Williams, Andy

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Indiana University Bloomington Maurer School of Law

Indiana Journal of Global LegalStudiesVolume 18 | Issue 1 Article 23Winter 2011A Review of Beyond Citizenship: AmericanIdentity After Globalization, by Peter J. SpiroAndy WilliamsIndiana University Maurer School of LawFollow this and additional works at: http://www.repository.law.indiana.edu/ijglsPart of the Constitutional Law Commons, Immigration Law Commons, and the InternationalLaw CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Journal of Global Legal Studies by an authorizedadministrator of Digital Repository @ Maurer Law. For more information,please contact wattn@indiana.edu.Recommended CitationWilliams, Andy (2011) "A Review of Beyond Citizenship: American Identity After Globalization, by Peter J. Spiro," Indiana Journal ofGlobal Legal Studies: Vol. 18: Iss. 1, Article 23.Available at: http://www.repository.law.indiana.edu/ijgls/vol18/iss1/23A Review of Beyond Citizenship: AmericanIdentity After Globalization by Peter J. SpiroANDY WILLIAMS*Professor Peter J. Spiro's' book, Beyond Citizenship: AmericanIdentity After Globalization,2 examines the changing nature ofcitizenship, specifically U.S. 3 citizenship, in the face of globalization.Spiro's analysis comes to some rather radical conclusions about thefuture significance of citizenship and the role of nations in internationalpolitics and everyday life. His main thesis is that the importance of U.S.citizenship is waning due to a breakdown in the traditional distinctionsbetween U.S. citizens and the rest of the world.4 As the benefitsconferred and duties required by U.S. citizenship become more diluted,Spiro asserts, citizenship and nationhood are increasingly anachronisticas signifiers of community in a global world.5 In addition, Spiro critiquesthe way that law defines U.S. citizenship-whether with regard to birthor territorial presence-as inaccurate and arbitrary, contributing to thedecline of citizenship as an important status.6The enormously ambitious nature of Spiro's ultimate assertion-that nations will cease to be major organizational and political entitiesas a result of this decline-means that some of his arguments aredifficult to accept and can, at times, seem hasty and conclusory. Thatsaid, his book is well reasoned and thought provoking, and many of hisunique observations resonate strongly in today's changing society.* Editorial Staff, Indiana Journal of Global Legal Studies; J.D. Candidate, 2011,Indiana University Maurer School of Law; B.A., 2008, DePauw University.1. Peter J. Spiro holds the Charles R. Weiner Professorship in international law atTemple Law School.2. PETER J. SPIRO, BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION(2008).3. Spiro consistently uses the term "American," but this review will use the descriptor"U.S." for the sake of accuracy.4. SPIRO, supra note 2, at 6.5. Id. at 5, 6.6. Id. at 30, 111.Indiana Journal of Global Legal Studies Vol. 18 #1 (Winter 2011)@ Indiana University Maurer School of Law593INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1I have chosen three of Spiro's many interesting arguments for closeranalysis in this review.7 First, I will examine Spiro's critique of U.S.citizenship law, both current and historic. Second, I will turn to Spiro'sdiscussion of the benefits and duties attached to citizenship and theireffect on citizenship as a desirable status. Finally, I will explore Spiro'ssuggestions for future replacements of citizenship and nationhood as thefoundations of human community.Spiro breaks his discussion of the legal status of citizenship into twoparts: citizenship by birth8 and citizenship through naturalization.9Neither of these categories, according to Spiro, provides an accuratemethod for determining who is a part of the U.S. community and who isexcluded.' 0 Citizenship by birth can be extended to someone borncoincidentally to parents temporarily in the United States, who maynever again return, and yet that person would remain a U.S. citizen.Moreover, a temporary resident with relatively few ties to the UnitedStates may naturalize as a citizen, while a lifelong U.S. resident mayfind it economically or legally impractical to do so. Spiro uses suchexamples of the inaccuracies of legal citizenship to support his claimthat, as globalization makes travel and communication across nationalborders more convenient and commonplace and the U.S. communitybecomes more diverse and less exclusive, the importance of citizenshipas a status is diminishing to a vanishing point."In his critique of the legal definition of U.S. citizenship, one ofSpiro's main arguments is that much of what formerly set the UnitedStates apart from the rest of the world, including its culture andcommitment to constitutional democracy, has become widespread due toglobalization.12 This observation works two ways. First, it means thatterritorial presence, once an important factor in determining culturaland communal attachment, is much less useful in the face ofglobalization.13 A person born by chance in the United States mighthave less of a connection with traditional U.S. culture and politicalphilosophy than a person born in Vancouver; yet U.S. law wouldrecognize the person born in the United States as a citizen, and not theperson born in Vancouver, based purely on territorial presence. Second,7. A reader concerned with the many issues surrounding the phenomenon ofglobalization and its effects on American policies, which also include issues of dualcitizenship and the consequences of September 11, 2001, for the rights of aliens, will beinterested in reading Spiro's book in its entirety.8. See SPIRO, supra note 2, at 9 (describing those "born American").9. See id. at 33 (describing those "made American").10. Id. at 33, 56.11. Id. at 19, 58.12. Id. at 44-47.13. Id. at 24-25.594A REVIEW OF BEYOND CITIZENSHIPit means that as U.S. political ideals spread to more and more countriesand are adopted by more and more people, the attributes that make theUnited States unique become increasingly commonplace. As Spiroobserves, "[o]nce everyone is an American, no one is an American."14To emphasize his point that American citizenship means less todaythan it used to, Spiro points to declines in the naturalization rate as amarker of "rational apathy" toward citizenship. 5 By "rational apathy"Spiro means that there is little utility in becoming a citizen when thedistinctions between U.S. citizens and the rest of the world arebecoming fewer and fewer. Because his project is not to reformcitizenship law, but rather to demonstrate that the importance ofcitizenship is diminishing, Spiro offers no suggestions for improvement.He simply takes it as further proof that his thesis is sound.On one level, Spiro's critique of U.S. citizenship law and its methodsfor defining citizenship status is perfectly accurate. His examples andhypotheticals effectively support his case that the current system restson arbitrary and archaic definitions of citizenship that can, when takento the extreme, offer answers that defy logic. Why, indeed, should thechildren of tourists who have no intention of returning to the UnitedStates be considered lifelong citizens while hard-working undocumentedlaborers who pay their taxes are effectively barred from that samestatus? Spiro makes a convincing case that such unsatisfactory resultshave their roots in globalization and that the structure of citizenshiplaw was created without regard for such processes. His observationswould make an effective introduction to a proposal to amend U.S.citizenship law.But that is not Spiro's goal. He hopes to demonstrate that the statusof citizenship itself is becoming obsolete and, along with it, the role ofnations as the primary organizational bodies in the global community.16Because this view is somewhat unconventional, his argument that U.S.citizenship laws are flawed is unlikely to convince the average reader.For one thing, Spiro focuses exclusively on the uncommon scenarios inwhich the failures of citizenship law become obvious, while ignoring thevast majority of U.S. residents who do fall into the categoriesestablished by the current system. It is unreasonable to call intoquestion the practicality of an entire system by presenting only the rarefailures on the edges of the law's applicability.Another serious flaw in Spiro's reasoning relates to his claim that"[o]nce everyone is an American, no one is an American." This14. Id. at 52 (emphasis in original).15. Id. at 58.16. Id. at 4-6.17. Id. at 52.595INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1observation presupposes that the United State's only valuable asset isits uniqueness from the rest of the world, particularly with regard to itspolitical philosophy. To begin with, Spiro greatly exaggerates the extentto which the rest of the world has embraced an "American" style ofconstitutional democracy. But even assuming arguendo that everycountry is on the verge of adopting such a form of government, it is hardto see how this would devalue U.S. citizenship. The value of the U.S.political experiment is not found in its status as an experiment, butrather in the substantive values that it represents, and these remainvaluable even in a world where everyone has adopted them. It could bejust as easily observed that once everyone is an American, everyone isan American. It does not follow that once the United States is no longerthe sole refuge for those who desire representative constitutionaldemocracy that citizenship as a status fails to meaningfully describe theU.S. community.Another line of Spiro's argument centers on the benefits providedand the duties required of citizens. He begins by asserting that-juryduty aside-there are no real duties associated with citizenship.18Military service, no longer obligatory with the demise of the draft, isshared by citizens and non-citizens alike, and taxes are based onresidence rather than citizenship.' 9 This revelation will probably not bethat surprising to most readers, but Spiro goes on to argue that thebenefits traditionally associated with citizenship are similarlyinconsequential when compared to those held by non-citizens. 20 Spiropoints out that this has not always been the case, citing a long list ofhistorical discrimination against non-citizens, from occupationalrequirements to property ownership restrictions. 21 But as the UnitedStates has become more inclusive and discrimination of this kind hasbecome increasingly disfavored, Spiro argues, the distinctions betweencitizens and non-citizens, in terms of benefits, have greatly decreased, tothe point of being insufficient as incentives to seek citizenship. 22The first potential benefit Spiro addresses is "locational security," orthe freedom to remain in U.S. territory without the threat of removal. 23This right, Spiro asserts, is not unique to citizens, but is afforded tocitizens and legal aliens alike.24 Even illegal aliens are not asdisadvantaged in this respect as is popularly believed, Spiro argues,18. Id. at 82.19. Id.20. See id. at 89-91.21. Id. at 84.22. See id. at 91, 95-97.23. Id. at 85-88.24. Id. at 86.596A REVIEW OF BEYOND CITIZENSHIPbecause, as a practical matter, the government lacks sufficient resourcesto pursue and enforce the law against more than a small minority ofaliens residing illegally in the United States.25 He makes the point that"[olne can live in the United States as an 'illegal' alien with little fear,on a day-to-day basis, of removal."26 Spiro's point is that in terms oflocational security, legal (or at least stable) residency, not citizenship, isthe threshold at which practical rights attach.Second, Spiro turns to federal benefits and their availability to non-citizens. In spite of a 1996 law that threatened to deprive many non-citizen aliens of federal welfare benefits, Spiro points out that manysocial benefits are still available, like food stamps and emergencymedical care. 27 Again, Spiro's point in this section is that while gaininglegal residency may be essential in becoming eligible for certainbenefits, legal residency is not citizenship. 28 Citizenship as a status addslittle, in this context, to the rights of the individual and is thus not animportant distinction.The third category of privilege that Spiro discusses is the right toparticipate in the political process. Here, at last, it seems that thedistinction between citizens and non-citizens is perfectly clear-cut:citizens can vote and run for office, but aliens cannot. Spiro, however,offers a different point of view. He identifies two ways in which hebelieves non-citizens can participate meaningfully in the political worldof the United States. First, virtually all aliens, and citizens, belong, onsome level, to civil society organizations and interest groups. 29 Second,"aliens enjoy powerful advocates in the form of their homelandgovernments." 30 According to Spiro, these two paths by which non-citizens can gain access to the political system serve to compensate fortheir disenfranchisement. 31Spiro's section on the benefits and duties attached to citizenshipcontains both his strongest and his weakest arguments. His overallpoint-that legal residency rather than citizenship is the meaningfulstatus to which many benefits attach-is well taken and certainly isstrong support for his central thesis regarding the weakening ofcitizenship and nationhood. It is true that the less one has to gain frombecoming a citizen rather than simply obtaining legal residency, the lessincentive there will be to take that step. One response to this line of25. Id. at 88.26. Id.27. Id. at 89-91.28. Id. at 91.29. Id. at 93-94.30. Id. at 94.31. Id.597INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1reasoning is that it suggests a deficiency, not with the entire notion ofcitizenship, but rather with the way U.S. law allocates benefits to itscitizens. Even so, Spiro's broader argument in this section is successful.Some of Spiro's underlying assertions, however, are less strong. Inthe context of locational security, for instance, he seems to confuseobjective freedom with freedom from fear. It may well be the case thatinefficiencies in the U.S. immigration enforcement regime are such thatthe average undocumented alien has little chance of being apprehendedand deported on any given day. But it is questionable whether thisreally means that undocumented aliens live "with little fear, on a day-to-day basis, of removal."32 Removed from theory, practical security andfreedom from fear of removal are not related in the ways that Spirosuggests. In addition, his observations regarding the political power ofnon-citizens are less than convincing. It is not clear that membership ina broad political block with many and varied political agendas, such as aracial or ethnic group, can serve as a satisfactory substitute for theopportunity to vote and hold public office. Such a substitute is obviouslyinsufficient for someone whose views are not aligned with the majorityposition of the group. Neither is it the case that an alien's homelandgovernment can fill this void as the powerful advocate Spiro envisions.In many cases, an alien's homeland government is not even powerfulenough to control the social and political situations in its own country,let alone apply meaningful political pressure on the U.S. politicalsystem to protect the rights of its diaspora. In this way, Spiro'sargument about the distinctions between citizenship and legal residenceis weakened by the questionable logic of its underpinnings.The final section of this review addresses Spiro's suggestions for afuture in which citizenship and nationhood are no longer the primarysignifiers of global community. Spiro suggests that other associationsand relationships will serve as the centers of community and the forumsfor public issues in such a future.33 Religions, corporations, and evengated communities are among the organizations that Spiro anticipatescould fill this void.34 The goal of Spiro's discussion is, in his own words,"to demonstrate that the state is not the only game in town. There isnothing categorically different about state regulations; the state is justanother (albeit powerful) form of association."35Spiro sees a place for non-state organizations in just about everyaspect of future public life, including security, redistribution of assets,32. Id. at 88.33. Id. at 137, 156-57.34. Id. at 141-42.35. Id. at 148.598A REVIEW OF BEYOND CITIZENSHIPand even everyday rights and responsibilities. 36 Religions often placemore onerous restrictions on behavior than any state-imposed laws.3 7Private contractors are already employed in complex securityarrangements, including deployment overseas. 38 Insurance companiesand other private associations, such as family networks, religions,corporations, or other non-state entities, emulate social welfareservices.39 It seems that at least some part of the groundwork for Spiro'sstateless and citizen-less future has already been laid.At this point, the reader may begin to wonder what this discussionof privatization has to do with citizenship. Spiro's answer is that theseprivate organizations and associations can do what U.S. citizenship nolonger can: discriminate and exclude. 40 Throughout his book, Spiroargues that to maintain a cohesive identity, citizenship must be able to"set the terms of admission and for expulsion."41 This is not to suggestthat Spiro is advocating greater discrimination. His argument is simplythat as U.S. citizenship becomes more inclusive, people will come to relyon private organizations to define community and identity.42In his final discussion, the ambitious nature of Spiro's thesisbecomes clear. Spiro observes that the framework for his vision of thefuture is already taking shape around us. However unlikely his portraitof a world in which decisions of governance and social order arecompletely divorced from the state, and citizenship is of less importancethan membership in a private organization, its foundations are notcompletely implausible. Although not all of Spiro's arguments areconvincing and some are seriously flawed, his thesis is thoughtprovoking in a way that only an ambitious and controversial book canbe. While it may not signal the death of citizenship and statehood as weknow them, Spiro's book is worth reading for its unique perspectives onthe effects of globalization and the changing nature of citizenship.36. Id. at 138-44.37. Id. at 141.38. Id. at 140.39. Id. at 144-48.40. Id. at 156-57.41. Id. at 156.42. Id. at 156-57.599

A Review of Beyond Citizenship: American Identity After Globalization, by Peter J. Spiro

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A Review of Beyond Citizenship: American Identity After Globalization, by Peter J. Spiro

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