Jean Monnet Center at NYU School of Law

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V. Conclusion: The Quality of Citizenship

Decoupling functional citizenship and nationality would address the inherent tension present in the current conception of U.S. citizenship. It would preserve the reciprocal duties and rights currently appurtenant to U.S. citizenship, while preventing the obvious incentives to naturalize that they create from overshadowing an official recognition of national identity.

The decoupling proposal also survives criticism. An initial objection is that decoupling citizenship and nationality merely adds an unnecessary further level of permanent residence without any meaningful reason. But functional citizens do possess a normatively relevant link to the state that permits a distinction from permanent residency. Naturalization criteria -- such as facility in the lingua franca and a record of obedience to the law -- reflect a demonstrated willingness and ability to reside as a constructive member of the polity, something that permanent residents need not show. So long as the criteria remain objective, verifiable, and honestly enforced, they provide a principled basis of distinction between partial and full functional membership.

Another objection is that nationality is itself a functional duty of U.S. citizenship. Put another way, alienage distinctions are a means of distinguishing and rewarding individuals who possess a clear commitment to the country. In this view, decoupling the two would be a radical alteration in the terms of membership and an unfortunate official acknowledgement of the wrong turn of recent jurisprudence toward a "commoditization" of citizenship.[105] The response to this objection is the Dutch government's: horizontal bonds to a community are per se subjective and cannot be effectively ascertained if the testing process admits of influence by other, functional factors. Thus, to the extent that we believed that alienage distinctions actually reserved rights to "Americans," we were wrong; they only reserved them to functional citizens. Decoupling is a measure intended to protect the official recognition of nationality's importance.

Of course, decoupling is not the only way to confront the problem. The pre-1996 days, when permanent residents and citizens had largely identical duties and rights, seemed to reach the same result. It seems, however, that innocence has been irrevocably lost; as is argued above, it is not merely the alienage distinctions, but also the demonstrated governmental willingness to promulgate them that brings about the predominance of the functionality of citizenship. Likewise, increasing the costs of naturalization -- such as by imposing quotas or eliminating birthright citizenship -- would not ensure that only those with the correct subjective motives sought it. It would merely reduce the absolute number of individuals eligible for citizenship and increase the bitterness of those forced to remain in the "ambiguous status"[106] of permanent residence.

It should be reinforced that decoupling the two elements would not force the state to relinquish all concern with nationality. Governmental efforts to encourage civic virtue and national pride already serve this end. Yet there is also room for formal, individualized state involvement in nationality, as long as the framework respects the separation of functional citizenship and nationality. This notion of an official status of nationality better fits the United States's interest in fostering national identity through its concept of membership.[107] A separate nationality oath forces each naturalized citizen (or even every citizen)[108] to reflect, without governmental pressure, on her personal relationship with the polity in which she already holds a functional role. Such a structure is more conducive to the independent development of national identity than the current system.[109]

In 1965, Tom Lehrer parodied the notion of "a man whose allegiance is ruled by expedience."[110] Lehrer's joke suggests an intuitively appealing fear that citizenship without nationality ignores or, worse, manipulates a basic level of human interaction. Perhaps even more threatening is the argument that nationality is the glue that holds states together, and that if it parts from functional citizenship, it will be a tool for the fragmentation of states.[111] This objection is misleading. As a free indication of feelings of belonging, nationality is basically neutral. A refusal to declare nationality can indeed reflect dissatisfaction with a state's sociocultural organization. Decoupled, however, nationality can also be a means for the state to determine and encourage personal commitment beyond functional duty. It embodies the mutual goal of citizen and state to strive for a community of peace, equality, and contentment. Nationality thus mirrors the spiritual success of a state, and there is no danger in a mirror unless one cannot bear the reflection.

[]105 See, e.g., GEYER, supra note 11, at 129.

[]106 Harisiades v. Shaughnessy, 342 U.S. 580, 586 (1952).

[]107 See Meissner, supra note 10, at 10-11.

[]108 See supra note 102.

[]109 Of course, it is not necessary that nationality exist at all. Several modern thinkers have heralded the demise of the nation-state and argued that the quality of an abstract horizontal bond is none of the state's business. See, e.g., JULIA KRISTEVA, NATIONS WITHOUT NATIONALISM 7-11, 40-47 (Leon S. Roudiez trans., 1993) (describing the development of national identity independently of the state). This position occasionally involves the apotheosis of functional citizenship and possibly the abolition of the citizen-alien distinction altogether. It tends to meld with or rely on the eventual globalization of economy and the gradual superseding of the nation-state. This position is not so much an objection as a prediction. Yet even if it proves accurate, decoupling nationality from citizenship is nonetheless desirable as a step toward the abolition of the nation-state. It is easy enough to abolish nationality expressly once it is decoupled, and retain functional citizenship as a tool of distinction. The more likely scenario, however, is that the United States will wish to retain the concept of nationhood and use official nationality to draw attention to the independence and importance of an attachment to the state other than a functional one. This is essentially the U.S. government's aim in encouraging naturalization. See, e.g., GEYER, supra note 11, at 155; Meissner, supra note 10, at 10-11.

[]110 TOM LEHRER, Werner von Braun, on THAT WAS THE YEAR THAT WAS (Reprise Records 1965).

[]111 See, e.g., Martin, supra note 92, at 307.

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