Bosniak, Linda

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Fordham University School of Law

Fordham Law Review Volume 75 Issue 5 Article 5 2007 Varieties of Citizenship Linda Bosniak Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Linda Bosniak, Varieties of Citizenship, 75 Fordham L. Rev. 2449 (2007). Available at: https://ir.lawnet.fordham.edu/flr/vol75/iss5/5 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. Varieties of Citizenship Cover Page Footnote Professor of Law, Rutgers Law School. This is a slightly edited version of the remarks I delivered at the New Dimensions of Citizenship Symposium at Fordham Law School. Many thanks to Jennifer Gordon and Sheila Foster for organizing a stimulating symposium, and to the editors of the Fordham Law Review for helpful assistance in preparing the remarks for publication. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol75/iss5/5 VARIETIES OF CITIZENSHIPLinda Bosniak*During this Symposium, we will use the concept of citizenship to talkabout all kinds of things: about the enjoyment of rights of various kinds,about political and civic engagements, about experiences of collectiveidentity and solidarity, and about the possession of formal nationalmembership status or nationality. As you can see, "citizenship" is a termthat does a lot of work-perhaps too much work. However, as requested bythe organizers, I am going to address myself to the last understanding ofcitizenship I have mentioned: citizenship in the formal national statussense. I will do that by talking about a class of people who lack that statusby legal definition-the class the law calls aliens. Understanding thecondition of aliens is obviously important for practical reasons, given that,in this country and all over the world, increasing numbers of people findthemselves living outside of their countries of nationality withoutcitizenship status, often to their disadvantage. But attention to alienage isalso theoretically important because it is a category in which differentunderstandings of citizenship converge in challenging ways. Alienage is"about" citizenship as nationality, but it is also just as much "about"citizenship in its other registers.Consequently, I will consider the relationship among the variousunderstandings of citizenship as they converge in the alienage setting. Verybriefly, I will argue that alienage is a site where citizenship's contrastingnormative impulses-universalist and exclusionary-meet and compete inways which citizenship theory as a whole needs to attend to.My comments are mainly conceptual, but they are motivated by twoconvictions: first, that mainstream citizenship theory (includingconstitutional theory) is often too internally focused and needs to pay moreattention to national borders; and second, that the operation of bordersimplicates some of the deepest questions of equal and democraticcitizenship that we face today.To set the stage, I want to say a word about citizenship's analyticalorientation. Citizenship is an idea--or an optic-that looks both inward andoutward. On the one hand, we use the term to talk about social and political* Professor of Law, Rutgers Law School. This is a slightly edited version of the remarks Idelivered at the New Dimensions of Citizenship Symposium at Fordham Law School. Manythanks to Jennifer Gordon and Sheila Foster for organizing a stimulating symposium, and tothe editors of the Fordham Law Review for helpful assistance in preparing the remarks forpublication.2449FORDHAM LA W REVIEWrelationships existing among people already assumed to be nationalcommunity members, at least nominally. When we talk about struggles for"social citizenship," the commitment to achieving "equal citizenship," orthe demands of "democratic citizenship," we are usually talking about thenature and quality of relations among those understood to be part of somepre-constituted national society. (That is not to say we cannot talk aboutcitizenship across borders-I think we can-but the idea of transnationalcitizenship remains marginal' and my current focus is on mainstream legaland political theory.)Yet although citizenship is often inward-looking, it also sometimes facesoutward as well. After all, we also use the term "citizenship" to talk aboutborders-the borders that divide this membership community from theworld beyond. This is the citizenship of passports and nationality; it is thecitizenship which designates some people as national members and othersas national outsiders and limits the entry of those outsiders into the nationalterritory.The fact of citizenship's dual analytical orientation can often beconfusing because it is not always clear which sort of "citizenship" is atstake in any given conversation. For instance, when you hear someonetalking about "citizenship rights," it is not always apparent what the term'sreference is. Are these the rights that we understand individuals in liberaldemocratic societies to be entitled to-the rights that are denied to those wecall "second-class citizens," or are they the rights that a person possesses byvirtue of holding the legal status of citizenship-the rights denied to aliens?Sometimes these are the same thing, but not always. Think of Plyler v.Doe. The educational right at issue was surely a right of "socialcitizenship," yet, of course, the specific beneficiaries involved were statusnoncitizens-undocumented noncitizens, for that matter.2But beyond this analytical confusion, citizenship's dual orientation alsopresents us with certain challenges at the level of normative theory.Implicit in any discussion of citizenship is the question, "Who?" Whoexactly is entitled to claim citizenship? Who are citizenship's rightfulsubjects? When we ask these questions, it turns out that the inward-lookingunderstandings of citizenship and the border-focused understandings tend toprovide very different answers.In its inward-looking mode, citizenship is usually understood to stand forthe inclusion and recognition of "everyone." This is what the politicaltheorist Iris Marion Young called the "ideal of universal citizenship."'3 It is,notoriously, a failed or unachieved universality in many ways. Butuniversalism in the form of liberal-egalitarianism-in the form of an1. See generally Linda Bosniak, Citizenship Denationalized, 7 Ind. J. Global Leg. Stud.447 (2000).2. Plyler v. Doe, 457 U.S. 202 (1982).3. Iris Marion Young, Polity and Group Difference: A Critique of the Ideal ofUniversal Citizenship, 99 Ethics 250 (1989).2450 [Vol. 75VARIETIES OF CITIZENSHIPinclusionary, anti-caste ethic-is assumed to be the relevant normativebenchmark.In contrast, citizenship in its border-conscious sense is usuallyunderstood to entail a necessary degree of exclusivity and boundedness.Citizenship of a nation presumes the existence of national outsiders; and, asan institution, citizenship works to keep many people out. In this context,exclusion is not apologized for; it is citizenship's normative core.Now, if I were to ask you how it can be that citizenship stands for bothuniversalism and boundedness simultaneously-is there not a contradictionhere?-you might well respond that there is no paradox at all. It is simply amatter of distinct jurisdictions. Citizenship stands for inclusion of personsinside the community and exclusion of strangers at the community's edges.These contrasting normative orientations apply in different spheres and areperfectly complementary.This conception of citizenship as jurisdictionally divided, as hard-on-the-outside and soft-on-the-inside, is widespread and makes a certain intuitivesense.4 Yet, it is problematic for at least two reasons. For one thing (and Ican only gesture at this now), it raises crucial questions about the legitimacyof citizenship's hard outer shell. From a liberal egalitarian perspective, whyshould we accept national exclusion at all?Moreover, even if we concede the legitimacy of borders, there is anotherproblem with the account: Its empirical premises about jurisdictionalseparation are untenable. The fact is that citizenship's exclusionarycommitments are not always confined to the community's territorial edges;rather, citizenship's "border" operates on the territorial inside as well.Indeed, it is the internalized border that defines aliens as aliens, thatimposes conditions on their presence, and that claims the authority to detainand deport them in various circumstances. It is also the internalized borderthat is invoked to justify discriminatory and marginalizing treatment ofnoncitizens, or aliens, in a variety of contexts. So the border is not just "outthere"; it is in here as well.On the other hand, it is important to understand that aliens are not whollydefined by this internalized border. They are also sometimes treated assubjects of the universalist commitments that animate citizenship in itsinward-looking mode. In this country and elsewhere, a great manyimportant rights-constitutional rights, but also common law rights andstatutory rights-are extended not merely to status citizens but to allterritorially present persons, including aliens. That is true whether they arehere legally or not. For this reason, the apparently self-evident notion that"citizenship is for citizens" is not always true: Noncitizens are also thesubjects of citizenship in some respects.What I want to emphasize, therefore, is that alienage is a site wherecitizenship's contrasting normative projects intersect-it is a space of4. For extensive discussion of this conception of citizenship, see Linda Bosniak, TheCitizen and the Alien: Dilemmas of Contemporary Membership (2006).2007] 2451FORDHAM LAW REVIEWjurisdictional overlap (or concurrent jurisdiction, if you will). And in thisspace, these normative projects endlessly compete for primacy. As it turnsout, the border very often prevails, because it has de facto trumping power:The possibility of deportation keeps many noncitizens, especially theundocumented, from enforcing the rights that they are formally guaranteed.Additionally, the border is often accorded a kind of institutionalizedtrumping. power through the so-called plenary power doctrine inimmigration law, pursuant to which the government's border controlauthority takes precedence over the rights of individuals. Still, the scopeand impact of the border are not absolute: They remain constrained, tosome degree, by operation of equality norms associated with citizenship inits universalist mode.Understanding this interplay helps us to understand the push and pull ofsome of our current debates over the status of immigrants, from drivers'licenses to disaster relief to local police enforcement of immigration law.These debates are invariably structured by disagreements over thelegitimate scope of the national border as a regulatory domain. At stake isthe question of how far into the lives of aliens the border can, and shouldextend. Advocates for immigrants strive to insulate noncitizens from theaction of the border in the name of equality and community-to buildfirewalls against the internal operation of the border throughnoncooperation policies, non-reporting policies and similar efforts.Meanwhile, anti-immigrant activists do everything they can to tear thatinsulation away and give the border full reign. 5I began this essay by saying that paying attention to alienage istheoretically important for citizenship scholarship as a whole. It isimportant analytically for some of the reasons I have described, but it isalso important for normative reasons-and I will conclude with a word onthat. The status of aliens is, I believe, inherently challenging for citizenshiptheory. It is challenging because, on the one hand, the kind ofmarginalization experienced by aliens often appears unjust from within anequal citizenship framework. But it can also sometimes appear necessary,since (the argument goes) without the operation of national boundaries,there could be no functioning political community within which universalcitizenship can be pursued. On this view, we can certainly work to makecitizenship status easier to obtain, and we can make sure noncitizens receiveimportant basic protections to the extent they remain noncitizens, but at theend of the day, not everyone who sets foot in the country is going to begranted immediate and automatic citizenship, and so the exclusions inherentin alienage are, to some extent, inescapable.I recognize the force of this argument-but I do not think that can be theend of the conversation. We know that historically, the ideal of universal5. See Linda Bosniak, Confidentiality Policies, Reporting Requirements, andEnforcement Mandates: Contending Approaches to Unauthorized Immigration, in DebatingImmigration (Carol Swain ed., forthcoming 2007).[Vol. 7524522007] VARIETIES OF CITIZENSHIP 2453citizenship has served as a powerful resource for emancipatory struggles byvarious outsider groups. The ideas of equal citizenship and democraticcitizenship have been invoked to support breaking down social barriers-barriers whose dismantling originally seemed unthinkable. Today, thequestion we are faced with is how far this universalizing dynamic canextend. Can it extend, in particular, to the national border itself?The conventional answer is that the border lies beyond citizenship'suniversalist range; the border frames the map but can not itself be on it. Iam attracted to a different reading, one that views national borders as inneed of dismantling like other boundaries that were once viewed asinevitable. On this alternative reading, we would deploy citizenship againstitself, we would challenge national restrictions on movement andmembership by invoking universal conceptions of citizenship againstexclusionary understandings. I know this will sound utopian to many ears,but citizenship has always had a fundamentally aspirational quality. In fact,it is precisely this quality which, I believe, has made the concept so deeplycompelling to so many-activists and scholars alike.Notes & Observations

Varieties of Citizenship

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Varieties of Citizenship

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