily. The Department of Homeland Security estimates that
62 percent of unauthorized migrants in 2010 were born in Mexico; another
24 percent hailed from one of nine Latin American or Asian countries.6 As
Smith (1993, 1997) has argued, American political thought, legislation, and
judicial decision-making reflect multiple ideological traditions. These
traditions rest on liberal and republican ideals of equality and participation,
but also on a persistent strand of ‘‘ascriptive Americanism.’’ Ascriptive
Americanism, according to Smith, is not merely a small stain on a historical
trajectory toward greater equality, but an ideology deeply woven into the
fabric of the United States.7 While those wishing to limit birthright
citizenship have not made public appeals to racial exclusion, neither have
they advocated a wholesale renunciation of birthright citizenship. Rather,
they focus on the state’s right to decide who can be a member. A zealous
celebration of individual volition and state consent – only applied to the
foreign-born and their children, not to other native-born Americans who
acquire citizenship at birth – could be interpreted as a return to racially
inflected Americanism.
58 IRENE BLOEMRAAD

In debating birthright citizenship, most of the existing political and legal

scholarship has focused on the original intent of the legislators who enacted
the Fourteenth Amendment, the case law that interprets it, and the moral or
normative principles that buttress or undermine its continued existence. We
know much less, however, about how citizenship law shapes the meanings of
membership and belonging for those at the heart of this debate: foreign-
born residents and their U.S.-born children. I argue that taking this into
account – examining how those affected view and interpret their member-
ship – provides important purchase on these legal debates. To this end, I
draw on a research project that interviewed 182 U.S.-born youth and their
immigrant parents born in Mexico, China, and Vietnam.
These interviews challenge simple dichotomies of membership that
contrast an enlightened civic membership based on mutually consenting
parties to a problematic, quasi-feudal ascription of citizenship based on
birth. Instead, the interviews remind us that citizenship law balances
multiple inclusions and exclusions and it speaks to values and principles
beyond consent, notably ideals of equality. For many immigrants,
membership through naturalization – the exemplar of citizenship by consent
– does not overcome a lingering sense of outsider status. Perhaps
surprisingly, birthplace citizenship appears to provide – more than
naturalization – a sense of legitimate belonging that challenges notions of
being American predicated on race and economic privilege.
My argument proceeds from theoretical concerns to empirical data. First,
in line with claims advanced by Cristina Rodrı́guez (2009), who proposes
that the Fourteenth Amendment should be understood to embody an anti-
subordination principle, I suggest that consent is only one value inherent in
the conception of U.S. citizenship. Equality and inclusion are other key
aspirations. Birthright citizenship, by providing automatic citizenship to the
U.S.-born children of immigrants, helps fulfill an anti-subordination
principle.
The interview material underscores the limits and promise of equality
through citizenship. Interviews with immigrants and their children reveal
that despite a discourse portraying U.S. citizenship as a civic and political
affiliation blind to ascriptive traits – a view shared by many scholars of
comparative citizenship studies – many of those interviewed identify an
‘‘ethnic’’ notion of membership in ‘‘being American.’’ Being American is
equated with racial majority status, affluence, and privilege.
Can immigrants and their children, particularly those who are non-white
and poor, ‘‘become American?’’ Some interview respondents see the
adoption of American social and cultural practices as highly salient in the
Being American/Becoming American 59

process of being or becoming American. But so, too, is the mere fact of
being born in the United States. From the viewpoint of an immigrant
population, birthright citizenship offers an egalitarian promise. Placed
against a lingering feeling of exclusion, it is a color-blind and class-blind
path to membership. Beyond a legal guarantee, the existence and legitimacy
of birthright citizenship solidify normative claims of membership in one’s
own eyes and the eyes of others.
Many Americans oppose unauthorized entry and residence. But many
also celebrate historic struggles that eradicated legally constituted inequal-
ity, from the end of slavery after the Civil War to key legislative victories in
the struggles for civil rights. From the perspective of an egalitarian project,
although birthright citizenship is not volitional, it creates possibilities for
equality and inclusion, thereby furthering the country’s egalitarian
aspirations, the same aspirations that fueled passage of the Fourteenth
Amendment.

CONSENT, EQUALITY, AND THE CONTOURS OF

U.S. CITIZENSHIP
On January 5, 2011, Steve King, the new Vice-Chair of the House
Subcommittee on Immigration Policy and Enforcement, introduced H.R.
140. This bill, the ‘‘Birthright Citizenship Act of 2011,’’ would amend
Section 301 of the Immigration and Nationality Act so as to deny
birthright citizenship to the children of undocumented or legal temporary
migrants.8 On the same day, Republican state lawmakers from Arizona,
Georgia, Oklahoma, Pennsylvania, and South Carolina announced plans
for bills that would require states to issue distinct birth certificates depen-
ding on the legal status of a baby’s parents.9 The group, which includes
prominent legal experts such as Kris Kobach, currently Secretary of State
in Kansas and previously Professor of Law at the University of Missouri –
Kansas City, wants the Supreme Court to reinterpret the application of
the Fourteenth Amendment. Think tanks favoring immigration restric-
tions, such as the Center for Immigration Studies (CIS), have also
produced reports in support of denying birthright citizenship to the
children of undocumented parents (Feere, 2010) and, by raising the specter
of terrorism and national security, to the U.S.-born children of legal,
temporary residents, including visitors, foreign students, and temporary
workers (Reasoner, 2011).
60 IRENE BLOEMRAAD

These arguments are not just political posturing, but draw upon the
scholarship of well-respected academics. Contending that the principle of
consent was foundational to the new republic, academics Peter Schuck and
Rogers Smith (1985) conclude that the citizenship clause of the Fourteenth
Amendment does not require automatic citizenship for undocumented or
temporary migrants; Congress can legislate on this matter. This position,
they maintain, is the logical upshot of a consensual notion of political
membership, one which ‘‘would be more legitimate in theory, more flexible
in meeting practical policy problems, and more likely to generate a genuine
sense of community among all citizens than the existing scheme’’ (Schuck
and Smith, 1985, p. 5). They stake out their argument by contrasting the
individual, liberal ethos of consent inherent in the American Revolution
with what they term the feudal vestiges of ascriptive subjectship under
English common law.10
A fair amount of scholarship has debated this particular historical reading
as well as the legal meaning of the clause restricting the Fourteenth
Amendment to those ‘‘subject to the jurisdiction’’ of the United States.11
Those questioning broad application of birthright citizenship point out that
the primary focus at the time were residents of African heritage, not
immigrants; that certain groups were meant to be excluded, such as foreign
officials and members of Indian tribes; and that the entire concept of illegal
immigration, as understood today, had no relevance when the amendment
was ratified. In response, supporters of the current reading of the
amendment note that the issue of Chinese migration was raised during
legislative debates; that undocumented individuals are clearly subject to
U.S. jurisdiction, as when they are jailed for crimes committed on U.S.
territory; and that the very passage of the Fourteenth Amendment through
legislative decision-making embodies state consent to birthright citizenship.
Rather than revisit these arguments, I wish to extend the discussion
beyond the historical and legal record and take into account the views of
contemporary immigrants and their U.S.-born children. Before doing so,
however, I interrogate what is meant by ‘‘ascriptive’’ citizenship and I offer
two alternative principles – equality and inclusion – that undergird U.S.
citizenship.

Ascriptive Citizenship

In the argument advanced by Schuck and Smith, they acknowledge that

early U.S. law, following the English common law tradition, always
Being American/Becoming American 61

included what they term an ‘‘ascriptive’’ strand where ‘‘one’s political

membership is entirely and irrevocably determined by some objective
circumstance –in this case, birth within a particular sovereign’s allegiance or
jurisdiction’’ (1985, p. 2). Automatic citizenship based on territorial birth is
ascriptive in that it is assigned at birth without volition, either on the part of
the person receiving citizenship or on the part of the state giving citizenship,
beyond the state’s general decision to allow birthright citizenship. Schuck
and Smith view ascriptive citizenship as less legitimate than a consensual
approach. Consent, they maintain, was a foundational principle of the
revolution; political membership should rest upon free choice.12 Once a
government is established, would-be members and the state must both
consent to the citizenship of new members.
From this perspective, the process of naturalization most purely embodies
liberal and republican ideals of social contract and deliberative choice. In
citizenship through naturalization, a consenting adult foreigner (‘‘alien’’)
affirmatively applies for U.S. citizenship. The state, satisfied that the person
has met various qualifications, purposively grants citizenship to that
individual (thereby ‘‘naturalizing’’ the person). U.S. naturalization ceremo-
nies frequently celebrate the volitional process, with speakers underscoring
the moral superiority of citizenship through choice rather than birth
(Aptekar, 2012).
Citizenship through the geographical happenstance of one’s birthplace is
certainly not volitional. However, the label ‘‘ascriptive’’ ignores important
nuances, notably the distinction between ascribed citizenship based on
blood decent (ius sanguinis) and that based on birth in a particular sovereign
territory (ius soli).13 This distinction is particularly important when
considering immigrant groups and their children, as various scholars of
comparative citizenship studies have underscored (e.g., Howard, 2009;
Joppke, 2010; Vink & de Groot, 2010). In one of the most prominent
elaborations of this distinction, Rogers Brubaker noted the differential legal
inclusion of immigrants in France and Germany where ‘‘the French
citizenry is defined expansively, as a territorial community, [but] the German
citizenry – except in the special case of ethnic German immigrants –
restrictively, as a community of descent’’ (1992: p. x). As a heuristic,
comparative studies of national membership often distinguish between
‘‘civic’’ and ‘‘ethnic’’ conceptions of citizenship, with the United States
placed squarely in the former category.
While citizenship through territorial birth or descent is equally ascriptive
– based on condition, rather than volition – it is not equally restrictive to
new members. Membership through descent can never broaden beyond the
62 IRENE BLOEMRAAD

select group of ancestors who held citizenship at some earlier time;

membership through territory opens up the possibility that although a
particular group of residents might not themselves hold citizenship, their
descendents will.14 Viewing citizenship as a simple dichotomy of consent or
ascription is thus problematic, since ascription through descent is
qualitatively more restrictive for immigrant populations than ascription
through territorial birth. If we accept that citizenship law balances values
beyond consent, in particular the ideals of equality and inclusion, we can
instead view citizenship laws on a continuum of being more or less
inclusive.15

Beyond Consent: Equality and Anti-Subordination

This reasoning – that territorial citizenship is more inclusive than descent-

based membership – applies not only to immigrants. The Fourteenth
Amendment was enacted to overcome the injustice of perpetual legal
subordination that flowed from the Dred Scott decision denying U.S.
citizenship to blacks. In emphasizing ius soli, the Fourteenth Amendment –
both the Citizenship Clause and the Equal Protection Clause – embody an
anti-caste or anti-subordination principle (Rodrı́guez, 2009). By enshrining
birthright citizenship in the Constitution, the amendment also privileged
egalitarian considerations above consent by shutting off the possibility that
a future political majority could withhold state membership to a particular
U.S.-born group.16
Approaching birthright citizenship through the lens of equality becomes
even more salient when we consider the historical record of immigration and
naturalization law in the United States. A strong consensual framework
suggests that democratic institutions – as the voice of people joined together
in a political community – can legitimately set the terms by which new
members may join. While logical in the abstract, such democratic decision-
making has produced gross inequities in practice. One of the first acts of the
new U.S. Congress was to establish a ‘‘uniform Rule of Naturalization’’ in
1790 that only applied to ‘‘any Alien being a free white person.’’17 Following
the Civil War, the Naturalization Act of 1870 broadened this provision to
encompass ‘‘aliens of African nativity and to persons of African descent,’’
but in 1882, Congress instructed ‘‘That hereafter no State court or court of
the United States shall admit Chinese to citizenship.’’18 Court cases and
administrative decisions subsequently extended legal exclusions to almost all
Asian migrants. As Devon Carbado puts it in considering the court cases
Being American/Becoming American 63

that determined who precisely was ‘‘white’’ under naturalization law, ‘‘In
the prerequisite cases, law establishes whiteness as American identityy.
Americanization and racial formation are not oppositional. They go hand in
hand.’’ (2005, p. 637). Restrictions only began to break down during World
War II and they only ended definitively with the 1952 Immigration and
Nationality Act, which eliminated race or national origin as a criterion for
naturalization.
Thus, from 1790 to 1952, access to citizenship was racialized and
inherently unequal (Gualtieri, 2001; Haney López, 1996; Smith, 1997).
Legislation and court decisions became instruments in the separation of
individuals into distinct groups, and helped constitute who was deemed
worthy of U.S. citizenship and who was not. This tradition of ‘‘ascriptive
Americanism’’ linked ‘‘the true meaning of Americanism with particular
forms of cultural, religious, ethnic, and especially racial and gender
hierarchies’’ (Smith, 1993, pp. 549–550). Laws on immigration and
citizenship reflected racial prejudices and hierarchies and they further
institutionalized and legitimized inequalities.
For many, this backdrop of racial exclusions makes the Fourteenth
Amendment all the more valued. The application of consent between a state
and an individual is one of grossly unequal power, especially when the state
is controlled by a group of individuals – even a democratic majority – that
holds prejudice or animus toward another group. The egalitarian promise of
the Fourteenth Amendment is seen most clearly in the 1898 Wong Kim Ark
Supreme Court decision, which uses the Fourteenth Amendment to uphold
the citizenship of U.S.-born children, even when their Asian-born parents
were racially ineligible for naturalization.19 As Neuman puts it, ‘‘The
Court’s courageous recognition of citizenship for Americans of Chinese
descent was an extreme illustration of the irrelevance of ‘consent’ y the
Court overrode strong indications of unwillingness to admit the Chinese to
the American polity’’ (1987, p. 495). Today, third and fourth generation
Asian Americans earn higher incomes and hold higher educational
credentials than their native-born white and black counterparts, an outcome
likely unimaginable had the Supreme Court denied their parents and
grandparents birthright citizenship.20
At the same time, legislation and case law over the last 60 years raise
questions about the relevance of birthright citizenship in the contemporary
period. Starting in the 1950s, the successes of the civil rights movement
advanced many equality guarantees. Supreme Court decisions like Brown v.
Board of Education and Hernandez v. Texas in 1954, Congressional
legislation such as the 1964 Civil Rights Act and 1965 Voting Rights Act,
64 IRENE BLOEMRAAD

and subsequent legislative, legal, and administrative efforts generated a

‘‘minority rights revolution’’ in the United States (Skrentny, 2002).21
Indeed, the United States stands out for its robust legal and institutional
responses to discrimination based on race, ethnicity, religion or national
origins. In a comparative survey of 31 highly industrialized democracies, the
Migrant Integration Policy Index names the United States, with Canada, as
having done the most to pass policies and set up institutions to fight
discrimination and combat racial profiling or incitements to hatred,
protections that also cover foreign-born residents.22
Against the backdrop of these protections, two distinct scholarly
positions question the importance of birthright citizenship. One perspective
suggests that traditional nation-state citizenship is being eclipsed by global
human rights norms and an expanding rights regime that applies to people
regardless of citizenship (e.g., Soysal, 1994). Citizenship, according to this
optimistic view, is not really necessary given widespread rights guarantees.
An alternative, more pessimistic perspective examines racial minorities’
‘‘second-class’’ status despite formal guarantees of legal equality. Critics
point to research showing significant differences between U.S. minority
groups in their rates of incarceration, incidence of poverty, educational
attainment, access to high performing schools, living conditions, overall
wealth, employment rates, health outcomes, and chances of dying due to
violent crime. These indicators of continuing racial inequality undermine the
belief that formal citizenship status holds out much egalitarian promise.
I argue that we should not discount the importance of legal citizenship –
whether for optimistic reasons of human rights or pessimistic concerns
about de facto second-class citizenship – because citizenship provides a
claim to legitimate membership. Perhaps surprisingly, given the philosophi-
cal value placed on the idea of consent, these claims appear stronger – in the
eyes of those with immigrant-origins – when one is born in the United
States.

AN IMMIGRANT VIEW: BEING AMERICAN AND

BECOMING AMERICAN
At the time that many civil rights guarantees were becoming law, few
immigrants lived in the United States. In 1970, less than 5 percent of U.S.
residents were foreign-born, and the majority of those people were
naturalized citizens. In 2009, however, 38.5 million people, or 12.5 percent
Being American/Becoming American 65

of the country’s 307 million residents, were born outside of the United
States.23 In California, more than one in four people, 27 percent, were
foreign-born.
For immigrants, legal status in the United States spans a continuum. On
one end, in the most secure status are the 16.8 million foreign-born
residents, almost 44 percent of the total in 2009, who are naturalized U.S.
citizens. Once a person receives permanent legal status, he or she can apply
for citizenship after five years (or three years if married to a U.S. citizen),
provided that they meet the other requirements of naturalization, such as
basic English language ability, knowledge of U.S. history and political
institutions, and demonstration of good moral character.
At the other end of the legal continuum, an estimated 11 million people,
about 29 percent of all foreign-born individuals live as unauthorized
residents (Hoefer et al. 2011; Passel & Cohn, 2009). They entered the
country clandestinely, overstayed legal visas for tourism, study, or
temporary work or fall out of status when asylum bids are denied or
temporary protected status ends. Today, undocumented or ‘‘illegal’’
migration has become a defining feature of U.S. immigration debates: a
majority of U.S. residents think – incorrectly – that most migrants in the
country are illegal.24
Between these two ends of the legal spectrum are legal permanent
residents (LPRs) who are ‘‘aliens,’’ but who enjoy many of the same rights
and benefits as citizens. More precariously, another group of migrants lives
in a situation of ‘‘liminal legality,’’ a term Menjı́var (2006) uses for people
who move in and out of legal status or who have temporary residence rights
but limited possibilities for becoming permanent residents. This group
includes people in Temporary Protected Status or asylees waiting for their
cases to be adjudicated, as well as international students, temporary
workers, and various other specialized visa categories. LPRs are eligible for
citizenship; temporary residents, even if legally present, are not.
Although these legal categories seem clear and differentiated on paper, in
reality many foreign-born individuals move between statuses, from refugee
to permanent resident, from temporary student to temporary worker, from
Temporary Protected Status to unauthorized, from unauthorized to
legalized. It is estimated that in 2003, about half of all people granted legal
permanent residence had already lived in the United States under some
temporary status or as an unauthorized migrant (Jeffery, 2007; Hayes &
Hill, 2008).25 In 2009, almost 60 percent of new lawful permanent residents
(668,000 of 1.1 million) adjusted their status from within the United
States.26 Many immigrants’ lived experience of legal status is characterized
66 IRENE BLOEMRAAD

by fluidity, which can offer some hope to those lacking documents but also
reinforces the sense of an ambiguous future and precarious legal existence.
Many of these migrants have children. Some children come as migrants
themselves, but most were born in the United States and thus acquired U.S.
citizenship through the Fourteenth Amendment. Jeffrey Passel estimates
that in 2009, 17.3 million children, or 23 percent of all youth under 18, had
at least one foreign-born parent (2011, p. 24). Of these children, 84 percent
were U.S. citizens by birth, 10 percent were non-citizen legal residents, and 6
percent were themselves unauthorized. Among the approximately 14.5
million U.S.-born youth in immigrant families, Passel’s estimates that
almost 29 percent have at least one unauthorized parent. This gives rise to
the increasingly common phenomenon of ‘‘mixed status’’ families: families
in which different members hold distinct legal statuses and who are thus
subject to different laws and regulations when it comes to social benefits,
political voice, and protection from deportation. How do these immigrants
and their children understand membership and belonging in the United
States?

Understanding American Membership: Models and Survey Data

Scholarly observers come to quite different conclusions about immigrants’

chances for full membership and inclusion in the United States. For many
students of comparative citizenship studies, the United States is a country of
‘‘civic’’ membership where holding citizenship is synonymous with being
American; immigrants and minorities can become full members of the polity
and society through political affiliation (e.g., Joppke, 2010). A more
multicultural approach might allow hyphenated identities, such as being
Chinese American or Mexican American, but these very terms underscore
the distinction between an ethno-cultural background (Chinese or Mexican)
and a civic, political membership (American). Being American can be
combined with different ancestry adjectives, but the key noun, American, is
a civic identity.
Among scholars of U.S. immigration, this view finds partial reflection in
contemporary models of immigrant assimilation, where the relatively open
boundaries to citizenship are seen as critical to integration (Alba, 2005).
These immigration scholars argue that newcomers – and especially their
children – integrate into a diverse and largely welcoming American
‘‘mainstream,’’ where ethnic and racial origins have, at most, minor effects
on life chances and opportunities (Alba & Nee, 2003, p. 12). In the strongest
Being American/Becoming American 67

version of the civic membership argument, full inclusion happens in the first
generation through naturalization since consensual political membership is
blind to race, ancestry, or other ascriptive traits.
This view of open civic membership is predicated on at least four factors.
First, the U.S. self-image as a country of immigration provides an idiom for
immigrant inclusion. Such a narrative is harder to find in European societies
with large migrant populations. Second, birthright citizenship and relatively low
barriers to naturalization provide for large-scale legal and political inclusion.
Third, the empirical evidence of earlier integration, largely by immigrants of
European origin but including the descendants of late nineteenth century Asian
migrants, shows that their grandchildren and great-grandchildren are linguis-
tically and socioeconomically indistinguishable from other native-born Amer-
icans. Finally, the bases of legalized inequality in the past are now illegal and
largely discredited. In the words of Alba and Nee, ‘‘Because of the y extension
of civil rights to nonwhites, the monitoring and enforcement of formal rules that
once worked to effect exclusion from the mainstream now contribute to lower
the barriers to entry for immigrant minorities and the new second generation’’
(2003: p. 14). For all these reasons, many view the United States as epitomizing
an inclusive society where, literally, the son of a temporary African migrant can
become President of the United States.
The counterpoint to this optimistic narrative is the substantial evidence of
continuing ethno-racial inequality in the United States, despite equality
guarantees or even affirmative action programs. For example, in their study
of third- and fourth-generation Mexican Americans, Telles and Ortiz point
to the limits of inclusion through law, especially in terms of educational
attainment, but also in identification, ‘‘Ethnic identification for Mexican
Americans remains strong even into the fourth generation y. The especially
slow rate of identificational assimilation seems to be at least partly shaped
by racialization experiences’’ (Telles & Ortiz, 2008, pp. 236, 237). Such data
speak to the idea of second-class citizenship: formal legal equality, but
extensive inequality in experience, which influences feelings of membership.
Adjudicating between these opposing views is more difficult than one
might think. Scholars often use survey data as evidence, but interpreting
responses is not self-evident.27 A response of ‘‘I am American’’ to an identity
question could be a straightforward example of assimilation and member-
ship. But what does one make of hyphenated or multiple identities? This
could indicate second-class citizenship, or a more inclusive multiculturalism
(Bloemraad, 2006). In the 2006 National Latino Survey, which polled
native-born and foreign-born Latinos across the country, respondents were
asked how strongly they thought of themselves as American, Latino, or their
68 IRENE BLOEMRAAD

particular national origin (e.g., Mexican and Cuban).28 As seen in Table 1,

native-born Latinos – of the second generation or with longer roots in the
United States – are more likely to report ‘‘somewhat’’ or ‘‘very’’ strong
identification as American than foreign-born Latinos, 88 percent and 55
percent, respectively.29 There is, however, little difference between native-
born and foreign-born respondents’ attachment to a ‘‘Latino’’ or
‘‘Hispanic’’ identity or a national-origin identity: 89 and 91 percent of
native-born and foreign-born respondents, respectively, reported feeling
somewhat or very ‘‘Latino/Hispanic,’’ while 82 and 91 percent, respectively,
reported a strong national origin identification. These numbers are much
higher, for the foreign-born, than their sense of being American.
Thus, in line with the arguments of Telles and Ortiz (2008), we find a
strong persistence in ethnic identity, although this might be affected in part
by the LNS survey design, which targeted self-identified Latinos. But does
this represent second-class citizenship or a more positive multicultural
inclusion where one can be a particular ancestry, but also an American in a
civic (or even cultural) sense? In the LNS, when respondents were pressed to
choose between an American, Latino, or national origin identification, the
30
native-born divided into roughly equal thirds, as shown in Table 2. Not
surprisingly, foreign-born respondents were relatively more likely to choose
their national origin—about half did so—than the native-born. Strikingly,
very few immigrants choose the American label, only 7 percent.
Immigrants’ reluctance to pick ‘‘American’’ when pushed raises questions
about the contours of membership for the foreign-born. However, the forced
choice might be excessively artificial, and the results from the survey can be
interpreted in multiple ways. Noteworthy for the present context, the data are
consistent with a story about the importance of U.S. birth, among other factors,
in increasing one’s sense of being American. To get a better handle on
immigrants’ sense of membership, I conducted research using in-depth inter-
views, which do not provide pre-set answer categories, allowing respondents to
articulate their own views of belonging. In-depth interviews are particularly
valuable for revealing people’s sometimes contradictory but consequential
understandings of membership. They also reveal how people try to make these
ideas relevant to their own lives and those of their family members.

The Immigrant Families, Political Socialization Project

The Immigrant Families’ Political Socialization Project conducted in-depth

interviews with U.S.-born youth between the ages of 14 and 18 and at least
 Being American/Becoming American
Table 1. Strength and Content of Latinos’ Identifications, by Nativity.
American ID Latino/Hispanic ID National Origin ID

Not Not very Somewhat Very N Not Not very Somewhat Very N Not Not very Somewhat Very N
at all strongly strongly strongly at all strongly strongly strongly at all strongly strongly strongly

Native-born 4 8 22 66 2998 4 7 24 65 2976 8 10 25 57 2980

Foreign-born 20 24 31 24 5308 3 6 26 65 5389 3 7 21 70 5395
All respondents 14 18 28 39 8306 3 6 25 65 8365 5 8 22 65 8375

Source: Latino National Survey, 2006.

Puerto Rico-born subjects classified as U.S.-born. Tabulations are weighted according to survey weights.

69
70 IRENE BLOEMRAAD

Table 2. Latinos’ Primary Identification, by Nativity.

Latino National Origin American None of These N

Native-born 35 27 35 3 2941
Foreign-born 42 49 7 3 5388
All respondents 39 41 17 3 8329

Source: Latino National Survey, 2006.

Puerto Rico-born subjects classified as U.S.-born. Tabulations are weighted according to survey
weights.

one of their foreign-born parents. The interviews were conducted in two

phases. Phase one concentrated on 83 people drawn from 42 Mexican-origin
families that mostly lived in Richmond and Oakland, California.31 Oakland
and Richmond are both ethnically and racially diverse ‘‘majority-minority’’
cities with large percentages of foreign-born migrants. Latinos – the bulk
of whom are Mexican-origin – make up a quarter of the population of
Oakland and a third of Richmond’s residents.32 We recruited roughly
equal numbers of parents with one of three legal statuses: undocumented
(12 parents), LPR (13 parents) or naturalized citizen (14 parents). We also
recruited four families in which the parent was a U.S.-born citizen as a
comparison point.33 All but four interviews were conducted between March
and August 2006.
Phase two expanded the study to include Chinese- and Vietnamese-origin
parents and their U.S.-born youth. We did an additional 99 interviews with
members of 53 families.34 Among those of Vietnamese-origin, 15 parents
were naturalized citizens and one was a LPR. Our inability to get much
variation in parents’ legal status is indicative of the very high levels of
naturalization among the Vietnamese.35 Among Chinese parents, 7 were
U.S.-born, 19 were naturalized citizens, and 8 were LPRs.36 Our geographic
focus in phase two expanded to include people living in San Francisco and
San Jose, as well as Oakland.37
During our interviews, we asked general questions about current and
past civic and political engagement, specific questions about participation in
and attitudes toward contemporary political events (such as the massive
2006 immigrant rights marches during phase one, and the 2008 presidential
primaries in phase two), questions about the respondent’s identity, as
American or something else, and their views on citizenship.38 This chapter
draws from these latter questions.
Being American/Becoming American 71

Being American: Who Can be a Member?

For many students of comparative citizenship, the United States epitomizes

a country of ‘‘civic’’ nationalism, while critical race scholars in law, ethnic
studies, and the social sciences question the narrative of civic equality. A
‘‘multiple traditions’’ approach to American membership, applied to the
contemporary period, suggests that both accounts hold some truth. In fact,
immigrants articulate narratives of both inclusion and exclusion when they
discuss who is and who can become an American.

Being American: Civic Inclusion Through Citizenship

Many respondents saw value in being a U.S. citizen and a fair number
talked about citizenship with reference to rights or political engagement in a
way that is consonant with liberal or republican notion of membership and
inclusion. Fewer, however, unequivocally equated civic membership with
‘‘being American’’; citizenship and being American were somewhat distinct
for many respondents. Of those who did see an overlap between the two,
most were born in the United States. For example, asked what it means to
be American, a U.S.-born Chinese American parent first replied, with a loud
laugh, ‘‘Someone who lives in America?’’ Pausing to think a bit more, he
elaborated, ‘‘Um, someone who lives in America and can appreciate the
ideals that are appreciated within a country that has freedom of speech and
everything else.’’ A U.S.-born Mexican American teen who identified as
American explained, ‘‘I think it means, to me, going out there. It means
freedom of speech, being able to do things that you want to do. And an
opportunity to pursue your dream, and stuff like that.’’ A naturalized
Vietnamese American articulated a strong notion of liberal and republican
belonging in her response:

R: I am an American because I live here, I have a right to speak out, I get benefits from
the government, I don’t miss out [on] anything. I have responsibilities, I have benefits. I
have responsibilities to this country, so I’m a citizen of this country.
I: Do you see a difference between having the passport of a US citizen and being an
‘‘American’’?
R: Anyone can get a U.S. passport, but to truly become an American you have to
contribute, put your energy, your strength, your mentality, everything. Those are two
different things, some people have passports but they don’t do anything. y Like if there
is a war, you have the responsibility to go; my children, I will support them if they need
to fight to protect our country.
72 IRENE BLOEMRAAD

For these respondents, ‘‘being American’’ did not implicate ascriptive traits
or personal circumstance, but rather it rested on adherence to civic values,
as well as rights and responsibilities. These responses were closest to a pure
civic membership.
Among parents who were naturalized citizens, a fair number evoked
notions of civic inclusion in explaining their decision to naturalize, but they
also spoke about practical and instrumental motivations, ranging from
protection against deportation to greater access to social benefits.39 A
Mexican-born mother explained that she had acquired U.S. citizenship
‘‘because I think it is better, I had been here for a long time y. I decided to
do it, to be able to vote, and, well, to make [immigration] petitions for
family members.’’ A Chinese-origin mother born in Hong Kong said, ‘‘As
an immigrant, being a citizen is good because you could obtain [public]
benefits more easily. Nowadays all benefits require being a citizen. You can
also vote and express yourself. Whenever I think about citizenship, I think
about voting and benefits.’’ Civic inclusion was important – many
immigrants were sensitive to the rights and protections that came with
citizenship – but practical benefits often weighed as heavily as passionate
adherence to constitutional values.40

Being American: Race, Class, and Privilege

The notion of American identity as synonymous with civic membership is
celebrated in the U.S. naturalization process (Aptekar, 2012; Bloemraad,
2006). It also rests on a strong notion of consent and volition: those who
believe in freedom of speech and similar values can be American since
membership is about political adherence, not background. We might expect
that foreign-born immigrants, especially those who are naturalized U.S.
citizens, would embrace a civic discourse, equating being American with
U.S. citizenship. But this was not often the case.
More common among the foreign-born were responses where people
hesitated when asked if they saw themselves as American. Asked how
strongly she thinks of herself as an American, a naturalized Mexican
American parent responded, ‘‘So-so y. Not that much y’’ She then
explained, ‘‘Because why are you going to think you are [American], if in
reality – You are American, but you still have the Mexican type [look].’’
Legal citizenship through naturalization did not necessarily make her feel,
or think others perceived her, as American. In a similar manner, a
naturalized Vietnamese American parent was blunt when asked what it
means to be American. Referring to his sons, he answered, ‘‘They don’t look
like Americans. Their bodies, they don’t look like Americans.’’ A
Being American/Becoming American 73

naturalized Chinese-born parent articulated the difference between U.S.

citizenship and being American in the following exchange:

I: Do you think of yourself as ‘‘American’’?

R: I think I’m yellowy I’m not a white person y. No matter where we go, we have
yellow skins.
I: So you think holding an American passport and being an American is different?

R: Yes.
I: How so?
R: The passport is just for travel convenience. But in America, it’s impossible that we are
considered Americans.

Being American, for these respondents, rested on a normative set of physical

characteristics, not consensual citizenship.
Being American is not just about race, however. A fair number of people,
foreign-born and U.S.-born, articulated a notion of Americanism linked to
wealth and the benefits that come from economic security. Indeed, physical
appearance and economic success seemed to be mutually constitutive for
some respondents. Asked what it means to be an American, one U.S.-born
Mexican American parent answered, ‘‘fulfilling the American dream, your
family, your house, a job, that’s to me what American is y. I figure most
people picture Americans with money, white.’’ A U.S.-born teen echoed this
sentiment, responding, ‘‘Like y when they say that it’s white and like, being
higher and everything. Money and more rights.’’ This group of respondents
seemed to take Judith Shklar’s (1991) arguments about American citizen-
ship a step further: not only do true Americans work and control their
labor, they must embody the American dream of economic success.41
A particularly poignant expression of this view of citizenship came out in
an interview with a young, U.S.-born Mexican American student who
attended a high school in Richmond. Richmond, like Oakland, regularly
ranks among the most violent cities in the United States. In 2006, when the
FBI documented 474 violent crimes per 100,000 people nationally, in
Richmond the rate was 1187 violent crimes per 100,000, including 42 cases
of murder. Asked what it means to be American, this teen responded:
‘‘American[s] y they live in quiet areas, most of them have bought their
homes, they live peacefully, not in places where there are shootings at every
houry Where they live, nothing like that happens y.’’ Since her school
and home are not in peaceful neighborhoods, she cannot be considered
American by her own definition.
74 IRENE BLOEMRAAD

Becoming American? Cultural Pathways and Birthright Membership

Sharp distinctions between ascriptive and civic citizenship obscure the

degree to which membership narratives are fluid. Many respondents
articulated multiple notions of belonging. These narratives highlighted a
process by which immigrants and their children could ‘‘become’’ American,
a process that was neither purely civic nor completely ascriptive.

Becoming American: Cultural Transformations

One key pathway articulated by respondents was through the adoption of
‘‘American’’ practices, a long-standing theme in the history of immigrant
integration. A Vietnamese American teen, asked about his parents, said they
were Vietnamese but also American, because ‘‘they wear American-style
clothing and stuff, and they talk English, and things like that.’’42 As one
Chinese-born permanent resident put it, being American ‘‘is the ability y to
enjoy life here. Or is it the lifestyle? How would you describe it? [Americans]
are more relaxed. They are not as stressed. Life isn’t as stressful. People even
walk slower.’’ Another Chinese-born parent, who is a naturalized citizen,
put it slightly differently, ‘‘We Chinese don’t usually call the police, like
when [our relatives] got robbed. They don’t want to get into troubles. y
being an American means being brave, to go out and do things.’’ Since these
behaviors and the attitudes behind them can be adopted by immigrants,
socialization to American ways can provide a means to be American. As one
Chinese-born parent suggested, in talking about her kids, ‘‘They’re Chinese
in appearance, but inside, American.’’ Respondents differed in the emphasis
placed on appearance, but they agreed that it was not an absolute barrier,
depending on behaviors, cultural practices, and attitudes. Such responses
support the claims of sociologists who predict that contemporary
immigrants and their children can assimilate into an American mainstream.
Those of Asian origins appeared somewhat more likely to invoke a
narrative of socialization or adoption of American norms as a means to
becoming American. Not all changes were viewed positively, however. In
some cases, parents did not want their children to become American. One
naturalized Vietnamese American explained, ‘‘American boys, they can cuss
and yell at each other when they get mad at each other. But my boys, they
were raised the Vietnamese way and they know better than to do or say
those things.’’ Being American is not purely ascriptive, but in this case
cultural change is not valued. Another Vietnamese American respondent, a
man who was interviewed by a younger Vietnamese American woman,
explained to the interviewer, ‘‘You are very American y. You are a strong
Being American/Becoming American 75

woman; Vietnamese women are just more delicate with their bodies, they are
soft. They know where to sit at the table and when they talk, they talk with a
softer voice.’’ For this respondent, cultural behaviors erase hard barriers of
race in determining membership, making the woman ‘‘very American’’ in his
eyes.

Becoming American: Birth, Rights, and Inclusion

In addition to cultural transformations, respondents made frequent implicit
and explicit appeals to birthplace as a means of being American. For many,
being born in the United States did, or could, make someone American,
despite racial minority status or socioeconomic condition. For certain
respondents, especially some U.S.-born youth, birthplace and being
American seemed synonymous. One Vietnamese American teen’s response
was typical. Asked why he thinks of himself as American, he seemed a bit
puzzled and said, ‘‘Because I was born here.’’ This sort of response –
repeated among a fair number of the teens – did not involve discussion of
civic principles or cultural habits. U.S. birth was enough for this teen to feel
like he was American.
For some, the notion of being American through birth also came with a
sense of legitimacy and standing that allowed the person to challenge
narrower or more exclusionary notions of being American. For example, the
U.S.-born Mexican American parent who felt that ‘‘most people picture
Americans with money, white,’’ went on to assert:
y we are all 100% Americans, we were born here. No matter what people say, we are
Americans. y but I know a lot of people don’t see [that]. If they are not the American
color, then a lot of people don’t say that you are American.

Although she believes that many equate being American with being white,
birthplace gives her a trump card to challenge perceptions or experiences of
racial exclusion and to make claims to membership. Some other respondents
articulated similar logics, though not always so forcefully.
Birthplace as a path to inclusion seemed slightly more prevalent among
Mexican-born respondents, perhaps due to the higher prevalence of
undocumented status in the Mexican immigrant population and public
perceptions equating the two. A Mexican permanent resident said that she
did not see herself as American because her color ‘‘is not a light color.’’ But
then she expressed more ambiguity about what it means to be American as
she began to think out loud:
It means y Being born here maybe? y For me Americans are the white people
[gabachos], they are Americans y. But the people born here are Mexican Americans and
76 IRENE BLOEMRAAD

they have Mexican parents. They, too, even if they are not white, they too are
Americans, Mexican-Americans, right?

In a similar way, another LPR born in Mexico was categorical that she was
not an American, but an immigrant. When asked what it means to be an
American, she reflected on the situation of her U.S.-born children:

Well, what can I say? It means a lot because you have a lot of rights. Voting, a lot of
things. y for Americans, it is always better, more respect. And we, us Mexicans, there is
a lot of discrimination. Even if they have fixed their residency, I still feel I am being
discriminated that way. Rejected. Even if we have papers. I think that it is better to be a
citizen like my children, all the boys. Maybe y they were born here and they feel much
better.

To her mind, U.S. birth might provide some antidote to discrimination and
could affect one sense of inclusion.
In fact, for some respondents and their family members, citizenship
‘‘whitens.’’ This seemed the case for a U.S.-born Mexican American teen
whose older brother is an undocumented resident. The brother, who was
brought to the United States as a small child, does not benefit from the legal
status and opportunities that his sister enjoys due to her birthright
citizenship. Discussing her sense of identity, the teen explained:

I am both American and Mexican y but my brother is always like ‘‘oh, you are
American and you are like white’’ [tone of disgust]. But he is playing around. And I’m
like, ‘‘No, I am not, I am a Chicana, I am both.’’ And then he just gets angry at the fact
that I am going to be able to drive with permission and he is not, because he is not legal
and he is almost 19.

The teen rejects an undifferentiated American label, but accepts that

being American is part of her multi-faceted identity, an identity that also
reflects an ethnic and perhaps racial membership. Strikingly, in the eyes
of her brother, citizenship means being American and white, an option
foreclosed to him. This teen’s experiences remind us that notions of
membership are not just about relations between immigrants and the
dominant mainstream population, but that it also has salience and is
negotiated in mixed status families.
While sensitivity to the importance of legal status, and especially
birthright citizenship, appeared more prevalent among Mexican-origin
respondents, those of Asian background also hinted at emancipatory
notions of birthright citizenship.43 Themes of racialized exclusion, cultural
assimilation, and the privileges of birth all came out in an interview with a
U.S.-born Vietnamese American teen who identified himself as Asian
Being American/Becoming American 77

American. Asked what, for him, it means to be an American, the youth

responded:
T: Um y I guess, just if they have a job, a house, a family, I guess they are American. y
I guess you’re only American if you were born here y. If you are a naturalized citizen,
then you’re just a person who came here.
I: Do you think of your parents as American?
T: Not really (laughs).
I: Why not?
T: Because, I don’t know, they don’t do anything American. They are just Asian. y I
mean ‘American’ is like anything a white person does. Basically, you know, have dinner
with the whole family at the dinner table.
Yeah. Just anything a white person does. And my parents don’t do any of that.

Many implicit and explicit notions of ‘‘being American’’ are embedded in

his answer, but from the perspective of a consensual view of U.S.
citizenship, it is noteworthy that the most ‘‘pure’’ form of membership
through consent – citizenship through naturalization—is not highly prized
in this young man’s eyes. Although his parents are naturalized citizens, it
does not make them American, but ‘‘just a person who came here.’’

CONCLUDING OBSERVATIONS
Returning to the Latino National Survey of 2006, we can make some final
observations. The LNS asked what characteristics are important to being
‘‘fully American’’ in the eyes of most Americans.44 Seventy-one percent of
respondents thought that birth in the United States was important for being
fully American, and there was strong consensus between native-born and
foreign-born Latinos. Almost everyone, 96 percent, agreed that English
language ability is an attribute of being fully American. This is noteworthy
because fewer people brought up language in the in-depth interviews,
perhaps because the interviewers spoke in the respondent’s preferred
language. The same is true of religion, which rarely came up in the in-depth
interviews but which was asked in the LNS: 60 percent of respondents felt
that it was somewhat or very important to be Christian to be perceived as
fully American by most Americans.45 In comparison, respondents to the
LNS were reluctant to link being American with being white: 64 percent of
those surveyed rejected the idea that this is important, with virtually no
difference between U.S.- and foreign-born respondents. It is quite possible
78 IRENE BLOEMRAAD

that during in-depth interviews, people were more willing to make such links
because they could articulate nuances around when and how race might
matter, which is impossible in a standard survey.
Turning to the in-depth interviews, we find that ‘‘multiple traditions’’ of
Americanism live on in the present. We might expect immigrants to embrace a
strong civic view of membership, since this is blind to personal background.
And, for some people, being American does mean holding certain values one
could label as liberal or republican. By implication, anyone who espouses
these values can be an American, regardless of their physical appearance.
However, others associate ‘‘American’’ with a particular group defined by
light skin tone and economic privilege. Such ascriptive Americanism means
that poorer racial minority immigrants have little chance to gain entry into the
circle of Americans. An intermediate space also exists where people can
become American. Cultural changes, in line with traditional notions of
assimilation and integration, offer one perceived pathway. Another, for the
children of immigrants, is birth on U.S. territory, the ius soli doorway
enshrined in the Fourteenth Amendment. The two paths are different in that
cultural change implies a process of inclusion which can be challenged, while
birthright citizenship involves an absolute claim.
In one sense, birthright citizenship is an exclusionary criterion, auto-
matically shutting out foreign-born residents. Given as a matter of condition
rather than volition, birthright citizenship has been labeled by some theorists
as ascriptive and problematic. But as the interview material makes clear,
birthright citizenship also provides a basis of inclusion. I would suggest that
this is because the Citizenship Clause of Fourteenth Amendment has
provided constitutional legitimacy for the ideals of inclusion and equality
through citizenship. Thus, despite ongoing exclusions and discrimination in
U.S. society, birthright citizenship provides a way to challenge such exclusion,
one that carries the weight of U.S. history and the Constitution.
In sum, citizenship is not a simple dichotomy between consensual choice
and involuntary ascription. Rather, a continuum of inclusions and
exclusions exist. As suggested by the interviews, citizenship through birth
can be mobilized as a claim against even more ascriptive and exclusionary
notions of membership, such as those inherent in particular racial, ethnic, or
religious views. Ironically, then, acquiring citizenship by birth – rather than
through bureaucratic application and swearing an oath to the country –
becomes a stronger process of ‘‘naturalization’’ into the nation than the
legal process we call ‘‘naturalization.’’ One can only imagine how exclusion
and alienation would grow if the opponents of birthright citizenship succeed
in re-interpreting the provisions of the Fourteenth Amendment.
Being American/Becoming American 79

NOTES
1. An earlier version of this paper was presented at the Law and Society Association
meetings in San Francisco in June 2011. My thanks to attendees for their feedback, and
to Devon Carbado, Angela Fillingim, Shannon Gleeson, Hiroshi Motomura, Marie
Provine, Heidy Sarabia, and Sarah Song for very helpful comments on an earlier draft,
as well as the suggestions of the journal’s reviewers. I gratefully acknowledge funding
from the Russell Sage Foundation in support of the data collection.
2. The Fourteenth Amendment proclaims that ‘‘All persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are citizens of the United
States.’’ According to Feere (2010), the United States is one of only 30 countries that
accords automatic citizenship upon territorial birth with almost no restrictions. In
recent years, the United Kingdom (1983), Australia (1986), and Ireland (2005)
amended their laws to make birthright citizenship contingent on parents’ length of
residence or legal status (Vink & de Groot, 2010).
3. ‘‘Birthright citizenship will be target of House GOP majority,’’ Miami Herald
(November 18, 2010); available at: http://www.miamiherald.com/2010/11/18/
1931760/birthright-citizenship-will-be.html%23ixzz15eiorezD. A long list of Con-
gress members has echoed such calls. See Smith (2009, pp. 1332, 1333) for an
enumeration of some of the bills introduced in Congress from 1993 to 2008 seeking
to limit birthright citizenship.
4. Not all critiques articulate a legal or political theory of consent, but such a
frame is inherent, for example, in worries over ‘‘anchor babies.’’ Birthright
citizenship becomes a double violation of consent: first to the presence of the child,
then to the possibility that the parents’ will be placed on a path to citizenship once
the adult child can sponsor them for legal residence. Principles of consent also
become intertwined with other frames, such as that of law and order.
5. Remarks of Rep. King at the January 17, 2008 Hearing before the
Subcommittee on Immigration, Citizenship, Refugees, Border Security, and Interna-
tional Law, 110th Congress, Second Session, 110–64, p. 3. Available at: http://
judiciary.house.gov/hearings/printers/110th/40282.pdf
6. Author’s calculations from Hoefer, Rytina, and Baker (2011, p. 4). The top 10
source countries for undocumented migrants are, in order, Mexico, El Salvador,
Guatemala, Honduras, Phillipines, India, Ecuador, Brazil, Korea, and China.
7. As Smith puts it, ‘‘For over 80% of U.S. history, its law declared most of the
world’s population to be ineligible for full American citizenship solely because of
their race, original nationality, or gender’’ (1993, p. 549). See also Haney-López
(1996). It might seem contradictory that Smith has been influential in exposing a
history of ascriptive exclusions in American political and legal thought while also co-
authoring one of the most well-known arguments for a restrictive understanding of
the Fourteenth Amendment. The intellectual bases for both lie in a firm belief that
scholars must marry ‘‘logical coherence’’ with fidelity to the historical record. See,
for example, Smith’s later (2009) reflections on Citizenship Without Consent.
8. The text of the bill is available at http://www.govtrack.us/congress/
billtext.xpd?bill=h112-140
9. Shankar Vedantam, ‘‘Several states want court ruling on birthright citizen-
ship,’’ Washington Post (January 6, 2011), available at: http://www.washington-
post.com/wp-dyn/content/article/2011/01/05/AR2011010506372.html
80 IRENE BLOEMRAAD

10. Schuck and Smith continue to stand behind their constitutional analysis, but
both have said that as a matter of public policy, Congress should probably continue
present practice. Smith has also suggested that the lack of widespread political
support for repealing or re-interpreting the Citizenship Clause can be read as tacit
consent for the Fourteenth Amendment (2009, pp. 1333, 1334).
11. Upon publication, the book provoked a spirited reaction from other scholars
(e.g., Carens, 1987; Martin, 1985; Neuman, 1987) and the debate continues to the
present (e.g., Rodrı́guez, 2009; Smith 2009).
12. Indeed, Schuck and Smith (1985) argue that the importance of consent is
reiterated in the first U.S. Expatriation Act, passed the day after the Fourteenth
Amendment was ratified; it underscored the ‘‘natural and inherent right’’ of all
people to freely choose, and renounce, their national allegiances.
13. Schuck and Smith (1985, p. 9) acknowledge such differences, but view them as
secondary to the more general ascription/consent dichotomy, as does Shachar
(2009). I believe that this abstraction is too simplistic, especially if we place an
egalitarian principle at the center of the analysis.
14. If one takes a broader view and examines citizenship as an issue of global
justice, then birthright citizenship can be a source of significant inequality, especially
given that only three percent of the world’s population lives outside its country of
birth (Shachar, 2009). Here, however, I am interested in the dynamics of inclusion
within the United States, where over 12 percent of the population is foreign-born, a
percentage similar to the proportion of the U.S. population that is black.
15. I am indebted to Sarah Song for helping me elaborate this line of reasoning.
16. As Neuman (1987) puts it, the framers of the Fourteenth Amendment clearly
rejected the notion, inherent in Dred Scott, that white Americans could ‘‘consent’’
to bar blacks from citizenship. See also Rodrı́guez (2009, p. 1366) on the
‘‘prophylactic’’ protection of the Fourteenth Amendment against the majority’s
ability to deny citizenship to the U.S.-born based on prejudice. As the legal
scholarship notes, however, the Fourteenth Amendment did not apply to native
Americans living on tribal lands, nor have courts applied it to people living on U.S.-
controlled territory outside the 50 states, who are instead covered by federal statute.
17. 1790 Naturalization Act (an act to establish a uniform rule of naturalization),
(1 Stat. 103), 1st Congress; March 26, 1790.
18. 1870 Naturalization Act (an act to amend the naturalization laws and to
punish crimes against the same, and for other purposes), (16 Stat. 254), 41st
Congress, 2nd session; July 14, 1870, and 1882 Chinese Exclusion Act (an act to
execute certain treaty stipulations relating to the Chinese), (22 Stat. 58), 47th
Congress, 1st session; May 6, 1882.
19. United States v. Wong Kim Ark, 169 U.S. 649 (1898). For more on litigation by
Asian Americans and Asian immigrants in this period, see Hing (1994), Takaki
(1989), and Salyer (1995).
20. This would be precisely the situation of the children of undocumented parents
without the application of the Fourteenth Amendment, since such children could
access neither birthright citizenship nor naturalization since naturalization requires
legal permanent residency.
21. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Hernandez v.
Texas, 347 U.S. 475 (1954).
Being American/Becoming American 81

22. For more information, see http://www.mipex.eu/anti-discrimination

23. Unless otherwise noted, all population statistics come from the 2009 American
Community Survey, accessed using the U.S. Census Bureau’s FactFinder tool: http://
factfinder.census.gov/home/saff/main.html?_lang=en. For an overview of immigra-
tion data from the ACS, see http://www.migrationinformation.org/USfocus/
display.cfm?ID=818
24. A 2009 German Marshall Fund survey finds 51 percent of Americans think
most immigrants are illegal.
25. Jeffery’s (2007) estimate uses administrative data from USCIS; the estimate by
Hayes and Hill (2008) uses data from the academic New Immigrants Survey.
26. The data come from the Department of Homeland Security’s Yearbook of
Immigration Statistics 2009.
27. Space constraints prevent a thorough overview and evaluation of the
quantitative social science scholarship on citizenship and national identity. For
recent analyses, see Schildkraut (2007), Theiss-Morse (2009), and Wright, Citrin, and
Wand (2012).
28. The Latino National Survey is a stratified geographic survey covering a universe
that contains 87.5% of all Latinos in the United States. The final survey database
consists of 8,634 completed telephone interviews of self-identified Latino/Hispanic
residents who can be native-born or foreign-born of any legal status. The survey was
conducted by bilingual English and Spanish interviewers. For more information, see
http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/20862/detail. My thanks to
Morris Levy for putting together the LNS descriptive statistics reported here.
29. The question wording was, ‘‘[In general,] how strongly or not do you think of
yourself as [American]?’’
30. The question wording was, ‘‘Of the three previous terms, Latino or Hispanic,
[national origin], or American, which best describes you?’’
31. In 3 of the 42 families, we were only able to complete an interview with one
family member, either the parent or teen, but not both. In two other families,
both parents (not always of the same legal status) were interviewed, either
separately or together. All youth and parent interviews were conducted separately
to preserve confidentiality. In two cases, we interviewed youth born in Mexico
who migrated to the United States as small children (one was seven months old,
the other was seven years old). Both acquired U.S. citizenship through a parent’s
naturalization. For more on the methodology of phase one, see Bloemraad and
Trost (2008).
32. Families were primarily recruited through four public high schools with large
Latino populations, with additional snowball sampling to include a few families with
students at private (often religious) schools.
33. One of the initial goals of this project was to understand political socialization
among groups facing significant obstacles to participation. Since prior research
overwhelmingly demonstrates that socioeconomic status, and especially education,
correlates strongly with civic and political engagement, we restricted recruitment to
families where the interviewed immigrant parent has less than a high school education.
(Indeed, 70 percent of Mexican immigrants in the United States do not hold a grade 12
high school diploma.) Among the four families with U.S.-born parents, we restricted
our interviews to those with less than a four-year college degree.
82 IRENE BLOEMRAAD

34. In phase two, we also re-interviewed many of the original Mexican-

origin respondents (N=35), but those interviews are not included in the present
analysis.
35. According to the American Community Survey (2005–2007), 77 percent of all
foreign-born Vietnamese living in California had acquired U.S. citizenship through
naturalization. In comparison, 68 percent of foreign-born Chinese had done so, and
only 26 percent of foreign-born Mexicans.
36. A number of undocumented Chinese migrants live in the Bay area, but
relatively few have U.S.-born children, making them ineligible for our study.
37. We drew a few respondents from other towns in the Bay area, but most were
from these three cities. In phase two, we had more problems accessing students
through high schools so we used a varied recruitment strategy targeting parents
(through ethnic media, community organizations, ESL classes, and personal
contacts) and youth (through friendship networks, the web, youth groups, and
some schools).
38. Interviews were conducted by bilingual and bicultural interviewers who spoke
Spanish, Vietnamese, Mandarin or Cantonese. Almost all foreign-born parents chose
to be interviewed in their native language, and almost all teens chose English.
Interviews lasted from 45 minutes to two hours, and were transcribed and translated
into English for analysis.
39. The mix of practical reasons and civic ideals behind naturalization has been
well-documented elsewhere (e.g., Bloemraad, 2006; Gilbertson & Singer, 2003).
40. Such responses strongly challenge arguments around post-national member-
ship that posit the waning significance of citizenship in the face of greater attention to
personhood and human rights.
41. Associating ‘‘being American’’ with economic success is exclusionary for those
living in modest or precarious economic positions. For some better-off respondents,
the ‘‘American dream’’ was an inclusive pathway to membership, as for a U.S.-born
parent of Chinese origins who saw herself as American because of her values. Asked
what constituted American values, she explained, ‘‘I would say it’s the belief that
everyone can do better. y that if you work hard you can raise yourself up.’’
42. Other teens concluded that their parents were not American because they did
not speak English, or did not speak the language sufficiently well.
43. Space constraints prevent a discussion of why national origin differences
might exist in articulations of citizenship and being American. Asian-origin
respondents might emphasize a cultural pathway given historical and contemporary
views of Asians as ‘‘forever foreigners’’ within the United States (Carbado, 2005;
Tuan, 1999), while the historical and contemporary attribution of Mexicans as illegal
aliens likely underscores the importance of legal membership, including birthright
citizenship, for this group.
44. The question wording was, ‘‘When you think of what it means to be fully
American in the eyes of most Americans, do you think it is very important,
somewhat important, or not important to [characteristic].’’
45. Since the survey questions ask about respondents’ perceptions regarding what
‘‘most Americans’’ think, responses might be different from immigrants’ personal
views of membership, which was the focus in the in-depth interviews.
Being American/Becoming American 83

REFERENCES
Alba, R. (2005). Bright vs. blurred boundaries: Second generation assimilation and exclusion in
France, Germany, and the United States. Ethnic and Racial Studies, 28(1), 20–49.
Alba, R., & Nee, V. (2003). Remaking the American mainstream: Assimilation and contemporary
immigration. Cambridge, MA: Harvard University Press.
Aptekar, S. (2012). Naturalization ceremonies and the role of immigrants in the American
Nation. Citizenship Studies, 16, 7.
Bloemraad, I. (2006). Becoming a citizen: Incorporating immigrants and refugees in the United
States and Canada. Berkeley, CA: University of California Press.
Bloemraad, I., & Trost, C. (2008). It’s a family affair: Inter-generational mobilization in the
spring 2006 protests. American Behavioral Scientist, 52(4), 507–532.
Brubaker, R. (1992). Citizenship and nationhood in France and Germany. Cambridge, MA:
Harvard University Press.
Carbado, D. W. (2005). Racial naturalization. American Quarterly, 57(3), 633–658.
Carens, J. H. (1987). Who belongs? Theoretical and legal questions about birthright citizenship
in the United States. University of Toronto Law Journal, 37, 413–443.
Feere, J. (2010). Birthright citizenship in the United States: A global comparison. CIS
Backgrounder (August 2010), Washington, DC: Center for Immigration Studies.
Retrieved from http://www.cis.org/birthright-citizenship
German Marshall Fund of the United States (2009). Transatlantic trends: Immigration, 2009.
Washington, DC: German Marshall Fund. Retrieved from http://trends.gmfus.org/
immigration/doc/TTI_2009_Key.pdf
Gilbertson, G., & Singer, A. (2003). The emergence of protective citizenship in the USA:
Naturalization among dominican immigrants in the post-1996 welfare reform era. Ethnic
and Racial Studies, 26(1), 25–51.
Gualtieri, S. (2001). Becoming ‘White’: Race, religion and the foundations of Syrian/Lebanese
ethnicity in the United States. Journal of American Ethnic History, 20, 29–58.
Haney López, I. (1996). White by law: The legal construction of race. New York, NY: New York
University Press.
Hayes, J. M., & Hill, L. E. (2008). Immigrant pathways to legal permanent residence: Now and
under a merit-based system. California Counts: Population Trends and Profiles 9(4). San
Francisco: Public Policy Institute of California. Retrieved from http://www.ppic.org/
content/pubs/cacounts/CC_608JHCC.pdf
Hing, B. O. (1994). Making and remaking Asian America through immigration policy, 1850–1990.
Stanford, CA: Stanford University Press.
Hoefer, M., Rytina, N., & Baker, B.C. (2011). Estimates of the unauthorized immigrant
population residing in the United States: January 2010. Population estimates. Office of
Immigration Statistics, Department of Homeland Security. Retrieved from: http://
www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2010.pdf
Howard, M. M. (2009). The politics of citizenship in Europe. New York, NY: Cambridge
University Press.
Jefferys, K. (2007). U.S. legal permanent residents: 2006, Annual flow report. Washington, DC:
Office of Immigration Statistics, Policy Directorate, Department of Homeland Security.
Joppke, C. (2010). Citizenship and immigration. Cambridge, MA: Polity Press.
Martin, D. A. (1985). Membership and consent: Abstract or organic? Yale Journal of
International Law, 11, 278–296.
84 IRENE BLOEMRAAD

Menjı́var, C. (2006). Liminal legality: Salvadoran and Guatemalan immigrants’ lives in the
United States. American Journal of Sociology, 111(4), 999–1037.
Neuman, G. L. (1987). Back to Dred Scott? San Diego Law Review, 24, 485–500.
Passel, J. S. (2011). Demography of immigrant youth: Past, present, and future. The Future of
Children, 21(1), 19–42.
Passel, J. S., & Cohn, D. (2009). A portrait of unauthorized immigrants in the United States.
Washington, DC: Pew Hispanic Center.
Reasoner, W.D. (2011). Birthright citizenship for the children of visitors: A national security problem
in the making? CIS Backgrounder (March 2011), Washington, DC: Center for Immigration
Studies. Retrieved from http://www.cis.org/birthright-citizenship-for-visitors
Rodrı́guez, C. (2009). The citizenship clause, original meaning, and the egalitarian unity of the
fourteenth amendment. University of Pennsylvania Journal of Constitutional Law, 11,
1363–1371.
Salyer, L. E. (1995). Laws harsh as tigers: Chinese immigrants and the shaping of modern
immigration law. Chapel Hill, NC: University of North Carolina Press.
Schildkraut, D. J. (2007). Defining American identity in the 21st century: How much ‘There’ is
there? Journal of Politics, 69, 597–615.
Schuck, P. H.,, & Smith, R. M. (1985). Citizenship without consent: The illegal alien in the
American polity. New Haven, CT: Yale University Press.
Shachar, A. (2009). The birthright lottery: Citizenship and global inequality. Cambridge, MA:
Harvard University Press.
Shklar, J. (1991). American citizenship: The quest for inclusion. Cambridge, MA: Harvard
University Press.
Skrentny, J. D. (2002). The minority rights revolution. Cambridge, MA: Harvard University Press.
Smith, R. M. (1993). Beyond Tocqueville, Myrdal, and Hartz: The multiple traditions in
America. American Political Science Review, 87(3), 549–566.
Smith, R. M. (1997). Civic ideals: Conflicting visions of citizenship in U.S. History. New Haven,
CT: Yale University Press.
Smith, R. M. (2009). Birthright citizenship and the fourteenth amendment in 1868 and 2008.
University of Pennsylvania Journal of Constitutional Law, 11, 1329–1335.
Soysal, Y. N. (1994). Limits of citizenship: Migrants and postnational membership in Europe.
Chicago, IL: University of Chicago Press.
Takaki, R. (1989). Strangers from a different shore: A history of Asian Americans. New York,
NY: Little, Brown and Company.
Telles, E. E., & Ortiz, V. (2008). Generations of exclusion: Mexican Americans, Assimilation, and
race. New York, NY: Russell Sage Foundation.
Theiss-Morse, E. (2009). Who counts as an American? The boundaries of national identity.
New York, NY: Cambridge University Press.
Tuan, M. (1999). Forever foreigners or honorary whites? The Asian ethnic experience today.
New Brunswick, NJ: Rutgers University Press.
Vink, M. P., & de Groot, G.-R. (2010). Citizenship attribution in Western Europe:
International framework and domestic trends. Journal of Ethnic and Migration Studies,
36(5), 713–734.
Wright, M., Citrin, J., & Wand, J. (2012). Alternative measures of American national identity:
Implications for the civic-ethnic distinction. Political Psychology, 33, 469–482.
EXTENDING HOSPITALITY?
HISTORY, COURTS, AND THE
EXECUTIVE

Dagmar Soennecken

ABSTRACT
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.

INTRODUCTION
In liberal nation-states, extending hospitality (and later, the right to stay) to
strangers has very much been a legal project. For the most part, the
executive employed laws and regulations at their discretion, motivated
primarily by foreign policy and economic interests, not to mention racial

Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality
Studies in Law, Politics, and Society, Volume 60, 85–109
Copyright r 2013 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000060008
85
86 DAGMAR SOENNECKEN

prejudices. Migration law, in this reading, functions as a classic instrument

of social control. While the precise extent of this control is much debated
(Cornelius, Martin, & Hollifield, 1994), migration scholars often laud the
restraining effect of judicial decisions on governments who pursue an
immigration ‘‘control’’ agenda. This effect has become even more
pronounced lately whenever migration-related questions intersect with
anti-terrorism issues (Benvenisti, 2008). Although some writers note that
judicial influence (Joppke, 1999) varies significantly from one country to
another and that their jurisprudence has not always been rights-expansive,
little systematic research has attempted to explain the extent of this variation
(but see Legomsky, 1987).
In this chapter, I argue that despite a growing international rights regime
(Jacobson & Ruffer, 2003), important differences persist among countries in
the degree of the judiciary’s involvement. These differences have their
origins in the dominance of the judiciary-executive relationship in the
immigration policy area. This relationship, in turn, is embedded in a
political and legal system at the national level that is typically slow to
change (Kagan, 1997). By going back to the ‘‘stem’’1 of this relationship in
two ‘‘very different’’ countries, Canada and Germany (Przeworski & Teune,
1970), I show how the seeds of this relationship got planted, which ones
germinated and which ones could have sprouted if conditions had been
different. As Michael McCann (1994) notes, ‘‘different legal norms and
institutional arenas over time offer varying degrees of opportunity for
creative challenge.’’ Law’s ‘‘role in sustaining traditional hierarchies, and
hence in structuring potential strategies for resistance, varies significantly
among different terrains of struggle’’ (p. 9). Understanding these different
terrains is particularly important for pro-immigration activists. Although
they have continuously tried to influence the politics of belonging, the
degree of success they have had varies (e.g., Bibler Coutin, 2000; Calavita,
1998). Making sense of key differences in domestic opportunity structures is
thus critical for mobilization and strategizing.
‘‘Going back to the stem’’ may sound a bit like reading tea leaves. In fact,
historic institutionalists have long argued that the sequencing of historical
events impacts not only future institutional configurations but also the
potential for policy change. Fundamentally, historic institutionalism
attempts to ‘‘place politics in time’’ to show that ‘‘when things happen y
affects how they happen’’ (Pierson, 2000b, p. 73). Political actors are not
immune to this environment. Previously enacted policies (‘‘policy legacies’’)
have the power to imprint themselves on political actors. As a consequence
of this imprinting, some choices become more attractive to actors than
Extending Hospitality? History, Courts and the Executive 87

others at certain points in time and thus influence the actors’ goals and
priorities (Thelen, 1999, p. 371). However, some choices may also produce
unintended consequences, counter-reactions and counter-mobilization. To
identify their effects and staying power, ‘‘we have to go back and look’’
(Pierson, 2000a, p. 264).
The chapter is divided into four parts. The first briefly outlines each
country’s approach to immigration. Canada and Germany have very
different traditions for incorporating strangers. One follows a more
‘‘liberal’’ approach, while the other follows the more restrictive, ‘‘guest
worker’’ model. The overview is not intended to cover each country’s entire
migration history and various debates – by highlighting key policy
developments and actors as well as changes to the scope of judicial
oversight, I suggest that there are powerful ‘‘echoes of the past in the
present’’ (Macklin, 2005, p. 77) not likely to disappear any time soon. In the
next section, I revisit a critical period close to the ‘‘stem’’ to examine in more
detail one of these ‘‘echoes’’ before drawing out the implications of the
period. While the Canadian case relies on previously unexamined
parliamentary records, the German case draws primarily from German-
language legal scholarship at the time.
We will see that the periods critical to the two countries are studies in
contrasts. In the Canadian section of this chapter, I revisit the institution of
the ouster (or ‘‘privative’’) clause in 1910, the legal provision that formally
restrained the involvement of Canadian courts in immigration matters for
decades, even beyond the entrenchment of the Canadian Charter of Rights
in 1982. As we will see, its imposition was the result of a clash between
courts and the executive and not merely a consequence of Canada’s
common law heritage. In the section on Germany, I revisit the first period
after the entrenchment of its well-known asylum provision into its
constitution in 1949. Although the provision is perceived as one of the
defining features of the German asylum system, as we shall see, it in fact
took decades for its prominence to be established. In the early days, the
provision was almost in danger of being completely minimized. Both cases
show that the mere presence (or absence) of constitutional rights provisions
and a Constitutional Court is not enough to explain differences in judicial
involvement. As Charles Epp (1998) put it, bills of right are indeed not self-
activating.
Overall, it is not the purpose of my analysis to merely contextualize
moments of judicial intervention. As law and society scholars have
demonstrated, ‘‘the radiating effect of courts’’ on the policy-making process
is much broader (Galanter, 1983). My primary interest here lies in
88 DAGMAR SOENNECKEN

illustrating how policy legacies, institutional configurations, and other

political actors (in particular the executive) over time not only shape but
also prevent and even delay judicial involvement. As Sherlock Holmes
famously said, it is indeed curious why the dog didn’t bark.2 In particular,
I want to highlight the varying significance of executive-level counter-
mobilization, institutional obstacles, and policy-making silences. I conclude
by suggestion that this style of historic comparative analysis is not merely an
academic exercise. As recent developments in Australia illustrate, it holds
important lessons for scholars interested in contemporary migration law
and policy-making worldwide.

INCORPORATING STRANGERS IN CANADA VS.

GERMANY: TWO VERY DIFFERENT MODELS

Although Canada and Germany are both federal countries with constitu-
tionally entrenched bills of right and powerful high courts, for migration
scholars they represent two very different traditions of incorporating
strangers. Germany best represents the restrictive ‘‘guest worker’’ model
among European societies (Messina, 2007, p. 16). In this model, hospitality
is limited and ‘‘guests’’ are only in the country temporarily. This approach is
reflected in its citizenship and naturalization policies, which (despite minor
reforms in 2000) continue to give priority to those of German descent
(Faist & Triadafilopolous, 2006). Yet Germany has been a major destination
for immigrants, despite not possessing a proactive immigration policy,
forcing it to continually grapple with questions of who belongs. Canada
follows a more ‘‘liberal’’ approach. Migration represents the largest share of
its population growth among settler societies. On the whole, it takes in
roughly twice as many permanent migrants per 1000 population and twice
as many refugees per capita as the United States (OECD, 2008). Overall, it
extends hospitality with the expectation of eventually incorporating the
newcomers into its society. This is reflected in government support for
various immigrant settlement programs as well as in Canada’s continued
commitment to its long-standing multiculturalism policy (Bloemraad, 2006).

CANADA

With an active immigration policy that brings in roughly 250,000 people

annually (Canada, 2010), including a relatively large share of refugees
Extending Hospitality? History, Courts and the Executive 89

(roughly 10% of the annual target, plus another 3–5% humanitarian

admissions), Canada is generally considered a liberal, immigrant-welcoming
society (Kymlicka, 1998). Since 1976, immigration targets are annually
tabled in the House and subsequently discussed in Parliament. However,
Canada, like most settler societies, also has a long history of racism and
preferential selection of certain immigrants over others. Before the 1970s,
Canada’s immigration policy was openly race-based and strongly favored
European immigrants. This approach grew out of the desire of ‘‘colonial
administrators to build in Canada an ‘overseas extension’ or replica of
British society’’ (Stasiulis & Jhappan, 1995, p. 97). During this time, cabinet
created lists of preferred immigrants through ‘‘orders-in-council.’’ These
were cabinet documents not debated or discussed in Parliament and
remained the government’s favorite tool for governing immigration policy
for decades. Canada’s early refugee policy was an extension of this
selectionist and discretionary immigration policy. Indeed, the first groups of
refugees admitted en masse to Canada (Hungarians in 1957 and Czechs in
1968) were also admitted via orders-in-council. Eventually an approach to
large-scale humanitarian resettlement developed – one that still forms the
basis for Canada’s refugee policy today (Dirks, 1984). Central to Canada’s
early immigration and refugee policy was the completely discretionary
nature of admission; a newcomer’s chances at acceptance were almost
entirely dependent on the country’s overall approach to immigration. Legal
rights or entitlements were largely absent from this process.
What is particularly interesting is that the shift to the frequently admired
skills-based ‘‘point system’’ in the mid-1970s occurred without judicial
involvement. Moreover, for a long time Canada’s much admired refugee
program also operated without substantial judicial oversight. The reason for
the absence of the courts at these critical moments of policy transformation
has not been extensively analyzed. While many classic studies of Canadian
immigration only refer to the courts on occasion (Hawkins, 1988; but see
Kelley & Trebilcock, 1998), legal analyses usually point to the substantial
degree of deference demanded of them due to the Royal Prerogative (the
broad discretionary powers granted to the British monarch whose exercise
did not require the prior consent of Parliament and which are now exercised
by the Executive), and the traditionally limited degree of judicial oversight
over administrative actions – both common law legacies (Dussault &
Borgeat, 1990). As we shall see, while these legacies certainly played an
important role in the sidelining of the Canadian courts, they are not a pillow
that smothered all judicial involvement. If we revisit an early moment
during Canada’s immigration history, we witness early pockets of activism,
90 DAGMAR SOENNECKEN

opposition, and resistance using the law, long before the passing of
Canada’s constitutional bill of rights, the Charter of Rights and Freedoms, in
1982. But this early, and albeit limited, activism triggered a judicial ‘‘ouster’’
(or ‘‘privative’’) clause in Canadian immigration legislation that would
make it much more difficult to gain access to the courts and mobilize the law
for social change. This restrictionist climate prevailed even after the formal
institutional obstacle (i.e., the privative clause) was removed in 1967 and
access to the courts widened.
Today, a number of decisions by Canadian courts have certainly
reverberated far beyond its national borders. The Ward case, for example,
is frequently cited as one of the leading cases on the question of what
constitutes a ‘‘social group’’ in refugee law and whether a ‘‘well founded
fear of persecution’’ (justifying refugee status) could come from a non-state
actor (Canada (Attorney General) v. Ward, [1993] 2 SCR, 689). The
Supreme Court of Canada (SCC) defined the former broadly and answered
‘‘yes’’ to the latter, leading the way in an ongoing debate regarding the
claims of other social groups for protection as well as the role of non-state
actors in refugee-producing conflict zones. Most of these cases, however,
were written after the entrenchment of the 1982 Canadian Charter of Rights
and Freedoms, which added a stronger rights angle to the judicial
interpretation of procedural fairness in immigration hearings of previous
decades. Still, immigration law (together with taxation) make up the
smallest percentage of cases heard annually by Canada’s highest court
(Soennecken, 2008, p. 199), the SCC making their impact all the more
significant. One reason there are so few is that the road to the SCC is steep
– claimants must first exhaust two levels of judicial review before the
Federal Court of Canada, the court that oversees decisions by the
Immigration and Refugee Board (IRB), the administrative tribunal
responsible for deciding virtually all immigration matters (except for those
already dealt with by visa officers overseas). Cases will only be allowed to
proceed up to the appeal division of the Federal Court if the case contains a
‘‘serious question of general importance,’’ a restriction not placed on cases
dealing with other administrative law matters. ‘‘Judicial review’’ further
means that the court cannot substitute its opinion for that of the IRB – it
can merely ensure that its decisions were carried out in accordance with the
law. Access to both the Supreme and Federal Court is further restricted to
claimants who have successfully obtained ‘‘leave’’ (or permission) from the
court. Success rates for being granted leave are low, and for winning one’s
case even lower (Greene & Shaffer, 1992). Although access to the courts
was progressively tightened over the years (a promised appeal on the merits
Extending Hospitality? History, Courts and the Executive 91

is still not implemented at the time of writing), it has in fact been limited for
decades.

The 1910 Clash and its Echoes

Canadian courts first became involved in immigration matters in the late

1800s through requests to review (a) denials of admittance to the country
and (b) deportation orders. Government officials at the time considered
deportations a purely administrative matter, which meant they were often
arbitrary. Deportees were first detained and then examined during a closed
hearing before a board of inquiry staffed by immigration officials, without
any regard to even minimal due process (Roberts, 1988).
Judicial attitudes were generally in line with those of immigration
officials. As Roberts (1988) notes further, ‘‘the deportation process was
overturned by the courts [only] when the Department got caught being
sloppy.’’ Despite the similarity between deportation hearings and criminal
proceedings, judgments repeatedly affirmed that the deportees were not
entitled to any of the procedural rights commonly granted to criminal
defendants, such as the right to hear the case against them. In short,
‘‘‘deportees’ had fewer rights than criminals’’ (pp. 3, 199).
Events in the years leading up to 1910 changed this cozy relationship
between the immigration department and the courts. First, around the time
of Canadian Confederation in 1867, a growing numbers of Asian
immigrants began to enter Canada. The first substantial groups came from
China and Japan, later from India. Chinese were being recruited by West
Coast industrialists for the building of the Canadian Pacific Railway (CPR)
(Avery, 1995). In an effort to control the migration flows from Asia after the
completion of the project in 1885, the government promptly imposed a
‘‘head’’ tax of $50 on Chinese newcomers (through the Chinese Immigration
Act of 1885) and negotiated a ‘‘gentlemen’s’’ agreement with the Japanese
government to temporarily cease migration (Macklin, 2005).3 Although
both measures lead to temporary reductions in migration flows, intermittent
anti-immigrant riots began to break out throughout the country, also targeted
at southern and eastern Europeans. At the same time, the country seemed to be
sliding into a slight economic depression. From 1905 onward, a number of
East Asians, largely from India (and British subjects), also began to arrive in
Canada. In 1907, a violent anti-immigrant riot erupted in Vancouver plunging
the Liberal government into ‘‘the gravest crisis any Dominion government had
ever faced on the Pacific Coast’’ (Avery, 1995, p. 49). These anti-immigrant
92 DAGMAR SOENNECKEN

tensions did not ease with the subsequent election of the Conservative Borden
government in 1911.
Most importantly for our purposes, politicians and government officials
in British Columbia (BC) and in Ottawa during this time period were
growing increasingly upset and embarrassed by the defeat of a number of
key government measures in the courts. These court challenges were
mounted by both businesses, primarily CP, and immigrant activists
(Kelley & Trebilcock, 1998). One important regulation that the courts
struck down (or declared ‘‘ultra vires’’) gave immigration officials the power
to turn back immigrants who had not arrived in Canada by ‘‘continuous
passage’’ (PC 27 (January 8, 1908)). This regulation had specifically targeted
immigrants from India since, at the time, there were no direct shipping
routes from India to Canada (Sampat-Mehta, 1972). CP took the
government to court over that regulation the same year the legislation was
passed. In its decision, the BC Supreme Court declared the regulation ultra
vires of Parliament (i.e., Parliament had exceeded its jurisdiction) and
therefore void (Re. Behari Lal et al. (1908) 13 BCR, 415–16). The decision
led to the release of 186 migrants who had arrived from India on the
Monteagle. It also caused considerable public and political upheaval.
However, it did not lead to any long-term policy change since the
government passed a new regulation simply reaffirming the disputed one
and at the same time introduced a bill in the House that would make the
regulation statutory law. It also successfully pressured CP to cease recruiting
East Asian migrants overseas (Buchignani, Indra, & Srivastiva, 1985).
Nevertheless, Ottawa found itself confronting an increasingly powerful
Asian community. Large numbers of South Asians arriving in BC at the
time were British subjects, most of them Sikhs. Many well-educated Sikhs
believed they were equal citizens in the British Empire. Canadian
immigration and deportation practices infuriated them, and they began to
mobilize, resorting to the courts as one means to effect change. In 1909,
Hassan Rahim was ordered deported (without a formal hearing, as required
by law) and released by order of the court only to be subsequently
apprehended (this time with a hearing) and released again, by the order of a
higher court (Re Rahim (1909–11), 16 BCR, 469–70; Re Rahim (No. 2)
(1909–11), 16 BCR, 471–72). As a result, he became a prominent figure in
the East Asian community and subsequently became involved in the well-
known Komagata Maru incident. His case highlighted the gap between the
government’s arbitrary deportation practices and the law on the books. It
also illustrated that even in those early days, individuals could harness the
power of the courts (but see Walker, 1997).
Extending Hospitality? History, Courts and the Executive 93

The publicity generated by Rahim and similar cases angered government

officials so greatly that they took additional measures that halted almost all
South and East Asian immigration to Canada, at least temporarily
(Buchignani et al., 1985). More importantly, the immigration minister at
the time, Frank Oliver, and others reacted harshly to the courts’ repeated
interference. In the House of Commons, Oliver repeatedly spoke out against
the courts. His remarks underscored the executive’s prevailing position vis-
à-vis the courts’ role: ‘‘If you so frame the law that the right or power of
deportation becomes a subject of legal dispute, you might nearly as well not
have the power’’ (Anderson, 2006, p. 360).4 Oliver noted further that
regarding ‘‘the extent to which non-citizens were able to use the courts to
challenge the Department [of Immigration],’’ Canada had been made ‘‘a
laughing-stock to the world’’ (Anderson, 2006, p. 291).5 It was not only
politicians who were sharply opposed to judicial interference. As Roberts
(1988) notes, it was around this time that the attitudes of immigration
officials toward the courts shifted from ‘‘casual and unintentional
disregard’’ to a ‘‘premeditated intent to deprive the alien y of his [sic]
right to judicial protection’’ (p. 198). Worried that the government was
losing control over its borders, Oliver introduced an amendment to the 1906
Immigration Act that explicitly forbade the courts from reviewing
deportation proceedings (this is the ‘‘privative clause,’’ noted earlier).6
Parliamentary records show that some politicians in the House argued that
at least the legal rights for British subjects scheduled for deportation should
be upheld, but to no avail. What the Laurier government did offer them was
an opportunity to make their case before an immigration board. Although
this was an improvement from the previous informal practice which had not
offer any opportunity for recourse, many deportations continued to be
carried out the old ‘‘ad hoc’’ way (Roberts, 1988). Politically, the boards
were an open attempt to keep immigrants away from the courts. According
to Oliver: ‘‘So, while we are making provision on the one hand for a method
of inquiry into each case, on the other hand we do not admit the immigrant
to the protection of the courts until he has passed that inquiry’’ (Anderson,
2006, p. 361).7 This official distrust of the courts would continue until the
mid-1960s.
These early confrontations between Parliament and the courts set the
course for the development of judicial involvement in immigration matters
and, eventually, refugee determinations as well. Over the next few decades,
reviews of the legality of the admission, detention, and deportation of non-
citizens remained the sole window of entry for the courts. The tight
dimensions of this window were confirmed in immigration act after
94 DAGMAR SOENNECKEN

immigration act, all of which made a point of including the ‘‘non-

interference’’ clause. Meanwhile, the denial of due process rights for non-
citizens was repeatedly criticized in the House by a variety of voices, ranging
from the socialist James Woodsworth in the 1920s to the conservative John
Diefenbaker in the 1950s.
What developments then followed that triggered the formal re-entry of
the courts into immigration matters? First, the privative clause did not
prevent judges from keeping their hand in deportation proceedings through
traditional common law remedies (i.e., writs), nor did it prevent them from
declaring government legislation ultra vires. For instance, in the Brent case
of 1956 (Attorney General (A.G.) v. Brent (1956) SCR, 318), the SCC
quashed the deportation order of Kathleen Brent, a U.S. citizen who had
been ordered deported based solely on a broadly construed section of an
immigration regulation, without any indication of the specific reasons. The
court argued that the government had exceeded its authority in delegating
such broad powers to the bureaucracy. The government responded by
passing detailed immigration regulations that listed ‘‘the precise classes of
persons who were admissible to Canada.’’ This change, Immigration
Minister Fairclough subsequently argued, would not have come about
without Brent (Hawkins, 1988).
Second, the mid-1960s saw a shift in the broader immigration paradigm,
opening it to considerations of equality and humanitarianism (Triadafilo-
poulos, 2010). As a consequence, the privative clause was quietly removed in
1967. Meanwhile, other social actors in Canada, among them churches and
immigrant groups, were beginning to get through with their demand for
greater transparency in refugee and immigration proceedings (or at least
appeared to do so), as well as for higher standards of justice (Dirks, 1977).
However, most analysts agree that societal groups have not been able to
establish a regular policy dialogue with politicians and government officials.
As Simmons and Keohane found, groups often serve legitimating functions
more so than actually being able to influence the direction of government
policy (Simmons & Keohane, 1992).
Third, difficulties in administering an immigration regime based so
strongly on discretion helped push these developments along. Officials, some
reports noted, were simply overwhelmed and in need of judicial clarification
(Hawkins, 1988). As a consequence, courts began to gain jurisprudential
traction on immigration issues, though few cases actually made it to the
courts initially. Currently, only 2–3 cases annually (out of roughly 60–708
leave applications granted before the SCC) deal with immigration matters
(Soennecken, 2008). But not until the entrenchment of the Charter and the
Extending Hospitality? History, Courts and the Executive 95

Supreme Court’s 1985 Singh decision (Singh v. Minister of Employment and

Immigration [1985] 1 SCR, 177) did the government concede that existing
refugee determination procedures also required a radical overhaul (Nash,
1989). The result was the IRB founded in 1989. To this day, its responsibility
ranges from refugee determinations to reviewing deportation orders and
immigrant sponsorship denials. However, despite numerous legislative
amendments and procedural changes – some currently underway – the
essential, quasi-judicial structure of the board put in place in 1989 continues
to exist.

Implications

The 1910 conflict between the courts and the Canadian executive mirrors
Christian Joppke’s contemporary arguments regarding the potential for
clashes between a restrictionist executive anxiously guarding its sovereign
turf on the one hand and a judiciary charged with upholding a basic set of
rights on the other (Joppke, 1999). What makes this early clash interesting
from a comparative perspective is that it occurred at a time when Canada
had no constitutionally entrenched bill of rights (the earlier 1960 Canadian
bill of rights was a federal statute without constitutional status and is
generally considered not to have advanced the cause of human rights
substantially). Instead, the courts (‘‘activated’’ by early immigrants and
supportive businesses) reminded politicians of their jurisdictional bound-
aries by striking down laws based on the doctrine of ultra vires, a classic
stand-in for rights-based jurisprudence at the time (Walker, 1997). Although
judicial attitudes were generally ‘‘in line’’ with that of immigration officials,
at the time their decisions still caused enough political upheaval that they
shifted the balance of power in the ‘‘political space’’ that both the courts and
the executive occupy (Pierson, 2000a, p. 81). Moreover, the 1910 incident led
to an institutional configuration that would formally curb access to the
courts and thus judicial involvement until the mid-1960s and ultimately
shape their political role up to the present day.

GERMANY
Despite the absence of a proactive immigration policy, Germany became
one of the largest immigration countries in the world in the postwar years.
In 2009, 16.9 million individuals of ‘‘migratory background’’ lived in
96 DAGMAR SOENNECKEN

Germany. This corresponds to 19.6% of the total population. Of the 16.9

million, 7.2 million were considered foreigners, representing 8.8% of the
total population (compared to an average of 5% in the rest of Europe).
Turks make up the largest (non-EU) group at 3 million (Bundesamt, 2012).8
Naturalization has traditionally been difficult to obtain as citizenship was
largely based on German ancestry until legislative changes in 2000 (Faist &
Triadafilopolous, 2006).
Foreigners have traditionally entered Germany through three different
routes: through the postwar labor recruitment or ‘‘guest worker’’ program
(which operated between 1955 and 1973), through the ‘‘repatriation’’ of
persons of ethnic German decent living in Eastern Europe, and, finally,
through its unique constitutional asylum provision, which made Germany
one of Europe’s top asylum destinations. Applications peaked between 1990
and 1992. These pressures subsequently led to a constitutional amendment,
which restricted the previously broad right to asylum in two key respects:
First, refugees coming from ‘‘safe third countries’’ and those coming from
designated ‘‘safe countries of origin’’ could be more easily returned. Second,
those who are arriving at airports or without documentation can be deemed
‘‘manifestly unfounded’’ and their applications fast-tracked, limiting their
right to appeal (Neuman, 1993). Recently, Germany did experiment with a
stream for highly qualified non-EU migrants, though with mixed results
(Kolb, 2005).
When it comes to immigration issues, German courts have not only been
de facto decision-makers but also major policy-makers (Joppke, 1999).
While the wide-ranging review powers of Germany’s administrative courts
and the strong constitutional rights protections for foreigners – especially
their unique constitutional asylum guarantee in Art. 16 of the Basic Law –
are usually cited as reasons for this judicial dominance (Hailbronner &
Legomsky, 2000), the other reasons are political. Green argues that
Germany’s usual policy-making style of consensual incrementalism is
skewed in three important respects when it comes to immigration (Green,
2004). Katzenstein termed this policy-making style ‘‘semisovereign govern-
ance’’ (Katzenstein, 1987) because power is widely dispersed among a range
of actors, leading to a fairly decentralized state, vis-à-vis a highly centralized
society, with powerful unions and employer organizations. This makes it
difficult for the federal government and indeed the Chancellor to
unilaterally push through an unpopular policy agenda. Federal government
‘‘non-decisions’’ have driven policy outcomes for immigration more than for
other policy areas. Not only that, societal interests became less influential
once asylum questions began to dominate the immigration agenda from the
Extending Hospitality? History, Courts and the Executive 97

early 1980s onward (Green, 2004). This political configuration led to courts
taking the lead on a number of immigration policy issues over the years.
Germany’s local administrative courts have had wide-ranging powers to
hear immigration matters since the early days after the Second World War.
They can review both questions of fact and law, hear the case de novo, and
grant further relief to the state administrative courts and ultimately the
Federal Administrative Court, although the two highest administrative
court levels both have a variety of leave requirements. Cases alleging a
violation of constitutional rights may further be heard (again with leave) by
the Federal Constitutional Court (Kommers, 1997). However, many of the
well-known ‘‘rights-expanding’’ policy developments typically cited by
analysts and marshaled along by the courts did not occur until the mid-
1970s to early 1980s, i.e., after the formal stop of Germany’s labor
recruitment policy in 1973 and at the beginning of the Kohl government
period (Neuman, 1990). It was during this period that the Federal
Constitutional Court made its landmark rulings on the right to family
reunification (e.g., the ‘‘Indian’’ case, BVerfGE 49, 168; 1978) and residency
rights for non-citizens (e.g., the ‘‘Arab’’ case, BVerfGE 35, 382; 1973) that
were only much later transposed into law, though more quickly
incorporated into day-to-day bureaucratic decision-making.
What is more interesting for our purposes is the history of the asylum
provision. From today’s perspective, it is generally taken for granted that
Germany’s unique asylum guarantee is the reason for its extensive rights
jurisprudence. The asylum ‘‘guarantee’’ came into existence after the Second
World War when the drafters of the postwar constitution, usually referred
to as the Basic Law, created a unique, constitutionally guaranteed right to
asylum: ‘‘The politically persecuted enjoy the right to asylum,’’ Art. 16 of
the Basic Law passed in 1949 stated (Art. 16 Para. 2, GG, pre 1993 version).
The inclusion of this broad right to asylum in the constitution was not an
obligation imposed by the Allies on the German drafters, rather it was seen
as an act of ‘‘redemption and atonement’’ in the aftermath of the Nazi era.
Carlo Schmid, the chair of the Parliamentary Council that drafted the
constitution, famously argued that ‘‘the granting of asylum is always a
question of generosity and if you want to be generous, you must risk being
sometimes mistaken y. Perhaps therein lies the dignity of such an act’’
(Joppke, 1999, p. 86).
The historic origins of the constitutional asylum provisions were
repeatedly cited by the Federal Constitutional Court in subsequent years
to justify an expansive approach to the granting of asylum. All in all, though
other constitutions (including those of France and Italy) also contain a right
98 DAGMAR SOENNECKEN

to asylum, the Basic Law’s provision stands out because it was subsequently
interpreted so broadly by the courts that not only could refugee claimants
not be refused at the border, they even had the right to enter with a
guaranteed access to the verification of their claim (Wollenschläger &
Becker, 1990). For instance, when the government tried to deport rejected
asylum seekers and deem their claims ‘‘manifestly unfounded,’’ without a
thorough prior investigation (BVerfGE 56, 216), the court ruled (in 1981)
that the government violated their constitutional rights by not examining
their case in detail. In 1983, it affirmed that asylum seekers had a right to
access the courts. This constitutional right in turn required the courts
uphold a high standard of review, even in cases deemed manifestly
unfounded by the government (BVerfGE 65, 76).
By the time it was amended in 1992, the constitutional asylum guarantee
had become the personification of what was wrong with Germany’s asylum
policy. One prominent legal observer noted that the asylum provision’s
wording and history read together with subsequent jurisprudence did indeed
prevent legislators from passing any legislation restricting the right to
asylum, short of a constitutional amendment (Kimminich, 1972). Others
argued that the German legislature repeatedly referred to the asylum
guarantee to absolve itself of any responsibility for shaping the substance of
Germany’s asylum policy (and instead merely tinkered with its procedures)
(Hailbronner, 1987), implying that there was room to act. ‘‘The gravest
deficiency [in German foreigner law] is the absolute passivity of the law-
maker [Gesetzgeber], who has stolen himself out of his responsibility for
years,’’ another prominent German legal scholar lamented (Joppke, 1999,
p. 67). Yet others, among them Heinrich Lummer, a prominent conservative
Berlin senator in the 1980s, publicly campaigned against the power of the
courts over asylum. In a section of his book (1992) entitled The Paralyzed
Parliament – How Our Asylum Law Became Judge-Made Law, he states:
‘‘No other parliament in the world has had its ability to act taken away in
such an important policy area’’ (p. 74). More recently, some commentators
considered the constitutional amendment in 1992 as an ‘‘expression of the
executive’s deep distrust of the courts’’ (Bosswick, 2000, p. 51).
Until the late 1980s, however, it was a societal taboo to even suggest
amending the constitution. No amendments were formally initiated until
1992, and these only after a series of violent attacks against foreigners and
asylum seekers brought together enough politicians of all stripes to finally
consider such changes, though even then, it was still not straightforward.
The bottom line was that though the Christian Democrats (CDU) under
Helmut Kohl had been pushing for an amendment for some time, the
Extending Hospitality? History, Courts and the Executive 99

left-leaning Social Democrats (SPD) refused to endorse it. Only when the
violence rose to unprecedented levels and the Conservatives agreed to
changes regarding reforms to Germany’s citizenship law also under
discussions did the SPD change its stance (Green, 2004).
In the end, the constitutional amendment added a number of qualifica-
tions to the asylum guarantee, thus allowing the German government to
fully implement three key diversion policies, based on recently concluded
conventions with its European neighbors (Schuster, 2003). NGOs and other
refugee advocates further charge that the constitutional amendment has
made it much more difficult to obtain asylum in Germany today (Bosswick,
2000). They argue that the amendment set in motion a more conservative
era in the rulings of the Federal Constitutional Court long viewed as more
refugee friendly than the Federal Administrative Court (which activists have
frequently described as the last bastion of the administration).9
Given the prominence and the difficulties of amending the asylum
provision, it is interesting that it actually took decades for it to become as
politically powerful and symbolic as it did. Even more interestingly, in the
first few years after its creation, it was almost completely sidelined by all
major actors – the federal government, the courts, and the legal community.
Understanding this early period is significant because it tells us much about
the way in which new rights are ‘‘activated.’’ While Epp (1998) found that
the relative strength of national support structures for legal mobilization
influenced the four rights revolutions in his study, the following discussion
suggests further that in countries where the constitutional entrenchment
coincided with a fundamental change in the political regime of the country
(as was the case in Germany after the end of the Second World War) even
institutional (or structural) conditions for accessing constitutional rights
take time to grow. During this formative period, the interaction between
courts, academia, and government can be critical for the subsequent scope
of a constitutional rights provision.

The Weight of History – Interrupted?

Germany’s first postwar asylum regulation in 1953 (Asylverordnung,

AsylVO) already granted refugees access to the courts. Passed the same
year as the Geneva Convention, it was initially put in place to rectify the fact
that Germany did not yet have a procedure for processing refugee claims,
although a significant number of people already required processing at the
time (Zimmermann, 1994). However, most of these foreign refugees in the
100 DAGMAR SOENNECKEN

1950s and 1960s were considered to be en route overseas. At the time, more
important to politicians and the public alike was the fate of the ethnic
Germans – those who had been exiled or compelled to flee as a result of the
war (the ‘‘expellees’’) (Kanstroom, 1993). While there were initially around
12 million expellees on German territory in 1948, the number of foreign
refugees (largely East European) was much smaller (5000 per year in the
1950s and 1960s, up to 8000 per year by the mid-1970s).
The AsylVO also created the Federal Office for the Recognition of
Foreign Refugees, an administrative agency reporting to the Ministry of the
Interior, which placed it in charge of sorting out the status of refugees who
were not considered German. The Federal Office opened in Nuremberg on
the site of a former International Refugee Organization (IRO) camp for
displaced persons (IRO was the predecessor of UNHCR) (Loescher, 2001).
The IRO had initially taken responsibility for non-German refugees and
displaced persons (DPs). In 1949, it transferred authority for DPs on
German territory to the new German government (Senders, 1996). The local
administrative court in Ansbach (Bavaria) and the Upper Administrative
Court (appeal court at the state level) in Munich were responsible for
dealing with any appeals. Appealing to the Federal Administrative Court
and the Federal Constitutional Court was also possible right from the start,
although access was limited.
Interestingly, the 1953 asylum regulation did not mention the constitu-
tional asylum provision in Art. 16 at all, referring instead to the Geneva
Convention (in conjunction with Art. 119 of the Basic Law, which deals
with the repatriation of German refugees and DPs). The government’s
rationale (contained in the official commentary accompanying the AsylVO)
was quite simple – the term ‘‘politically persecuted’’ contained in the
constitutional provision was too new and ‘‘not clearly defined yet’’ (Franz,
1963). As a consequence, Art. 16 was only occasionally referred to by local
administrators dealing with questions of residency status (Zimmermann,
1994). Early case law also tended to refer to the Geneva Convention and the
AsylVO but not to the constitutional provision (Kimminich, 1972). When it
did, differences of opinion began to develop that would take decades to
undo. The local Administrative Court in Ansbach, for one, simply began to
equate the Geneva Convention with Art. 16 but that did not settle the
debate upon appeal (Wollenschläger & Becker, 1990) as the upper
administrative courts disagreed and developed their own theory. The
jurisprudential trend was it to view the Geneva Convention’s definition of
political persecution as limiting and modifying that of Art. 16. In short,
international law was seen as limiting a domestic constitutional right,
Extending Hospitality? History, Courts and the Executive 101

although the text of Art. 16 itself did not contain a reference to such a
limitation.
The Constitutional Court was not given much opportunity to comment
on this debate since only two immigration cases reached the Constitutional
Court during the first decade governed by the AsylVO (1953–1963).
Although the court remarked in one of the two cases that those individuals
who did not fit the definition of a refugee under the Geneva Convention may
well be protected refugees under Art. 16 Basic Law (BVerfGE 9,174/181),
their commentary was considered too brief to change the growing opinion of
the lower courts. As one prominent legal scholar remarked – almost in
disbelief – the constitutional asylum provision was sidelined (and thus
nearly forgotten) during this early period (Kimminich, 1972). This odd
situation continued until 1965.
By the time the government formally listed Art. 16 as the foundation for
Germany’s asylum law (namely in the Foreigner’s Act of 1965), a protracted
debate on the scope of that article had begun in academic circles. While
some legal academics argued that such a constitutional right could not be
limited by international law, others fell in line with judicial opinion and
argued that there was a difference between those individuals protected by
the Geneva Convention and those protected by Art. 16. The matter was not
settled until the Federal Administrative Court ruled on the matter in 1975
and again in 1983, each time affirming that the constitutional asylum
protection may not be limited by the ‘‘lower ranking’’ convention and that
there were no ‘‘inherent’’ limitations in Art. 16 either (Bosswick, 2000,
p. 44).
What is remarkable about this debate is the protracted silence of the
‘‘legislator’’ [Gesetzgeber] on these questions (not to mention that of societal
actors). While some legal experts argued that the government should get
involved, others asserted that it had no place in formally defining what
exactly political persecution under Art. 16 meant (Kimminich, 1983).
Leaving the matter entirely to the courts to figure out until some consensus
had been reached was in fact typical of the government’s policy-making style
in immigration matters for decades to come – until the amendment of the
constitution in 1992. As a result, Germany could easily have ended up with a
much more restrictive asylum jurisprudence in the long term, if the initial
opinion of some members of the courts (and legal academics) had prevailed
during this formative period.
The 1965 Foreigner’s Act (Ausländergesetz) finally incorporated a
reference to the constitutional provision into legislation and created a new
quasi-judicial procedure for assessing refugee claims (specifically, an
102 DAGMAR SOENNECKEN

independent jury with one chair and two lay members). Furthermore, it
offered rejected claimants an internal appeal option at the Federal Office
(before a committee of three) before additional action could be taken up the
judicial appeal ladder. Regardless of these procedural changes, the legal
debates about the scope of protection offered under Art. 16 vis-à-vis the
Geneva Convention remained for years to come. In the end, it was the
Constitutional Court’s repeated insistence that Art. 16 be interpreted
liberally that won the day.

Implications

Although the framers of the Basic Law had intended Germany’s

constitutional right to asylum to be interpreted broadly, it took a long
period of time for the various legal players, ranging from courts to the legal
community, to adopt the spirit of these early constitutional days. Politicians
and government policy-makers also remained remarkably silent at the time,
likely because these ‘‘foreign’’ refugees (at least prior to the 1970s) were
severely outnumbered by the millions of expellees also in the country
demanding political attention. The legal disagreements continued even when
the number of refugees began to dramatically climb for the first time in the
mid-1970s, and again in the early 1980s, politically leading to a series of laws
intended to ‘‘accelerate’’ their processing, primarily by limiting their access
to the courts (Bosswick, 1995).
By the time the government amended the constitution in 1992, the judiciary
had so thoroughly shaped the substance and processes of refugee determina-
tions that no ordinary piece of legislation could rectify the imbalance in the
division of labor between the courts and the executive. It ultimately required a
constitutional amendment that some say created a cordon sanitaire around
Germany. The Federal Constitutional Court, in a trilogy of cases, sanctioned
this amendment in 1996 to the surprise of some legal observers (Hailbronner,
1996). A number of judges even visited the Frankfurt airport unannounced
prior to the decision, underlining the importance of some aspects of the
proposed changes to the court.10 Ultimately, as one Constitutional Court
judge put it, ‘‘we could not go against the societal consensus.’’11 In the
decision, the court commented on the division of labor between the
bureaucracy, the ‘‘lawmaker’’ (i.e., the government broadly understood), and
the courts and explicitly granted the government a much broader degree of
discretion than ever before. This amounted to a paradigm shift in the
relationship between the German executive and the courts.
Extending Hospitality? History, Courts and the Executive 103

Uncovering the protracted debates in the legal community during the

formative years of the constitution allows us to contemplate the alternate
path that the German asylum guarantee could have taken. For one, it is
surprising that the legal community did not refer to the spirit of the founders
of the Basic Law sooner. But this presumes more ‘‘buy in’’ into the spirit of
atonement than perhaps was present in the judicial community at the time.
Considering further that these debates occurred when international law was
still in its infancy and the exact definition of political persecution was still
very much in flux, it is not quite so surprising that the legal chatter went on
for as long as it did. Finally, the legislative choice not to formally comment
on or enact major laws in this area for a significant period of time represents
a stark contrast to the activist stance of the Canadian executive.

CONCLUSION

This chapter has highlighted two early periods in the immigration histories
of Canada and Germany. If we revisited other critical moments in a similar
fashion (the German section already discussed the 1992/1993 juncture) and
included additional actors – such as refugee organizations – in the analysis
(see Soennecken, 2008), we would not only be able to reconstruct the
contested space that key political actors occupied and understand better
some of the strategic choices they made but begin to be able to more
systematically explain why the courts rose to prominence in certain societies
(and during certain times) but not in others.
Fundamentally, although both cases examined here show that law is
central to the migration enterprise in the two countries, the Canadian case
highlighted a clash between the courts and the executive over who
determines the right to belong that was subsequently enshrined in a
legislative ‘‘ouster’’ clause, while the German case showcased avoidance and
(much later) the reassertion of control over the definition of the same right
(to belong) by the executive. Both examples also emphasize that the right to
belong to these societies was determined at the center and not at the
margins. Yet the passivity of the German executive should not be
misconstrued as a general unwillingness to use law to govern belonging.
There were numerous pieces of legislation governing refugee determination
procedures and, as the discussion further showed, Germany has had
extensive legislation for governing the return of its ‘‘expellee’’ population.
Similarly, the Canadian courts have remained involved in the ‘‘welcoming
enterprise’’ and rendered a number of internationally renowned decisions,
104 DAGMAR SOENNECKEN

although much of the day-to-day business of determining belonging has

been handed over to government officials together with a quasi-judicial
body. The rising importance of quasi-judicial bodies is not unique to
immigration as some scholars have suggested (Bogart, 1994). It exposes a
larger struggle between the administrative state and the courts over the
review of administrative actions.
At a broader level, this chapter illustrates that institutions and policy
legacies are not merely historical backdrop. They actively (and in both cases,
for long periods of time) shaped the strategies of political actors, subsequent
institutional configurations, and policy options. Revisiting these earlier
times also gives us a sense of the unintended consequences and alternative
paths that the courts (and other actors) could have taken in immigration
matters, suggesting we pay closer attention to the moments when
institutional configurations congeal and become harder to change.
Comparing such different countries as Canada and Germany is growing
increasingly common in the policy-making world. First, policy-makers
around the globe are increasingly interested in learning from one another.
Parliamentarians and bureaucrats – from mayors to EU officials – now
regularly embark on fact-finding missions to other countries, including
Canada, to study the governance of immigration or at least commission
comparative analyses. Second, human rights activists are progressively
building transnational networks to advance their struggles for justice (Keck
& Sikkink, 1998). Third, judges converse more and more across borders,
and international courts are gaining in significance (Jackson, Tolley, &
Volcansek, 2010). All of these developments make it clear that law making is
increasingly becoming globalized. While academics have debated legal
globalization for a long time (Sassen, 1996), these developments highlight
the growing political significance of this phenomenon.
Finally, although 1910 seems like a long time ago, both the United
Kingdom and Australia recently experienced an attempt by the executive to
institute a similar ‘‘ouster’’ clause, though with very different political and
institutional consequences (Dauvergne, 2005). In the United Kingdom, a
2003 amendment to the country’s asylum legislation introduced by the Blair
government proposed ending judicial review to the high courts and
replacing it with the decision of a specialized administrative tribunal on
immigration and asylum. In March 2004, faced with heavy criticism from
activists, opposition MPs, and prominent judges, the government withdrew
the bill from the House of Lords (Watts, 2004).
Similarly in Australia in 2001, the Parliament inserted a ‘‘privative clause’’
into its Migration Act wherein judicial review was to be limited to
Extending Hospitality? History, Courts and the Executive 105

exceptional cases. The clause quickly became a matter of public debate and
ended up before the High Court of Australia in 2003. In its decision, the
court ruled that the Australian Parliament did not have the constitutional
right to completely exclude the courts from reviewing asylum matters
(Dauvergne, 2005). This more recent example highlights the fact that
although the role of the courts in immigration policy-making may be
similarly restrained in common law countries, there are important
differences in their involvement that cannot be explained by federalism or
differences in their constitutional provisions alone (Joppke, 1999). Historic
institutionalism offers crucial, supplementary tools and insights to such a
comparative enterprise.

ACKNOWLEDGMENTS

For their constructive feedback, I would like to thank the two anonymous
reviewers, Caroline Dufour, Soren Frederiksen, Jennifer Fredette, and
Susan Solomon. I am deeply grateful to my interviewees for their openness
and Austin Sarat for including me in this volume.

NOTES
1. Many thanks to one of the anonymous reviewers for this analogy.
2. Ibid.
3. The fee was subsequently increased to $100 in 1900 and to $500 in 1910, each
time leading to a temporary reduction in migration flows.
4. Citing Canada, House of Commons Debates (HCD) (April 3, 1907), 5719.
5. Citing Canada, HCD (March 2, 1914), 1224.
6. ‘‘No court has jurisdiction to review, quash, reverse, restrain, or interfere with
any proceeding, decision [y] concerning detention or deportation, ‘upon any
grounds whatsoever’ except in cases of Canadian citizens or domiciled immigrants’’
(Section 23, 1910 amendments to the 1906 Immigration Act). Legal proceedings in
Rahim had commenced under the 1906 law.
7. Citing Canada, HCD (January 19, 1910), 2135.
8. Data from Destatis, Germany’s Statistical Bureau (Statistisches Bundesamt
Deutschland); see http://www.destatis.de
9. This was the unanimous conclusion from a number of interviews I conducted
with various NGO activists in 2002. Of course, the bureaucratic officials I
interviewed called the Federal Constitutional Court ‘‘unrealistic’’ and even ‘‘insane’’
among other things.
10. Interview with Federal Constitutional Court Judge, 18. Sept, 2002.
11. Ibid.
106 DAGMAR SOENNECKEN

REFERENCES
Anderson, C.G. (2006). Restricting rights, losing control: immigrants, refugees, asylum seekers,
and the regulation of Canada’s border, 1867–1988. Unpublished doctoral dissertation.
McGill University, Montreal.
Avery, D. H. (1995). Reluctant host: Canada’s response to immigrant workers, 1896–1994.
Toronto: McClelland and Stewart.
Benvenisti, E. (2008). Reclaiming democracy: The strategic uses of foreign and international law
by national courts. American Journal of International Law, 102(2), 241–274.
Bibler Coutin, S. (2000). Legalizing moves: Salvadoran immigrants’ struggle for U.S. residency.
Ann Arbor, MI: University of Michigan.
Bloemraad, I. (2006). Becoming a citizen: Incorporating immigrants and refugees in the united
states and Canada. Berkeley, CA: University of California Press.
Bogart, W. A. (1994). Courts and country: The limits of litigation and the social and political life
of Canada. Toronto: Oxford University Press.
Bosswick, W. (1995). Asylum policy and migration in Germany. In F. Heckman & W. Bosswick
(Eds.), Migration policies: A comparative perspective (pp. 305–332). Stuttgart: Ferdinand
Enke Verlag.
Bosswick, W. (2000). Development of asylum policy in Germany. Journal of Refugee Studies,
13(1), 43–60.
Buchignani, N., Indra, D. M., & Srivastiva, R. (1985). Continuous journey: A social history of
South Asians in Canada. Toronto: McLelland and Stewart.
Bundesamt, S. (2012). Bevölkerung mit Migrationshintergrund – Ergebnisse des Mikrozensus
2011. Bevölkerung und Erwerbstätigkeit, Wiesbaden.
Calavita, K. (1998). Immigration law and marginality in a global economy: Notes from Spain.
Law and Society Review, 32(3), 529–567.
Canada, C.I. (2010). Annual report to parliament on immigration. Ottawa: Citizenship and
Immigration Canada.
Cornelius, W. A., Martin, P. L., & Hollifield, J. F. (1994). Controlling immigration: A global
perspective. Stanford, CA: Stanford University Press.
Dauvergne, C. (2005). Humanitarianism, identity and nation: Migration laws of Canada and
Australia. Vancouver: UBC Press.
Dirks, G. E. (1977). Canada’s refugee policy: Indifference or opportunism? Montreal: McGill-
Queen’s University Press.
Dirks, G. E. (1984). A policy within a policy: The identification and admission of refugees in
Canada. Canadian Journal of Political Science, 17(2), 279–307.
Dussault, R., & Borgeat, L. (1990). 2nd ed.). Administrative law ( (Vol. 4). Toronto: Carswell.
Epp, C. R. (1998). The rights revolution: Lawyers, activists, and supreme courts in comparative
perspective. Chicago, IL: University of Chicago Press.
Faist, T., & Triadafilopolous, T. (2006). Beyond nationhood: Citizenship politics in Germany
since unification. Toronto: Munk Centre for International Studies, University of
Toronto.
Franz, F. (1963). Asylrecht und Asylverordnung. Deutsches Verwaltungsblatt, 4, 125–133.
Galanter, M. (1983). The radiating effects of courts. In K. D. Boyum & L. Mather (Eds.),
Empirical theories of courts (pp. 117–142). New York, NY: Longman.
Green, S. (2004). The politics of exclusion: Institutions and immigration policy in contemporary
germany. Manchester: Manchester University Press.
Extending Hospitality? History, Courts and the Executive 107

Greene, I., & Shaffer, P. (1992). Leave to appeal and leave to commence judicial review in
canada’s refugee determination system: Is the process fair? International Journal of
Refugee Law, 4(1), 71–83.
Hailbronner, K. (1987). Vom Asylrecht zum Asylbewerberrecht: Rechtspolitische Anmerkun-
gen zu einem ungelösten problem. In W. Fürst (Ed.), Festschrift für Wolfgang Zeidler
(pp. 919–937). Berlin, Germany: de Gruyter.
Hailbronner, K. (1996). Das Asylrecht nach den Entscheidungen des Bundesverfassungsger-
ichts. Neue Zeitschrift für Verwaltungsrecht, 15(7), 625–631.
Hailbronner, K., Legomsky, S. (2000, June 14–18). Judicial activism and the role of the courts in
expanding rights: Families, illegals and asylum seekers. Paper presented at the conference
on Magnet Societies: Immigration in Postwar Germany and the United States,
Evangelische Akademie Loccum.
Hawkins, F. (1988). Canada and immigration: Public policy and public concern (2nd ed.).
Montreal: McGill-Queen’s University Press.
Jackson, D. W., Tolley, M. C., & Volcansek, M. (Eds.). (2010). Globalizing justice: Critical
perspectives on transnational law and the cross-border migration of legal norms. Albany,
NY: State University of New York Press.
Jacobson, D., & Ruffer, G. B. (2003). Courts across borders: The implications of judicial agency
for human rights and democracy. Human Rights Quarterly, 25, 74–92.
Joppke, C. (1999). Immigration and the nation-state: The United States, Germany and Great
Britain. Oxford: Oxford University Press.
Kagan, R. A. (1997). Should Europe worry about adversarial legalism? Oxford Journal of Legal
Studies, 17, 165–183.
Kanstroom, D. (1993). Wer sind Wir Wieder? Laws of asylum, immigration, and citizenship in
the struggle for the soul of the new Germany. Yale Journal of International Law, 18, 155.
Katzenstein, P. (1987). Policy and politics in west Germany: The growth of a Semisovereign State.
Philadelphia, PA: Temple University Press.
Keck, M. E., & Sikkink, K. (1998). Activists beyond borders: Advocacy networks in international
politics. Ithaca, NY: Cornell University Press.
Kelley, N., & Trebilcock, M. (1998). The making of the mosaic: A history of Canada’s
immigration policy. Toronto: University of Toronto Press.
Kimminich, O. (1972). Die Entwicklung des Asylrechts in der Bundesrepublik Deutschland
(The development of asylum law in the federal republic of Germany). Juristenzeitung,
27(9), 257–263.
Kimminich, O. (1983). Grundsätzliche Fragen der Entwicklung des Asylrechts in der
Bundesrepublik Deutschland. In G. Köfner & P. Nicolaus (Eds.), Probleme des
Asylrechts in der Bundesrepublik Deutschland. München: Kaiser.
Kolb, H. (2005). The German ‘‘green card’’. Focus Migration: Policy Brief, 3(November).
Available at http://www.bpb.de/gesellschaft/migration/dossier-migration/58174/the-
german-green-card
Kommers, D. (1997). The constitutional Jurisprudence of the federal republic of Germany (2nd
rev. and exp. ed.). Durham: Duke University Press.
Kymlicka, W. (1998). Finding our way: Rethinking ethnocultural relations in Canada. Toronto:
Oxford University Press.
Legomsky, S. (1987). Immigration and the judiciary: Law and politics in Britain and America.
Oxford: Oxford University Press.
Loescher, G. (2001). The UNHCR and world politics. Oxford: Oxford University Press.
108 DAGMAR SOENNECKEN

Lummer, H. (1992). Asyl. Ein miXbrauchtes Recht (Asylum. An Abused Right). Frankfurt am
Main and Berlin: Ullstein.
Macklin, A. (2005). Can we do wrong to strangers? In D. Dyzenhaus & M. Moran (Eds.),
Calling power to account: Law, reparations, and the Chinese Canadian head tax (pp. 60–
91). Toronto: University of Toronto Press.
McCann, M. (1994). Rights at work: Pay equity reform and the politics of legal mobilization.
Chicago, IL: University of Chicago Press.
Messina, A. (2007). The logics and politics of post-WWII migration to Europe. Cambridge:
Cambridge University Press.
Nash, A. (1989). International refugee pressure and the Canadian public policy response. Ottawa:
Studies in Social Policy, Institute for Research on Public Policy.
Neuman, G. L. (1990). Immigration and judicial review in the federal republic of Germany.
New York University Journal of International Law, 23, 35–85.
Neuman, G. L. (1993). Buffer zones against refugees: Dublin, schengen, and the German
asylum amendment. Virginia Journal of International Law, 33, 503.
OECD. (2008). OECD International Migration Statistics, 2008. Retrieved from see http://
oecd.org/publications
Pierson, P. (2000a). Increasing returns, path dependence, and the study of politics. American
Political Science Review, 94(2), 251–267.
Pierson, P. (2000b). Not just what, but when: Timing and sequencing in political processes.
Studies in American Political Development, 14(Spring), 72–92.
Przeworski, A., & Teune, H. (1970). The logic of comparative social inquiry. New York, NY:
Wiley-Interscience.
Roberts, B. (1988). Whence they came: Deportation in Canada. Ottawa: University of Ottawa
Press.
Sampat-Mehta, R. (1972). International barriers. Ottawa: Harpell’s Press.
Sassen, S. (1996). Losing control? Sovereignty in an age of globalization. New York, NY:
Columbia University Press.
Schuster, L. (2003). The use and abuse of political Asylum in Britain and Germany. London:
Frank Cass.
Senders, S. (1996). Laws of belonging: Legal dimensions of national inclusion in Germany. New
German Critique, 67, 147–176.
Simmons, A. B., & Keohane, K. (1992). Canadian immigration policy: State strategies and the
quest for legitimacy. Canadian Review of Sociology & Anthropology, 29(4), 421–452.
Soennecken, D. (2008). The growth of judicial power over the fate of refugees: A comparison of
Canada and Germany. Unpublished Doctoral Dissertation. University of Toronto,
Toronto.
Stasiulis, D., & Jhappan, R. (1995). The fracticious politics of a settler society: Canada. In
D. Stasiulis & N. Yuvat-Davis (Eds.), Unsettling settler societies: Articulations of gender,
race, ethnicity and class (pp. 95–131). London and Thousand Oaks, CA: Sage.
Thelen, K. (1999). Historic institutionalism in comparative politics. Annual Review of Political
Science, 2, 369–404.
Triadafilopoulos, T. (2010). Global norms, domestic institutions and the transformation of
immigration policy in Canada and the US. Review of International Studies, 36, 169–194.
Walker, J. W. S. G. (1997). ‘‘Race,’’ rights and the law in the supreme court of Canada: Historical
case studies. Toronto: The Osgoode Society for Canadian Legal History and Wilfrid
Laurier University Press.
Extending Hospitality? History, Courts and the Executive 109

Watts, N. (2004). Reprieve for asylum appeals. The Guardian (online edition), March 16.
Wollenschläger, M., & Becker, U. (1990). 40 Jahre Asylgrundrecht – Rückblick und Ausblick.
Archiv des öffentlichen Rechts, 115(3), 369–399.
Zimmermann, A. (1994). Das neue Grundrecht auf Asyl: Verfassungs- und völkerrechtliche
Grenzen und Voraussetzungen (Vol. 115). Berlin: Springer Verlag.

CASES CITED
Canada (Attorney General) v. Ward, [1993] 2 SCR, 689.
Re. Behari Lal et al. (1908) 13 BCR, 415–16.
Re Rahim (1909–11), 16 BCR, 469–70; Re Rahim (No. 2) (1909–11), 16 BCR, 471–72.
Attorney General (A.G.) v. Brent (1956) SCR, 318.
Singh v. Minister of Employment and Immigration [1985] 1 SCR, 177.
Entscheidungen des Bundesverfassungsgerichts [BverfGE] [Federal Constitutional Court] 49, 168;
1978 (‘‘Indian’’ case).
BVerfGE 35, 382; 1973 (‘‘Arab’’ case).
BVerfGE 56, 216.
BVerfGE 65, 76.
BVerfGE 9,174/181.

Constitutional and Statutory Provisions Cited

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11.
Chinese Immigration Act 1885, c. 71.
Grundgesetz der Bundesrepublik Deutschland (GG) [Constitution](F.R.G.).
Asylverordnung [AsylVO] [Asylum Regulation] (1953).
Ausländergesetz [AuslG] [Foreigner’s Act] (1965).
Convention Relating to the Status of Refugees (1954).
EVALUATING AND EXPLAINING
THE RESTRICTIVE BACKLASH IN
CITIZENSHIP POLICY IN EUROPE

Sara Wallace Goodman and Marc Morjé Howard

ABSTRACT
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

Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality
Studies in Law, Politics, and Society, Volume 60, 111–139
Copyright r 2013 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000060009
111
112 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

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.

INTRODUCTION

The past two decades are widely considered a watershed period of

citizenship change in Europe. Famously restrictive states have taken
important steps toward liberalization, including making citizenship more
accessible to second-generation migrants through birthright citizenship
(Germany), lowering periods of required residency (Greece, Luxembourg
after 2001, Portugal), and increasing toleration of dual citizenship (Finland,
Luxembourg, Sweden). Since these changes have taken places across a
number of states in a relatively concentrated period of time, many scholars
have interpreted policy change as evidence of the liberal convergence thesis
(e.g., Cornelius, Tsuda, Martin, & Hollifield, 2004).
Following – and sometimes alongside – this wake of inclusive change,
however, there appears to be a recent undertow of restrictiveness. First,
several states with historically liberal models of citizenship and those that
experienced recent liberalizing change have made provocative gestures away
from openness in the form of increased residency durations (Belgium,
Luxembourg after 2008), the re-adoption of renunciation requirements
preventing dual citizenship (the Netherlands), and in several European
states (including Austria, Denmark, France, Germany, the Netherlands, and
the United Kingdom) the adoption of mandatory integration requirements,
such as language and country knowledge assessment, as part of the
permanent residence and naturalization processes. Second, the tone of
politics seems to be moving in the direction supportive of further
restrictions. France and the Netherlands have even considered the
possibility of de-naturalization for immigrants convicted of certain crimes,
thus essentially creating a less secure citizenship status for those who acquire
citizenship by naturalization. Also, the explicit rise of anti-immigrant parties
in numerous European countries – most recently Sweden, which had never
before seen a far right party win representation in Parliament – may also
portend future moves in the direction of restrictiveness.
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 113

This chapter seeks to address two related sets of questions. First, does this
recent undertow constitute a restrictive backlash that necessitates a
recharacterization of the liberalization of the previous two decades? Do
the various civics requirements amount to significant restrictions that have
chipped away at the liberal citizenship policies of many EU countries? Can
we go so far as to speak of a restrictive trend? In short, how should scholars
categorize and evaluate the seemingly multi-directional movements in terms
of the pre-conditions that EU countries attach to the acquisition of
citizenship? These are primarily descriptive questions.
Second, regardless of whether the restrictive changes amount to a
broader trend, what explains why certain countries have added more
onerous requirements for citizenship? What theoretical arguments, if any,
can best account for the variation across countries? Can an account of
citizenship change accommodate both increasing liberalization and
additional restrictions?
In order to answer the first set of questions, we start by making careful
assessments of the extent of restrictive change that has occurred to date. We
find that although these adjustments do represent important restrictive
measures, and not merely isolated or minor provisions, they have not
undone the significant liberalization that occurred in many countries over
the previous decades. In order to address the second set of questions, and
thereby to account for the restrictive measures that have been implemented,
we consider arguments based primarily on shifting norms (Joppke, 2008)
and an increased perception of cultural threat (Smooha, 2008), but we
develop an argument grounded in politics (Howard, 2009; Schain, 2008)
that can account for both the longer liberalizing trends and the recent
contemporary restriction. We find that the same two types of latent
pressures – for liberalization and for restrictiveness – exert their influence,
even within countries that have liberal citizenship policies. We argue that
once citizenship becomes politicized – thus mobilizing the anti-immigrant
sentiments of the population – the result will likely be either the blocking of
any move for liberalization or the imposition of new restrictive measures.
We support this argument by focusing on three brief case studies, which
allows us to apply this argument to a case of genuine restrictiveness
(Germany), another where the anti-immigrant rhetoric’s bark has been more
noticeable than the citizenship policy’s bite, amounting to new requirements
but not new restriction (the United Kingdom), and a third in which new
requirements have introduced restrictions relative to the previous policy, but
where the overall policy is still very liberal when compared to other
citizenship regimes in Europe (Belgium). These case studies demonstrate
114 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

that while some restrictive change is indeed taking place, conclusions about
a converging, restrictive backlash are premature and ill-founded.

HAS THERE BEEN A RESTRICTIVE BACKLASH?

To understand the nature of the presumed ‘‘restrictive backlash,’’ we first
establish an understanding of what it means to call citizenship policy
restrictive. Citizenship is generally treated by political scientists, sociologists,
and legal scholars as a series of policies that make it easier or more difficult
for immigrants to naturalize, and for their children to become citizens at
birth. Some of these policies include period (length) and nature (permanent
or temporary) of residence, allowance or renunciation of dual citizenship,
language and country knowledge requirements, as well as health, financial,
and criminal record requirements. The setting of these policies typically
varies across categories of immigrants, including adults and minors,
spouses, and refugees. Other citizenship policies deal with citizenship
acquisition at birth, including provisions for acquiring citizenship at birth
through residence (jus soli) or parentage (jus sanguinis). Although there are
many combinations of citizenship policies across states, and most scholars
compare (Aleinikoff & Klusmeyer, 2000, 2001, 2002; Bauböck, Ersbøll,
Groenendijk & Waldrauch, 2006; Hansen & Weil, 2001, 2002) or system-
atize (Howard, 2009; Koopmans, Statham, Giugni & Passy, 2005;
Migration Policy Group, 2010) gradient differences, configurations are
reduced to two ideal types based on dichotomous criteria: citizenship is
either considered liberal (inclusive to certain groups or a greater number of
immigrants through comparatively easier requirements) or restrictive
(exclusive to certain groups or a greater number of immigrants through
relatively difficult requirements).1
The rules for conferring citizenship for immigrants serve as effective
instruments of political differentiation by distinguishing between insiders
and outsiders. Citizenship allows states to draw a line that separates their
citizens from potential immigrants, as well as to create internal distinctions
between citizens and foreign residents – by associating certain rights and
privileges with national citizenship (Brubaker, 1992). Despite predictions
about the disappearance or decreased importance of national citizenship
(Soysal, 1994; Sassen, 1996, 1998), distinctions between citizens and
foreigners remain an essential and enduring feature of modern life (Hansen,
2009) – whether in terms of politics and elections, welfare state benefits,
public-sector employment, social integration, or demographics and pension
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 115

systems – even in the ‘‘supra-national’’ European Union (Howard, 2009).

That many European states have been actively reforming national citizen-
ship laws since the 1990s and 2000s shows that citizenship is only growing in
importance.
The 1990s was a decade of liberalization for most European countries,
which resulted in the ‘‘opening up’’ or loosening of several citizenship
requirements, including the introduction of jus soli, decreased duration of
residence, and the expansion of dual citizenship for immigrants. By contrast,
could the 2000s be marked as a period of restrictive backlash (Joppke, 2007,
2008; Joppke & Morawska, 2003), whereby some changes in residence and
dual citizenship, as well as an increase in language and country knowledge
requirements, have made naturalization more onerous. We argue that these
incremental changes do not make a national citizenship policy restrictive per
se. In some cases, a change defined as restrictive – for example, when a state
adds a language and country knowledge test – may be put into place to
complement and maintain a number of other policies that are comparatively
liberal, like a low residency period (Goodman, 2010a). In other cases (e.g.,
Germany, Austria), new language assessment standards formalize pre-
existing, subjective conditions of language that were included in generalized
integration requirements. In other words, if the aggregate is the sum of its
parts, it is not clear that a recent change that imposes a new requirement
should necessarily be considered as equivalent to new restriction that
undermines an otherwise enduringly liberal policy. In fact, these cases of
combined policies – new requirements in the context of continued liberal
access to citizenship – characterize the most recent set of changes.
Moreover, new requirements may certainly yield restrictive outcomes, but
in design they represent a different kind of change, a thickening of the
substance of membership – who the citizen is – and not in all cases
constricting the eligible pool of applicants (Goodman, 2010a; Kostakopou-
lou, 2010). On theoretical grounds, the promotion of language and country
knowledge reasserts the existing, obligations-based component to the
citizenship contract against the emphasis on the acquisition of rights
(Joppke, 2008). Meer and Modood (2009) have interpreted it as a ‘‘civic re-
balancing’’ against the pathologies of state multiculturalism. Neither of
these denotes restriction. Of course, the extension of civic integration
requirements to earlier stages of the migration process – including settlement
and immigration – certainly make these processes more difficult. Integration
requirements can promote skills of integration and closure by attaching
‘‘citizen-like’’ expectations of membership to non-citizen statuses, a
process Foblets describes as ‘‘citizenization’’ (2006). But accounting for the
116 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

expansion of integration requirements and earlier expectations of member-

ship is a different research question than the one addressed here: to identify
what effect new requirements have on the total process of traditional
membership acquisition in citizenship.2 Requirements will always be, in an
obvious sense, restrictive because some people will pass the bar and some
will not. But the mere addition of content to citizenship need not necessarily
be conflated with the intent of closure.
Finally, some states that might be classified as having made recent
restrictive changes still remain liberal when viewed from a broader
comparative perspective. For example, Belgium has increased its residency
requirement from three to five years, and it now demands evidence of
integration and knowledge of one of the three national languages. While this
certainly represents a restrictive change, it does not actually indicate a
restrictive policy. Indeed, Belgium still remains relatively liberal, as it allows
for dual citizenship and maintains among the lowest residency requirements
in Europe. This important nuance – which we discuss further in the case
study of Belgium below – shows that the ‘‘restrictive’’ label is both subjective
and relative.
In order to provide a sense of the extent and direction of liberalizing and
restrictive changes that have taken place since 1990, Table 1 presents the
variety of changes in the EU-15, as well as existing policies. It classifies
citizenship policy by drawing on the categories employed in the Citizenship
Policy Index (CPI) (Howard, 2009): granting jus soli at birth, duration of
residence, and allowance of dual citizenship, and it also adds separate
columns for civic integration requirements (including language and country
knowledge).3 In order to distinguish between the directions of change, the
table provides light background shadings in the cells that indicate
liberalizing change, while changes in the restrictive direction are shaded
darker. The table includes the year of policy change in parentheses.
Countries that have experienced no change are not shaded and do not
indicate a year. For the purpose of simplicity, civic integration requirements
are classified as ‘‘restrictive’’ change – even though, as discussed above, this
is not always the case.
At first glance, the table seems to show a sweep of change in the direction
of restriction, but most of it involves the addition of civic integration
requirements – which, again, as discussed above, are not necessarily
restrictive in practice. In terms of the three main components of the CPI, the
liberalizing change has outpaced the restrictions – particularly in terms of
jus soli and the expansion of dual citizenship for immigrants. In some cases,
countries have actually changed in both directions, which suggest a general
 Evaluating and Explaining the Restrictive Backlash in Citizenship Policy
Table 1. Citizenship Policy and Liberalizing or Restrictive Change Since 1990.
Grants Jus Soli at Years of Required Allowance for Dual Civic Integration Requirements
Birth Residence Citizenship
Language Country
knowledge

Austria No 10 No Yes (1998) Yes (2006)

Belgium Yes (1992) 3 to 5 (2010) Yes No (2000); No
Yes (2010)
Denmark No 7 to 9 (2002) No Yes (2002, Yes (2002,
2006, 2008) 2006, 2008)
Finland No 5 to 6 (2003) Yes (2003) Yes (2003) No
France Yes 5 Yes Yes Yes (2003)
Germany Yes (2000) 15 to 8 (2000) No Yes (2000) Yes (2007)
Greece Yes (2010) 10 to 7 (2010) Yes Yes (2000) Yes (2000, 2010)
Ireland Yes 4 Yes No No
Italy No 5 to 10 (1992) Yes (1992) No No
Luxembourg Yes (2008) 5 to 7 (2008) Yes (2008) Yes (2001) Yes (2008)
Netherlands Yes 5 Yes (1992); Yes (2003) Yes (2003)
No (1997)
Portugal Yes (1994; 2006) 10 to 6 (2006) Yes Yes (2006) No
Spain Yes 10 No Yes No
Sweden No 5 Yes (2001) No No
United Yes 5 to 8 (2009) Yes Yes (2002) Yes (2002)
Kingdom

Source: Authors.

117
118 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

balancing of different components of the rules for citizenship acquisition as

well as the substantive content of citizenship.4
In short, we can answer our first question – has there been a restrictive
backlash? – largely in the negative. First, while clearly there has been an
expansion of requirements that introduce tests and certification to assess
language and society knowledge in many different countries (whether
historically liberal, having experienced liberalizing change, or characterized
by restrictive continuity), the extent of restrictiveness that these changes
have brought about varies considerably – as shown below with our case
studies of Germany, the United Kingdom, and Belgium. In other words, the
extent to which new requirements amount to a ‘‘restrictive turn’’ is a testable
hypothesis, not a foregone conclusion. Second, most of the new policy
restrictions have been in the area of residency requirements, and typically
these are still within a familiar range of years, which have been outweighed
by the considerable liberalizations in the domain of jus soli and dual
citizenship. Nonetheless, it is clear that it would also be incorrect to refer to
the changes of the past decade as a continuation of the liberalization of the
1990s. Instead, we see a combination of both liberalizing and restrictive
measures that provide a more variegated picture than either a ‘‘liberalizing
convergence’’ or a ‘‘restrictive backlash’’ perspective could offer.

WHAT ACCOUNTS FOR THE NEW RESTRICTIONS?

Having dismissed the more descriptive argument about a sweeping
restrictive trend, we can now turn to explanations for cases of genuinely
restrictive change. The citizenship literature has provided many arguments
to account for the liberalization of the 1990s. Explanatory factors include
the increasing demographic change within Europe (Salt, Clarke, & Schmidt,
2000),5 the impact of this immigration in the context of unfinished nation-
building and consolidated borders (Weil, 2001), the rise of new international
norms (Soysal, 1994), the long-standing impact of pro-business interest
groups that typically have more direct political influence than restrictive
organizations (Freeman, 1992), and the role of the courts, which typically
rule in favor of immigrants and families on human rights grounds (Joppke,
1998). But does restriction follow from the inverse of these arguments or the
absence of these forces? Or are there distinct explanations for restrictive
change?
Three explanations have emerged for both restrictive policy change and
overall assessment of a restrictive backlash. Christian Joppke first tests the
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 119

‘‘restrictive turn’’ hypothesis by assessing what he terms as the ‘‘re-

ethnicization’’ (2003) of membership preferences through citizenship (2008).
To examine restriction, he looks at four distinction policy changes: adjustment
of old, historical citizenship policies, reduction of family-based migration
through integration requirements, incentivization of citizenship based in the
‘‘apparent failure of immigrant integration’’, and changes in dual citizenship
policy with regard to emigrants (but not immigrants), which strengthens ties
with expatriate communities abroad. He attributes the majority of change to
‘‘demographic considerations’’, specifically to an ‘‘invasion into the citizenship
domain of immigration control concerns’’, but ultimately rejects – or
‘‘calibrates’’ – the supposition of a ‘‘restrictive turn’’ by emphasizing that
policy change has taken place within a context of liberalism. Changes within
the ambit of restriction do not ‘‘rollback’’ liberal practices, but counterbalance
one another in an area of the world that is generally liberal.6 For Joppke,
new requirements do not represent an axial shift from liberal to restrictive
policy, but a norms-shift from rights- to obligation-based citizenship (2007,
2008, p. 35).
In response, Sammy Smooha (2008, p. 4) writes that ‘‘the trend of
liberalization y was slowed down, stopped, and even reversed by the new
restrictions.’’ Smooha identifies the force of ‘‘ethnicization’’ as instrumental
in, for example, the waiver of dual citizenship allowance (2008, p. 5), which
has the effect of privileging the move of European immigrants from one
country to another over immigrants from non-European countries. Smooha
suggests Europe might pursue further restriction in the future, when ‘‘it feels
that its Western civilization, national cultures, and internal security are
more significantly and increasingly threatened by non-European immigrants
and their descendents’’. Concurring with Joppke in acknowledging that
Europe’s ‘‘liberal tradition and institutional framework is a shield against
imposition sweeping restrictions on non-European immigrants and their
descendents’’, Smooha suggests that policies need not be ethnically
restrictive de jure to yield ethnic restriction de facto. Overall, Smooha
qualifies Joppke’s position against a restrictive backlash by suggesting that
one can only reject a ‘‘restrictive turn’’ if (1) one ignores the similarities to
‘‘non-core’’ European countries (the accession countries in Eastern Europe
and Israel) that bear historically restrictive policies and (2) one examines
only a short time horizon, discounting the long trajectory of liberalization
that began not in the 1990s but in the immediate postwar period.
A third explanation for restrictive change focuses on politics (Howard,
2009). The argument starts with a number of latent pressures – for both
liberalization and restrictiveness – that provide the general context within
120 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

which citizenship policy change takes place, including demographic transfor-

mation, international norms of human rights, interest groups, and courts all
pushing in the direction of liberalization, whereas anti-immigrant public
opinion against immigration weighs in favor of restrictiveness. According to
this theoretical model, policy change occurs when these latent pressures for
liberalization and restriction get ‘‘activated’’ through politics. This builds on
Joppke’s (2003) initial explanation that a leftist government in power makes
liberalization possible, whereas a right-of-center government makes liberal-
ization unlikely. But the crucial factor that makes liberalization unlikely is the
extent to which the xenophobic public sentiment gets ‘‘activated,’’ either by
far-right political parties or by the use of referenda or public mobilization. This
model accounts for both the blockage of liberal reform and, ultimately,
restrictive continuity in Austria, Denmark, and Italy, as well as the restrictive
backlashes following the 2000 liberalization in Germany. As we argue and
demonstrate below, the model can also help to understand the restrictive
changes that have emerged in some countries over the past decade.
Joppke and Smooha’s aforementioned demographic and cultural
concerns, respectively, can be situated in this model as a series of latent,
restrictive variables interacting with and occurring alongside the strong
hostility to immigrants that many, if not most, Europeans share (see, e.g.,
Sides & Citrin, 2007). Particularly in regard to demographics, which served
in the 1990s as a latent force for liberalization, we see that the demographic
factor can cut both ways now, as many countries have the perception that
they are already ‘‘full’’ and can no longer accept or tolerate new immigrants
(Hochschild, 2010). In terms of other latent variables that previously served
to support liberalization, Joppke’s observation of a move toward obliga-
tions-based citizenship exemplifies a political and normative shift, resulting
in a weaker push in the direction of liberalization and a stronger movement
in favor of restrictiveness (also see Orgad, 2010). International norms for
human rights have softened in recent years, particularly in an environment
where fear of terrorism has become paramount. And while interest groups,
including professional associations and trade unions, still remain largely
supportive of immigrant rights in most European countries, their influence
may be waning in a more politicized atmosphere (see, for example,
Somerville & Goodman, 2010). Finally, it is hard to determine whether the
legal/judicial winds have changed, but it is quite possible that courts – also
driven by security concerns – will be less friendly to immigrants than they
were in recent decades.
The decline in salience of these latent variables for liberalization does not
necessarily produce restrictive outcomes, but it does create less incentive for
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 121

policy-makers to pursue liberalization or resist restriction. And the

aforementioned restrictive pressures of demographic change and ethnocul-
tural preferences are not destined to produce restrictive policies. As latent
variables, all are necessary but insufficient explanations for why political
decision-makers in individual countries ultimately block liberalization or
produce restrictive policy outcomes. It remains to be seen whether – or,
more precisely, where and when – these conditions are influential in
mobilizing political actors to produce restrictive policy outcomes. For if
political outcomes were simply a direct implementation of the popular will,
restrictive change would not be limited to just a few states, and liberalization –
as recently took place in Greece – would not persist in this new, restrictively
inclined climate. On the other hand, if public opinion were entirely irrelevant,
a more serious set of concerns would be raised for why policy-makers
pursue restriction, since the liberalizing pressures are often more direct and
better organized.7
Having developed the argument in more general terms, the next section
explores and traces the role of politics in what have been considered
restrictive policy changes but turn out to be three quite different cases:
Germany, the United Kingdom, and Belgium. Each case has introduced
integration requirements, but we see that these requirements yield restrictive
outcomes in the presence of citizenship politics, where anti-immigrant
sentiment is mobilized by strong parties on the right. In contrast, in cases
where politics remain insulated from public opinion, or where restriction
takes place in the context of an otherwise liberal policy configuration, the
restrictive impact of requirements is more muted.
The case of Germany exemplifies this political dynamic: a traditional
ethnocultural state, it implemented a major liberalizing reform in 2000 that
introduced jus soli, which was then followed by more restrictive reforms in
2005 and 2007 that directed new requirements to specify and standardize the
assessment of language and country knowledge in the context of anti-
immigrant mobilization. Despite the liberalization of the 2000 law, the
decade since then has witnessed a rather strong restrictive backlash, as
evidenced by (among other factors) a stark decline in naturalization rates.
In contrast, the United Kingdom, a traditionally civic and multicultural
state, also introduced new integration requirements, but falls short of a
‘‘restrictive turn,’’ since the policy change was largely initially insulated from
public opinion. And following a decade of a steady increase in naturaliza-
tion rate, political debates at the end of the decade produced a mixed
outcome of restriction: while the Labour government passed legislation to
lengthen the duration of residence and require obligatory volunteer work as
122 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

part of a scheme of ‘‘earned citizenship,’’ the newly elected Conservative-led

coalition scrapped these plans from implementation because of cost
concerns and the shifting political climate in the United Kingdom.
Finally, Belgium is an unusual case with a very liberal citizenship policy
design that until recently included an atypically low three-year residency
requirement, and – against the trend of other European states – it was the only
EU country to actually remove language and integration requirements (in
2000). However, a 2010 bill and 2011 publication of naturalization guidelines
brought about both an increase in the duration of residence to five years and
the reintroduction of these integration conditions. Although these changes
certainly make naturalization in Belgium more restrictive than it was
previously, and politics played a central role in the shift, in comparative
perspective Belgium still maintains a staunchly liberal citizenship policy.

GERMANY: ENTRENCHING A RESTRICTIVE

BACKLASH
A decade into the twenty-first century, the German case continues to
highlight the importance of focusing on the politics of citizenship. It shows
how an elite-driven process can lead to liberalizing change – despite strong
anti-immigrant sentiment within the population – but also how the
mobilization of xenophobia can lead to a rather sudden restrictive backlash.
Beginning the decade with significant, liberalizing reforms, the 2000s can be
characterized as a period of incremental restriction. Some of the restrictions
existed to counterbalance liberalization from the start, including a ‘‘closely
circumscribed’’ application of jus soli (Green, 2012) and the introduction of
the Optionsmodell, whereby German-born children of immigrants can hold
dual citizenship, but will be required to renounce either citizenship between
the age of 18 and 23. While the original intent of the 2000 Citizenship Law
was to encourage naturalization, the popular mobilization of anti-
immigrant sentiment through an unprecedented petition campaign tempered
the sweeping liberalization originally proposed, resulting in these watered-
down compromises that became the 2000 law (Howard, 2009, pp. 119–147).
The 2000 law also introduced a new loyalty oath in support of the ‘‘free
and democratic order of the Constitution’’ (Hailbronner, 2006, p. 244) and a
German language requirement, which would become important foundations
for subsequent integration restrictions. Hartnell describes the restrictive
provisions that made their way into an otherwise liberalizing reform as an
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 123

‘‘integration price tag’’ (2006, p. 391).8 In fact, the center-right Christian

Democratic Union/Christian Social Union (CDU/CSU) ultimately opposed
the citizenship bill in the lower house (Bundestag) for not requiring more
integration, wanting to include knowledge of the constitutional order
alongside language in exchange for other concessions of liberalization and
accusing the government coalition as giving away ‘‘naturalization for free’’
(Van Oers, 2010, p. 72, 73).
The citizenship law represents only the first iteration of using new
requirements for restrictive ends. The continued politicization of anti-
immigrant sentiment into the 2000s also influenced two subsequent reforms,
both making the process of naturalization increasingly rigorous and
restrictive. The first consisted of minor modifications to the citizenship law,
which, adopted alongside Germany’s first immigration law in 2005, defined
an integration-based route to citizenship. It operates in conjunction with the
immigration law by providing a one-year reduction in residence (from eight
to seven) if applicants successfully complete the newly introduced
integration course (including a maximum of 900 hours of German language,
45 hours of civic orientation course, and cumulative tests). On the surface
level, this may seem like an instance of liberalization in that it lowers the
required period of residence based on integration. However, in actuality it
connects the laborious and formal process of settlement to citizenship. In
Germany, a migrant is not required to hold permanent residence status in
order to apply for citizenship. Therefore, a migrant can only ‘‘buy’’ a one-
year reduction by completing these rather difficult integration requirements
(see Goodman, 2010a).
The second piece of major legislation, passed in August 2007, not only
incorporates EU Directives on integration conditions for family migration
and permanent residence, but also requires applicants to demonstrate
knowledge of German language and society, demonstrated either through a
diploma and German schooling or, more conventionally, through a
federally standardized naturalization test. The new citizenship test asks
applicants to answer 33 questions on aspects such as political institutions,
rule of law, democracy, and the welfare state and ‘‘find their basis in the
curriculum used in the current integration course offered to immigrants’’ (de
Groot, Kuipers & Weber, 2009, p. 58). Put into force in September 2008, the
naturalization test has not only provided Germany with an instrument to
standardize the expectations of citizenship but it has also mitigated
subjective assessments of applicants across the 16 federal states (Länder).
This change can be generally interpreted in the context of party politics
‘‘during a period of retrenchment in public opinion toward immigration’’
124 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

(Klusmeyer & Papademetriou, 2009, p. 255). The new Immigration Act,

which introduced the integration course for permanent residence, as well as
the new connection between residence and citizenship were both made by
the government to promote integration and ‘‘hinder the promotion of
‘parallel societies’’’ (Van Oers, 2010, p. 74). The CDU/CSU was influential
in shaping new immigration policy (including the connection between
integration and citizenship) after gaining an overwhelming majority in the
Bundesrat, the upper house of parliament. In short, the ‘‘new migration law
helped to reconceptualize Germany’s exclusionary policies toward foreign-
ers by introducing an explicit integration agenda’’ (Klusmeyer & Papade-
metriou, 2009, p. 261). Additional high-profile events such as the half-dozen
honor killings of women, especially the dramatic case of Hatun Sürücü in
Berlin (Biehl, 2005), also drew public attention to integration problems and
contributed to the incremental restrictions.9
A closer look at the citizenship test reveals not only the incremental
restriction of German citizenship acquisition but also the effects of state-
level politics on this outcome. This standardization was not for its own
sake – to have new citizens know something about the country and political
value-system – but was in response to controversial but locally popular,
state-level practices. The main integration features passed in the 2000
citizenship act were always relegated to the state level; language assessment
varied considerably across Land government, as did the written declaration
of loyalty, as some cities ‘‘present naturalization certificates in the context of
formal citizenship ceremonies, rather than simply handing them over in the
anonymous environment of an office’’ (Green, 2012). But in two states,
Baden-Württemberg and Hesse, security checks were being performed
through naturalization test-styled assessment. In Baden-Württemberg, a
‘‘Loyalty Test’’ was implemented in January 2006. It consists of a personal
interview in which applicants are asked a series of questions to assess their
attitude and values.10 For example: ‘‘Shall a woman be permitted to be
alone in public or to go on holiday on her own – what is your opinion about
that? (de Groot et al., 2009, p. 60). Controversially, this test soon came to be
decried as a ‘‘Muslim test,’’ for it was revealed that only immigrants from
Muslim countries were required to pass it (Joppke, 2007, p. 15).
Hesse also proposed a supplementary exam in March 2006, but one
that consciously differed from Baden-Württemberg’s ‘‘Loyalty Test’’ in that
(1) it was primarily knowledge-based and (2) it would be given to everyone
applying for citizenship. However, even this test could be seen unfair given
that immigrants in other federal states did not have to undergo the
additional requirement. In the end, the test was never implemented in Hesse
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 125

because discussions for a federal, standardized test ‘‘had already reached the
central level’’ (de Groot et al., 2009, p. 61). Indeed, CDU/CSU interior
ministers called for a national values test, which then led to a
recommendation for a federal-level test by the Conference of Senators and
Ministers of Interiors (IMK), which was then produced as a compromise to
prevent further independent state practices.
Looking back on this decade of German citizenship reform – ostensibly
designed to make possible and prepare immigrants for citizenship – Fig. 1
shows that the trajectory of naturalization has been in consistent decline
since the 2000 law came into effect. Moreover, as Simon Green (2012) notes,
changes were also made to the 2007 reform that raised both the cost of
application and the standard for the criminal conviction clause, while also
requiring that non-nationals between the ages 18 and 23 be self-sufficient.
Such restrictive measures for naturalization are not typically included in
systematic citizenship policy comparisons (for an exception, see Goodman
2010b), but they can certainly produce decisive limits on acquisition.
Over the course of the 2000s, the German public has remained activated
on issues related to immigrants. This stands in sharp contrast to the 1990s,
when the citizenship reform process took place quietly, almost exclusively
on the elite level, with little popular discussion or involvement – until the
petition campaign of 1999 led to the initial restrictive backlash, resulting in

200000
180000
160000
140000
120000
100000
80000
60000
40000
20000
0
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Fig. 1. Acquisition of Citizenship in Germany, 1998–2009. Source: Eurostat.
126 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

the compromises necessary to achieve the 2000 law. Since that point, the
elite consensus to keep populist and xenophobic messages out of German
politics – which had held for almost half a century – has been broken, and
most political parties are now pandering to the anti-immigrant sentiment.
The result has been increasingly restrictive policies, as exemplified by the
2005 and 2007 restrictions discussed above.
To date, there has yet to be a groundswell of support for liberalizing
reforms to countermand these incremental restrictions, and it is not likely to
materialize in the foreseeable future. Overall, the German case shows how
new integration requirements and citizenship changes in Germany have
counterbalanced the historic liberalization that occurred in 2000. The main
cause of these restrictive measures has been the continued politicization of
anti-immigrant public sentiment, which was initially activated in the late
stages of the citizenship reform that led to the 2000 law. The United
Kingdom, in contrast, experienced the inverse. Like Germany, citizenship
changes requiring integration and ‘‘active citizenship’’ were produced in a
climate concerned with immigrant integration, but overtones of migration
control produced a legislative compromise with both inclusive and exclusive
elements.

THE UNITED KINGDOM: RESTRICTIVE

OVERTONES, MUTED CHANGE

The past 15 years have brought about significant changes to British

citizenship and immigration policy. Not more than a decade ago, it was said
that citizenship was so foreign a concept that ‘‘[the British] didn’t even use
the term much’’ (Economist, 2010). Today, the clear imperative – in Prime
Minister David Cameron’s words – is to establish a ‘‘clear sense of shared
national identity that is open to everyone’’ (Cameron, 2011). With at least
two major pieces of citizenship legislation in the past decade alone, Britain is
actively constructing a new citizenship. The Nationality, Immigration and
Asylum (NIA) Act of 2002 introduced both a requirement for sufficient
knowledge of English, Welsh, or Scottish Gaelic and of life in the United
Kingdom, as well as an American-style citizenship ceremony and pledge.
More recently, the Labour government passed legislation (Borders,
Citizenship and Immigration Act) in 2009 to increase the period of required
residence for citizenship from five to eight years so that prospective citizens
could complete a service-based volunteering requirement, thus reflecting the
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 127

view that ‘‘citizenship must be earned’’ (Home Office, 2008, p. 11). However,
the subsequent Conservative-led coalition government decided against
implementation of these provisions, rejecting them as ‘‘too complicated,
bureaucratic and, in the end, ineffective’’ (May, 2010).
With the cumulative changes to both the content and eligibility criteria of
citizenship, ‘‘the trajectory of current change is towards a clear distinction
between citizens and others’’ (Sawyer, 2010, p. 4). But the question is
whether the changes establishing this distinction amount to a restrictive
policy turn. Despite the changing rhetoric, the answer is no. Britain has
long-maintained a relatively liberal citizenship policy, with a low residential
qualifying periods (five years for immigrants, three for spouses), granting of
citizenship through jus soli, and allowance for dual citizenship. The ‘‘Life in
the UK’’ test, passed in 2002 and implemented in 2005, certainly adds a new
requirement for citizenship, but its many concessions based on skill indicate
that its restrictive rhetoric is not matched by the harshness of its
implementation. It was also initially crafted by politicians and experts in a
well-entrenched, center-left government insulated from significant opposi-
tion or veto players. That said, had the 2009 changes to residence duration –
specifically the increase in qualifying residency period through the creation
of a service-based ‘‘probationary’’ stage of pre-citizenship and the condition
for time reduction on the basis of voluntary community work – been
implemented by the Conservative-led government, it might have qualified as
restrictive citizenship change. Yet these changes did not come to pass, and
they do not appear to be on the political horizon today.
The conditions that led to the creation of Britain’s ‘‘Life in the UK’’
citizenship test and ‘‘Skills for Life’’ language and civic-content course were
quite different from those that resulted in similar initiatives in Germany. The
British citizenship test was not implemented as a ‘‘backlash’’ against a recent
liberalizing change – as has arguably occurred in Germany or the Netherlands.
Indeed, Britain has an enduring tradition of historically liberal policy, with
relatively accessible citizenship and high naturalization rates (see Howard,
2009, pp. 157–161). The initial adoption of language and country knowledge
requirements in the 2002 NIA, was not intended to diminish the high number
of applications for citizenship as much as it was, in the words of former Home
Secretary David Blunkett, to achieve ‘‘acceptable absorption of the uptake’’
11
(personal communication, August 3, 2007). In other words, whereas policy-
makers did not see an opportunity to reduce naturalization – regardless of
whether there was an implicit desire to do so – they conditioned the process of
citizenship acquisition with integration measures that could successfully
transition outsiders into the national political community.
128 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

Incorrect interpretations of language and country knowledge require-

ments as restrictive change in the British case may also stem from further
misclassification of initial conditions. Two events that overlapped with the
process of policy change – but were preceded by policy adoption – include
the Northern Riots and 9/11. The Northern Riots in the summer of 2001
propelled a national debate about multiculturalism and the problem of
separate, ‘‘parallel lives.’’ It inspired the Community Cohesion agenda,
initiated by Ted Cantle in his summary report on the Northern Riots and
carried forward by the Department for Communities and Local Govern-
ment. And 9/11 significantly raised the profile of security, immigration, and
Islam. However, the language and country knowledge changes to citizen-
ship, directed by the late Sir Bernard Crick as chair of the Life in the UK
Advisory Group, had already begun convening to carry over the citizenship
agenda that was implemented for British schoolchildren in the National
Curriculum (for more, see Kiwan, 2008).
Finally, the question of whether language and country knowledge
requirements for citizenship represent a restrictive change or not can also
be examined by looking at the design of requirements. Aspiring citizens have
an option of sitting the 24-question computerized ‘‘Knowledge of Life in the
UK’’ test or completing an English for Speakers of Other Languages
(ESOL) ‘‘Skills for Life’’ course that includes civic content.12 And, in terms
of the test, while the 2009 pass rate for the citizenship test was only 70.9%,
naturalization rates have actually increased 59% since the test was adopted
in 2005 (BBC, 2010). Only 3% of applications for citizenship were rejected
in 2009 for reasons of insufficient language or knowledge of life in the
United Kingdom (Home Office, 2010, p. 13).
Changes passed – but not implemented – in the 2009 BCIA, would be
considered more closely in line with restrictive change, and follow the
theoretical model for citizenship policy change. The model identifies that latent
pressure for restriction, namely anti-immigrant public opinion,13 typically gets
‘‘activated’’ by far-right mobilization. But in some cases, the reaction of more
mainstream parties (on the left or right) to the challenge of the far right’s
message can be just as effective in blocking liberalization or imposing
restrictions. Britain does not have a robust far-right party comparable to those
in many other European countries, but the British National Party (BNP)
experienced some moderate success in local council elections (2006) and the
London Assembly elections (2008). This yielded a notable impact on agenda-
setting, not so much to mobilize public opinion but to challenge government
positions on immigration control rhetoric. As a result, the Labour party
responded in kind with a stronger – and more restrictive – policy position.
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 129

In brief, the 2006 council elections successfully moved the issue of

immigration to the fore of British politics. The BNP gained a modest 26
local seats in the end, but this doubled its council seat holdings and
significantly raised the profile of immigration on the political landscape.
These BNP gains were arguably Conservative seats to lose. Noting the
effectiveness of anti-immigrant rhetoric as a campaign issue, and in light of
Tony Blair admitting that ‘‘the Government has no policy for controlling
the size of Britain’s hugely expanding population’’ (Daily Mail, 2006), the
Conservative shadow government placed immigration ‘‘back at the top of
the political agenda’’ with the launching of an immigration policy
consultation in July.
In defense, the Labour government proceeded down a path of comprehen-
sive immigration and citizenship policy review and reform. The clear
motivation – described as the ‘‘heart of the changes’’ in the Green Paper
‘‘The Path to Citizenship’’ – was public opinion (11). These proposals also
emerged from a number of ‘‘public listening sessions,’’ where issues such as
speaking English, obeying the law, and paying one’s own way emerged as high
priorities. But, even then, the purpose, as Ryan points out, was not to
disincentivize naturalization but rather ‘‘to favour direct progression to British
citizenship’’ (2009, p. 289), as opposed to lingering in a stage of permanent
residence. As a result, review of the Bill in the Houses of Commons and Lords
never contested the increased residency duration, but instead discussed the
notion of promoting voluntarism through ‘‘active citizenship’’14 and debated
the suitability of the term ‘‘probationary’’ for what is really a transitional
period.15 The British Citizenship Act (BCA) 2009, with provisions for eight
years residence and possible residence reduction to six years with the completion
of ‘‘active citizenship,’’ received Royal Assent in July 2009. But, as mentioned
above, the new Conservative-led government chose not to implement it.
Overall, the United Kingdom is an illuminating case for assessing claims
of both restrictive change and a backlash or convergence. The origin, design,
and outcome of the civic integration requirements, which are typically
viewed as restrictive, reveal the motivation to be incentivization, not
restriction. As Fig. 2 shows, the trend in naturalizations since the 2002 NIA
has been upward.16 Although the lengthening of the residency requirement
and the inclusion of ‘‘active citizenship’’ are unambiguous restrictions, and
their emergence is consistent with the theoretical explanations, the lack of
restrictive implementation suggests that they were primarily political and
rhetorical issues.
In spite of accomplished and abandoned change, the core of British
citizenship policy remains firmly and fundamentally liberal. As with the
130 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

250000

200000

150000

100000

50000

0
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Fig. 2. Acquisition of Citizenship in the United Kingdom, 1998–2009. Source:
Eurostat; Home Office.

German case, the causes for the proposed restrictive measures were
politically motivated, resulting from the activation of anti-immigrant public
sentiment and its introduction into policy and electoral debates, but their
blockage signifies a real challenge to descriptions of restrictive change and
backlash.

BELGIUM: NORMALIZING, NOT RESTRICTIVE

CHANGE

Finally, we briefly consider recent reforms in Belgium to illustrate both that

far-right parties can play an important role in politicizing citizenship (in this
case, specifically as a membership category) but also that ‘‘restriction’’ is a
careful label not always applicable to the proposed addition of new
requirements. Belgium has long been a beacon of liberal citizenship policies
within Europe, having maintained jus soli for third-generation immigrants,
dual citizenship, acquisition through simple declaration after seven years, and
naturalization after three years of residence – the lowest residency requirement
in all of the European Union. And, with the 2000 Belgian Act, it also bucked
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 131

against ‘‘assimilationist’’ trends (Joppke & Morawska, 2003) by removing a

requirement that demanded language as proof of a ‘‘willingness to integrate.’’
The purpose of this change was to eliminate ‘‘procedures that can be a
deterrent to naturalization’’ (Foblets & Yanasmayan, 2010, p. 277),
particularly in light of studies showing that the mechanism for determining
integration – assessment by a local police office – yielded ‘‘highly subjective
and unequal treatment’’ (Huddleston, 2011). However, merely a decade later,
the government adopted a bill to increase the residency requirement from three
to five years, and it reintroduced language (French, Dutch, or German) and
willingness to integrate requirements. Since Belgium’s record-breaking
inability to form a government has delayed implementation of these policies,
its Naturalization Committee passed a set of internal guidelines in January
2011. These include deferring applicants who cannot ‘‘prove they are making
efforts to understand and speak the language of their place of residence and to
participate in local life’’ (Huddleston, 2011). The two additional years of
residence are only required if, after the required three years of residence, an
applicant is unable to demonstrate adequate knowledge of French, Dutch, or
German (Galant, 2011).
Despite these recent measures, Belgium’s restrictive change is not
tantamount to restrictive policy. While the new policies will certainly make
it more difficult for prospective citizens to acquire Belgian citizenship in
comparison to the 2000 law (nicknamed the ‘‘quickly-Belgian-law’’), the
requirements for naturalization can more accurately be described as
‘‘normalized’’ with other inclusive European countries, such as France,
Ireland, and Sweden. Moreover, the absence of application fees or integration
tests, along with the continued allowance of dual citizenship, maintains it as
one of the most liberal citizenship policies in Europe (Goodman, 2010b).17
That said, what explains this 2011 policy change? We examine two
conditions: the move by far-right regional parties to raise the profile of anti-
immigrant politics and the inherently fractious – and ultimately unstable –
character of national government. These two factors explain not only why
citizenship policy change is possible but also how it can be an important
political instrument in divided societies.
The most staunchly vocal anti-immigrant party in Belgium has been the
Vlaams Blok (Flemish Block). Following the success of anti-immigrant
parties in France and the Netherlands, nationalist parties in Belgium took a
cue to transform their political agendas (Coffé, Heyndels, & Vermeir, 2007).
This strategy proved to be an effective one for Vlaams Block, evidenced by
its receipt of 10.3% of the vote of Flanders during the 1991 federal elections.
This was followed by a steady increase in popularity for the party: 12.6% in
132 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

the 1994 European elections; 15.4% in the 1999 parliamentary and

European elections; 24% in the 2004 regional elections (Barker, 2007). As
Anton Derks concludes, ‘‘Flemish electoral survey research has shown that
negative attitudes towards immigrants have often strongly shaped voters’
preferences for Vlaams Blok’’ (2006, p. 181). In fact, Vlaams Blok had
become so anti-immigrant that it was shut down by the High Court for
‘‘permanent incitation to discrimination and racism’’ (European Election
Database). Supporters either migrated to the New Flemish Alliance (Nieuw-
Vlaamse Alliantie, or N-VA), a popular Flemish nationalist party, or stayed
with VB, now under a new name of Vlaams Belang.18 Under their new
name, public incitement on the issue of immigration continued.
In prizing Flemish culture, the Dutch language, and the superior
economic growth of Flanders as compared to French-speaking Wallonia,
VB was able to simultaneously call for a need of Flemish independence and
a hardening of immigration policies. The party, along with N-VA,
proliferated ideas of immigrants diluting Flemish culture as well as causing
general economic strain. According to VB leader Filip DeWinter, ‘‘The
multicultural society has led to the multicriminal society’’ (Metro, 2005),
faulting Belgium for its lax immigration policy and overly tolerant attitudes
and identifying commonalities between Flanders and the Netherlands in
dealing with integration (Metro, 2005). Reflecting this emphasis on
community preservation and the perceived threat diversity plays to it in
the context of VB’s electoral successes, the introduction of compulsory
integration courses for new immigrants in Flanders in 2003 was both
uncontested and smoothly implemented (Foblets & Yanasmayan, 2010, p.
291). This policy was not replicated nationally,19 in Wallonia, or Brussels-
Capital region, but it shows a direct tie between the impact of far-right
public mobilization and restrictive policy adoption.
On the francophone side of Belgium, the National Front (FN) also
achieved more modest but notable political success through an anti-
immigrant platform. Since 2003, the FN has won one seat in both the
chamber and the senate in each election. Similar to the Vlaams Bloc, the far-
right FN leader, Daniel Feret, was found guilty of publishing racist election
pamphlets, though anti-immigrant parties and their messages have been less
successful than their Flemish equivalents. Perhaps as a result, recent
proposals for integration courses and French language training for
immigrants ‘‘are not intended as mandatory measures’’ (Yanasmayan &
Foblets, 2010, p. 34).
Despite the ebb and flow of anti-immigrant parties in national politics,
making political ground more fertile for a restrictive policy, no issue could
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 133

eclipse the political coalition crises that dominate Belgian national politics
and serve as a continued reminder of the fractious nature of subnationalism.
Elites had maintained that the liberal citizenship policy would lead to a
‘‘more integrated population’’ (Howard, 2009, p. 155), recognizing the
inherent divisions that a federated, multilingual regionalism convey. This
cosmopolitan approach, ‘‘along with the contested nature of Belgian
identity itself helps to explain why Belgium bucked the trend of adding civic
integration requirements’’ (2009, p. 155). However, in the context of
growing anti-immigrant sentiment, and rising popularity of anti-immigrant
regional parties, citizenship became a contested issue. According to Dirk
Jacobs and Andrea Rea, ‘‘the apparent uniform vision at the federal level
has masked important divergences between Flemish and French-speaking
communities with regard to nationality law’’ (Foblets & Yanasmayan, 2010,
p. 2479). These divergences were visible during the vote in the Naturaliza-
tion Committee over new guidelines; the final vote was 9-8, with the
majority consisting entirely of Flemish parties and a sole francophone –
Committee President Jacqueline Galant (Huddleston, 2011).
The real puzzle, then, may not be why the ‘‘normalizing’’ revisions to the
citizenship law were proposed in 2010, but why it took so long. Foblets and
Yanasmayan attribute the delay to the failure of ‘‘federal governments to
stay in power for a full term’’ (2010, p. 299). The most recent reform, for
example, was passed right before Prime Minister Yves Leterme resigned
(Migration News, 1998). While the fate of the bill’s implementation, as
with national governments in Belgium, is uncertain, resulting changes to
naturalization requirements reveal the unavoidable nature of immigrant
politics.

CONCLUSION
The comparison between Germany, the United Kingdom, and Belgium
shows that behind the term ‘‘restriction’’ there are a variety of different
meanings and outcomes. Added to the broader picture presented in Table 1
– showing multiple combinations of restrictive and liberalizing changes –
these three brief case studies, which were selected to portray the array of
post-2000 ‘‘restrictions,’’ show that it is inaccurate to refer to a broader
‘‘restrictive turn’’ within Europe. Even the application of restrictive change
within cases over time should be qualified by existing conditions and
motivations. The German case seems to be one of a genuine restrictive
backlash, continuing and perhaps increasing over the past decade as a
134 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

reaction to the liberalizing change of 2000. In contrast, the United Kingdom

has introduced harsher rhetoric alongside mildly restrictive measures, while
remaining staunchly liberal policies and practices – still in line with its long-
standing traditions. And the Belgium case shows how the normalization of
citizenship in a highly liberal citizenship regime can be confused with
restrictive change, while also highlighting the divisive role that subnation-
alism can play in citizenship politics, and in government formation more
generally. Declarations of a ‘‘restrictive turn’’ in Europe are therefore
premature and inaccurate.
In all three cases, the causes of these changes seem to go beyond basic
sweeping arguments about demographics, changing European norms, or
ethnicization, all of which tell a very incomplete and indeterminate story
about policy change. What does still seem to matter is politics. Just as in the
countries of liberalizing change, where the politicization of anti-immigrant
public sentiment effectively blocked the elite liberalizing pressures, the
recent occurrences of new citizenship restrictions have occurred for very
similar reasons, even within different political contexts.

NOTES
1. This approach to citizenship can be distinguished from early analysis of
citizenship as either ‘‘ethnic’’ or ‘‘civic’’ (Brubaker, 1992). These labels are derived
from historical forms of nationhood, and therefore employ the language of the
nationalism literature. While a useful lens for identifying enduring differences
between understandings of belonging, as a deductive model for analysis it shows
many weaknesses. For more, see Bertossi and Duyvendak (2012).
2. We can especially hold these questions separate in countries that do not require
permanent residence status for citizenship eligibility, thus nullifying the ‘‘double-
barrier’’ a migrant might have to endure for naturalization. For example, in Austria,
migrants are required to complete 5 out of 10 years of their time toward citizenship
as a permanent resident. In Germany, Denmark, or the Netherlands, there is no such
requirement of permanent residence.
3. Unlike the CPI, this first-cut look leaves out spousal residence changes,
naturalization rates, and does not distinguish between jus soli granted at birth versus
jus soli granted after birth.
4. Note that our purpose here is not to measure the extent of change. For a more
precise analysis that measures and compares the extent of change across the
Citizenship Policy Index, see Howard, 2009. For more analysis on the extent of
restrictiveness imposed by the civic integration requirements of specific countries, see
Goodman, 2010a.
5. Although the argument could plausibly run in the opposite direction—
particularly more recently, as the number and percentage of immigrants continue to
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 135

increase—most scholars have found that the arrival of immigrants in the last several
decades of the 20th century resulted in a liberalizing pressure to accommodate them.
6. This notion of counterbalancing, however, does not seem consistent with
Joppke’s account of the fundamental reconstruction of citizenship, articulated in the
very same article: ‘‘the entire citizenship construct, which had once been kept strictly
separate from the exigencies of migration control, has in effect been fused with and
subordinated to migration control, with the delicate consequence that the rights of
citizens becomes downwardly approximated to the rights of legal immigrants’’
(Joppke, 2008, p. 11).
7. Indeed, as Douglas Massey (1999, p. 313) writes, ‘‘Most citizens [y] are poorly
organized and politically apathetic, leaving immigration policies to be determined
quietly by well-financed and better-organized special interests operating through
bureaucratic channels.’’
8. Green (2012) provides a second interpretation of the oath, noting that it was
strategically included to have legal grounds to exclude ‘‘those applicants from
citizenship where concrete suspicions (tatsächliche Anhaltspunkte) cast doubt on their
willingness to conform to Germany’s constitutional order (freiheitlich demokratische
Grundordnung) – a provision targeted at applicants with extremist political
tendencies.’’
9. We thank an anonymous reviewer for this point.
10. One example of a question asked in this exam includes ‘‘Is it right that women
obey their husbands, and for men to beat their wives when they are disobedient?’’ (de
Groot et al., 2009, p. 59).
11. Notably, sufficiency in English was a condition for naturalization since the
British Nationality Act of 1981. The 2002 changes added the country knowledge
component and provided a standardized mechanism for evaluating language and
country knowledge proficiency (the test or completion of an English-language course
with civic content).
12. Those able to speak English, Welsh, or Scottish Gaelic ‘‘to a reasonable
standard’’ are required to pass the ‘‘Life in the UK Test.’’ That standard is defined as
ESOL Entry Level 3, or Scottish Intermediate Level 1. Applicants who take the
course route do not need to attain Entry Level 3 proficiency but must progress by at
least one level from the level at which you were assessed at the beginning of the
course.
13. In an Ipsos/MORI poll taken in intervals since 1989, over 50% of respondents
have been in total agreement that ‘‘there are too many immigrants in Britain.’’
Retrieved from http://www.ipsos-mori.com/researchpublications/researcharchive/
poll.aspx?oItemID=53&view=wide
14. See House of Commons Committee Sitting #4 (June 16, 2009).
15. See Lords Consideration of Commons Amendments, July 20, 2009.
16. The decline in naturalization in 2008 does not reflect any policy change or
politics. The Home Office accounts for this anomaly because ‘‘staff resources were
temporarily transferred from decision-making to deal with administration of new
applications’’ (Home Office, 2010, p. 1). In other words, demand overwhelmed the
system.
17. Belgium is exceptional, however, in being one of the only EU Member States
(along with Bulgaria, Malta, and Poland) to have no obligation to justify negative
136 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

decisions on citizenship applications. It also (along with Bulgaria, Malta, Poland,

and Denmark) does not provide for a right of appeal. On both, see Goodman, 2010b,
p. 23. One can claim that this administrative discretion undermines the overall label
of ‘‘liberal citizenship’’ (see Huddleston, 2011), but this limited perspective on
administrative procedures also omits that applications for citizenship in Belgium are
free – an enormously inclusive practice.
18. It is important to note that this change was entirely cosmetic. In the words of
party leader Filip DeWinter, ‘‘The changes in the name of the party, the
modernisation of the statutes and the structure of the party, the remodelling of
the style and use of language y and the updating of a twenty-five year old
declaration of principle have nothing to do with content but everything to do with
tactic’’ (Erk, 2005, p. 498).
19. As Foblets and Yanasmayan point out, ‘‘The power to make laws with respect
to nationality and naturalization rests with the federal legislator. When it comes to
the integration of immigrants, the responsible bodies are the communities, since this
is a matter pertaining to personal affairs’’ (2010, p. 274).

REFERENCES
Aleinikoff, A. T., & Klusmeyer, D. (Eds.). (2000). Washington, DC: Carnegie Endowment for
International Peace.
Aleinikoff, A. T., & Klusmeyer, D. (Eds.). (2001). Washington, DC: Carnegie Endowment
for International Peace.
Aleinikoff, A. T., & Klusmeyer, D. (Eds.). (2002). Washington, DC: Carnegie Endowment for
International Peace.
Barker, L. (2007). Immigration and Belgium’s far-right parties. Migration Information Source.
Migration Policy Group. Retrieved from http://www.migrationinformation.org/
Feature/display.cfm?ID=606
Bauböck, R., Ersbøll, E., Groenendijk, K., & Waldrauch, H. (Eds.). (2006). Acquisition and loss
of nationality. Amsterdam: Amsterdam University Press.
BBC News (2010). British citizenship test: One in three fails citizen test. BBC News, May 27.
Online.
Bertossi, C., & Duyvendak, J. W. (2012). National models of immigrant integration: The costs
for comparative research. Comparative European Politics, 10(3), 237–247.
Biehl, J.K. (2005). The whore lived like a German. Speigel, February 3. Retrieved from http://
www.spiegel.de/international/0,1518,344374,00.html
Brubaker, R. (1992). Citizenship and nationhood in France and Germany. Cambridge: Harvard
University Press.
Cameron, D. (2011). PM’s speech at Munich Security Conference. February 5. Transcript
retrieved from http://www.number10.gov.uk/news/speeches-and-transcripts/2011/02/
pms-speech-at-munich-security-conference-60293
Coffé, H., Heyndels, B., & Vermeir, J. (2007). Fertile grounds for extreme right-wing parties:
Explaining Vlaams Blok’s electoral success. Electoral Studies, 26(1), 142–155.
Cornelius, W. A., Tsuda, T., Martin, P. L., & Hollifield, J. F. (Eds.). (2004). Controlling
immigration: A global perspective (2nd ed.). Stanford, CA: Stanford University Press.
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 137

Daily Mail (2006). Britain ‘suffering’ because of immigration, says Tories. July 7. Retrieved
from http://www.dailymail.co.uk/news/article-394602/Britain-suffering-immigration-say-
Tories.html
Derks, A. (2006). Populism and the ambivalence of egalitarianism. How do the underprivileged
reconcile a right-wing party preference with their socio-economic attitudes? World
Political Science Review, 2(3), 175–200.
Economist (2010). Who are we? Economist, April 29.
Erk, J. (2005). From vlaams blok to vlaams Belang: The begian far-right renames itself. West
European Politics, 28(3), 493–502.
European Election Database. (2011). Belgium-political parties. Retrieved from http://
www.nsd.uib.no/european_election_database/country/belgium/parties.html. Accessed
on July 14.
Foblets, M. C. (2006). Legal aspects of the multicultural society. Tensions and challenges
for policy making. In L. d’Haenens, M. Hooghe, D. Vanheule & H. Gezduci (Eds.),
New citizens, new policies? Developments in diversity policy in Canada and flanders
(pp. 89–104). Academia Scientific.
Foblets, M. C., & Yanasmayan, Z. (2010). Language and integration requirements in Belgium:
Discordances between the flemish policy of ‘inburgering’ and the federal legislators’
view(s) on the integration of newcomers and migrants. In R. Van Oers, E. Ersbøll &
D. Kostakopoulou (Eds.), A re-definition of belonging? Language and integration tests in
Europe (pp. 271–306). Boston, MA: Martinus Nijhoff Publishers.
Freeman, G. P. (1992). Migration policy and politics in the receiving states. International
Migration Review, 26(4), 1144–1167.
Galant, J. (2011). Naturalisations: Tant de bruit pour beaucroup d’avancées! Personal blog.
Retrieved from http://jacquelinegalant.wordpress.com/2011/01/20/naturalisations-tant-
de-bruit-pour-beaucoup-d%E2%80%99avancees/. Accessed on October 16, 2011.
Goodman, S. W. (2010a). Integration requirements for integration’s sake? Identifying,
categorizing and comparing civic integration policies. Journal of Ethnic and Migration
Studies, 36(5), 753–772.
Goodman, S.W. (2010b). Naturalisation policies in Europe: Exploring patterns of inclusion and
exclusion. Comparative Report 2010/7. EUDO-Citizenship, Robert Schuman Centre for
Advanced Studies, European University Institute, Florence, Italy.
Green, S. (2012). Much ado about not-very-much? Assessing ten years of german citizenship
reform. Citizenship Studies, 16(2), 173–188.
de Groot, G. R., Kuipers, J. J., & Weber, F. (2009). Passing citizenship tests as a requirement
for naturalisation: A comparative perspective. In E. Guild, K. Groenendijk, &
S. Carrera (Eds.), Illiberal liberal states: Immigration, citizenship and integration in the
EU (pp. 51–78). Surrey, UK: Ashgate.
Hailbronner, K. (2006). Germany. In R. Bauböck, E. Ersbøll, K. Groenendijk & H. Waldrauch
(Eds.), Acquisition and loss of nationality (Vol. 2, pp. 213–252). Amsterdam: Amsterdam
University Press.
Hansen, R. (2009). The poverty of postnationalism: Citizenship, immigration, and the new
Europe. Theory and Society, 38(1), 1–24.
Hansen, R., & Weil, P. (Eds.). (2001). Towards a European nationality: Citizenship, immigration,
and nationality law in the EU. New York, NY: Palgrave.
Hansen, R., & Weil, P. (Eds.). (2002). Dual nationality, social rights, and federal citizenship in the
US and Europe: The reinvention of citizenship. New York, NY: Berghahn Books.
138 SARA WALLACE GOODMAN AND MARC MORJÉ HOWARD

Hartnell, H. E. (2006). Belonging: Citizenship and migration in the European union and in
Germany. Berkeley Journal of International Law, 24(1), Article 12.
Hochschild, J.L. (2010). International migration at a crossroads: Will demography change politics
before politics impedes demographic change? Paper prepared for the conference on
Citizenship in a Globalized World: Perspectives from the Immigrant Democracies.
University of New South Wales, Australia, July 13–15, 2010.
Home Office. (2008). The path to citizenship: Next steps in reforming the immigration system.
London: Home Office.
Home Office. (2010). Home office statistical Bulletin: British citizenship statistics, United
Kingdom 2009. London: Home Officehttp://rds.homeoffice.gov.uk/rds/pdfs10/
hosb0910.pdf
Howard, M. M. (2009). The politics of citizenship in Europe. New York, NY: Cambridge
University Press.
Huddleston, T. (2011). Ceci n’est pas un test? Non, peut-êtreyMIPEX Blog. Retrieved from
http://www.mipex.eu/blog/20110407ceci-nest-pas-un-test. Accessed on October 15, 2011.
Ipsos/MORI (2009). Best party on key issues. Retrieved from http://www.ipsos-mori.com/
researchpublications/researcharchive/poll.aspx?oItemID=19&view=wide
Joppke, C. (1998). Why liberal states accept unwanted immigration. World Politics, 50(2),
266–293.
Joppke, C. (2003). Citizenship between de- and re-ethnicization. European Journal of Sociology,
44(3), 429–458.
Joppke, C. (2007). Beyond national models: Civic integration policies for immigrants in
Western Europe. West European Politics, 30(1), 1–22.
Joppke, C. (2008). Comparative citizenship: A restrictive turn in Europe? Journal of Law and
Ethics of Human Rights, 2(1), 1–41.
Joppke, C., & Morawska, E. (Eds.). (2003). Toward assimilation and citizenship: Immigrants in
liberal nation-states. Basingstoke, Hampshire: Palgrave Macmillan.
Kiwan, D. (2008). A journey to citizenship in the United Kingdom. International Journal on
Multicultural Societies, 10(1), 60–75.
Klusmeyer, D., & Papademetriou, D. (2009). Immigration policy in the federal republic of
Germany. New York, NY: Berghahn Books.
Koopmans, R., Statham, P., Giugni, M., & Passy, F. (2005). Contested citizenship: Immigration
and cultural diversity in Europe. Minneapolis, MN: University of Minnesota Press.
Kostakopoulou, D. (2010). Matters of control: Integration tests, naturalisation reform and
probationary citizenship in the United Kingdom. Journal of Ethnic and Migration
Studies, 36(5), 829–846.
Massey, D. (1999). International migration at the dawn of the twenty-first century: The role of
the state. Population and Development Review, 25(2), 303–322.
May, T. (2010). Speech by home secretary. November 5. Retrieved from http://www.home
office.gov.uk/media-centre/news/immigration-first. Accessed on October 12, 2011.
Meer, N., & Modood, T. (2009). The multicultural state we’re in: Muslims, ‘multiculture’ and
the ‘civic re-balancing’ of British multiculturalism. Political Studies, 57(3), 473–497.
Metro (Netherlands). (2005). Multicultureel betekent multicrimineel. June 16.
Migration News. (1998, November). Migration News, 5(11) (November).
Migration Policy Group. (2010). Migrant integration policy index. Retrieved from http://
www.mipex.eu
Evaluating and Explaining the Restrictive Backlash in Citizenship Policy 139

Orgad, L. (2010). Illiberal liberalism: Cultural restrictions on migration and access to

citizenship in Europe. American Journal of Comparative Law, 58(x), 53–105.
Ryan, B. (2009). The integration Agenda in British migration law. In E. Guild, K. Groenendijk,
& S. Carrera (Eds.), Illiberal liberal states: Immigration, citizenship and integration in the
EU (pp. 277–298). Surrey, UK: Ashgate.
Salt, J., Clarke, J., & Schmidt, S. (2000). Patterns and trends in international migration in
Western Europe. Luxembourg: Office for Official Publications of the European
Communities.
Sassen, S. (1996). Losing control? Sovereignty in an age of globalization. New York, NY:
Columbia University Press.
Sassen, S. (1998). The de facto transnationalizing of immigration policy. In C. Joppke (Ed.),
Challenge to the nation-state: Immigration in Western Europe and the United States
(pp. 49–85). Oxford: Oxford University Press.
Sawyer, C. (2010). Report on United Kingdom. EUDO Citizenship observatory, RSCAS/
EUDO-CIT-CR 2010/34.
Schain, M. A. (2008). The politics of immigration in France, Britain, and the United States.
New York, NY: Palgrave Macmillan.
Sides, J., & Citrin, J. (2007). European opinion about immigration: The role of identities,
interests and information. British Journal of Political Science, 37(3), 477–504.
Smooha, S. (2008). Comparative citizenship: A restrictive turn in Europe and a restrictive
regime in Israel. Response to Joppke. Journal of Law and Ethics of Human Rights, 2(1),
1–41.
Somerville, W., & Goodman, S. W. (2010). The role of networks in the development of UK
migration policy. Political Studies, 58(5), 951–970.
Soysal, Y. N. (1994). Limits of citizenship: Migrants and postnational membership in Europe.
Chicago, IL: University of Chicago Press.
Van Oers, R. (2010). Citizenship tests in the Netherlands, Germany and the UK. In R. Van
Oers, E. Ersbøll & D. Kostakopoulou (Eds.), A re-definition of belonging? Language and
integration tests in Europe (pp. 51–106). Leiden, The Netherlands: Martinus Nijhoff
Publishers.
Weil, P. (2001). Access to citizenship: A comparison of twenty five nationality laws. In
T. A. Aleinikoff & D. Klusmeyer (Eds.), Citizenship today: Global perspectives and
practices (pp. 17–35). Washington, DC: Carnegie Endowment for International Peace.
Yanasmayan, Z., & Foblets, M.C. (2010). Country Report: Belgium. The INTEC project:
Integration and Naturalisation tests: The new way to European Citizenship. Centre for
Migration Law, Radboud University, Nijmegen, the Netherlands.