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Citizenship in Federal Systems
Peter H. Schuck
Yale Law School
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Schuck, Peter H., "Citizenship in Federal Systems" (2000). Faculty Scholarship Series. Paper 1661.
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PETER H. SCHUCK
Citizenship in Federal Systems
1.
INTRODUCTION
An odd and somewhat disquieting feature of citizenship talk! in
the academy is its oscillation between two discursive poles, one formalistic and the other substantive. We commonly speak of the legal
principles that regulate the statuses of citizen2 and non-citizen. 3 But
we also speak of what citizenship actually means in a society in
which citizens and aliens tend to be unequal in resources as well as in
status. 4 We generally use the formalistic conception to describe what
the law says citizenship is, and the substantive conception to compare what it is with what we think it could and should be. 5 This tenPETER H. SCHUCK is the Simeon E. Baldwin Professor, Yale Law School. This is a
revised version of a paper presented at a conference on "Individual, Community, Nation: 50 Years of Australian Citizenship" in Melbourne July 21-23, 1999. I wish to
thank Donald Horowitz, Vicki Jackson, Larry Kramer, and Peter Spiro for their comments on the conference draft. Brett Gerry, a 1999 graduate of Yale Law School, and
Elizabeth Cohen, a graduate student in political science at Yale, provided fine research assistance.
1. I discuss different dimensions of what I call citizenship talk in Peter H.
Schuck, Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship
176-78 (1998).
2. For sound normative and perhaps constitutional reasons, citizenship in the
U.S. (and presumably elsewhere) is an essentially undifferentiated status. American
law treats all citizens, whether native-born or naturalized, the same for virtually all
purposes, save two: eligibility to be elected President of the United States, and the
renunciation oath required of naturalizing citizens, leading to somewhat different
dual citizenship rules. See id. at 227-29. Not germane here is the conventional distinction between citizens and "nationals" (i.e., near-citizens but with lesser status and
rights, usually as to voting) under domestic and international law. See id. at 412, n. 2.
3. The term "alien" carries a more unpleasant - and for some, offensive - connotation than the term "non-citizen." Johnson, '''Aliens' and the U.s. Immigration
Laws: The Social and Legal Construction of Nonpersons," 28 Miami Inter-American L.
Rev. 263 (1996-97). Nevertheless, using "alien" can reduce confusion when one wishes
to discuss both federal and state citizenship, as I do here. We do not speak of U.s.
citizens who are citizens of New York and who enter New Jersey as "aliens" there.
Unlike the citizen category, immigration law divides aliens into many subcategories,
each bearing different rights, duties, and administrative statuses. See Schuck, "Current Debates About U.S. Citizenship," in In Defense of the Alien, 1998 (Lydio Tomasi,
ed., 1999), at 83-84.
4. Inequalities, of course, also persist, and may even be growing, within each of
these groups, perhaps especially among non-citizens who are distributed bimodally
(in the U.s., at least) with respect to their socioeconomic status at the time of entry.
5. This comparison can prompt disparate reactions. I rejoice, for example, that
Germany has decided to permit long-resident descendants of former guestworkers to
acquire and transmit German citizenship, but I also wonder whether their new status
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sion between formal and substantive conceptions of citizenship
reflects, among other things, the stark differences among legal rules,
political realities, and civic aspirations.
Recent developments have heightened this tension by infusing
new uncertainties and complexities into the current debate over citizenship. Many of these developments are gathered under the thematic portmanteau - I am tempted to say idee fixe - of
globalization. Whether commentators view globalization as a harbinger of universal human rights, political reform, and multicultural
ethics,6 as an insidious agent of a corrosive world capitalism, or as
something else, all seem to agree that globalization is already having
profound effects on the nation-state, present and future.
Most of globalization's cheerleaders, skeptics, and agnostics converge on the view that an integrated world economy and new communications and information technologies are inexorably shrinking the
planet, transforming a system of territorial nation-states into a
global village bounded only by cyberspace. This, they say, renders
anachronistic the notion of political identity tied to a nation's institutions, laws, borders, culture,7 and citizenship.8 Instead, globalization
subjects even the most insular communities to the remorseless, tradition-withering, homogenizing discipline of world markets. In turn,
the argument continues, these forces threaten the safety net and indeed any other social practice that cannot meet the acid test of economic efficiency. In this view, the competition for pools of capital
that can be moved around the world instantaneously with the click of
as Germans will succeed in integrating them into civil society. See generally, Paths to
Inclusion: The Integration of Migrants in the United States and Germany (Peter H.
Schuck & Rainer Miinz, eds., 1998).
6. Two premature celebrants are David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (1996), and Yasemin N. Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (1994), to whose views I
have reacted in Schuck, supra n. 1, at 202-05. For other relatively upbeat treatments
of this question, see Thomas L. Friedman, The Lexus and the Olive Tree (1998); Rubenstein, "Citizenship in a Borderless World," in Legal Visions of the 21st Century:
Essays in Honour of Judge Christopher Weeramantry (Antony Anghie & Garry Sturgess, eds., 1998), at 183; Tina Rosenberg, "A Bad Year for the World's Border Guards,"
N.Y. Times, July 2, 1999, at A16 (NATO bombing of Serbia, Pinochet arrest in
London, and war crimes indictments show hopeful erosion of sovereignty). This debate and its associated literature are summarized and extended in Bosniak, "Citizen, ship Denationalized," 7 Ind. J. of Global Legal Stud. 447 (2000).
7. Canada, France, and other countries have imposed strict legal rules to inoculate their national cultures against the American virus, but to little avail. See, e.g.,
Susan Catto, "Keeping Canada's Public TV Network Purely Canadian," N.Y. Times,
Jan. 25, 2000, at B2; Anthony DePalma, "It Isn't So Simple To Be Canadian," N.Y.
Times, July 14, 1999, at El.
8. Observing the carnage in Kosovo, leading political figures and thinkers have
embraced this view. See, e.g., Havel, "Beyond the Nation-State," 9 The Responsive
Community (Summer 1999). For a deeply skeptical account of these currents, see
Leon Wieseltier, ''Winning Ugly," The New Republic, June 28, 1999, at 33 (mocking
statements of Havel; of Bronislaw Geremek, Poland's foreign minister; and of Jurgen
Habermas).
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