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Citizenship in a liberal state commonly embodies two relationships. A vertical relationship runs between citizen and state, circumscribing the group of humans who can exact the highest protection from the state and who owe it the most onerous duties. A horizontal relationship connects citizens themselves, developing a community of people who share loyalties, civic allegiance, and national character. On a basic level, these relationships correspond respectively to the "state" and the "nation" that make up the "nation-state." The United States combines the two interests in one social status because of the judgment that, although all human beings are entitled to certain basic rights of process and fair treatment, only people who have demonstrated an "affective" (horizontal) tie to the "nation" should claim the (vertical) rights and duties of the "state." [6]
The United States has a longstanding policy of encouraging naturalization, but not for functional reasons.[7] Unlike many countries, it does not gain any vertical advantage, such as military service or increased tax revenues, from higher naturalization rates. [8] In fact, it gains more vertical duties: more visas for relatives, more public job applicants, and (after 1996) more potential applicants for welfare. Rather, the policy views naturalization as important because it fosters "participation in and commitment to our civic life," makes people "public-spirited in the fullest sense," and creates a "meaningful, emotionally satisfying community." [9] Encouraging naturalization is a pursuit of the horizontal relationship. [10] Much hostility to dual citizenship stems from a perceived devaluation of the horizontal relationship [11] and not from the rare conflicts of vertical duty that dual citizenship can impose.[12] European countries that use citizenship as a vehicle for nation-building usually abhor dual citizenship for the same reason. [13]
Nationality is no less meaningful merely because it describes a membership that is often expressed in rhetorical or emotional terms. [14] It is obviously difficult to give determinate content to a common national identity in a liberal democracy; indeed, the greatest virtue of liberal democracy over theocratic or autocratic regimes is its emphasis on individual freedom of belief. One can be "American" and still disagree with government policies, with the dominant majority, or with the Supreme Court; being "American" involves a tolerance and even an encouragement of political disagreement. Perhaps all attempts to define nationality are controversial because they can reflect a political bias. [15] A minimalist view of American nationality, however, is that an essential part of "being American" is a continuing personal involvement at any level in the democratic and federal principles of the United States and a belief that those principles are at least potentially the best available system for the organization of human society.[16]
This Note argues that the United States cannot encourage qualities of "national" identity -- notably a conscious horizontal allegiance to the U.S. polity -- using the legal tool of functional citizenship. Nationality and functional citizenship can only coexist effectively within one concept if national sovereignties do not overlap -- that is, when migration is low and no two sovereigns control the same population. The criteria of citizenship are usually based exclusively on birth characteristics that determine both whether one will enter the polity and whether one will have a personal tie to the state, either by virtue of life within it or acculturation by one's parents.[17]
When a sovereign grants full functional citizenship to an individual with a horizontal relationship to a different community, however, the individual's national identity is not necessarily the same as the passport she holds. In a world of increased migration, the spiritual and emotional elements of membership need not be coextensive with the functional. Writers who lament the decline of U.S. citizenship's nonfunctional virtues underscore this point when they romanticize noncitizens' affinity for the United States.[18] Such tales are effective because they highlight the wondrous love of patria that the United States can inspire even in new immigrants, yet they demonstrate that such patriotism does not spontaneously appear upon entrance into the functional polity and disappear upon expatriation.[19]
Likewise, functional citizenship does not automatically reflect nationality. Alienage distinctions may encourage naturalization not because of a budding horizontal relationship, but because of the promise of a complete vertical relationship, a "functional" citizenship rather than an "affective" one.[20] A survey of recently naturalized citizens under newly liberalized provisions in the Netherlands revealed this trend, [21] and the recent rush to naturalize in the United States confirmed it.[22]
A solution, then, to the tension between nationality and functional citizenship is to decouple them. An interesting example of decoupling is at work in the European Union (EU), a supranational organization that grants the political and legal rights[23] of functional citizens to the nationals of all member states but does not purport to install a single overriding national identity.[24] EU citizenship is thus a decoupled functional citizenship that intentionally lacks nationality, hence the Treaty of Maastricht's careful statement that "[e]very person holding the nationality of a Member State shall be a citizen of the Union." [25] Some commentators argue that EU citizenship constitutes a starting point for the effort "to build the European Union as a nation," but this has yet to be accomplished or even formally acknowledged.[26] If EU nationality does become a reality, it would still develop separately from functional EU citizenship.[27]
Some individual European states have also actively decoupled citizenship and nationality. A prime example is the Netherlands, which formerly required renunciation of prior citizenships upon acquisition of Dutch citizenship and loss of Dutch citizenship upon naturalization elsewhere.[28] This policy created inequalities between citizens of countries like Turkey and Yugoslavia and native-born Dutch citizens: the former could be dual citizens because their home countries would not expatriate them, the latter could not.[29] The Dutch government changed the law in 1992 to allow plural nationality generally, arguably reflecting "a shift in [its] view towards the concept of nationality."[30] Although the Dutch government had acknowledged the existence of a "subjective element" inconsistent with dual citizenship, the amendment indicated that this element was not amenable to official verification.[31] Membership in the polity was thus conditioned solely on objective criteria, "within which it [was] left to the applicant to decide to which degree there is a subjective allegiance to the Netherlands."[32]
This last sentence reflects the Dutch government's desire that the applicant consciously decide the extent of his allegiance to the Netherlands. An officially prompted "moment of choice," though not outcome-determinative, nonetheless occupies an important position in the Dutch citizenship debate.[33] This citizenship structure allows the state to encourage emotional ties to the state while leaving the ultimate assessment of nationality entirely to the applicant.[34]
Finally, some countries embrace theories of national multiculturalism that require not only decoupling citizenship and nationality, but also foreclosing any official involvement in the stimulation of nationality. For example, in 1972 the Australian government explicitly rejected its policy of immigrant "assimilation" and "declared that Australia was a multicultural country." [35] This declaration meant that being Australian carried no implications of homogeneity of language, culture, or religion.[36] Note, however, that Australian multiculturalism has not altered the requirements that naturalized citizens commit to the Australian Constitution and laws and possess knowledge of the English language. These remain the functional duties of citizenship. Multicultural policies require a fundamental change in the composition of the nation, but not in the duties that the citizens and state owe each other.[37] Functional citizenship might thus be seen as integration into the polity, contrasted with nationality as an assimilation.
This discussion yields several key points relevant to U.S. citizenship. First, the policy that benefits and protections should extend only to certain individuals can result in a system of functional citizenship, but does not require nationality to be a criterion. Second, a state cannot effectively ensure that all of its functional citizens are nationals, even though it may encourage them to be. Third, decoupling nationality and functional citizenship need not eliminate naturalization criteria that assess an individual's demonstration of an ability to live effectively and peaceably in the state's legal atmosphere.[38] Finally, decoupling nationality and functional citizenship could accommodate an officially prompted "moment of choice," at which naturalized citizens consider their subjective, horizontal relationship to their new state. In other words, the state may foment a sense of national identity independently of the structure of functional citizenship.
Decoupling has become necessary in the United States because of the emphasis U.S. law places on the functional aspect of U.S. citizenship. Part III examines the nature of this emphasis.
[]6 Most European countries have made the same judgment. See Rainer Bauböck, Preface to FROM ALIENS TO CITIZENS: REDEFINING THE STATUS OF IMMIGRANTS IN EUROPE vii, ix (Rainer Bauböck ed., 1994). The major difference was that the horizontal relationship in European "nations" was ethnically based. See id.
[]7 See Hampton v. Mow Sun Wong, 426 U.S. 88, 105 (1976).
[]8 Cf. Simone Tan, Note, Dual Nationality in France and the United States, 15 HASTINGS INT'L & COMP. L. REV. 447, 461 (1992) (explaining that France adopted birthright citizenship partly in order to ensure greater participation in the national defense).
[]9 Peter H. Schuck, Membership in the Liberal Polity: The Devaluation of American Citizenship, in IMMIGRATION AND THE POLITICS OF CITIZENSHIP IN EUROPE AND NORTH AMERICA 51, 62 (William Rogers Brubaker ed., 1989).
[]10 See, e.g., Doris Meissner, Putting the "N" Back into INS: Comments on the Immigration and Naturalization Service, 35 VA. J. INT'L L. 1, 11 (1994) (stressing naturalization's importance in building a "sense of community [that] makes us more than a country: [one that] makes us a nation"); U.S. Comm'n on Immigration Reform, Executive Summary, 1995 Legal Immigration Report to Congress, STAN. L. & POL'Y REV., Summer 1996, at 11, 19 ("Naturalization is the most visible manifestation of civic incorporation."); Nathan Glazer, The Hard Questions: The Citizenship Boom, NEW REPUBLIC, Apr. 7, 1997, at 25, 25 ("We want [aliens] to become citizens because they want to bind themselves to the United States out of heartfelt agreement with our finest commitments -- to the liberty of the individual, to the fullest measure of equality in the status of individuals, to ordered democratic government.").
[]11 See, e.g., GEORGIE ANNE GEYER, AMERICANS NO MORE 68 (1996) (stating that dual citizenship "dilut[es] a person's commitment and mak[es] citizenship akin to bigamy").
[]12 The most oft-cited problem is the conflict of diplomatic protection. States may espouse international claims on behalf of their citizens, but a conflict arises if a state wishes to espouse an international claim against another state on behalf of an individual who is a citizen of both states. The international law of "dominant nationality" generally resolves such situations. See United States ex rel. Mergé v. Italian Republic, 14 R.I.A.A. 236, 246-48 (Italian-U.S. Conciliation Comm'n 1955).
[]13 See Dilek Çinar, From Aliens to Citizens. A Comparative Analysis of Rules of Transition, in FROM ALIENS TO CITIZENS, supra note 6, at 49, 54 ("[T]o maintain the principle of avoiding dual citizenship by the German Government seems to be a public affirmation of the exclusiveness of membership in the German nation-state rather than an attempt to avoid serious problems caused by dual citizens.").
[]14 See Stephen H. Legomsky, Why Citizenship?, 35 VA. J. INT'L L. 279, 295 (1994); see also Schuck, supra note 9, at 65 (calling nationality "a focus of political allegiance and emotional energy on a scale capable of satisfying deep human longings for solidarity, symbolic identification, and community"); Cathérine Wihtol de Wenden, Citizenship and Nationality in France, in FROM ALIENS TO CITIZENS, supra note 6, at 85, 86 (describing nationality as "a community of ideas, interests, meaningful ties, remembrances, hopes").
[]15 See Kiyoko Kamio Knapp, The Rhetoric of Exclusion: The Art of Drawing a Line Between Aliens and Citizens, 10 GEO. IMMIGR. L.J. 401, 428 (1996) (discussing questionable and unsatisfactory historical attempts to characterize "the American character").
[]16 See Glazer, supra note 10, at 25; see also U.S. Comm'n on Immigration Reform, supra note 10, at 18 (defining "Americanization" as "the cultivation of a shared commitment to the American values of liberty, democracy, and equal opportunity"); Note, supra note 2, at 1040 ("[O]ne of the only bases of American national unity is adherence to a political value system . . . .").
[]17 A decision to limit functional citizenship according to class, gender, or race means that individuals who share a national's affection and allegiance for the community are unjustly excluded from its functional protections. Nonetheless, all citizens remain eo ipso nationals, although the reverse is not true.
[]18 See, e.g., GEYER, supra note 11, at 115-17 (summarizing EDWARD EVERETT HALE, THE MAN WITHOUT A COUNTRY (Chapman Billies 1994) (1863)).
[]19 The observation that aliens may be more loyal, politically interested, or community-oriented than citizens, yet still legitimately remain ineligible or unwilling to naturalize, see Legomsky, supra note 14, at 295-96, proves the same point.
[]20 Sometimes, the state may also pursue the vertical relationship more than the horizontal. See Eric Schmitt, Vast Negligence Reported in Granting of Citizenship, N.Y. TIMES, Feb. 25, 1997, at A1 (citing a Republican accusation that the Clinton administration's "Citizenship USA" program had a "goal of naturalizing 1.3 million people in time to vote in November"). One author indicates that the naturalization test itself reflects a prioritization of functional citizenship over nationality. See GEYER, supra note 11, at 3-4 (lamenting the fact that the only acceptable responses to the question "Name one benefit of being a citizen of the United States" were functional rights of citizens).
[]21 See Ruud van den Bedem, Towards a System of Plural Nationality in the Netherlands. Changes in Regulations and Perceptions, in FROM ALIENS TO CITIZENS, supra note 6, at 95, 102 (reporting that most respondents did not "feel" Dutch and cited "improvement of the legal position as the main motive to opt for Dutch nationality").
[]22 See Jacobs, supra note 5; Mears, supra note 5.
[]23 The principal rights are freedom of movement, freedom of employment, and the right to run for office and vote in European parliamentary elections. See JOSEPHINE SHAW, EUROPEAN COMMUNITY LAW 45, 305 (1993).
[]24 See TREATY ON THE EUROPEAN UNION art. B, Feb. 7, 1992, O.J. (C 224) 1, 5, [1992] 1 C.M.L.R. 719, 727 (identifying the purpose of EU citizenship as "strengthen[ing] the protection of the rights and interests of the nationals of [the EU's] Member States").
[]25 Id. art. 8(1). The Maastricht language reflects a European theory of a formal split between the horizontal and vertical components of citizenship. See de Wenden, supra note 14, at 88; van den Bedem, supra note 21, at 102. The vertical, "politico-legal" component is called "citizenship," and the horizontal, "historico-biological sense of `belonging to a nation'" corresponds to "nationality." Id. at 102. Not all European languages make this distinction as easily as English, but this has not prevented critical analysis of the dual nature of membership. See id. at 106 (stating that the Netherlands has incorporated the "dual meaning of nationality" despite the Dutch language's single term Nederlanderschap, "the status of being Dutch"). To avoid confusion, this Note refers to the politico-legal (vertical) relationship as "functional citizenship." Cf. Marco Martiniello, Citizenship of the European Union. A Critical View, in FROM ALIENS TO CITIZENS, supra note 6, at 29, 34 (calling European Union citizenship "functional" because it "formalizes a set of . . . rights").
[]26 Martiniello, supra note 25, at 38.
[]27 The EU's decoupling is not complete, however. Functional EU citizenship does not depend exclusively on a demonstrated willingness to assume the status of citizenship. Rather, article 8 of the Maastricht treaty derives EU citizenship from nationality of a member state, which the member states remain free to define. One commentator thus sees EU citizenship as reinforcing nationalist sentiment in the particular member states, given that "one can be a European citizen only if one is of French, Belgian or German nationality, for example." Id. at 35.
[]28 See id.
[]29 See van den Bedem, supra note 21, at 97. This situation is identical to U.S. law before Afroyim v. Rusk, 387 U.S. 253, 267-68 (1967). See infra TAN 79.
[]30 van den Bedem, supra note 21, at 98.
[]31
Id. at 99.
[]32 Id.
[]33 See id. at 97, 99.
[]34 So far, however, the Dutch government does not seem to have grasped the opportunity to stimulate emotional bonds to Dutch society. See GEYER, supra note 11, at 177.
[]35 Stephen Castles, Democracy and Multicultural Citizenship. Australian Debates and their Relevance for Western Europe, in FROM ALIENS TO CITIZENS, supra note 6, at 3, 7.
[]36 See id.
[]37 Multiculturalism need not stop there, of course. Canadian multiculturalism, for example, views culture as group-based, which gives rise to new state duties and corresponding group rights, such as affirmative action and heightened minority participation in political endeavors. See id. at 18 (contrasting Canadian and Australian multiculturalism).
[]38 To the extent that these criteria impose burdens on new citizens, such as a requirement of proficiency in a national language, they are nonetheless permissible. See Joseph H. Carens, Cultural Adaptation and Integration. Is Quebec a Model for Europe?, in FROM ALIENS TO CITIZENS, supra note 6, at 149, 166-74.
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