Jean Monnet Center at NYU School of Law

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IV. The Nationality of Citizenship

Crafting a decoupled scheme of U.S. membership involves a division of the current naturalization requirements. From the functional perspective, the requirements of a certain period of permanent residence, knowledge of history, and good moral character represent the basic "duties" of citizens to live peaceably in the United States in obedience to its laws and customs. For native-born citizens, receptivity to these "duties" may be inferred from birth within the territory or to citizen parents. Competence in English contains strains of both functional citizenship, in that it concerns one's ability to live productively within the country, and nationality, in that language is an integral part of national culture and personal identity. However, given that the law requires only competence as opposed to fluency in English, it concerns the vertical bond more than the horizontal.[84]

The oath of allegiance, in contrast, is an obvious incident of nationality.[85] If associated with functional citizenship's political concepts of right and duty, as it currently is, the oath does not achieve its purpose as a declaration of honest personal attachment. It remains at best a formality undergone for the benefits that the resulting status confers.[86] This does not mean that no naturalized citizens bear affection for the United States. The point is that such affection arises independently of the oath. It can arise upon acquisition of permanent residence, during the naturalization process, after naturalization, or never.[87]

Decoupling functional citizenship and nationality, however, would give definite meaning to the oath. If it carries no functional consequence, a solemn oath becomes an effective declaration of one's cultural attachment to a social entity; an application for nationality then takes on the quality of a voluntary religious conversion.[88] The national interest is in the individual's conscious choice to belong to the cultural, emotional, and spiritual community.[89] In order for nationality to express this choice in a meaningful way, there should be no incentive to obtain it. Rather, the state should encourage its voluntary adoption by developing the national spirit of community, equality, and solidarity outside the functional realm.[90]

Similar considerations should animate the situations of loss of functional citizenship and nationality. Functional citizenship, as the ultimate expression of a social contract, should be revocable only on the express demand of the citizen or the extreme neglect of the citizen's duty to the state. Nationality, in contrast, admits of two equally plausible treatments. A state might consider nationality a unique and exclusive status, thus incorporating the historical notion that each individual can have only one national allegiance.[91] Under this view, individuals lose nationality by subsequent actions evincing allegiance to another state. [92] Alternatively, a state may consider nationality a mechanism by which individuals may declare their personal identity within the global political spectrum, thus leaving open the possibility of multiple, single, or zero nationality. In this view, "denationalization" should occur only at the individual's instigation.

U.S. immigration law implicitly recognizes many of these considerations. This is most true in the area concerning loss of citizenship. A functional view of citizenship justifies expatriation -- the loss of all functional rights in and duties to the United States -- only in cases of formal renunciation, fraud in the acquisition of citizenship, or flagrant disregard for one's duties to the state, amounting to treason. The Immigration and Nationality Act (INA) incorporates these justifications,[93] but it also lists some actions based on concepts of nationality, such as naturalization in another state, allegiance to another state, and serving in another state's government.[94] The Supreme Court and Congress, by requiring that a specific intent to relinquish U.S. citizenship accompany the latter grounds, essentially transformed them all into "informal" voluntary renunciation grounds. This gradual increase in emphasis on the intent to relinquish citizenship is best explained as movement toward a doctrine of functional citizenship.[95]

The term "nationality" also exists in the INA, but its historical unimportance in U.S. law has left its relationship to citizenship somewhat ambiguous. "Nationality" and "citizenship" are clearly not interchangeable, however. The INA defines "nationality" as the quality of "owing permanent allegiance to a state."[96] Thus it has always been clear that not all nationals are citizens.[97] What is not clear is whether all citizens must be nationals. Consider, for instance, the expatriation statute: "A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality . . . ."[98] The statute mentions nationality six times, and citizenship not once. Strict construction of the INA thus contemplates people losing their "permanent allegiance to the United States," but does not indicate that these expatriates must also lose the benefits and burdens of U.S. citizenship laid down elsewhere in the Statutes at Large.[99]

We could dismiss this as sloppy drafting[100] -- indeed, most commentators tacitly do so by using the two terms interchangeably.[101] But the drafting reveals a way in which the decoupling of functional citizenship and nationality could become a reality in U.S. law. First, the currently obscure definition of "nationality" should be revised or reinterpreted to incorporate a notion of personal attachment and loyalty on a level distinct from the political loyalty already required of citizens. Second, Congress may (and, if it wishes to remain involved in the creation of national identity, should) enact a mirror image to 8 U.S.C. § 1408 providing that naturalized U.S. citizens who have not taken an oath of allegiance shall be citizens but not nationals of the United States. A separate section should provide for the option to take the oath of nationality at the time of naturalization or anytime thereafter. [102] That oath is the proper place for the current statute's personal abjurations and declarations of faith.[103]

These minor changes would vindicate the cultural aims of the expatriation statute also. The "nationality" grounds for expatriation,[104] which seemed harsh when they caused loss of citizenship and have been weakened by the government's embrace of a functional approach, retain their vigor as grounds for "denationalization" -- reflections of one's abandonment of unique cultural attachment. Congressional determinations that naturalization abroad or employment with a foreign government were inconsistent with a national's devotion to the United States but did not deprive her of the rights and duties of citizenship would be fully consistent with the Supreme Court's case law. Although this cannot explain the mysterious use of "nationality" and exclusion of "citizenship" in the expatriation provision, it uses this language to save the competing impulses in American citizenship law: the desire to avoid the harshness of depriving a citizen of her rights and the desire to foster the personal and cultural integration of new citizens into American society.

[]84 Nothing prevents the federal government from making functional citizenship more difficult to attain, such as by extending the residency requirement or eliminating birthright citizenship altogether. This measure would reduce the numbers of people eligible for the benefits of functional citizenship. See Note, supra note 2, at 1041-42. Yet merely decreasing the pool of aliens eligible for citizenship would not guarantee that new citizens possessed a unique allegiance to the United States. Only voluntary consent to nationality would accomplish this.

[]85 Not all of it is, however. Much of it is, in fact, superfluous. Permanent residents must already support and defend the Constitution and bear arms, perform noncombatant service, or "work of national importance . . . when required by the law." 8 U.S.C. § 1448(a)(1), (3), (5). The "nationality" elements of the oath are the renunciation and abjuration of foreign citizenship, see id. § 1448(a)(2), and the requirement "to bear true faith and allegiance" to the United States, id. § 1448(a)(4).

[]86 Cf. van den Bedem, supra note 21, at 101-03 (noting that naturalization in the Netherlands caused changes in formal status and political security, but no formal or cultural change). In a seminal alienage discrimination case, Chief Justice Burger argued that a state should not be obliged to license a permanent resident as an attorney "simply because of a recital of the required oath." In re Griffiths, 413 U.S. 717, 733 (1973) (Burger, C.J., dissenting). He was referring to the oath of admission to the bar and did not address the possibility that the naturalization oath can also be "simply" recited.

[]87 See Knapp, supra note 15, at 426 ("[I]t is unreasonable to equate the process of naturalization itself with some kind of enlightening opportunity.").

[]88 Cf. BENEDICT ANDERSON, IMAGINED COMMUNITIES 144 (rev. ed. 1991) (stating that belonging to a nation has "an aura of purity and disinterestedness"); id. at 5 (arguing that nationality is best treated "as if it belonged with `kinship' and `religion'").

[]89 See Schuck, supra note 9, at 65 (calling citizenship "a focus of political allegiance and emotional energy on a scale capable of satisfying deep human longings for solidarity, symbolic identification, and community"). Schuck also advocates what appears to be a declaration of nationality for natural-born citizens. See PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY 116-24 (1985).

[]90 A major source of national pride, especially among new citizens who are members of ethnic minorities, is the perceived willingness of their new country to accept them as full members. See, e.g., van den Bedem, supra note 21, at 103 ("[S]ome find it impossible to consider themselves `Dutch' as long as they are treated as foreigners.").

[]91 This view is responsible for the historical demonization of dual citizenship. This Note has shown, however, that this view really only justifies prejudice against dual nationality; there is no reason why one individual cannot have duties to and enjoy rights from multiple states. The fact that such duties may conflict in extreme circumstances -- the paradigmatic example being war between an individual's two citizenship countries -- makes the situation doctrinally difficult, but not insoluble. See Kawakita v. United States, 343 U.S. 717, 725, 733-36 (1952).

[]92 This could be a legitimate effectuation of the United States's stated but ineffectual ban on dual citizenship. See supra TAN 78; see also David A. Martin, The Civic Republican Ideal for Citizenship, and for Our Common Life, 35 VA. J. INT'L L. 301, 310 (1994) (advocating a presumption against multiple nationality because citizens should have "only one national affiliation," but apparently reserving the possibility of functional dual citizenship).

[]93 See 8 U.S.C. § 1481(a)(3), (5)-(7) (1994).

[]94 See id. § 1481(a)(1), (2), (4).

[]95 Two observations are relevant here. First, expatriation may still occur if the government can prove by a preponderance of the evidence an (informally expressed) intent to relinquish citizenship. See Vance v. Terrazas, 444 U.S. 252, 261 (1980). However, the State Department's presumption in favor of retention of citizenship, see supra note 81, if applied on its terms, could negate this factor. Second, Congress oddly requires a voluntary intent to relinquish citizenship even in situations of treason. See 8 U.S.C. § 1481(a)(7). This is neither required nor justified under a functional theory of citizenship, given that treason is by definition the intentional refusal to obey the law and remain at peace with one's citizenship country. This fundamental violation of the social contract justifies expatriation even if the traitor had no intent to give up his citizenship. Of course, the state may wish not to expatriate a traitor in order to retain jurisdiction to impose a more severe punishment. See Kawakita, 343 U.S. at 732, 745 (upholding a verdict of no expatriation and a death sentence for treason).

[]96 8 U.S.C. § 1101(a)(21). This distinction reflects the international law concept of nationality, which is the basis on which states may extend diplomatic protection to individuals or espouse international claims on their behalf. See LOUIS HENKIN, RICHARD CRAWFORD PUGH, OSCAR SCHACHTER & HANS SMIT, INTERNATIONAL LAW 394 (3d ed. 1993). These external rights of citizens with respect to foreign governments are generally regulated by treaty and are irrelevant to the lives of most people.

[]97 See 8 U.S.C. § 1408. Currently, only inhabitants of American Samoa and the Swains Island retain the status of "noncitizen nationals." See ALEINIKOFF, MARTIN & MOTOMURA, supra note 67, at 974 n.2; see also 8 U.S.C. § 1101(a)(22) (including as "nationals of the United States" both U.S. citizens and noncitizens who owe permanent allegiance to the United States).

[]98 8 U.S.C. § 1481 (emphasis added).

[]99 Such statutes usually make distinctions based on the INA's definition of "alien." See, e.g., Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 431(a), 110 Stat. 2105, 2274. The INA defines "alien" as "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3).

[]100 Sloppier drafting exists in the difference between the INA's general citizenship provision, which defines who shall be "nationals and citizens of the United States at birth," 8 U.S.C. § 1401, and the sections conferring citizenship on people born outside the continental United States, which mention only "citizen[s] of the United States," id. §§ 302-307.

[]101 See, e.g., Legomsky, supra note 14, at 295; Martin, supra note 92, at 310.

[]102 This assumes, of course, that the law attributes nationality to persons who are born U.S. citizens. It need not do so, however; decoupling citizenship and nationality would allow a provision restricting nationality to persons who consciously decide to declare their identity even if they were born in the United States. Cf. Tan, supra note 8, at 461-66 (describing a French proposal to encourage integration by requiring a "declaration of nationality" for individuals seeking birthright citizenship).

[]103 See 8 U.S.C. § 1448(a)(2), (4).

[]104 See 8 U.S.C. § 1481(a).

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