T. Alexander Aleinikoff

Citizenship Today: Global Perspectives and Practices

The forms, policies, and practices of citizenship are changing rapidly around the globe, and the meaning of these changes is the subject of deep dispute. Citizenship Today brings together leading experts in their field to define the core issues at stake in the citizenship debates. The first section investigates central trends in national citizenship policy that govern access to citizenship, the rights of aliens, and plural nationality. The following section explores how forms of citizenship and their practice are, can, and should be located within broader institutional structures. The third section examines different conceptions of citizenship as developed in the official policies of governments, the scholarly literature, and the practice of immigrants and the final part looks at the future for citizenship policy. Contributors include Rainer Baubock (Austrian Academy of Sciences), Linda Bosniak (Rutgers University School of Law, Camden), Francis Mading Deng (Brookings Institute), Adrian Favell (University of Sussex, UK), Richard Thompson Ford (Stanford University), Vicki C. Jackson (Georgetown University Law Center), Paul Johnston (Citizenship Project), Christian Joppke (European University Institute, Florence), Karen Knop (University of Toronto), Micheline Labelle (Universite du Quebec a Montreal), Daniel Salee (Concordia University, Montreal), and Patrick Weil (University of Paris 1, Sorbonne)

The Impossibility of Citizenship

This essay reviews T. Alexander Aleinikoffs Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard University Press, 2002). The book considers the constitutional marginalization of Native Americans, aliens, and residents of Puerto Rico and other unincorporated territories. In Aleinikoffs view, citizenship supplies both the explanation for and the answer to the subordination of these communities. Citizenship has been a powerfully equalizing force in the American constitutional tradition for those within the circle. Insofar as rights have been made contingent on citizenship status, however, those outside are left without constitutional armor. Aleinikoff suggests a reconception of citizenship, extending core constitutional status to those for whom citizenship is not a constitutional entitlement (namely, Native Americans and territorial residents) as well as to some who are not citizens at all (permanent resident aliens). With citizenship as a baseline, the argument is a powerful one. But one might at a more fundamental level question the continuing utility of that baseline and of citizenship as an institution. An emerging body of postnational scholarship is challenging citizenship and the nation-state as delimitations of human community, posing instead diasporas, social movements, and other nonstate groupings as competing locations of identity and governance. Aleinikoff brackets the postnational assault; he is seeking to transform citizenship, not transcend it. In this respect, the analysis presents more of an exercise in recentering citizenship than - as claimed - one of decentering it. But the postnational challenge is unavoidably implicated in any attempt to deploy citizenship as an institutional vehicle. Even as an expansive and benign quantity, Aleinikoffs vision of citizenship may suffer the same problems as its exclusionary predecessors: however the circle is drawn, many are left out, including many with deep attachments to the national community. To the extent, on the other hand, that the circle is drawn ever more widely, the tie that citizenship is understood to represent grows ever thinner. This dynamic would seem to present an inescapable dilemma for the institution of liberal citizenship, and perhaps for liberalism itself.

INTERNATIONAL LAW, SOVEREIGNTY, AND AMERICAN CONSTITUTIONALISM: REFLECTIONS ON THE CUSTOMARY INTERNATIONAL LAW DEBATE

The preceding contributions to this Agora investigate the discernible trend in Supreme Court decisions of citing international legal materials in support of a conclusion about domestic constitutional law. Discussion of this rather limited use of international law—far short of the notion that “[i] nternational law is part of our law”—implicates a deeper set of questions about democracy, sovereignty, and sources of law: Is recourse to international sources a fundamental affront to notions of democratic self-rule, or is it the natural development of a maturing legal system—one moving toward new understandings of sovereignty and popular sovereignty appropriate to an increasingly interconnected web of transnational legal relations? I will argue here for the latter position, and from this perspective the occasional illustrative citation to international norms in the course of a conventional constitutional law opinion is an invitation to broader thought more than a fire bell in the night.

Model International Mobility Convention

People are as mobile as they ever were in our globalized world. Yet the movement of people across borders lacks global regulation, leaving many people unprotected in irregular and dire situations and some States concerned that their borders have become irrelevant. And international mobility—the movement of individuals across borders for any length of time as visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, or refugees—has no common definition or legal framework. There does exist a well-established refugee regime based on the 1951 Refugee Convention and its 1967 Additional Protocol, both implemented by the United Nations High Commissioner for Refugees (UNHCR). As the nature of conflict has changed in recent decades, however, this regime has shown strain and weakness. Today there are more than sixty-five million displaced persons in the world, a level not seen since World War II. Mixed flows of labor migrants and refugees fleeing for safety and economic prospects have created a crisis in the asylum-seeking process. Those forced to