Semi-Citizenship in Democratic Politics

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Semi-Citizenship in Democratic Politics In every democratic polity there exist individuals and groups who hold some but not all of the essential elements of citizenship. Scholars who study citizenship routinely reach for shared concepts and language to identify forms of political membership held by migrants, children, the disabled, and other groups of individuals who, for various reasons, are neither full citizens nor non-citizens. This book introduces the concept of semi-citizenship as a means of dramatically advancing debates about individuals who hold some, but not all, elements of full democratic citizenship. By analytically classifying the rights of citizenship and their various combinations, scholars can typologize semi-citizens and produce comparisons of different kinds of semi-citizenships and of semi-citizenships in different states. The book uses theoretical analysis, historical examples, and contemporary cases of semi-citizenship to illustrate how normative and governmental doctrines of citizenship converge and conflict, making semi-citizenship an enduring and inevitable part of democratic politics. Elizabeth F. Cohen is Assistant Professor of Political Science at the Maxwell School of Citizenship and Public Affairs at Syracuse University. She holds a Ph.D. from Yale University. Her research interests focus on contemporary political theory, citizenship studies, and the politics of immigration. She has published articles in Citizenship Studies and the Journal of Medicine and Philosophy. Her articles and essays address children’s citizenship, immigration, asylum, migration policy, same-sex marriage, the civil disabilities of felons and ex-felons, and citizenship in the European Union.

Semi-Citizenship in Democratic Politics

Elizabeth F. Cohen Syracuse University

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521768993 © Elizabeth F. Cohen 2009 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009 ISBN-13

978-0-511-64180-0

eBook (NetLibrary)

ISBN-13

978-0-521-76899-3

Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For Reggie Feiner Cohen and Ira J. Cohen, who bequeathed to me the ideas that families can be democratic, children are citizens, and acting like grown-ups isn’t necessarily the best way to live.

Contents

Acknowledgmentspage ix 1 Introduction1 2 The Myth of Full Citizenship13 3 An Introduction to Semi-Citizenship 59 4 Logics of Semi-Citizenship95 5 Semi-Citizenship and the Disaggregation of Autonomous Rights141 6 Semi-Citizenship and the Disaggregation of Relative Rights178 7 Conclusion204 Bibliography211 Index227

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Acknowledgments

The motivation for this book lies squarely in the biography of Chaim Feiner. My family’s citizenship is the enduring legacy of his determination, courage, and intelligence. I permanently record his name here, before all others, in triumphant defiance of anyone who has ever or will ever attempt to erase a human life. He persevered through the darkest years of modernity, resolutely confronting depravity and indifference. He transcended both with unwavering personal honor and cosmopolitanism, each of which he brought to bear on his political convictions and his relationships. I am in awe of his life and cherish his memory. For their role in helping me achieve my professional citizenship, I thank the members of my dissertation committee at Yale University: Rogers M. Smith, Ian Shapiro, John P. McCormick, and Bruce Ackerman. They instilled in me an appreciation for academic autonomy that I will carry with me well past the publication of this book. While I was at Yale, Robert Dahl, David Cameron, David Mayhew, and Peter Schuck also shared helpful feedback and congenial support. Mary Dietz read a section of the dissertation and provided incisive and constructive critiques that took the work on its own terms before those terms were easy to discern. Carol Swain offered intellectual engagement and stalwart professional encouragement early and often. Linda Bosniak and Jennifer Hochschild gave me astute commentary on a draft of this manuscript. Bryan S. Turner provided me with an opportunity to think about questions of governmentality. He also founded the field of citizenship studies, one of his many achievements that have reshaped scholarship in the social sciences.

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Acknowledgments

I am indebted to Lewis Bateman at Cambridge University Press for his support and willingness to take a chance on a brand new word. I also wish to thank Emily Spangler, who skillfully shepherded the manuscript through the editorial process. Two scrupulously thorough and thoughtful anonymous reviewers contributed immensely valuable insights. At several key points their suggestions transformed my thinking. In addition I am grateful for Peter R. Murray’s erudite editorial review. Finally, I would like to thank Donna Ching of ChingFoster Design for rendering the evocative cover design. Sections of this book benefited from presentations at Princeton University’s conference on Debating Immigration, at the Vanderbilt University Law School, and at the University of Wisconsin’s Political Theory Workshop and American Political Thought Series. Related material was also presented to members of Syracuse University’s Sawyer Law and Politics Program and Institute for the Study of the Judiciary, Politics, and the Media, both of which are the institutional brainchildren of Keith J. Bybee. In a singularly civic act, Suzanne Mettler, with support from Syracuse’s Department of Political Science and the Maxwell School Dean’s Office, founded a Manuscript Review Workshop at which a draft of this book was presented. For her commitment to this endeavor, Suzanne deserves copious credit, not just from me, but from the profession at large. For grant and research support I thank Yale University and Syracuse University, in particular, the Dean’s Office of the Maxwell School of Citizenship and Public Affairs and the Alan K. Campbell Institute. My colleagues at the Maxwell School are truly remarkable. For their diverse contributions I wish to acknowledge: Kristi Andersen, Keith Bybee, Ken Baynes, Gavan Duffy, Fred Frohock, Vernon Greene, Tom Keck, Ralph Ketcham, Audie Klotz, Lily Ling, Robert McClure, Glyn Morgan, Mark Rupert, Hans Peter Schmitz, Jeffrey Stonecash, Laurence Thomas, and Stuart Thorson. Brian Taylor and Renee Denevers are unswervingly loyal colleagues and friends. Danny Hayes and Julie Gozan clarified my thinking on membership in important ways. I have also relied on the skill and good humor that Kelley Coleman and Bethany Walawender at the Campbell Institute, and Candy Brooks, Stacy Bunce, Jacquie Meyer, and Tess Slater in Syracuse’s Department of Political Science, bring to their work. While at Syracuse, I have learned a great deal from conversations with numerous talented students, some of whom also assisted with research

Acknowledgments

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for this book. Special thanks to: Saheli Datta, Havva Karakas-Keles, Lindsey Kingston, Jenn Kinney, John McClure, and Christopher Morley. Steven Dube and Cyril Ghosh invented a profession, editorial therapy, and provided this service to me with alacrity and gentle wit. Since we met at Yale, Janelle Wong, Dara Strolovitch, Jessica AllinaPisano, and Naomi Murakawa have regularly demonstrated to me how to unite one’s principles with one’s vocation. Paul Frymer is as committed a friend as he is a scholar. Lennie Feldman possesses a truly rare intellectual acumen, generosity, and unerring ethics. Casiano Hacker-Cordon exemplifies professional inclusiveness. Jolynn Parker, Mike Goode, Heidi Swarts, Sarah Pralle, Asthildur Bernhardsdottir, Dawn Wilson, Bob Wilson, Tom Perreault, Meredith Perreault, and Tod Rutherford supplied a steady stream of good cheer and good food. I have missed Emily and Bill Gottlieb, Jennifer Wang, and Bess O’Neill while I was sequestered at my desk. Cyril: The strength and grace of your character is a continual source of amazement to me. You have also forever erased the line between friend and family in my head and heart, for which I am profoundly grateful. Loving thanks also to Mobus Operandi and Co. and Misha and Maddie Ketzel. I am also lucky to call my aunt, Celia Epstein, a lifelong friend. I miss my uncle Gil and feel his absence keenly. Reggie Feiner Cohen and Ira J. Cohen are the two most intellectually lively, insightful, and intensely loyal individuals I could ever hope to know. I constantly marvel at the good fortune I had to join the lifelong conversation they began 41 years ago. RFC and IJC: you frequently remind me that we cannot choose our relatives. If we could, I would choose you.

1 Introduction

In November 1999, a Cuban child named Elian Gonzalez washed up on the shore of Florida after a harrowing journey from Cuba that took the life of his mother. Over the next several months, members of his family and politicians in Cuba and the United States competed for custody of the boy, and hence to determine where he would live and what country’s passport he would hold. As an unaccompanied minor, an undocumented immigrant, a potential asylum seeker, and a Cuban in the United States, Gonzalez embodied a number of important exceptions to immigration laws.1 Four months after the conflict was resolved, and Gonzalez was returned to Cuba in his father’s custody, the 2000 U.S. presidential election took place. During what turned out to be a similarly unprecedented controversy, post-election investigations revealed that Florida’s voter rolls had systematically excluded ex-felons who were entitled to vote, and who were disproportionately both African-American and registered Democrats.2 Florida, or even the United States, is not exceptional in this; controversies over how, and to whom, rights are made available regularly erupt in all liberal democratic states. Disputes over the rights of Sarah Banet-Weiser, “Elian Gonzalez and ‘The Purpose of America’: Nation, Family, and the Child-Citizen,” American Quarterly 55(2) (2003): 149–178; and D.L. Dillman, “The Paradox of Discretion and the Case of Elian Gonzalez,” Public Organization Review 2(2) (2002): 165–185. 2 Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (Oxford: Oxford University Press, 2006). See also Jeff Manza and Christopher Uggen, “Punishment and Democracy: The Disenfranchisement of Nonincarcerated Felons in the United States,” Perspectives on Politics 2(3) (2004): 491–505, and Jeff Manza and Christopher Uggen, “Democratic Contraction? The Political Consequences of Felon Disenfranchisement in the United States,” American Sociological Review 67(6) (2002): 777–803. 1

1

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former colonial subjects in the United Kingdom, guestworkers in France and Germany, and indigenous persons in New Zealand illustrate the diverse and global nature of questions about who is a citizen and what rights and statuses citizenship confers. The statuses held by these groups do not fully conform to standard definitions of citizenship. Nonetheless, all of them have some of the political characteristics associated with citizenship. They hold some rights and receive political recognition consistent with that accorded to citizens. This places them in political categories between citizen and non-citizen. They are semi-citizens. Individually, these semi-citizenships appear to be exceptional, yet many such statuses appear and reappear in different countries and political eras. This book lays out a framework within which semi-citizenships might be identified, and it offers an argument about how and why these semi-citizenships are inevitably present, and continually produced, in liberal democratic states. The concept of citizenship is ancient, and yet its meaning remains contested to this day.3 Consider the following inconsistencies woven into the history of political thought on citizenship. A ristotle writes in The Politics, “But in most constitutional states the citizens rule and are ruled by turns, for the idea of a constitutional state implies that the natures of the citizens are equal, and do not differ at all.”4 In The Social Contract, Rousseau choreographs an elegant transformation of individuals’ wills into a citizenry.5 Kant’s Perpetual Peace describes “the principle of legal equality for everyone (as citizens).”6 In Federalist Number 10, Madison speaks of “a chosen body of citizens.”7 Each of these political thinkers finds some way to explicitly posit the equality of all citizens. Yet, each of the philosophers quoted above also notes elsewhere that there are many kinds of citizens. Some do so in the very same passages in which they trumpet the virtues of equal citizenship. A ristotle organized citizens into occupational groups that generally corresponded T he nature and import of citizenship as an essentially contested concept is discussed in Chapter 3. 4 A ristotle, The Politics (Cambridge: Cambridge University Press, 1996), Book I, Chapter 12. 5 Jean-Jacques Rousseau, The Social Contract and Other Late Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997). 6 Immanuel Kant, “Perpetual Peace: A Philosophical Sketch,” in Kant: Political Writings, ed. H. Reis (Cambridge: Cambridge University Press, 1970), 99. 7 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: Signet, 1961), 82; see also Ralf Dahrendorf, “Citizenship and Beyond,” Social Research 41(4) (1974): 673–701. 3

Introduction

3

to perceived abilities to self-govern.8 Rousseau chronicles different kinds of citizens in his model republic of Geneva.9 Kant delineates rights of “hospitality” for foreign guests. James Madison wrote of “comprehending in the society so many separate descriptions of citizens.”10 This inconsistency between, on the one hand, the presumption that citizenship in any polity can and must have a single meaning, and on the other, the existence of various kinds and degrees of citizenship, is one that many intuitively recognize, although few systematically account for it in democratic or liberal theories of citizenship.11 There exists a belief that a central function, perhaps the central function, of citizenship is to make members of a polity equal, and that it does so by fashioning a single, unitary political identity. Judith Shklar and Rogers M. Smith decry American tendencies to exclude, with the expectation that equality ought to be realized and that this happens by offering equal citizenship to all members of a society.12 The rights and duties that citizenship 8 References to classes of citizens, partial citizens, and non-citizens abound in The Politics. See, for example, Book VII, Parts 7–10. �� Aristotle did not belong to the enfranchised class, but instead was a metic: a foreigner who by virtue of his non-Athenian blood would never have access to the panoply of rights and expectations associated with Athenian citizenship. Centuries later Isaiah Berlin would describe himself using the same word to capture his scattered affiliations as a Latvian immigrant living in England with complicated attachments to Palestine. See Timothy Garton Ash, “A Genius for Friendship,” New York Review of Books 51(14) (2004): 22. 9 Indeed, Giorgio Agamben asserts that “No author in France … has understood the true meaning of the term ‘citizen.’” Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), 129. 10 Kant, “Perpetual Peace,” and Hamilton et al., The Federalist Papers, 324. Dahrendorf (“Citizenship and Beyond”) draws the contrast between this and the phrase “a chosen body of citizens” quoted above. 11 �� Some have made arguments about specific kinds of differentiations, but these arguments are not linked within a larger framework that recognizes relationships between different forms of de jure exclusion. The best-developed bodies of work on differentiated citizenship in political theory typically takes up cultural minorities and gender inequality. In one sense this literature is broader in scope than the subject of this book, as it takes up institutional remedies for social exclusion. In another sense, it is also narrower in scope in that it does not offer a means by which all kinds of institutionally unequal citizenship might be compared. See Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995); and Democracy and Difference: Contesting the Boundaries of the Political, ed. Seyla Benhabib (Princeton: Princeton University Press, 1996.) 12 Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997); see also Thomas Janoski and Brian Gran, “Political Citizenship: Foundations of Rights,” in Handbook of Citizenship Studies, eds. Engin Isin and Bryan S. Turner (London: Sage, 2002), 13–52.

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comprises are intended to create an abstract core legal identity. In turn, this identity makes those who hold it equal, and thus identical, in the eyes of the law and the state. However differently placed it is that individuals may find themselves in private, citizenship provides people with a cloak to don in public in order to meet on level ground, as equals, to engage in collective politics. Conversely, the idea that “[a]s citizens, any two men are indistinguishable,” also carries with it costs that concern skeptics.13 Benjamin Constant described fears of a homogenizing liberal state that imposes a single identity on formerly diverse members, fears James Scott echoes today.14 In either case, citizenship is marked as a privileged form of political membership. It defines a boundary of inclusion within which liberal democracies claim to institutionalize equality through the conferral of a public status upon all members. This has come to imply that citizenship ought to have one and only one meaning in a given polity. Liberal democratic states are expected to establish a single model of citizenship that is accessible through a routinized, and morally and ethically justified, set of rules and procedures. However, in practice, citizenship has never been a unitary concept, nor can it even be neatly characterized as binary.15 All manner of exceptions to rules of inclusion abound. Although these differentiated forms of Dahrendorf, “Citizenship and Beyond,” 674. Benjamin Constant, “The Spirit of Conquest,” in Political Writings, ed. Biancamaria Fontana (Cambridge and New York: Cambridge University Press, 1988). 15 Feminist scholars have been at the forefront of innovative scholarship on citizenship. See Chantal Mouffe, “Feminism, Citizenship, and Radical Democratic Politics,” in Feminists Theorize the Political, eds. Judith Butler and Joan W. Scott (New York: Routledge, 1992), 369–384; and Ruth Lister, Citizenship: Feminist Perspectives, 2nd edition (New York: New York University Press, 2003). Also see Linda Bosniak, The Citizen and the Alien (Princeton: Princeton University Press, 2006); Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990); Tomas Hammar, Democracy and the Nation State (London: Gower Publishing, 1990); Margaret R. Somers, Genealogies of Citizenship (New York and Cambridge: Cambridge University Press, 2008); Aihwa Ong, Flexible Citizenship: The Cultural Logics of Transnationality (Durham, NC: Duke, 1999); Engin F. Isin, Being Political: Genealogies of Citizenship (Minneapolis, MN: University of Minnesota Press, 2002); Leonard C. Feldman, Citizens Without Shelter (Ithaca and London: Cornell University Press, 2004); Peter Schuck, Citizens, Strangers, and In-Betweens (New York: Oxford University Press, 2000). Binary thought itself may be conceptually suspect. Ian Shapiro’s recent work on the methodology of the social sciences eschews theoretical work aimed at producing “gross concepts” that lend themselves to reductive, dichotomous thought that: (a) “obscures the phenomena they purport to analyze” by (b) reducing “what are actually relational claims to claims about one or another of the terms in a relational argument.” (Ian Shapiro, The Flight From Reality in the Human Sciences (Princeton: Princeton University Press, 2005), 14. See especially Chapter 5. 13

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Introduction

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citizenship16 have not gone unnoticed, more attention has been devoted to making claims about the justice or injustice of such statuses than has been directed to cataloging forms of differentiation and exploring the full range of their sources.17 Thus the identification and comparison of different forms of citizenship have been largely eclipsed by normative claims about the nature of specific injustices related to semi-citizenship.18 In fact, so great is the interest in how to achieve equal citizenship, or in arguing for particular visions of equal citizenship, that many arguments about citizenship have neglected to fully interrogate whether it can be achieved, and, if not, how we can accommodate this fact within our larger philosophical frameworks. As yet, no analytic response has been forthcoming to those calls for advancing thought on “differentiated citizenship” that invoke the need for a “grammar of political conduct” that includes a “political syntax” that “values difference, as built into the very fabric of the political project.”19 Historical and sociological calls for “a full theory of citizenship rights would account for these variations as well as broad trends,” also remain without an analytic reply.20 In order to develop such a language of citizenship, which can be used to discuss and analyze the statuses that exist between full and non-citizenship, this study moves discussions of political membership in two new directions. First, it offers a way to classify semi-citizenships in a manner that facilitates analytic comparison. I identify multiple forms of political membership that are associated with some, but not all, of the democratic rights, responsibilities, activities, and statuses available to citizens of a state, and I discuss how and why liberal democratic states routinely instantiate such categories of semi-citizenship. Second, this examination details how and why semi-citizenships come to exist and, more importantly, why they are inevitable. Chapter 2 surveys definitions of citizenship and defends a definition of citizenship that emphasizes the importance of rights as the means through which opportunities for political action are created and protected. The phrase “differentiated citizenship” was coined by Young in Justice and the Politics of Difference. 17 �� Notable exceptions to this exist. As discussed further in Chapter 2, Bosniak’s discussion of the disaggregation of “status citizenship” and normative models of citizenship takes up this subject in the context of the relationship of external and internal boundaries. Bosniak, The Citizen and the Alien. 18 The literature on differentiated citizenship is surveyed in Chapter 3. 19 Ruth Lister, “Citizenship as Status and Practice,” Hypatia 12(4) (1997): 14. 20 Charles Tilly, “Where Do Rights Come From?” in Democracy, Revolution, and History, ed. Theda Skocpol (Ithaca and London: Cornell University Press, 1998), 71. 16

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Citizens have access to an intertwining set or “braid” of fundamental civil, political, and social rights, along with rights of nationality. Semicitizens are accorded only subsets of those rights. A semi-citizen may have some, but not all, political rights. A semi-citizen may have no political rights at all. Numerous configurations are conceivable. Because rights create political relationships it is crucial to states that they be able to disaggregate bundles of rights.21 The unbundling of the braid of citizenship rights has the effect of shaping and managing populations whose diverse elements could not all be governed by a single set of rules. In the absence of this capacity, states would have to do things like immediately and fully enfranchise all immigrants, legally disown responsibility for, or claims on, children, and disband military courts. Rights not only come unbraided from each other, but each individual strand can fray. Types of citizenship rights can become disaggregated from one another and from their own constituent parts. This suggests that citizenship rights are independent of, rather than contingent upon, each other; that is, each right exists because it is valuable in itself, not because it makes the exercise of other rights possible. Such independence lends strength to citizenship because it allows some types of rights to be conferred on individuals even if they do not qualify for other rights. Under these conditions it is much less likely that an individual who does not meet the qualifications for full citizenship will be left completely rightless. However, this independence also makes semi-citizenship somewhat inevitable, as independently justified rights can be granted in differentiated bundles. Chapter 3 offers a framework within which we can analyze the plethora of potential semi-citizenships opened up by the nearly limitless set of possible partial rights bundles that states can accord individuals and groups. In order to classify these possibilities in a way that facilitates discussion and comparison, this framework classifies membership rights based on how we might expect rights to be bundled. Rights are either autonomous or relative. Autonomous rights are rights that human beings need in virtually identical form in any political context. Security of person, rights of residence, freedom of thought and expression, and rights associated with very basic welfare are autonomous. Relative rights obtain only in specific political contexts. The right to vote or property rights are examples of relative rights. They require specific political systems to make them Language referring to collections of rights that compose citizenship as “bundles” recurs in work on citizenship. For a survey of some of this literature see Judith Lynn Failer, Who Qualifies for Rights? Homelessness, Mental Illness, Civil Commitment (Ithaca, NY: Cornell University Press, 2002), especially Chapter 2.

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Introduction

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legible.22 The rights of semi-citizens vary along two dimensions: whether the relevant rights are relative or autonomous, and the respective strength of those rights . This yields a 2×2 table that includes four classes of semicitizenship into which any individual or group who does not enjoy full rights of citizenship may be categorized. The four cells of this table would be: strong autonomous rights and weak relative rights, strong autonomous rights and strong relative rights, weak autonomous rights and strong relative rights, and finally weak autonomous rights and weak relative rights. The classes of semi-citizenship include recognizable identity groups but are not themselves social identities.23 Rather, they are structural political classes whose sources and traits cannot be attributed solely to ascriptive bias, economic class conflict, or failings on the part of the individuals who hold them. Chapter 4 argues that the different doctrines that found citizenship in liberal democratic states also lead inexorably to the creation of semi-citizenships. I ground this argument in the tensions within citizenship ideals that force compromises between the different doctrines that ground rights in liberal democratic states. Liberal and democratic norms compete to define citizenship in ways that have been explored at length in debates between liberals, communitarians, and civic republicans.24 Few scholars have looked comprehensively at how citizenship is circumscribed by the triad composed of liberal norms, democratic norms, and the strictures imposed by governmental imperatives that motivate administrative rationality.25 Treating liberal norms, democratic norms, and governmental imperatives as three equal partners in the formation of citizenship sheds light on aspects of semi-citizenship that cannot be explained by normative theory alone. The problems of a population that is “illegible,” or inaccessible and incomprehensible to the state that governs it, is referred to by James C. Scott. Scott, drawing upon the work of Michel Foucault, details the terms on which practices of small, self-contained communities are both revealed and changed in ways that make them intelligible to outsiders, particularly the state. James C. Scott, Seeing Like a State (New Haven: Yale University Press, 1997). 23 As Nancy Fraser’s analysis of problems of recognition elucidates, social identity cannot serve as the only means through which we observe and discuss inequality, exclusion, and disenfranchisement. Nancy Fraser, “Recognition Without Ethics?,” Theory, Culture & Society 18 (2–3) (2001): 21–42. 24 See Derek Heater, What is Citizenship? (Cambridge: Polity, 1999); Will Kymlicka and Wayne Norman, “Return of the Citizen: A Survey of Recent Work on Citizenship Theory,” Ethics 104(2) (1994): 352–381; Stephen Macedo, Liberal Virtues (Oxford: Oxford University Press, 1991); and Adrian Oldfield, Citizenship and Community: Civic Republicanism and the Modern World (New York and London: Routledge, 1990). Rogers Smith advances this debate in the American context by documenting how ascriptive Americanism conflicts with other doctrines of American citizenship (Smith, Civic Ideals). 25 One important exception is Feldman, Citizens Without Shelter. See especially Chapter 3. 22

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Rights are defended in different ways by each of the three competing doctrines of citizenship. Liberalism, ethical norms associated with democratic theory, and the administrative rationality that marries these abstractions to the imperatives of practical politics have common lineages and overlap at points. Yet they also conflict with one another in ways that entail compromises. They all share some premises and yet they also come into conflict over how to realize membership. Liberalism confers rights on autonomous individuals, while democracies create boundaries supported by more ethically substantive requirements and qualities expected of members.26 Liberal and democratic norms are realized by institutions that must also contend with the demands of sovereignty and of populations that can be irrational, illegible, or otherwise difficult to govern. The governmental imperatives created by diverse and constantly shifting populations require additional compromises on the part of liberal and democratic traditions. Recognizing administrative rationality as a peer of liberalism and normative theories of citizenship is crucial because it draws the state into the picture, and yet also firmly establishes that semi-citizenship will persist even if the nation-state does not. Administrative rationality may be the province of the state in contemporary politics, but it applies to any political institution charged with governing a population. Regardless of context, conflicts rooted in different understandings of who can and ought to be included in politics, to what degree, on what grounds, and under which conditions, will inevitably produce semi-citizenships. These can be observed by examining the political relationships formed or forestalled when rights are conferred on some people and not on others. Semi-citizenships result when these frictions intensify and the bundle of fundamental citizenship rights comes apart. Individuals who do not conform to the standards dictated by different doctrines of citizenship receive partial bundles of rights. Semi-citizenships serve several key purposes in liberal democratic states. First, they reflect compromises between these theories that allow Throughout the book, normative democratic theory and democratic politics are referred to as “ethical” and historically rooted to differentiate them from purely procedural applications of liberal principles. Democracy is “ethical” because it is produced by a demos that is the distinct, situated product of its own history. For a recent discussion of this distinction, see Jürgen Habermas, “Three Normative Models of Democracy: Liberal, Republican, or Procedural” in Richard Kearney and Mark Dooley, Questioning Ethics: Contemporary Debates in Philosophy (London and New York: Routledge, 1999),135–144. Democratic norms are contrasted with liberal norms that ground rights in human traits that transcend any particular context.

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Introduction

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them to co-exist even when they contradict one another. Second, they order populations in ways that make them governable. Citizenship is far from the only form of categorization with which people organize themselves but is our oldest and most ubiquitous political category. While categorization is a contested notion within the social sciences because of its immense cognitive and affective weight for individuals and groups, it is vital for making people legible to the institutions that govern them. Finally, semi-citizenships create flexibility. Taken on their own, each understanding of citizenship implies more rigid demarcations between citizen and non-citizen than could ever be realized. As circumstances of all kinds evolve, the ongoing engagement of multiple doctrines of political membership permits change via the renegotiation of compromises and the shifting of persons from one order of semi-citizenship to another. Each of these three roles performed by semi-citizenship will be subject to a variety of normative defenses and critiques. The point is not that compromise, ordering, or flexibility is desirable or undesirable, but rather that each is necessary and inevitable. Only in light of this can useful judgments about particular compromises be made. To illustrate semi-citizenships and the processes that form them, this book also examines specific cases in which rights become disaggregated from each other, particularly in liberal democracies. Although groups with differentiated forms of membership are not unique to democracies, liberal democratic states claim, and are credited with asserting, the most demanding standards of inclusion and of equality with self-rule. If three centuries of institutional and normative development have not wrought a single equal form of citizenship in any liberal democratic state, such a goal may not be possible. By way of illustration, Chapter 5 analyzes an instance of an autonomous right, nationality, which is generally treated as a single right to which other rights of citizenship are closely bonded.27 Upon inspection, nationality turns out to have component parts that are distributed in uneven ways among the population of the foreign-born. For instance, nationality typically entails the right to live within the borders of, and the right to travel freely within, a particular nation-state. In the case of the foreign-born, these rights are disaggregated by placing conditions on the circumstances and timing of residence and travel. Temporary workers, refugees, and economic immigrants, among others, all have different elements of rights associated with nationality. In turn, 27

I argue that nationality is an autonomous right because it confers rights to residence and free movement that are essential not just within the state system as it is currently constituted, but in any political system.

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different civil, social, and political rights attach to these various forms of partial nationality. This scatters foreign-born persons all over the abovementioned table of semi-citizens. These statuses are permanent; while individuals may graduate to full citizenship, the presence of various types of non-nationals is enduring. This is true because people remain mobile and changeable in various ways and because the logics of citizenship conflict with each other in predictable ways. The semi-citizenships that are created thus bear out the assertion made in Chapters 2 and 3 that, while semi-citizenships may represent the divisive nature of citizenship, they also represent a form of security . Rightlessness occurs, but not as readily as it might have if a single, reductive logic of citizenship were to prevail. Chapter 6 examines the disaggregation of relative rights through two cases: children and gay and lesbian citizenship. Like non-nationals, children are an enduring group within any population of any liberal democratic state. Unlike non-nationals, children’s rights are fairly cleanly split between the relative and the autonomous. Children have very strong autonomous rights and very weak relative rights. In contrast, gay and lesbian individuals have both very strong autonomous and very strong relative rights. But they are almost universally prohibited from concluding marriage contracts that entitle them to the same protections that heterosexual couples enjoy. Gay and lesbian semi-citizenship represents a test of the outer bounds of semi-citizenship and also indicates a model for thinking about how states can amend and edit citizenship rights in order to change the membership status of semi-citizens. At the same time it also reveals how compromises between the competing logics that ground citizenship can be very difficult to revise. In particular, offering additional forms of rights, as has been suggested by theorists of multiculturalism and public deliberation, among others, does not always suffice to form complete citizenship where semi-citizenship exists. Children cannot be offered the franchise and civil unions do not replace, or even displace, marriage. Although the classifications of semi-citizenship presented in this book invite normative speculation, they are discussed here primarily as analytic tools. As such, they are justified not by the normative judgments to which they point, but rather the degree to which they accurately characterize a set of related political phenomena. Although they identify ways in which citizenship may disappoint our normative aspirations for membership in liberal democracies, they do not render final judgment regarding what is fair or unfair, or even what is justifiable within any given normative or political context. Semi-citizenships do reveal a great deal about

Introduction

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what we can expect from political membership, given the foundations of citizenship and the constraints within which it operates. They also cast doubt on remedies that have been suggested for inequalities engendered by differentiations of citizenship, including both those rooted in the politics of recognition and the politics of redistribution. At the same time that semi-citizenships are not identities in search of recognition, they also do not refer exclusively to classes of persons who require or can exercise types of rights they currently lack. Children cannot be transformed into full citizens and childhood is an ongoing fact of political life. People cannot, and may not, wish to be naturalized directly upon immigrating. Statuses often characterized in entirely pejorative terms may carry unacknowledged benefits. Barry Hindess makes the point that citizenship has not been sought, and has even been rejected, by various people throughout history and in a variety of contexts.28 Undocumented immigrants represent an example of a status overwhelmingly assumed to be entirely oppressive, except by a few powerful voices who have documented the desire and reasoning of some to remain undocumented.29 As statuses that can be either chosen or imposed, we can expect semi-citizenship statuses to persist, though the individuals who hold them may change. This underscores the importance of a framework for understanding semi-citizenship that is not predicated on norms that demand its elimination. If, as this book argues, semi-citizenship is inevitable, any discussion of the subject designed to conclude with a remedy will be hobbled by its own premise. Yet, despite the analytic emphasis Barry Hindess, “Citizenship for All,” Citizenship Studies 8(3): 305–315. �� Susan Coutin documents the double-edged sword of illegality noting both the vulnerability of those without documentation and the fact that they are “free.” This freedom is symbolic and concrete, extending from abstract notions of Foucauldian discipline to specific exemptions from rules regarding movement, tax, and work. Susan Coutin, “Illegality, Borderlands, and the Space of Nonexistence,” in Globalization Under Construction, eds. Richard Warren Perry and Bill Maurer (Minneapolis, MN: University of Minnesota Press, 2003), 171–202; see especially 184–192. For another discussion of the transformative potential of undocumentedness, see William Walters, “Acts of Demonstration: Mapping the Territory of (Non-)Citizenship,” in Acts of Citizenship, eds. Engin Isin and Greg M. Nielson (London and New York: Zed, 2008), 188–191; and Gotfried Engbersen, “The Unanticipated Consequences of Panopticon Europe: Residence Strategies of Illegal Immigrants,” in Controlling a New Migration World, eds. Virginie Guiraudon and Christian Joppke (London and New York: Routledge, 2001), 223–246. Engbersen writes of undocumented persons in Europe using the status to their advantage, for example by selling illegal drugs using resources and strategies that would not be available to documented immigrants or even full citizens. Homelessness carries similarly liberating potential for some who choose and/or defend their right to inhabit public or non-traditional spaces. See Judith Lynn Failer, Who Qualifies for Rights? Homelessness, Mental Illness, Civil Commitment (Ithaca, NY: Cornell University Press, 2002).

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of this study, its subject does invite normative speculation. Indeed, if I am right that the differentiation of rights-based semi-citizenships in liberal democracies creates a complex set of analytical problems, then it is all the more certain that the same differentiations create a host of subtle problems that require and invite sophisticated normative reasoning and evaluation as well. I will speculate about possibilities for contributions that my analytical account of semi-citizenship can make to normative investigations in my concluding remarks. The tools offered in the chapters that follow can help focus this inquiry. In the final analysis, citizenship does not make a citizenry equal. In fact, it appears to institutionalize both difference and inequalities, albeit in sometimes unexpected ways. It also seems to do so in ways that do enforce forms of stability that offer mixed blessings. First, citizenship imposes burdens, often without the consent of those upon whom the burdens are imposed. Expectations for self-representation and government, material participation, and ethical conformity are considerable and can make unequal demands upon differently situated individuals, not all of whom seek either the rewards or the benefits of citizenship. Second, and of broader relevance, is the fact that contemporary practices of citizenship are as much, and possibly more, associated with forms of security and predictability than with sameness and equality. Semi-citizenship lends both flexibility and durability to more typical understandings of citizenship as a rigid ideal. It is important to acknowledge that semi-citizenship is inevitable, because it is otherwise tempting to focus on the individuals who hold semi-citizen statuses and to conclude that, because those specific people will “graduate” to full citizenship, the category they occupy will itself disappear. Immigrants naturalize, children mature, even felons can be rehabilitated. However, whether or not any given individual, or even a whole group of semi-citizens, is awarded full citizenship, it remains the case that classes who do not have full citizenship are a permanent fixture of any democratic state. Though the cases presented in this book are not encyclopedic, they point to the fact that we are perpetually creating politics in the midst of all kinds of semi-citizens. This means that a whole host of questions persist regarding recognition of the categories themselves and of the people who occupy them. As assiduously as we attend to injustices arising out of the circumstances of any particular person or group, we can never fully transcend the questions that revolve around the permanent presence of semi-citizenship.

2 The Myth of Full Citizenship

I. Introduction Citizenship is an essential element of democracy and a universal feature of the modern state. Scholars study citizenship laws to learn who is welcome in a society; they study the rights and responsibilities of citizenship to learn how citizens are governed in democracies; and they study citizen behavior to learn how people govern themselves. All this presumes that we know what citizenship is and who has it. Yet who is, and is not, a citizen is often difficult to determine. Like a host of related political concepts, citizenship is both essential and essentially contested.1 While there exists a wealth of qualitative work examining specific elements of, and phenomena associated with, citizenship, there is little consensus on the meaning of the term. In the absence of any conceptual discipline, the term “citizenship” has come to mean many things to many people. This is a problem that results both from the type of investigations of citizenship that are 1

On essentially contested concepts see W.B. Gallie, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society, 56 (1956): 167–198; Hanna Pitkin, The Concept of Representation (Berkeley: University of California Press, 1972). More recently, Ruth Lister and Linda Bosniak both take citizenship to be an essentially contested concept. Ruth Lister, Citizenship: Feminist Perspectives (United Kingdom: Palgrave Macmillan, 2003), 13–16; Linda Bosniak, The Citizen and the Alien (Princeton: Princeton University Press, 2006). Citizenship meets all of Gallie’s criteria for essentially contested concepts. It is a concept that implies achievement; it is internally complex; it can be described diversely and openly; it is often exemplified through reference to an authoritative, “original” permutation (interpretations of Greek participatory politics) and yet there is open acknowledgement that contestation about the term persists; and finally, there is apparent progressive competition that has refined both debate about citizenship and the resources available to scholarship that relies on an understanding of citizenship, without making defining the concept central to its arguments.

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currently popular, and from formal obstacles to defining something like citizenship. Taken collectively, the contestations and impasses that persist in discussions of the concept of citizenship highlight the need to develop a theory of semi-citizenship, and simultaneously to point out ways to develop this theory. The second section of the chapter discusses three facets of disagreement about the notion of citizenship. The first of these is generated by contestation over where the authority to define citizenship is located. I argue against a normatively driven account of citizenship because of its tendency: a) to define citizenship according to what a given normative theory argues it should be, rather than defining citizenship on the basis of how it actually exists; b) to define some parts of citizenship as contingent on other parts, thus essentializing some elements of citizenship and deprioritizing others; and c) to treat semi-citizenships as exceptions, accidents, or the product of bias, rather than as inevitable.2 In Section III, I round out this discussion by arguing in favor of locating the authority to define citizenship outside the realm of solely normative theory and within practices that draw on plural sources, including the politically relevant practices of states in their capacity as generators of rights that themselves constitute political relationships. This view avoids the conflation of political ideals with practices, and demands a broad view of the possible variables that might be included in a definition of citizenship. Section IV takes on a second confounding dilemma within discussions of citizenship: confusion and contestation over what kind of concept citizenship is. Citizenship is described in many terms that are associated, variously, with statuses, actions, institutions, and rights. I argue for a larger, broader understanding of citizenship as a tool of political categorization. Regarding citizenship in this manner leads to a further conclusion explored in Section V: namely, that citizenship is a gradient category. A gradient category is one that is defined by multiple and potentially shifting thresholds, rather than by a clear, hard line that delineates it and demarcates a dichotomous relationship between insiders and outsiders. Establishing that citizenship is a category composed of multiple elements, each of which can be accorded to people in full or in partial, gradiated bundles, clears the way to discuss disagreements involved in specifying these A s has been recently noted, accidents and mistakes are not incidental, and accidents or mistakes involving citizenship can be intimately linked with deeply-held beliefs about membership. See Peter Nyers, “The Accidental Citizen: Acts of Sovereignty and (Un) making Citizenship,” Economy and Society 35(1) (2006): 22–41.

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The Myth of Full Citizenship

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elements. Section VI surveys discussions of how citizenship is conferred and of what it confers. Having located the authority to define citizenship in states, and having defended a view of citizenship as a gradient category, I then assert that the content of citizenship is defined first by the rights it confers. These rights form political relationships. A rights-based definition of citizenship provides a conceptually useful starting place for analyzing forms of membership that fall between citizenship and non-citizenship. Because this chapter establishes that the elements of citizenship cannot be contingent upon each other, it might also be proposed that these rights – those that form the content of citizenship – can appear in different combinations, rather than solely as a single uniform status that is identical for each member of a polity. Such an idea contradicts norms that indicate that citizenship should be composed of a full set of rights; however, it is clearly borne out by numerous existing practices. It is also the case that the flexibility such a view of citizenship implies may have normative advantages. These are addressed more fully in Chapter 3. The remaining section of this chapter, Section VII, uses the challenges posed to the citizenship literature in the first half of the chapter to shed light on how, and how well, these challenges can be met in a comprehensive fashion that is both elastic enough to acknowledge dilemmas of threshold, and expansive enough to refer to the broad spectrum of norms and substantive content incorporated into citizenship as it is actually instantiated. The normative, conceptual, and substantive challenges have each generated work acknowledging the dilemmas they pose, as well as nascent discussions of the implications of normative conflict, conceptual confusion, and contestation over the content of citizenship. Each of these contributions makes an advance over traditional accounts of citizenship, and yet each also fails to completely transcend the three problems of overly normative notions of authority, unitary thought, and contestation over content described in the first half of the chapter. I propose a theory of semi-citizenship that eschews the unitariness that often comes in the form of identifying only single forms of gradation (such as differential social rights). Such a theory must also avoid the larger confusion generated by conflating norms with, or prioritizing them over, practices. The definition of citizenship, thus, has to be based on actual combinations of the elements of citizenship, rather than on normative aspirations for what citizenship ought to look like. Finally, the theory must also attend to questions of content in a thorough but efficient fashion. The first half of the chapter posits that states have special authority over citizenship by virtue of the relationships

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instantiated in the process of granting rights. While not universally accepted as complete, this view is widely held and yet remains unincorporated into any existing work that gestures in the direction of a theory of semi-citizenship. The reasons for this must then also be examined to fully lay a foundation for the framework within which semi-citizenship is described in Chapter 3.

II. Authority over Citizenship: Normative and Non-Normative Who or what has the authority to define citizenship, and what kind of content does citizenship confer? Along with other essentially contested concepts in politics, whose “use ranges confusingly between expressing an idea or ideal, and designating uncritically the actual arrangements currently supposed to embody that idea,” there is no single authority charged with defining citizenship.3 The answer to the above question, therefore, will affect how we go about according authority or legitimacy to competing claims about the meaning of citizenship. Many types of communities and organizations make different kinds of categorical distinctions both among its members and between members and non-members. What kinds of communities can generate citizenship, as opposed to other types of membership? Citizenship is political, but this says virtually nothing since some form of politics, even if it is rudimentary, seeps into all human communities. What all usages of citizenship seem to have in common is that they are generated by political communities that are intended to sustain a panoply of members’ activities through the administration of laws. They are formally articulated, and the rules that describe and ground their authority justify themselves with reference to their members’ activities. One can be an employee of a corporation or a member of a family, but neither group generates citizenship. Narrowing down the range of possible citizenship-generating communities requires more than the application of intuition to politics. Someone or something must police the multiple boundaries of the category that is citizenship. In other words, we need to know who or what instantiates formal and legitimate political categories. Normative theorists, citizenly action itself, and political bodies as diverse as constitutions and states all claim the authority to draw the Hanna Pitkin, “Representation and Democracy: Uneasy Alliance,” Scandinavian Political Studies 27(3) (2004): 337. See also Pitkin, The Concept of Representation.

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categorical distinctions implied within various definitions of citizenship. Both quantitative and qualitative analytic work done on citizenship often rests on normative assumptions about what citizenship ought to mean, which in turn implies assumptions about what norms mean to citizenship. Thus, scholars such as William Galston, Stephen Macedo, and Benjamin Barber have debated the degree to which citizenship is characterized by specific virtues, actions, and ideals, while Robert Putnam and Theda Skocpol, among many others, have compiled statistics that chronicle the devaluation and disappearance of associative activity.4 Rogers Smith’s Civic Ideals illustrates the profound hierarchies that American public philosophies and public law have imposed upon citizens of different races.5 The definitional authority cited most frequently in the citizenship literature is T. H. Marshall, who relies on civil, political and social rights, rather than associative activity or civic virtues, to define citizenship.6 Building on Marshall’s insights about social rights in particular, Suzanne Mettler’s Dividing Citizens offers important insights into how social policy has constructed different and unequal citizenships for men and women in the United States.7 On the other hand, scholars of international relations debate the meaning and possibility of postnational and cosmopolitan citizenship.8 Each of these uses of the term “citizen” carries a different set of implicit norms and, hence, different institutional expectations.

B ob Edwards, Michael W. Foley, and Mario Diani, Beyond Tocqueville: Civil Society and Social Capital Debate in Comparative Perspective (Hanover, NH: University Press of New England, 2001); William Galston, Liberal Purposes (Cambridge and New York: Cambridge University Press, 1991); Stephen Macedo, Liberal Virtues (Oxford: Oxford University Press, 1991); and Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley, Los Angeles, and London: University of California Press, 1984). Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1999); Theda Skocpol, Diminished Democracy: From Membership to Management in American Civic Life (Norman, OK: University of Oklahoma Press, 2003); and Robert Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon and Schuster, 2000). 5 Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1999). 6 T. H. Marshall, Class, Citizenship, and Social Development: Essays by T.H. Marshall (New York: Doubleday, 1965). 7 Suzanne Mettler, Dividing Citizens (Ithaca and London: Cornell University Press, 1998). 8 Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens – The Seeley Lectures (London: Cambridge University Press, 2004); Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press, 2006); and Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1994). 4

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Any definition of citizenship that posits rights, actions, specific virtues, or some combination of the above is normatively driven if it makes the conception of what ought to be true of citizenship more central to the definition than anything that is true of citizenship as it actually exists in politics. This is true for both political and social theorists, as well as philosophers, even though each often produces divergent accounts of the norms at stake.9 Reliance on normative theory to define citizenship is problematic on a number of levels. At the most general level, we know that defining any concept in primarily normative terms assures perpetual contestation of the term’s meaning.10 Because citizenship is manifested in a concrete fashion in the lives of nearly every person living in a polity, including those individuals whom citizenship practices serve to exclude, it is experienced most immediately as a set of rules rather than as a lofty set of political norms. Excessive attention to what we wish or think citizenship ought to be is therefore somewhat of a luxury. Once imbued with normative and practical authority, categories that describe citizens and non-citizens are institutionalized and take on more authority and legitimacy. Extrapolating what citizenship is from a notion of what citizenship ought to be has the 9 �� Sociologists’ work on citizenship has traditionally been far more dominated by discussions of the extension of social rights and the right to work, whereas political scientists have only more recently begun to draw connections between political participation and social welfare. In turn, political theorists have focused a great deal of attention on the extension of the franchise and multicultural citizenship, rather than on either work or social welfare. 10 William Connolly gives a finely grained analysis of the spectrum of normativity on which definitions can fall, indicating that contested �� political concepts such as �� democracy can be more or less loosely based on norms. In so doing, he substantially erodes the dichotomy between the normative and descriptive, while retaining a place for reasoned debate to advance ongoing conceptual contests that will be different for different concepts; William E. Connolly, The Terms of Political Discourse (Princeton, NJ: Princeton University Press, 1993), see Chapter 1; on the role of reasoned debate, see especially page 40. M argaret R. Somers makes this point with specific regard to contestation over citizenship. Margaret R. Somers, Genealogies of Citizenship (New York and Cambridge: Cambridge University Press, 2008), 22–25. Somers argues for disposing of the distinction between ideal and material concepts of citizenship in order to see the relationships between the two. The approach of this study is more skeptical of the causal effects of norms than is Somers, who cites Judith Shklar as depicting the influence of norms on practices of citizenship. Somers, Genealogies of Citizenship, 24, citing Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge, MA: Harvard University Press, 1991). In arguing for a more analytical approach to citizenship, this chapter is not dismissing the import of norms or even the presence of some normative presuppositions in the analysis that follows. Rather, it is an attempt to offer a descriptive account of a phenomenon that will inform normative conclusions about citizenship and semi-citizenship.


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tendency to produce misleading and sometimes troublesome conclusions. First, there is little consensus on norms within the communities responsible for assigning citizenship. If we were to say that citizenship ought to entail political actions of certain types, and some individuals whom we call “citizens” do not or cannot perform these actions, we would be forced to say that these individuals are not citizens. Almost any conceivable normative conception of membership will eventually be violated either by political exigency or hypocrisy, or likely by both. By definition, normatively driven notions of citizenship assume that norms have a singular power to justify who receives citizenship and what citizenship confers, and that those norms can be specified and applied. Susanne Rudolph’s discussion of the empirical “imperialism of categories” elucidates how normative expectations can constrain and direct social science in ways that mask important events and processes.11 Ian Shapiro also comes to a similar conclusion in his discussion of Richard Posner’s descriptive and prescriptive functionalist accounts of the law, as well as in Posner’s own opinions.12 Rudolph describes the imperialism of categories through which western universalism leads researchers to construct projects that force politics into conceptual frames that may be irrelevant to non-western contexts. She describes how understandings of development that had unfolded in a western context were assumed to be models for how development ought to transpire in all contexts. In her telling, social scientists’ development of modernization theory has transformed a situated model of development into a universal model for development. What has occurred in one context is transformed into a set of expectations about what will or ought to happen in a different time and place. Brian Barry critiques a manifestation of this process in his discussion of multiculturalism policies that grow out of a belief that social diversity prescribes law and policy that replicate such diversity.13 Susanne Rudolph, “The Imperialism of Categories: Situating Knowledge in a Globalizing World,” Perspectives on Politics 3(1) (2005). Rudolph also cites her collaborative work with Lloyd Rudolph. See Lloyd Rudolph and Susanne Hoeber Rudolph, “Surveys in India: Field Experience in Madras State,” Public Opinion Quarterly 22(3) (1958): 235– 244; The Modernity of Tradition: Political Development in India (Chicago: University of Chicago Press, 1967); and The Regional Imperative: The Administration of U.S. Foreign Policy Towards South Asia under Presidents Johnson and Nixon (Atlantic Highlands, NJ: Humanities Press, 1980). 12 Ian Shapiro, The Flight from Reality in the Human Sciences (Princeton: Princeton University Press, 2005). See Chapter 4. 13 Brian Barry, Culture and Equality (Cambridge: Polity Press, 2001), cited in Christian Joppke, “The Retreat of Multiculturalism in the Liberal State: Theory and Policy,” The British Journal of Sociology 55(2) (2004): 239. 11

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What “is” in one realm is transformed into what “ought to be,” when such a relationship need not be drawn. Barry notes that: [B]ecause social science is always driven by the “moving light” of the cultural problems of the day (classically formulated by Max Weber), there is a natural convergence between theoretical and practical themes and considerations. But both developments are also driven by their own domain-specific logic and dynamics … a pairing of theoretical and political developments reveals interesting parallels and refractions that a narrowly theory or policy focused discussion would miss.14

Normatively driven definitions of citizenship exemplify Christian Joppke’s worry about drawing a relationship between theory and policy, and vice versa. In doing so, he offers a mirror image to the process that Rudolph and Barry describe, in which our understanding of what exists influences our understanding of what ought to be. Many existing citizenship categories take normative models of what political membership ought to be and transform them into statements of how citizenship is actually experienced by all persons accorded the label “citizen.” For example, if citizenship is taken to refer to active participation, this would exclude by definition anyone who is not engaged in the actions taken to be characteristic of a citizen, even if, in practice, such persons are widely considered to be citizens by others, by the state, and by themselves. Even scholars who support treating citizenship as a practice regard such a conclusion as suspect. Ruth Lister pithily puts the relationship between status and action in its place: “To act as a citizen involves fulfilling the potential of that status. Those who do not fulfill that potential do not cease to be citizens.”15 These understandings do not necessarily represent actual rules that govern citizenship but, rather, the force of the norms behind them. As a result, they perpetuate both normative and empirical misunderstandings. For some scholars, what they think ought to define citizenship subtly becomes what they claim citizenship actually is. Rudolph only obliquely touches on, indeed almost elides, normative and historicist forms of categorical imperialism in her discussion of Weberian “models of” vs. “models for.” The way in which western societies have become modern has been taken as the way other societies ought to modernize. Departure from these norms comes to identify various Joppke, “The Retreat of Multiculturalism in the Liberal State: Theory and Policy,” 239. Ruth Lister, “Citizenship as Status and Practice” Hypatia 12(4) (1997): 10. Lister speaks to the problem of making citizenship a status that is contingent on citizenship as a practice: “Uniting citizenship as a practice does not, however, mean that the former is conditional on the latter.”

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terms of failure. A historical reality is thus turned into a universal norm. In the case of citizenship the reverse process has occurred. A normative philosophy of citizenship will justify a rule of membership based upon a set of principles that are linked to foundational norms and aspirations of the society to which the philosophy is being ascribed. Political institutions refer to this in describing and formally delineating a category of citizen. Yet this does not mean that they succeed in realizing the normative model on which they are based. In fact institutions regularly fail to realize norms. Nonetheless, this is not cause to proclaim the demise of citizenship. Formal membership persists in spite of its normative shortcomings. Normative understandings and logics of citizenship can be, and are, influential, but they do not necessarily trump the power of the political institutions that govern citizenship. Democratic theory that suggests that citizens make their citizenship through their actions exhibits a particularly influential and yet problematic normative presumption.16 This line of inquiry is premised on the notion that it is citizens themselves who determine the content of their membership through specific forms of voluntary political behavior.17 But engaging in acts of citizenship does not automatically impart citizenship, let alone recognition of that citizenship by peers or political institutions. Citizenship cannot be earned simply by acting as a citizen ought to, or as most citizens seem to. One may gain influence in doing so, but the content of citizenship neither begins nor ends with influence. This is confirmed by the etymological relatives of citizenship. As a verb, “citizenize” has consistently been associated with a bestowal: one cannot, simply by one’s actions, transform oneself into a citizen.18 The very fact of citizenship’s political nature requires that citizenship be recognized Aihwa Ong, Flexible Citizenship: The Cultural Logics of Transnationality (Durham, NC: Duke, 1999) and R. M. LeBlanc, Bicycle Citizens: The Political World of the Japanese Housewife (Berkeley: University of California Press, 1999), cited in Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press, 2006). Ruth Lister discusses citizenship as praxis, thus joining more radical versions of citizen-created citizenship with theories that prioritize the role of rights and the state in shaping citizenship. See Ruth Lister, Citizenship: Feminist Perspectives, 2nd edition (New York: New York University Press, 2003), especially Chapter 8. 17 Ruth Lister, citing Doyal and Gough, notes that we must make a distinction between “simple autonomy as expressed through agency and ‘the higher degrees of critical autonomy which are entailed by democratic participation in the political process at whatever level.’” Lister, Citizenship: Feminist Perspectives, 39. See also Len Doyal and Ian Gough, A Theory of Human Needs (Basingstoke: Macmillan, 1991), 68. 18 James Kettner, The Development of American Citizenship, 1608–1870 (Chapel Hill, NC: University of North Carolina, 1978), Chapter 1. 16

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by whatever form legitimate authority takes in a community. Otherwise anyone, anywhere, could declare themselves to be a citizen. It is not even the case that recognition on the part of one’s countrymen can bestow citizenship. Even in a socially contractual arrangement, an authority must be designated to mediate claims of membership. A specifically designated authority must therefore confer the status in a routinized fashion. If an authority is accorded the power to make decisions about citizenship, then people who meet a set of requirements may expect to receive citizenship; but it is the bestowal and not the meeting of requirements that generates the change. This means that people who meet requirements can sometimes be denied citizenship. For example, ex-felons who were entitled to be reenfranchised were left off of voter rolls in Florida, as was revealed following the 2000 election debacle. Similarly, most countries empower an office to grant citizenship or citizenship-oriented statuses (like green cards and work visas) to people on a discretionary basis which bypasses traditional requirements.19 It is not even the case that these objections could be swept aside by referring to the state-mandated requirements of members. As a matter of course, liberal democratic states impose only a few duties on their citizens, many of which apply differently to different people (non-nationals, the very young, etc.) and the duties they do impose are of varying degrees of substantive rigor.20 In addition to conflating what citizenship ought to be with what citizenship is, normatively driven definitions of citizenship are reductive in ways that, once put into practice, are unrealistic and present risks associated with degrees of, and bases for, exclusion that prove problematic. Many versions of democratic theory boil their justifications

Some argue that all decisions permitting or restricting the crossing of borders are the product of discretionary authority. Mark B. Salter, “When the Exception Becomes the Rule: Borders, Sovereignty, and Citizenship,” Citizenship Studies 12(4) (2008): 365–380. In the United States, see The Immigration and Nationality Act of 1952 at 8 USC Section 1103(a). This gives the Attorney General broad powers of discretion regarding questions of immigration, asylum, deportation and many other matters of border control. See Chapter 5 of this work as well. 20 Peter H. Schuck, “Liberal Citizenship” in Handbook of Citizenship Studies, eds. Engin F. Isin and Bryan S. Turner (London: Sage, 2002), 131–144. The payment of taxes and jury duty are among the most demanding duties of citizenship common to liberal democratic states, and these require little ongoing substantive engagement of citizens with one another, or with politics more generally. Few states even insist that citizens vote. Exceptions include Australia, Belgium, and the Netherlands. (Lisa Hill, “Low Voter Turnout in the United States: Is Compulsory Voting a Viable Option?” Journal of Theoretical Politics 18(2) (2006): 207.) 19


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for citizenship down to liberal readings of utilitarianism.21 Citizenship ultimately comes to be justified by the degree to which it yields a good that is itself fundamental to democracy. More substantive understandings of the bases of rights that define citizenship more narrowly, such as those offered by Edmund Burke, draw even more highly determined relationships between rights and the human communities that guarantee them. Burke and his communitarian progeny set high bars for membership, thus grounding democracies that are not liberal in character.22 For utilitarians, it is tempting to use the demands of procedural democracy as a justification for the rights of citizenship to which people will be entitled. Republican theory similarly justifies rights based on even more wellspecified visions of the kinds of societies their exercise will achieve. Within these justifications, social rights and many civil rights exist for the purpose of facilitating specific forms or modes of political participation.23 This reasoning effectively makes social and civil rights of citizenship contingent upon the effect they have on political rights. If a particular civil or social right is irrelevant to the realization of political rights, then it cannot be justified. So, for example, the absence of social welfare rights can keep people from exercising civil and political rights. This is contingency that is internal to the bundled civil, political, social, and nationality rights of citizenship. The most common version of such contingency predicates social rights on their necessity for the exercise of civil or political rights.24 Anyone without political or civil rights would not need social rights. Contingency can work in any direction. One could imagine a justification for political rights of representation that predicates them on property rights. In this version of contingency, anyone who does not own property does not need political rights. Regardless of which rights are considered contingent on which other rights, functional See Ian Shapiro, The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986), 273. 22 Edmund Burke, Reflections on the Revolution in France, ed. L. G. Mitchell (New York: Oxford University Press, 1999); Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1984); Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA: Belknap Press, 1998); and Jean Bethke Elshtain, Democracy on Trial (New York: Basic Books, 1995). 23 �� This kind of logic is often assumed or directly incorporated into concepts of citizenship. See Adrian Oldfield, Citizenship and Community: Civic Republicanism and the New World (New York and London: Routledge, 1990); Dawn Oliver and Derek Heater, The Foundations of Citizenship (London: Harvester Wheatsheaf, 1994). 24 See, for example, Joas Carlos Espada, Social Citizenship Rights (London: MacMillan Press, 1996), Chapter 7. 21

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contingency between the fundamental rights of citizenship reduces citizenship to only those goods on which other rights are predicated. Citizenship becomes an inverted pyramid that balances the heavy weight of rights on their connections to a narrow subset of specific acts and goods. Only the tip of that pyramid remains truly fundamental. There are two kinds of problem with a contingent understanding of citizenship in which some of the fundamental rights of citizenship are offered only to people who hold other fundamental rights of citizenship. First, it makes an empirical claim that is sometimes false. To some extent it may hold true that the instantiation or exercise of one right fulfills conditions necessary to exercise another right. However, this relationship need not be central to why a right is included in the pantheon of rights considered fundamental to citizenship. After all, there are relationships between all kinds of rights and privileges that do not cause us to continually expand the boundaries of citizenship rights. It is also difficult to imagine that any relationship between a right and the corresponding good it produces is universal. Not all people provided with social rights of any kind become specific types of “good” or “effective” political participants. Plenty of people who do not have, or do not avail themselves of, social rights are good participants. Second, moral philosophers lodge convincing arguments that it is not only unrealistic to justify social rights on the basis of civil and most political rights, it is also unsustainable because liberty rights cannot be reduced to welfare rights, or vice versa.25 Civil and political rights free us from domination of various forms. But they do not entitle us to any particular set of positive freedoms. We are free to speak, but if paralyzing phobias prevent this, we cannot expect the state to redress our phobias or muteness on the basis of our right to speech. This is a threshold problem, insofar as some positive rights inevitably exist, e.g., roads on which we can travel to polling places. We just do not know where the line lies between a reasonable positive right and an unreasonable positive right, e.g., a chauffer and luxury automobile to transport us to a polling place. There is a deeper problem, however, than not knowing where the line between reasonable and unreasonable positive rights is to be drawn. The larger problem is one that relates to the logic that makes the elements of citizenship contingent upon one another and that is, therefore, potentially reductive. There are those who make both historical and normative 25

Tara Smith, “On Deriving Rights to Goods from Rights to Freedoms,” Law and Philosophy 11(3) (1992): 217–234.


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claims that the rights of citizenship are contingent on each other. Each of these claims is problematic. The historical claim can be attributed to T. H. Marshall’s account of social rights.26 This view supports the idea that the rights of citizenship have evolved in a temporally distinct, but conceptually linked, fashion. Civil rights preceded political rights, which preceded social rights. In Marshall’s telling, there is a dependent relationship between types of rights. Social rights allow the exercise of civil and political rights that in turn ground support for the kinds of equality embodied by social rights.27 The normative claim assumes that certain types of rights require other rights to guarantee that people will be able to exercise them.28 There is no reason to presume that the practices of citizenship cannot, or do not, disaggregate fundamental rights. It is also normatively dubious to create a dependent relationship among rights that are all deemed fundamental. First, I address the practical claim that citizenship rights are not effected in a way that makes them contingent upon one another. If citizenship rights were contingent upon one another, then distinctions between rights would ultimately break down entirely. In fact, examples abound in which rights are unbundled and rebundled in packages that exclude one or more, but not necessarily all, fundamental rights. For example, it is possible to give a person either the right to vote or their right to free expression, without simultaneously protecting the other T. H. Marshall, Class, Citizenship, and Social Development: Essays by T.H. Marshall (New York: Doubleday, 1965). 27 A standard telling of Marshall’s tale lodges a complaint with the evolutionary nature of his account. Desmond King and Jeremy Waldron identify and reject this complaint for its obvious superficiality. (See Desmond King and Jeremy Waldron, “Citizenship, Social Citizenship and the Defense of Welfare Provision,” British Journal of Political Science 18(4) (1988): 424.) If democracies somehow evolve away from granting certain rights, most obviously social rights (though recently many democratic states grant weak rights associated with nationality to significant parts of their populations), we must then say that citizenship no longer comprises such rights. This is, as King and Waldron suggest, a weak argument since most social and political theorists recognize that the historical evolution of rights is the realization of fundamental understandings of equality on which ideas of membership are predicated. It is less the case that a retraction of rights represents a redefinition of citizenship than it is the case that early or late iterations of citizenship that exclude one or more categories of rights are incomplete. 28 Habermas’s five-part classification of types of rights includes the following succinct description of this belief. His fifth category asserts, “Basic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded, insofar as the current circumstances make this necessary if citizens are to have equal opportunities to utilize the civil right listed in (1) through (4).” Jürgen Habermas, Between Facts and Norms, trans. William Rehg (Cambridge: MIT Press, 1999), 123. 26

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right. It is even possible to justify such an action. We might say, for example, that free expression endangers security during times of war. It would be a wild exaggeration to say that this constitutes a violation of political rights such as voting or representation even though it is entirely reasonable that the squelching of public protest could affect how the franchise is exercised . While Marshall notes that none of the three individual parts, which are integral to his definition of citizenship, is complete on its own, the very fact that each developed in historically distinct phases points to their practical separability. The durable presence of all kinds of semi-citizenships ratifies the fact that rights are not granted contingent on other rights. Various groups have and will always hold some, but not all, rights of citizenship. The normative claims that support rights contingency are also problematic in that they lead toward regarding semi-citizenships as containing both oppressive and liberating potential. Contingency among citizenship rights makes citizenship perilously reductive. We may think the state has an obligation to fulfill specific human needs, including those associated with health and/or mental illness. However, predicating those obligations and their attendant rights on the degree to which they bolster/facilitate other elements of citizenship collapses an important distinction within our understanding of citizenship. If social rights are justified because they will ensure that people exercise their civil rights (for example, free political speech), and this turns out not to be the case (people with social rights remain silent), we have lost the ground upon which we can justify providing people with social rights. It is even the case that a negative statement, such as, “one cannot be guaranteed the right to vote without social rights,” runs the same risk. If very hungry or sick people vote in high numbers, then there is no normative bite to the claim that people are entitled to social rights on the basis of their right to vote. Similarly, a regime that deprives people of the franchise, based on an evaluation of their participation in public deliberations, would have a difficult time claiming democratic legitimacy. The dangers of making some rights contingent upon the possession or exercise of other rights hold true whether one speaks of procedural or substantive understandings of democracy .29 They also hold true in any These claims do not entail that we reject justifications for different types of rights that have overlapping references to our most fundamental understandings of human desert. So, for example, our explanations of how people come to deserve social rights and political rights may both be justifiable by virtue of a utility principle or on the basis of a particular understanding of the self. This does not contradict the fact that political rights only have force in specific contexts.

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direction. If we justify democratic rights by the likelihood that they will enable a thriving, wealth-producing, free market, we run the risk of undermining the bases of political freedom should they not produce wealth. An account of citizenship is problematic if even reasonable or unavoidable exclusion from one type of fundamental right could leave an individual completely rightless. It also makes justifying rights outside the context of democracy difficult, however democracy is defined. If civil rights are justified by their political efficacy, we have no reason to think that such rights are worth protecting in a state with a corrupt electoral system. They will not be politically efficacious in such a system. It is undesirable to suggest that states with absent or weak democratic institutions have few or weak justifications for providing civil, social, or nationality rights. Contingency is undesirable regardless of which right is said to ground other rights . The non-contingent nature of the elements of citizenship is demonstrated by the degree to which citizenship is defined and institutionalized in a diverse and dispersed manner. There is a fundamental uncertainty about what or who defines citizenship. For social scientists this is fodder for debate. For states this creates spaces within which semi-citizenships can form. Again, if one were to accept Burke’s critiques of liberalism, or if one were to envision states as seeking only to simplify and level populations into single, modal individuals, then the diffused definition of citizenship would seem unlikely. Yet, it remains the case that multiple sources of authority define and govern citizenship in any given democratic nation. One would imagine that constitutions spell out the rights and responsibilities associated with institutional membership. However, they are often silent on the subject of citizenship or in regard to elements contained within a definition of citizenship.30 The U.S. Constitution had remarkably little to say about the rights of citizens until the passage of the Civil Rights amendments. These amendments make core civil rights available based upon personhood, rather than the possession of formal nationality, and the right to vote was also available to non-nationals until relatively recently .31 The language of universal human rights encourages rights-conferring documents to refer to persons rather than citizens. �� “Citizenship is a set of equal rights, and rights are in one respect chances, opportunities to make choices. It is commonplace today that such rights cannot be given by writing them into constitutions and laws.” Ralf Dahrendorf, “Citizenship and Beyond” Social Research 41(4) (1974): 685. 31 Jamin B. Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional, and Theoretical Meanings of Alien Suffrage,” University of Pennsylvania Law Review 141(4) (1993). 30

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Many European state constitutions refer to persons rather than citizens. This ambiguity within founding documents has the effect of delegating the task of dealing with the contradictions raised by the confrontation of theories of equality and difference. Legislatures, judges, and even bureaucrats become responsible for defining what exactly citizenship consists of and, in some cases, who will receive it. For example, in A nglo-American law, legal status comes to distinguish people with special conditions on their citizenship from those who are considered “normal” persons.32 The many layers that compose citizenship are controlled independently. With no authority for, or even authoritative definition of, citizenship, the diverse and independent processes through which it is created must also serve as the means for judging its fairness and legitimacy. To say that the fundamental rights of citizenship are not contingent upon each other is not the same as saying that the rights of citizenship all refer to the same good, i.e., rational capacities. Chapter 4 explores at greater length the degree to which doctrines that articulate citizenship rights can have greater or lesser influence over the grounds upon which any right of citizenship is granted. Any given right, or even all rights, can have a distinct relationship to an external good such as rationality. Eschewing rights contingency also does not entail rejecting external utilitarian or functionalist arguments that support specific fundamental rights. However, the non-contingency argument does point toward another conclusion: namely, that in addition to it being normatively problematic and substantively inaccurate to describe fundamental rights as contingent on one another, it is likely that there is disagreement in any given political context over the grounding for any given right or set of rights. Even formative acts, such as constitution-writing and the demarcation of citizenries, may include normative arguments that converge on the fundamental nature of a given right, despite the fact that they do not ground that right in the same kinds of reasons. This yields all kinds of political ramifications, Failer, Who Qualifies for Rights?, 56–57. Failer notes that “… legal status has been, and surprisingly continues to be, the mechanism through which the law distinguishes between the various bundles of rights that attach to people based on their particular legal standing.” Thus, “legal status can be the basis for many legal rights, duties, capacities, and incapacities. Only upon gaining the status of a committed mentally ill person, for example, might a hospitalized schizophrenic have a legal right to treatment. Or, when a branch of the armed forces learns of the sexual orientation of some gay and lesbian members, it assigns them the status of a homosexual – a status that denies them the legal capacity to serve.” Failer’s point is consistent with Carl Schmitt’s observation (discussed in Chapter 4) that sovereign power is identifiable by virtue of the fact that it decides on states of exception. Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge and London: MIT Press, 1985).

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including – most relevantly to the subject of this study – very specific limits on, and opportunities for, the boundaries of citizenship. That citizenship cannot be defined exclusively by norms, or by citizens’ choices and actions, suggests that some political authority must identify which acts will be privileged as acts of citizenship, and whose performance of these acts will be regarded as citizenly.33 Regardless of what normative value we place on civicness or political engagement, it remains the case that citizenship is not automatically available to anyone who behaves in the manner of a citizen.34 A political body must thus be officially designated as possessing the authority to grant, deny, and revoke citizenship. It is tempting to refer to constitutions as combining normative and political authority in a way that positions them to define citizenship. This too turns out not to provide a fully satisfying account of how citizenship is defined. Constitutions describe the rights of citizens and the terms upon which those rights and obligations are conferred, but they do not always do so systematically or precisely.35 Even when they do, they remain objects of interpretation rather than direct conduits to practice. It is common in constitutions to see the phrase “persons governed” conflated with “citizens.” As indicated by even a cursory look at the constitutions of western democratic nation-states, many nations use the words “citizen” and “person” nearly interchangeably, despite the fact that many of the persons directly governed by any given constitution are not full citizens.36 This makes the text of constitutions unreliable sources of ultimate authority on the meaning of citizenship, despite the fact that they are politically better-positioned than normative theory to make important statements about norms of membership.

III. Reasserting Authority to Define Citizenship The remaining likely source of authority in which we can ground citizenship is the state, in its capacity as executor of administrative rationality. For reasons I discuss in detail in Chapter 4, the political authority will usually be a state. 34 A frequently cited difficulty associated with defining citizenship is the degree to which the obligations of citizenship and political action bleed into each other. In fact, this is as much a conceptual hurdle as it is an academic failing. The word “citizenship” is frequently invoked to refer to any number of political activities for which there ought to be a distinct, commonly held political vocabulary. 35 Linda Bosniak’s work has discussed this attribute of the United States Constitution. Bosniak, The Citizen and the Alien, see especially Chapter 4. 36 T he Basic Law of Germany is a notable exception to this rule. 33

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Even as arguments about post-national citizenship are burgeoning, there remains agreement that the state is unique both in the degree to which it is recognized as legitimate, and in the degree to which it monopolizes control over the act of granting a uniquely significant and central form of political membership. The role of the state in defining citizenship is much debated and contested in the contemporary literature on membership. I take up this question in greater detail in Chapter 4, and I ultimately argue that, although states may not hold a perfect or perpetual monopoly on the authority to define the category of citizenship, they perform a special role in mediating among liberal and democratic norms, which are themselves sometimes in conflict, as well as among the imperatives of governmentality. As T. K. Oommen pithily puts it, “to dissociate citizenship from its very source – the state – is to render the notion irrelevant and meaningless.”37 Norms, in this view, do not drop out of the picture, but rather enter into conflict with one another and with demands of administrative rationality. The gradience of thresholds within the larger category of citizenship is established in the process of resolving these conflicts. The individuals over whom states exercise authority enter into relationships with those states, and through those relationships citizenship is produced.38 States may, and do, refer to norms in policing the boundaries of citizenship; however, as the case studies of semi-citizenship illustrate, they often draw upon multiple sets of conflicting norms. The observation that states hold special authority over citizenship introduces into the categorical picture of citizenship an inevitably undemocratic element that offends partisans of normative definitions of citizenship within democratic theory. Self-determination and democracy are inextricably linked.39 However, a category such as citizenship is not itself particularly self-determined, even though it grounds the creation of a demos. The demos may make or influence rules regarding who will qualify for citizenship, but it does not directly select members. Furthermore, as illustrated in the preceding section, membership is not necessarily available to anyone willing to adhere to basic democratic

T. K. Oommen, Citizenship, Nationality, and Ethnicity: Reconciling Competing Identities (Cambridge: Polity Press, 1997), 228. 38 This is important to our definition of citizenship and will reemerge when we examine the range of arguments detailing the reconfiguration of citizenship in a global context. In the absence of a recognized political authority, participation in global civil society can no more constitute citizens than can participation in local forms of civil society. 39 Robert Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989), 93. 37


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norms. A number of scholars make this point in various ways.40 Once we recognize that citizenship is defined by practices associated with specific relationships of authority, rather than by an ideal concept of citizenship, it becomes evident not only that semi-citizenships are possible, but that they are likely. Normative theory encourages unitary thinking about citizenship by positing a notion of the good that is fulfilled by, or through, citizenship. In the absence of a normative “least common denominator,” without which a state cannot claim to call members citizens, citizenship can take many forms even within the borders of a single nation-state.

IV. What Kind of Concept Is Citizenship? In defiance of methodological injunctions to approach “concept stretching” with caution, the term citizenship is used indiscriminately to refer to vastly different groups both in comparative contexts and within nationstates. The result is that a word that ought to be a term of art, given its importance to social science, can generate no consensus regarding its proper meaning. Citizenship has been called a status, an activity, and a relationship, among many other referents. Distinguishing citizenship from related but distinct concepts, like nationality, civicness, and membership, requires starting from the most abstract conceptual level and progressively moving to specific acts and statuses. Citizenship can refer to the actions of fully entitled members of democratic polities, passport bearing “citizens” of authoritarian nation-states, and children the world over, though the political standings of these individuals have virtually nothing in common.41 Parts of citizenship are also often taken to represent the whole, as often occurs when possession of a passport, the franchise, or even social rights are conflated with citizenship. At times, citizenship appears so contested as to call into question its own existence. Yet without some concept of citizenship, much of what justifies liberal democratic states in the first place, namely, the possibility of secure political membership that they hold out, becomes unintelligible. See, for example, Peter Schuck and Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (New Haven: Yale University Press, 1985). See also Thomas Janoski, Citizenship and Civil Society: A Framework of Rights and Obligations in Liberal, Traditional, and Social Democratic Regimes (Cambridge: Cambridge University Press, 1998). 41 The immense citizenship literature includes a number of thorough surveys of definitions of citizenship. A representative sample includes: Sassen, Territory, Authority, Rights, Chapter 6; Lister, Citizenship: Feminist Perspectives; and Handbook of Citizenship Studies, eds. Engin Isin and Bryan S. Turner (London: Sage, 2002). 40

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Judith Shklar provides us with a good starting point for specifying what kind of concept citizenship might be in her discussion of the flawed history of American citizenship. Shklar self-consciously chooses to use the word “standing” instead of “status” as a primary descriptor of citizenship.42 Shklar claims that status has pejorative associations with hierarchy that we ought to avoid invoking in association with citizenship. Chantal Mouffe also explicitly rejects the idea that citizenship is a status, instead arguing for seeing it as a “form of identification.”43 Each of these approaches implicitly embraces the notion that citizenship reduces stratification, rather than reordering existing strata or superimposing additional layers of hierarchy on already stratified political communities. As appealing as this notion is, there is much to recommend thinking of citizenship as a status. Rogers Brubaker makes an equally deliberate but contrary choice to Shklar’s in describing citizenship as a status.44 He attributes this to the fact that personal status was the decisive determinant of membership in pre-modern G ermany. Rainer Bauböck adds historical depth to this argument by marking the fact that citizenship became associated with status via the institutions of the Roman Empire that substituted law (and hence legal status) for the participation that had attached persons to polities in Athens.45 Bauböck and Brubaker privilege the way in which citizenship works (or comes to work) over the way in which Shklar wishes it to work. As liberal democrats we may desire standing, but we find, both in comparison with less privileged members of our own community, and certainly with members of various other states, that our membership looks a great deal more like status than standing. Shklar approaches citizenship with normative aspirations that Brubaker might find overly optimistic in light of the historical narrative his study reveals. Shklar has a problem with the hierarchical nature of status. But citizenships do create hierarchies, both between haves and have-nots, and within citizenries, as the notion of semi-citizenship implies. Shklar wants to distinguish between standing and status – and ultimately to argue for understanding citizenship as standing rather than status. The distinction does not pay off in the way that Shklar would have us believe. Etymologically, the suffix, “-ship,” implies Shklar, American Citizenship, 2. Chantal Mouffe, “Democratic Citizenship and the Political Community,” in Dimensions of Radical Democracy, ed. Chantal Mouffe (London and New York: Verso, 1995), 231. 44 Rogers Brubaker, C itizenship and Nationhood in France and Germany (Cambridge: Cambridge University Press, 1992), 62. 45 Rainer Bauböck, “Reinventing Urban Citizenship,” Citizenship Studies 7(2) (2003): 139. 42 43


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that citizenship is a state or, to use the close cousin of state rejected by Shklar, a status. This status confers a type of standing upon individuals. Furthermore, Shklar’s replacement of status with standing does not resolve quandaries related to inequality: standing is inherently relative and can thus nonetheless create and reify hierarchies just as much as status can. Citizenship may neither begin nor end with status, but the two cannot be disentangled. A more institutionally driven approach resolves conceptual confusion by identifying citizenship as an institution through which the state manages its members on a number of different planes. But viewing citizenship in this manner, like viewing it as a status or standing, assumes it to be a condition that is experienced entirely passively, rather than one produced by the citizens who hold it. Another recent account interprets citizenship as “less an institution than [as] strategies governing processes of social change by shaping, and sometimes transforming citizens’ attributes, expectations and practices.”46 This is a close cousin of the argument that citizenship is a process or praxis through which individuals and groups are able to articulate claims via active engagement.47 At the risk of appearing to avoid specificity where it is required, one can cautiously claim that none of these arguments is without merit. But each is also missing part of the picture in that they don’t tell us what defines citizenship at an even more fundamental level. What all the above understandings of citizenship have in common is that they act to categorize. Whether it is action, individuals, offices, or relationships, citizenship classifies and distinguishes people from one another. Regardless of content, citizenship acts as a political category. It instantiates distinctions and organizes groups based on a set of qualities that are at least claimed to be relevant to one another and to a particular understanding of political membership. The qualities, qualifications, social meaning, benefits, and boundaries are all subject to change. However, there is no point at which citizenship does not mark categorical distinctions. The fact that citizenship is a category ought to affect our expectations both of instantiations of citizenship and of its analyses. Giovanni Procacci, “Governmentality and Citizenship,” in The Blackwell Companion to Political Sociology, eds. Kate Nash and Alan Scott (Malden: Polity Press, 2001), 342–351. 47 Carine Bachmann and Christian Staerklé, “The Meanings of Citizenship: From Status to Social Process.” Available at http://www.cimera.org/files/reports/rr1/chapter2.pdf; last accessed March 21, 2009; on praxis, see Lister, Citizenship: Feminist Perspectives. 46

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Understanding citizenship as a category facilitates several important inferences, each of which bolsters the case for recognizing citizenship as comprising a family of forms of membership, rather than apprehending it as a single status or identity. That citizenship is at root a social and political category should not surprise historians of political thought. Max Weber understood categories as crucial to social closure of the very sort that is central to the function of citizenship.48 Without denying Weber’s claims about social closure, it is evident that there will be points at which categorical closure is not, and cannot be, seamless. In fact, Charles Tilly argues convincingly that most large-scale categorical boundaries are incomplete, or imperfect, and hence engender porous “frontiers” (either physical or metaphorical) at which blending and categorical hybridization occurs.49 Categories have the ability to mark distinctions, and yet they need not always be mutually exclusive. This knowledge does not exclude the claims of someone like Rogers Brubaker, who demonstrates the fundamental nature of the relationship between citizenship and social control, or even Weber, on whose thought Brubaker draws.50 But it suggests that sometimes the end of control is best served by flexible means.

V. What Kind of a Category Is Citizenship? Since political categories can take many forms, identifying citizenship as a category is only a first step toward defining the concept. In specifying citizenship one is confronted with problems associated with the Sorites Paradox. The Sorites Paradox refers to the difficulty arising from any attempt to assign an exact point at which a definitional threshold has been met, particularly when the definition itself is not entirely precise. So, the point at which a collection of sand grains becomes a heap is perhaps impossible to identify, since one may be quite certain that neither a single grain, nor two, etc., etc., constitutes a heap, but just as certain that there are some heaps. In the same way, contestation might call into question whether citizenship means anything at all. The ambiguity associated with thresholds also points to the insufficiency of existing frameworks within which citizenship is understood. Citizenship contains within itself multiple thresholds. Not only is it not a single thing, it is also not dichotomous. Citizenship contains multiple components, each of which can be extended in degree. In either case, exceptions – which Max Weber, Economy and Society (Berkeley: University of California Press, 1978), 43. Charles Tilly, Durable Inequality (Berkeley: University of California Press, 1998), 7. 50 Brubaker, C itizenship and Nationhood in France and Germany. 48 49


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are generated by the fact that thresholds shift – reaffirm the existence of inclusion even if they do so by excluding.51 In other words, the fact that vast swaths of a population are at some points accorded “exceptional” forms of membership, by virtue of ambiguous thresholds for full inclusion, does not in any way deny the existence of inclusion itself – just as it is the case that we cannot conclude heaps do not exist simply because there is no precise point at which accumulating grains of sand become a heap. Such circumstances may even strengthen the confidence with which we can assert that full citizenship exists through negative references to the ways that some people fail to merit or exercise it. Using a unitary language of citizenship reifies the belief that semi-citizenships do not, ought not, and in some cases cannot exist. This makes aberrations difficult to see from either an academic or a practical perspective. Other categories, such as the semi-citizenships on which this study centers, cease to exist in any explicit sense, or are discussed using less institutionally formal terms, such as “identities.” For instance, someone might be a “gay American” or a “legal alien,” but unitary definitions of citizenship only capture the fact that one is a citizen and the other is a non-citizen. This serves to bolster the assumption that norms of citizenship obtain, that they are meaningful and effective, and that they are possibly even authoritative. A variety of reasons could be offered to justify why we think the gay person is a citizen and why we think the legal alien is a non-citizen. One has a passport while the other does not. One votes, the other does not. On the other hand, the “non-citizen” can marry a citizen in most states, while the “citizen” cannot, and from this fact flows a set of consequences that call into question who among the two is a citizen or a non-citizen. Giorgio Agamben reminds us that, “man is the living being who, in language, separates and opposes himself to his own bare life and, at the same time, maintains himself in relation to that bare life in an inclusive exclusion.”52 His discussion of “states of exception” takes note of the fact that the joining of sovereignty and biopolitics produces multiple thresholds for membership that in turn create partially overlapping circles of inclusion and exclusion.53 He cites Lanjunais’s words (as quoted in Sewall, “Le citoyen”), “Thus children, the insane, minors, women, those Etienne Balibar makes this point in detailed fashion. See Etienne Balibar, Politics and the Other Scene (London and New York: Verso, 2002), especially Chapter 4, “What is a Border?” 52 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Palo Alto, CA: Stanford University Press, 1998), 8. 53 Agamben, Homo Sacer, 38. 51

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c ondemned to a punishment either restricting political freedom or bringing disgrace [punition affliction ou inflammante] … will not be citizens.”54 Etienne Balibar also refers to the “notion of minority” as extending to human beings who are subject to “protective authority of full citizens” and administered via provisions rooted in democratic principles that vest majorities with such powers over minorities.55 He identifies “several different types of aliens and alienness and several different modes of bordercrossing” in the case of post-war European camps alone.56 Citizenship is therefore a “gradient category.” It exists in gradations and has “degrees of membership and no clear boundaries.”57 There is a difference between a citizen and a non-citizen, but the line between the two cannot be traced to any one point of law, trait, or action. There are multiple points at which individuals can straddle the category by exhibiting some of the traits of citizenship, or receiving some of its rewards, without being entirely included. Seeing citizenship as gradiated thus argues strongly in favor of the notion that polities not only generate multiple forms of citizenship, but that it is inevitable that they do so. While there is a long-standing, and coherent, practical justification for individuals not having multiple attachments to separate nation-states, there is no corollary justification that indicates why states cannot grant multiple forms of citizenship.58 No practical imperative insists that nation-states generate only one kind of citizenship. Indeed much argues in favor of multiple forms of membership even when one takes into account the centrality of equal treatment before the law in liberal and democratic theory.

VI. The Elements of Citizenship There are multiple planes upon which gradations of citizenship can be described. Which are the specific thresholds that we need to pin down in order to define citizenship and semi-citizenships, what variables are in play, and how do they relate to one another? I have stipulated that citizenship is instantiated by states, which in turn channel norms and Agamben, Homo Sacer, 30. Balibar, Politics and the Other Scene, 151. 56 Balibar, Politics and the Other Scene, 80. 57 George Lakoff, Women, Fire, and Dangerous Things: What Categories Reveal about the Mind (Chicago: Chicago University Press, 1987), 12. 58 The prohibition on individuals holding multiple forms of membership can be traced back to Hobbes’s famous edict that “no man can obey two masters.” Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996): Chapter XX. 54 55


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necessity in administering membership. The category of citizenship is relational, and it is instantiated through practices that involve states and individuals. However, this still leaves open the question regarding what constitutes citizenship in the first place. Answering this question requires knowing more about the content of citizenship. Based on this, we want to know two further things. First, what rules are applied in order to confer citizenship upon individuals? Second, which properties are associated with citizenship? The first question addresses the characteristics required for someone to be considered a formal member of a polity. Answers to the latter query are meant to elaborate the content of citizenship, primarily by enumerating the rights, privileges, duties, and/ or activities associated with membership. The two are not unrelated: we can sometimes identify who is a citizen by looking at the distribution of, and participation in, the content implied by the second question. Most relevant scholarship treats one or the other of these questions, but few works compare normative definitions of the content of citizenship with analyses of who actually can and ought to be a citizen. One contribution of this study is to make such comparisons explicit. Doing so exposes a gap between abstract work on the content of citizenship and the concrete incongruities that attend membership in democratic states. Understanding the complexities of each of these questions, as well as the ways in which each affects the other, will help further illuminate why norms cannot ground definitions of citizenship, as well as outline the elements that do compose semi-citizenships. A. Who Can Be a Citizen? Any definition of citizenship must provide a rationale for determining who is considered a citizen – who will be entitled to the content associated with membership. How one gains or loses citizenship is fundamental to defining that status, both for current and aspiring members. Again, focusing solely on norms provides a misleading or incomplete basis for understanding how citizenship is assigned. Disjunctions between abstract notions of desert and the practical realities of how citizenship is awarded create one set of shifting thresholds that yield categorical gradience in the form of semi-citizenships. The gap is wide between the normative bases of rules regarding who is entitled to citizenship and actual policies of citizenship, but this is not entirely surprising given the social and economic pressures that often influence policymaking. These gaps

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encompass both the rules that assign and strip persons of citizenship, as well as the content that is conferred and denied by these rules. A central purpose of citizenship is to aid in making distinctions between members and non-members. Within the nation-state system the most significant tool for achieving this is nationality. Normative definitions of citizenship often begin from the basic question of whether nationality is best assigned through jus soli (citizenship by residency), jus sanguinis (citizenship by bloodline), or some combination of the two. These two principles govern not just who acquires what type of nationality when they are born, but also the range of choices open to adults who wish to change their status. Rogers Brubaker addresses the different paths opened by these two forms of citizenship in his comparative work on citizenship in France and Germany.59 The force of Brubaker’s study lies in his ability to demonstrate the relationship between nations’ identities and the forms of their citizenship laws. Whether it originates in primal myth or tangible goal, the form a community aspires to take will govern the rules of membership at least as strongly as the laws governing the conduct of members. However, because discussions of jus soli and jus sanguinis focus on nationality, they do not get at the full range of issues crucial to the assignment of citizenship. A second normative debate central to the assignment question revolves around the principles of desert and affected interest.60 Robert Dahl describes these two opposing means of defining the institution of citizenship as categorical and contingent. The categorical principle states: “Every person subject to a government and its laws has an unqualified right to be a member of the demos (i.e., a citizen).”61 The contingent principle states that, “only persons who are qualified to govern, but all such persons, should be members of the demos.”62 Both principles make a superficially convincing case for the corresponding types of citizenship. It is reasonable to think that a democracy would not subject people to laws Brubaker, C itizenship and Nationhood in France and Germany. On the latter concept, see Ian Shapiro, Democracy’s Place (Ithaca: Cornell University Press, 1996), 235; also see Robert Goodin, “Enfranchising All Affected Interests, and Its Alternatives,” Philosophy and Public Affairs 35(1) (2007): 40–68. Goodin notes that very few studies of this topic move past Frederick Whelan’s statement on the topic. Frederick G. Whelan, “Democratic Theory and the Boundary Problem,” in Nomos XXV: Liberal Democracy, eds. J. R. Pennock and J. W. Chapman (New York: New York University Press, 1983), 130–147. Goodin quotes Robert Dahl, writing, “Strange as it may seem … . How to decide who legitimately make up ‘the people’ and hence are entitled to govern themselves … is a problem almost totally neglected by all the great political philosophers who write about democracy.” 61 Dahl, Democracy and Its Critics, 124. 62 Dahl, Democracy and Its Critics, 124. 59

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of a state of which they are not citizens. On the other hand, Dahl invokes the case of children to illustrate a group who are routinely excluded from the demos, due to their incompetence in political matters. This example disproves the categorical idea that every individual subject to the laws of a state is a full-fledged citizen of the polity. To resolve this conflict of values, Dahl tests the validity of a “modified categorical principle” that states that “every adult subject to a government and its law must be presumed to be qualified as, and has an unqualified right to be, a member of the demos.”63 Dahl resolves that inclusion must be based upon the following criterion: “The demos must include all adult members of the association except transients and persons proved to be mentally defective.”64 He therefore flags maturity, capacity, and a temporal relationship to the space associated with a given demos as the most significant indicators of citizenship. Dahl’s theory seems to raise more questions than it answers and offers a reminder of the problems inherent in defining the boundaries of a gradient category. Indeed, the modified categorical principle of membership invites disputes related to boundary and threshold. What is the line between adulthood and childhood? When does someone make the transition from being a foreigner to being a subject of the laws, and therefore to being a citizen? If age is not a clear-cut criterion that demarcates when someone is qualified to govern, then why should birth – whether in the territory or to parents with citizenship – be seen as a less arbitrary criterion for citizenship? And once we have muddied the waters of nationality, foreignness itself seems entirely arbitrary. Most liberal democracies do not automatically take away the citizenship rights of those who are mentally impaired or who are members of cults, yet children and most foreigners are treated differently by the states that govern them. Rationality is but one example of a quality that lends an ambiguity to a threshold for citizenship. Many others exist, including even what distinguishes a guest from someone who is a permanent subject of the law. B. The Substantive Content Having illustrated some of the complexities associated with the assignment of citizenship, I will now further complicate the gradient treatment of citizenship by surveying different theories that address the Dahl, Democracy and Its Critics, 127. Dahl, Democracy and Its Critics, 129.

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question regarding the content of citizenship. In many ways, this section illustrates the problems already described: namely, that normativity in the study of citizenship tends to generate unitary understandings of citizenship that obscure the full range of actual and possible forms of political membership. Theoretical discussions of the content of citizenship may be divided into two general categories. The first view of the content of citizenship takes citizenship to be defined primarily by rights. States grant rights and thus define the expectations of citizens. In so doing, they give substance to the abstract notion of citizenship. The second view locates citizenship’s content in specific forms of political action. Individuals participating in the public sphere define the nature of citizenship through their fulfillment of specific responsibilities.65 Although they diverge in their cataloging of what content is lodged in the category of political membership, each account shares a commitment to a normative vision of politics. T he rights-centric approach emphasizes a social democratic vision of equality, whereas the latter, civic republican view makes virtuous political action its focal point. This hampers both rightsor action-based approaches from recognizing gradience in either rights or action as anything other than an incomplete or failed realization of what citizenship ought to be. In the following discussions, I outline how each account closes out the possibility of gradience. I then use this as a springboard to argue for looking at gradience within a rights-based framework that locates the ultimate authority for defining citizenship not in the normative premise of equality, but within the state. This lays the foundation for the work of Chapter 3, which produces a framework within which gradience can be understood, and the thesis of Chapter 4, which examines how the state negotiates between norms and necessity in ways that produce semi-citizenships. 1. Rights-Based Citizenship Hannah Arendt famously referred to citizenship as “the right to have rights.”66 T. H. Marshall traces an evolutionary development of citizenship, expressed in terms of essential civil, political, and social rights. Marshall charts the evolution of citizenship laws, which culminates, he argues, in the intertwining or “bundling” of civil, political, and, most recently, social rights. He begins from the premise that “there is a basic human equality This is to be distinguished from the idea that citizens alone define what it means to be a member, insofar as it is presumed that citizens fulfill responsibilities that are defined not by the individual, but by the collectivity. 66 Hannah Arendt, The Origins of Totalitarianism (New York: Knopf, 2004). 65


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associated with … full membership of a community – or … of citizenship.” Marshall identifies three strains of citizenship that gradually came together in the post-Enlightenment era of political history: The civil element is composed of the rights necessary for individual freedom – liberty of person, freedom of speech, thought and faith, the r ight to own property and to conclude valid contracts, and the r ight to justice … ( due process). … By the political elements I mean the right to participate in the exercise of political power, as a member of a body invested with political authority or as an elector of the members of such a body. … By the social element I mean the whole range from the r ight to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society.67

According to Marshall, citizenship rights bonded to each other serially, as each developed in the eighteenth, nineteenth, and twentieth centuries. The three rights were also bonded to nationality – understood here to refer to the rights to remain within a territory and to move freely – a relationship that Marshall does not explore with the rigor that he reserves for civil, political, and social rights, and that has been called into question of late by postnationalists. The result of this bundling, in Marshall’s view, was that citizenship became a more democratic institution, rooted in equality borne of the interwoven protection of three originally disparate strands of individual rights. Yet, in telling the story of citizenship as he does, Marshall presages citizenship’s gradience as well as the likely possibility that semi-citizenships will accompany citizenship even where citizenship is, on his terms, fully evolved. The most developed democratic citizenships knit Marshall’s three strands together. On its own, the idea that citizenship is composed of such a set of rights that are conferred by the state is consistent with what has been established thus far. But Marshall’s historical-analytic approach is accompanied by a strong normative thrust that is more problematic. Marshall is deeply committed to the idea that citizenship cannot be properly exercised until every citizen has a complete array of rights. He is particularly focused on social rights, the strand that he believed was just being wound into the braid of the first two at the time when he wrote. One is not a full member of society, in his view, if poverty or unmet basic needs restrict one’s choices or abilities. Citizenship by its very nature demands equality, and the state is charged with realizing

Marshall, Class, Citizenship and Social Development, 78.

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that equality.68 Social democratic thinkers tend to view citizenship rights primarily as a means to distribute goods to members of any given society.69 In other words, while historicist in method, Marshall’s account is ultimately driven by a commitment to the idea that citizenship is defined in normative terms of equality, and it drives, in turn, toward a unitary vision of citizenship. Marshall’s 1949 lecture, “Citizenship and Social Class,” marks the beginning of an era of citizenship studies heavily influenced by socialdemocratic norms of equality . One of the most prominent of the many critiques of Marshall’s account of citizenship is that it leaves something out. M ichael Mann and Bryan Turner have separately made arguments for adding economic citizenship to Marshall’s basic rights. Bryan Turner, among others, has suggested that Marshall overlooked cultural rights, which have become important to many citizens of diverse democracies.70 It has also been suggested that a separate right to work be considered fundamental to citizenship, although Marshall folded economic rights, including the right to work, into his definition of civil rights.71 One may easily imagine others advocating still other categories, such as environmental rights.72 These arguments, while damaging to Marshall’s claims that citizenship no longer evolves when social rights have been fully established, are not inconsistent with the spirit of his thinking. Neither is the related argument that Marshall was overly optimistic regarding how firmly entrenched social rights would become. In fact, since he published “Citizenship and Social Class,” there have been both massive improvements to, and retrenchments in, the social rights associated with democratic citizenship. What this suggests is that Marshall offers a convincing picture of the content of citizenship, but that he provides no mechanism with which we can think systematically about the fact Marshall wrote, “The basic human equality … has been clearly identified with the status of citizenship.” Class, Citizenship and Social Development, 77, see also 93. 69 See John Rawls, A Theory of Justice (Cambridge: Belknap, 1971); and Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980). Political sociologists take this position even more fervently than do political theorists. 70 See for example, Michael Mann, The Sources of Social Power: Volume II (Cambridge: Cambridge University Press, 1993); Bryan S. Turner, “The Erosion of Citizenship,” British Journal of Sociology 52(2) (2001): 189–209; Maria Pia Lara, “Democracy and Cultural Rights: Is There a New State of Citizenship?,” Constellations 9(2) (2002): 207–220; and Maria Pia Lara, “Cultural Citizenship,” in Handbook of Citizenship Studies, eds. Engin Isin and Bryan S. Turner (London: Sage, 2002), 232–243. 71 Different understandings of civil rights are addressed in Chapter 3. 72 See, e.g., Elizabeth Jelin, “Towards a Global Environmental Citizenship,” Citizenship Studies 4(1) (2000): 47–63. 68


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that, at any point in history, many people in any democratic polity have neither an entirely complete nor an entirely incomplete bundle of rights. In other words, Marshall provides an excellent starting point for thinking about citizenship’s gradience, even as his normative premises prevent him from actually offering such a theory . 2. Civic Republican Theories of Citizenship Classical approaches to the content of citizenship prioritize the activity of citizens over the actions of polities toward members. The very idea of the citizen can be traced back to Aristotle’s version of political membership rooted in duty. In The Politics he writes, “the citizen whom we are seeking to define is a citizen in the strictest sense … and his special characteristic is that he shares in the administration of justice and of offices.”73 In this phrasing, citizenship is distilled to a characteristic, though this characteristic is then linked to a set of activities that realize this characteristic. Individuals acting as virtuous and involved members of their political community become citizens through specific works associated with a good. As Aristotle’s unitary language (“a characteristic”) suggests, he draws stark lines in his discussion of action between citizens and non-citizens. Just like rights-based views, civic republican and neo-republican theories of citizenship are normatively driven, too. And, just like the Marshallian view, there are ways in which these theories could lend themselves to a vision of citizenship as gradiated. Types of action could be disaggregated, and people who fulfill one or another of the requirements of full citizenship would occupy different loci on the gradient of semi-citizenship. However, the premise of civic republican accounts of citizenship is as unitary as the egalitarian social democratic premise of Marshallian and other rights-based approaches. They posit a notion of the good bound up in action that, because it is normatively desirable, marks partial fulfillment of the good, or partial capacity to fulfill the good, as a failure to achieve the good. Despite the potential disparity between norms of equality and virtue-based norms, it is still the case that when the substantive vision of virtue that has been posited is not achieved, the political statuses that result can only be regarded as mistakes or failures, rather than residual statutes that necessarily accompany any definition of membership. This preserves a unitary divide between citizens and non-citizens.

Aristotle, Politics (Cambridge, Cambridge University Press, 1996), Book III, Chapter 1.

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The more recent movement towards discursive models of citizenship grows in part out of active understandings of citizenship. Jürgen Habermas’s work, both on citizenship and national identity, as well as on the importance of mutual recognition within the public sphere, has spearheaded efforts to look towards “communicative action” and “deliberative democracy” as focal acts of citizenship.74 In a similar vein, Seyla Benhabib urges us to nurture what she calls “democratic iterations” that invoke “complex processes of public argument, deliberation, and exchange through which universalist rights claims and principles are contested and contextualized, invoked and revoked, posited and positioned, throughout legal and political institutions, as well as in the associations of civil society.”75 Reciprocity between states and citizens is also of growing interest, and empirical studies, such as those by Suzanne Mettler and Joe Soss, indicate that a measurable relationship can be identified between some social policies and the civic engagement of the objects of those policies.76 An extreme and applied notion of desert is reflected in philosophies of citizenship that tend to be associated with jus sanguinis. This dramatic version of republican citizenship, originating during the Romantic era, is a volkish form of ethnonationalist membership rule, a view constructed around formalized expectations of specific styles of participation in civic life that cannot be achieved by individuals who are not very directly of that community.77 These themes are derived from interpretations of Herder’s and Rousseau’s philosophies, and more than one version treats cultural homogeneity and an ethnic ideal as the goal and function of a citizenship regime. In the contemporary context, this linking of virtue and participation corresponds best to jus sanguinis citizenship laws found in Israel, See Habermas, Between Facts and Norms; Jürgen Habermas, “Citizenship and National Identity” in Theorizing Citizenship, ed. Ronald Beiner (Albany: SUNY Press, 1995), 1–19; Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge: Harvard University Press, 1996). 75 Benhabib, The Rights of Others, 179. 76 Suzanne Mettler and Joe Soss, “The Consequences of Public Policy for Democratic Citizenship: Bridging Policy and Mass Citizenship,” Perspectives on Politics 2(1) (2004). 77 For a recent survey of contemporary thought on republican citizenship, see Richard Dagger, “Republican Citizenship” in Handbook of Citizenship Studies, eds. Bryan Turner and Engin Isin (London: Sage, 2002), 145–156. For a thorough discussion of variants of communitarian, republican, and neo-republican norms of citizenship, see Herman van Gunsteren, “Four Conceptions of Citizenship” in The Condition of Citizenship, ed. Bart van Steenbergen (New York: Sage, 1994), 36–48. See also Damon Linker, “The Reluctant Pluralism of J. G. Herder,” Review of Politics 62(2) (2000): 267–293. 74


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Japan, and, to a lesser degree, Germany as well.78 However, it would be difficult to say that these laws – some of which are slowly being relaxed, most notably Germany’s – and the spirit in which they are enforced constitute a definition of citizenship. And of course the conditions of cultural conformity that can produce such a citizenry have been the subject of intense scrutiny by political theorists.79 Even modified variants of communitarian conceptions of citizenship that make modern, pluralist claims often advocate a “nostalgic return to the past.”80 3. Rights vs. Virtue Just as the earlier section of this chapter argued in favor of locating authority for defining citizenship in the state, rather than in a normative ideal, an argument must now be made for choosing a way of defining the content of citizenship, so as to proceed with building a framework for understanding semi-citizenship. Both the existing rights- and civic virtue-based approaches lend themselves to a gradience that their respective normative bases prevent them from realizing. What remains, then, is to develop an argument identifying the thresholds that in turn define the contours of semi-citizenships. Although either the rights or the virtue approach could be reworked in ways that modify the role of norms to permit the recognition of gradience, the role assigned to the state earlier in the chapter argues in favor of an approach that prioritizes rights. Citizenship rights refer to relationships that are mediated by the state. For a number of reasons, the practices that are central to creating citizenship refer to, and require the authority of, the state. In Polyarchy, Robert Dahl describes an evolutionary process through which democracy was institutionalized in “older and more stable polyarchies through a liberalizing process that culminated in the extension of the franchise.”81 The right of franchise

G ermany seems a likely example, given its restrictive jus sanguinis naturalization policy. However, maintenance is a crucial component of any approach to citizenship, and once one has German citizenship, expectations of civic participation are far less prevalent than in most ethno-nationalist polities. Gershon Shafir and Yoav Peled, “Citizenship and Stratification in an Ethnic Democracy,” Ethnic and Racial Studies 21(3) (1998): 408–427. 79 This is an immense literature that comprises several sub-categories. On virtue see, Alasdair MacIntyre, After Virtue (Notre Dame, IN: University of Notre Dame Press, 1984). 80 Gerald Delanty, “Communitarianism and Citizenship,” in Handbook of Citizenship Studies, eds. Engin Isin and Bryan S. Turner (London: Sage, 2002), 167. 81 Robert Dahl, Polyarchy (New Haven: Yale University Press, 1971), 36. 78

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is central to Dahl’s definition of both polyarchy and democracy.82 He describes other rights associated with polyarchic citizenship as existing to bolster the right of franchise. Civil rights are defined in such a way as to make them a set of means to the ends of formal political participation.83 Dahl does not make much of the fact that civil rights originated in part as economic rights and, as such, defined an individual’s ability to participate in civil society as well as the demos. In some senses, the rights-based approach is preferable because of the weakness of the alternative. For an Aristotelian conception of politics to produce a contemporary definition of citizenship it needs to link in some way to the requirements mandated by states for membership. In other words, virtues and actions must be legal requirements in order to rise to the level of defining citizenship. Since the preceding section contained an argument against regarding all political activity as citizenship, the possibility of a participatory or civic understanding of citizenship is now limited to that which is in some way formally mandated. The contemporary revival of interest in citizenship studies coincided with the perceived failure of liberalism to answer the powerful challenges offered by communitarian and republican theorists of democracy. Communitarian, republican, and even neo-Aristotelian theories of citizenship have moved in different directions, but all move away from what they commonly view as impoverished rights-centric understandings.84 M ichael Sandel set out a moderate “bottom-up” model that dominated communitarian conceptions of citizenship for many years.85 Sandel conceptualizes community as a necessary precondition to any social welfare arrangements that a �� Here, I adopt �� Dahl’s distinction between �� polyarchy and �� democracy, though throughout the present work, where Dahl would use “polyarchy,” I use the term “democracy” to remain consistent with other cited scholarship that predates or does not accept this distinction. 83 In his initial statement of “requirements for a democracy among a large number of people,” Dahl lists only civil rights such as expression and association, and omits civil rights pertaining to equality or access to the economy. This is not to suggest that Dahl implies these types of rights are irrelevant to mass polyarchy, but he is setting up a theoretical model in which the civil and social rights that developed later in the history of most polyarchies are not seen as essential to the polyarchic nature of a regime. 84 Indeed, Martha Nussbaum’s neo-Aristotelian leanings have taken her all the way to a version of cosmopolitanism not embraced by civic republicans. See Martha Nussbaum, “Aristotelian Social Democracy” in Liberalism and the Good, eds. R. Bruce Douglas, Gerald M. Mara, and Henry S. Richardson (New York: Routledge, 1990), 203–252. 85 For a summary of the massive liberal/communitarian debate, see Michael Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge: Harvard University Press, 1996), 3–25. 82


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society deems worthwhile. Sandel and other communitarian theorists of citizenship find fault with liberal notions of universal human rights because they conceive these rights in such an abstract fashion as to make them almost impossible to tie to “situated” human motivations. Communitarians suggest that our real reasons for acting charitably or otherwise, ought to have little to do with any given definition of justice, and everything to do with how we interact as deeply connected members of communities. Adding to Sandel’s account, Mary Ann Glendon decries the clientalization of citizenship.86 Glendon suggests that emphases on rights have symbolically and substantively redefined the role of the citizen as a passive recipient of rights and benefits, rather than as an active shaper of her own fate. Calls for more demanding requirements, such as those made by civic republican theorists of citizenship, are powerful. However, to some extent they serve to underscore the degree to which the state has been unable, or unwilling, to make political action central to requirements of citizenship, hence exemplifying the challenge posed to normative definitions of citizenship at the outset of the chapter. Fulfilling obligations to one another and toward the larger community happens within the context of laws that describe and justify our obligations and mandate the behavior that fulfills them. We may be civic in public and in the course of interacting in civil society, but our most fundamental political claims on one another are both enumerated and enforced by bodies with the legitimate authority to do so.87 Thus, any definition of citizenship, in which a central role is played by activities that are not formally mandated by the state, relies on a normative ideal rather than a descriptive account of actual citizenships. Neo-republican variants of citizenship seek to integrate liberal conceptions of autonomy with classic notions of virtue, by considering citizenship to be an “office” that, among other things, demands loyalty .88 If we filter the claims of “rights sceptics,” and of those who prioritize active citizenship, through the claims made earlier in the chapter, then the bolder of their assertions about the weaker weight of rights in relation to activities gives us cause for concern. Significant though the idea of civic engagement is, civicness cannot be conflated with, or prioritized above, the institutional elements of citizenship. As stated earlier, Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991). 87 Janoski, Citizenship and Civil Society. 88 van Gunsteren, “Four Conceptions of Citizenship,” 46. 86

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a cting like a citizen cannot on its own make one a citizen. Definitions of citizenship that take it to be a practice of individuals and groups pass too readily over these two conclusions.89 Nor is it the case that passive citizens will have their citizenship revoked. In turn, understandings of citizenship that treat it as a relationship elide the fact that it is really the rights of citizenship that are relational, and not citizenship itself. Habermas himself makes the point that rights are in fact relationships. If rights are relationships, then citizenship refers to a set of relationships, but is not itself a relationship. Gradience has now been reasserted and further specified as referring to relationships. Citizenship is the formal category that denotes and constructs those relationships.90 Semi-citizenships are equally formal, if ill-recognized, members of the gradient category that is citizenship, and they can be identified based on the fact that they encompass some, but not all, of the relationships that compose full citizenship.

VII. Existing Attempts to Theorize Semi-Citizenship At this point, what has been established is that citizenship is a gradient category containing multiple thresholds that are embodied by rights insofar as they ground relationships between individuals and states. To take this idea further, a framework for identifying semi-citizenships needs to take into account the full range of relationships within the category, as well as the ways in which they can be graded. Such a framework will need to prioritize practice without denying the influence of norms or superimposing a single normative lens on the array of citizenships that can be, and are, produced by the practice of citizenship. It will also need to account for the possibility of change over time. The belief that social science requires better specification and language to study and discuss citizenship has a substantial constituency, but this constituency has not yet reacted to this call in a systematic fashion. Recent theoretical work on partial or differentiated citizenship suffers from three primary flaws, each of which has a correlate among the kinds of problems endemic in the larger debates about citizenship that were M argaret Somers bridges the two approaches. Her theory takes citizenship to be an institutional practice that incorporates rights. Margaret Somers, “Citizenship and Political Culture in the Place of the Public Sphere: Law, Community, and in the Transition to Democracy,” American Sociological Review 58(5) (1993): 587–620. 90 Habermas, Between Facts and Norms, 88, quoted in Kenneth Baynes, “Rights as Critique and the Critique of Rights: Karl Marx, Wendy Brown, and the Social Function of Rights,” Political Theory 28(4) (2000): 460. 89


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discussed in the first half of this chapter. These include, first, a myopic definition of citizenship that focuses on only one of its elements, which element has itself been prioritized by a normatively driven account of citizenship. Second, such normative commitments preclude analysis of processes that don’t fit into that framework. Scholarship about citizenship that preassigns normative desert to be the primary basis for inclusion or exclusion will miss certain things – for example, the ways in which states foster forms of threshold statuses out of sheer expedience, or foster exclusions not produced by the norms under evaluation. Third, a few prominent efforts to theorize something along the lines of semi-citizenship approach the subject with the implicit assumption that there is one kind of citizen and multiple forms of foreignness. Regarding foreignness as diverse captures the critique that citizenship and non-citizenship do not exist in a dichotomous relationship. However, terming people who are partially excluded as foreign or non-citizens disregards the degree to which these diverse foreigners are also included in the citizenry (forcibly by assuming a tacit consent). While this error is less consequential than the first, it too implies a norm. It implies the norm of a single universal ideal of membership, divergence from which renders a person foreign. These pieces of the puzzle point toward a more complete iteration of a theory of semi-citizenship. A. Normative Lenses on Semi-Citizenship A theory of semi-citizenship must take into account normative and non-normative bases of categorical gradience as well as their interaction. Because inequality and exclusion are antithetical to the core commitments of liberal and democratic theory, semi-citizenship is readily framed in normative terms and hence is studied through the lens of justice. I ris Marion Young’s notion of differentiated citizenship is widely cited as uncovering injustices that occur at the nexus of rights-based distributive paradigms and social norms.91 Young takes the important step of pointing out that not all of those considered full citizens are treated as such, and she provides a framework within which one can reconceive the role of rights and distribution. Young is committed to revealing oppression and domination where they may not be obvious, and to suggesting ways in which political philosophy and public Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990).

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policy could better accommodate forms of difference that contribute to domination. But the inherently normative cast of justice and injustice does not lend itself to discussions of types of partial citizenship that may be necessary, inevitable, or, as mentioned in the preceding section, even desirable. As I argue in greater detail in my discussion of social normative explanations of unequal citizenship in Chapter 4, viewing inequality as a product solely of the oppressive tendencies of dominant classes obscures the fact that states tend to make distinctions and create classes for reasons that cannot be fully articulated within normative language, particularly language that is crafted with the intent of revealing how dominant classes oppress and exclude. Institutions, particularly those associated with the administrative state, can influence semi-citizenships in ways that do not simply reflect the interests and acts of the dominant class. Young’s differentiated citizenship captures an important aspect, but not the entire reality, of citizenship in contemporary liberal-democratic states. Incorporating the non-normative foundations of semi-citizenships also underscores the degree to which semi-citizenships are inevitable and permanent products of any version of political membership that might be instituted in a liberal democratic state. Even though people might belong to different categories at different times, the categories themselves remain potent. The specific political relationships that are identified as fundamental to citizenship are inclusive. They draw individuals into the ambit of the political community by offering qualified benefits, by obligating them to do things like pay taxes or fill out census forms, through the exercise of power, such as that which shapes citizen behavior through qualifications for welfare benefits, and by conferring nationality through birth. Semi-citizenships cannot therefore be discussed solely from the perspective of exclusion. They are both inclusive and exclusive. Bonnie Honig’s Democracy and the Foreigner exemplifies the view that there exist many types of outsiders or foreigners and only one type of citizen.92 Honig peppers her work with this assumption, most notably in her discussion of Rousseau’s view of the threat of fractiousness brought about by foreigners.93 I nclusion is understood to be unitary, even if exclusion is not. Exclusion is so poisonous that denial of any of the rights of citizenship transforms an individual into a foreigner or a non-citizen. Only Bonnie Honig, Democracy and the Foreigner (Princeton: Princeton University Press, 2003). See also Janoski, Citizenship and Civil Society. 93 Honig, Democracy and the Foreigner, 33. 92


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through perfect inclusion can a person be deemed a citizen. Given that all people experience some sort of exclusion at various points throughout their lives, envisioning inclusion as simple, and exclusion as complex and multifaceted, obscures important insights that might be gained from viewing various forms of inclusion and exclusion as semi-citizenship. Contemporary normative theorists who adopt Honig’s approach appropriate an understanding of equality that posits full citizenship as the only legitimate, desirable, or justifiable kind of membership. Absent this, one appears to become foreign because examining only the nuances of exclusion precludes a discussion of partial inclusion. While these discussions may be about two sides of the same coin, it remains the case that heads and tails are different images. When we look at variations on inclusion we see phenomena such as imposed inclusion, both partial and complete. Birthright nationality is an entirely imposed citizenship. Groups like the Roma or indigenous persons, who have atypical relationships with the sovereign spaces they inhabit, and who therefore sometimes seek to avoid incorporation into nation-states, might prefer Marshallian citizenship without nationality, rather than what often looks like the reverse. These and other nuanced versions of inclusion are lost in visions of citizenship that posit only one version of inclusion. In this sense, Honig replicates the flaws of both the rights- and virtuebased accounts of citizenship. B. Non-Normative Approaches to Semi-Citizenship In attempting to transcend the problem of unitariness without sacrificing coherence, other work that broaches semi-citizenship can end up myopically focused on one aspect of citizenship’s gradience. Citizenship can easily be taken for one of its elements, for example, nationality or social rights.94 This is a by-product of the fact that much of the writing that is best positioned to make inroads into understanding semicitizenship studies citizenship as a phenomenon that relates primarily to immigration and alien status. Thomas Hammar uses the felicitous term �� Veit Bader proposes a normative �� framework of inclusion regimes but applies it primarily to questions of borders- and nationality-generated cultural difference. Veit Bader, “Citizenship and Exclusion: Radical Democratic, Community and Justice. Or, What is Wrong with Communitarianism?,” Political Theory 23(2) (1995): 211–246. Ewald Engelen references this as well in discussing differentiated citizenship in the Netherlands. Ewald Engelen, “How to Combine Openness and Protection? Citizenship, Migration, and Welfare Regimes,” Politics and Society 31(4) (2003): 503–536.

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“denizens” to refer to long-term resident non-nationals.95 Daiva Stasiulis refers to “hybrid citizens” who have partial combinations of rights, possibly in multiple states, that challenge both the individuals who hold such statuses and the states to which they partially belong or are subject.96 Stephen Castles and Alasdair Davidson contribute two refinements to Hammar’s categories of “quasi-citizens” and “margizens.”97 Margizens have even fewer protections than denizens, who are in some ways more formally incorporated into the democratic polity in which they reside.98 Peter Schuck separately supplies the term “in-betweens,” which applies in a specifically American context to illegal aliens who hold a form of citizenship rooted in a substantial body of rights made available by both the U.S. Constitution and contemporary political circumstances.99 Schuck has also pointed out that there is one constitutional jurisprudential provision for partial membership: that pertaining to conquered territories.100 However, it could hardly be said that this one case could be extended to demonstrate a constitutional acceptance of varied citizenships. A policy-oriented approach identifies the process of civic stratification as primarily responsible for producing such statuses.101 Almost all of the above-mentioned contributions (excepting Balibar, who was mentioned earlier in the chapter) fail to conceive of citizenship beyond the somewhat narrow terms set by the immigration literature. As Castles and Davidson write, “the problem of formal exclusion from citizenship applies above all to immigrants.”102 Ultimately, even Agamben returns to a notion of sovereignty that privileges territoriality by focusing on the figure of the refugee and the location of the camp, particularly as seen through Arendt’s eyes, and suggests that it is the refugee who forces

95 Tomas Hammar, Democracy and the Nation State (London: Gower Publishing, 1990). 96 Daiva Stasiulis, “Hybrid Citizenship and What’s Left,” Citizenship Studies 8(3) (2004): 301. 97 Stephen Castles and Alistair Davidson, Citizenship and Migration: Globalization and the Politics of Belonging (New York: Routledge, 2000), 94–96. 98 Castles and Davidson, Citizenship and Migration, 94–96. 99 Peter Schuck, Citizens, Strangers, and In-Betweens (New York: Oxford University Press, 2000). 100 Peter Schuck, The Limits of Law: Essays on Democratic Governance (Boulder, CO: Westview Press, 1998), 27. 101 Elenore Kaufman, “Contemporary European Migrations in Europe, Civic Stratification and Migration,” Political Geography 21(8) (2002): 1035–1054; Lydia Morris, Managing Migration: Civic Stratification and Migrants’ Rights (London: Routledge, 2002). 102 Castles and Davidson, Citizenship and Migration, 10.


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us to question the distinction we make between persons and citizens.103 Yet, throughout history, native-born residents have composed some of the largest classes excluded from full citizenship. The terms that Agamben, Castles, Davidson, Schuck, and Hammar employ to describe resident aliens make a partially spurious distinction between the citizenship of nationals and non-nationals. They do not question whether a theory of partial citizenship should be circumscribed by the assumption that all people with nationality actually have full citizenship. This oversight means that their theories are not global enough to fully situate the citizenship of resident aliens in the context of other full and partial citizenships. Recent work on cosmopolitan citizenship replicates this focus on nationality. Seyla Benhabib’s discussions of cosmopolitan citizenship, particularly in the context of the EU, frame concerns of exclusion and disaggregation both as a new phenomenon and as one that is a product of the interaction between contemporary migration patterns and evolving forms of postnational governance .104 This is unfortunate, insofar as it neglects the deep and important ways in which foreignness, which she herself notes is produced and manifested within a population as much as it is at the borders of the nation-state, has disaggregated memberships in ancient, medieval, early modern, as well as contemporary polities. Semi-citizenships are neither new nor produced exclusively or even primarily by evolving understandings of borders, migration, and sovereignty.105 As long as we privilege immigration in discussions of anomalies of citizenship, and simultaneously fail to recognize the ways in which Agamben, Homo Sacer, 134. Benhabib, The Rights of Others. 105 Benhabib, The Rights of Others, 210. B enhabib’s treatment is particularly surprising since, as mentioned earlier, despite her framing of the problem as a contemporary one, she does note statuses such as those held by Jews in the early American republic that did not conform to either citizen or immigrant models (Benhabib, The Rights of Others, 46). She also briefly seems to entertain the import of a taxonomy of semicitizen statuses that is not entirely a product of immigration. Some people do not “possess requisite identity criteria through which the people defines itself or because they choose to remain outsiders. These are the ‘aliens’ and �� ‘foreigners’ amid the democratic people. Their status is distinct from that of second-class citizens such as women and workers, as well as from that of slaves and tribal peoples. Their status is governed by mutual treaties among �� sovereign entities, as would be the case with official representatives of a state power upon the territory of the other; and as if they are civilians, and living among citizens for economic, religious, or other cultural reasons, their rights and claims exist in that murky space defined by respect for human rights on the one hand and by international customary law on the other. They are refugees from religious �� persecution, merchants and missionaries, migrants and adventurers, explorers and fortune seekers.” (Benhabib, The Rights of Others, 46–47). Yet, for reasons I have described, this isn’t really as global an understanding of foreignness as we need 103

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s emi-citizenships – both those arising from immigration and from other forms of difference – are not new but nearly omnipresent in the politics of states and state-like organizations, we cannot fully or effectively theorize their shape, causes, or the ways in which they might be governed. Linda Bosniak provides a tool for thinking about semi-citizenships in a way that is not myopically focused on nationality.106 Using M ichael Walzer’s understanding of membership as her springboard, B osniak describes U.S. citizenship rights as a “divided construct” that allows “a range of distinguishable sorts of entitlements and protections that themselves afford forms of ‘alien citizenship.’”107 B osniak cites work on gender, including that of Nancy Cott, as well as a swath of scholarship on immigration, as having broached this subject.108 B osniak illustrates how alienage in American constitutional law treats rights and status – I am using “nationality” similarly to how she uses “status citizenship” – as “relatively autonomous.”109 In singling out nationality/ status B osniak gives a rich account of how and why alien citizenship comes to exist in the United States. This leaves open the possibility of a systematic theory of forms of semi-citizenship without disaggregating other elements of citizenship from nationality. Thus, while B osniak alludes to semi-citizenships held by persons with “status citizenship,” her analysis of U.S. constitutional law does not discuss what forms they take, how they come about, or how they compare to those that revolve around the absence of “status citizenship.” The avoidance of unitary presumptions must be balanced by some way of maintaining conceptual parsimony, if “semi-citizenship” theory is to be used for comparative analyses. Existing scholarship that has entirely avoided drawing a false dichotomy between non-national semicitizens and other kinds of semi-citizens demonstrates the challenge of being thorough and parsimonious. For instance, T homas Janoski’s intricate and systematic enumeration of rights and duties makes brief mention of “‘subjects,’ i.e. internal non-citizens.”110 Janoski’s approach absorbs T. H. Marshall’s assumption of an evolutionary citizenship, and hence he treats this idea of subjecthood as one that exists in various to fully capture semi-citizenship or create a typology of semi-citizenships that isn’t focused on border crossings. 106 Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, NJ: Princeton University Press, 2006). 107 Bosniak, The Citizen and the Alien, 81. 108 Bosniak, The Citizen and the Alien, 8n. 109 Bosniak, The Citizen and the Alien, 85, 89. 110 Janoski, Citizenship and Civil Society, 7, 242.


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states of movement toward a full citizenship. At the same time that this narrows the scope of his analysis, his understanding of citizenship does not focus on the relationship between states and membership status. This has the effect of spreading his categorical boundaries over a series of Venn diagrams, which in turn creates an almost limitless variety of potential semi-citizenships.111 Ralf Dahrendorf identifies (but does not develop) a like-minded and even broader approach when he writes, “The economic citizen, the citizen in uniform, the church of citizens, are born – all contradictions in terms and at the same time apparently inevitable consequences of the idea of citizenship.”112 Dahrendorf sees the process through which identity drives toward an evermore fractured citizenry as embodying “the paradox of the Complete Citizen.”113 He revisits Habermas’s point that: As the state begins to interfere with the social order, however – Marshall’s social rights of citizenship – “the generality of the norm as a principle cannot be sustained.” This means, among other things, that the ‘… relatively homogenous public of reasoning private individuals gives way to organized sectoral interests; the one public gives way to several publics; citizenship can no longer be thought of as generalized status enabling people to participate in the social and political process.’114

In equating democratization with the fracturing of the citizenry, when democratic theory makes strong claims to require and achieve exactly the opposite, Dahrendorf positions himself against difference theorists like Young, as well as against early Enlightenment philosophers, such as Benjamin Constant and Edmund Burke, who express similar worries about the leveling effects that liberal democracy engenders in the context of a large state.115 As Chapter 4 will argue, this inconsistency can be explained at least in part by the fact that it is not only democratic theory, or even normative theory more generally, that exercises influence over the process that forms citizenship and semi-citizenships. Janoski and Dahrendorf both accurately identify a tangle of thresholds within the category of citizenship. Each is rich in a different way, but Janoski, Citizenship and Civil Society, 13. Dahrendorf, “Citizenship and Beyond,” 695. 113 Dahrendorf, “Citizenship and Beyond,” 697. Dahrendorf writes, “There is a demand for specific rights of workers, of students, of church members; and a denial of the right of the generalized public, including parliaments and law-enforcement agencies, to govern in these sectors.” 114 Dahrendorf, “Citizenship and Beyond,” 694–695. He cites Jürgen Habermas, Strukturwandel der Öffentlichkeit (Neuwied: Hermann Luchterhand, 1962), 196. 115 Constant and Burke are discussed in Chapter 3. 111

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each also lacks the conceptual parsimony social scientists making broad comparisons might seek in a framework of semi-citizenship.116

VIII. Conclusion Throughout this chapter, a basic understanding of citizenship has been carved out from the debates over what defines citizenship. Deprivileging normative understandings of what citizenship should be, in favor of the institutional realities created by states in their capacity as arbiters of norms and practices, permits a broad view of what constitutes citizenship and of how its boundaries might in fact be blurred. Locating the content of citizenship in relationships instilled by rights further specifies the outlines of the category and its potentially gradient elements. Still, debate over the definition of citizenship will persist. It is tempting to point to disparate invocations of the term “citizenship” as evidence that the concept does not have substantive value beyond that associated with its rhetorical weight. One might respond to the ongoing nature of disputes about what citizenship means by concluding that anything so perpetually under revision, or so responsible for disagreement, has no meaning at all. W. B. Gallie’s explanation of “contested concepts” helps pull citizenship back from this precipice.117 Gallie offers a set of criteria by which one can both judge whether a concept is contested and evaluate what we can expect from such contestations. Contestation reveals the need for an attendant language that permits modification and variation within the concept. Indeed, Gallie’s own examples of contested concepts, which include art and religion, indicate that most contested concepts come to be accompanied by modifiers (performance art, polytheistic religion) as a means of refining debates about their meaning, as well as about the boundaries of the concepts themselves. In stating her rationale for writing The Concept of Representation, Hanna Pitkin underscores the need to specify and “make distinctions” with regard to essentially �� Other approaches to the disaggregation of citizenship offer equally important normative and theoretical insights, the complexity of which does not lend itself to the task of categorizing. This is particularly true of the very rich feminist literature on citizenship. Nira Yuval-Davis’s concept of multi-layered citizenship is one exemplar. See Nira Yuval-Davis, “The Multi-Layered Citizen,” International Journal of Feminist Politics 1(1) (1999): 119–136. 117 Ruth Lister and Linda Bosniak both take citizenship to be an essentially contested concept. Lister, Citizenship: Feminist Perspectives, 13–16. Gallie, “Essentially Contested Concepts,” 167–198. 116


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contested concepts such as representation.118 The concept of citizenship needs conceptual counterparts in the same way that, as Robert Dahl argues, the concept of democracy needs polyarchy.119 Such modifications of the concept of democracy, as Dahl favors, have been referred to as “democracy with adjectives.”120 While disaggregation will not resolve conflict over whether citizenship should prioritize participation or virtue, it does refine the kinds of contestation that can occur by organizing disputes and pinning them down to matters of prioritization, rather than definition. It is hard to imagine anyone offering an entirely novel definition of democracy at this late stage in the debate over the concept. However, which elements of a contested concept such as citizenship or democracy are most significant, and how they can be identified and measured, requires consideration. This consideration is not, as some suggest, repetitious “talking about democracy” or citizenship, for that matter.121 We have changed the nature of the contest if we can talk instead about the nature and relative merits of democracy with various adjectives. The same is true of citizenship. If social scientists are careless in their use of the term “citizenship,” it is partly because they lack a vocabulary that fully captures the range of related activities, offices, and statuses that are being elided by the word “citizenship.” A nuanced vocabulary of citizenship that includes semi-citizenships will improve the quality of contestation and make it more useful to a range of audiences. Between concept stretching and citizenship with “too many adjectives” lies a space for better specification of variations of citizenship. Based on the understanding of citizenship developed in this chapter, the following chapter offers a means for examining different kinds of citizenship that accommodates categorical gradience, normative and Pitkin, The Concept of Representation, 8. Dahl, Polyarchy. 120 David Collier and Steven Levitsky, “Research Note: Democracy with Adjectives: Conceptual Innovation in Comparative Research,” World Politics 49(3) (2007): 430–451. Collier and Levitsky identify how concepts can be honed without being “stretched.” Terms such as “semi-citizenship” are what they call “diminished subtypes” that “are a useful means to avoid conceptual stretching” by providing “differentation by creating new analytic categories” (441). In Collier, Hidalgo, and Maciuceanu’s view, adjectival innovation is of questionable value to conceptual contestation. David Collier, Fernando Daniel Hidalgo and Andra Olivia Maciuceanu, “Essentially Contested Concepts: Debates and Applications,” Journal of Political Ideologies 11(3) (2006): 223. This is in some sense true, but it undervalues the degree to which well-chosen adjectives can radically alter the subject of conceptual contestation and the importance of such transformation. 121 Collier et. al., “Essentially Contested Concepts,” 223. 118 119

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non-normative causes of semi-citizenship, and an inclusive approach to the content of citizenship. This framework will suggest a number of conclusions about the enduring presence of semi-citizenship, as well as its weaknesses and strengths, each of which I explore in greater detail in chapters that follow.

3 An Introduction to Semi-Citizenship

Hence, as is evident, there are different kinds of citizens.1

I. Introduction Understanding semi-citizenship requires a framework that avoids reductiveness while still identifying distinctions among different kinds of citizens. It must rely on a complex and yet parsimonious set of criteria from which we can extract several, although not an infinite number of, varieties of semi-citizenships, and into which we can categorize various persons and groups that obviously hold different forms of semicitizenship. An effective method of classification will identify forms of semi-citizenship, facilitate comparisons across them, and shed light on the institutions and processes involved in governing semi-citizenships.1 Moving beyond criticism of overly unitary or narrowly normative understandings of citizenship requires a careful discussion of how citizenship becomes “unbundled” and an examination of exactly how the constitutive elements of citizenship appear in the absence of one or several of their counterparts. Doing this in turn entails addressing the implications of the second obstacle to defining citizenship that I noted in Chapter 2. That is, the difficulty associated with a gradient category that is susceptible to the Sorites Paradox . Both the content (the bundle of rights that citizenship comprises) and the criteria (the bases upon which each right is awarded) involve imprecise thresholds; there is no single recipe for determining exactly which rights make up a type of citizenship, nor can we 1

A ristotle, The Politics (Cambridge: Cambridge University Press, 1996), Book III, Chapter 5.

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identify exactly when someone is mature enough, intelligent enough, or well enough established in a territory to be called a citizen. This makes the project of distinguishing between types of semi-citizenship complex. Even if we agree to a set of elements that constitute the content of full citizenship, we need to decide how we mark the thresholds associated with each element. In this chapter, I offer such a framework by categorizing the core content of citizenship in a way that allows different combinations of essential rights in the thicker and thinner versions that characterize the range of existing and potential semi-citizenships. The framework invokes a distinction between rights that refer to goods required by any person regardless of context (autonomous) and those that gain meaning in specific political contexts (relative). These two classes of rights can exist in combinations of stronger and weaker versions of each type. I argue in favor of using these criteria, rather than approaches that refer to justifications for the conferral or denial of rights, for reasons that draw upon the preceding chapter’s discussion of the reductive tendencies of normative arguments about citizenship. The causes of semi-citizenship, which I discuss at length in Chapter 4, should not be conflated with the statuses themselves. I compare a range of alternative means of classifying semi-citizenships in order to clarify the advantages of the framing. Finally, I survey some of the relevant insights offered by this framing of semi-citizenship. I broach the social scientific potential of making comparisons across different types of semi-citizenship. I also return to a discussion of the fact that normative theories of citizenship and difference have generally tended to treat semi-citizenships as coextensive with social identities. Because semi-citizenships are analytic categories rather than identities, many of the explanations of the origins of semi-citizenship that are offered by identity-centric theories are not entirely satisfying. This then raises the question I discuss in Chapter 4: How do semi-citizenships arise?

II. Identifying Semi-Citizenships A framework of semi-citizenship must refer to multiple types of rights and thresholds within a framework that fully acknowledges the ambiguous and ever-evolving nature of citizenship. This is the only way to produce a more precise, multi-valenced language for describing citizenships. As the Sorites Paradox indicates, threshold questions can never be entirely eliminated. This means that the most effective framework within which we can understand citizenship and semi-citizenship must do two things beyond simply marking the existence of multiple forms of citizenship. It must offer a persuasive set of reasons for acknowledging certain boundaries between

An Introduction to Semi-Citizenship

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categories, and it must admit the movement between categories that the thresholds permit. Representing categorical differentiation within the larger category of citizenship requires marking points at which it appears that the thresholds for various elements of citizenship have been met: that enough of one element or another of citizenship is present to constitute a form of semicitizenship. Plenty of people will meet some thresholds but not others, and not all of those people will be entirely without citizenship. To transcend these problems requires looking at the bases on which the elements of citizenship are unbundled, to see how the content of citizenship described in Chapter 2 can be deconstructed and analyzed. Once we have designated elements and identified a means for assigning thresholds, we can at least see the boundaries of these categories, as well as what their members have in common by virtue of their categorical membership, despite the fact that they may occupy otherwise disparate social positions. Therefore, an unbundling of citizenship rights is necessary to identify semi-citizenships. There are several ways to approach unbundling citizenship rights. Some of these approaches attend to questions of content, namely the rights associated with citizenship. Others examine the justifications for the disaggregation of the elements of citizenship. I will return to the justifications for disaggregation in Section VII of this chapter, after I have supplied an overview of the framework for classifying semi-citizens. Content questions concern themselves with which rights are conferred upon, or denied to, individuals. These content-based questions about people’s rights have three facets. The first reveals the rights that are essential to citizenship anywhere and always. The second facet highlights the types or categories of rights that some people have, which others are denied wholesale. Discussion of how the content of citizenship can be unbundled will indicate, first, what kinds of abstractions are required of a framework for categorizing the semi-citizenships that result from this unbundling. Second, it will indicate the best bases for making these abstractions. The third facet of content questions focuses attention on when groups and individuals have some, but not all, rights within categories of rights. The first facet is a familiar subject to democratic theorists. Arguments about which rights are fundamental to citizenship are necessary normative starting points in democratic theory, as the discussion of T. H. Marshall’s work in the preceding chapter indicates. The fact that there is no perfect consensus regarding the catalog of citizens’ rights means that these discussions also produce justifications for developing a framework of semicitizenship that permits comparisons of persons whose options for full

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citizenship are different. For example, one might make the argument that all Americans are semi-citizens because they receive virtually no guarantee of healthcare. Or one might apply this kind of question to a federal system, in which residents of one state/province receive rights that others do not. The Canadian provinces have established different ages of majority, which has the effect of conferring a type of political citizenship upon residents in some provinces that their contemporaries in other provinces do not enjoy. We can also think about this kind of comparison intergenerationally, as the subject of environmental citizenship or green citizenship encourages.2 Indeed, scholars who have developed the idea of environmental citizenship routinely assert that “this concept acknowledges the differentiated and multilayered character of citizenships based on an evolution of rights (civil to political to social) within a national context and provides a categorization and typology that is too limited for contemporary realities.”3 However, finer brushstrokes are also needed to identify and classify semi-citizens within any given citizenry. It is not only important to know what the democratic bundle of rights comprises, but also at which points each braided bundle is or becomes unbraided, and how each thread of the braid frays. Based on T. H. Marshall’s history, the fullest catalog of citizenship rights admits civil, political, and social rights along with nationality, which I describe in greater detail in Chapter 5 as primarily including rights of residence and free movement. Understanding unbundling requires knowing which rights are denied to which people within a population. Which rights don’t people have? Scrutiny of this “negative political space” has historically played an important role in the definition of modern citizenship. Peter Sahlins notes in his history of droit d’aubaine that citizenship in France was initially defined not by a set of rights, but rather by the absence of specific disabilities imposed on foreigners.4 Sahlins focuses Teena Gabrielson, “Green Citizenship: a Review and Critique,” Citizenship Studies 12(4) (2008): 439. 3 L iette Gilbert and Catherine Phillips, “Practices of Urban Environmental Citizenships,” Citizenship Studies 7(3) (2003): 313–330. Quoted in Gabrielson, “Green Citizenship,” 437. 4 Droit d’aubain deprived foreigners of the right to name heirs, as non-foreigners could, which prevented the former from bequeathing property after their death. Property acquired by foreigners reverted to the state upon their death. Droit d’aubain allowed the nascent French state to differentiate between citizens and non-citizens before such distinctions were either common or readily facilitated by legal and institutional practice. Peter Sahlins, Unnaturally French: Foreign Cities in the Old Regime and After (Ithaca, NY: Cornell University Press, 2004), 5. See also Charlotte C. Wells, Law and Citizenship in Early Modern France (Baltimore: Johns Hopkins University Press, 1995). 2


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on the right to bequeath property in pre-democratic France. However, the franchise seems a more representative right in contemporary democratic politics. Judith Shklar also describes early iterations of American semicitizenship that excluded black Americans, women, the Irish, and others, in terms focused on the negative space created by large-scale exclusions of members of the population from entire categories of rights.5 For example, laws of coverture that accorded political voice to women’s fathers and husbands made women semi-citizens. But any of the fundamental civil, political, social, or nationality rights may be categorically denied to individuals or groups. Reasonable circumstances could conceivably demand that someone receive social rights without full, or possibly any, political rights, as is the case with residents of U.S. territories, most notably Puerto Rico and Washington D.C., as well as with many mentally ill persons. In each of these cases an entire category of rights – political rights – is denied without necessarily depriving the individuals in question of all the other types of rights associated with citizenship. The braided bundle comes unbraided for these persons and groups. The individual threads that are braided together can each also fray independently of the other threads, leaving some people missing a few rights from any or all categories. People can have some political rights, some social rights, some civil rights and even some nationality rights without losing all of each type. For example, non-nationals ( foreignborn individuals who live in a country without naturalizing) in Sweden have some, but not all, of the political rights that full citizens are accorded. They can vote in local but not national elections. Members of the military in most democracies stand trial in military courts, thus restricting some of their civil rights while leaving others intact, e.g., the right to form contracts. An effective means for categorizing forms of semi-citizenship must account for both the unbundling of types of rights from each other, and also the fraying of individual strands of the braided bundle.

III. Abstracting the Braided Bundle of Democratic Rights The diverse content of citizenship discussed in Chapter 2, in combination with the multiple facets of disaggregation enumerated in the 5

See Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991).

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preceding section, make establishing categories of semi-citizenships a complex exercise. This section of the chapter takes on the problem of how to organize the unravelling democratic bundle of rights, so that the semi-citizenships produced by its unbundled forms can be described and compared to one another using a common language. The principle for organizing rights has to find a way to make distinctions among the types of rights associated with citizenship, distinctions that identify the most fundamental lines along which rights are disaggregated. This means it must do more than identify rights descriptively in the way that Marshall and other democratic theorists do, from A ristotle to Dahl. Descriptive accounts of rights will not advance the cause of comparison because, for example, the rights of a member of the military and of a permanent resident cannot be compared in their raw form. Members of the military have different civil rights that affect their entitlement to counsel and trial. Permanent residents do not vote and are not represented. But what can we say about their citizenship in comparison to one another? To make useful comparisons, we need to know which qualities are common to the rights that each semi-citizen is missing, and/or how these rights are different from each other, as they pertain to citizenship. A. Autonomous and Relative Rights Citizenship rights are distinguished from other kinds of rights – for example, the right to drive – by their fundamental relationship to the idea of political membership. This was established in Chapter 2, and holds true even for definitions of citizenship that were ultimately rejected, such as those that deemphasize membership in political communities in favor of seeing citizenship as membership in moral communities. Charles Tilly offers a useful conceptual distinction that refers to two ways of thinking about rights from this perspective of membership. Tilly’s basic definition of rights derives from Sen’s concept of entitlements.6 Entitlements are “enforceable claims on goods, services, or protections by specific others.”7 “Rights exist when one party can effectively insist that another deliver goods, services, or protections, and third parties will act to reinforce (or at least not hinder) their delivery. Such entitlements become citizenship rights

A martya Sen, Poverty and Famine: An Essay on Entitlement and Deprivation (Oxford: Oxford University Press, 1981). 7 Charles Tilly, “Where Do Rights Come From?” in Democracy, Revolution, and History, ed. Theda Skocpol (Ithaca and London: Cornell University Press, 1998), 56. 6


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when the object of the claims is a state or its agent, and the successful claimant qualifies by simple membership in a broad category of persons subject to the state’s jurisdiction.”8 Citizenship rights therefore invoke individuals, their relationships to each other, and their relationships to the agent that enforces those claims. Tilly, citing Pierre Bourdieu, notes a difference among various types of goods that we associate with citizenship. The distinction is between autonomous goods and relative goods.9 The value of autonomous goods can be defined entirely independent of any particular social or political context. While not all autonomous and relative goods are associated with corresponding rights, all rights can be classified as either autonomous or relative. Rights to autonomous goods entitle people to things they need under any circumstances. For example, the value of healthcare is not defined by any relationship to a political system. It is valuable to everyone in every place. Relative goods derive their meaning from their embeddedness in larger systems of value. Rights to relative goods can reflect various, and variously compelling, conceptions of human interests, but they only obtain in specific contexts. They require that other conditions be met before their justifications gain force. For example, the right to vote becomes meaningful within the political system, specifically 8 9

Tilly, “Where Do Rights Come From?” 56–7. Charles Tilly, Durable Inequality (Berkeley: University of California Press, 1998), 26. T homas Janoski makes reference to a distinction similar to the autonomous/relative binary, which he terms active and passive rights. Thomas Janoski, Citizenship and Civil Society (Cambridge: Cambridge University Press, 1998). Ian Shapiro also identifies a split between “best” and “basic” interests that bears some similarity to the autonomous/ relative framing, although he does not develop it in an identical fashion. Ian Shapiro, Democratic Justice (New Haven: Yale University Press, 1999), 85–92. Jürgen Habermas uses similar terms but in a diametrically opposed way. (Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1998), 122–123.) He breaks down rights into five categories, the first four – equal liberties, political autonomy, legal protection, and participation – he terms “absolute,” in comparison with the social rights (loosely construed) that he terms “relative” because they are keyed to the degree to which they enable or facilitate the exercise of the first four types of rights. I address this point later in this chapter. Despite a superficial similarity, it should be noted that the distinction between autonomous and relative rights is not identical to the distinction between the universal and the particular. Particularist rights are rooted more firmly in identities than relative rights. Most systems of relative rights that are relevant to this study, i.e., those that are associated with citizenship in a liberal democracy, refer not to systems that ground identity but to systems of representative and often pluralist democracy. The distinction could be construed as a matter of degree, but there are likely several very substantive degrees of separation between particularist rights and the relative rights ensconced in most democratic polities.

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the electoral system, in which the vote is cast. Outside of a democracy, in either a benevolent or despotic dictatorship, a vote may be meaningless, and at the very least its meaning will be radically different than votes in participatory systems. Fulfilling a relative right therefore conditions the need that it meets in ways that fulfilling an autonomous right does not. So, for example, what it means to say that a state has fulfilled its promise to represent a citizen will vary depending on what kind of representative democracy (proportional, descriptive, etc.) is in effect. Each of the citizenship rights described in Chapter 2 can be classified as either autonomous or relative. The core rights associated with nationality, specifically those that confer the right to reside somewhere and move freely, are autonomous. The nation-state system is a universal, inescapable fact of political life that effectively deprives any human being who does not have a nationality of basic forms of security. A basic education of the sort that instills skills associated with communication and self-care is also autonomously valuable. Some civil rights, for example, liberties of speech and thought, as well as the right to form families (though not necessarily to marry), are autonomous. They have force on their own, regardless of context. Similarly, rights to one’s bodily integrity, freedom from fear, and freedom from persecution have a value that is autonomous from any given context. Despite the immediacy of their relevance to basic life-sustaining functions, the class of autonomous rights can evolve, expand, and contract. As mentioned earlier, newly developing notions of environmental justice may confer additional autonomous rights on individuals, particularly as goods like clean water or even fresh air become increasingly scarce and controlled by privately held companies.10 Even when particular circumstances create costs for people on whom autonomous rights of citizenship are imposed, e.g., when nationality subsumes pre-existing forms of identity, failure to provide those rights also imposes high costs.11 On environmental citizenship, see Bryan S. Turner, “The Erosion of Citizenship,” British Journal of Sociology 52(2) (2001): 204. Turner characterizes environmental citizenship as postnational, a concept that I treat skeptically because of the role played by states in the shaping and administration of the postnational citizen. 11 �� Even amid claims of developing �� postnational citizenship, individuals from non-member states living in the European Union are vulnerable to a range of status-related threats from which member-state nationals are exempt. Despite extensive discussions of the ways in which the EU might address this set of dilemmas, no agreement has been reached. This points to the durable importance of nationality. See Yasemin Soysal, “Changing Citizenship in Europe: Remarks on Postnational Membership and the Nation-State,” in Citizenship, Nationality and Migration in Europe, eds. David Cesarani and Mary Fulbrook (London: Routledge, 1996), 17–29, and Seyla Benhabib, 10


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Relative rights of citizenship assert a relationship of rights to goods that are specified by the political constitution of the democracy in question. They refer to the broadest justifications that constitute the polity. Relative rights and the structures within which they are realized all refer to the larger justification for instantiating a democracy in the first place, i.e., maximizing liberty or perpetuating a specific civic republican political culture. This also means that they must take different but specific forms, depending on the constitutional norms that justify the democracy. As Ian Shapiro demonstrates, procedural democratic rights are subordinate foundational goods.12 They are not inherently good or valuable in the same way that security, health, or even free thought are. It is possible to be at least a minimally functional political being without them, even if there is consensus that this life would be less desirable than one led with democratic political rights. It is even conceivable that, depending on how democracy is justified, an effective paternalist regime could render classic democratic rights of participation irrelevant, while retaining other kinds of relative rights such as due process. Finally, it is also the case that something like due process can mean entirely different things in different contexts. In Marshall’s evolutionary sequence, the founding rights of citizenship – civil rights of contract and property rights – are relative. Contractual relationships are meaningful only within a specific larger context, typically that of a free market. Property itself, and hence any rights that protect it, e.g., ownership and transfer, are similarly relative. As demonstrated later in Chapter 6, even contracts that do not hold the market as their primary point of reference, such as the marriage contract, still depend upon a number of social and political conventions for meaning. Civil rights associated with due process are similarly identified with specific institutional arrangements that categorize them as relative. What constitutes being able to make legal claims and receive a fair hearing will depend on the larger legal framework within which rules are enforced in a given polity. Marshallian political rights are also relative rights. Their meanings are context-dependent, and they are justified by virtue of their relationship to specific political norms. The rights to hold office, to be represented, and to participate in politics, The Rights of Others: Aliens, Residents, and Citizens – The Seeley Lectures (London: Cambridge University Press, 2004). 12 Ian Shapiro, “Three Ways to Be a Democrat,” Political Theory 22(1) (1994): 126, 135–136, 145–147.

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all require a fairly complex set of political structures and procedures to render them meaningful. Representation, to take the example introduced earlier, can refer to a wide range of forms of political input. Different political systems will interpret the obligation to represent differently. What it means to be represented is itself contested, making the project of constituting an authentically representative polity fiendishly complicated. For example, political scientists often question which (proportional, descriptive, or plurality-based electoral systems) most faithfully represents the will of individual citizens and constituent social groups. However, within a single political system, different forms of representation position citizens differently in relation to one another. For example, Puerto Ricans are not represented in the same way as citizens of the U.S. mainland. Finally, insofar as they are included among citizenship rights, cultural rights are also relative rights.13 What kinds of independence, and sometimes even partial sovereignty, can be granted to indigenous groups, national minorities, or even racial minorities, is entirely dependent on how the distinctive needs of the groups are locally constituted, their relationship to the larger polity and, in many cases, their social history. B. Autonomous and Relative Rights in Citizenship Theory T he qualities of autonomousness and relativeness provide an excellent starting point for building a framework of semi-citizenship because they divide rights into two very broad categories, each of which could logically be expected to be bundled together. Unlike evolutionary accounts of rights, such as Marshall’s described in Chapter 2, or normative accounts of rights that justify some rights based on their usefulness to other rights, autonomous and relative rights seem likely to come in bundles because they are alike in very basic ways. Of all the kinds of bundling we might expect and be able to justify, we would be most likely to expect autonomous rights to be bundled because they refer to our most universally held understandings of human need. It is difficult to imagine any coherent explanation for a doctrine that explicitly justifies health but not physical security, whereas it is conceivably justifiable to confer rights of residence, healthcare, and basic security upon people 13

“Cultural citizenship concerns the maintenance and development of cultural lineage through education, custom, language, and religion and the positive acknowledgment of difference in and by the mainstream.” (Toby Miller, “Introducing … Cultural Citizenship,” Social Text 69 19(4) (2001): 2.)


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who are not considered qualified for political rights or even full civil rights. This latter way of thinking is how children are often accorded semi-citizenship in democratic polities. In turn, we might expect relative rights to be bundled with one another because they are integral to the political context in which they are grounded. Any given political system will have to produce justifications for rights such as representation, contract, and due process, in ways that are consistent with each other and with the founding principles of the polity. It is difficult to imagine a coherent set of justifications for offering a vote to individual citizens based upon their right to self-govern, but for simultaneously denying those same people the right to conclude contracts because they are not capable of understanding their own interests as well as someone else is. Autonomous and relative categorizations are also useful because they will identify whether some rights are contingent upon other rights within political systems, as described in Chapter 2. This is significant because this study is premised upon the idea that rights are often not contingent upon other rights. As Chapter 2 argued, rights are said to be contingent when having one kind of right is predicated on having another kind of right. A fully contingent approach to citizenship, of the sort described in Chapter 2, would link autonomous and relative rights within a framework that explains why people entitled to one type of rights become entitled to others. One example of fully contingent thinking would dictate that possession of the autonomous right of nationality entitles people to all other autonomous and relative rights. The reverse might also be true. Arguments can be made to the effect that democratic theory – in contrast with liberal individualism – does not ground any obligation to meet the autonomous needs of persons when those persons do not qualify for relative rights. A ristotle’s Politics maps out a normative theory in which the autonomous rights to reside and move freely are premised upon the possession of the relative right to participate in politics.14 The fact that autonomous and relative rights are justified in different ways does not imply that either kind of rights is prior to the other. In writing about active and passive rights, Janoski indicates that the two can in fact exist apart from one another. He writes, “With passive rights alone, a beneficent dictator could rule with limited legal rights and extensive social rights in a redistributive system

Aristotle, The Politics.

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of income payments.”15 It is also important to note that the distinction between autonomous and relative rights is not a distinction of order. Autonomous rights are not being depicted as inherently more or less important than relative rights. It is simply the case that autonomous rights do not require particular political systems to render them intelligible. There may be orderings of rights, but this point need not be argued here. In fact, it would be a distraction to do so, because the notion of citizenship is premised upon the idea that there is a set of fundamental rights that are all of equal, if qualitatively different, significance .

IV. Autonomous Rights, Relative Rights, and Semi-Citizenship Every liberal democracy offers its citizens and semi-citizens some version of a bundle of autonomous and relative rights. Each of these polities offers more than one version of the bundle. The differences between these different bundles amount to stronger and weaker versions of different types of rights. Distinguishing between types of semi-citizenship based on the strength and weakness of bundles of rights will not be sufficiently precise or scientifically rigorous for some. An encyclopedic cataloging of every right of citizenship in every liberal democracy would turn up significant disparities among the rights that even wellestablished liberal democratic states consider fundamental. Though such comparisons would reveal important differences, I will not move in that direction here. The goal of this study is to describe an important set of distinctions that individual states inscribe upon their own citizenries. Accordingly I will now turn to the basic analytical tool for this endeavor, a means with which we can categorize semi-citizenships within existing citizenship regimes, a means that is parsimonious without being imprecise. As autonomous and relative rights have been defined, semi-citizens can be categorized as individuals bearing the four possible combinations of strong and weak autonomous and relative rights. To be sure, threshold problems and still finer forms of gradience continue to straddle the boxes in the table depicted in Figure 3.1. Strength and weakness are not scientifically precise designations. I have used “strong” to refer to bundles of rights that lack very few rights. For example, this would classify lesbian, gay, bisexual, and transgendered persons (LGBTs) in France as having strong autonomous and relative rights 15

Janoski, Citizenship and Civil Society, 9.

An Introduction to Semi-Citizenship First Order

: strong autonomous and strong relative rights

Second Order

: strong autonomous and weak relative rights

Third Order

: weak autonomous and strong relative rights

Fourth Order

: weak autonomous and weak relative rights

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Figure 3.1. The Orders of Semi-Citizenship

because they lack only the equal right of marriage. By contrast, children have very weak relative citizenship rights almost everywhere because they cannot vote, are not represented formally, and are not entitled to various civil rights of due process and expression. While this typology does not capture some of the finest gradations of semi-citizenship, it includes enough critical information about rights to make comparisons among differently situated semi-citizens whose statuses might never otherwise be recognized as comparable or even relevant to one another. It also facilitates a discussion of how and why these statuses are created, how and why they are reshaped, and what their normative implications are. One of the central purposes of this book is to situate semi-citizenship within the context of liberal and democratic norms as each theory is invoked (or ignored) by state practices. Though the autonomous/relative framework lends itself to a range of possible empirical case studies and comparisons that I broach below, this kind of empirical work is beyond the scope of this book. Empirical studies might demonstrate a need to refine Figure 3.1. This must be a call for further discussion and probing. What the arguments that follow from Figure 3.1 do offer is a case for pursuing such discussions among social scientists and theorists who want to enrich existing discussions of citizenship. Below, I will elaborate on how semi-citizens can be classified using this table before returning to the kinds of discussions that can be pursued with these classifications.

V. Classifying Semi-Citizens The task that follows from having broken down semi-citizenship into the above four categories involves reassigning those currently considered “atypical” citizens or foreigners into their respective classifications. The examples presented in Figure 3.2 are not intended to be exhaustive but rather to canvass frequently discussed, problematic, or

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Semi-Citizenship in Democratic Politics Strong Relative

Weak Relative

Strong Autonomous

First-Order Semi-Citizens • LGBTs • Permanent residents • Refugees • Special political immigrants • Postcolonial subjects and residents of U.S. territories

Second-Order Semi-Citizens • Children • Felons (U.S.) • Members of the military

Weak Autonomous

Third-Order Semi-Citizens • European Union long-term residents • Cultural minorities

Fourth-Order Semi-Citizens • Roma • Undocumented persons • Guestworkers • Enemy combatants/enemy aliens • Temporarily protected status holders

Figure 3.2. Semi-Citizens

conceptually interesting exemplars of semi-citizenship. Fourth-order semi-citizens are deprived of most autonomous and relative rights of citizens. Undocumented i mmigrants, persons subject to extraordinary rendition, enemy combatants, and d isplaced/ stateless persons hold this status. In some circumstances, Roma in Europe fall into the fourth order.16 Each of these groups has had their nationality – their right to remain in their homeland and travel freely – curtailed. In addition, most are deprived of basic social and civil r ights. Third-order semicitizens have weak autonomous rights but comparatively strong relative rights. In most cases, this refers to people whose rights of nationality are questionable but whose guest status accords them some civil rights. The European Union Tampere Directive on the rights of Long Term Residents, were it fully adopted, would accord third-order semicitizenship to non-transient foreign-born residents from non-EU states.17 Guestworkers, temporary asylees, and other discretionary g uests This statement reflects a generalization for the sake of illustration. In fact, different members of the group to whom the label �� “Roma” is ascribed may have different bundles of rights. Some may even hold a slightly weaker version of semi-citizenship than some stateless persons. Roma who fear persecution sometimes choose to evade the production of birth certificates for their children. As one journalist has written of such children, “They simply don’t exist.” (Dan McDougall, “Why Do They Hate Us?” The Observer: Comments and Features, August 17, 2008: 14.) 17 On the Tampere Council Directive on the rights of Long Term Residents, see http:// ec.europa.eu/justice_home/fsj/immigration/residents/wai/fsj_immigration_residents_ en.htm; last accessed January 31, 2007. 16


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(see Chapter 5) are deprived of the rights associated with nationality and security of place, as well as (usually) most social rights. Secondorder semi-citizens have strong autonomous rights and weak relative rights. Children and, in the United States, ex-felons fall into this category. Children hold nationality and have strong social citizenship, but little political standing or status. Their claims on the state and on those around them can almost always be reduced to social rights. Felons and ex-felons have modified political and sometimes civil rights; their relationship to the state and to full citizens is defined by the absence of political rights. Many members of the m ilitary who do not receive the protection of civil courts, and must be tried in military courts, also hold second-order semi-citizenship. It should be noted that in the case of second- and third-order semi-citizenships, there is variation in the degree to which the weak type of rights – autonomous or relative, respectively – has been compromised. First-order semi-citizens come closest to full citizenship. They have strong relative and autonomous rights and lack only a very few rights in either or both categories. G ay marriage prohibitions deprive LGBT citizens of an important but relatively circumscribed civil right. Permanent residents generally enjoy most of the rights of citizens. The fact that they have not naturalized, and do not have passports issued by the country in which they reside, deprives them of some political rights – in some places they do vote, though rarely in national elections – and, in some instances, a few of the privileges associated with free movement .

VI. Deploying the Framework to Analyze Citizenship and Semi-Citizenship The table of combinations of autonomous and relative rights of various strengths facilitates two kinds of political analysis that cannot be performed without it. The table helps reveal semi-citizenships that might otherwise go unnoticed. It also makes possible a range of measurements and comparisons of different semi-citizenships to each other and to full citizenship. Within this framework it is possible to classify the various groups with semi-citizenship in their respective niches, or alternatively, to place citizenships along a linear gradient that runs from weak to strong. The autonomous/relative framework for thinking about citizenship reveals forms of semi-citizenship that social norms and legal ambiguity disguise. Since semi-citizens are not acknowledged with a distinct status

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in any democracy, semi-citizenship has a quality of invisibility even where specific forms of exclusion receive attention. We may recognize that members of the military do not enjoy the same rights to due process that full citizens do, but a universal language of semi-citizenship is required to connect the circumstances that they experience to their citizenship. In a state that has no official designation for partial citizens, semi-citizens are not recognized as anything but disparate, and disparately justified, exceptions to otherwise comprehensive rules about membership. This becomes apparent in almost any definition of democratic citizenship. Robert Dahl makes exceptions for children, the mentally defective, and transients.18 John Rawls famously presumed nation-states with mostly closed borders in A Theory of Justice.19 Treating semi-citizenships as occasional and exceptional, rather than as ever-present categories whose membership may change, obscures basic insights about members of these classes. Once it is clear which category a given individual occupies, it is possible to judge how different their citizenship is from the standard of full citizenship within any given state. The “how different” question is one that flows naturally out of any discussion of difference. I ris Young’s “five faces of oppression” invite similar sorts of scrutiny, even as they make precise social scientific comparisons impossible.20 Before even filling in Figure 3.1, it is easy to vaguely intuit that the status of the stateless is quite different from that held by a full citizen. But exactly how different it is, and who else appears alongside the stateless, and who appears together with those on the other end of the continuum toward full citizenship, is surprising and important to both our normative self-understandings and to more immediately pressing political considerations. The framework can reveal whether a semi-citizen in one country would have an identical status in another, and in what ways her status might vary from country to country. For example, the permanent political disenfranchisement of felons is not a common phenomenon outside the United States. It may also be the case that two people who have the same status in one country would be differently placed in another. A person with a French passport and a person with a Canadian passport will be similarly situated if they are both in the United States. However, as a result of the Schengen Agreement that allows European Union citizens the right to

Robert Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989), 129. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 8. 20 Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990). 18 19


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move freely within the EU, they will be very differently placed if they are both in Germany. Comparisons of semi-citizen categories invite normative speculation regarding which rights ought truly to be rights of citizenship at all. For example, there is a great deal of debate over whether social rights such as national health insurance must be guaranteed by the state. If they must, then most Americans do not currently have full citizenship, though this may change in the foreseeable future. For the purposes of this analysis, it will be assumed that all established western democracies offer at least some members full citizenship. In addition to being flexible enough to accommodate variations among forms of citizenship in different contexts, the theory delineated here also does not preclude changes that invoke new rights, such as nascent rights to certain environmental conditions or even “biological citizenship.”21 Detailed discussion of whether currently non-existent rights and responsibilities ought to become rights of citizenship sits more squarely in the realm of normative theorizing about rights themselves, rather than in an analytic theory of democratic politics, and I therefore do not attempt it here. A further comparison asks who, and how many people, in various countries end up in each quadrant of Figure 3.2. Should one wish it, this framework also permits comparisons of all different kinds of semi-citizenships across nation-states. The fuller set of social rights institutionalized by EU countries yields a thicker autonomous citizenship than that available in the United States. Immigration policies in Australia have created proportionately high numbers of stateless and undocumented persons. While I do not attempt to measure semi-citizenship statuses within or across nation-states, it is conceivable that work similar to that spawned by Gosta Esping-Anderson’s study of social welfare rights regimes could be accomplished on any or all of the quadrants of Figure 3.2.22 A final comparison that this framing of semi-citizenship permits has to do with the ways in which citizenship evolves and/or changes in any given nation. As previously mentioned, evolutionary accounts of citizenship often equate change in citizenship with greater inclusiveness or a broader scope of rights. Previously excluded groups become incorporated and new rights become institutionalized. However, changes in citizenship can, and �� Aihwa Ong underscores the growing movement for “health-based claims” for citizenship rights. Aihwa Ong, “Mutations in Citizenship,” Theory, Culture & Society 23(2–3): 504. Ong also cites Adriana Petryna, Life Exposed: Biological Citizens after Chernobyl (Princeton, NJ: Princeton University Press, 2002). 22 Gosta Esping-Anderson, The Three Worlds of Welfare Capitalism (Princeton: Princeton University Press, 1990).

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often do, include movement among different quadrants of the autonomous/ relative table that is actually regressive. New rules can exclude previously full citizens or exclude semi-citizens in new ways. The complicated changes that have accompanied the dissolution of the British Empire have disentitled previously entitled groups from various rights of residence and free movement within the empire. Historical comparisons of semi-citizenships over time and space illuminate which forms of semi-citizenship are durable and which kinds of changes have occurred or are occurring. The following chapter will elaborate this important purpose of semi-citizenship from the perspective of the state: namely that it allows for changes to the membership of individuals for various reasons. It may be undesirable for a country to admit people as guestworkers for various reasons, yet undocumented workers comprise a large proportion of the population of “illegal” aliens in most immigrant-receiving nations. As long as visa expirations are not enforced, this amounts to a tacit guestworker program. Contemporary guestworker programs are also not unprecedented and, in fact, have lengthy roots, as I discuss in Chapter 5. Even in the United States, where use of the phrase “guestworker” is relatively recent, existing temporary worker programs were preceded by the like-minded Bracero program. The people who held Bracero visas labored in inhumane circumstances and with diminished rights that in turn call to mind indentured servitude.23 This suggests that an underclass of semi-citizen labor seems to be a durable part of the semicitizenry even as specific groups move in and out of this class. Patterns to changes in semi-citizenship may emerge once a categorical designation links groups who hold otherwise disparate social identities. The autonomous/relative framing is neither encyclopedic nor myopic. It restricts itself to looking at how rights combine and recombine, yet it attends to rights thoroughly. Although a rights-based definition of citizenship excludes some things that others might include in a definition of citizenship, it demands that discussions of semi-citizenship move beyond questions of nationality and naturalization, or any other kind of reductive understanding of citizenship. Relative and autonomous rights have not been placed in a hierarchy that would prioritize exclusion from either kind of rights over the other. An assessment of strength and/or weakness simply compares the rights of the subject in relation to the full catalog of available rights. So the framework makes it difficult to impose a classification that misses forms of exclusion. The child is no more or See Robert Morris, Government and Labor in Early America (Boston: Northeastern University Press, 1981).

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less obviously a semi-citizen than the immigrant, the same-sex partner, or the resident of a territory who is not accorded voting rights.

VII. Contributions of Autonomous/Relative Framing of Semi-Citizenship There are four features of the autonomous/relative framing of semi-citizenship that recommend it as a means for understanding and studying semi-citizenship, particularly in comparison to other approaches to the subject of gradience (or differentiated citizenship, to use the language coined by Iris Marion Young). First, this framework is broad in scope, and admits the existing consensus on a Marshallian cataloging of rights without precluding reference to other classifications of rights that depart from Marshall’s distinctions. Second, it efficiently classifies the large and diverse set of citizenship rights. Third, it reflects practices, rather than theories, of citizenship. Finally, the autonomous/relative framing is structural: it yields a set of political identities rather than simply refracting existing categories of social identity. Taken together, these strengths recommend this understanding of gradience as being flexible without sacrificing parsimony, and as simultaneously offering theoretical precision and abstraction. A. Breadth of Scope The distinction between autonomous and relative rights very comfortably accommodates many ways of thinking about citizenship, including the particularly influential Marshallian account of citizenship rights, as well as its most prominent critiques. Marshall’s three types of citizenship rights appear as either autonomous or relative rights as do the rights that others have suggested adding to Marshall’s canon. It is important to remain compatible with the dominant idiom of citizenship rights because the larger discourse of rights can refocus any potential discussion of semi-citizenship around variables that, while important to the general subject of rights, are not central to membership rights. For example, Wesley Hohfeld’s frequently cited distinction between rights, liberties, powers, and privileges gives a taxonomy of rights and related concepts, but it has little to say about membership-specific rights.24 Hohfeld is concerned about justifying Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. W. W. Cooke (New Haven, CT: Yale University Press, 1919). One of the

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obligation, and his starting point is relationships that exist between two individuals. The debate over whether legal or moral rights must correspond to duties, and hence create claims and obligations between individuals, is intricate and important to making judgments about semi-citizenship. But none of the resolutions Hohfeld offers provides a way to think specifically about the rights of citizenship because the questions being asked in this debate depart from those that define citizenship in nation-states. It may even be the case that the moral bases of nation-state citizenship are poorly constructed, insofar as they do not tightly link to claims and obligations between individuals. But this is irrelevant to a discussion about how to identify and classify semi-citizenships since citizenship, even if it is morally fragile, remains a singularly important form of political membership. Hence neither Hohfeld’s ordering of rights, nor the responses this ordering engenders, does the kind of work that the distinction between autonomous and relative rights accomplishes.25 B. Parsimoniously Accounting for Stronger and Weaker Sets of Rights A second asset of the autonomous/relative framing lies in its ability to make qualitative distinctions and distinctions between stronger and weaker semi-citizenships without specifying so many semi-citizenships that it compromises the framework’s ability to categorize. To illustrate this it is helpful to consider other ways of depicting the unbundling of citizenship rights. Semi-citizenships could hypothetically be depicted by arranging in a Venn diagram the elements of citizenship that Marshallian definitions take to be a tightly wound bundle. In the diagram in Figure 3.3, civil, political, social, and nationality rights overlap at certain points and disaggregate from one another at other points. This depicts the unbundling of elements of citizenship and, in so doing, creates a range of groups of semi-citizens. The Venn diagram is appealing for a number of reasons. It avoids conflating semi-citizenships with normative readings of the motivations that spur their creation and focuses instead on the content of the actual statuses. It also accommodates and illustrates a number of potential forms of semi-citizenship best examples of work on citizenship rights that relies upon Hohfeld’s classification is Thomas Janoski’s Citizenship and Civil Society. 25 Janoski has been critiqued for relying on Hohfeld’s typology of rights for support which the typology cannot actually provide. See David Fagelson, “Citizenship and Civil Society,” Political Science Quarterly 114(1) (1999): 168–170.


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Social Rights

Political Rights

Civil Rights

Nationality Rights

Figure 3.3. Marshallian Semi-Citizenships

based on the organizing principle that an individual can have some, but not all, types of rights. Guestworkers, for instance, have a few civil and social rights but no political rights. They are not guaranteed any form of political representation, and they have no access to the franchise. However, the Venn diagram does not really represent stronger and weaker versions of citizenship. It ultimately paints a misleading picture for several reasons. Its circles are drawn with hard boundaries when in fact the thresholds of each are soft. As indicated above, individuals can have some, but not all, of a given type of right. This is true of LGBTs, who are not permitted to marry, but who exercise other civil rights such as free speech and assembly. To solve the preceding problems within the confines of the Venn diagram would compromise its simplicity so severely as to limit its usefulness as a model for types of semi-citizenship. Doing so would produce a byzantine assortment of interconnected statuses. Ultimately each new case would require its own circle, thereby indefinitely adding new circles. It also would not get at threshold problems associated with any given type of right. Identifying what from each rights category (civil, political, social, and nationality) constitutes “enough” from the perspective of nation-state citizenship would add further complicating layers or dimensions that a Venn diagram cannot effectively accommodate. The more parsimonious distinction between autonomous and relative rights consolidates the complex parts of the Venn diagram into categories that we would expect to come in bundles. If citizenship is not an all-or-nothing venture, or if it is always in a process of evolving toward a final and complete status, we want to identify fault lines that refer not just to different types of rights, but specifically

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and only to those different types of rights that we would think are most likely to be bundled. Aside from Marshall’s historical evolutionary tale, in most theories we are given very little reason to justify why specific civil rights (for example, speech and contract) are more likely to be bundled together than, say, specific civil rights and specific political rights (for example, speech and the franchise). There is also a highly contextual, almost arbitrary quality that comes with relying solely on such specific, historically situated categorizations of rights of citizenship.26 Michael Mann has detailed the fact that at least two of Marshall’s three types of rights “turn out to be heterogeneous … Citizenship perhaps has not been as singular a process as Marshall argues.”27 Mann defends a revision of Marshall’s framework into different and more complex subtypes. While some advocates of rethinking citizenship argue in favor of extending Marshall’s account of citizenship to include newly introduced rights, many of these new rights do not fit readily into Marshall’s three types of rights. Ruth Lister, who supports and has made important contributions to the project of rethinking Marshallian notions of citizenship for the 21st century, observes that “reproductive rights … can be seen both as an extension of the civil-political-social rights triad and as inseparable from it.”28 Similarly, cultural rights are sometimes classified along with immigration, naturalization, and asylum rights as “membership rights.”29 Why a cultural right has to be a membership right, as opposed to a “conscience and choice” right, is not entirely clear. This might be because cultural rights can refer to differentiated practices (for example, wearing the now emblematic headscarf in France) as well as the needs that grow out of them (the right to group representation). Nonetheless, the possibility of seeing cultural rights in two different ways exemplifies the problem of over-specifying the variables in a categorical framework of semi-citizenship. Within the autonomous/ Michael Mann, “Ruling Class Strategies and Citizenship,” in States, War and Capitalism: Studies in Political Sociology, ed. Michael Mann (Oxford: Blackwell, 1988). 27 Michael Mann, The Sources of Social Power Volume Two: The Rise of Classes and Nation-States 1760–1914 (New York: Cambridge University Press, 1986), 19. In turn, others have critiqued his breakdown, suggesting further refinements to Marshall’s typology. See Anthony M. Rees, “T.H. Marshall and the Progress of Citizenship,” in Citizenship Today, eds. Martin Bulmer and Anthony M. Rees (London: UCL Press, Ltd., 1996), 12. 28 Ruth Lister, “Citizenship as Status and Practice,” Hypatia 12(4) (1997): 7. 29 Thomas Janoski and Brian Gran, “Political Citizenship: Foundations of Rights,” in Introduction to Citizenship Studies, eds. Bryan S. Turner and Engin Isin (London: Sage, 2002), 15. 26


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relative framing, the disagreement about the nature of cultural rights is obviated because, regardless of whether they refer to membership rights or rights of conscience, they are classified as relative. They only gain meaning in a political context where one culture might need to assert such rights in the presence of another. Thus there is no slippage between categories. Newly established rights such as reproductive freedom also need not be shoe-horned into Marshall’s triad. Reproductive rights are autonomously valuable rights. An autonomous good has universal meaning and import. A relative good is coherent and meaningful in a specific context. All human beings require autonomous goods to survive regardless of their specific cultural or political environs. Relative goods are of varying importance but are accorded meaning by a set of structures that are not universal or perhaps even universally desired. In short, by marking the difference between context and universality as the crucial difference between kinds of rights, the autonomous/relative framing avoids a tangle of disagreements about grouping rights. The autonomous/relative framework also avoids overspecificity by describing gradient citizenship solely in terms of rights. Chapter 2 argued in favor of regarding rights as central to citizenship. However, rights do engender forms of political agency and action that are important to citizenship. We may want to classify them in a fashion similar to the way in which we classify rights-based differentiation. Thomas Janoski produces a schematic of overlapping ovals that maps citizenship’s relationship to civil society. As with the distinctions of degree mentioned in the preceding paragraph, these distinctions also produce thick descriptions rather than classifications with the potential to facilitate comparison. Janoski’s schematic is encyclopedic to the point that, were it to be used to identify forms of semi-citizenship, it would allow an almost infinite number of these statuses. C. Classification of the Substance of Citizenship A third contribution made by the relative/autonomous framing alternative also lies in its reliance on rights as a basis for disaggregation. The framework refers to what rights citizenship confers and thus refers to the substance of semi-citizenship. It is grounded in the rules that govern the lived experience of citizens and semi-citizens. A rights-based framework avoids conflating this substance with various kinds of ideas about citizenship that do not reflect the lived experience of citizens. Foremost among such ideas about citizenship are the justifications offered for according

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people citizenship rights, either in partial or complete bundles. (This was indicated above in Section II of this chapter, alongside a discussion of the ways in which the substance of citizenship might be unbundled.) By “justification” I mean arguments such as those made by Robert Dahl regarding the traits or circumstances that qualify different individuals for various kinds of semi-citizenship.30 The justifications for existing thresholds at which we say that individuals “qualify” for various types of rights are not linked. Each rule that qualifies someone for citizenship – be it blood, merit, age or even affected interest – is associated with thresholds that are difficult to pinpoint, and that themselves are the subject of contestation between different doctrines and logics of citizenship. Logics of citizenship might refer to norms or various forms of political necessity that serve to identify which persons qualify for which types of citizenship. One could turn to liberal bases for rights, democratic theories of membership, or reason of state to justify any given bundle of citizenship rights for a given set of individuals. Each type of theory can speak to the entire set of citizenship rights, but each type of theory is very likely to propose a different set of reasons for offering or denying the right to any given person. Democratic theory is an ethical discourse that treats both the boundaries and qualifications for inclusion differently than does liberal theory or reason of state. Dahl’s premise that affected interest can be a rule for determining citizenship is convincing only because he is essentially using citizenship and the franchise interchangeably.31 While Chapter 2 defended a definition of citizenship that rests on rights rather than a more reciprocal or relational conception of political and even civic activity, it remains the case that the rights of citizenship extend beyond the franchise, and the polity is bounded by more than that which defines the demos. Justificatory premises for differentiations do stamp semi-citizenships with their imprint. However, they do not serve by themselves as a good means for disaggregating types of semi-citizenship from one another. The reasons for this are two-fold. The first is fairly straightforward. Justifications for inclusion and exclusion are not the same as actual inclusion and exclusion. A democracy may enshrine a sense of civicness in its constitution and yet not exclude the politically apathetic from any element of citizenship. We cannot easily identify direct linkages with

See discussion of Dahl in Chapter 2. Robert Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989), see Chapter 9. See also Robert Goodin, “Enfranchising All Affected Interests, and Its Alternatives,” Philosophy and Public Affairs 35(1): 40–68.

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distinct logics of citizenship and the forms of semi-citizenship that they engender. Ideas matter to practice, but it would be difficult to assign a causal effect relating one normative theory to a specific circumstance of inclusion or exclusion, particularly in the normatively diverse context of liberal democratic states. There is likely to be very credible evidence that multiple sources contribute justifications for, to take one example, according children social rights but not political rights. We may regard children as not being capable of rational thought or we may regard them as incompletely schooled in democratic behaviors. Sorting through such reasoning and identifying the exact combination of norms that has a causal relationship with the rights accorded to children would be nearly impossible. Using any single justificatory scheme is likely to describe semicitizenships in ways that sacrifice analytical complexity in favor of theoretical coherence. Citizenship comprises a range of rights, each of which is bounded independently, and each of which has distinct meaning. Citizenship and various forms of semi-citizenship are therefore bestowed on people based on a multitude of thresholds, each of which will be regarded differently by different normative theories as well as by political necessity. A legally competent adult national may be a full citizen in one country but not in another by virtue of that person’s IQ. Access to the franchise can be bounded broadly, by according it to all rational individuals, or narrowly, by according it only to people steeped in a particular ethical tradition. A classification that refers solely to liberal or to democratic reasoning, or one that gives primacy to one over the other, will not attend to forms of semi-citizenship produced by inconsistent applications of the two, by contradictory norms, or by the intervention of political necessity in the world of norms. Complicating the diversity of norms that grounds rights is the fact that even within a single normative theory about citizenship, multiple qualities or capacities will entitle people to different rights in the democratic bundle. What entitles someone to the civil rights of citizenship may, and likely will, be entirely independent of the quality that entitles them to political rights. We see this in the case of Puerto Ricans, who are clearly entitled to the former and have a very complicated relationship to the latter.32 To take a different example, Jews in early modern Europe held a specific, precisely defined status in the societies that “hosted” See Elizabeth F. Cohen, “Neither Seen nor Heard: Children’s Citizenship in Democracies,” Citizenship Studies 9(2) (2005): 221–240.

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them, which was often different from the status of migrants despite the fact that both groups look (to modern eyes) like foreigners.33 Jews may have been foreigners and outsiders, but because they lived in societies that believed them to have specific and distinct capacities, their ability to meet various thresholds of rights and status was distinguished from that of other foreigners, and in some, but not all, respects they were also included.34 Semi-citizenships can conceivably be based on age, civic competency, racial hierarchy, or any number of other rationales that are in turn linked to the larger grounding and organization of political power itself. Determining the precise point at which someone is a competent voter, what the needs of differently situated persons are, or what constitutes substantive and effective representation – these and any number of other thresholds are often difficult to pinpoint even within one system of reasoning.35 For example, in any given political context different interests will be affected in different ways, thus entitling people differentially. By virtue of its categorical nature, citizenship must both exclude and include. It therefore relies upon justifications that distinguish and discriminate. The types of distinctions and discriminations that are made characterize different forms of citizenship. Jus sanguinis and jus soli, for example, characterize different understandings of nationality. Divergent justifications also characterize semi-citizenships. Felons are denied some civil rights for different reasons than LGBTs are denied others. Any understanding of citizenship that admits of the inevitability of semi-citizenship must account for different, often conflicting, justifications for the types of exclusions and inclusions made within any given population of citizens, as well as for the semi-citizen statuses they create. However effective these explanations are at justifying exclusions Benhabib, The Rights of Others, 28. �� Immigration rules have almost always and everywhere accorded different and favorable statuses to groups who have special political import to their host societies. See Elizabeth F. Cohen, “Investigating the Logic of Inquiry of the Status of the Foreign Born,” Canadian American Research Series (2007): 25–28. 35 John Stuart Mill, Considerations on Representative Government (New York: Library of Liberal Arts, 1958). Debates over descriptive representation have preoccupied American political science whereas proportional representation generates its own quandaries in parliamentary systems. See, e.g., Carol M. Swain, Black Faces, Black Interests (Cambridge: Harvard University Press, 1993); Virginia Sapiro, “When are Interests Interesting?: The Problem of Political Representation of Women,” American Political Science Review 75(3) (1981): 701–716; Melissa Williams, Voice, Trust and Memory: Marginalized Groups and the Failings of Liberal Representation (Princeton: Princeton University Press, 1998). 33

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and inclusions, they do not explain such phenomena in a world where norms conflict with one another as well as with non-normative causes of these phenomena. No single form of reasoning about citizenship can fully capture the range of existing semi-citizenships given that people are excluded for reasons ranging from their rational capacities, to their relationships to ethical communities, to sheer political necessity. This is because each of these ways of viewing citizenship is competing with the others for dominance over all the elements of citizenship. Thus they can all contribute to any given form of semi-citizenship. This competition can yield forms of semi-citizenship not clearly attributable to one way of thinking. For example, the basis of a felon’s semi-citizenship in the United States could be attributed simultaneously to reasons of security, liberal norms of consent, and a form of jus sanguinis that is facially neutral but that discriminates based on race in practice. With no way to authoritatively decide which kind of reasoning, if any, takes precedence, it becomes impossible to use these justifications as a basis for classifying semi-citizenships. Semi-citizenship is unpredictable because there are competing justifications that do not map onto autonomous and relative rights. Nonetheless, it is important to understand genealogies of semi-citizenship even if they themselves are not predictors of the kinds of statuses that states instantiate. These justifications and the conflicts between them are more fully explored in Chapter 4. D. Structural Classifications A final contribution of the relative/autonomous framework lies in the fact that it is entirely structural. By “structural,” I mean that it depicts semi-citizenship as something that is different than, though affected by, social identity. Because identities are rooted in historicized contexts, analyses of citizenship refer to contingent traits such as race, gender, age, or nationality, rather than the more abstract status members hold in relation to the state. To use Marx’s terms, each semi-citizenship is a “class-in-itself” (an sich) rather than a “class-for-itself” (für sich).36 A class-for-itself has “organized into a social entity and achieved consciousness of its social and political role in the course of its struggle.”37 See Karl Marx, The Poverty of Philosophy (New York: International Publishers, 1971): 173; Karl Marx, The Eighteenth Brumaire of Louis Napoleon (New York: International Publishers, 1963): 123–124. 37 Hal Draper, Karl Marx’s Theory of Revolution: Volume II: The Politics of Social Classes (New York and London: Monthly Review Press, 1978), 41.

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Any unorganized, atomized class that is not self-conscious or a recognized social entity merits attention because it has characteristics that are “more than the sum of its individual atoms.”38 The prototypical class-in-itself is Marx’s as-yet unorganized proletariat. The proletariat’s nature as a classin-itself is defined with reference to the position of its members in the economic structure, their effective rights and duties within it. A person’s class is established by nothing but his objective place in the network of ownership relations, however difficult it may be to identify such a place neatly. His consciousness, culture, and politics do not enter the definition of his class position.39

Similarly, semi-citizenships are defined not with reference to social identities, culture, or political consciousness, but by a person’s position within a political structure (the state) and their effective rights within it. A shared absence of autonomous and/or relative rights creates a very real structural class of people with a common experience of the state, if not the society, that they inhabit. Their social roles may diverge, but they share a status and a set of disabilities that together place them in a similar position in relation to each other, to other semi-citizens and citizens, and to the state. This shared structural position cannot be explained solely with reference to ascription or the cultural-imperialist aspirations of dominant classes. The fact that recognizable identity groups can and do occupy multiple cells of the relative/autonomous table indicates that semi-citizenship neither strips people of social identities nor does it fully transcend them. Semi-citizenships do not refer to or derive their force from reference to identities, even though identity groups can be classified using the framework. The same semi-citizenship can be and is experienced by people whose social identities are different. Similarly, people whose social identities appear similar can have different semi-citizenships.40 The latter case is illustrated by the very different position of siblings, one of whom was born to undocumented parents just outside the border of the United States, and one of whom was born just inside that border. The sibling born inside the border will automatically receive U.S. nationality while Draper, Karl Marx’s Theory of Revolution, 40. G. A. Cohen, Karl Marx’s Theory of History: A Defence (Princeton: Princeton University Press, 1978), 73. 40 Alfred Schütz, “Concept and Theory Formation in the Social Sciences,” in The Problem of Social Reality: Selected Papers: Volume One, ed. M.A. Natanson (The Hague: Martinus Nijhoff, 1962), 62–63; and “Common-Sense and Scientific Interpretation of Human Action,” in The Problem of Social Reality: Selected Papers: Volume One, ed. M. A. Natanson (The Hague: Martinus Nijhoff, 1962), 6. 38 39


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her sister will not. Without ignoring the fact that the siblings may share a social identity, it remains important to have a language for identifying the difference in their experience of the state. To take an example that is broader in scale, people disenfranchised because of procedural irregularities, e.g., individuals qualified to naturalize who wait years in a long queue or ex-felons who qualify for political rights that are not reinstated, share a structural position that cannot be explained solely with reference to shared social identity.41 The tendency to understand semi-citizenship primarily from the perspective of social identity at the cost of a larger structural picture of citizenship is part of an ongoing discussion originated by modern political theorists who posited diverse social identities in opposition to unitary citizenship. This critique has been adopted and extended by critics of the contemporary social justice literature. B enjamin Constant’s indictment of liberal citizenship offered an early iteration of the claim that social identities are diverse while political status is unitary. He suggests that citizenship strips people of organic human diversity that defines them and replaces it with a single, governable inhuman political identity: While patriotism exists only by a vivid attachment to the interests, the way of life, the customs of some locality, our so-called patriots have declared war on all of these. They have dried up this natural source of patriotism and have sought to replace it by a factitious passion for an abstract being, a general idea stripped of all that can engage the imagination and speak to the memory. To build their edifice, they began by grinding and reducing to dust the materials that they were to employ. Such was their apparent fear that a moral idea might be attached to their institutions, they came close to using numbers to designate their towns and provinces, as they used these to designate the legions and corps in their army.42

At the same time that citizenship imposes uniformity, however, it also transforms people into individuals in ways that erode commonly held identities. Constant continues: The interests and memories that arise from local customs contain a germ of resistance that authority is reluctant to tolerate and that it is anxious to eradicate. It can deal more successfully with individuals; it rolls its heavy body effortlessly over them as if they were sand.43 �� Slowdowns in paperwork processing regularly adversely affect those waiting for citizenship. See, for instance, Kirk Semple, “Immigrants Eager to Vote Sue to Hasten Citizenship,” The New York Times, July 16, 2008. 42 Benjamin Constant, “The Spirit of Conquest,” in Political Writings, ed. Biancamaria Fontana (Cambridge and New York: Cambridge University Press, 1988), 74. 43 Constant, “The Spirit of Conquest,” 74. 41

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Variety is what constitutes organization; uniformity is mere mechanism. Variety is life; uniformity, death.44

Edmund Burke expresses a similar fear that the break-up of prerevolutionary French localities into administratively convenient units would destroy the sentiments of loyalty, community, and identity that had been responsible for the constitution of “Frenchness” prior to the revolution.45 Several influential contemporary versions of critiques of the liberal state also assert that liberalism privileges the unitary insofar as it prioritizes equality, and hence they oppose ostensibly unitary political status with more diverse social identities. Charles Taylor emphasizes the way in which liberalism leaves people homogenous.46 G eorgio Agamben illustrates the processes within the state through which the claim is made that citizenship is a single role. He then demonstrates the falsity of this claim. In a tone that echoes Constant’s description of how the state replaces organic local identities with a single citizenship, Agamben describes the French Revolution as imposing a uniform status and title upon previously differentially situated subjects: With the French Revolution [subjects] acquire new meaning and decisive importance. Citizenship now does not simply identify a generic subjugation to royal authority or a determinate system of laws, nor does it simply embody (as Chalier maintained when he suggested to the convention on September 23, 1792) that the title of citizen be substituted for the traditional title monsieur or sieur in every public act. The new egalitarian principle; citizenship names the new status of life as origin and ground of sovereignty and, therefore, literally identifies – to cite

Constant, “The Spirit of Conquest,” 77. Constant is referring here to Enlightenment thinkers, particularly Montesquieu (Books 29, 18) and Mirabeau in “L’ami des homes oy traite de la population.” 45 See Edmund Burke, Reflections on the Revolution in F rance (New York: Penguin, 1968), especially 314–315. Of those skeptical of the transformative potential of the liberal state, M arx offers the most challenging critique in “On the Jewish Question.” M arx suggests that rights as administered by liberal states do not emancipate people so much as they contain the seeds of political oppression that are billed as liberating. M arx’s most radical conclusion is that it is not the unequal application of rights that truly disentitles people; rather, it is that the rights are rights to things such as property and religion that themselves oppress. States cannot remedy the oppressive elements and tendencies of civil society insofar as the “universal” rights they confer refer to the very practices that oppress their citizens. Rights to religion, private property, etc., cannot emancipate universally because they entitle people to engage in practices from which particularity originates. 46 Charles Taylor, “Hegel, History, and Politics,” in Liberalism and Its Critics, ed. Michael Sandel (Cambridge: Cambridge University Press, 1998), 193. 44


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Jean-Denis Languinais’s words to the convention – les membres du sovereign, “The members of the sovereign.”47

Both Wendy Brown and I ris Young also critique the liberal state’s drive to abstract and link it with the role assigned to rights in liberal theory. Brown suggests that the Foucauldian “disciplinary power” produces social identities (available for politicization because they are deployed for purposes of political regulation) that crosscut juridical identities based on abstract right. Thus, for example, the welfare state’s production of welfare subjects – themselves subdivided through the socially regulated categories of motherhood, disability, race, age and so forth – potentially produce political identity through these categories, produce identities as these categories.48

Iris Young’s theory of differentiated citizenship makes a related, but potentially more systemizing, effort to suggest that liberal impartiality operates on three dimensions. It “denies particularities”; “masters or eliminates heterogeneity;” and “reduces plurality of moral subjects to one subjectivity.”49 Young argues that the liberal state papers over inequalities generated via the oppression of identity groups by falsely asserting that the act of abstracting diverse individuals into citizens transforms their diversity into an identical public entity: the citizen. [T]he ideal of impartiality in moral theory expressed a logic of detachment and dispassion that seeks to reduce differences to unity. The stances of detachment and dispassion that supposedly produce impartiality are attained only by abstracting from the particularities of situation, feeling, affiliation, and point of view.50

In turn, Nancy Fraser argues in favor of “bivalent collectivities” that are formed via the dual influences of social norms and economic structures.51 Yet even this expanded understanding of structure fails to fully account for the independent influence of the state and the legal structures it generates. Recalling the example of the siblings born on different sides of a border efficiently captures forms of structural inequality that even bivalence cannot. Giorgi Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Palo Alto, CA: Stanford University Press, 1998), 129. 48 Wendy Brown, “Wounded Attachments,” Political Theory 21(3) (1993): 393. 49 Young, Justice and the Politics of Difference, 100. 50 Young, Justice and the Politics of Difference, 97. 51 Nancy Fraser, “From Redistribution to Recognition,” New Left Review 1, no. 212 (1995): 68–93; Nancy Fraser, Justice Interruptus: Critical Reflections on the “Postsocialist” Condition (New York: Routledge, 1996). 47

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Each of these contemporary commentaries downplays or ignores the idea of class “an sich,” as it pertains to political structure; each deemphasizes the degree to which differentiation originates in administrative rationality as expressed by the state, replicating Constant’s assertion of unitary political identities opposing diverse, if sometimes unequal, social identities. On this point, Leonard Feldman critiques Fraser’s reliance on the pairing of economic and social injustice effects citing the state as the third actor in a “trivalent framework.”52 Feldman argues that Fraser’s framework’s “failure to thematize a specifically political form of injustice – political exclusion – limits its ability to make sense of justice struggles and is reflected in a similar blindness to the specificities of state power.”53 Iris Young has also criticized Fraser’s adherence to the binary, arguing in favor of “plural[izing] categories and understand[ing] them as differently related to particular social groups and issues.”54 Young accuses Fraser of being “brazenly dichotomous” in spite of a professed commitment to “deconstruction,” and she argues that Fraser’s “categorization appears to have no place for a third, political, aspect to social reality, concerning institutions and practices of law, citizenship, administration, and political participation.”55 Yet Young is herself mired in the very dichotomy that she has attacked. Young tends to conflate the structural and social identity, thus sidelining the role of the state and reducing the term “structural identity” to the very binary she has accused Fraser of inhabiting. In “Equality of Whom?” Young makes a strong case for “assessing degrees of inequality between groups … because it helps to identify structural inequalities.”56 In her characterization of what structural inequality means she focuses on distinguishing the structural from individualist accounts of inequality, and in so doing she opposes “the dangers of state tyranny” with ascriptively defined groups, rather than joining the two on equal footing. The effects of Young’s resistance to purely structural, non-normative reasoning become far more apparent once she applies her framework. Young asserts that, “in making some of the most important judgments Leonard C. Feldman, Citizens Without Shelter: Homelessness, Democracy and Political Exclusion (Ithaca and London: Cornell University Press, 2004). See especially Chapter 3. 53 Feldman, Citizens Without Shelter, 85. 54 Iris Marion Young, “Unruly Categories: A Critique of Nancy Fraser’s Dual Systems Theory,” New Left Review I(223) (1997): 149. 55 Young, “Unruly Categories,” 150–151. 56 I ris Marion Young, “Equality of Whom? Social Groups and Judgments of Injustice,” The Journal of Political Philosophy 9(1) (2001): 15. 52


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of justice and injustice we must compare social groups such as women, African A mericans, migrants, or people with disabilities.”57 She offers an example rooted in Susan Okin’s work, in which interlocking social structures of family and economy, as well as cultural norms, shape choices and thus explain the unequal conditions of women and their children. Without such an account, it is difficult to describe women’s unequal position as a matter of injustice.58

The state thus fades to the background in Young’s interpretation of structure as well as in her examples of how to deploy structural analysis. Conflating social identity with a structural category such as semicitizenship, or using only identity groups as reference points for identifying who is, or is not, a semi-citizen, is problematic for several reasons. First, relying on social identity makes it difficult to recognize semi-citizens who aren’t a part of identity groups perceived as oppressed, disempowered, or underprivileged. While Young’s defense of using social identity to answer questions about inequality and justice leaves little doubt that comparing the standing of social identity groups reveals structural inequalities, one is left wondering how we can be assured that inequalities experienced by groups without a recognizable social identity will be revealed . For example, it is hardly guaranteed, even if conceivable, that the lens of race , or any other social group identity, would reveal the standing of disenfranchised felons and ex-felons in the United States. How are we to recognize the common experience in which the civil right to a fair trial is compromised for members of the military, enemy combatants, and members of specific ethnic and religious groups when, of the three categories, only one corresponds to a recognized social identity, and when each has an independent social status? This call for additional emphasis on political structures does not demand a move back toward overly individualist accounts of justice. Instead, it offers the advantage of pointing out questions that investigations of the relative standing of identity groups do not ask. This is especially true with regard to people whose standing and entitlement to a right or rights has not yet been recognized, as well as with people whose social identity itself has not been recognized. So, for example, it took generations to achieve public recognition that gay couples might expect the right to marry, even though that recognition was accompanied

Young, “Equality of Whom?,” 6. Young, “Equality of Whom?,” 11.

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by strong opposition. The very recognition of the right marked a victory over structural oppression. Much preceded that recognition, namely the development of group consciousness. As desirable as group consciousness may be, if we rely on the development of group consciousness for the assertion of claims to rights that have not previously been asserted or claimed, people will fall through the cracks. If we work backwards, asking instead, “who cannot marry?” we see people whose group consciousness has not yet developed or encouraged the making of claims. Second, relying on social identity has the effect of making groups who share political statuses appear as if they are disparate because their social identities are, in fact, disparate, even though their structural identities are very similar. Children and disenfranchised felons have the same order of semi-citizenship. They occupy very different social statuses but neither receives a very robust set of civil or political rights, neither can move entirely freely, and each has access to some important social rights. They have important common experiences of the state. For different reasons, homeless persons and stateless individuals are both deprived of a right to reside somewhere. Alternately, relying on social identity to structure the discovery and analysis of political status can make some people whose experience of the state is very different appear to have similar experiences. A refugee and an undocumented person, each of whom comes from China, may look more similar from the perspective of social identity than from the point of view of their political structural identity. Normative work that is focused on social identities has additional weaknesses besides a tendency to overlook or misidentify semi-citizens who do not belong to recognized identity groups with recognized claims. It often goes a step further and narrows the range of causes and effects of oppression that we are able to recognize. Because social identity is often studied through normative lenses trained on conclusions about social justice, such study has been focused on reasons that citizenship bundles might be disaggregated, since the legitimacy/ justice of the reasons for disaggregating citizenships forms the basis for how we judge the actual statuses. If we are motivated to study inequality because we are concerned about the presence of sexism, for example, this will color the kinds of inequality we see. (This also returns us to the discussion in Section II that rejected characterizing semi-citizenships based on the reasons that are used to justify exclusion of the semi-citizen.) In using reasons for or causes of oppression as a tool for identifying and categorizing who is oppressed, we become a little bit like drunks at the lamppost; looking at groups whose social standing we already recognize as oppressed


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fixes our eye on the effects of that oppressed social standing. While the importance cannot be overestimated of arguing about the effects, both singly and combined, of race, class, and gender, it is also true that political structures stemming from one’s standing as a member of a state must also be examined independent of these other variables. Otherwise, where we know to look for the causal effects of racism, we may see only the causal effects of racism, and not the whole gamut of political disabilities or privilege that citizenship and semi-citizenship confer. The person disenfranchised by a hanging chad may not have been the subject of any intentional campaign to exclude. However, the person has been deprived of their political right to vote and to be represented. Mistakes are made without any malign intent. Young does not explicitly set out to conflate the causes of differentiation with their products. Instead, her analysis accords a special role to identity as the fulcrum around which the sources and products of oppression turn. This assigns responsibility to norms for the shape that differentiation takes, and identifies specific acts tied to dominant classes as contravening norms of equality. The importance of developing and considering a structural approach to semi-citizenship will be underscored in Chapter 4, when normative doctrines of citizenship are contrasted with those stemming from administrative rationality. Returning to the two critiques of liberal citizenship broached earlier: the state uses a single citizenship to strip people of organic forms of identity, while dominant classes use their social and political privilege to deprive subjugated groups of standing via the denial of rights and other forms of recognition. In this telling, the state wipes the slate clean, but it is the biases and interests of dominant classes that actively shape new memberships. However, if semi-citizenships are not identities, and if semi-citizen categories include people for reasons that cannot be traced to their identity or to relationships between dominant and oppressed classes, then prioritizing normative explanations of semi-citizenship that are linked to identities produced by oppressive dominant classes is misleading and incomplete. This in turn demands a genealogy of semi-citizenships that admits, but does not limit itself to, social identity and the larger normative premises that prioritize identity as a lens for understanding the sources and products of gradient citizenship. This inquiry is the focus of Chapter 4.

VIII. Conclusion As Chapter 2 made evident, simply defining the concept of citizenship itself amounts to a contentious and Sisyphean enterprise. The task

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demands an understanding of the relationship of different elements of membership that will explain why it is that rights don’t stay bundled in the way that normative theorists wish they would and empirical scholars expect them to. The two core theses advanced in this chapter are the following: first, taken as a whole, citizenship rights are normatively non-contingent upon one another. They do not depend on each other to justify their existence or for the degree to which they are made available to any given individual. Second, citizenship rights can be grouped in an ordered configuration of autonomous and relative rights, each of which can exist in a strong and weak version. Such an ordering creates four types of semi-citizenship held by various groups and individuals. The groups and individuals that occupy any given quadrant may differ, but each quadrant of the table is durable. None is entirely empty at any given point in the history of a democratic state. This then yields the ultimate conclusion that semi-citizenship is inevitable under any normative or political circumstances, though given groups and individuals can, at various times, move around, off, and onto the four-cell table or any of its proposed quadrants. The model of semi-citizenship offered by the autonomous/relative model has several important attributes that recommend its use. As is evident, the model avoids the most serious pitfalls that compromise existing unitary approaches to questions of citizenship. This is for several reasons. Although a rights-based definition of citizenship excludes some things that others might include in a definition of citizenship, it requires that discussions of semi-citizenship move beyond questions of nationality and naturalization, or any other kind of reductive understanding of citizenship. It also clearly demonstrates the presence of differential membership generated by elements of citizenship that exist independently of one another. In focusing on which rights become disaggregated from one another, rather than focusing on norms or one specific right of citizenship (e.g., nationality), the autonomous/relative framework also allows a complex picture of both inclusion and exclusion. Nothing about the framework treats semi-citizenships as if they are, and can only be, the product of any specific norm or bias. This then raises the question of how semicitizenships do come into existence and what the role of norms is in producing them. Chapter 4 addresses the latter two questions, looking in greater detail at why semi-citizenship developed along the historical trajectory it did, culminating in the particular forms that are evident in contemporary liberal democracies.

4 Logics of Semi-Citizenship

He is a citizen in the fullest sense who shares in the honors of the state.1

I. Introduction Semi-citizenship refers to different combinations and degrees of citizenship rights. Chapter 3 argued that a normative framework for identifying semi-citizenships would not identify semi-citizenships as they exist in politics. This leaves open the question of what actually produces semicitizenship. While Chapter 3 rejected relying upon the justifications (both normative and non-normative) for citizenships as a means of categorizing semi-citizenships, it left open the possibility that such justifications play an important role in the creation of semi-citizenships. Normative theories, particularly democratic theories with their attendant reference to specific ethical traditions, and theories of universal liberal right, justify different boundaries around citizenries. Administrative rationality, particularly that imposed by the state, also justifies the setting of boundaries around a citizenry. Liberal democratic states draw upon all these justifications when making rules about who can be included and in what ways. The boundaries of citizenship are determined simultaneously by democratic and liberal norms as well as administrative rationality. This means that to understand the existence of semi-citizenships, we need to understand not what it is that any particular doctrine of membership dictates, but instead what happens to citizenship at the intersection of different doctrines or logics of membership. As prefigured in Chapter 1, 1

A ristotle, The Politics (Cambridge: Cambridge University Press, 1996), Book III Chapter 5.

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semi-citizenships are not created at the margins of politics so much as they are formed at the seams that knit together the diverse fabric making up liberal democratic states. The complexity of contemporary semi-citizenships is driven by the fact that they are shaped by multiple sets of overlapping norms and non-normative imperatives, each of which imposes a different set of considerations onto citizenship, and none of which can be practiced in isolation. This chapter draws together the democratic, liberal, and administrative logics of membership – whose overlaps and conflicts result in contemporary citizenship and semi-citizenships – to illustrate the dynamics through which semi-citizenships are formed and the degree to which they represent neither faulty applications of theories of membership, nor the machinations of exploitative classes and individuals, but, instead, political inevitability. To underscore this inevitability, the chapter traces the historical progenitors of semi-citizenship to affirm the depth of normative conflict and of conflict between norms and administrative rationality. Even polities that claim normative and administrative homogeneity have produced conflicts between ethical norms, proto-liberal norms, and administrative rationality. This makes it all the more predictable that the modern effort to join the ethical and moral under the administration of the state will produce semi-citizenships. In the next section, I discuss the impact of conjoining liberal norms with democratic theory in the context of the nation-state. Because democratic theory, liberalism, and administrative rationality all overlap at some points and are divergent at other points, none can fully dominate any set of membership practices, nor can any exist without the other two. This discussion indicates that manifestations of partial inclusion and exclusion are not just correctable flaws in normative doctrines, the product of bias held by dominant classes, or the result of poor administration. Rather than representing mistakes or bias, semi-citizenships are the institutional embodiments of compromises between conflicting logics of membership. Democracy, liberalism, and the various sorts of administrative rationality each generate distinct rationales for membership that in turn assign different relative and autonomous rights of citizenship to different people. Semi-citizenship is therefore both inevitable and vital to the functioning of liberal democratic states. Semi-citizenships perform the crucially important function of adjudicating conflicts among different doctrines of membership in three specific ways. Semi-citizenships forge compromises when and where conflict between competing logics is direct and sustained. These compromises bring order to diverse populations with

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irregular boundaries, and they ensure flexibility where rigidity might compromise other important political goods. Only practices of membership that do not make some fundamental elements of citizenship contingent on other fundamental elements can accomplish this. The ongoing nature of these needs, and of the conflicts that generate them, does not imply that semi-citizenships are just. Nor will the groups and individuals that hold them be entirely predictable. This implies that semi-citizenships serve important and ever-present political purposes. These purposes become more fully apparent in the two following chapters (5 and 6), in which specific cases of unbundling of relative and autonomous rights are examined. This chapter proceeds in six sections. Section II discusses the forebears of contemporary normative doctrines that ground citizenship, with attention to the fact that even when citizenship is practiced in contexts that are doctrinally homogenous, as opposed to the contemporary political fusing of democracy and liberalism, elements of citizenship are typically unbundled and selectively applied to accommodate exceptions to rules and to govern persons affected by these exceptions. The third and fourth sections of the chapter illustrate how specific contradictions between liberal norms, democratic norms, and administrative doctrines of citizenship come to affect rules regarding the boundaries of a citizenry, as well as the content of citizenship for members. In the resolution of these contradictions, semi-citizenships are created. In Section V, I describe the purposes of these semi-citizenships in a context where doctrinal conflict is inevitable. Semi-citizenships serve as compromises between different doctrines of citizenship, they assist in ordering populations, and they permit flexibility over time and among differently situated parts of the population. Finally, in Section VI, I return to the idea that semi-citizenships are solely the outcome of the oppressive tendencies of dominant classes, and I indicate that, because doctrinal conflict will exist and require adjudication regardless of whether one class dominates another, the problem is both perennial and not attributable solely to specific hierarchies.

II. Forebears of Semi-Citizenship T. H. Marshall’s frequently cited narrative about citizenship tells a story in which diverse norms come to cohere within the context of the state. He posits that citizenship evolves over time to become a more robust and tightly knit bundle. In Marshall’s telling, the autonomous rights of

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citizenship are contingent upon relative rights in the sense that critical social rights – Marshall does not focus on rights of place and free movement – exist for the purpose of allowing people to fully realize their civil rights, which in turn exist to support rights of democratic participation. In many senses, Marshall merely develops and extends a way of thinking about citizenship that pervades the larger universe of normative theory from which his strand of social democracy is pulled. The birth of liberal philosophy during the Enlightenment was predicated on transcending legally entrenched political hierarchies in ways that are apparent, if differently so, in the tracts of Locke, Rousseau, M ill, and Montesquieu. In turn, these texts became references for nation-building exercises and constitution writers who designed the institutions that would come to embody principles of egalitarian inclusion. So it is unsurprising that, in Marshall’s narrative, specific social democratic norms gradually became incorporated into institutional realizations of membership. Yet not only has welfare retrenchment in the late twentieth century called this evolutionary account into question, but the very doctrinal confluence that Marshall described as evolving toward a unitary citizenship contains inherent contradictions. Although his history emphasizes only one combination of the moral and ethical norms that justify the distinct but mutually dependent arguments supporting liberalism and democratic theory, it joins two understandings of liberty that are sometimes contradictory. The liberal egalitarian and social democratic principles that Marshall cites are inextricably related, but the premises of each require compromises from the other that preclude the evolution he claimed citizenship had undergone. Marshall also omitted a developed picture of the pressures placed on social democratic versions of citizenship both by the state, and by international factors such as migration and large-scale displacement of populations. His conclusion presumes that citizens will have full rights associated with territorial residence, and also that this will be tied to the evolving bundle of social, civil, and political rights he describes.2 A longer snapshot of the evolution of citizenship – and semicitizenship – reveals discontinuities that Marshall does not explore and that are of immediate relevance to understanding how semi-citizenship develops and persists. Even acknowledging the gulf between current political circumstances and those of the ancient world, the simple fact that all T. H. Marshall, Class, Citizenship, and Social Development: Essays by T.H. Marshall (New York: Doubleday, 1965).

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pre-modern and many modern societies have recognized, if not embraced, the inevitability of multiple forms of membership, should give pause to committed Marshallians and to others convinced that any specific normative model of citizenship can be, and is, realized in the context of the state. It is a relatively novel conceit that political membership can and ought to attach to a single status defined by normative theory and governed by institutions that realize these norms. That many of the variables that have been used to draw distinctions between classes of members remain potent – and in many cases legitimate – means that drawing distinctions only serves to underscore the importance of a theory of semi-citizenship, as well as highlighting a need to identify what factors distinguish modern semi-citizenship from its progenitors. Interrogating the forms of political membership, out of which modern citizenship evolves, illuminates the raw materials from which the nation-state has sculpted its own versions of membership, as well as which processes and conditions are distinct to modern semi-citizenship. The history of semi-citizenship that I introduce in the next subsection illustrates the degree to which no fundamental rights of citizenship have ever been entirely contingent upon other fundamental rights of citizenship. It also illustrates the following three ways in which semicitizenship adjudicates between the conflicting imperatives of norms and administrative rationality: 1. Semi-citizenships forge compromises between the sometimes inconsistent, but nonetheless related, logics that ground citizenship. 2. Semi-citizenship orders the population for the purpose of making it legible and governable. 3. Semi-citizenship allows polities the flexibility necessary to make changes both to the status of parts of the population, and to understandings of what it means to fulfill the demands of the normative foundation of the polity. The preceding list points to the confrontation of different norms with each other and with administrative rationality. Each instance of the splintering of autonomous and relative rights bundles accords dominance to one way of thinking while not completely disregarding other ways of thinking. This occurred with regularity even before Enlightenment thought explicitly joined the liberal and democratic norms that the modern state embraces. Although modern semi-citizenships diverge from their historical counterparts, nascent iterations of liberal and democratic norms likewise conflicted with each other and with the administrative institutions of polities in ways that reveal semi-citizenship as virtually inevitable

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and, in some senses, also consistent over time and space. Certain types of semi-citizenship therefore seem likely to reappear regardless of how membership comes to be justified. A. Greek Semi-Citizenship and Democratic Norms Long before the emergence of liberalism, and even before it came to be administered by the state, citizenship was a central institution of democratic politics. Examining ancient Greek thought is useful in this regard for two reasons: (1) it makes claims to being more normatively homogeneous than modern forms of citizenship that join liberalism and democracy under the rubric of the state; (2) it is frequently referenced as the parent of modern democratic citizenship despite the fact that it predicates democratic norms on explicitly illiberal premises. Because of this connection between ancient and contemporary politics, we can learn something about the inevitability of semi-citizenship, and in particular about what democratic theory contributes to modern semi-citizenship, from instances of semi-citizenship that arise in the ancient Greek context. Expansive understandings of self-rule were regarded by ancient democratic theory as incompatible with expansive criteria for membership. For many, full citizenship in the Greek polis was therefore impossible. The fullest possible citizenship was only accessible to the highest strata of Greeks. “To qualify as a citizen, the individual must be the patriarch of a household or oikos, in which the labor of slaves and women satisfied his needs and left him free to engage in political relationships with his equals.”3 Yet not all who failed to meet the qualifications for full citizenship were wholly excluded from membership, nor were they wholly excluded from either the relative or autonomous rights conferred by ancient forms of citizenship, as fealty to ethically generated democratic understandings of the qualifications for citizenship would demand. Other forms of reasoning intervened. Greeks and non-Greeks who were not political peers of the fully empowered still had to be governed, and hence they had to be accorded some kind of political status. Elements of membership were dispersed in a variety of ways among a range of subtly differentiated groups. A number of statuses existed between, on the one hand, full members engaged in self-government and high military pursuits, and, on the other, J. G. A. Pocock, “The Ideal of Citizenship Since Classical Times,” in Theorizing Citizenship, ed. Ronald Beiner (Albany: State University Press of New York, 1995), 32.

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those who could only perform the work of lower occupations, such as those that involved productive and reproductive functions.4 It is tempting to focus on the fact that these differentiations grant full political powers to some over others and, in so doing, to miss the complexity of these partial citizenships. In fact, these differentiations offered a richly varied set of autonomous and relative rights, each of which could be disaggregated both internally and from the other types of rights made available by Greek city-states. Generally four oppositions prevailed: men–women; citizen–foreigner; citizen–merchant; and citizen–craftsman.5 These oppositions did not correspond to political dichotomies. Instead, they formed a web composed of a range of variables, and they included a similarly diverse set of semi-citizenships. For example, geomoroi (farmers) were ineligible for political and religious posts, but they could attend the Assembly, while demiourgoi (artisans) could not.6 Foreignness itself was constituted in ways that belie the notion of dichotomous citizen–noncitizen relationships. Xenos meant stranger but it did not refer to Greekness. Instead, barbaros was used to refer to non-Greeks. In Sparta, some metics (politically privileged foreigners) could own property and fight in the Spartan military. They paid citizen-level taxes and carried with them the promise of protection when they went abroad.7 T hese were semi-citizenships produced by differential relationships to both the ethical community and the territory within which they were formed, and they were couched in terms that were drawn from, and consistent with, the ethical origins of the democracy. Each of these statuses represents a different dispersion of the core autonomous and relative rights of Greek citizenship. The autonomous right to permanent residence was disaggregated into more and less robust guarantees, as were the relative rights to own property and to self-govern. The proliferation and explicit acknowledgment of semi-citizen statuses makes clear that the core elements of citizenship were not treated as contingent upon each other in democratic communities. The patriarchal ethic justifying full membership on the basis of economic freedom accords respect to persons who have some, but not all, of the qualities of heads of households, such as farmers. This ethic also intersects with cosmopolitan and administrative rationales for according status to non-Greeks. Neither lineage nor geography, nor even perceived/ascribed capacity, would Pocock, “The Ideal of Citizenship Since Classical Times.” Engin Isin, Being Political (Minnesota: University of Minnesota Press, 2002), 54. 6 Isin, Being Political, 80. 7 Isin, Being Political, 79. 4 5

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necessarily compel someone’s complete political exclusion from elements of citizenship. Some people were entirely excluded, as is evidenced by the practice of slavery. But the fact that official political language existed to make subtle differentiations, such as those between foreignness (barbaros) and strangerhood (xenos), makes explicit the degree to which different versions of pre-liberal forms of democratic politics instantiated political variegation. The binary distinction between citizen and noncitizen – a distinction that one might infer is critical to the integrity of democracy predicated on specific capacities of self-governance – did not suffice in the practice of democratic politics in ancient Greece. Instead, one can see evidence of the role of administrative rationality and respect for non-Greeks, particularly in the ways in which categories were created and woven into Greek laws of membership. The important conclusion to draw from the examples above is that even in a context where politics is explicitly committed to fulfilling the norms generated within a specific ethical tradition, semi-citizenships produced by competing norms and administrative rationality abound. Democracy is grounded in norms that need not admit partial citizenship. Yet the practices of the Greeks indicate that they did indeed formally acknowledge semi-citizenships as statuses required by administrative rationality. These statuses served to bring order to a population that was not homogenous and to ambiguities within the group potentially qualified for full membership. They also enabled change when new economic and political circumstances changed the population. Finally, they served to mediate between the founding norms of democratic theory and the needs generated by administrative imperatives such as those generated by conquest and migration. B. Ancient Cosmopolitanism as Proto-Liberal Not all ancient normative theories of membership were generated with explicit reference to specific ethical communities. Stoicism offered a response to the hyper-localism and exclusionary doctrines observed in other democratic theories generated and practiced in the ancient world. And in rival Sparta, distinguishing between different kinds of foreignness enabled the admission of some foreigners while maintaining connections between m ilitary service, work, property ownership, and political standing without rejecting ethical understanding of what citizenship required. Stoic philosophers theorized forms of what has been described as cosmopolitan citizenship that recognized entitlement based on the common humanity of all. Stoicism is worthy of


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mention in this context because it manages to upend the parochial premises of ancient democratic theory, and yet it still acknowledged that semi-citizenships are inevitable. While Stoicism is one progenitor of modern forms of cosmopolitanism, neither the ancient nor the contemporary version necessarily distills citizenship to a single universally held status. Stoicism seems to hold out the opposite promise to that offered by more ethically rooted democracy. It suggests that relative rights, which are rooted in context, can be made contingent upon autonomous (noncontextual) rights of space and free movement. Grounding affiliation in morality, rather than ethical practices, suggests a conception of citizenship with the potential to transcend distinctions among citizens based on class, sovereign boundaries, and even geography. However, this does not guarantee that the end result is an identical set of rights for all members of the human race. Stoicism relies primarily upon moral rather than ethical reasons to ground membership, but it does so in ways that nonetheless impose distinctions between citizens and non-citizens. Stoic cosmopolitanism based on reasoning winds up making distinctions between types of potential members, and basing those distinctions upon characteristics that do not map directly onto traditional understandings of either community membership or nationality. This fact is of immense significance because it belies both the postnationalist belief that territoriality is the final frontier of differentiation within citizenship, and the liberal aspiration that some common human quality can eradicate political stratification. Differentiation seems to persist even when logos and morality govern membership. While the idea of morality-based membership would seem to draw stark lines between members and non-members, descriptions of the criteria used to distinguish members indicate otherwise: a huge range of contrary predicates … divide them. They naturally include rich, poor, free, slave … but also a whole battery of attributes less familiar as Stoic, e.g. … mild, quiet, orderly … canny, good at hitting the aim, good at seeing the right moment, quick to see what is appropriate, artless, uncomplicated, straightforward, unaffected, having the skill to be a king, a general, a politician, a householder and an acquirer of property.8

Given this range of variables, it seems not only likely, but virtually inevitable, that membership would fall along a spectrum, rather than be 8

Malcolm Schofield, The Stoic Idea of the City (Cambridge and New York: Cambridge University Press, 1991), 95.

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divided into a dichotomous universe containing only friends and enemies. Indeed, Stoics noted that it was unclear whether cities included Gods, and some viewed men “as not full but potential citizens, like children.”9 Women, slaves, and foreigners were entitled to standing, education, and rights, but not necessarily a status identical to that held by full male citizens based on assessments of their capacities. The idea of potentiality gives the impression of a fluid hierarchy in which one graduates to fuller citizenship based upon the development of political capacities. In this sense Stoicism seems to mark a departure from the more regimented semi-citizenships of Athenian and Spartan Greece. Even if citizenship can be disaggregated, the semi-citizenship of a given individual might be transformed under the right circumstances. Yet Stoic citizenship does not ultimately provide a model of a unitary citizenship. The image of concentric circles of membership, which many associate with Stoicism, leads not to an eradication of the bases for strata of membership, but rather to a reorientation of those bases.10 Different variables create different semi-citizenships rather than a levelled single membership based on universal human qualities. Contemporary theorists of citizenship who have pointed to Stoicism as a philosophical model for modern cosmopolitanism might find it at odds with the most universalist conclusions they wish to reach.11 World citizenship is not universal citizenship since not all are capable of, willing to, or desire to, exercise their capacities of reasoned morality. Though it eschews tribalism and more arbitrary forms of exclusion, Stoicism retains multiple thresholds for participation, recognition and, therefore, membership. Once ethical distinctions such as birthplace, parentage, or gender are introduced to cosmopolitanism, differentiations within the population take on political significance and require that the administration of membership order these distinctions. Through the variables of foreignness and gender, both administrative and contextually rooted ethical 9 Schofield, The Stoic Idea of the City, 78. 10 Linda Bosniak uses the image of concentric circles in her discussion of citizenship. Her invocation differs from this description of �� Stoicism in that she weights the disaggregation of nationality (“status citizenship”) over the disaggregation of other elements of citizenship. See Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton: Princeton University Press, 2006), 56–57. 11 �� Martha Nussbaum has used Stoic �� philosophy as a basis for contemporary cosmopolitanism. See Martha Nussbaum, “Patriotism and Cosmopolitanism,” in For Love of Country: Debating the Limits of Patriotism, ed. Joshua Cohen (Boston: Beacon Press, 1996), 3–20. See also “Kant and Cosmopolitanism,” in Perpetual Peace: Essays on Kant’s Cosmopolitanism, eds. James Bohman and Matthias Lutz-Bachmann (Cambridge and London: MIT Press, 1997), 25–57.


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logics make their presence felt in Stoic philosophies of membership. The possibility of transforming one’s own citizenship by moving through the concentric circles of membership also does not void the effect of disaggregating the substance of citizenship into nested spheres. As in contemporary models of citizenship, the permanent presence of the distinct spheres means that, even as individuals move through them, citizenship itself is not unitary. The membership of the circles may change, but the society whose citizenship they define is marked by the fact that there is always a group or groups who hold semi-citizenships with distinct rights accorded to them for distinct reasons. C. Semi-Citizenship in the Roman Context Stoicism and Greek democratic practices provide two contrasting versions of normatively driven conceptions of membership that, in practice, explicitly acknowledge semi-citizen statuses. However, neither can speak very well to contemporary questions of citizenship because neither confronts the administrative challenges inherent in managing large and diverse populations within a large but bounded sovereign territory. J. G. A. Pocock has suggested that scholars of contemporary citizenship look to Roman citizenship in order to best understand the genealogy of liberal citizenship. Pocock asserts that the “juristic” nature of Roman citizenship demonstrates its role as progenitor of modern liberal forms of membership.12 This quality makes comparisons between Greek and Roman citizenships and semi-citizenships very telling. Despite the pronounced ethical orientation of the Athenian model, the semi-citizenships produced in Rome were neither unfamiliar nor unprecedented. Pocock notes that Roman legalism was cognizant of the ways in which the law of membership needed to accommodate the pluralism inherent in empire. He writes, “One tremendous strength that the Gaian, juristic, and liberal ideal of citizenship possesses is that it enables us to define an indefinite series of interactions between persons and things which may be restated as rights, used to define new persons as citizens and carried over into the world of liberal politics.”13 In other words, the virtue of legalistic, proto-liberal citizenship is its ability to translate the inevitable plethora of relationships engendered by political and material circumstances into statuses defined by rights. Pocock, “The Ideal of Citizenship Since Classical Times.” Pocock, “The Ideal of Citizenship Since Classical Times,” 45.

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Romans invested heavily in the imposition of legal distinctions among inhabitants of their territories.14 They did so in ways that reflected complex, non-unitary differentiations based on blood, land, capacity, and social status that generated similarly complex political statuses. This was noted by Diderot, who observed that “in order to become a true Roman citizen, three things were necessary: to be domiciled in Rome, to be a member of one of the thirty-three tribes, and to be able to hold office in the Republic. Those who possessed certain rights of citizenship by concession and not birth were only, properly speaking, honorary citizens …”15 Further complicating Roman conceptions of citizenship was the fact that foreigners among Romans exercised a range of rights based in jus gentium, as Romans did when they were no longer protected by their citizenship. As Sherwin-White demonstrates, Rome included not only full citizens, but a range of members who bore varying degrees of rights. Neither autonomous rights associated with residence and free movement, nor relative rights (such as access to office and representation), nor ethically generated distinctions (such as birth into an outsider family) were administered in a way that made citizenship unitary. Governing so many and such varied types of citizens was significantly more demanding in the context of the Roman Empire than it had been in the confines of Greek city-states. To this end, the Romans developed and deployed a set of political tools that enabled distinctions in membership to be enforced consistently over a large, diverse, and geographically diffuse population. As Pocock notes, these tools often took the form of laws that delineated the status of various members. The Romans also employed technologies to enforce their laws of membership, many of which remain effective tools for assessing entitlement and imposing order within a population. The most famous of these technologies was the census, which predates the Romans, who employed it highly effectively, and served not simply as a means to collect taxes and ensure military service, but also as a tool for the enforcement of public morals.16 Censors were charged with assessing, categorizing, and imposing rules based upon their assessments and classifications. Rousseau observed that what began as a means A. N. Sherwin-White, The Roman Citizenship (Oxford: Oxford University Press, 1973). 15 Denis Diderot, Political Writings, trans. & eds. John Hope Mason and Robert Wokler (Cambridge and New York: Cambridge University Pres, 1992), 14. 16 Hyman Alterman, Counting People: The Census in History (New York: Harcourt, Brace and World, 1969), 31–32. Hyman writes, “The Latin word for a sacrifice or a ceremony of purification is lustrum. This eventually came to be the word for a census, and the act of enumeration was a lustration.” 14


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for distinguishing urban and rural Romans lost all such meaning when censors “arrogated to themselves the right of transferring citizens arbitrarily from one tribe to another …”17 In describing the cumulative effect of these extensions, Michael Mann says that “gradations of nationality, citizenship, and tenure types became to a degree eroded.” In fact, while the association of such gradations with their justifications may have been blunted by the arbitrary nature of their enforcement, the distinctions themselves retain their force as long as they impose disabilities and confer privileges differentially. It is hard to imagine that censors would have continued to bother engaging in this sort of subterfuge had the categorical differences not had any effect on those being differentiated from one another. Roman citizenship rules thus demonstrate the degree to which semicitizenships were necessary for the administration of the Republic, even though the latter’s gestures at administrative efficiency might appear themselves to privilege unitary distinctions between members and nonmembers. Indeed, as long as the system functioned, it served to enforce a fascinating range of political statuses that did not correspond neatly with either geographic or familiar social/identity divisions.18 Mann writes that “many of those now enslaved possessed a higher level of civilization than their conquerors. Slave professors, doctors, and state bureaucrats were now found in the West. Some of them effectively ran the central administration during the principate and early empire.”19 Not all slaves were so exalted: many laboring slaves were not even considered human, let alone citizens. Corresponding complications of occupational, and hence social and political, status occurred among non-slaves. Whereas labor had been previously associated with slavery, many Roman owners of modest means were forced into labor despite their holding a social status superior to that of slaves.20 As some have suggested has been true in the modern world, many of these newly disempowered Romans improved their lot via rewards offered for military service.21 Jean Jacques Rousseau, “On Social Contract or Principles of Political Right,” in Rousseau’s Political Writings, eds. Alan Ritter and Julia Conway Bondanella, trans. Julia Conway Bondanella (New York: W.W. Norton and Company, 1988), 156. 18 Michael Mann, Sources of Social Power: Volume I (Cambridge and London: Cambridge University Press, 1976), 262. 19 Mann, Sources of Social Power: Volume I, 261. 20 In fact, such labor was necessary if production was to occur on the scale necessary to sustain growth. Mann, Sources of Social Power: Volume I, 261. 21 �� On modern iterations of such rewards for �� military service and their effects on citizenship, see Suzanne Mettler, Soldiers to Citizens: The G. I. Bill and the Making of the Greatest Generation (New York: Oxford University Press, 2005). 17

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Each of the preceding illustrations indicates the ways in which norms intersect with each other and with the demands of administering unavoidably diverse populations, ultimately breaking apart unitary statuses. In place of single, unitary forms of citizenship, we see nascent forms of semi-citizenship that accord different sets of autonomous and relative rights to people with various characteristics that disqualify them from holding full citizenship. Foreigners, women, slaves, and other assorted lesser members of ancient society were not considered capable of the kind of political equality entailed by self-government. Yet to dismiss ancient polities as aristocratic autocracies masquerading in democratic garb would demand that we overlook the ways in which both the Greeks and Romans were able to formulate subtle, gradient approaches to difference and exclusion through institutionalizing forms of membership that do not conform to normatively reductive understandings of membership. Equality is neither offered nor retracted with the flick of a switch. Interim extensions of elements of equality are as meaningful for what they offer, and upon which bases they do so, as they are for what they deny, and why they do so. This applies as much today as it did in the ancient world, albeit in different ways. While some traits, for example race and gender, have been by and large discredited as a direct basis for formal exclusion, categories of persons with limits placed on their citizenship abound in contemporary democratic politics. Given that these are not new categories, we can conclude that they exist not simply as temporary, or even uniquely modern, sociological byproducts of mobility, economy, and difference. Greek ethical democracy, Stoic norms of cosmopolitanism, and Roman juristic administrative practices are imperfect but nonetheless telling analogs to modern democratic, liberal, and administrative logics of membership. The prevalence of ancient semi-citizenships in the embodiment of each of these doctrines/contexts is a significant reminder that normative conceptions of membership can never exist in the absence of conflicting norms or the imperatives of administration. Ancient polities had ample justification and motivation to draw dichotomous distinctions between citizens and non-citizens. These justifications spanned both administrative rationality, as is particularly evident in the case of Rome, and complex normative conflict, as exemplified by the ambivalence toward foreigners in Greek democratic politics. The embrace of categories that straddled boundaries in the ancient world therefore represents a powerful endorsement of the idea that the sources of semicitizenship lie at the core of how political membership is generated.


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The section that follows examines how normative and administrative conflicts are incorporated into modern politics, thus generating modern and ultimately contemporary forms of semi-citizenship.

III. Making Semi-Citizenship Modern: Normative and Administrative Conflict over Citizenship in Modern Politics As politics modernizes, citizenship and semi-citizenships become organized around three newly framed manifestations of tensions that were already apparent in ancient polities. This occurs within the context of equally novel political institutions and technologies. That there are three doctrines contesting the meaning of citizenship should not come as a complete surprise given the definition of citizenship rights asserted by Charles Tilly and cited in Chapter 3. Tilly identified a three-way relationship in which one party makes a claim on a second party, which claim a third party – usually, but not necessarily, the state – acts to “reinforce (or at least not hinder).”22 This suggests that within citizenship are contained the claims of individuals, the collective agreements produced by groups of claiming individuals, and agents who enforce these claims. Put differently, citizenship invokes the rational individual, the collectivity, and enforcing agents, each of which imposes separate (if sometimes partially overlapping) concerns on rules of membership. A set of normative tensions is generated by the attempt to join the ethical and the moral under the rubric of liberal democracy. Enlightenment theorists bring together two related, but divergent, normative understandings of equality that provide different bases for including and excluding people from citizenship, and which emphasize different sets of rights. In turn, the founders of the first modern nation-states used the works of Montesquieu, Rousseau, and their Enlightenment peers as references in the process of writing constitutions and forming states. The consequences of this explicitly mixed normative marriage cement ambitious standards for unitary citizenship while at the same time undermining the possibility of achieving unitary forms of membership. Chapter 2 raised the idea that semi-citizenships are produced in conflicts among these doctrines. Chapter 3 introduced the device of autonomous and relative rights as a Charles Tilly, “Where Do Rights Come From?” in Democracy, Revolution, and History, ed. Theda Skocpol (Ithaca and London: Cornell University Press, 1998), 56–57.

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means of describing the universe of possible citizenship rights without deferring to the definition and reasoning of any particular doctrine of citizenship. Because each normative tradition makes different claims on both autonomous and relative rights, conflicts likely to produce semicitizenships extend both to the full range of the rights accorded to members by liberal democracies, and to the differing standards regarding the question of who is entitled to citizenship in each tradition. The form semi-citizenships come to take is distinguished not just by normative theorizing, but also by novel and newly powerful forms of administrative rationality that had not been possible in pre-modern politics. Although administrative rationality intersected with norms in the ancient world, the modern state manages these conflicts in distinct ways. As discussed in Chapter 3, the state’s management of doctrinal conflict among norms and administrative rationality thwarts the development of unitary citizenship. This prevents citizenship from becoming unitary and prevents some rights of citizenship from being predicated on others. Liberal democracies realize norms of citizenship within structures of politics administered by the state. While the state does not stand entirely in opposition to normative theory it cannot be entirely reconciled with one set of norms. In the next section, I will survey the normative conflicts generated within liberal and democratic understandings of membership. I then attend in greater detail to the way in which the administration of membership, and its realization in the context of the state, is itself a uniquely powerful player in the conflict. This sets up the fourth section of the chapter in which I discuss how practicalities of ordering increasingly diverse populations, maintaining flexibility in rapidly changing political circumstances, and striking compromises where conflict between these different logics is particularly acute, produce outcomes that accord different forms of semi-citizenship to different groups. A. Normative Conflict over Citizenship The sources of tensions among the liberal and democratic theories that ground citizenship are well-rehearsed at the most general level. Orthodox liberals will advocate extensive rights for individuals, while democracy predicates citizenship on advancing a good.23 So, for example, a liberal This conflict is played out in the debates between liberals and communitarians. See Liberalism and the Limits of Justice, ed. Michael Sandel (New York: Cambridge University Press, 1998) and Stephen Mulhall and Adam Swift, Liberals and Communitarians (Oxford: Blackwell Publishers, 1996).

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might be less inclined than a democrat to circumscribe the demos to ensure that access to the franchise is available only to persons who are steeped in the cultural traditions of the nation. While democratic goods may entail people holding specific rights, and rights may entail a strong conception of the good, there is no consensus recognizing the priority of one over the other in any given debate. There is no set point at which the good must precede right or vice versa. In the absence of any formal ordering of the two principles, political practice will often pit one against the other. To refer to Isaiah Berlin’s terms, it is not possible to simultaneously maximize negative and positive liberty because positive liberties require restrictions on negative liberties. We can either let people determine what is in their best interests in any given circumstance or we can accord this power to some paternal body whose authority presumably derives from the state. Inconsistencies between norms of human equality, difference, and political practices are bound to arise in any society, including relatively homogeneous ones. Carl Schmitt makes this point explicit in The Crisis of Parliamentary Democracy: The equality of all persons as persons is not democracy but a certain kind of liberalism, not a state form but an individualistic-humanitarian ethic and Weltanschauung. Modern mass democracy rests on the confused combination of both. Despite all the work on Rousseau and despite the correct realization that Rousseau stands at the beginning of modern democracy, it still seems to have gone unnoticed that the theory of the state set out in Du Contrat Social contains these two different elements incoherently next to each other. The façade is liberal: the state’s legitimacy is justified by a free contract. But the subsequent depiction and the development of the central concept of the “general will,” demonstrates that a true state, according to Rousseau, only exists where the people are so homogeneous that there is essentially unanimity. According to the Contrat Social there can be no parties in the state, no special interests, no religious differences, nothing that can divide persons, not even a public financial concern.24

Democracy and liberalism may share a philosophical heritage; they may even be cast as siblings by the Enlightenment philosophers who inspired political actors in the United States and France, among other places, to try and build polities around them. But they are also at odds with one another on the question of membership. A nd, as the next section will argue, this is not the only political tension that disassembles the Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge and London: MIT Press, 1985), 13.

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bundled braid of autonomous and relative citizenship rights into many separate strands and threads of semi-citizenship. For the purposes of this study it is most important to focus on how liberal and democratic theory come into conflict over the terms assigning autonomous and relative rights to people. A superficial glance at the categories of autonomous and relative rights might suggest that liberal norms govern autonomous rights while democratic norms govern relative rights. Liberal neutrality presumes a degree of unsituatedness that seems compatible with unsituated rights. Kantian and neo-Kantian theories of rights predicate the according of rights to individuals on capacities thought to be common to all persons. Autonomy, rational thought, and the formation of a conception of the good are qualities and activities that connect almost all people, regardless of cultural, ethnic, linguistic, or other ethical divisions. In turn, democratic norms might seem to govern relative rights that are derived from structures specific to a particular context or regime. Democracies are specific arrangements of power that realize abstract concepts like “representation” through means as varied as proportional representation, presidential systems, and federal branches of government. What the right to representation will mean in each of these different institutional contexts is different. According to different normative doctrines, the authority to ground autonomous and relative rights would be consistent with a “separate spheres” approach to different elements of citizenship.25 However, such an approach fails to fully resolve tensions among different doctrines of citizenship because in fact both liberal and democratic theories of rights speak to a full range of autonomous and relative rights. The full catalog of citizenship rights is grounded differently by liberal and democratic theory. Liberal theory contains extensive grounding for relative rights such as the franchise or property ownership that are made legible in particular political systems. Similarly, democratic theorists have stridently defended autonomous rights such as those associated with education and healthcare. T. H. Marshall’s own work illustrates one instance of a deep conflict among norms of citizenship.26 As indicated in Chapter 2, Marshall’s evolutionary account acknowledges tradeoffs between specific relative Michael Walzer, Spheres of Justice (New York: Basic Books, 1983). See the discussion of this in Bosniak, The Citizen and the Alien. 26 See Marshall, Class, Citizenship, and Social Development, 122. For a contemporary discussion of the implications of this conflict for the disaggregation of citizenship, see Matthew B. Sparke, “A Neoliberal Nexus: Economy, Security and the Biopolitics of Citizenship on the Border,” Political Geography 25 (2006) 138–168: 155. 25


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civil and autonomous social rights, even as his narrative describes the bundling of these rights and anticipates that the bundle would become tighter as rights evolved over the course of the twentieth century. This conflict is embedded in the larger contradiction inherent in ethical commitments to substantive equality and the claims of civil libertarians.27 Marshall directed attention to the fact that civil rights guaranteeing property ownership in capitalist systems could undermine support for social welfare rights. To translate Marshall’s language into the terms of autonomous and relative rights: the norms that support the relative right to property in a capitalist system undermine those that support the autonomous right to a basic education and minimal standards of healthcare. Irreconcilable doctrines of individualism (civil rights) and welfare (social rights) forge different political identities, or semi-citizenships . T. K. Oommen explains the contradiction internal to Marshallian notions of citizenship in American politics in terms that underscore its origins in conflicting normative doctrines. Oommen notes that American public philosophies of civil citizenship are overdeveloped in comparison to social and political elements.28 The Protestant work ethic appears unchecked in understandings of citizenship that value self-reliance over social welfare. This yields a significant contradiction between the individualist nature of civil rights and the welfarist nature of social rights. There is a sense in which, above all else, liberal citizens are characterized by expectations of the independence that is distinctive of rational contracting individuals, more than they are defined by social insurance – the element with which Marshall hoped to counterbalance individualism. The converse is also true; a heavily social welfarist regime would have a hard time simultaneously defending individualist conceptions of citizenship. Oommen is not alone in noting this conflict; Daniel Bell echoes his critique indicating, “Though capitalism and democracy historically have arisen together, and have been commonly justified by philosophical liberalism, there is nothing which makes it either theoretically or practically

�� Isaiah Berlin, drawing from Mill’s work on pluralism, addresses conflicts in the values implied by liberalism and democracy, though Berlin speaks about them in terms of freedom rather than exclusion. Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (New York and Oxford: Oxford University Press, 1969), 118–172. 28 See T. K. Oommen, Citizenship, Nationality and Ethnicity (Cambridge, MA: Blackwell, 1997), especially 228–233. See also Nancy Fraser and Linda Gordon, “Civil Citizenship Against Social Citizenship? On the Ideology of Contract Versus Charity,” in The Condition of Citizenship, ed. Bart van Steenbergen (London: Sage, 1994), 90–107. 27

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necessary for the two to be yoked.”29 Nancy Fraser and Linda Gordon frame the conflict between the relative right of contract and autonomous social rights as a conflict between norms of equality, solidarity, and republican notions of participation. In this formulation, a more individualist version of liberalism pits egalitarianism against two versions of ethical doctrines of membership (solidarity and republicanism). Fraser and Gordon argue that contract rights trump social rights in the A merican context. As they tell it, “Only by reclassifying public assistance as property and recasting recipients as independent contractors could their civil citizenship be maintained. Yet as some welfare rights activists noted, these terms could not express a vision of full social citizenship.”30 In other words, only social rights that could be shoehorned into the terms of liberalism survived. It need not be peculiarly American to find these strands at odds with one another. In fact, it is difficult to imagine an ethos in which thick versions of both could comfortably coexist. As Chapter 3 indicated, normative conflict also occurs when different ways of thinking about a single right yield disparate understandings of entitlement. The boundaries of a citizenry are shaped simultaneously by democratic and liberal norms. We can find a justification for the autonomous right to residence and free movement in liberal notions of autonomy that conflict with those grounded by ethically situated notions of a geographically contiguous demos. Scholars such as Joseph Carens argue persuasively that borders themselves are unjustifiable from a liberal standpoint.31 On the other hand, the classical roots and contemporary goals of democracy point toward some sort of common culture and morality upon which a demos draws, and which a demos expects to elicit from the act of self-governance. Democracy inscribes boundaries on the citizenry – and hence on the right to move freely in and out of the citizenry – that compromise the universalist aspirations of liberalism because only members of a democratic polity are guaranteed liberal treatment. For a group of individuals to function as a demos, they need to be able to clearly define who is a member and who is not. Democracies assign and protect individuals’ liberal rights based on membership status. Members are entitled to protections that nonmembers are not. This leads even avowedly liberal theorists like John Daniel Bell, The Cultural Contradictions of Capitalism (New York: Basic Books, 1996), 14. 30 Fraser and Gordon, “Civil Citizenship Against Social Citizenship?,” 103. 31 Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders,” Review of Politics 49(2) (1987): 251–273. 29


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Rawls to insist on the precondition of a closed system throughout his work.32 Such closed systems avoid offering rationales for differentiating between members and non-members that are consistent with liberal theories of entitlement based on human capacities for autonomous action. Citizenship becomes unbundled into semi-citizenships when, for example, democratic theory rights are framed in ways that exclude segments of the population, such as temporary workers, that liberal theory might regard as entitled to citizenship. Conflicts such as these produce semi-citizenships that would not exist if only one kind of normative logic held sway. If no normative conflict exists – for example, in the case of an individual who meets both moral and ethical standards for full membership – full citizenship is relatively simple to accord. However, normative conflict is widespread, and hence many forms of semicitizenship are produced. The competing bases determining boundaries in liberalism and democracy have not been, and likely cannot be, fully reconciled in practice.33 Citizenship is acutely vulnerable to these conflicts. Not only do the two sets of norms provide different answers to questions about who may enter a polity under what circumstances, and with the benefit of which other autonomous and relative rights of citizenship, but it is also not feasible to simply strike a compromise by adopting an expansive notion of citizenship. It is costly and often difficult to extend expansive rights to large numbers of people who are very different from one another. Conjoining commitment to equality among a qualified and privileged citizenry with ever-expanding boundaries to that citizenry is materially impossible to effect. The costs are immediately evident. Equally important are the costs to the ethical standards imposed on citizenship by democratic theory. Returning to Dahl’s categorical and contingent principles discussed in Chapter 2, the stronger one’s commitment to liberal tenets of human equality, the less feasible it is for one to demand that citizenship impose substantive standards requiring that members demonstrate political knowledge, own land, or conduct themselves in certain ways. It is a continual struggle to reconcile these two ways of approaching membership. It therefore comes as no surprise that semi-citizenship finds its way into the rules of membership of newly developing and modernizing states.

John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 12. See Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2005), 43–45.

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IV. Joining Norms and Practices of Political Administration Politics is not made by norms alone. In addition to normative theory, citizenship is shaped by the requirements of administrative rationality. Administrative rationality exists in any political setting, and, as we saw first in the example of ancient citizenship, it interacts with norms with regard to both autonomous and relative rights of citizenship. However, in modern politics administrative rationality comes to be a pervasive force shaping citizenship, imposing its own imperatives, and bringing its own internal contradictions to equally fractious normative understandings of citizenship. Identifying and assessing the forms semi-citizenships take, as well as explaining how and why they do so, depends on a thorough and detailed picture of the interactions that take place when liberal norms, democratic theory, and administrative rationality collide in the context of the state. In the three following sub-sections I will outline the origins and logic of administrative rationality as it pertains to citizenship. I will discuss the imposition of administrative rationality over the boundaries and content of citizenship and contrast it to similar impositions by normative theory. Drawing upon the assertion in Chapter 2 that the state plays a special role in defining citizenship, I will then turn to a discussion of the role of the state as the space in which conflict over the terms of citizenship plays out in order to demonstrate how semicitizenships serve to adjudicate conflict between the normative and rational logics of citizenship.34 A. The Logic of Administrative Rationality Administrative rationality is rooted in what Foucault terms a governmental approach to political authority.35 Foucault defines governmentality using three related criteria. “It is a preeminent form of power manifested through distinctive apparatuses and savoirs.”36 It is “the ensemble formed by the institutions, procedures, analyses and reflections, the calculations and tactics that allow the exercise of this very specific, albeit complex form of power which has as its target population, as its principle The state as “cockpit” is an analogy elaborated later in the chapter that is drawn from the work of Daniel Bell. See Bell, The Cultural Contradictions of Capitalism. 35 On governmentality, see Michel Foucault, The Foucault Effect: Studies in Governmentality, eds. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991). 36 Foucault, The Foucault Effect: Studies in Governmentality, 102–103. 34


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form of knowledge political economy, and as its essential technical means apparatuses of security.”37 Finally, it is “the process, or rather the result of the process, through which the state of justice of the Middle Ages transformed into the administrative state during the fifteenth and sixteenth centuries gradually becomes governmentalized.”38 Governmentality brings scientific rationality to politics, creating a political rationality whose stated end is to secure and improve the circumstances of the population being governed. True to Foucauldian form, governmentality addresses itself to questions of how politics can be conducted to ensure public health, security, and stable power arrangements, among many things. As such, governmentality speaks to the same autonomous and relative rights claimed by moral and ethical doctrines, but from a perspective that diverges from each of those doctrines at important points. Concerning the autonomous right to free movement, for example, where a liberal might be concerned about unjustifiable constraints on individual liberty, and a democratic theorist might want to protect an ethically defined group from foreign influence, a governmental perspective would ask whether migrating individuals can be policed to prevent terrorist threats. Similarly, the relative right to a trial by jury of one’s peers might appear to a liberal as a question of equality, to a democrat as a method of ensuring that a community’s standards of justice are applied and perpetuated, and to the government as a means of creating a self-policing population. Just as liberalism and democratic theory need not necessarily always diverge, so too could governmentality overlap with either, or both, of these other doctrines of citizenship. However this overlap is imperfect at best and is never guaranteed . Two features of governmentality make it a particularly useful tool for the analysis of citizenship and semi-citizenship. First, governmentality is not posited by Foucault as a mode of normative analysis. It has a liberal provenance (as does democratic theory), but whereas justifications of autonomy and self-rule invoked by liberal theorists from Locke through Rawls are explicitly and fundamentally normative, governmentality is not intended to be used as a normative lens. Ideology and normative theory do not govern citizenship, nor do they drop out of the picture. Foucault, The Foucault Effect: Studies in Governmentality, 102–103. Foucault’s most extensive elaboration of the ideas of population and governmentality is contained in lectures he gave at the Collège de France. Michel Foucault, Security, Territory, Population, ed. Michel Senellart: trans Graham Burchell (New York: Palgrave, 2007). (See especially Lectures 1–3, pp. 1–86.) 38 Foucault, The Foucault Effect: Studies in Governmentality, 102–103. 37

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Among other things, the fact that governmentality relies on tools and “ways of reasoning that are distinct from patriarchialist models of the household and family,” models which “do not ultimately return to the rules of sovereignty,” illustrates how governmentality both coexists and competes not only with reason of state and state sovereignty, but also with the central norms of moral autonomy and ethical community that guide liberal and democratic theory.39 Nancy Fraser dissects the quandary of trying to read Foucault as a normative thinker and concludes that he “brackets” the normative.40 Fraser goes on to indicate that this may be attributable to Foucault’s apparent obliviousness to Weberian social theory, “with its careful distinctions between such notions as authority, force, violence, domination, and legitimation.”41 Fraser’s critique of Foucault’s oversights is incisive and important. However the concept of governmentality retains a different cast than normative theory that is explicitly predicated on defending specific notions of legitimacy, if for no other reason than that Foucault offers no theoretical or empirical program for liberation or improvement. Governmentality is not posited as an analysis whose insights can yield liberation or human improvement. It therefore offers Mitchell Dean, Governmentality: Power and Rule in Modern Society (London: Sage, 1999), 107. 40 Nancy Fraser, “Foucault on Modern Power: Empirical Insights and Normative Confusions,” Praxis International 3 (1981): 275–276. Fraser says that Foucault does so vaguely so as to leave open the question of whether he wishes only to bracket specific liberal norms (“right, limit, �� sovereignty, �� contract, and �� oppression”) or all normative justificatory frameworks. Fraser concludes that Foucault “fails to appreciate the degree to which the normative is embedded in and infused throughout the whole of language at every level, and the degree to which, despite himself, his whole critique has to make use of modes of description, interpretation, and judgment formed within the modern Western normative tradition … I can only conclude that Foucault’s work is normatively confused.” Fraser, “Foucault on Modern Power,” 284. 41 Fraser, “Foucault on Modern Power,” 286. Others have dissected Foucault’s references to this family of concepts in ways that suggest greater analytical precision on his part than Fraser credits him for. See Thomas Lemke, “Foucault, Governmentality, and Critique,” Rethinking Marxism: A Journal of Economics, Culture, and Society 14(3) (2002): 53. Lemke cites “three types of power relations: strategic games between liberties, government, and domination,” and later writes that Foucault reserves the term “domination” for “what we ordinarily call ‘power.’ Domination refers to those asymmetrical relationships of power in which the subordinated persons have little room for maneuver because their ‘margin of liberty is extremely limited’ … Technologies of government account for the systemization, stabilization and regulation of power relationships that may lead to a state of domination.” Lemke, “Foucault, Governmentality, and Critique,” 53, citing Michel Foucault “The Ethic of Care for the Self as a Practice of Freedom,” in The Final Foucault, eds. J. Bernauer and D. Rasmussen (Boston: MIT Press, 1988) 19, 12. 39


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a useful complement to explicitly normative theories about the nature and form of citizenship. This point further grounds Chapter 3’s argument in favor of using structural categories rather than social identities to study semi-citizenship. Returning to I ris Young’s discussion provides a helpful illustration. Young claims to offer a means for categorizing differentiation in various societies that is structural: I propose a four-fold categorization. Societies and institutions should be evaluated according to the patterns of distribution of resources and goods they exhibit; but, no less important, they should be evaluated according to their division of labor, the way they organize decision-making power, and whether their cultural meanings enhance the self-respect and self-expression of all society’s members.

I n this passage, Young presumably intends to incorporate political structures by invoking the phrase “the way they organize decision-making power.” However once we have broken out democratic norms from governmental logic, Young clearly has referred only to the effects of democratic procedures, and not to the larger set of concerns raised by administrative rationality. No reorganization of decision-making power can entirely obviate the set of concerns raised, for example, by questions of public health that affect core citizenship rights. If a hypothetical contagion is traced to a segment of a population whose temporary quarantine can contain and ultimately eradicate the contagion, well-organized decision-making power will not affect the inequality this imposes on people’s citizenship. The second feature of governmentality crucial to the analysis of semicitizenship is that, although governmentality implicates processes that are associated with the state, it is analytically distinct from the state itself.42 This has important repercussions for the inevitable outcome that semi-citizenship will persist in postnational contexts. Government is not a tool of the state but rather, the state is “a tactic of government[ality].”43 The origins of governmentality precede the modern state, and contemporary techniques of governmentality can be engaged by actors who are not agents of a state. It can be cast most pithily as a form of political rationality. This is important to note for reasons that affect predictions about citizenship in the future, as well as analyses of the past and present. Governmentality can and does outlive states. It invokes processes of political rationality directed at populations rather than territory. Because Barry Hindess, “Bringing States Back In,” Citizenship Studies 4 (2006): 119. Lemke, “Foucault, Governmentality, and Critique,” 58.

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of this focus, governmentality can be channeled through states and can also be extricated from the state so that it reappears in supernational and non-state institutions. So, the “appearance of new actors on the scene of government (e.g., nongovernmental organizations) that indicate fundamental transformations in statehood and a new relation between state and civil society actors” spells a transformation, but not an end, to governmentality.44 Indeed, Fraser writes in a discussion of the development of governmentality in the twentieth century, “the result was a form of governmentality that far transcended the bounds of the state even as it remained nationally bounded.”45 Fraser indicates that as this occurs, “the key is to identify the characteristic ordering mechanisms and political rationality of the emerging new mode of regulation.”46 Thus, should a consensus emerge that citizenship truly has become postnational, governmentality will remain a relevant mode of analysis. In fact, the shape that semi-citizenships take may prove to be useful indicators of how extensive such transformations of the state truly are. Fraser believes that such evolution is a move from aspirations to “universality,” “standardization,” and “synchronization,” resulting ultimately in greater “segmentation.” Perhaps this portends more forms of semi-citizenship and semi-citizens in a postnational world.47 The persistence of governmentality means that conflicts between governmentality and normative theories will continue to yield semi-citizenships even in a postnational world from which nation-states have been entirely erased. The requirements of administration may alter the groups who have semicitizenships, or the combinations of autonomous and relative rights that they have, but the statuses will persist. People will continue to have different needs and capacities, and postnational political organizations are no more likely than states to be able to circumvent the requirement to impose conditions and thresholds on various rights. Administrative decisions about, for example, the age of majority or the mobility of convicted criminals, will be made by an administrative body engaging in practices of governmentality, even if that body is entirely divorced from any state. It is not hard to imagine that some of these decisions will yield different results in an evolved institutional context. What is unimaginable is that administrative rationality will disappear under any circumstances. Lemke, “Foucault, Governmentality, and Critique,” 58. Nancy Fraser, “From Discipline to Flexibilization? Rereading Foucault in the Shadow of Globalization,” Constellations 10(2) (2003): 164. 46 Fraser, “From Discipline to Flexibilization?,” 167. 47 Fraser, “From Discipline to Flexibilization?,” 168–169. 44 45


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It is also at this point that the advantages of having divided rights into the autonomous and relative categories are thrown into sharpest relief. Identifying rights as either necessary within a particular political system, or necessary regardless of context, ensures that semi-citizenships produced by successful postnational, transnational, or supernational political systems can be identified and compared with those that are the product of nation-states. Since there can be no political system that is free of norms or administrative rationality, competition between norms and administrative rationality over different kinds of rights will persist indefinitely. Different groups may be assigned different orders of semicitizenship, and the universe of imaginable rights may shift; however, the orders themselves will remain. B. Boundaries in Administrative Rationality Just as liberal and democratic norms each bring notions of political boundaries to rules that confer and deny citizenship, administrative rationality also imposes its own characteristic boundaries-based distinctions between people. The administrative rationality characteristic of governmentality asserts power over its subjects with different emphases than either moral or ethical theories. Rather than emphasizing demoi or identity groups, governmentality takes as its object the population.48 Sovereignty is therefore defined primarily by dominion over a population, rather than simply over a geographic territory. Foucault describes that population as a subject of government, and one that is distinct from both individuals and territory.49 A population of individuals simultaneously provides a government both with its greatest source of power and with its gravest potential threat. Therefore, the means through which a government manages its population are crucial to asserting governmentality. This requires the regulation of individuals through the threat of direct physical coercion implied by an omnipresent police as well as Stuart Elden, “Governmentality, Calculation, Territory,” Environment and Planning: Society and Space 25 (2007): 562. Elden writes, “Although it will have profound implications for the Western model, the notion of the pastoral has Eastern origins in Egypt, Assyria, and Mesopotamia, but especially in Hebrew understandings of the relation between god and man, where the power is over the flock rather than over the land.” He continues, “This power is exercised over each individual as much as over the flock as a whole.” 49 Foucault develops these ideas most extensively in Michel Foucault, Security, Territory, Population, ed. Michel Senellart: trans Graham Burchell (New York: Palgrave, 2007). (See especially Lectures 1–3, pp. 1–86.) 48

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indirect, and even internalized, means of enforcing social norms.50 More to the immediate point, the politics of populations demands that political status render subjects governable. This will occur both on all sides of boundaries and within populations. Indeed, the precise point of a border transforms, even if momentarily, the citizenship of anyone crossing or standing directly on it. Governmentality acts as an agent of the good of the population.51 What is in the interest of a population may encompass a vast array of policies associated with membership. In order to maintain its legitimacy as an arbiter of governmentality, any institution, including those associated with the state, must sustain ordered control of the populations whose interest it serves. However, in contrast to normative descriptions of demoi, individuals, or even sovereign boundaries, the very notion of a population is inherently ambiguous and changeable. Physical borders do not demarcate populations any more than do descriptive accounts of a demos. At the outset, therefore, the logic of governmentality both depends on, and exists in tension with, moral and ethical norms of membership. It invokes a notion of the good, but it is simultaneously predicated on an expansive but vague notion of political power exercised over populations, rather than over clearly defined ethical communities, groups of rational individuals, or in some cases even sovereign territory. The convergence of burgeoning capacities for the management of populations with normative philosophies demanding equality implies that liberal doctrines of equal citizenship are not just in tension with ethical commitments that conflict with liberal autonomybased justifications for rights, but that they also face challenges to their understandings of inclusion, as voiced in Dahl’s more liberal categorical principle of membership.52 It can become difficult to tell not just when someone is qualified for citizenship, but also when someone is actually governed in a way that entitles them to standing. Populations may not have clear boundaries at all. Who is being governed, how much, and in what ways? From the perspective of administrative rationality, a guest may become a member of the population the minute she applies for a visa, well before she crosses into the sovereign borders of the concerned Elizabeth F. Cohen, “Carved From the Inside Out: Immigration and America’s Public Philosophy of Citizenship,” in Debating Immigration, ed. Carol M. Swain (New York: Cambridge University Press, 2007), 32–45. 51 Foucault, The Foucault Effect: Studies in Governmentality, 100. 52 As discussed in Chapter 2, the categorical principle of membership awards citizenship to anyone governed by the law of a polity. It is contrasted with the contingent principle, in which citizenship is awarded to individuals who exhibit certain qualities deemed central to the polity in question. 50


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state, or before she could have interests characteristic of a member of the demos. One might even conceive of transborder health and environmental threats as further blurring the boundaries of populations.53 Regardless of cause, those subject or not subject to administrative rationality do not correspond to a binary distinction that might warrant the application of a single title – in this case “citizen” – to all members. As shall become evident, semi-citizenships permit the varied sorts of inclusion and exclusion that diverse populations and administrative imperatives each require. In this telling, the state translates governmental logic into an administrative rationality tailored to address the traits of multifaceted populations. C. Administrative Rationality and the Substance of Citizenship The status assigned to citizens must facilitate the enforcement of administrative rationality. Enforcement occurs through the policing of physical boundaries and also within populations. Because population is the source of immense political power (it is through populations that polities gain strength) and vulnerability (the destruction or exodus of a population will weaken a polity), the methods with which it is governed are of crucial significance. Governing a population requires physical coercion and coercive elements associated with police and military as well as indirect, and even internalized, means of enforcing social norms.54 Citizenship becomes the “institutional counterpart of rationality, not merely an idea but a reality, the crystallization of rationality into a social role.”55 And yet administrative notions of citizenship contain inconsistencies and internal contradictions just as normative ideals of citizenship were shown to. Semi-citizenship plays a pivotal role in effecting the administrative rationality that is characteristic of governmentality. Some members of populations are understood to be different from others even though they may be identified with the same label (“citizen”). We therefore come to expect that there will be a difference in the membership of military personnel, the mentally ill, and people who have no proof of identity, even if they are all called “citizens.” Governmental ordering of the population implies two conditions relevant to the creation of semi-citizenships. First, it prioritizes predictable forms of behavior. Second, it must digest differences within the population that See Aihwa Ong, Flexible Citizenship: The Cultural Logics of Transnationality (Durham, NC: Duke, 1999). 54 Foucault, Security, Territory, Population, 65–70. 55 Ralf Dahrendorf, “Citizenship and Beyond,” Social Text 41(4) (1974): 677. 53

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might be potential sources of friction and disorder. In practice, this brings a set of concerns to boundary management that is not fully accounted for in either democratic or liberal theory. Boundary management is accomplished using means that are different from those that are dictated by normative theory. Tools of security, statistics, and public health accomplish this management. For example, rules regarding the employability and movement of people with contagious diseases or criminal records are instituted to ensure that contagion and the threat of violence are minimized and contained.56 Tools that organize knowledge about populations come to influence and exert authority over those populations via the imposition of categorical distinctions. Such categorical distinctions take into account a vast array of variables that extend beyond even the often expansive and relatively neat lines drawn by territorial sovereignty, to say nothing of norms. In thinking about the relationship between boundary management and governmentality, Aihwa Ong reminds us that the logic of governmentality entails that micro-processes associated with citizenship will inevitably generate an array of political categories, each intended to elicit predictable behaviors and deploying circumstantially-targeted and effective methods.57 Citizenship and attendant forms of semi-citizenship make populations more legible and more readily organized, understood, and governed. In turn, citizens’ relationships to their citizenship are associated with practices that make them evermore governable. To be included is to be controlled in specific ways. Through citizenship, self-disciplining activities and participation in economically liberal civil society are linked to practices and sciences of physical control. The government of a population layers “practical equivalences” over preexisting “hierarchical differentiation of orders of the people,” creating “a common abstract essence” from “parts [that] are not equivalent, but whose survival is dependent on relations among them.”58 In other words, to maintain citizenship as a practical equivalence, administrative rationality must serve to facilitate relations among non-equivalent individuals. Insofar as they are composed of exceptions to more general rules, semi-citizenships serve this purpose by maintaining the joint myths of full citizenship and non-citizenship while at the same time differentiating some citizens from others, partially drawing supposed non-citizens into Bryan S. Turner, “The Enclave Society: Toward A Sociology of Immobility,” European Journal of Social Theory 10(2) (2007): 287–304. 57 Ong, Flexible Citizenship, 225. Aihwa Ong, Buddha is Hiding: Refugees, Citizenship, the New America (Berkeley, CA: University of California Press, 2003), 9, 15, 17, 283. 58 Bruce Curtis, “Foucault on Governmentality and Population: The Impossible Discovery,” Canadian Journal of Sociology 24(4) (2002): 508–509. 56


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the citizenry and partially pushing others out.59 We see this with regard to work: rules may demand that an older member of the population retire from a civil service position, while a foreign person applies to join the population by promising to work on a temporary basis, while yet a third person cannot legally work for fear of being ejected (deported) from the population. Mitchell Dean’s description of how such exceptions figure into governmentality recalls the contradiction of unitary citizenship exposed in the preceding chapter: “The figure that emerges might be considered as an attempt to invent and install a form of citizenship that is compatible with the existence of inequality and poverty in a community of equals.”60 The relationship between citizenship and the state warrants close exploration because semi-citizenship is integral to the modern state and is also one of the state’s most powerful tools. In turn, the capacities of the state ensure that semi-citizenships reach deeply into the populations they govern, and that they do so in a durable if plastic fashion. To identify the combinations of relative and autonomous rights composing existing orders of semi-citizenship we need to know how liberal, democratic, and administrative logics of citizenship interact with the political instruments of the state. In the section that follows I explore how states use semi-citizenships to adjudicate between liberal, democratic, and governmental doctrines.

V. The Purposes of Semi-Citizenship in the Political Context of the State At this point in the chapter, it has been established that three doctrines of citizenships bring distinctive, though not always completely divergent, logics to bear on the autonomous and relative rights conferred by citizenship. The state stands at the nexus of the rational bureaucratic and normative imperatives of politics. It marries vital elements of governmentality to each other and to the normative commitments upon which governmentality Some have treated exceptions as the product of accidents and mistakes, using the two terms almost interchangeably. I would argue strenuously that exceptions may sometimes be cloaked in the language of mistake or accident, but that the three are different. All semi-citizens are, by definition, exceptional. However some people are designated as semi-citizens in predictable and explicit fashion while some people are partially excluded as the result of actual error. There is a difference between someone who is deprived of civil rights as a result of newly instituted restrictions on expression designed to fight a “war on terror” and someone whose immigration papers are destroyed in a fire or whose identity is confused with someone else’s. For a discussion of “accidents of citizenship,” see Peter Nyers, “The Accidental Citizen: Acts of Sovereignty and (Un) making Citizenship,” Economy and Society 35(1) (2006): 22–41. 60 Dean, Governmentality: Power and Rule in Modern Society, 203. 59

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depends to justify its claim that it serves the good of the population. Carl Schmitt’s skepticism about the possibility of a single seamless citizenship is rooted in the inherent conflict between “two different elements”: the individualist universalist ethic of liberalism, and the legitimizing principle of consent implied by democracy. However, the passage cited earlier also indicates a role for the state in the conflict. Schmitt efficiently captures the fact that philosophical tension occurs in an institutional context: that of the state. On the one hand, he emphasizes the normative conflict between a liberal façade and an ethic demanding an impossible degree of homogeneity. On the other hand, he presents this conflict in a language that also does not lose sight of two crucial facts: this conflict plays out in the context of the state, and it engenders problems of administration that the state must address. It is the state that must adjudicate disputes between liberal, democratic, and administrative doctrines of membership, and it does so in the real world, without the luxury of arm’s-length distance enjoyed by normative theorists. As Daniel Bell puts it, the state becomes “the cockpit of politics.”61 National societies assume projects via group or communal instruments. In a tightly interwoven society, more decisions have to be made through politics and through planning. Yet both mechanisms, paradoxically, increase social conflict. Planning provides a specific locus of decision, as against the more impersonal and dispersed role of the market, and thus becomes a visible point at which pressures can be applied. Communal instruments – the effort to create a social choice out of the discordant dance of individual personal preferences – necessarily sharpen value conflicts.62

Bell goes on to highlight the problems imposed by the “relationship of technical and political decisions.”63 In his description, politics both precedes and upsets the rational. Among the instruments the “state-as-cockpit” relies upon to navigate these confrontations are citizenship and the various semi-citizenships illustrated in Chapter 3. Gianfranco Poggi describes the catalyst for this process: “A key instrumentality of this process is a new type of political relationship – citizenship – directly connecting the state with an increasingly wide portion of the population, which came to constitute a political community.”64 States require citizenship. They also Daniel Bell, The Coming of Post-Industrial Society: A Venture in Social Forecasting (New York: Basic Books, 1999), 364. 62 Bell, The Coming of Post-Industrial Society, 364. 63 Bell, The Coming of Post-Industrial Society, 364. 64 Gianfranco Poggi, The State, Its Nature, Development, and Prospects (Stanford, California: Stanford University Press, 1990). 61


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require semi-citizenships because the act of classifying and awarding centrality to one class of people with a specific set of characteristics implies others with variously different characteristics will require their own classifications.65 Semi-citizenships are produced by states in adjudicating the conflict Bell described playing out within the relationship Mann posits. Mann goes so far as to describe the reflexive nature of politics using images of central and marginal citizens that implies a reflexive relationship between members and different kinds of foreigners. He cites a “two-way relationship between center and territories.”66 It is the state that must actually govern large and diverse populations; hence the state must put into practice both liberal and democratic norms alongside governmental imperatives. Something has to manage the conflict that occurs when, for example, an accused person is not a good candidate for trial in a civil court. Whether that person is immature, mentally ill, or accused of crimes involving secure information, there are conflicting claims being made by liberalism, democratic norms, and administrative rationality as to what rights these individuals can legitimately claim. The state relies on semicitizenships to resolve these conflicts because semi-citizenships are both wide-reaching and flexible tools that can express different norms as well as the imperatives of governmentality. The immature person becomes a “minor,” the mentally unwell person becomes “incompetent,” and the security threat becomes an “enemy alien”: these and other semi-citizens hold a status that is produced by the state in response to the multiple, inconsistent thresholds internal to liberal and democratic standards for full membership, as well as the practical political requirements of managing the complicated politics of populations. The dynamics that create such categories are extensive and complex, vertically linking individuals with distant offices and elements of politics, and horizontally linking social practices and manners with political norms and membership. From the perspective of any given normative or administrative logic, semi-citizenships represent departures or failures. However, from the

Nevzat Soguk, States and Strangers: Refugees and Displacements of Statecraft (Minneapolis: University of Minnesota Press, 1999), see especially Chapter 1. Soguk cites Michel de Certeau specifically on the subject of categorization, and draws an important genealogical connection between refugee and immigrant statuses that were refined in the twentieth century and the statuses of “vagrants, beggars, and gypsies” in the nineteenth century. Soguk, States and Strangers, 41. 66 Michael Mann, Sources of Social Power: Volume II (Cambridge and London: Cambridge University Press, 1976), 59. 65

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perspective of states trying to reconcile conflicting logics, they represent solutions to deadlocks between competing priorities. Citizenship could not fulfill the role Mann assigns it within the context of the state without semi-citizenships because semi-citizenships serve the three adjudicative purposes of semi-citizenship introduced earlier in the chapter and developed below. These include: effecting compromises between conflicting doctrines of citizenship, ordering the population, and creating flexibility. Below I discuss the nature of the compromises states must effect between conflicting normative and administrative logics of citizenship, and what these compromises accomplish, focusing particular attention on the need to order the population while maintaining political flexibility. A. Effecting Compromises between Conflicting Logics The logics of citizenship cannot be permanently reconciled into a single, internally cohesive doctrine. Nor can they coexist in ways that accord each doctrine sole authority over a specific kind of rights, or even circumstance. Semi-citizenships forge compromises between the different and sometimes inconsistent logics of citizenship, and they apply these compromises to the equally diverse populations they govern. They do so by embodying exceptions to citizenship rules. These “statuses of exception” are created by urgent doctrinal conflict: points at which liberalism, ethical democracy, and administrative rationality do not dictate identical or compatible answers to the question of whether someone ought to be accorded citizenship. These conflicts require that exceptions – departures from rules – be granted within one or another doctrine. Liberal democratic states depend on these departures from rules, or exceptions, to break impasses that arise when a boundary or exclusion that one doctrine would dictate is contradicted by the action that another dictates. Different normative logics must be squared with one another and in turn must be accommodated by non-normative logic. Rogers Smith’s ascriptive Americanism coexists with Louis Hartz’s Lockean liberalism and Gunnar Myrdal’s takes on Tocqueville’s liberal America, rather than below or above either of them.67 This is enabled by compromises in

Rogers M. Smith, Civic Ideals (New Haven: Yale University Press, 1997); Louis Hartz, The Liberal Tradition in America (San Diego, New York, London: Harcourt Brace, 1955; Gunnar Myrdal, An American Dilemma (New Brunswick, NJ and London: Transaction, 1944).

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which doctrines overlap at some points and carve out exceptions to each other where they diverge. Carefully calibrated compromises must constantly be struck between competing doctrines of citizenship with regard to all of the autonomous and relative rights of citizenship because each doctrine confers both types of rights according to its own set of principles. Liberalism and democratic norms and governmentality all speak to the autonomous rights that all persons need, as well as to the relative rights that pertain to membership in specific political systems. Semi-citizenships provide a means through which activities without inherently normative bases, such as those associated with order and sovereignty, are reconciled with the liberal and democratic norms, which also often need to be made, if not consistent, then at least to function with each other. To see such conflicts and compromise play out in the work of a familiar theorist, revisit Dahl’s discussion of how to accord the relative rights associated with self-governance in a liberal democratic state. Dahl describes a compromise that is struck between location, ability to self-govern, and autonomy so as to define the demos. Dahl’s compromise accords the franchise to any non-transient, mentally competent adult.68 Place is primarily non-normative – here governmental administrative rationality is at work – while judgments of ability often reflect ethical norms of democratic theory, and autonomy privileges a liberal moral logic. One could imagine coming to a different compromise, for example, one in which transience is not regarded as disqualifying a person for the franchise. In allowing non-national EU citizens to vote in the elections of the state in which they reside, regardless of whether they reside there permanently, the EU has in fact made a similar statement. Alternately, when Dahl wrote, the question of felon disenfranchisement had not penetrated American public consciousness in the way that it would come to following the 2000 election.69 The reader is left with a legitimate question as to whether Dahl would consider the disqualification of felons from voting to be a serious violation of the liberal equality principle or a fair response to persons who have broken the social contract . Robert Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989), see Chapter 9. 69 The definitive academic study of this subject was published in 2006. See Jeffrey Manza, Locked Out: Felon Disenfranchisement and American Democracy (Oxford, New York: Oxford University Press, 2006). At least one policy organization (The Sentencing Project) had issued a report on the subject prior to 2000; however, its own reports suggest that action followed on the heels of the 2000 debacle. See www.sentencingproject.org; last accessed July 31, 2008.

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Conflict over sets of rights is unavoidable. If the three logics of citizenship were actually a series of nested circles of inclusion, semicitizenship could be an entirely coherent and predictable layering of three parts.70 However there is no linear ideational progression neatly marking where one logic ends and another picks up. As the history of semi-citizenship in the first section of this chapter demonstrates, each of these traditions is related to the other three, even as they also diverge. Governmentality, liberalism, and democratic norms all rely on some shared premises. Governmentality and liberalism have a shared liberal heritage. Governmentality requires normative backing to justify itself as “good for the population.” Governmentality also asserts a scientific rationale for politics that is consistent with liberal conceptions of equality that are rooted in the rational capacities of individuals. The scientific bent of governmentality is inclusive in ways that echo the inclusiveness of liberalism, even though governmental inclusion does not imply justice. Governmentality may simply mean that people are included in statistical counts of a population that in turn are used to prevent public health crises, e.g., through compulsory inoculations, or civil unrest, e.g., through urban planning and attendant police practices. Liberalism can be similarly expansive, as was made evident by Dahl’s explication of the principle of affected interest, which required the inclusion of people regardless of territorial location, age, or other typical delimitations.71 As was noted earlier, the major variants of normative liberal theory can all be interpreted as hostile to territorial boundaries that prevent the free movement of persons. Liberalism and governmentality can therefore both be expansive and inclusive . Demoi and states both create boundaries that an argument for liberal individual rights does not. But they may not require the same kinds of divisions. Self-rule and territorial sovereignty need not and do not always refer to coextensive boundaries. Rational capacities can in turn serve to The idea of nested citizenships has been invoked to refer to differential memberships created by federalism, particularly in the context of supranational political institutions. (Thomas Faist, “Social Citizenship in the European Union: Nested Membership,” Journal of Common Market Studies 39(1) (2001): 37–58. Rainer Bauböck, “Why European Citizenship? Normative Approaches to Supranational Union,” Theoretical Inquiries in Law 8(2) (2007): 452–488. 71 Dahl is not alone in noting that liberalism can be hostile to sovereign boundaries that exclude people from moving freely and participating in politics that affect them. See International Migration In and From Africa: Dimensions, Challenges and Prospects, eds. A. Adepoju and T. Hammar (Stockholm: Population, Human Resources and Development in Africa, 1996). 70


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justify a family of ethical norms that ground democratic rights of self-rule even though some ethical traditions exclude people with rational capacities if they do not meet other standards. (For example, allowing norms of jus sanguinis that prioritize blood relationships to determine who can access a set of rights, rather than allowing jus soli to take precedence.) The semi-citizenship of children exemplifies the way in which semicitizenship allows compromises required by the state in its capacity as arbiter of different doctrines of membership. As Chapter 6 details, children are complicated subjects to govern within the context of a liberal democracy for reasons that stem from their variably rational capacities and their atypical political needs. These facts are accommodated by a weak set of relative rights and a strong set of autonomous rights. M inors do not vote or receive formal representation in politics. From the point of view of the state, they are not political beings. Presuming that children’s interests will be represented by their parents or guardians allows states to evade difficult questions about which children may be capable of making political judgments, as well as what those capable of making these judgments may be entitled to. It also allows states to evade questions about what it is that all children, regardless of their rational abilities, are entitled to expect from democratic politics. At the same time, states confer a very thick set of autonomous rights on children that both bind them to the polity (as in the case of legally assigned birthright nationality), and protect a set of interests that exists, at least in part, outside of what their parents will represent to the polity (as in the case of most social rights). Their semi-citizenship thus incorporates children and sets them apart. They carry some parts of the legal identity of citizen and thus are legally recognized. Some of their potential claims on the polity are recognized on a basis that is somewhat abstract: the idea of a minor discriminates on the basis of an ascribed trait supposedly linked to rational capacities. Without semi-citizenship, it would be impossible to forge a compromise between the imperative to govern children politically – as opposed to leaving them entirely to the care of their parents, or no one – and the imperative to exclude them from politics until they exhibit the traits demanded by an ethical democratic doctrine of membership. Their semi-citizenship simultaneously asserts sameness and difference and forges an important compromise between administrative rationality and normative theory.72 �� In the case of �� children, democratic and liberal norms might both dictate their �� exclusion, though in either case the age of majority would prove a poor indicator of when a child can meet rational or ethical standards for membership.

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B. Ordering the Population Diverse logics of citizenship confront equally diverse populations. In addition to forging compromises among related but dissonant doctrines of citizenship, semi-citizenships are also vital to creating political order within populations that are inherently disorderly. The characteristics of a population will almost never conform to the expectations implied by any one of the doctrines of citizenship, and certainly could never conform to all of them at once. Ordering a population entails imposing rules on the contours of the population, not all elements of which will conform either to democratic norms regarding “affected interest,” capacities, or fit neatly within geographic borders. If there is to be citizenship, then there must also be semi-citizenships that assure states the opportunity to govern people who cannot be governed according to the expectations of full citizenship. Hannah Arendt points out the degree to which statelessness, which refers most specifically to the absence of nationality, poses a threat to states. A rendt’s argument suggests that the stateless person becomes irrational from the perspective of the state, and hence she is literally erased: non-persons by virtue of their status, or lack thereof.73 This is corrosive to political order both for states and for the individuals in question. Preventing this kind of political irrationality requires mediating statuses like semi-citizenships to include and exclude in the precisely calibrated way that unitary citizenship cannot. Semi-citizenships manage difference within the population that a state governs in ways that unitary citizenship could not. As the passage from Dahrendorf cited earlier indicates, citizenship is the “crystallization of rationality into a social role.”74 Dahrendorf is right to link rationality and the social role of the citizen. Where he errs is in implying that the linkage of vastly divergent persons can be effected within a single status. Citizenship lends rationality to a population by creating multiple political statuses without which many differently situated people would be entirely excluded and illegible from the point of view of the state. Gianfranco Poggi’s understanding of the state more precisely identifies the points at which semi-citizenship, rather than just citizenship, orders the citizenry. Poggi relies on a five-part definition of the state. For Poggi, depersonalization, formalization, integration, differentiation, Hannah Arendt, The Origins of Totalitarianism (New York: Knopf, 2004), 80. Ralf Dahrendorf, “Citizenship and Beyond,” Social Research 41(4) (1974): 677. �� Foucault describes citizenship as the “professionalization” of the experience of �� subjecthood. Foucault, The Foucault Effect, 123.

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and organization compose essential activities of the modern state.75 Semi-citizenships fulfill a very specific set of functions that integrate and are integral to each of these five goals. They depersonalize by giving members a neutral status that does not reflect individual attributes or attachments. Semi-citizenships are sets of rights available to people with certain characteristics. As I elaborate below, they are not social identities. These differential rights bundles are more abstract than social identities can be. Semi-citizenships also formalize people’s status by creating documentation and procedures for identifying citizens of various sorts and legitimizing their claims. For example, giving a person a visa accords them a limited subset of the fuller and more permanent rights to residence and free movement conferred by a passport or legal nationality. This has the additional effect of organizing diverse subsets of a population with respect to each other and the state. Semi-citizenships further assist in the integration of those included in the population through various forms of policy and law that address what were described in the preceding section as “exceptional” persons and the statuses these persons are assigned. Semi-citizenships in the modern state also assist in differentiating subtle variations in status and rights. To constitute a citizenry, a population must be ordered. To avoid the A rendtian dilemma of the irrational non-person, semi-citizens must be integrated into the polity via the conferral of rights even though they do not in some way conform to the requirements of full citizens. Rights, as established in Chapter 2, are relationships. In this case, they are relationships between individuals and states. To deny a right is not simply to deny someone a good or a resource. In the absence of a right or a set of rights that links the state with individuals in the population, the state need not acknowledge a particular relationship with a given individual. This pares part of an individual’s existence away from their political identity and in turn spares the state the task of governing that which is ungovernable, either because to do so would violate liberal norms, or because of practical constraints created by constitutional democracy. It does so without landing either the state or the individuals it governs in the problematic position created by A rendt’s stateless person. The capacity to confer partial bundles of rights ensures that states will be able to govern children, adults with compromised rational capacities, transient persons, and others to whom general rules regarding the acquisition of citizenship do not apply. Semi-citizenship therefore cannot be regarded as simple exclusion. 75

Poggi, The State: Its Nature, Development, and Prospects, 95.

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It expresses difference in an institutional capacity. The state can recognize semi-citizens, and semi-citizens can recognize the state. By differentiating thusly, semi-citizenship is incorporative in the way that Poggi describes as crucial to the functioning of the state. States can govern selectively by severing and/or imposing relationships selectively. To confer a right imposes a political relationship between an individual and a state. C. Creating Flexibility In addition to creating compromises among diverse doctrines of citizenship and rationally ordering diverse populations, semi-citizenships also lend elasticity to doctrinal accord over the content of citizenship and the boundaries of citizenries. They allow states to make and subsequently remake choices about who is governed, and in what manner, by shifting individuals and groups between categories of semi-citizenship. The presence of multiple categories of membership is accompanied by the possibility for, and means through which, states can shift parts of the population between different forms of semi-citizenships in any number of directions. Unbundling rights, or at least keeping this possibility alive by ensuring that rights are not treated as if they were predicated on each other, allows states the opportunity to move individuals and groups between citizenship categories. For example, nationality and social rights impose political relationships on children before they can be granted full citizenship. These relationships become the grounds for shifting children into full citizens as they reach the age of majority.76 In the other direction, the creation of disabilities for people who break the law, i.e., denying the franchise to convicted felons, shifts a group of people out of full citizenship and into semi-citizenship. This means that, while semi-citizenship categories are durable, their membership need not be. No group must necessarily occupy any given category. States set rules that determine who lands in which semi-citizenship quadrant. Referring back to Figure 3.2 in Chapter 3, people can be moved around among all four quadrants of the table, as well as on and off the table entirely. People whose rights are regularly renegotiated because they lack constitutional protections of their fundamental rights may find themselves shifted between categories.77 They have none of the attributes of citizens. Regardless of the basis Peter S. Schuck and Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (New Haven: Yale University Press, 1985). 77 For example, Jonathan Goldberg-Hiller makes the point that in America “gays and lesbians have seen their rights put to popular vote more often than any other m inority 76


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upon which people become entitled to rights, the administering of rights accords states specific forms of control over those individuals who receive them. In the contemporary United States this has recently yielded, among many other things, the revival of enemy alien law that allows the indefinite detention of terror suspects, and discretionary powers accorded to the Attorney General to permit recent immigrants of Cuban descent to jump immigration and even asylum queues.78 The fact that the rights of citizenship are not contingent also allows a state to revise and change its membership in more or less dramatic ways, without having to change the meaning or definition of citizenship. Members of the military do not have due process rights equivalent to those of civilians; however, due process remains among the core citizenship rights. This may or may not be just, but for the purposes of this argument, what is worth noting is that this can and does happen. T he citizenry can be continually pruned from within, as well as by the longstanding exclusions that keep some people from ever experiencing full inclusion. Citizenship can extend equality by what it confers on citizens, by determining whom it excludes from citizenship, and by determining the degree and manner of that exclusion. Because each right instantiates a specific relationship between the state and an individual, their justifications can sever specific relationships without either necessarily excluding someone so fully that they become entirely rightless, or rendering any of the logics of citizenship fully impotent.

group; in forty-three incidents between the years 1977 and 1993, seventy-nine percent of these ballot measures were passed by what M adison would have called “tyrannical” majorities opposed to civil rights for lesbians and gays.” Jonathan Goldberg-Hiller, The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights (Ann Arbor: University of Michigan Press, 2002), 18. 78 Discretion figures prominently in the creation and maintenance of semi-citizenships, a fact that is noted as disturbing to defenders of liberal citizenship. Leonard Feldman cites Judge D. Lowell Jensen’s decision in a case regarding homelessness, where he writes that “status cannot be defined as a function of the discretionary acts of others.” Joyce v. San Francisco, 857. Feldman goes on to explain that “Beneath these contradictory gestures toward the social and governmental acts of creating and ending homelessness lies a deeper anxiety that motivates the rejection of the idea of a status resulting from political relations and ‘discretionary acts’: tracing homeless status back to the discretionary acts of the state would threaten the figure of the voluntaristic, liberal agent as the foundation of liberal society and liberal government. If discretionary acts of the state (such as funding decisions about public housing and decisions about urban redevelopment projects) lead to making people involuntarily homeless, then the state, in punishing sleeping in public would be punishing people for becoming what the state has made them.” Leonard C. Feldman, Citizens Without Shelter (Ithaca and London: Cornell University Press, 2004), 62.

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VI. Alternative Explanations of Semi-Citizenship The fact that semi-citizenships serve purposes, none of which is automatically associated with specific forms of hierarchy, calls into question the idea that semi-citizenships can be explained solely through reference to bias held by dominant groups. The preceding discussion of the role played by semi-citizenships in effecting doctrinal compromises, ordering populations, and creating flexibility supports the related assertion that such statuses are not mistaken applications of normative theories that, if rectified, would result in full inclusion. The discussion of existing accounts of semi-citizenship in Chapter 2 emphasized two problems with accounts of citizenship and exclusion that focus on the normative bases of each, to the exclusion of other factors. Liberal and democratic norms of citizenship cannot accommodate ambiguous thresholds of membership and offer unitary understandings of citizenship. There is no room for someone who is “somewhat rational” in liberal theory, for example. As the preceding sections of this chapter elaborated, normative theories of membership therefore cannot account for exclusions that are produced by contradictions internal to these theories, let alone conflict between normative theories and the political institutions charged with realizing them. This leaves unanswered the question of how unequal statuses are produced. If neither norms, nor the structures within which they are institutionalized, are responsible for instances in which unequal forms of membership are produced, then an explanation must be offered that shifts responsibility elsewhere. What remains, when abstract norms and institutions are exonerated, are explanations that assign responsibility to dominant individuals and classes that seek to assert power over threatening or less powerful individuals and classes. Individuals and classes whose interests and biases run contrary to equal citizenship are often, and sometimes accurately, seen as responsible for engendering hierarchy. This introduces a convenient appendage to normative theories of citizenship that denies the inevitability of semi-citizenship by preserving the understanding that unitary memberships could be realized under the right circumstances. There exist several approaches to the general thesis that citizenship is primarily shaped by the beliefs of dominant classes who are able to control agendas in liberal democracies. One exposition of this view is presented by Michael Mann’s article “Ruling Class Strategies and Citizenship.”79 Mann sharply 79

Michael Mann, “Ruling Class Strategies and Citizenship,” Sociology 21 (1987): 339–354.


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criticizes T.H. Marshall for, among other things, over-emphasizing and misunderstanding the nature of the “evolutionary Anglophile” model of citizenship. Rather than representing the future of citizenship, Mann posits that the Anglophile is only one of several versions of a capitalist citizenship regime in which the dominant ruling class – a combination of the bourgeoisie and political/ military elite – subverts class conflict through the careful manipulation of the elements of citizenship. However, as Bryan Turner has subsequently pointed out, Mann was so intent on a Marxist interpretation of citizenship at the time that he failed to acknowledge how other forces, among them racial conflict, entered into the picture.80 Race, gender, and ethnicity have all served as justifications for greater and lesser degrees of exclusion in all liberal democracies. The gap left by Mann has been addressed in a variety of ways by a host of political and social theorists. Prominent among them is Rogers M. Smith, whose book Civic Ideals traces the influence of America’s “multiple traditions” on the development of a citizenship that often excluded groups on the basis of ascription.81 Feminist theorists have engaged in a like-minded set of debates about the ways in which gender has served as a means for excluding women from elements of citizenship.82 At their most skeptical, dominant class theorists assert that the equality of those fully included must always be predicated on the economic, racial, and/or sexual oppression of others. Dominant class interest approaches to citizenship are not necessarily dependent on a faulty definition of citizenship. Indeed, they may be better positioned than any other to identify partial citizenships. But the framing they use treats semi-citizenships as if they are both the products of flawed norms/applications of norms, and as if excluded groups can be pasted back into full citizenship. However, they are all motivated by a normative critique of dominant class interests that can obscure some of the ways in which states, independent of ideology, shape citizenship. This normative bent encourages scholars of citizenship to look at how the empowerment of oppressed classes, or conversely, the dismantling of illiberal laws, policies, and sometimes political regimes, can be expected to change the circumstances of citizenship and to eliminate or minimize partial and wholesale exclusion. This in turn reinforces the idea that a single unitary citizenship Bryan S. Turner, “Outline of a Theory of Citizenship,” British Journal of Sociology 24 (1990): 189–214. 81 Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1999). 82 Yuval-Davis, “The Multi-Layered Citizen”; Ruth Lister, Citizenship: Feminist Perspectives (United Kingdom: Palgrave Macmillan, 2003). 80

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is both a normative ideal for membership toward which the liberal state can evolve, and that the exclusion of some people or groups from such a citizenship is only the result of the self-serving or otherwise malign intentions of a dominant ruling class. Without discrediting the idea that powerful social and economic class interests influence the shape of citizenship and semi-citizenship, one of the conclusions of this chapter’s discussion of conflicting logics of citizenship is that a single, unitary form of citizenship cannot accommodate the diverse political statuses created when liberal, ethical, and administrative frameworks of membership collide. The imperatives involved in the creation of semi-citizenships would persist regardless of which, if any, identifiable classes are dominant. Governmentality will perpetually require citizenship as a tool to make rational and governable those whom ruling political philosophies cannot govern: namely, parts of the population which do not, or are not, permitted to conform to expectations of full members even when those expectations are not described in ways that express social and economic class interests. The most readily apparent of the dilemmas that dominant class explanations of semi-citizenship create is that such explanations imply that the ideal of equality is unrealized because of flawed or incomplete applications of liberal principles. Women and m inorities can be “amended” into constitutions and representative bodies that had not originally been inclusive, thus realizing liberal ideals. More recently, difference theorists have raised the possibility that equality and diversity may be sufficiently at odds with one another as to pose a fundamental conflict to liberal norms as they have been institutionalized in post-enlightenment polities.83 At its most pessimistic, this suggests that the extension of liberal rights to some will always rest on the m isrecognition, exclusion, and exploitation of others, as a number of feminist and M arxist theorists assert. Our best hope is therefore to engage in dialogic acts geared toward ongoing expression and recognition in the hope that such acts will themselves engender mutually transformative understandings, even as identities shift and create new needs for public deliberation and fresh identities in need of recognition. However, this also seems to imply that if underlying forms of exploitation and m isrecognition were eradicated from both social and political life, regardless of their bases, it would be at least possible to offer equal citizenship to all members of a society. In other See in particular Carole Pateman, The Sexual Contract (Stanford, California: Stanford University Press, 1988).

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words, semi-citizenship is the product of the competing interests and political understandings of groups, identities, classes, and individuals. In regarding dominant classes and ideologies as responsible for engendering semi-citizenship, proponents of this view fail to acknowledge the structural context provided by the “state-as-cockpit,” or the ways in which associated institutions, absent even any of the political imperatives described by dominant class theorists, will require semicitizenships in order to effectively maintain themselves.

VII. Conclusion An inscribed and differentially situated citizenry is not a contemporary or even a modern phenomenon. Yet particular qualities of semi-citizenship are directly linked to governmental logic that becomes manifest within the context of the state. Administrative rationality exerts power, usually through the state, over populations. The sovereign borders of states are relatively inflexible but do not always refer to the populations a state must or can effectively govern. Layered on top of this are norms of liberal theory that emphasize rights that attach to individuals based on a conception of personhood, regardless of whether these persons are similarly situated in relation to the state. Finally, democratic norms demand boundaries of an entirely different sort, most often those derived from ethical standards that depart from the very general idea of a population, physical borders, and inclusive moral conceptions of personhood. In short, each of these ways of thinking about power depends on its own conception of citizenship which in turn makes citizenship simultaneously a commonly held and a contested concept. It should therefore come as no surprise that in balancing the demands made by each of these perspectives on political power, semi-citizenships are formed. The common ground of rights, and the relationships that rights instantiate, is divided by the kinds of relationships different forms of power require to maintain themselves. What remains is then to link these different relationships to the specific fissures that have been proposed as distinguishing forms of semicitizenship from one another and from full citizenship. In particular, this requires returning to the distinction between autonomous and relative rights that compose the four quadrants of Figure 3.2 in Chapter 3. In the next two chapters (5 and 6), I examine several cases of semi-citizenship in order to flesh out more elaborately how these connections become manifest. I look closely at nationality, arguably the most universally

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understood autonomous right, to see how it is distributed/imposed in differential forms. I then look at several cases in which relative rights are restricted in differential fashion. These cases include the case of children’s citizenship and LGBT citizenship. The former demonstrates the possibility of having semi-citizenship that is almost entirely autonomous. Children have virtually no relative rights. The second exemplifies an instance of a comparatively contained restriction. In most democracies and in most states in the United States, LGBT citizens have virtually identical bundles of autonomous and relative rights as other citizens, but they cannot marry. Though these cases are not by any means encyclopedic, they cover all four combinations of strong and weak relative and autonomous rights. They indicate both how (what we generally take to be) a single right can be internally disaggregated, as well as how rights that constitute the entire citizenship bundle can be disaggregated from each other. Each case also demonstrates different manifestations of friction between the competing influences of states, governmentality, norms of liberalism, and norms of democracy. What is ultimately revealed is a larger picture of citizenship in which fluidity is balanced with surprising forms of durability. Both are significant and have normative value and vulnerability that call into question whether existing arguments addressing inclusion and equality actually obtain.

5 Semi-Citizenship and the Disaggregation of Autonomous Rights

I. Introduction Autonomous rights, as defined in Chapter 2, are rights to goods that do not derive their meaning from any specific political context. Unlike the good of representation, for example, autonomous goods are valuable outside of the context of any specific political system. Autonomous goods – such as the right to secure residence, free movement, basic welfare, family formation, and freedom of thought and speech – take very similar forms for all people in all contexts. In contrast, rights to participate in a political process and more embedded civil rights, such as those associated with participation in the free market, derive their meaning from the political context in which they are generated. Autonomous rights, as well as their relationship to relative rights, can be justified in a number of different ways. A Kantian liberal will argue that no one could legitimately be deprived of autonomous rights as long as they are rational and capable of self-rule. An ethical democratic theorist will argue that autonomous rights follow from one’s membership in a political community, which implies that connection to these communities and the meeting of those terms ground autonomous rights. In turn, the administrative rationality of the state system dictates that relative rights be accorded based on practical concerns of governing populations. Each of these positions has enough in common with either of the other two that they can coexist within single political systems. Yet, each contains the seeds of divergence that can lead to different conclusions about who is entitled to which rights, and under which circumstances. The confluence of conflicting doctrines of citizenship means that multiple doctrines are constantly competing to justify rights in any given 141

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polity. Such competition yields a splintering of any single kind of right into constitutive parts, which in turn are associated with different combinations of autonomous and relative rights of citizenship. This chapter will demonstrate how the disaggregation of autonomous rights is in fact commonplace, long-standing, and inevitable. To illustrate these claims, and to connect them with the arguments that precede this chapter, it focuses on the autonomous right of nationality. Nationality, though taken to be a single right, is frequently internally dissected into statuses that offer some, but not all, of its component parts (primarily rights of residence and free movement). Nationality also comes unbundled from other autonomous and relative rights. Nationality is often presumed to be a status that is linked to normatively grounded bases for desert. These in turn ground the conferral of various relative rights that are given meaning by the political systems within the sovereign borders of the state in question, rendering citizenship a contingently bundled package. In this thinking, different relationships to sovereign borders yield different degrees of desert that engender different relationships of responsibility on the part of the state. However, as forecast in Chapter 3, this assumption of contingency is belied by practice. Autonomous rights of the sort that transcend context are not bundled together as we might expect, given their relationship to nearly universal understandings of human need. There is also no link between understandings of liberal and democratic norms of desert that connect the bases for an individual’s right to be in a given place with their entitlement to various relative rights associated with fuller membership in the polity. People who have anomalous relationships to the rights of nationality do not all have the same order of semi-citizenship, even though most such people are immigrants. Instead, they end up scattered throughout all four quadrants of the table depicting different combinations of autonomous and relative rights, alongside people with disparate social identities but similar forms of semi-citizenship. What triggers the conferral of various other rights upon the foreign-born can only be understood as a set of compromises among liberal theory, democratic norms, and administrative rationality. Section II lays out a description of how we can understand nationality within the language of rights. Based on this understanding, Section III describes a number of possible statuses in which people are neither entirely included in, nor entirely excluded from, a given nationality. Such instances of partial nationality demonstrate how even that which is often taken to be a unitary right is disaggregated into stronger and weaker versions. This in turn illustrates breaks in links of contingency that standard expectations

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of citizenship dictate join autonomous and relative rights. It is not the case that every person who lacks full rights of residence and free movement is restricted in the same way, or that she has an identical concomitant set of limitations on her other autonomous and relative rights. Thus, we see individuals with stronger and weaker versions of nationality, as well as individuals whose relative rights do not track with what we would expect given their autonomous rights . Sections IV through VII describe points of conflict between logics grounding citizenship at which these statuses are produced. Beginning with general points about the conferral of rights to residence and free movement, doctrinal compromises consistently reappear throughout history in the form of similar semi-citizenship statuses, and across countries traditionally understood to embody discrete and distinct approaches to citizenship. Section VIII delves deeper into the reasoning behind the most prominent bases for according differential rights of residence and free movement to reveal a set of compromises among administrative rationality, liberalism, and democratic theory. Section IX performs a similar kind of analysis on how these semi-citizenships engender order and rationalize the population by creating flexibility and allowing categorical change. Before concluding, Section X looks at postnational citizenship in order to indicate the durability of semi-citizenships rooted in differential rights of free movement and residence.

II. Autonomous Rights of Nationality A basic definition of nationality draws a congruent relationship between the nation and the state. Nation-states are defined by the enforcement of sovereign boundaries. Hannah A rendt demonstrated the strength of looking at nationality this way by illuminating the failures of modern rights regimes in accommodating the needs of those who are excluded from holding any nationality.1 However, scholars who make claims about cultural nations note that states can contain within their boundaries a multiplicity of groups who share many characteristics with nations, some even making claims of partial sovereignty.2 Through the study of nationalist sentiments, even more institutionally diffuse groups have come to be

Hannah Arendt, The Origins of Totalitarianism (San Diego, New York, and London: Harcourt, Brace, and Jovanovich, 1979), 275. 2 S ee Anthony D. S. Smith, Nationalism (New York: New York University Press, 1979); Will Kymlicka, Multicultural Citizenship (Oxford: Clarendon Press, 1995). See also Benedict Anderson, Imagined Communities (London: Verso, 1983). 1

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thought of as nations.3 The experiences of national minorities force some groups to constitute themselves as nations in opposition to dominant and often oppressive, or indifferent, majority social and political cultures. This opens up the definition of “nation” to include many geographically and institutionally diffuse groups that share certain identity traits. While the International Court of Justice has shown some inclination to recognize affective ties as partly constitutive of nationality, 4 it has also been explicit about the fact that such ties are between individuals and states, not individuals and sub-state communities. Thus, scholars of international relations say nationality “ascribes a person to a determined human collectivity, which is characterized by its ‘stateness’ (sovereignty).”5 This is consistent with the approaches to nationality taken in the classic political philosophy literature that attends to nationality in international relations.6 It is also consistent with the ways in which the legal status of nationality has been constructed by both national and international law. Most states have nationality laws or acts describing the terms on which nationality is bestowed by the state just as they would for any other autonomous right of citizenship.7 Linking nationality to sovereign bodies helps us move toward a definition of nationality despite the notorious difficulties that have beset scholars attempting to define nations and nationalism.8 From this legal perspective, nationality governs residence and movement.9 Nationality is therefore defined in large part by the fact that it ascribes to a group of people the right to enter and/or to remain within the sovereign borders of a state. States’ efforts to “monopolize the legitimate means of movement” are in large part an effort to “define mutually exclusive groups of citizens.”10 The legal/territorial definition does not contradict claims that 3 Smith, Nationalism. 4 See the Nottebohm case, Liechtenstein v. Guatemala (Second Phase), International Court of Justice Reports, 1955. 5 Carlos Closa, “EU Citizenship at the 1996 IGC,” in Dual Nationality, Social Rights and Federal Citizenship in the United States and Europe, eds. Randall Hansen and Patrick Weil (New York: Berghahn, 2002), 297. 6 See J. B. Scott, The Spanish Origin of International Law (London: Humphrey Milford, 1934). 7 See Ruth Donner, The Regulation of Nationality in International Law, 2nd ed. (New York: Transnational Publishers, 1994). 8 Anderson, Imagined Communities. 9 Tomas Hammar uses this thin understanding of nationality as a springboard for his own more circumscribed theory of denizenship in Democracy and the Nation State, 2nd ed. (Aldershot: Avebury, 1990), 16. 10 John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge: Cambridge University Press, 2000), 13.


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others might wish to make regarding identity and culture, but it does distinguish them conceptually. Furthermore, using the territorial definition of nationality would imply that it would yield few if any differentiations among nationals, since the variables at stake have been reduced to rights of residence within clearly demarcated sovereign borders. For the purposes at hand, nationality will be considered to refer to the formal legal status that is associated with the right to enter and remain within the boundaries of a sovereign state according to rules set by that state. As such, it is an autonomous right.11 Most nationalities are assigned at birth either through a rule of jus sanguinis or jus soli.12 People who do not receive nationality as a birthright, or who wish to change their nationality, must petition for the right to naturalize, usually from within the boundaries of the state whose nationality they wish to receive. A very small minority will be rejected, and these stateless persons will be forced to exist without a nationality.

III. Disaggregating the Autonomous Right of Nationality One might predict that the demands of sovereignty would prevent states from toying with the binary categories of national and non-national. Sovereignty itself would seem to demand that national and non-national R ainer Bauböck’s delineation of human rights includes reference to nationality as a right. Rainer Bauböck, Transnational Citizenship: Membership and Rights in International Migration (Aldershot, UK: Edward Elgar, 1994). Nira Yuval-Davis similarly recognizes the importance of nationality because it assigns the right to residence and free movement; Yuval-Davis, “The Multi-Layered Citizen.” There are important congruities between people deprived of rights associated with legal nationality and �� homeless people whose legal and social circumstances conspire to deprive them of public or private spaces within which they can reside. Thus it is neither conceptually inaccurate nor an exaggeration to call people displaced by natural disasters “refugees.” Indeed, Temporary Protected Status is sometimes accorded to such persons. Within a single state, economic and environmental emergencies can displace people in similar fashion, rendering them “internally displaced.” 12 �� A description of birthright �� citizenship (which implies an ancient equivalent of nationality as well as the rights I have associated with citizenship) can be found as far back as A ristotle’s Politics. He writes, “But in practice a citizen is defined to be one of whom both the parents are citizens …” See Aristotle, The Politics (Cambridge: Cambridge University Press, 1996), Book III, Chapter 2. In modern politics this is likely related to strictures put in place in early nations when waiting even a few days after birth to document nationality meant risking spoilage of evidence crucial to determining that status. Gérard Noiriel, “The Identification of the Citizen: The Birth of Republican Civil Status in France,” in Documenting Individual Identity, eds. Jane Caplan and John Torpey (Princeton and Oxford: Princeton University Press, 2001), 28–48. 11

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remain distinct and unitary categories. However, if defining and securing rights of residence and movement are the central purposes of nationality, it becomes immediately clear that nationality can be and is an internally disaggregated right. Statelessness is actually just an extreme case of a much more common condition – that of being a member of a partially sovereign people.13 Both rights of movement and residence, as well as access to other autonomous and relative rights of citizenship, are parceled out in a number of different ways to distinguish degrees of membership held by individuals who make up populations that are all in some way governed by a state. In practice, nationality is offered in degrees rather than as a wholesale right that is then associated with a unitary status. The bookend points of immigration – entry and naturalization – provide a first glimpse at how the right to nationality can be disaggregated. Entry documents bear out the ways in which the autonomous right to free movement is disaggregated at the border: “The modern compulsory identity documents for all (international) travelers … are intimately connected to the concept of distinct nation-states inhabited by citizens or subjects equal before the law …”14 Sovereign states issue passports to their nationals that entitle them to the largest set of rights of free movement . However, rights of entrance and residence are associated not just with passport-holding “full” nationals, but also with a number of individuals who are not officially recognized as citizens of a state. “License to move” can take numerous and varied forms that confer a potentially infinite array of limited rights to move across and to reside within a set of borders.15 Many people have what might, for efficiency’s sake, be termed temporary, partial passports: learner’s permits, motorcycle licenses, or other documents of identification with limited access �� Observe that �� sovereignty itself can be found in partial forms, as is the case with territories such as P uerto Rico, the Virgin Islands, or Guam, and with partially selfgoverning indigenous populations in many democratic states. 14 Andreas K. Fahrmeir, “Governments and Forgers: Passports in Nineteenth-Century Europe” in Individual Identity, eds. Jane Caplan and John Torpey (Princeton and Oxford: Princeton University Press, 2001), 219. In fact, the documents that came to represent one’s status in society during the era of nation-state formation are considered to have been integral in those formative processes. “The administrative formalities entailed by civil identification were in themselves a powerful factor in the process of national integration, not least because their ‘universality’ extended only as far as the limits of the territory over which the state exercised its sovereignty.” Noiriel, “The Identification of the Citizen,” 46. 15 �� Ronen Shamir aptly discusses “license to move” in the context of a larger argument about the means with which mobility is restricted within and by g lobalization. Ronen Shamir, “Without Borders? Notes on Globalization as a Mobility Regime,” Sociological Theory 23(2) (2005): 201. 13


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and that expire quickly.16 T hese are visas, work permits, and various other documents that give individuals the right to remain within a given territory despite their non-national status. Such documentation permits movement between states and residence within the borders of states for non-nationals. People who arrive with temporary visas are not nationals; yet, in being granted the right to enter a country they are granted a form of recognition that contains elements of nationality.17 Visas aren’t passports, but they are official state documents that govern the terms of movement across, and residence within, sovereign borders. They also generally accord individuals a subset of rights and responsibilities commonly associated with citizenship – or semi-citizenship. Under certain circumstances, even the recognition of undocumented immigrants’ rights begins to look like a slender slice of nationality. Such documents distinguish among a plethora of administratively distinct categories of semi-citizens that emerge out of an examination of non-standard relationships or forms of nationality. A person with a non-standard relationship to a given nationality may be in the process of acquiring a new nationality (in other words, on track to naturalize). They may be living temporarily, indefinitely, or permanently outside of the sovereign borders of the country whose nationality they do hold, and with or without the consent of the host country. Finally, they may hold no nationality at all, or may be exercising the rights of a transnational citizenship without full membership in a member-state of the transnational organization of which they are a member, as in the case of non-EU member-state citizens who enter the EU. Included in the possible groups of persons who may have limited rights of free movement and residence are: undocumented immigrants;18 economic immigrants; guestworkers; Only undocumented immigrants have no claims to residence. In the United States, amnesty programs give some undocumented persons potential claims to citizenshiptrack status. Furthermore, an extensive set of rights are available even to the undocumented in many democratic states, which indicates a form of semi-citizenship that exists independent of claims to nationality. 17 An unusual acknowledgment of this fact appears in “The Compendium of the Pursuit of Divine Knowledge.” In the book, Sayyid Imam al-Sharif accuses the 9/11 hijackers of “betraying the enemy,” because they had been given U.S. visas, which are a “contract of protection.” Sayyid Imam al-Sharif, quoted in Lawrence Wright, “The Rebellion Within: An Al Qaeda Mastermind Questions Terrorism,” The New Yorker 7 June (2008): 47. 18 �� Contestation over persons loosely categorized as “undocumented” or “illegal” indicates the degree to which more descriptively precise tools for identifying semi-citizens is needed. Peter Nyers identifies the “gray area” of what he terms �� “non-status immigrants” as persons with rejected refugee claims, no official identity documents, defunct sponsorship, expired visas, or subject to unprecedented deportation. He writes, 16

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refugees and other political migrants (such as persons with temporary protected status); stateless persons; permanent residents; immigrants reuniting with family; long-term residents of states that have membership in transnational organizations like the EU; immigrants originating from countries having special relationships with the host country (post-colonial relationships may engender variations on nationality that involve different sets of rules regarding border crossing and citizenship rights, for example; Puerto R icans have a very complex relationship with United States nationality, and Puerto R icans living in the United States are further differentiated from those who do not live on the mainland19); officially recognized national minorities, such as indigenous peoples or groups such as Roma; and, finally, people with miscellaneous atypical circumstances of nationality such as enemy combatants, orphans, and abandoned children, who cannot be placed with relatives in their country of origin.20 Under many circumstances, internally displaced persons may also have limited rights that render them semi-citizens, and people accused or convicted of some crimes may also be prevented from moving freely.21 To the extent that no viable options are available for homeless persons, they too could be regarded as having limitations placed on their rights to residence when they are forcibly removed from public spaces. “scholars have begun using terms such as ‘uncertain status’, ‘precarious status’, and ‘gradations of status’.” Peter Nyers, “No One Is Illegal Between City and Nation,” in Acts of Citizenship, eds. Engin F. Isin and Greg M. Nielson (London and New York: Zed Books, 2008), 165. 19 Perhaps the most complex cases of postcolonial differential rights of residence have resulted from the multi-layered and multiple iterations of rules for residents of former British colonies. Different rules apply to persons from each former colony and vary depending on individual political status as well; see http://www.ips.gov.uk/passport/ apply-eligibility-am-i.asp; last accessed October 10, 2008. For example, the United Kingdom extended British citizenship in 1999 to residents of dependent territories after it disentitled them in 1981; see http://news.bbc.co.uk/2/hi/uk_news/politics/298408. stm; last accessed October 10, 2008. In 2002, a 30-year-old rule, which had rendered 35,000 overseas citizens stateless, was revoked, allowing those persons to enter the U.K. and enjoy citizenship. See http://news.bbc.co.uk/2/hi/uk_news/2287701.stm; last accessed October 10, 2008. The case of postcolonial relationships is one of many examples of groups that do not fit into Hammar’s category of d enizen (discussed in Chapter 2), which one might initially suggest as a proxy for semi-citizen. 20 �� I have chosen not to include dual �� nationals in this list. Although dual �� nationality technically marks an anomalous relationship to nationality, it doesn’t place people in a position that alters either nationality radically. 21 Internally displaced persons (IDPs) are a complicated case but generally qualify because they have been forcibly expelled from their home. IDPs are “forced migrants” who “never left their country,” or who “remain within their country.” William B. Wood, “Forced Migration: Local Conflicts and International Dilemmas,” Annals of the Association of American Geographers 84(4) (1994): 607–634.


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Each group of ostensible non-nationals, from the invisible undocumented worker to the person about to swear allegiance to their adoptive homeland and receive a new passport, demonstrates an exception to generally accepted rules regarding nationality. Each is exercising some version of a right to residence. On one end of the continuum of nationality are people who aren’t welcome anywhere but are perpetually held within a nationstate’s borders pending the unlikely event they can be deported. On the other end are people who are fast-tracked to full citizenship because they hail from a country with a specific political relationship to the host country. Groups and individuals who occupy points in between are assigned a distinctive relationship to the sovereign borders they inhabit. Some may come and go as they please, participating in many forms of democratic politics. Others are restricted to remaining within the purview of an employer who has sponsored their temporary residence. Still others are restricted to jail cells, as they await trials or deportations that may or may not prove feasible. The rights they do enjoy are granted and administered by the states in which they reside.

IV. Administrative Rationality and the Autonomous Right of Nationality The three doctrines of citizenship, liberal norms, democratic norms, and administrative rationality, each award the right to reside and move freely in accordance with different priorities, and hence in varying combinations to different sets of people. As indicated in Chapter 4, administrative rationality channels the governmental priority of control over populations. Some, but not all, boundaries of human populations correspond to the borders of sovereign states, although for much of modern history states have been primary agents of administrative rationality. Administrative rationality has at times entailed open policies of immigration and even immigrant recruitment, for example, when the demands of settling territory require expanding a population. At other points, the imperatives of security or a shrinking economy can dictate foreclosing opportunities for visas and permission to stay within a country’s borders.22 The various distinctions made between people with varying forms of aspirations and commitments to a given sovereign state are linked to imperatives of governmentality. Europe, for instance, followed the goal of “zero immigration” until recently. See Randall Hansen, “The Free Economy and the Jacobin State, or How Europe Can Cope with the Coming Immigration Wave,” in Debating Immigration, ed. Carol M. Swain (New York: Cambridge University Press, 2007), 223.

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Forms of partial nationality can encourage certain types of migration in favor of others. For example, the need to maintain the workforce, or vulnerable sectors of the workforce, often drives governments to seek out people to enter the country if there is work that the native-born population is either unable to or chooses not to do. Immigration has also been recommended as an antidote to the low or negative birth rates of many western countries. Nationality is one of several powerful tools used by states to make legible and inscribe populations that might otherwise prove ill-defined and therefore ungovernable.23 Hannah Arendt describes nationality as the tool through which states take control of their populations.24 “Territorial closure against noncitizens serves vital and tangible state interests; it is essential to the modern territorial state and state-system. The same cannot be said for other modes of membership.”25 Nationality is a practical means for determining who can go where and under which (or whose) auspices. It organizes people within the state system. The claims of membership made by human populations that spread beyond sovereign physical borders, or those that are defined by historical ties, languages, or other national characteristics, can be sorted through based upon the rules that states deploy to enforce their sovereign domains. To the extent that postnational bodies administer rights associated with movement and residence, much the same is true.26

The metaphor of legibility draws upon the work of James Scott, while the idea of inscription is suggested by Shannon Stimson in her review of James Scott’s Seeing Like a State. Shannon Stimson, “Rethinking the State: Perspective on the Legibility and Production of Political Societies,” Political Theory 28(6) (2000): 822–834. Both metaphors are apt and evocative of the relationship between states and the statuses they assign members and would-be members. 24 Arendt, The Origins of Totalitarianism, 275. 25 Rogers Brubaker, C itizenship and Nationhood in France and Germany (Cambridge and London: Harvard University Press, 1992), 27. 26 �� The European �� Union is the primary exemplar of a postnational body that has superseded member-state rules regarding free movement. However the softening of such boundaries within the EU has been accompanied by the hardening of new borders that correspond to the Union itself. This “fortress Europe” exemplifies administrative rationality’s resilience outside of the context of the state. See Etienne Balibar, Politics and the Other Scene (London and New York: Verso, 2002), especially Chapter 5. Long-Term Residents of European States receive their status from states although the category was created through the agreement of member states of the European Union. On the derivative nature of European Union citizenship, see Lydia Morris, “Globalization, Migration and the Nation-State: the Path to a Post-national Europe?” British Journal of Sociology 48(2) (1997): 192–209. 23


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V. Moral and Ethical Norms and the Autonomous Right of Nationality In contrast to administrative rationality, liberal and democratic theories deploy moral and/or ethical reasons for offering people the right to residence and free movement. Liberal moral norms root distinctions in claims that can be organized by their relevance to political understandings of autonomy. The most unqualifiedly liberal understanding of the right to move freely does not admit the legitimacy of borders.27 Liberalism recognizes the entitlement of all autonomous persons. If rights are attached to rational capacities, there is no justification for denying anyone residence or free movement even if they hail from a far-flung place, or are culturally and/or ideologically different from the existing population. Any democratic theory will diverge from this to some degree, if only to root the right to residence and free movement in the existence of some kind of political collective. An even more divergent version of democratic theory, associated with ethical norms, accords different rights of residence and free movement to persons more or less able to fulfill specific roles identified by the ethical character of the demos. Rights of residence and free movement are conferred upon people who can or are likely to meet standards of democratic membership, whatever those may be. This demands distinguishing the culturally compatible from the incompatible, or designating some people as unable to fulfill the basic responsibilities of a democratic citizen. States may also recraft opportunities for nationality to promote or protect ideologies integral to the foundation of the state.28 As is true with administrative rationality, the problem of threshold issues raised in Chapter 2 reemerges; each of these forms of reasoning characterizes differently the thresholds that people must meet in order to qualify for citizenship. When joined, the resulting understandings of membership do not lend themselves to making binary distinctions. Capacities, either liberal/moral or democratic/ethical, cannot easily be pinned to precise definitions or even traits.29 �� Joseph Carens has described this position from several perspectives within the liberal tradition. Joseph Carens, “Aliens and Citizens: The Case for Open Borders,” The Review of Politics 49(2) (1987): 251–273. 28 �� For example, the United States has created a permanent exception to rules about immigration for people of Cuban descent. 29 In fact, Carens himself has called citizenship a threshold concept and argued that this ought to imply expansive membership in liberal states. Joseph Carens, “Membership and Morality: Admission to Citizenship in Liberal Democratic States,” in Immigration and Citizenship in Europe and the United States, ed. R. W. Brubaker (Lanham, MD: University Press of America, 1989), 31–50. See also Joseph Carens, “Democracy and 27

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B ecause liberalism and democracy are inextricably intertwined with each other and with administrative rationality, conflict over the thresholds people must meet to acquire different elements of citizenship is inevitable. No single resolution to the question of which logic ought to take precedence in decisions regarding residence and free movement makes itself apparent. Different interpretations of political right will yield different rules for awarding nationality. This makes the similarity of semi-citizenships associated with partial rights of nationality, although they may be generated by seemingly disparate nation-states, all the more striking. Despite their different histories and different relationships to all three doctrines, most states end up creating very similar combinations of the rights of nationality, often with very similar bases. The bases upon which nationality rights become disaggregated are strikingly similar in countries that are often posited as having divergent approaches to immigration. They also track historically. In the next two sections (VI and VII), I illustrate how immigration categories have been constructed to accommodate conflicts among liberal norms, democratic norms, and administrative rationality. Section VI looks at the ascription of nationality through the common lenses of jus soli and jus sanguinis, paying close attention to the fact that the two very different normative bearings of each rule nonetheless yields similar versions of partial nationality rights both throughout history and in different countries. Section VII closely examines the specific divisions related to immigration, most notably refuge and economic immigration. As is the case with ascription, differently positioned nation-states continually reproduce similar statuses of partial nationality for the foreign-born. In the course of examining these conflicts, different semi-citizenship statuses will emerge as representative of compromises brokered between conflicting logics.

VI. Semi-Citizenship and Ascribed Rights of Nationality Rules regarding the ascription of citizenship provide one means for examining long-standing forms of semi-citizenship derived from differential rights of nationality as well as the compromises struck between conflicting logics of citizenship. Jus soli and jus sanguinis express disparate Respect for Difference: The Case of Fiji,” University of Michigan Journal of Law Reform 25(3) (1992): 547–631.


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normative logics of citizenship. France, in employing a law of jus soli, the assignment of citizenship based upon place of birth, identifies itself as a liberal state where citizenship is assimilationist. G ermany, on the other hand, assigns citizenship based upon the law of jus sanguinis, the assignment of citizenship based upon blood lineage, thus expressing a closed and somewhat essentialized ethic of membership. As Rogers Brubaker notes, jus sanguinis both reflects and institutionalizes an ethnically defined nationhood that is absent or at least weaker in countries such as France that practice the more normatively liberal jus soli. Belying Brubaker’s ideal typical understanding of the ascription of nationality, however, are practices that acknowledge both the ambiguous thresholds inherent in each kind of reasoning (liberal, democratic, and administrative), as well as the validity of the other doctrines of citizenship. Christian Joppke has demonstrated how these practices are embodied, demonstrating that neither France nor G ermany represents an absolutely pure case of any single philosophy of citizenship or incorporation.30 Early in the history of the nation-state, administrative practices according rights of residence and free movement, as well as other rights associated with these statuses, reflected more doctrinal compromise than Brubaker’s use of France and G ermany as ideal types would suggest. Upon closer examination, and remarkably, very similar “states of exception” or semi-citizenships based on rights of partial nationality are replicated in supposedly disparate countries, despite their different dominant traditions. Liberal norms, ethical norms, and administrative rationality can be seen in conflicts over rights of nationality that generate compromises via semi-citizenships very early in the development of the state, on the one hand, and liberal democratic statehood, on the other. Brubaker chronicles the ways in which Prussian and German politics historically refer to types of membership as follows: native, resident, state-citizen (Staatsbürger), subject, and member of the state. At the top of the organizational structure is an über-type, Staatsangehörige, which denotes a general membership status. This is somewhat counterintuitive if we take the principle of jus sanguinis to imply cut-and-dried distinctions between people whose bloodlines qualify them for membership and people whose bloodlines do not. On its own, this expression of an ethical standard (in this case, connection to a privileged lineage) for membership doesn’t 30

Christian Joppke, Immigration and the Nation State (Oxford: Oxford University Press, 1999).

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seem to require interim statuses of membership. Jus sanguinis posits blood as the determinant of qualification for membership. As a tool for distinguishing between members and non-members, it is precise. There is no reason to imagine that a German state would be more in need of, or friendly to, semi-citizenships than Brubaker’s archetypical liberal state, France. French law also contained distinctions between different types of citizens. France, the supposed paragon of liberal, inclusive citizenship law, recognized variants in membership from the outset. France is often posited as representing a foil to the Prussian model because, on the face of it, an ascribed “Frenchness” based on French blood matters so little to membership in France, whereas in Prussia citizenship literally flows from one’s blood. Yet, from the perspective of the burgeoning state, the two rules generate a remarkably similar set of membership c ategories. “What mattered, as a determinant of one’s rights and obligations was not, in the first instance, that one was French or foreign: it was that one ‘belonged’ to a seigneurie, or that one was a noble or a clergyman; or that one was a Protestant or a Jew; or that one was a member of a guild, university, religious foundation, or parlement.”31 Joppke makes an important point in saying that former imperial powers such as Great Britain may understand rights differently than more isolationist countries such as the United States.32 Yet, similar legal concepts associated with partial forms of nationality can be seen in both of these contexts. By the seventeenth century, there were a variety of statuses in England that accorded their bearers varied rights. Some would-be immigrants to England sought denization, a process that transformed them into British subjects with limited rights. “Denization … bestowed only limited rights, making the denizen a sort of halfway member who ranked above the alien yet somewhat below the native-born or naturalized subject.”33 Denization brought with it restricted civil rights of property ownership as well as various political disabilities. Select immigrants could also apply for parliamentary naturalization, a status that brought Brubaker, Citizenship and Nationhood in France and Germany, 36. Peter Sahlins’s more recent work exhaustively documents the very important role of droit d’aubain (rights of property bequeathal) in delineating citizenship status in early modern France. See Peter Sahlins, Unnaturally French: Foreign Cities in the Old Regime and After (Ithaca, NY: Cornell University Press, 2004). 32 Joppke, Immigration and the Nation State. See Chapter 4. 33 James Kettner, The Development of American Citizenship, 1608–1870 (Chapel Hill: University of North Carolina Press, 1978), 30, 66. 31


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a fuller membership with more complete rights. Naturalization was as close as immigrants could come to full citizenship, but it too bore political disabilities.34 Denization and naturalization each bear a remarkable resemblance to the contemporary categories of permanent resident and naturalized citizen. The civil disabilities associated with property ownership, in the case of denizens, have generally been replaced in the case of permanent residents, but the political restrictions on them have remained.35 France and Prussia/ G ermany have a long history of generating interim statuses with disabilities that partially include the very people they otherwise exclude. The rules governing how an émigré changed category was different in each state, as did some of the specific disabilities associated with permanent residence in contrast to full rights of nationality, but the variants of foreignness in each of these two countries were similar in the status they imparted and the disabilities these individuals shared. The reasons have varied for describing someone as foreign, but the partial statuses such foreignness confers are similar to one another. In fact, it seems remarkable that the tremendous political changes of the past three centuries have not radically overhauled the presence of basic distinctions between nationals, permanent residents, and naturalized citizens. States continually seek to distinguish between people who are not welcome to enter their borders, those who are welcome to enter but not to participate as full citizens, and finally, those who are welcome to enter and participate in almost all activities associated with full membership.

VII. Refuge and Economic Migration If we look more closely at the reasoning offered for permitting immigrants different rights of residence and free movement, as well as other autonomous and relative rights, we can see even more clearly how liberal norms, democratic norms, and administrative rationality compete and force compromises in the form of semi-citizenships. Immigrants are most universally distinguished from one another based on the stated motivations for immigration, which in turn link to a normative ordering Kettner, The Development of American Citizenship, 1608–1870, 35, 66–67. European Union citizenship has eliminated some of these distinctions for memberstate nationals. However, political disabilities are still placed upon non-member-state nationals in most European countries. The regularization of Third Country National Status and immigration policy has been forecast but remains hypothetical in many important respects.

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of desert, but these distinctions are also governed by administrative rationality. At the most general level, there exist two significant categories of immigrants that most liberal democratic states use to order the immigrant population. They separate asylum seekers from all other would-be entrants, most of whom fall under the rubric of economic immigrants. There is nothing about refuge and economic immigration that demands that these categories should prevail as the primary way to differentiate among immigrants, nor does each logic of citizenship regard these categories in the same way. For instance, administrative rationality might understand, define, and prioritize persecution differently from the ways in which liberal or democratic norms would: the former might regard the population of persons seeking work or economic opportunity as an economic resource/threat, while the latter two might respectively regard such a population as deserving of a right to work or as culturally foreign. These differences have to be resolved in order to make practicable policies for admitting or excluding the foreign-born. Supporting the idea that multiple doctrines shape mobility is the fact that, in practice, asylum seekers and economic immigrants inherit very different statuses even after their requests to move between states have been accepted.36 Within each of the categories of economic immigration and asylum, several stronger and weaker versions of nationality and of other autonomous and relative rights are created. Notable among these are statuses that divide refugees and economic immigrant statuses into temporary and permanent statuses within each classification. Temporary asylees are separated out from refugees, just as temporary workers are from fully entitled immigrants; each temporary status comes with a very different set of rights of residence and free movement, as well as other rights, than is accorded by the permanent version of that status. Seyla Benhabib compares worker, refugee, temporary, and permanent statuses in the European Union context.37 A similar, but not coextensive, survey of the rights of differently situated foreign-born people in the 50 U.S. states offers insight into how the demise of welfare (as it used to be understood), and the passage of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, have shaped immigrants rights in

In most countries, asylum seekers receive a range of privileges not available to most other migrants. See Eleonore Kofman, “Contemporary European Migrations, Civic Stratification and Citizenship,” Political Geography 21(8) (2002): 1035–1054. 37 Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens – The Seeley Lectures (London: Cambridge University Press, 2004), 158–161. 36


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this country.38 While not identical, these studies display patterns indicating that along with the fact that nationality is disaggregated in similar fashion by democratic states, these disaggregated nationalities are often accorded very similar bundles of various other autonomous and relative rights. The rights of most non-nationals are limited, and can be changed more readily and less consensually than can the rights of semi-citizens who retain a strong set of relative rights, including those of participation.39 Refugees and work permit holders have various privileges of residence along with circumscribed rights of free movement and often hold partial bundles of other autonomous and relative rights of citizenship in the United States and most European states. Even “undocumented” immigrants have a few limited rights that pertain to the circumstances of their residence, as well as their social and civil opportunities.40 Temporary workers find themselves without political rights, few social rights, and weak civil rights, according to European laws as well as U.S. law. By contrast, refugees are accorded far more robust sets of each type of right, with the exception of political rights.41 A. Asylum Political philosophers trace the origin of the idea of asylum in modernity to Grotius.42 In Europe, asylum was written into the law far earlier than it was in the United States. England enacted an asylum law for victims of religious persecution in 1708.43 France, too, established a legal principle Wendy Zimmermann and Karen Tumlin, “Report: Patchwork Policies: State Assistance for Immigrants Under Welfare Reform,” (Washington, D.C.: The Urban Institute, 1999). 39 In Europe, this is seen in debates regarding the status of Third Country Nationals. See Kofman, “Contemporary European Migrations, Civic Stratification and Citizenship.” 40 Right-wing political parties have made hay from supposedly generous programs for immigrants and asylum seekers in Europe and, to a lesser degree, the United States, while scholars such as Peter S chuck have accused the United States of having similar trends that end up “devaluing” citizenship. Peter Schuck, “Membership in the Liberal Polity: The Devaluation of American Citizenship,” in Immigration and Citizenship in Europe and the United States, 51–66. 41 Here refugees does not refer to persons granted Temporary Protected Status (TPS). T PS does not accord the same rights as asylum does. See Robin Jacobson, “Characterizing Consent: Race, Citizenship, and the New Restrictionists,” Political Research Quarterly 59(4) (2006): 645–654; see also data available at http://www.fairus.org. 42 Hugo Grotius, The Rights of War and Peace (Washington: M. W. Dunne, 1901). 43 �� The law was revoked only four years later; however, the opening of asylum opportunities in British colonies obviated some of the need for �� England to serve as a �� refugee haven. See Atle Grahl-Madsen, “The European Tradition of Asylum and the Development of Refugee Law,” Journal of Peace Research 3(3) (1966): 279. 38

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of asylum well before the twentieth century. In 1832, a series of French laws secured the right of asylum generally, as well as a special set of rights for those who sought asylum in France.44 Because immigration law in the United States was not nationalized until late in the nineteenth century, one must look to public discourse about immigration (and therefore asylum), as well as to state law, to glean a sense of the politics and administration of immigration in colonial and early U.S. history.45 Immigration and asylum were subjects of some contention early in U.S. history. One of the outcomes of this perpetual wrangle was a continuous strain of argument lasting from the nineteenth through the twentieth centuries that defended the conditional acceptance of immigrants who sought relief from oppressive political circumstances.46 Clearly refugees played a defining role in immigration during the colonial period.47 Thomas Paine wrote of the United States’ duty to accept persecuted Europeans in Common Sense.48 In his discussion of early American responses to debate over immigration, Daniel Tichenor cites Thomas Jefferson’s proclamation that the United States ought to “consecrate a Grahl-Madsen, “The European Tradition of Asylum and the Development of Refugee Law,” 280. 45 Events surrounding the Chinese Exclusion Act lead many scholars to cite 1875 as the first point at which immigration law in the United States was nationalized. See Victor C. Romero, “Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy: Devolution and Discrimination,” New York University Annual Survey of American Law 58 (2002): 378. Others (see Grahl-Madsen, “The European Tradition of Asylum and the Development of Refugee Law”) have cited the earlier 1804 Act that established a uniform law of naturalization; however, the states retained a great deal of power to govern immigration in the wake of the passage of the 1804 Act. This might suggest that there was no immigration policy in the early years of the United States. However, this overlooks the fact that states crafted policies to be consistent with the few national standards that were imposed. This is structurally similar to circumstances in G ermany, particularly prior to the influence of European Union standards for member-state nationals, where Länder officials make decisions about asylum and work permits that in effect governed immigration for many people. 46 For a discussion of the general conditions of acceptance, see Gerald Neuman, “The Lost Century of American Immigration Law,” Columbia Law Review 93(8) (1993): 1833–1901. Neuman identifies five basic variables associated with immigration restrictions and traces them through early U.S. history. 47 Michael J. Wishnie, “Immigrants and the Right to Petition,” New York University Law Review 78 (2003): 667. 48 Thomas Paine, Basic Writings of Thomas Paine: Common Sense, Rights of Man, Age of Reason (New York: Wiley Book Company, 1942). It should be noted that elsewhere Paine defended a notion of asylum that included economic immigrants, a principle that was not consistent with the general usage of the term in Europe or the United States, and which did not become incorporated into U.S. asylum law once it was nationalized. See Cecil D. Eby, “America as ‘Asylum’: A Dual Image,” American Quarterly 14(3) (1962): 485. 44


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sanctuary for those whom the misrule of Europe may compel to seek happiness on other climes.”49 Yet Jefferson was opposed by factions that believed that many of those who sought asylum would not assimilate into American society. At the state level, asylum was not only practiced as a matter of principle but also because asylum seekers were perceived to be desirable settlers.50 As nationalization occurred, asylum slowly became woven into the laws that shaped immigration. B. Non-Refugee Immigrants E conomic immigrants form the bulk of non-refugee immigration and are accorded different semi-citizen statuses than are refugees. As is the case with refugees, the history of temporary and permanent economic migrant status is longer than often recognized. Many scholars of immigration mark the post-war period as a turning point for the creation of administrative categories that divide economic migrants into various differentiated legal classes.51 In some ways, this is an accurate assessment. Europe experienced very little non-European immigration until the latter half of the twentieth century. The creation of modern bureaucratic apparatuses to administer immigration is therefore a relatively recent phenomenon. However, this bureaucratic apparatus relies upon a set of categorizations and rationalizations that reach back several centuries. The trajectory of immigration into the United States and Europe reveals the lengthy history of these categories. Prior to World War II, immigration laws in Europe were regarded not only as a means to control citizenship but also as a tool for retaining population.52 Exit was as much, if not more, of a concern than entry. Substantial labor migration into France has been recorded since the late 1800s.53 Contrary to common assumptions, state surveillance of French borders and the individuals who crossed them to enter France developed during Daniel Tichenor, Dividing Lines (Princeton and Oxford: Oxford University Press, 2002), 55. 50 For example, see Warren R. Hofstra, “The Extention of his Majesties Dominions: The Virginia Backcountry and the Reconfiguration of Imperial Frontiers,” The Journal of American History 84(4) (1998): 1281–1312. 51 See for example, Tichenor, Dividing Lines. 52 Bryan S. Turner, “The Enclave Society: Towards a Sociology of Immobility,” European Journal of Social Theory 10(2) (2007): 287–304. 53 John Horne, “Immigrant Workers in France during World War I,” French Historical Studies 14(1) (1985): 57–88. See also Gerard Noiriel, The French Melting Pot: Immigration, Citizenship and National Identity (Minnesota: University of Minnesota Press, 1996), particularly Chapter 2. 49

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World War I.54 Further contradicting common beliefs about immigration in France is the fact that much of this labor migration was temporary, therefore indicating that even assimilationist France – to use Brubaker’s term – played host to a class of foreign-born émigrés that were neither entirely citizen nor foreigner.55 These workers were contract employees who held identity cards and were constrained in their right to free movement and employment much in the same way as contemporary temporary workers. Similarly, evidence indicates that labor migration occurred in Germany at least as early as the nineteenth century and led to the creation of categories indicating statuses of foreigner and foreign worker.56 The commonly held belief that immigration was not regulated prior to the early twentieth century belies an important truth about migration to the United States and within Europe.57 Immigration was in fact regulated, but this regulation was accomplished primarily by sub-national bodies.58 Leaving aside slaves who were forcibly brought and sold as chattel, and who were therefore not immigrants, there were two main categories of economic migrants in the early U.S. republic.59 The first type of economic migrant is the much-narrated prototype of the European who left seeking either relief from famine and other economic hardship, or who saw the possibility for enrichment not possible in a class-bound Noiriel, The French Melting Pot: Immigration, Citizenship and National Identity. Horne, “Immigrant Workers in France during World War I,” 79. 56 See Andreas K. Fahrmeir, “Nineteenth Century German Citizenships: A Reconsideration,” The Historical Journal 40(3) (1997): 721–752. See in particular 733, 736. 57 Rogers Brubaker points out that there really was no consistent regulation of immigration in the United States or Europe prior to the nineteenth century. Brubaker, Citizenship and Nationhood in France and Germany, 65. More recently, Aristide Zolberg has offered a revised history of immigration regulation in the United States that makes the case that in fact immigration regulation has a much longer history – particularly when seen through the eyes of individual states. However, Zolberg exaggerates the degree to which moments like the Passenger Act were reflections of thoughtful responses to immigration rather than frantic assertions of racial hierarchy. Aristide Zolberg, A Nation by Design (New York: Russell Sage, 2006); on the Passenger Act, see 110–111. 58 In the United States, this gave tremendous powers to the states while, in a country such as G ermany, the principalities and eventually Länder were empowered to regulate immigration. As will be discussed below, France did not regulate immigration as tightly until World War I . Brubaker remains correct that regulation was inconsistent; however, it also remains the case that the state (through the arms of sub-national bodies) did exercise control over the status of immigration and immigrant residents. 59 In setting aside the subject of slavery, which represents a significant category of partial nationality and citizenship more generally, I intend to indicate that forced migration must be considered separately from freely chosen economic migration, even if the economic circumstances driving the latter group are so severe as to perhaps constrain choices in other ways. 54 55


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Europe. Millions of such immigrants arrived in American ports during each century of U.S. history, only to be replaced by non-European immigrants with similar designs in the past 50 years. These individuals came freely, and while constrained by economic necessity, bore no additional obligations beyond those associated with assimilation and incorporation that their host country expected. Alongside these relatively free migrants were individuals whose choices were somewhat more constrained, notably slaves and indentured servants. Indentured servitude has a lengthy history in the United States that remains relevant in contemporary politics. Estimates indicate that indentured servants may have provided between half and two-thirds of white immigration between the 1630s and independence.60 Like many waves of economic migration in different times and places, the indentured were disproportionately young and male. Legal regulation of the terms of indenture was “remarkably regular” throughout time and the diverse geography of the colonies.61 Indentured servants had restricted political opportunities and civil rights, notably the right to free movement and the right to petition, as long as they had debts to repay. While the phrase “indentured servitude” rarely crops up in discussions of contemporary immigration in the United States, it has recently been invoked in reference to temporary labor programs that tie workers not to agreements with the state, but instead to individual private employers whose discretionary power confers upon or denies individual recruits the right to remain within the host country’s borders.62 It is also the case that the category of workers who are paying off debts remains viable. The flourishing market in human smuggling, despite universal condemnation, has sent indenture underground where the terms of release grow ever dearer and promise only the life of the undocumented worker at the end of the journey.63

Mary Sarah Bilder, “The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce,” Missouri Law Review 61 (1996): 753. 61 Bilder, “The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce,” 756. 62 Bob Herbert, “Indentured Servants in America,” New York Times 12 March (2007). Available at http://select.nytimes.com/2007/03/12/opinion/12herbert.html?_r=1; last accessed March 12, 2008. 63 For a thorough discussion of human trafficking in both the United States and Europe, see Friedrich Heckmann, Tanja Wunderlich, Susan F. Martin, and Kelly McGrath, “Transatlantic Workshop on Human Smuggling Conference Report,” Georgetown Immigration Law Journal 15(1) (2000): 167–181. 60

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Immigration policy in the post-war era reinforced the existing temporal distinction between the general category of “resident aliens” and immigrants. In the United States, the passage of the 1965 Hart-Celler Act, which created an agenda of priorities for immigration, appears to mark a significant departure from the approaches to immigration in the three decades prior. The most obvious change came in the form of an end to the national origins restrictions that had been in place since the 1920s.64 Yet Hart-Celler also paved the way for the re-creation of familiar categories of immigrants, particularly categories for economic immigration, to fill gaps in the U.S. labor market, and, in so doing, it drew striking parallels between European and American policies.65 Following the repeal of the quota-based system, the distinction between temporary and permanent immigrants remained administratively relevant within a vastly changed landscape of priorities. Guestworker programs have become readily identified with the postwar immigration policies of influential countries such as France and Germany. These programs sought to recruit temporary laborers to shoulder burdens of post-war economic recovery that native-born citizens were unwilling and, during periods of nearly full employment, unable to do. And in most cases the guests proved to be permanent fixtures of the states that recruited them. In the case of G ermany, although regulators had gone to great pains to segregate guestworker housing, many of the predominantly Turkish temporary laborer population began to integrate themselves into German society. In France, this process was made even more complex by the fact that the French government had deliberately sought to recruit workers from former French colonies where French was spoken.66 The unwillingness of European countries, and now the United States, to fully welcome guestworkers and their families has left a legacy of both animosity and complex citizenship quandaries. The U.S. has pursued a slower but equally steady course in regard to temporary labor migration. Temporary worker immigration is not unprecedented in U.S. history. Some of the earliest Chinese immigrants were laborers who were barred from naturalizing by the Chinese The National Origins Quota Act was passed by Congress in 1924, but all provisions were not in effect until 1929. 65 Hart-Celler also created a number of new categories, including one for defectors from Communist countries, which Lyndon Johnson further subdivided upon passage of the bill by awarding a special parole status to all Cuban refugees. See Tichenor, Dividing Lines, 222. 66 James R. McDonald, “Labor Immigration in France, 1946–1965,” Annals of the Association of American Geographers 59(1) (1969): 116–134. 64


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Exclusion Act, while the short-lived Bracero Program encouraged people of Mexican descent to come to the United States for limited periods, and their stay here was contingent upon employment in certain industries. Following the demise of the Bracero program, U.S. immigration policy expressed skepticism about temporary worker programs, but labor shortages encouraged their return in the form of the H-Class visas. Although the United States did not recruit laborers with the same vigor that post-war European countries did, it has managed to achieve very similar results with related policies regarding temporary labor.67 This has been a dual-pronged movement. The most readily apparent attempts to recruit temporary labor have come in the form of H1-B and H2-B visas. These visas create guestworker programs for skilled and unskilled workers willing to come to the United States for short terms of employment. H1-B visas recruit skilled labor to fill positions ranging from computer programming to nursing. H2-B visas allow U.S. employers to sponsor unskilled laborers to do work such as migrant farming. HB workers rely on employers for renewal of their visas and hence for their semi-citizenship.68 The implicit alternative to explicit guestworker programs is not substantively much different. Since the early 1980s, the United States has had a “benignly neglectful” attitude toward illegal immigration. Illegal immigration first became apparent in the early 1980s.69 Concern regarding unchecked borders with Mexico spurred the 1986 Immigration Reform and Control Act in which Congress authorized amnesty for undocumented agricultural workers who could demonstrate that they had been employed in the United States for 90 days in the year prior to its passage, as well as undocumented immigrants who had resided in the United States continuously since 1982 .70 It simultaneously imposed more serious penalties on employers discovered to be hiring undocumented laborers. Skeptics of European Union claims regarding open borders point to a similar “state traffic in illegal ‘aliens’” within the The Bracero program, which brought Mexicans into the United States on temporary work visas, predates the H2 visas; however, the H B visas have had much stronger staying power. 68 Julie R. Watts, “The H-1B Visa: Free-market Solutions for Business and Labor,” Population Research and Policy Review 20(1–2) (2001): 143–156. 69 �� Illegal immigration in the United States was not recognized by the federal government prior to 1875. However, states enacted rules regarding immigration that created categories of deportable immigrants who would have fulfilled the definition of illegal immigrant if they managed to evade deportation either through oversight or flight. See Neuman, “The Lost Century of American Immigration Law,” 93. 70 On the French case, see Michele Tribalat, “How Many People in France are of Foreign Descent?,” Population: An English Selection 4 (1992): 58. 67

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boundaries specified by the Schengen Treaty.71 The U.S. is also not alone in its granting of amnesty to undocumented long-term foreign residents. France enacted a law in 1989 that allows for illegal aliens who have resided in France for 15 years to have their status made legitimate. More recently, Spain, Italy, Portugal, and Greece have also offered amnesties in attempts to stem the growing tide of illegal immigrants entering these countries.72

VIII. Layering Doctrinal Compromises Semi-citizen statuses exist in part to embody compromises between the conflicting logics that ground citizenship. Compromise is necessary where doctrines diverge. Because liberal norms, democratic norms, and administrative rationality overlap at points, compromise will not always be necessary. The doctrines overlap, so that we could identify, for example, a version of liberalism in which property is naturalized, making it possible to recognize political oppression as the only kind of infringement on rights through which a concomitant right to refuge is established. The argument here is not that liberal, democratic, and governmental logic are mutually exclusive and constantly in conflict. Rather, it is that they overlap imperfectly, creating an ever-present potential for conflict. Democratic norms and governmentality are both children of very early versions of liberalism. However, each doctrine has a distinct emphasis. In some circumstances, liberal norms support free movement as an extension of the rights of individuals; democratic norms support free movement as a means of extending self-rule to oppressed persons; while free movement is sometimes supported by an administrative rationality that seeks to fill holes in a labor market or a shrinking/aging population. Yet, if the employment market or public health concerns change, or if migration threatens the integrity of the existing demos, then democratic norms and administrative rationality will not support free movement. A compromise must then be reached. The result is that rights are accorded or denied partially and differently to different people. I illustrate below how this occurs in the context of the right to move across borders and Ginette Verstraete, “Technological Frontiers and the Politics of Mobility in the European Union,” in Uprootings/Regroundings: Questions of Home and Migration, eds. Sara Ahmed, Claudia Casteneda, Anne-Marie Fortier, and Mimi Sheller (Oxford and New York: Berg, 2003), 225–249; see especially 228. 72 Jason DeParle, “Border Crossings: Spain, Like the United States, Grapples with Immigration,” The New York Times, 10 June (2008). Available at http://www.nytimes. com/2008/06/10/world/europe/10migrate.html?fta=y; last accessed June 10, 2008. 71


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to reside within a territory. The rights to free movement are accorded differently to people as elements from all three doctrines of citizenship are invoked simultaneously. Further, the rights to free movement and residence themselves are carved into limited circumstances of free movement and longer or shorter periods of legal residence. Doctrinal compromise occurs in the context of the “state-as-cockpit” where political institutions provide venues for the expression of different doctrines and for the conflicts that ensue when the doctrines dictate different rules regarding citizenship. Examining the reasoning offered for creating differential non-national statuses associated with varying rights of residence and free movement reveals quiet but intense conflict between liberal norms, democratic norms, and administrative rationality. The disaggregation of nationality facilitates the processing of otherwise unordered claims on liberal democratic states. The ways in which these accommodations have remained consistent through both time and space create predictable forms of semi-citizenship that reflect ongoing compromises, struck in the context of the state, between normative theories and governmentality/ administrative rationality. Both liberal and democratic theories often refer to “impetus for arrival” to award the right to immigrate and to privilege some entrants over others. This grounds the differentiation and preferential treatment between asylum seekers and most other immigrants. The distinction between the motivations of refugees and immigrants who seek economic opportunities reflects a commonly recognized set of norms associated with the disaggregation of autonomous and relative rights of partial nationals. Yet, it is not a distinction that can be readily identified with a single normative tradition; nor does any doctrine of citizenship convincingly make a case that refugees are entitled to the augmented autonomous and relative rights that their status confers. Different reasoning will privilege different groups. Refuge appears to express a universalizing liberal principle of a human right to live free of fear. However, the terms in which fear are defined narrow this human right to accord it only to people who are politically oppressed.73 Economic hardship of the sort that encourages economic migration is not included in this Article 1 of the 1951 Convention Relating to the Status of Refugees defines a refugee as “[a] person who is outside his/her country of nationality or habitual residence; has a well-founded fear of �� persecution because of his/her �� race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.” The document can be read on the website for the United Nations High Commissioner for Refugees: http://www.unhcr.ch.

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definition even though extreme poverty undeniably induces fear.74 Thus people fleeing political persecution come to be designated as refugees by democratic logic, while people fleeing poverty are not.75 The principle of refuge is so rooted in historicized political commitments that statuses equivalent to refugee statuses are regularly accorded to persons who come from countries with whom receiving countries have special political relationships. This can mean postcolonial ties or other forms of alliance.76 Postcolonial relationships may engender variations on nationality that involve different sets of rules regarding border crossing and citizenship rights. The differences between Puerto R icans living in Puerto R ico and those who live on the mainland bears this out. Refugee status almost always comes with autonomous and relative rights not available to economic immigrants upon their arrival, including accelerated eligibility for citizenship and various social and economic entitlements. This makes it a privileged status in comparison with others that are held by non-refugee immigrants.77 The more rooted M ichael Walzer’s discussion in Spheres of Justice remains the seminal statement on this in the contemporary literature on membership; Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983). However, the differentiation is nearly ubiquitous and can be found in sources as diverse as Kant’s “Perpetual Peace: A Philosophical Sketch” (http://www.mtholyoke.edu/acad/intrel/ kant/kant1.htm; last accessed October 16, 2008) and Will Kymlicka’s Multicultural Citizenship. Most recently this has been the basis for Linda B osniak’s discussion of citizenship and alienage law. Linda Bosniak, The Citizen and the Alien (Princeton: Princeton University Press, 2006). 75 This is not meant to imply that all political asylum claims are accepted or even given a hearing. They most certainly are not, and the manipulation of asylum standards and quotas is a long-standing method of closing borders. 76 Instances of special immigration statuses evolving out of political relationships occur regularly. On this subject generally, and with attention to the British case, see David Cesarani, “The Changing Character of Citizenship and Nationality in Britain,” in Citizenship, Nationality and Migration in Europe, eds. David Cesarani and Mary Fulbrook (New York: Routledge, 1996), Chapter 4. Also see A. J. Jowett et. al., “The British Who Are Not British and the Immigration Policies That Are Not: The Case of Hong Kong,” Applied Geography 15(3) (1995): 245–265. In describing the recent history of differentiated immigration statuses in Spain, one study cites “a privileged status … for foreigners from Latin America, Portugal, the Philippines, Equatorial Guinea, Sephardic Jews, Andorrans, and Natives of Gibraltar.” These persons were exempt from visa requirements and were given preference with regard to residence and work permits. Kitty Calavita and Liliana Suárez-Navaz, “Spanish Immigration Law and the Construction of Difference: Citizens and ‘Illegals’ on Europe’s Southern Border,” in Globalization Under Construction, eds. Richard Warren Perry and Bill Maurer (Minneapolis, MN: University of Minnesota Press, 2003), 113. 77 This has led many countries – recently G ermany, France, and England – to restrict the availability of asylum slots in an effort to reduce the overall burden of the foreign-born population.

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claims of a democratic theorist will likely find this privileging of the refugee over the economic immigrant entirely convincing. To be sure, a democracy predicated upon some conception of self-rule must accord an appropriate priority to the entreaties of people whose rights to selfgovern are threatened. Yet, it might also be observed that under conditions of political freedom individuals are also invariably assumed to be responsible for their own economic well-being. This kind of reasoning thus drives a wedge between political oppression and economic oppression and rank-orders one as more harmful than the other. However, liberal theory might disagree with this distinction and take into consideration a wider set of conditions to determine an individual’s autonomy. Certainly, such a theory will not as readily recognize the distinction identified above between political oppression and economic hardship.78 If rescuing people from any kind of fear or suffering that subverts their autonomy is the purpose of asylum, it becomes difficult to identify and defend the distinction between forms of suffering caused by political injustice and those caused by economic injustice. A government that needlessly plunders the coffers of its people imposes just as much suffering as one that imprisons its citizens unjustly. From the vantage point of many a would-be émigré, any distinction between the two is meaningless. Similarly, administrative rationality need not prioritize the distinction between the motivations of refugees and economic immigrants, and might be more concerned about the size of an immigrant population, its potential to pose a threat to order or public health, or its specific relationship to the labor market. Despite these concerns, the singling out of asylum seekers for preferential immigration treatment remains one of the most widely respected distinctions made among immigrants. It represents an instance in which democratic norms dominate the framing of a citizenship category. A telling indication of this fact lies in the process that led to the introduction of the legal category of “refuge” into U.S. and western European national law. Refuge, as it is currently known, entered into immigration law in response to the displacement of people during World War II. It was imposed on the G erman Basic Law by the Allies. Subsequently, it was adopted by the United States with the explicit intent to offer protection for people fleeing communism. By contrast, no such measures were T. H. Marshall’s framework for supporting social rights of citizenship clearly expresses an identification of political liberty with the economic circumstances of citizens. T. H. Marshall, Citizenship and Social Class and Other Essays (Cambridge: Cambridge University Press, 1950).

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enacted during the Great Depression, and in fact this period produced stringent enforcement of immigration restrictions in the United States with no explicit provisions for refuge.79 We can see evidence of compromise that includes governmental imperatives by examining exceptions to refugee and economic immigrant statuses. These exceptions subdivide these concepts in ways that accord different orders of semi-citizenship to some of the people motivated to flee fear or to seek economic opportunity. Both refugees and economic immigrants are split by temporary and permanent versions of the statuses that come along with bundles of rights that are disaggregated still further. Temporary labor accords limited rights of residence, as well as other autonomous and relative rights, to guestworkers. The universality of the guestworker phenomenon bolsters the claim that liberal democratic states create very similar, and temporally and spatially consistent, administrative categories of partial nationals. Temporary labor, along with many of the partial national statuses in this chapter, have predictable if constrained relationships to the sovereign territories they inhabit or regularly visit. Countries with guestworker policies tend to attach limited civil and social rights to this status and generally exclude guestworkers from political participation. This accords them fourth-order semi-citizenship, distinguishing them from other economic immigrants. Like temporary labor, temporary versions of refuge represent further compromise between logics of citizenship in the form of semi-citizenships. Temporary asylum revises the privileges associated with refugee status. The classification of Temporary Protected Status (TPS) was first broadly employed as a response to the overwhelming wave of refugees generated by conflict in the former Yugoslavia. G ermany was the first to widely instantiate such a category, but France and England soon followed. While temporary protection has not eroded the basic right to asylum, it has essentially put limits on the number of refugees that any one country will permit to remain in their territory permanently.80 Semi-citizens who hold T PS do not have the same rights of permanent residence The term “economic refugee” remains a legal non-category whose falsity is made explicit in the explanations of the UN High Commissioner for Refugees definition of “refugee” that refer multiple times to the term “economic refugee” as a “misnomer” that is “not correct” because economic migrants leave their homes voluntarily and can return without fear. See http://www.unhcr.org.au/basicdef.shtml; last accessed October 16, 2008. 80 See Davor Sopf, “Temporary Protection in Europe after 1990: The ‘Right to Remain’ of Genuine Convention Refugees,” Washington University Journal of Law and Policy 79


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as do refugees, nor do they have equal access to other autonomous or relative rights. They have fourth-order semi-citizenship. In doctrinal terms, these temporary versions of refuge and economic immigration represent a reassertion of administrative imperatives to impose governmental imperatives on normatively defined categories. Temporary statuses turn some refugees from first-order semi-citizens into fourth-order semi-citizens by limiting their autonomous and relative rights. Economic immigrants accorded only temporary work visas encounter much the same transformation. In each case, the carving out of a group of people only accorded a temporary version of an immigration status allows the state to limit its commitment to normative principles. Workers can thus be recruited to meet the needs of labor markets without any obligation on the part of the state to offer them extensive autonomous or relative rights. And the terms on which refuge is accorded can be tailored in ways that reduce the commitment of resources to needy mobile populations. Temporary refuge also permits states the option to regularly reassess any commitment to refugees on temporary visas. Whereas it was once the case that the state only exercised on one occasion the option to decide the circumstances under which an individual could not return to their home country without fear of persecution, it may now do so periodically or continually. The carving out of this exception represents the reassertion of administrative rationality over the liberal norm that privileges refuge. Thus, emergencies that might generate mass migrations can be acknowledged without allowing them to trample the dictates of sovereignty. These compromises are not without their problems. In the case of temporary labor, receiving states have also evidently been unprepared for the tenacity with which guestworker populations have become rooted in their adoptive homes. In some cases, guestworkers have successfully demanded rights of residence even when full citizenship has been the most difficult to obtain. Temporary Turkish workers in G ermany stayed put despite their inability to naturalize, a fact which likely contributed to recent changes in naturalization procedures that give the second generation more routes to achieving rights than were previously available.81 In 6 (2001): 109; Joan Fitzpatrick, “Temporary Protection of Refugees: Elements of a Formalized Regime,” American Journal of International Law 94 (2000): 279–306. 81 On Turkish migration to G ermany, see Stephen Castles, “The Guests Who Stayed – The Debate on ‘Foreigners Policy’ in the German Federal Republic,” International Migration Review 19(3) (1985): 517–534. Although the cases he cites fall outside of the scope of this study, Kamal Sadiq convincingly shows how artificial documents come to provide their bearers with some very real rights of residence, free movement, and

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this case, governmental influences on administrative rationality actually failed to fully trump other doctrines of citizenship. Like undocumented persons who receive amnesties, some guestworkers manage through resilience to achieve a higher order of semi-citizenship. With regard to temporary labor, G ermany and the United States now have a great deal in common. In the United States, undocumented workers have grown roots through their children, who by dint of being born on U.S. soil, automatically gain citizenship.82 In the interim, both G ermany and the United States have even allowed non-nationals, which in the United States has included undocumented workers, access to civil and social rights typically associated with full citizenship. In France, attempts to deport immigrants from former A frican colonies have been unsuccessful and many such persons have since naturalized.83 From this point of view, most guestworkers begin to resemble the historical category of “indentured servants.” They arrive under constrained but formally sanctioned conditions, and then they evolve into a more permanent, if not fully enfranchised, status. Thus even ostensibly temporary forms of semi-citizenship rooted in partial nationality appear to be quite durable, even as their members graduate to full citizenship through amnesties (U.S.), changes to citizenship laws ( G ermany), or hard-fought battles over regularization ( France and the U.K.).

IX. Flexibility and Category Shifts In addition to brokering doctrinal compromises, semi-citizenships also allow nation-states the flexibility to accommodate changes in material, social, and political circumstances that require adjustments to citizenship rights and to the population of rights-bearing individuals. The fact that many semi-citizenships have proven durable enough to persist through several centuries precludes neither their revision nor the generation of new statuses. One of the ways that semi-citizenships allow flexibility is by creating the opportunity for new or newly renegotiated doctrinal compromises to be embodied by shifting people across different kinds of even some social and political rights in South and Southeast Asia. See Kamal Sadiq, Paper Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries (Oxford and New York: Oxford University Press, 2009.) 82 This has given rise to the concept of the “anchor baby,” which conservative opponents of jus soli and immigration have publicly denounced. 83 See Noiriel, The French Melting Pot: Immigration, Citizenship and National Identity.


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semi-citizenship. A recent example of category shifting that invokes the autonomous rights of nationality involves the shifting of undocumented people via “amnesties,” which allow them to regularize their status under certain circumstances. Regularization is the product of the renegotiation of a doctrinal compromise from one in which exclusionary norms had held sway, to one in which more universal liberal norms are more influential, but, crucially, in which administrative rationality also asserts itself. To eschew temporary labor entirely indicates deference to the dictates of democratic norms of settlement and Americanization. On the flip side, as desirable as undocumented immigration, i.e., an unstated open borders policy, might be to a free market liberal, it violates important principles of administrative rationality. Temporary work visas embody the current compromise between these positions. In the United States, temporary visas allow employers to pay temporary workers differentially and relax work environment and child labor standards. However, some have argued that amnesties encourage illegal immigration.84 Amnesties offer legal, citizenship-track status to a class of formerly illegal aliens and, at the same time, they usually perpetuate, and in some cases strengthen, penalties for illegal immigration and the employment of undocumented laborers. In looking at the motivations of the main players in the debate about work visas and amnesties, one can observe a few interesting patterns. While citizens may worry about the costs of immigration, business owners worry about the costs of halting immigration. George Borjas has provided convincing evidence that immigrants suppress wages, which provides what can probably be considered the largest incentive for corporations and small business owners to oppose immigration restriction. Foreign workers make up between 5 and 10 percent of the labor force.85 Removing this population, or halting economic immigration and allowing generational effects to erode existing foreign workers, would therefore have a significant impact on the economy.86 However, there are less tangible reasons, or at least In fact, while The Immigration and Control Act was intended to provide resources to deter illegal immigration, at best it was found to have no negative effect on the movement of undocumented migration from Mexico in years following its passage. See Katharine M. Donato, Jorge Durand, and Douglas S. Massey, “Stemming the Tide? Assessing the Deterrent Effects of the Immigration Reform and Control Act,” Demography 29(2) (1992): 139–157. 85 George J. Borjas, Heaven’s Door (Princeton: Princeton University Press, 1999), Chapter 4. 86 Philip L. Martin and J. Edward Taylor, “Managing Migration,” in Global Migrants, Global Refugees: Problems and Solutions, eds. Aristide R. Zolberg and Peter M. Benda (New York and Oxford: Berghan Books, 2001), 99. 84

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motivations, that are more difficult to quantify, and that are also at play here. These reasons not only explain the business community’s commitment to relaxed immigration norms, but also their commitment to retaining both temporary/ guestworker visas and the existing population of undocumented workers. Unlike green c ard holders and citizenship-track i mmigrants, both temporary and undocumented workers are exempted from a variety of federal regulations that cost employers a great deal of money. Undocumented i mmigrants save employers money on social security, pension plans, healthcare costs and a range of other benefits that native-born workers and green c ard holders require. Businesses often pay illegal i mmigrants a fraction of the minimum wage. An important intangible asset gained by employing undocumented workers lies in their vulnerability and exclusion from many state protections. Business owners have opposed amnesties in favor of H2 v isas because this will preserve their ability to suppress wages and extract higher profit margins from the low end of the wage pool. H -2B visas are obtained at the discretion of the employer and last only one year. If a worker wishes to receive another H -2B visa, they must defer to their employer.

X. The Curious Case of Postnational Citizenship Semi-citizenship makes the institution of citizenship more flexible by allowing the expansion and contraction of the rights considered fundamental to citizenship. In this section, I consider the expansion of autonomous rights to include new rights related to free movement and residence. As mentioned in Chapter 2, novel forms of autonomous rights could span anything from reproductive freedoms to environmental rights. Postnational citizenship has been posited as offering new kinds of autonomous rights. In 1990, Jürgen Habermas sparked the debate regarding the current and future status of the relationship between citizenship and nationality. He went on to argue that the two were rapidly becoming divorced from one another.87 Habermas bases his claims on evidence of growing cosmopolitan forms of citizenship. He was joined later by scholars such as Yasemin Soysal who proclaimed the birth of postnational citizenship from the wombs of the United Nations and the Jürgen Habermas, “Citizenship and National Identity: Some Reflections on the Future of Europe,” Praxis International 121 (1992): 1–19.

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European Union.88 Where Habermas was content to focus mostly on citizen participation, Soysal went further in her attempt to demonstrate the connection between international norms, treaties and organizations, and evolving rights of citizenship. Soysal looks at various rights of citizenship and argues that they have become delinked from nationality. She then concludes that while state citizenship is still significant, postnational citizenship has become newly important by virtue of the fact that it confers new rights in novel ways. To some degree, this assessment has been borne out. Member-state nationals in the EU are treated like full citizens in any state of the Union to which they might migrate.89 Their autonomous rights now include free movement beyond the borders of a single nation-state, and this then accords them a passel of other autonomous and relative rights.90 Schengen visas thus allow a new kind of autonomous right. Well-justified critiques of the postnational citizenship literature point out that it credits postnational institutions and treaties with guaranteeing rights that in fact remain rooted in nation-state membership.91 Even if identity and participation are no longer rooted in the context of the nation-state, rights still are. As Thomas Pogge reminds us, there exists an important distinction between legal and moral cosmopolitanism.92 Evidence based in the persons to whom postnational rights have been awarded supports this conclusion. For example, Third Country Nationals (individuals from non-member states) who have not achieved Long-Term Resident status have autonomous rights that are accorded by their sponsor state, not by the state to which they immigrate or the European Union.93 Some have a nearly full array of civil, social, and even political rights. Soysal also creates something of a straw man in pronouncing the Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1994). 89 The most up-to-date, comprehensive data on the rights of Third Country Nationals who have been granted Long-Term Resident Status in the European Union, is Kees Groenendijk, The Legal Status of Third Country Nationals Who Are Long-Term Residents in a Member State of the European Union (Amsterdam: Amsterdam University Press, 2001). 90 Benhabib, The Rights of Others. 91 Linda Bosniak makes such a claim in measured tones. See Linda Bosniak, “Citizenship Denationalized,” Indiana Journal of Global Legal Studies 7 (2000): 447–507. 92 Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity, 2002). 93 For a summary of this comparison, see Lauren M. McLaren, “Immigration and the New Politics of Inclusion and Exclusion in the European Union,” European Journal of Political Research 39(1) (2001): 83–84. With regard to free movement especially, see also Willem Maas, Creating European Citizens (Rowman and Littlefield, 2007). 88

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demise of the singular national citizenship. In fact, citizenship was never entirely linked to nationality.94 For example, various non-nationals in a range of democratic contexts have historically held rights ranging from basic civil rights and social entitlements to the right to vote.95 Nationality may have always been necessary for the fullest degree of citizenship, but in that case little has changed, since in the European Union many Third Country Nationals remain semi-citizens excluded from full citizenship by virtue of their non-Union citizenship.96 Despite the fact that neither Habermas nor Soysal successfully makes the case that the legal status of citizenship has, or will, become entirely the province of supranational organizations, the postnationalist argument and related evidence suggests two important conclusions about semi-citizenship.97 The first, foreshadowed in Chapter 4, is that the founding doctrines of citizenship persist even when the state is replaced in its role as the “cockpit” of politics. Normative and administrative conflicts, rooted in the divergence of liberalism, democratic norms, and administrative rationality, are not transformed by relocating sovereignty in supranational or transnational institutions. The demands of labor markets, security, public health, and a myriad other concerns will still have implications for how the movement and residency of populations are administered. And norms regarding who is entitled to freedom, based on qualities ranging from rationality to more rooted notions of membership, will also still have implications for determining who is entitled to exercise such autonomous rights. Second, given this conclusion, it is also the case that although the EU cannot be credited with transforming citizenship, it has recast the role of the nation-state by associating enhanced rights of free movement with member-state nationality. The addition This split is highlighted by the fact that among the human rights included in the Universal Declaration of Human Rights is the right to nationality. Other rights associated with citizenship are spelled out separately. If nationality is a human right, then postnationalists who rely on human rights documents and conventions to make their case have constructed a conceptual möbius strip, in which nationality is no longer important because human rights documents guarantee nationality. 95 The former two are commonly known, the latter is less well-known. On non-citizen voting in the United States, see Jamin Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage,” University of Pennsylvania Law Review 141(1) (1993): 1397–1417. 96 Kofman, “Contemporary European Migrations, Civic Stratification and Citizenship.” 97 Soysal herself acknowledges this in her work. See Yasemin Soysal, “Changing Citizenship in Europe: Remarks on Postnational Membership and the Nation-State,” in Citizenship, Nationality and Migration in Europe, eds. David Cesarani and Mary Fulbrook (London: Routledge, 1996). 94


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of a new kind of autonomous right represents doctrinal innovation and requires the flexibility entailed in semi-citizenship. These innovations could conceivably be modified from their current state to confer a new kind of semi-citizenship for Third Country Nationals that, while not wholly unprecedented, would represent a substantive departure from existing forms of semi-citizenship .

XI. Evaluating Nationality in the Context of Citizenship Several arguments made in earlier chapters are confirmed by the discussion of the various anomalous forms of nationality. First, nationality can be dissected into constituent parts, each of which has an independent relationship to other autonomous and relative rights. This fluid relationship between nationality and citizenship is long-standing and durable. None of the groups discussed in this chapter are nationals of the states in which they reside, yet each holds elements of nationality, as well as other autonomous and relative rights. Second, these rights bundles are not predicated on any single doctrine of citizenship, but rather reflect ongoing compromises among normative and administrative doctrines of citizenship. Different logics of citizenships confront and interact with these diversely situated individuals, scattering them over the four cells in the table of strong and weak autonomous rights, and into different orders of semi-citizenship. Third, there is no predictable relationship that guarantees that the presence or absence of one kind of right will go along with the presence or absence of another. Semi-citizens with partial rights of nationality are found in each of the orders of semi-citizenship. It is also not the case that we can recognize who holds which statuses solely by looking at recognizable identity groups. The groups implicated in this chapter’s discussion of nationality rights span races, genders, economic classes, and various other kinds of socially ascribed identities. We require some kind of structural framework of semi-citizenships to capture all of the people who have non-standard rights of nationality in all their various combinations. Statuses that lie in the interstices of categories such as citizen, noncitizen, and stateless person are permanent political facts of life. People will continue to migrate, and states, or possibly transnational organizations, will continue to make and revise rules about who can move from or reside in a place, under what circumstances, and with which other rights. Competition and compromise between the three types of

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logic that define semi-citizenships will also persist. As things stand, there is no “master right” which, when bestowed upon someone, has the effect of opening a gate to all the other rights of citizenship. As indicated in Chapter 3, such circumstances could have the effect of producing a reductive citizenship. Temporary workers, people with T PS, the undocumented, and many economic immigrants have limited access to social rights, important civil rights, and in a few cases even some political rights. If we accept disaggregated nationality as inevitable, what lies next? As indicated in the Introduction, the analytic framework of this book has implications for normative analysis. Of these, one of the most significant is that the kinds of reasoning and compromise that deny people rights warrant careful scrutiny. Different doctrinal compromises can be produced in response to any given set of circumstances. An argument about the merits of a given practice that refers to the qualities of a particular compromise will be able to draw upon a wide base of reasoning and useful comparative data. For example, a practice such as extraordinary rendition, that physically relocates people to deny them any rights at all, represents a complete breakdown of compromise among the foundational logics of citizenship. In these situations, security concerns that stem directly from administrative rationality trump any kind of normative claims that might at the very least offer the subjects of extraordinary rendition the protections available to stateless or undocumented individuals. Even temporary refuge, though it is accompanied by few other relative or autonomous rights, provides a more robust set of rights. Among the many credible arguments that weigh against such a practice can be added the fact that there are virtually no comparable circumstances in which a single logic dominates all other doctrines to deny someone all rights of citizenship. While the idea that doctrinal conflict is inevitable may cast doubt on transformative approaches to immigration that rely solely on liberal or democratic theories of membership, such conflict also provides precedents and comparisons that militate against the use of a single doctrine to strip individuals of even the thinnest order of semi-citizenship. Nationality is often thought of as a gatekeeper to other rights. Whether via jus sanguinis, jus soli, or naturalization, the acquisition of full rights of nationality is often assumed to mark the acquisition of full rights of citizenship, as discussed in Chapter 2. The next chapter, Chapter 6, begins from the premise that this is not necessarily the case, and that non-refugees and non-migrants can also be semi-citizens. Relative rights


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can be disaggregated, even in the case of persons who have robust rights of nationality, as well as other autonomous rights. Just as is the case with rights of nationality, compromises are reached between the three doctrines of citizenship that accord passport-bearing non-immigrant individuals various orders of semi-citizenship.

6 Semi-Citizenship and the Disaggregation of Relative Rights

I. Introduction Non-refugee and non-migrant individuals, who can seemingly exercise the full set of rights associated with residence and free movement within a given territory, can also be semi-citizens. The disaggregation of autonomous rights such as those associated with residence and free movement demonstrates one way in which semi-citizenship is structured and institutionalized among these individuals. A series of layered doctrinal compromises that dictate, govern, and circumscribe the rights of residence and free movement create different statuses based on different kinds of reasoning. The disaggregation of autonomous rights of mobility thus exemplifies how doctrinal overlap and conflict is resolved through the creation of semi-citizenships. Semi-citizens who have some, but not all, of the rights associated with nationality come to have different bundles of other autonomous and relative rights, depending on how their partial nationality is constituted, and different circumstances, depending on what kinds of doctrinal compromises their statuses are subject to. If this were the end of the story regarding semi-citizenship it might lead us to a set of fairly tidy conclusions about how territory and ascription offer several paths to a relatively finite set of conditions for semi-citizenships. However, despite the abundance of work that attributes relationships of ascription to different types of rights, nationality does not always stand above, or serve as a gateway to, other types of rights. Thus, inevitably, there are native-born semi-citizens in every democratic nation-state. In Chapter 5, special attention was paid to the creation of exceptions to rules as a means of forging compromises among divergent doctrines 178

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of membership. The complexity of these conflicts and compromises places foreign-born persons in each of the four orders of semi-citizens. However, not all conflict occurs over autonomous rights, not all doctrinal conflicts are three-way conflicts (among liberal norms, democratic norms, and administrative rationality), and not all resolution comes in the form of exceptions and compromises. In some cases relative rights are disaggregated, doctrines overlap extensively, and innovation or additions to citizenship are preferable to compromises. This chapter explores how relative rights become disaggregated, according semi-citizen statuses to persons identified by familial relationships. Rules regarding families exemplify this second, as yet unexplored, set of possibilities. Families are central to all three doctrines of citizenship because they are a central means through which a population and its norms are reproduced. As is the case with the foreign-born, children and gay and lesbian individuals have an enduring presence within democratic states. Each holds a strong bundle of autonomous rights. Yet, both are also denied important relative rights that render them semi-citizens. In each case we can identify existing ways in which the doctrines of citizenship overlap and conflict in ways that ensure semi-citizenship. However, these two cases mark a departure from that of disaggregated nationality as discussed in Chapter 5; in neither case does the doctrinal conflict scatter children or gays and lesbians into all of the different orders of semi-citizenship. Instead, each group occupies a particular order of semi-citizenship. Each is created by a doctrinal confluence in which two doctrines of citizenship converge and one diverges. In the case of children, liberalism and democratic theory provide arguments for excluding m inors from citizenship, but administrative rationality requires that m inors have citizenship rights. In the case of sexual minorities, liberalism and administrative rationality defend full citizenship but ethical principles drawn from strains of democratic theory point to exclusion. In each case, doctrinal consensus confers relatively consistent semi-citizen status to children and lesbian, gay, bisexual, or transgendered ( LGBT) persons, barring any traits (such as being foreign-born) that might further constrain an individual’s citizenship. Most children have second-order semi-citizenship, and LGBT persons generally have first-order semi-citizenship.1 1

These orders of citizenship are generalizations; the imposition of additional conditions of semi-citizenship, for example via foreignness, would alter the order of citizenship of any given individual.

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A comparison of the semi-citizenship status of these groups, and the ways in which they are generated, also point out the limits of the liberal democratic state in addressing the complications that arise when substantial portions of the population are simultaneously included and excluded. Knowing which logics are responsible for the shape semicitizenships take will shed light on what is accomplished when different responses are produced. Section II begins with a discussion of children’s semi-citizenship and its relationship to relative rights. Section III connects this status to the strong doctrinal consensus that dictates that children cannot be citizens. In particular, liberal and democratic norms overlap in how they frame the role of family relationships in politics and, therefore, also converge with regard to the exclusion of children from full citizenship. This isolates concerns of administrative rationality, and particular of ordering the population. Using the example of juvenile courts, Section IV illustrates how the creation of remedial rights occurs in such instances, in which compromise is difficult to broker via exceptions of the sort seen in Chapter 5. By way of contrast, Sections V and VI bring out how the doctrinal consensus between norms regarding children’s citizenship reorients so as to isolate arguments against the full citizenship of same-sex couples grounded in specific democratic normative traditions. Finally, in Section VII, I draw a comparison between the remedial relative rights offered by juvenile courts and those offered by civil unions and segregated same-sex marriage.

II. Children’s Semi-Citizenship and Relative Rights Children inhabit an uncertain political space between non-citizenship and full citizenship. Theirs is one of the most stable and enduring forms of semi-citizenship in democratic politics. Children have second-order semicitizenship, a status they share with other groups, including felons and members of the military, whose relative rights are compromised. Unlike the wildly frayed bundle of rights that distributes people with partial forms of nationality among all four quadrants of the table of relative and autonomous rights, almost all children have the same kind of semi-citizenship. Children are accorded robust forms of autonomous rights; they have rights of legal nationality, which are almost always accorded to them upon birth, they are entitled to basic social welfare provisions that secure them education and healthcare, and that assert their right to physical safety. Yet, children do not have complete access to all autonomous rights; laws imposing


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restrictions on expression, assembly, and juvenile curfew exist both in the United States and Europe.2 The strength of children’s autonomous rights belies their weak to nonexistent sets of relative rights.3 Their relative rights, those that attach to the specific political contexts in which they exist, are virtually nonexistent. Children do not vote, nor do they have formal, systematic political representation. As things stand, children form the largest group of unrepresented people in every liberal democracy in the world.4 Their interests, while distinct from those of their parents and other adults, do not receive ongoing and formal representation. Children may also be kept from concluding legal contracts and the circumstances of their work lives are constrained.5 Like many first- and second-order semi-citizens, e.g., g reen card holders and non-temporary refugees, children are expected to inhabit their semi-citizenships temporarily, and eventually to become full citizens. They gain the rights they are denied upon passing the threshold represented by the age of majority. This future-oriented perspective emphasizes both the persons and citizens that people below the age of majority are expected to become, and the vision of society that these children will join when they become adults. It is “minorist” in the following sense: the orientation toward who children will become, and the society that is shaping them, is used to accord children semi-citizenship rather than full citizenship. Their current status as minors is taken to be both temporary and preparatory, and their semi-citizenship is composed not so much for the benefit of the individual people that hold it, or the population of young people at large, but for the people various adults wish In the United States, see Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981). On children’s access to speech see Amitai Etzioni, “On Protecting Children From Speech,” Chicago Kent Law Review 79(3) (2004): 2. European countries including the U.K and France have a range of youth curfew laws in place. 3 For two excellent analyses of the philosophical issues surrounding non-reciprocal duties, see Neil MacCormick, “Children’s Rights: A Test-Case for Theories and Rights,” in Legal Right and Social Democracy (Oxford: Clarendon Press, 1982), 154– 166; and Onora O’Neill, “Children’s Rights and Children’s Lives,” Ethics 98(3) (1988): 445–463. 4 Data from the U.S. Census Bureau indicate that children under the age of 18 compose roughly 25 percent of the population. Adjusting for lower ages of majority, Eurostat reports percentages for European states that are slightly lower. See U.S. Census Bureau, “State and Country Quickfacts: USA” (2009) available at http://quickfacts.census.gov/ qfd/states/00000.html; last accessed April 27, 2009; Eurostat, “People by age classes – share of total population (%)” (2008) available at http://epp.eurostat.ec.europa.eu/tgm/ table.do?tab=table&init=1&language=en&pcode=tps00010; last accessed April 27, 2009. 5 Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 271 (1988). 2

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children to become. Indeed, John Stuart M ill argues that conferring rights upon children interferes with the trajectory of their becoming adults, and as such constitutes an abrogation of their very right to their adult selves.6 This dual-pronged focus on children’s future selves and the society they will join helps explain the stark split between children’s autonomous and relative rights. Relative rights attach to political systems, thus making it possible to justify denying relative rights to anyone whose identity is cleanly cut off from that political system. In turn, cleanly cutting children off from their relative rights is a product of the greater degree of doctrinal convergence on the exclusion of children from full citizenship. As the following sections detail, both liberalism and democratic theory support differently reasoned restrictions on children’s citizenship.

III. Doctrinal Conflict and Children’s Semi-Citizenship Just as in the case of the foreign-born, children’s semi-citizenship represents a series of compromises between the doctrines of citizenship, rather than a single coherent status grounded in a seamless argument. Like foreignness, childhood is a status that has important but malleable meaning for the polities in which children live. The very boundaries of childhood have been constructed, deconstructed, and reconstructed many times throughout the course of human history in ways that reflect familiar doctrinal perspectives on children’s political status.7 Unlike the foreignborn, however, children’s semi-citizenship is shaped by a strong, though not perfect, doctrinal consensus. Liberal and democratic norms converge upon the future-oriented, minorist view of children that treats children as subjects who will almost certainly acquire full citizenship in the future. Here we see an interesting contrast between cases of doctrinal convergence and the kind of conflict illustrated in Chapter 5. Foreign-born persons ended up in different orders of semi-citizenship based on different kinds of doctrinal compromises. Because there is doctrinal convergence Nadia Urbinati, Mill On Democracy (Chicago: University of Chicago Press, 2002), 177. 7 Historically, the material and psychological interests of adults have structured the idea of childhood. Lawrence Stone, Family, Sex and Marriage in England, 1500 to 1800 (New York: Harper & Row, 1977). Debates about how childhood itself has been, and ought to be, understood are ongoing. See Philippe Aries, Centuries of Childhood, trans. Robert Baldick (New York: Vintage, 1962); and Family Life in the Twentieth Century, eds. David Kertzger and Marzio Barbagli (New Haven: Yale University Press, 2004). 6


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between liberal and democratic theory on minorist reasoning, children can be much more cleanly categorized as second-order semi-citizens, and are very thoroughly deprived of relative rights as a part of this process. A. Democratic Doctrines of Children’s Semi-Citizenship Democratic principles of political philosophy justify the semi-citizenship of children via two strains of paternalist reasoning.8 First, children and society need protection from one another.9 Children need protection from exploitive adults and from their own limited understanding of their interests. Society needs protection from children, who cannot be expected to understand the interests of the body politic. Second, children are vessels for the reproduction of various sets of privately and publicly held values. While these are not mutually exclusive, each of these strains does identify a separate set of reasons for denying children rights of citizenship. A Millian view bridges both positions, adding that children’s semi-citizenship stems also from the right of society not to be burdened by children who mature into incompetent citizens because of neglect on the part of their parents.10 Mill wishes to protect the society from the adults children might become, rather than protecting children from society while they become adults. Family life plays a singular role in a range of republican accounts of how democratic virtue is developed and sustained. Analogically, families have historically been viewed as “little platoons” that provide symbolic representations of how common cause and duty could be conceived.11 M ill wrote of marriage, “The moral regeneration of mankind will only really commence when the most fundamental of the social relations is placed under the rule of equal justice, and when human beings learn to cultivate their strongest sympathy with equality in rights and in cultivation.”12 From arguments regarding the relationship between paternal power and 8 For an overview of this perspective, see Shelley Burtt, “In Defense of Yoder: Parental Authority and the Public Schools,” in Political Order: Nomos XXXVIII, eds. Ian Shapiro and Russell Hardin (New York and London: NYU Press, 1993), 412–437. 9 On the vulnerability of children in relation to rights, see Michael D. Freeman, “The Limits of Children’s Rights,” in The Ideologies of Children’s Rights, eds. Michael D. Freeman and Philip H. Veerman (Dordrecht, Boston, London: Martinis Nijoff, 1992): 29–46. 10 William Galston, “Civic Education and Political Participation,” Phi Delta Kappan 85(1) (2003): 220. 11 Eileen Hunt, “The Family as Cave, Platoon and Prison,” Review of Politics 64(1) (2002): 81–120. 12 John Stuart Mill, The Subjection of Women (New York: D. Appleton & Co., 1900), Chapter IV.

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succession, to conservative Burkean views of the family as the root of political habits, marriage and the family serve both an analogic and a substantive purpose for democratic societies and their citizens. People could look to families to understand how they should act in governing roles that transcended their more particularistic ties. In addition to this analogic relationship, families serve functional purposes for citizenship in republicanism. In this view, marriage is fundamental to social order. Nancy Cott develops the theme of the importance of marriage to civil society in her telling of the history of marriage in the United States.13 She argues that marriage and civil society might even be described as mutually constitutive – so important has each been to the other.14 Family life is useful to democratic states because it teaches members how to assume the role of citizen in the larger community. Families don’t just serve as models of virtues such as loyalty and self-governance; they also practice and refine these values. Family life has long been considered a training ground for political virtue of the sort that was necessary to a republic for, of, and by the people. In the early American republic, marriages provided a “school of affection where citizens learned to care for each other.”15 For these reasons, democratic theory supports an ethically defined exclusion of children from citizenship. B. Liberal and Administrative Doctrines of Children’s Semi-Citizenship Liberal reasoning bolsters democratic arguments in favor of excluding children from citizenship by drawing attention to their inability to engage in rational thought. In this case, liberal and democratic reasoning are so much in accord that at points they are virtually indistinguishable. However, the ramifications of the liberal position are significant in light of the third doctrine of citizenship, administrative rationality. John Locke’s justification for children’s semi-citizenship ultimately requires the exercise of administrative rationality in the context of the

Nancy Cott, “Marriage and Women’s Citizenship in the United States, 1830–1934,” American Historical Review 103(5) (1998): 1440–1474. 14 Nancy Cott, “Giving Character to Our Whole Civil Polity: Marriage and the Public Order in the Late Nineteenth Century,” in U.S. History as Women’s History: New Feminist Essays, eds. Linda Kerber, Alice Kessler-Harris, and Kathryn Kish-Sklar (Chapel Hill: University of North Carolina Press, 1995), 109. 15 Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2002), 19. 13


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state.16 Once administrative rationality is invoked, the doctrinal accord of liberal and democratic theory is disrupted in ways that demand that rights be accorded to children in spite of the arguments against their capacities to be citizens. As Ian Shapiro’s interpretation conveys, Lockean liberalism limits parental entitlement to authority over children by pointing out that parents are not ultimately the makers of children – God is – and that, without the entitlement that comes with workmanship, parents lose the absolute right to control and punish their children.17 It is worth recalling the status of children in Roman law because, as indicated in Chapter 3, J. G. A. Pocock has convincingly argued that Roman law formed the precursor to modern, legalistic, and rights-based conceptions of citizenship.18 Under Roman law, parental rights were paternal rights, and paternal rights extended from labor and property to the very lives of children.19 Early liberal thought about the political status of children rejects the excessively exclusionary Roman model. Locke lays the groundwork for the transformation of political understandings of childhood in his repudiation of the Roman ownership model of parent-child relations. Locke’s formulation retains parental authority but introduces the authority of the state. Rejecting the workmanship/ownership model requires the intervention of the state as a third party to both check and/or replace some of the functions of the parent. This further complicates the position of children within the citizenry. Power, specifically that associated with punishment, has been taken away from parents and ceded to the state. Locke’s argument accorded children negative freedoms from certain kinds of domination that are imposed by parents. In so doing, he brings children into the purview of the state. Yet children’s membership remains ill-defined. Locke’s model checks the unmitigated power of parents to punish, but stops short of thoroughly addressing the implications of awarding children political personhood. While affirming Locke’s skepticism of the ownership model, Shapiro acknowledges the necessary complications of drawing children into

Nadia Urbinati notes this important difference between how M ill and L ocke construct their understanding of authority over children. Urbinati, Mill on Democracy. 17 Ian Shapiro, Democratic Justice (New Haven: Yale University Press, 1999), 73. See also Urbinati, Mill on Democracy, 177. 18 J. G. A. Pocock, “The Ideal of Citizenship Since Classical Times,” in Theorizing Citizenship, ed. Ronald Beiner (Albany: State University Press of New York, 1995): 29–53. 19 David Archard, “Do Parents Own Their Children?” International Journal of Children’s Rights 1(3–4) (1993): 293–301. 16

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institutional citizenship within liberal democratic states.20 Shapiro elaborates a solution to this dilemma that more precisely divides authority over children. He posits a regime that distinguishes children’s basic and best interests and uses the division to assign different powers to the state and parents.21 Basic interests such as security, nutrition, health, and education – many of which track very closely the kinds of concerns invoked by governmentality that were described in Chapter 3 – are the responsibility of the state acting as a fiduciary for children.22 Best interests – those directly related to the “full development of human potential” – are the province of parents, who also act in a fiduciary role toward their maturing children.23 As Shapiro has described it, best interests are still subject to minorist thinking, as the future orientation of potential development indicates. Basic interests fall within the purview of the state. These cannot be framed in entirely minorist language because health, security, and education draw upon the immediate concerns of the state with its population. Doctrines that entirely conflate children’s interests with those of adults can cordon children off from most claims to relative rights by assigning those claims to a child’s parents. Thus, once the Roman model of ownership has been rejected, children take on an independent political presence in the population that must be administered by the state. Despite the liberal argument Locke makes about politics, and the democratic aspirations of Shapiro’s formulation, the elements of children’s citizenship for which the state becomes responsible are those associated with governmentality. Several notable facets of children’s political status come to bear the imprint of this way of thinking. Administrative rationality asserts itself early in children’s lives by governing children directly, before they can legitimately consent to this or any element of their citizenship. In order to take responsibility for other elements of children’s autonomous rights, states impose legal nationality upon them at birth.24 Peter Schuck and Rogers Shapiro, Democratic Justice, 75. The rights that are associated with the best/basic interests formulation closely track with the split between the autonomous rights of children and their relative rights. However the best/basic interests formulation is not completely identical to the autonomous/relative distinction. One of the most significant differences that is relevant to this case is the fact that free thought seems likely to be considered a right associated with a child’s “best interests,” whereas freedom of thought and belief is considered an autonomous right not connected to a specific political system. 22 Shapiro, Democratic Justice, 85–92. 23 Shapiro, Democratic Justice, 85–92. 24 This is true whether nationality is accorded to children based on a principle of jus sanguinis or jus soli. For a recent discussion of broad normative concerns stemming from 20 21


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Smith demonstrate the fact that the imposition of nationality on children at birth is an instance of administrative rationality. They also point out that this administrative rationality stands in contradiction to liberal and democratic norms. Their argument begins from the premise that consent is integral to citizenship. Schuck and Smith argue that it is problematic from any normative perspective to confer nationality on children at birth. They deploy terms that affirm the compatibility between liberal and democratic norms implied by Mill and Locke’s like-minded conclusions. Consent requires rational capacities that children do not possess. As Schuck and Smith argue, normative reasoning cannot explain the practice of conferring the autonomous rights of nationality on children as a matter of birthright. In fact, from either a liberal or a democratic normative perspective it would make more sense to wait until children are mature and ready to exercise their citizenship before awarding them nationality. Schuck and Smith conclude that the impossibility of extracting legitimate consent from children need not, from a normative perspective, conclude with the conferral of nationality upon children prior to their maturation.25 Instead, they argue in favor of permitting children to mature before consenting to their nationality. But because of the burden that potentially stateless children, or even stateless adults who might reject nationality upon reaching the age of majority, would pose for administrative rationality, it is difficult to imagine the adoption of such a proposal.26 Instead, the semi-citizenship that Schuck and Smith problematize creates a compromise between administrative rationality and normative doctrines of citizenship in which rights integral to governmentality are accorded to children at birth, while other rights are conferred upon reaching the age of majority. The larger problem Schuck and Smith are grappling with is that a polity that either conflates children with their parents, or that is only concerned with the adults that children become, will have difficulty actually governing children as independent beings, incapable though they may be of selfgovernment. Wendy Anton Fitzgerald describes this conundrum: [W]hen representing children, parents and the state tend to perceive only those claims which serve adult purposes and protect adult interests … We accept that birthright citizenship, see Ayelet Shachar and Ran Hirschl, “Citizenship as Inherited Property,” Political Theory 35(3): 253–287. 25 Peter Schuck and Rogers M. Smith, Citizenship Without Consent (New Haven: Yale University Press, 1995). 26 G ermany has permitted children of foreign-born parentage to choose nationality upon reaching the age of �� majority; however, those that do not are not thereby denationalized, since they carry their parents’ nationality in almost all cases.

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children’s claims must fit adult purposes because children are potential adults and childhood is preparation for adulthood … Any purpose or interest of value only to children as children can command no legal recognition or representation because, by definition, any such interest or purpose is merely childish, and inferior. Children’s claims to our care and concern are not childish or inferior, of course, but so long as they serve no politically powerful adult purpose, those claims remain unvoiced.27

Current debates that invoke new information about children’s needs illustrate complications arising from the conflation of adult and children’s interests. They also demonstrate the unfinished evolution of the compromise between administrative rationality and normative doctrines of children’s citizenship. As children have come to be understood as a part of the population, new information about concerns relevant to administrative rationality has surfaced. The physical needs of children become difficult to discern in many circumstances and in a wide variety of politically salient arenas. For example, public and, to a lesser extent, private schools have traditionally operated on schedules that were convenient to the schedules of adults, both parents and school employees, with consequences that turned out to be counterproductive from youth perspectives.28 Chemicals and pharmaceuticals that children ingest have traditionally been tested first and solely for their effects on adults. Even medical diagnoses can be difficult to perform when children’s perspectives have not surfaced and been made public.29 In each of these cases it is simultaneously true that an inability to perceive children’s distinct interests ultimately creates obstacles not just for representing children’s interests, but also for the states that govern them.

Wendy Anton Fitzgerald, “Maturity, Difference, and Mystery: Children’s Perspectives and the Law,” Arizona Law Review 36 (1994): 18. 28 For example, recent studies have shown that early school start times cut down on the number of hours of sleep obtained by most adolescents, and that often crucial REM sleep cycles are sacrificed in the morning hours. Ronald E. Dahl, “Adolescent Brain Development: A Framework for Understanding Unique Vulnerabilities and Opportunities,” Annals of the New York Academy of Sciences 1021 (2006): 1–22. This sleep deprivation has been linked to a number of pathologies and disorders. Sleep is an important factor not only in school performance, but also in brain development. It is ironic that schooling may be responsible for limiting the abilities of students who dutifully adhere to the required schedules. 29 The diagnosis and treatment of Attention Deficit Hyperactivity Disorder (ADHD) is a recent example. See Elizabeth F. Cohen and Christopher Morley, “The Child Citizen and ADHD,” Journal of Medicine and Philosophy 34 (2009): 155–180. 27


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In the case of the foreign-born we saw little consistent doctrinal c onsensus regarding their semi-citizenship. Conflict among the doctrines of citizenship created exceptional statuses: exceptions to larger rules regarding how citizenship is bundled and disaggregated. These exceptions represented compromises among the different doctrines. In the case of children’s semi-citizenship, such compromises exist, as in the case of birthright nationality. However, democratic theory and liberalism converge on paternalist and future-oriented justifications of children’s semi-citizenship. Of the doctrines of citizenship, only administrative rationality requires that children be included and governed publicly in ways that accord, and indeed impose, political standing upon them. In circumstances of greater doctrinal consensus, the state as the “cockpit of politics” produces fewer compromises of the sort that placed non-nationals in all four orders of semi-citizenship. Where compromises to further divide the rights of citizenship into different child-sized bundles are not possible, semi-citizenships bring order by replacing citizenship rights with rights similar in form to citizenship rights, but that are also situationally specific. Here, “situationally specific” refers first to the situation created by doctrinal conflict, and second to the unique needs of children-as-semi-citizens. These rights are described below as “remedial” because they are designed to remedy conflicts that the disaggregation of rights has not solved. They illustrate how semi-citizenship ensures that the population remains ordered in the absence of full citizenship. As discussed in Chapter 4, Section III, ordering a population entails imposing rules on the contours of a population whose elements will not all fulfill either democratic norms regarding affected interest or capacities, or fit neatly within geographic borders. Below I discuss exceptions to the divide between the normative and administrative dictates about children’s citizenship which illustrate the creation of new rights when doctrinal convergence stymies the disaggregation of rights.

IV. Children’s Remedial Semi-Citizenship As each of the scholars of children’s citizenship cited in this chapter acknowledge, children are complicated subjects of politics. M inors are, by almost any normative definition, irrational with respect to a demos in ways that restrict their relative rights. Neither the arguments from the perspective of liberal autonomy nor those of self-government would militate in favor of according them the relative rights associated with membership in specific political systems. In the case of some relative

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rights, this occurs with little or no consequence from the perspective of administrative rationality. For example, there is no cost for administrative rationality if children are prohibited from voting. However, in a few cases excluding children from citizenship has significant costs for administrative rationality. One such case is that of criminality and punishment. We know from earlier discussions (see Chapter 4) that containing threats such as criminality is integral to administrative rationality. The comparison Hannah Arendt makes between the stateless person and the criminal in her discussion of the relationship of citizenship to political order is instructive here. As foregrounded in Chapter 4, Arendt argues that statelessness poses a threat to states because, in the absence of any political identity, people become impossible to govern. Even criminals, she continues, can be more easily governed than the stateless. It should, therefore, not come as a surprise that matters of criminality and justice have produced citizenship “rights” for children who exercise few other rights associated with membership in a democratic system. Juvenile justice systems accord children a form of relative rights that are publicly enforced, but that are far from identical to the kind of legal rights accorded to full citizens.30 The juvenile justice system is one of the only formal institutions designed to address children as the semi-citizens that they are.31 While it distinguishes a set of rights and practices as belonging to young citizens, one of the fundamental features of such institutions is that they are not private. It separates children from adults without relegating their concerns to non-public spaces beyond the reach of law and transparent procedures.32 In so doing, it permits the punishment of persons who would otherwise stand outside the reach of the For comparative surveys of the institutionalization of juvenile justice, see Paola Zalkind and Rita James Simon, Global Perspectives on Social Issues: Juvenile Justice Systems (Lanham, MD: Lexington Books, 2004); and Jap E. Doek, “Modern Juvenile Justice in Europe,” in A Century of Juvenile Justice, eds. Margaret K. Rosenheim, Franklin E. Zimrig, David S. Tanenhaus, and Bernardine Dohrn (Chicago: University of Chicago Press, 2002): 505–528. 31 As far as children’s rights are concerned, the existence of a distinct juvenile justice system is evidence of the “privatization” of children. Jessica Kulynych, “No Playing in the Public Sphere: Theory and the Exclusion of Children,” Social Theory and Practice 27(2) (2001): 231–264. 32 It should be mentioned that the state engages in a category shift to punish children accused of specific crimes as adults, rather than in juvenile courts. It is an odd irony that one of the only adult experiences of citizenship afforded to American children is the experience of being accused and tried as an adult. In cases of international conflict, children may also be transformed into virtual adults through the manipulation of combatant/non-combatant distinctions that legitimize their involvement in m ilitary action. 30


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state. Such surrogate rights, in the form of distinct civil proceedings, actually also apply to a number of other semi-citizen groups, including the foreign-born, who appear before immigration judges in the United States, and members of the military, who are also subject to a separate body of law and procedures.33 In contrast to the ordering of rights associated with procedural justice, relative rights that are not integral to administrative rationality produce virtually no remedial responses.34 In the face of strong doctrinal consensus between liberal and democratic norms that exclude children, and in the absence of a strong administrative incentive that contradicts that consensus, children’s other relative rights have no surrogates. For example, few surrogate institutions have arisen to remedy the lacunae in political rights for children. In the case of representation and franchise rights, in which governmental concerns do not figure, virtually no remedial surrogate rights emerge. Children neither vote, nor are they represented. In cases where administrative rationality is not at stake, the fiduciary model holds sway. Shapiro posited parents as fiduciaries responsible for, among other things, children’s political interests. A fiduciary arrangement folds children into the political identity of their parents upon birth. Parents are expected to represent children at the ballot box and in the public square. This is so even in cases where the interests of those children may run contrary to the interests of their parents. School improvements could mean higher taxes for parents, pitting adults against children. Or parents may not vote at all; in fact, many do not.35 When they do, each of them has only one vote, regardless of how many children their vote represents.36 Presumably, children who do not have In the case of members of the m ilitary, it is the very fact that they are subject to a distinct body of law that renders them semi-citizens. Military courts operate under entirely separate rules and procedures that apply broadly to personnel in the armed services. For a thorough enumeration of these rules and procedures see “Manual for Courts Martial Joint Service Committee on Military Justice.” Available at http://www. jag.navy.mil/documents/mcm2000.pdf; last accessed November 1, 2008. See especially Rule 202: Persons Subject to the Jurisdiction of Courts-Martial (201(f)(2)(A). 34 On child liberation see Howard Cohen, Equal Rights for Children (Totowa, NJ: Littlefield and Adams, 1980), Chapter VII. One contender might be polities in which �� ombudsmen act on behalf of children. However, the institutionalization of �� ombudsman offices is, as yet, neither as thorough, nor as substantively effective, as that of juvenile justice systems. 35 Shapiro claims “fiduciaries do not act in their own interests.” Shapiro, Democratic Justice, 70. This seems unlikely in all cases. 36 It has been suggested that parents receive extra weight as a result of the burden of representing their children’s interests. See Robert Bennett, “Should Parents Be Given Extra Votes on Account of Their Children?: Toward a Conversational Understanding 33

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parents or legal guardians are not represented politically in any meaningful way. Parents can also compel a variety of behaviors, ranging from church attendance to participation in specific educational formats, that limit the opportunities of children while imposing a conception of best interests that reflects only the parents’ beliefs.37 Similar fiduciary arrangements that have been invoked to justify and rationalize the segregation of other groups clearly deny these individuals full rights of democratic citizenship. For example, coverture transformed married women into semi-citizens using methods very similar to those described in the fiduciary account. The historical model of coverture has its roots in the ancient Roman laws cited earlier that accorded fathers ownership of their children. Men had similar “ownership rights” over their wives, who shared no legal stake in the fate of their children, even if the father of their children were to die. Husbands could not appoint their wives to be guardians in the event of their death, and wives were not considered fit to be guardians if fathers died intestate.38 Coverture in its modern iteration meant that “a wife could not use legal avenues such as lawsuits or contracts, own assets or execute legal documents without her husband’s collaboration… The husband became the political as well as the legal representative of his wife, disenfranchising her. He became the one full citizen in the household.”39 Under coverture, husbands acted as fiduciaries for their wives and daughters in almost all matters, civil and political. From making contracts, to property ownership, to the essential forms of democratic representation, men were fiduciaries of the interests of their wives and daughters. Coverture folded the civil and political identity of a woman into that of her husband’s once they were married. Because most women were married at a relatively young age, this meant that few women ever achieved an independent legal identity. They moved seamlessly from being covered by their father’s legal identity to being covered by their husband’s legal identity. As in the case of children, coverture invoked paternalist norms to exclude women from the public sphere. Men could serve as political fiduciaries for their wives

of American Democracy,” Northwestern University Law Review 503 (2000): 503– 565. However, this would not address the many conflicts of interest that exist when one private individual is required to represent the interests of other individuals. 37 In fact, Shapiro’s categorization of education as a basic interest seems open to debate as education can easily be construed as directly relevant to both best and basic interests. 38 Archard, “Do Parents Own Their Children?” See also James Brundage, Sex, Law and Marriage in the Middle Ages (Brookfield, VT and Aldershot, UK: Ashgate, 1993), 22. 39 Cott, Public Vows, 11–12.


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and parents can do the same for children without creating disorder in the population.40

VI. Doctrinal Conflict and Marriage Rights Each of the three doctrines of citizenship is simultaneously a potential source of inclusion and exclusion. Because all three operate on all aspects of citizenship, and because they are related, but distinct from each other, they are a constant and elastic source of reasons for including people in some ways and excluding them in others. Children are excluded from membership, particularly from relative rights that refer to the specific political systems they will someday join, by closely related norms of liberalism and democracy. But, the politics of the family can generate conflict not only between norms and administrative rationality, but also among norms themselves. For instance, marriage generates its own unique alignment of doctrinal consensus and divergence, in which there exists a thorough overlap between liberal and administrative doctrines, which in turn diverges from the application of democratic norms in specific historical communities. In this case, liberal norms and administrative rationality converge in favor of inclusive views of marriage rights, whereas democratic norms produce a more exclusionary version of marriage rights. I n the case of children, the doctrinal confluence of liberal and democratic norms creates both compromises with administrative rationality (e.g. the imposition of nationality) and remedial/surrogate rights. Similarly, in the case of contestation over marriage, the confluence of liberal norms and administrative rationality militates in favor of including same-sex couples within the ambit of marriage and family, while democratic doctrines are a source of opposition for such inclusion. The result of this conflict is a set of surrogate rights – civil unions, and qualified marriage rights – in which the deep conflict between the doctrines of citizenship is expressed in very specific exceptions to marriage rights for same-sex couples. Marriage acquires its meaning from its embeddedness in a set of social and political institutions. In various liberal democracies, restrictive So strong was the belief that women were unprepared and incapable for citizenship that the state assigned most of their autonomous rights to men as well. �� Women’s autonomous rights to nationality were ceded if they married foreign men. James Kettner, The Development of American Citizenship, 1608–1870 (Chapel Hill, NC: University of North Carolina, 1978) .

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marriage and family laws have been enacted to maintain racial, national, and genetic purity, as well as a host of less prima facie exclusionary ends. Such restrictions have run the gamut of exclusionary norms, from rules preventing people from marrying, and even from having children, to creating tax codes and social policies that indirectly privilege certain types of families. In contemporary politics, conflict over the rights of gay couples to marry has become a lightning rod, highlighting some of the most virulent conflicts between doctrines of citizenship regarding the place of the family in politics. Conflicts generated from within democratic traditions that draw together marriage and citizenship have not been squared either with the administrative imperative to govern families and property, or with the liberal imperative to institutionalize equal rights for all rational individuals. While some consensus is gathering around the idea that states need to govern same-sex unions, and that liberal doctrines grounding equal citizenship may trump long-standing barriers to non-traditional marriage produced by specific democratic communities, the question of how to address the status of gay couples who choose to parent jointly reveals that doctrinal conflict about gay rights persists in important ways in spite of existing compromises. LGBT individuals’ semi-citizenship results from a dissonance between liberal and democratic norms. Although the convergence of democratic and liberal notions of childhood and semi-citizenship is in many ways unsurprising, this convergence is not inevitable. Yet, it remains the case that these two normative schools of thought are, in many cases, considered interdependent. The fact that protecting children and protecting a demos can be reconciled seems almost unavoidable. Indeed, the libertarian/liberationist position regarding children’s citizenship is normatively repugnant to liberals and democratic theorists alike.41 However, as we saw in the previous chapter’s discussion of autonomous rights of nationality, doctrinal consensus is not limited to accord between norms of citizenship. A normative doctrine can overlap with administrative rationality in opposition to another normative doctrine. Governmentality developed as a discourse justified by the possibility and apparent desirability of administering populations in ways that would serve the interests of those populations.42 This Cohen, Equal Rights for Children (New Jersey, Littlefield and Adams, 1980). As Shapiro observes, proponents of these “anarcho-libertarian” views are “not primarily concerned (perhaps not concerned at all) with rearing children who can survive and thrive in a democracy.” Democratic Justice, 77. 42 Michel Foucault, in The Foucault Effect: Studies in Governmentality, eds. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991), 100. 41


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occurred in the context of the blossoming of liberal premises that what is good for persons could be understood from a single normative vantage point and applied universally.43 In the case of LGBT persons, liberalism and administrative rationality both support extending marriage rights, while democratic theory justifies opposition to these rights, thereby creating a first-order semi-citizenship for LGBT individuals. This first-order semi-citizenship arises by virtue of the fact that they have strong sets of autonomous and relative rights. Yet, while LGBT persons have first-order semi-citizenship, same-sex couples are almost everywhere prevented from marrying on terms that are identical to those that legally acknowledge heterosexual unions. In the United States, this means that gay couples are wholly excluded from the federally recognized status conferred on married couples, while in Canada and several European nations with civil union provisions, only select deprivations apply.44 Restrictions on marriage have numerous implications for gay individuals’ citizenship, which vary along with marital and civil union law in different nations. Differences in rules regarding military service, the right to sponsor spousal immigration, and tax status are among those that cordon off same-sex headed families from equal political membership. Of most significance to the themes of this chapter is the fact that, even in their most liberal form, civil unions almost never accord gay couples adoption and parenting rights. In countries where liberal partnership laws give gay couples full or semi-marital status in the eyes of the state it often remains difficult or impossible for them to jointly adopt. But complications faced by gay parents extend beyond the obvious difficulties in adopting children. In many cases they also find themselves deprived of the ability to move freely, when doing so will locate them in a space where their unions are not recognized, or

Mitchell Dean, Governmentality: Power and Rule in Modern Society (London: Sage, 1999), 203. 44 For a thorough and regularly updated comparative survey of these different rights, see http://www.iglhrc.org/cgi-bin/iowa/article/publications/reportsandpublications/815. html; last accessed March 22, 2009. Detailed information on specific U.S. states can be found at the following location: http://www.ncsl.org/programs/cyf/civilunions_ domesticpartnership_statutes.htm; last accessed March 22, 2009. (In the absence of federal recognition, there are severe limitations on how much can be made of statelevel same-sex marriage provisions since those marriages tether partners to specific states.) See also, Merin Yuval, Equality for Same Sex Couples (Chicago: University of Chicago Press, 2002). Yuval argues that same-sex marriage is nowhere equivalent to heterosexual marriage. 43

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when spousal sponsorship of immigration is impossible.45 Relationships that end in separation, or in the death of one of the partners, also leave partners with fragile claims on the children they have raised. Family law pertaining to children is difficult to navigate even in the most standard of situations. Non-biological parents of children raised in LGBT relationships that split up have virtually no established rights of visitation, or rights to participate in the future parenting of the children they might consider their own. Biological parents are much more likely to get custody of a child in the case of the end of a relationship involving only one biological parent, despite the fact that the child may have very deep ties to an adoptive parent and her entire family. Clearly this sort of dilemma is not limited to gay couples, but gay couples are among the only groups who are structurally prohibited from marrying, and gay couples who “divorce” can be guaranteed that they will be burdened in such a fashion .46 A. Democratic Doctrines of Citizenship and Gay Marriage Wrangling over gay marriage gets at the meaning of the family within democratic theory as much as do discussions of parental and state authority over children. One set of rooted objections to legalizing gay marriage in western democracies is raised by those who believe samesex relationships and the forms of reproduction open to such relationships are by their very nature not entitled to the respect accorded to traditional marriages and traditional forms of procreation. Natural law theorists such as John Finnis and Robert P. George have made arguments that link the procreative potential of heterosexual couples with the intrinsic nature of marriage.47 Finnis relies heavily on Aquinas in developing a theory of the goods associated with marriage. Sex, in this �� On a broad range of issues connecting sexuality and mobility, including those associated with marriage, see Carl F. Stychin, “A Stranger to Its Laws: Sovereign Bodies, Global Sexualities, and Transnational Citizens,” Journal of Law and Society 27(4) (2000): 601–625. 46 In a relevant U.S. case Kazmierazak v Query, a mother (Kazmierazak) sought and failed to obtain visitation rights to the biological daughter of her partner (Query), with whom she had raised the child, and from whom she had split. Since there were no mitigating circumstances to warrant the judgment that Kazmierazak was unfit for visitation rights, one can only conclude that such a harsh ruling was the product of prejudiced jurisprudence. See Kazmierazak v. Query 736 So. 2d 106109 (Fla. Dist Ct App. 1999). 47 John Finnis, “Law, Morality, and ‘Sexual Orientation,’” Notre Dame Law Review 69 (1994): 1049. 45


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nderstanding, “gives bodily expression to marital commitments,” and u therefore each is linked to goods that are inherently heterosexual.48 A related but distinct set of objections to gay marriage is raised by civic republicans who hold a traditional, but less doctrinally bound, view of marriage. Civic republican rejections of gay marriage argue that, because there has been a broad-based societal consensus that same-sex marriage is intolerable, state-sanctioned gay marriages pose an offense, or possibly even a threat, to traditional ways of life. At their extreme, republicans accuse advocates of LGBT rights of attempting to “employ the power of the state to restrict the religious self-definition and expression of employers and landlords in order to facilitate the homosexuality and bisexuality of others.”49 A slightly more moderate, if still exclusionary, incarnation of republicanism has been prevalent in recent public discussions of a constitutional amendment that would forestall gay marriages. Advocates cite an existing implicit understanding that marriage is defined in heterosexual terms.50 Republican foes of gay marriage turn to the role of marriage in democratic theory as a means to insist that the imposition of a form of marriage that was not previously recognized forces a burdensome revision of an institution fundamental to their citizenship. B. Administrative Rationality, Liberalism, and Gay Rights Liberalism and administrative rationality both launch arguments in favor of inclusive notions of family that militate in favor of conferring marital rights upon same-sex couples. Some of the arguments derived from democratic theory that are used against same-sex marriage are also used in favor of inclusion, most specifically those that suggest that samesex marriage will encourage partners to adopt the virtues that marriage is said to nurture for all families.51 I n this case, marriage is promoted as John Finnis, “The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations,” American Journal of Jurisprudence 42 (1998): note 109. 49 Richard F. Duncan, “Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom,” Notre Dame Law Review 69 (1994): 393–445. 50 Speaking on behalf of partisans of a one man–one woman conception of marriage, President Bush issued a statement proposing a constitutional ban on gay marriage. See http://www.whitehouse.gov/news/releases/2004/02/20040224-2.html; last accessed July 31, 2008. 51 For a survey of these arguments, see Jyl Josephson, “Citizenship, Same-Sex Marriage, and Feminist Critiques of Marriage,” Perspectives on Politics 3(2) (2005): 269–284. 48

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a means of encouraging specific kinds of behavior and contexts of reproduction. I n much the same way that families have been analogized to political societies, some have suggested that the marriage contract serves as a model for Montesquieu’s political “union formed by consent”52 and that “[m]arriage … offered a model of consensual juncture, voluntary allegiance, and mutual benefit.”53 Yet liberal understandings of marriage also encompass classic understandings of individual rights and the necessity of protecting those rights in contexts where those rights might be vulnerable. In a reversal of the doctrinal relationship over children’s citizenship, in which Locke’s liberal take on children’s rights opens up the need for administrative rationality to govern minors along with parents, governmental concerns are the conduit through which liberal doctrines are brought to bear on marriage rights. Both liberal norms and administrative imperatives to maintain order among otherwise “uncertain subjects” defend inclusive understandings of marriage as a means of conferring equality and maintaining order within the population.54 Kant very directly indicated that he believed marriage to be a contract involving “household” property.55 Robert Ellickson argues that this conflation of household and marriage could be regarded as an instance of illiberal norms, specifically regarding the reproduction of values via child-rearing, intruding into a liberal doctrine.56 However, the functions performed by marriage contracts historically appear tightly linked to liberal understandings of property and governmental concern with order. Contracts are relative rights engendered to protect relationships of property. In The Road to Divorce, Lawrence Stone chronicles the history of marriage, in particular the marriage contract, whose genesis coincided, not accidentally, both with Cott, Public Vows: A History of Marriage and the Nation, 11. Cott quotes James Wilson, “a preeminent statesman and legal philosopher,” as describing marriage in the following manner: “sublime and refined … principle of union.” 53 Cott, Public Vows: A History of Marriage and the Nation, 18. 54 The phrase “uncertain subjects” is invoked by Pat O’Malley in a larger and detailed demonstration that the governmental ordering functions of contract develop separately and in advance of liberal invocations of contract. Pat O’Malley, “Uncertain Subjects: Risks, Liberalism, and Contracts,” Economy and Society 29(4) (2000): 460–484. 55 Howard Williams, “Kant’s Concept of Property,” The Philosophical Quarterly 27(106) (1977): 32–40. 56 Ellickson argues that, were it not for the government and civil society’s interest in caring for children, marital law would not be privileged and adults could “tailor their own household institutions through voluntary contracts, commonly ones that are oral or implicit.” Robert C. Ellickson, The Household: Informal Order Around the Hearth (Princeton and Oxford: Princeton University Press, 2008), 128. 52


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the development of the liberal state and with heightened interest of the state in marital agreements.57 The Church of England was originally stridently opposed to the marriage contract. At the time marriage contracts were informal, often verbal, agreements that left pregnant girls with neither her virtue nor a father for her child because they were often unenforceable. Church marriages were considered preferable, at least by members of the clergy, because they contained more serious sanctions against those who did not live up to their marriage promises. Despite this, in an act of what Stone terms “institutional imperialism,” civil courts began to insert themselves into disputes regarding the legitimacy of marital contracts.58 Civil courts and the lawyers who brought cases to them were attractive mediators of such disputes because they could focus on issues of property rights, damages for broken promises, spoiled virtue, and palimony. Clergymen who were otherwise best positioned to address such situations were encumbered by pre-capitalist Christian morality, and, consequently, they could not efficiently translate sex, marriage, or abandonment into the monetary terms that rapidly eclipsed all others in importance as capitalism took root. In short, religious institutions traditionally charged with regulating marriages were hobbled by their embeddedness in illiberal norms. Since marriage and property were (and still are) inextricably linked for most couples, the church was incapable of setting the terms of marriages and their dissolutions. This historical view of marriage sheds light on how liberal understandings of property and governmental imperatives to administer become drawn into the state in its capacity as the “cockpit of politics.” The marriage contract governs not so much the normative terms of sex (since, as Stone and many others demonstrate, neither the state nor the church were able to curtail extra-marital sex of any sort) as the terms of relationships that involved the merging of property and the creation of new political statuses,59 and the birthing of new individuals. Modern marital contract law was thus born as an artifact of the dependence of individuals on the power of the state to protect their property and status, as well as out of the interest that the state had in governing these matters. This is significant because it indicates that the origin of civil m arriage Lawrence Stone, The Road to Divorce: England 1530–1987 (Oxford: Oxford University Press, 1990). 58 Stone, The Road to Divorce: England 1530–1987, 85. 59 M arriage altered both the man’s and the woman’s identity, as the male spouse came to embody both individuals under the political and economic rules associated with coverture. 57

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cannot be reduced simply to a specific type of sexual relationship or even procreation more generally. The fact that the state inserted itself into what had been a church-dominated sphere, on the grounds that the church could not effectively govern terms of marriage that existed apart from questions of procreation and legitimacy, suggests that while the state might be interested in maintaining traditional circumstances of procreation, it never would have had sufficient opportunity or incentive to insert itself into the governance of marriage, were it not for the overwhelming importance of very recognizably liberal (in this case, particularly property) rights. Once this has been established, it becomes possible to confer full rights of legal recognition upon parties to a range of relationships based on liberal norms or administrative rationality even though those relationships might be repugnant when viewed from other normative standpoints. Though the nature of most contemporary marital relationships lacks the purely material quality of, say, the relationship of a trucking company to a producer of products that need to be distributed, marriages are framed by the state as contracts. Anthony Kronman describes the consensus on the purposes of contract law in the following manner: Among contract scholars, there is nearly universal agreement that the law of contracts, the tangled mass of legal rules that regulate the process of private exchange, has three legitimate functions: first, to specify which agreements are legally binding and which are not; second, to define the rights and duties created by enforceable but otherwise ambiguous agreements; and finally, to indicate the consequences of an unexpected breach.60

Contracts exist to separate legal from extra-legal agreements, to spell out the rights and duties of a relationship, and to define the terms of “an unexpected breach.” They are relative rights that gain meaning within specific political systems. Put in these terms, marriage is a classic contract in all three senses. Marriage contracts separate legally binding relationships from more casual ones. Contracts also require specific behaviors 60

Anthony Kronman, “Contract Law and Distributive Justice,” Yale Law Journal 89 (1980): 472–511. This three-part definition is similar in substance to other standard definitions of contract:

A primary purpose is to exchange valued resources. Complementary purposes are to establish governance structures and power relationships to control exchange, to insure and indemnify against risk, to settle disputes through such devices as mediation or arbitration, and to transfer resources through non-market devices, such as gifts, wills, and trusts. Richard E. Speidel, “Afterword: The Shifting Domain of Contract,” Northwestern University Law Review 90 (1995): 255.


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from the participants. Finally, and perhaps most importantly, contracts allow for recourse when the terms of the contract have been broken, or when one or both parties wish to dissolve the contract. Marriages require the regulatory infrastructure provided by the state. The body of law dealing with the marriage contract and, in many cases, divorcing parties, requires the coercive force of the state to resolve conflicts over the division of the common life they shared. Recognizing that the state became involved in marriages because they were contracts crucial to the protection of burgeoning capitalist relationships sheds light on the competing roles of liberalism, democracy, and administrative rationality in ascribing citizenship and rights-based statuses to individuals in relation to marriage .

VI. Marriage and Remedial Rights Given the evidently profound stakes held by states in governing families, and in particular marriages, it is a testament to the strength of norms used to circumscribe democratic politics that homosexuality remains a barrier to full citizenship. Both liberalism and administrative rationality seek the kinds of order that can be achieved when relationships involving property receive public supervision in the context of the state. The public terms of marriage contracts give evidence of the sorts of administrative ends that their regulation seeks. Liberal rights-based arguments have succeeded in winning gay couples quasi-marriage status in a growing number of countries. But, as indicated earlier, these marriages are almost universally set apart and unequal to heterosexual marriage. In particular, rights related to joint parenting remain elusive. Civil unions, same-sex partnerships, registered partnerships, and even forms of marriage with almost identical rights to opposite-sex marriages are remedial institutions that act as surrogates for heterosexual marriages . They represent concessions among tradition-bound positions that reject the rights of gay unions to receive recognition, liberal arguments in favor of equal rights for all individuals, and the administrative imperative to govern families and their property. But they are not compromises of the sort that we saw sub-dividing foreign-born persons in the preceding chapter. Instead, they create different, remedial rights that parallel, but do not replicate, existing rights for opposite-sex couples. I n much the same way that juvenile courts recognize the need to govern children , which itself entails according children limited civil rights, civil union and gay marriage statuses have created separate civil and political statuses

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that recognize gay couples’ entitlement to the protection of the state. However, just as juvenile courts do not accord children the same kinds of protection they would have in “adult” courts, civil unions and related statuses are compromised, too. These exceptions are all the more striking in light of the fact that depriving people of the relative right of marriage has the additional effect of limiting autonomous rights, including those associated with residence and free movement. Just as conflicting forms of reasoning divide the foreign-born population based on layered compromises rather than consistent forms of reasoning, the rights associated with marriage have been separated to compromise between liberal norms and the imperatives of the state, on the one hand, and the apparently enduring strains within some democratic traditions that oppose fully endorsing gay families with children, on the other. From the perspective of seeking balanced compromises between logics of citizenship, the idea of surrogate institutional arrangements as a means of redressing dilemmas posed by semi-citizenship may be more successful than other existing options. Surrogate institutions take seriously the idea that anyone who is excluded from a liberal democratic state has independent interests, and that ignoring those interests has serious repercussions for the bearers of those interests, as well as the society of which they are a part. But as a model for addressing semi-citizenship, the surrogate institutions model raises as many concerns as it addresses. In neither the case of children, nor of LGBT citizens, are the surrogate institutions simply different but equivalent – separate but equal – to those of full citizens.

VII. Conclusion As we saw in the case of non-nationals, the imperfect overlap of the different logics that construct citizenship lead to differently rooted exclusions, each of which is difficult to address. The foreign-born create a tangle of semi-citizen statuses that call well-deserved attention to their status as non-citizens. Thus a wealth of language and literature attempts to situate them in relation to full citizens. Not all semi-citizens receive such comprehensive treatment in a manner that permits comparisons of the sort that have been made in this chapter. Children and LGBTs have as permanent a presence in democratic states as do non-nationals. Both are also denied significant relative rights of citizenship. In neither case is a risk of non-citizenship likely. However their semi-citizenship appears equally durable. While these cases of semi-citizenship involving relative


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rights diverge from the previous chapter’s discussion of autonomous rights, they also confirm that doctrinal conflict over the rights of citizenship is a resilient source of inclusion and exclusion. One cannot easily “de-citizenize” oneself by revoking one’s semi-citizenship. On the face of it, there appears to be a greater likelihood that the ascribed semi-citizenship of LGBTs could be more easily “remedied” than that of children. Yet in specific ways, civil unions and unequal marriage rights further cement the exclusive nature of the right of married persons, specifically with regard to parenting rights. In turn, children are rationalized as members of the population who are represented in paternal fashion, and who must await adulthood to achieve political recognition. Exclusion rooted in tradition, though it may be vulnerable to contradictions from within competing logics of citizenship, can prove as potent as exclusions based on reason of state or liberal morality. It seems no more likely that liberal reason would override democratic norms in the case of LGBTs, than it is likely that their presence within the bounds of the state alone would trigger nationality to be conferred upon all immigrants. Even if marriage rights are ultimately granted to LGBTs, a host of other groups may prove similarly situated. As this is being written, headscarves and turbans are becoming lightning rods for debates about cultural rights in the newly diverse nations of Europe. Regardless of whether legal provisions are enacted to diffuse specific conflicts, it will remain the case that minorities defined as such – based on their dissent from parts of ethically constitutive norms – persist. Remedial and surrogate rights address points at which the exclusionary dictates of any of the three doctrines of citizenship cannot be overcome by the more inclusionary dictates in either of the others .

7 Conclusion

All boundaries simultaneously include and exclude, and in so doing they simultaneously confer and deny. Citizenship, with its many elements, imposes an array of boundaries upon groups of all sorts, from populations to demoi. Upon inspection, citizenship and its attendant semicitizenships appear to behave like a piece of mercury that divides and rejoins itself under varied political circumstances. The disaggregation of nationality scatters people all over the spectrum of fundamental rights. Other forms of semi-citizenship clump larger bundles of rights together in one quadrant. Each instance of semi-citizenship presented in this book describes a group of persons living within the boundaries of a liberal democracy who have some, but not all, of the rights and status associated with full citizenship in that state. Each can be traced back through the history of the nation-state. None are recent aberrations that reflect anomalies of contemporary politics. Most examples also appear to carry a similar form throughout many, if not all, liberal democratic states. Some of the statuses in question confer nationality, some have temporary residence, and some only the most shadowy identity within the nation-state system. Many, but by no means all, offer opportunities and freedoms not associated with full membership alongside the disadvantages of partial inclusion. None are recognized with a formal legal status that connotes the existence of permanent categories of partial membership. That semi-citizenships have been the inevitable consequence of the conflicting needs and priorities of liberal norms, democratic norms, and administrative rationalities since these governing logics joined forces is demonstrated in each of the qualitative chapters of this study. These conflicts are responsible for the fact that fundamental rights can be disaggregated into semi-citizenships. But they also work to keep fundamental 204

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rights from becoming contingent on each other in a way that would make citizenship a perilous “all or nothing” status. For better and for worse, almost any part of the democratic bundle can stand alone.

How Does a Theory of Semi-Citizenship Revise Definitions of Citizenship? Re-examining definitions of citizenship through the lens of semi-citizenship suggests a few amendments to commonly accepted descriptions of formal membership. Rogers Brubaker describes citizenship as an instrument of social closure.1 This statement has rightfully borne repeating in much of the literature on citizenship that has followed the publication of his seminal study. Yet after looking at the cases and analysis presented in this book, an amendment to this statement seems necessary. Citizenship appears not to function as the institution of social closure Brubaker describes. Taking the notion of closure first, it seems clear that neither citizenship nor nationality, which Brubaker was primarily concerned with, function as an impervious gasket dividing full citizens from non-citizens as the term “closure” would imply. Rather, institutional citizenship, including but not limited to nationality, is a living, breathing membrane. It is permeable at points, closed at others. We can identify with some level of confidence the points at which it has traditionally been open and closed, as the historical comparisons in each case study demonstrate. This permeability appears to contradict much thinking about the physical and symbolic borders of liberal democracies. The liberal state would not be the first entity to have an ambivalent relationship to boundaries and to those who cross them. Yet it is neither possible nor desirable to respond to these threats by constructing categories of “in” and “out” that make no allowances for addressing ambiguity. Control of those who straddle margins may in fact be more desirable than the wholesale exclusion of potentially threatening individuals or groups. Thus, it is not surprising that a state would choose to make rules that acknowledge the permanent presence of, for example, “illegal aliens” through a set of laws that, in governing, also gives them legal recognition. What is desirable to a state is not necessarily desirable within the confines of liberalism. There are few, if any, developed theories of partial citizenship because partial citizenship has always been regarded as 1

Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992) 23.

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imposing a second-class status on vulnerable individuals and, therefore, as anti-egalitarian. In many ways, the reality of such semi-citizenships bears this belief out. However the preceding case studies demonstrate the many ways in which semi-citizenship offers opportunities not just for domination and oppression of marginal groups, but also for forms of partial inclusion that are desirable from the perspective of those very groups. Children benefit from certain forms of guidance and protection, even as they may suffer from a lack of opportunities for expression or independent opportunities for civil and legal representation. Properly constructed, partial nationality can offer recipients the opportunity to participate in the social, economic, and even political life of a community in ways that are mutually beneficial, without having to make a set of fuller and more demanding commitments that naturalization entails. Accepting that citizenship rights are disaggregated in any liberal democratic state entails accepting the inevitable presence of semicitizenship. It is important to acknowledge this inevitability because it is otherwise tempting to look at many of the groups who have semicitizenship status as temporary. In this way of thinking, immigrants naturalize, children mature, even felons can be declared “rehabilitated.” However, this changes little from the perspective of the state. Whether or not any given individual, or even a whole group of individuals, graduates to full citizenship, classes who do not have full citizenship remain a permanent fixture of any democratic state. Any individual child may reach the age of majority, but as a society we are perpetually in the process of creating politics on behalf of children. Though the cases presented in this book are not encyclopedic, they point to the fact that we are perpetually creating politics in the midst of all kinds of semi-citizens. This means that a whole host of questions persist regarding recognition of the categories themselves, as well as people who occupy them. As assiduously as we attend to injustices arising out of the circumstances of any particular person or group, we never fully transcend the questions that revolve around the permanent presence of semi-citizenship.

Normative Assessments Taking semi-citizenship, and the doctrinal conflicts that produce it, as inevitable does not obviate the assessments of normative theorists. This returns to the question, deferred from the Introduction, of what kinds

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of normative insights can be gleaned from the theory of semi-citizenship propounded in this book. Political theorists are not charged in this work with explaining how we escape dilemmas of semi-citizenship, but, rather, with explaining how we can best identify and justify the hierarchies that exist. Normative theorists will also need to think about how to more systematically represent classes of persons that will persist in democratic politics, even as individual members of those classes may graduate out of them to full citizenship. M inors, immigrants, and even people who contradict commitments produced by a demos may come to qualify for full membership, but the political presence of children, the foreign-born, and people excluded by political tradition is an ongoing fact with which liberal democratic understandings of citizenship have yet to contend. To think about questions of justice in light of the ongoing presence of semi-citizens requires also moving beyond identifying groups of semi-citizens based on their social identities. As was discussed in Chapter 3, semi-citizenships are not social identities. As structural categories, they demand that any denial of a group or individual’s autonomous and relative rights be recognized as creating semi-citizenship. This is true even when the subject in question does not belong to a traditionally disenfranchised group. It is also true of persons who actively maintain a political status other than that of full citizen. Studying semi-citizenship has several implications for normative theory. First, creating a framework for comparison will allow scholars to consider whether existing disparities in the rights available to some groups and not others represent the best possible set of arrangements, both in absolute and in relative terms. While holding any individual or group up to the standard of full citizenship is useful, it is also instructive to make judgments about the relative standing of semi-citizens, particularly in cases where it seems unlikely that full citizenship is an option. To make these judgments, scholars can examine two facets of the semi-citizenships in question. First, permanence of status: although I have argued strenuously that it is important to recognize that classes of semi-citizenship are a permanent presence within democratic states, it remains the case that a class that permanently relegates an individual to semi-citizenship has a different quality than one that can be exited. Children and citizenship-track immigrants hold a more evolutionary status than do either ex-felons who are permanently disenfranchised, or the children of guestworkers in countries with laws of jus sanguinis, who have fewer options than do (non-conscripted) members of the

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military who are subject to military justice. The former two can “earn” full formal citizenship primarily by passing enough time as semi-citizens without violating basic political norms. Members of the military, too, choose to enter and exit their status. But ex-felons and persons born with no rights of nationality are not guaranteed any future as full citizens. Second, it is also worth examining the ease with which certain forms of rights can be changed. Non-nationals in the United States then appear to have a very weak form of semi-citizenship as their rights are regularly reinterpreted by both Congress and the courts. In contrast, felons and children have relatively stable forms of citizenship. This points to the differences between governing basic interests via constitutions or via legislation. Constitutions appear to offer even semi-citizens a kind of permanence that legislation lacks. Yet, even constitutions are subject to reinterpretation. Opportunities for undocumented non-nationals in the United States, which are guaranteed by current interpretations of the Fourteenth A mendment, have been the subject of much speculation, and it is conceivable that they could be altered by a skeptical court. In Germany, the Basic Law has guaranteed asylum to all legitimate seekers since World War II. Yet the creation of temporary protected statutes has negated much of the impact of the original provision. A second implication for normative theory is that the set of explanations for semi-citizenship will help structure discussions about the kinds of justifications used to accord semi-citizenship to a particular group or person, as well as related evaluations of any changes that get made to citizenship or semi-citizenships. Accepting that accommodations must be made between liberal, democratic, and administrative principles still leaves open the very likely possibility that some compromises are more stably and fairly structured than others. And once this is accomplished, we are better positioned to recognize when a given compromise will have unintended consequences for a broader group of semi-citizens, or potential semi-citizens, if we look at a complete picture of semi-citizen groups and their standing in relation to each other, as well as to full citizens. Similarly, when we shift a new group of people into, or out of, semi-citizen status, this theory puts at our disposal something closer to a bird’s-eye view of the various kinds of reasoning that support and militate against such a change. Changes in citizenship, especially the rare but crucial moments in which citizenship is truly transformed, warrant very close inspection. Third, semi-citizenship is sometimes accomplished by offering semicitizens different rights, rather than denying them rights wholesale. This

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can be relatively straightforwardly expressed through remedial rights, e.g., when civil unions stand in for marriage. There are also more complex equations of semi-citizenship, for example, the “special representation rights” suggested by Iris Marion Young as a foil for oppression. Representation will, in her telling, help oppressed persons and groups to transcend oppression stemming from numerous structural injustices and exclusions. However, the sources of oppression (as Young describes it) are multifarious. In many cases, oppression results from a failure to protect autonomous rights such as freedom from physical fear and harm, or from the denial of an individual’s basic humanity. While representation, a relative right, is an important part of the citizenship bundle, resting an argument upon it about redressing semi-citizenship has its pitfalls. Doing so suggests that rights, if not contingent upon one another, are in some way reducible to each other. Offering a remedial right of one kind, e.g., representation, in place of another, e.g., freedom from violence and physical harm, dissolves a distinction between rights. It can equate political voice with freedom from violence and harm. This is different than, for example, offering someone who fears physical harm remedial police protection, as when the National Guard escorted children of color into school during desegregation. Furthermore, special rights of representation may not suffice for people who are not qualified to exercise the franchise or even basic civil rights of free expression. Yet the idea that recognition can remedy exclusion rests upon the premise that the exercise of civil rights in the sphere of civil society will allow people who are marginalized on the basis of their identities the opportunity to transcend the forces that have excluded or damaged their political standing. These arguments implicitly accept the idea that the exercise of rights of one kind can be leveraged into access to other kinds of rights. Almost any scholar of citizenship eschews divisions and hierarchies in favor of full inclusion in democratic polities. Prioritizing equality necessitates the dissolution of most ascriptively defined classes, as well as those rooted in social identity. Such motivations have also come to demand the tempering of free market capitalism. While this transition has been gradual, and remains incomplete in a variety of regards, it still leaves philosophers with the task of reconstructing theories of political classes in ways that accurately reflect the forces that form these classes as well as the newly formed classes themselves. The most important patterns suggested by this study are those that dictate how relationships of contingency between rights are imposed. Different doctrines will dictate different relationships of contingency. What demands inclusion in the

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eyes of administrative rationality may not be so from the point of view of democracy, or liberalism, or even the state. While basing some rights of citizenship on the presence and exercise of other citizenship rights may seem desirable to those pursuing an elusive high standard of full inclusion, it poses a threat from the perspective of marginal persons who may not qualify for full citizenship. The formal legal category of statelessness was, after all, created to give substance to the political ghosts of World War II.

Conclusion Although each of the cases in this book has been presented as part of the entire history of liberal democracy, the fact remains that citizenship is in no way a static institution. While numerous critiques of premature conclusions regarding the efficacy and importance of postnational citizenship have been leveled at theorists trumpeting such developments, it is very likely that globalization will impose important changes upon citizenship as we know it in the coming years and decades. Forces not yet imagined may also intervene to re-shape memberships in ways this study does not predict. Yet even if all else changes, one conclusion reached over the preceding six chapters that seems likely to maintain its relevance is that citizenship is a malleable institution. For all the permanence that terms such as birthright citizenship and fundamental rights imply, we find very few statuses or rights that are so permanent or so fundamental to citizenship that they can be generalized across all people throughout all of modernity. This has at times proven cause for consternation or, alternately, celebration. In either case, acknowledgement and further examination of the status of semi-citizens by the states that govern them would seem warranted. If change is likely, perhaps it might begin by extending to the very idea of semi-citizenship some sort of recognition, a concept deeply bound up with the dignity that liberal democracy purports to confer upon even the most marginal of its members.

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Index

administrative rationality, 7, 8, 29, 30, 90, 93, 95, 96, 99, 102, 108, 110, 116, 119–29, 131, 139, 141, 142, 143, 149, 150, 151, 152, 153, 155, 156, 164, 165, 167, 169, 170, 171, 174, 176, 179, 180, 184, 185, 186–201, 210 adoption, 195 adulthood, 39, 188, 203 Africa, 170 African-Americans. See blacks Agamben, Giorgio, 1, 35, 52, 53, 88 alienage, 54, 166 aliens, 35, 36, 51, 154 illegal, 52, 76, 163, 164, 171, 205 legal, 35 resident, 53, 162 amnesty, 147, 163, 164 Arendt, Hannah, 40, 52, 132, 133, 143, 150, 190 Aristotle, 2, 3, 43, 59, 64, 69, 145 ascription, 7, 86, 90, 128, 137, 152, 153, 178, 201, 209 assimilation, 153, 159, 160, 161 asylum, 135, 156, 157, 158, 159, 167, 208; also see rights of asylum seekers, 1, 156, 159, 165, 167 temporary, 168 Australia, 22, 75

Bauböck, Rainer, 32, 145 benefits, 11, 12, 33, 47, 50, 172 Benhabib, Seyla, 44, 53, 156 biopolitics, 35 birth rate, 150 birthright citizenship, 145, 187, 210; also see birthright nationality birthright nationality, 51, 131, 145, 187, 189; also see birthright citizenship blacks, 1, 63, 91 border crossings, 54 Borjas, George, 171 Bosniak, Linda, 5, 13, 29, 54, 56, 104, 166, 173 boundary management, 124 Bracero program, 76, 163 Brown, Wendy, 89 Brubaker, Rogers, 32, 34, 38, 153, 154, 160, 205 Burke, Edmund, 23, 27, 55, 88, 184 Canada, 195 Carens, Joseph, 114, 151 categories, 12, 18, 34, 50, 61, 63, 71, 73, 74, 79, 81, 89, 90, 91, 102, 108, 127, 134, 145, 146, 156, 159, 160, 205, 206 administrative, 159 227

228 categories (cont.) of citizenship, 20, 134, 155, 175 of economic immigrants, 160 of economic immigration, 156, 162 of immigrants, 156 of immigration, 152, 162 imperialism of, 19 of membership, 134, 154 normatively-defined, 169 of partial membership, 204 of partial nationals, 168 of permanent residence, 155 political, 2, 16, 34, 124 of quasi-citizens, 52 of rights, 42, 61, 63, 68, 112 of semi-citizenship, 5, 35, 60, 64, 75, 93, 134, 147 of social identity, 77, 91 structural, 119, 207 census, 50, 106, 181 childhood, 11, 39, 182, 185, 188, 194 children, 6, 10–12, 31, 35, 39, 69, 71, 72, 73, 74, 76, 83, 91, 92, 104, 131, 133, 134, 140, 148, 164, 170, 179–96, 198, 201–03, 206, 207, 208, 209; also see minority, age of; majority, age of Chinese Exclusion Act, 158, 163 citizenship, alien, 54 cosmopolitan, 17, 53, 102, 172 differentiated, 3, 4, 5, 48, 49, 50, 51, 62, 77 environmental, 62, 66 multicultural, 18 nested, 105, 130 normative models of, 5, 20, 99 philosophy of, 21, 153 postnational, 17, 66, 143, 172–75, 210 as practice, 4, 12, 15, 18, 20, 22, 25, 31, 33, 37, 45, 48, 56, 71, 77, 96, 97, 103, 124, 145 as praxis, 21, 33 status citizenship, 5, 54, 104

Index transnational, 147 unequal, 3, 17, 50 civic republicanism. See republicanism civic republicans. See republicanism civicness, 29, 31, 47, 82 civil society, 30, 44, 46, 47, 81, 88, 120, 124, 184, 198, 209 civil union. See gays and lesbians class conflict, 7, 137 class interest, 137, 138 cockpit of politics. See state communitarianism, 7, 23, 44, 45, 46, 47, 110 Constant, Benjamin, 4, 55, 87, 88, 90 constitutions, 2, 17, 27, 28, 29, 52, 54, 67, 82, 98, 109, 133, 134, 138, 197, 208; also see United States Constitution contested political concepts, 18; also see essentially contested concepts contingency, 14, 15, 20, 23, 27, 28, 38, 69, 97, 115, 122, 142, 209 of rights, 6, 23–28, 69, 94, 98, 101, 103, 135, 205, 209 contract, 41, 63, 67, 69, 111, 113, 118, 147, 192, 198, 200, 201 law of, 200 legal, 181 of marriage, 10, 67, 198–201 right to, 67, 80, 114 scholars, 200 social, 22, 129 coverture, 63, 192; also see property Cuba, 2, 1, 135 Cuban immigration, 151, 162 Dahl, Robert, 38, 39, 45, 46, 57, 64, 74, 82, 115, 122, 129, 130 Dahrendorf, Ralf, 55, 132 democracy, 13, 18, 23, 27, 30, 38, 45, 46, 57, 66, 67, 74, 100, 102, 110, 111, 113, 114, 115, 126, 140, 152, 167, 193, 194, 210 with adjectives, 57

Index deliberative, 44 ethical, 82, 96, 97, 101–03, 108, 128, 164, 171, 201 liberal, 55, 65, 70, 109, 131, 181, 204, 210 pluralist, 65 procedural, 23, 26 social, 98 substantive, 26 demos, 30, 38, 39, 46, 82, 111, 114, 121, 122, 123, 129, 130, 151, 164, 189, 194, 204 denization, 154, 155 denizens, 52, 144, 148, 154, 155 desert, 26, 37, 38, 44, 49, 142, 156, 165 disenfranchisement, 7, 74, 129 displaced persons, 72, 145 internally, 145, 148 dual nationality, 148 due process, 41, 67, 69, 71, 74, 135 duties, 3, 22, 28, 37, 54, 78, 86, 181, 200 economic refugee, 168; also see refugees education, 66, 68, 104, 112, 113, 180, 186, 192 enemy alien, 127, 135; also see aliens, enemy combatants enemy combatants, 72, 91, 148; also see aliens England, 154, 157, 166, 168, 199 equality, 2, 3, 4, 9, 12, 25, 28, 40–42, 43, 46, 51, 88, 93, 108, 109, 111, 113, 114, 115, 117, 122, 129, 130, 135, 137, 138, 140, 183, 198, 209; also see inequality essentially contested concepts, 13, 16, 57; also see contested political concepts ethics, 100 ethnicity, 137 European Union, 66, 74, 150, 155, 156, 158, 163, 173, 174

229 European Union Tampere Directive on the Rights of Long Term Residents, 72 exclusion, 3, 7, 22, 35, 49, 50–53, 63, 74, 76, 82, 83, 84, 90, 92, 94, 96, 102, 104, 108, 113, 123, 128, 131, 133, 135–38, 172, 179, 180, 182, 184, 185, 193, 194, 197, 202, 203, 205, 209; also see inclusion exploitation, 138 extraordinary rendition, 72, 176 Failer, Judith Lynn, 28 family law, 194, 196 Federalist # 10, 2 felons, 1, 12, 22, 73, 74, 84, 87, 91, 92, 129, 134, 180, 206, 207, 208 feminism, 4 fiduciaries, 186, 191, 192 fiduciary model, 191 foreign residents, 164 foreign workers, 160, 171 foreign-born, 9, 10, 63, 72, 142, 152, 156, 160, 166, 179, 182, 187, 189, 191, 201, 202, 207; also see non-nationals foreigner, 3, 39, 49, 50, 51, 53, 62, 71, 84, 101, 102, 104, 106, 108, 125, 127, 160, 166, 193 foreignness, 39, 49, 53, 101, 102, 104, 154, 155, 156, 179, 182 Foucault, Michel, 89, 116, 117, 118, 121, 132; also see governmentality Fourteenth Amendment, 208 France, 2, 23, 32, 34, 38, 62, 63, 70, 80, 88, 111, 145, 150, 153, 154, 155, 157, 158, 159, 160, 162, 163, 164, 166, 168, 170, 181 franchise, 6, 10, 18, 22, 26, 31, 45, 46, 63, 79, 80, 82, 83, 111, 112, 129, 134, 191, 209; also see voting

230 Fraser, Nancy, 7, 89, 90, 114, 118, 120 free expression, 25, 26, 209 free market, 27, 67, 141, 171, 209 free speech, 79 gays and lesbians, 10, 35, 70, 73, 79, 84, 179, 194, 195, 196, 202, 203, 206; also see homosexuality citizens, 202 citizenship, 10, 140, 195, 203 civil union, 10, 180, 193, 195, 201, 202, 203, 209 couples, 91, 180, 193–96, 197, 201, 202 families, 202 marriage, 73, 180, 195, 196–97, 201 parents, 195 partnership, 77, 195, 201, 206 relationships, 196 rights of, 194, 197–201 same-sex headed families, 195 unions, 194, 201 gender, 54, 85, 93, 104, 108, 137, 175; also see women Germany, 2, 32, 38, 45, 75, 153, 155, 158, 160, 162, 166, 168, 169, 170, 187 basic law of, 29, 167, 208 globalization, 146, 210 Gonzalez, Elian, 1 goods, 24, 42, 60, 64, 65, 66, 67, 119, 141, 197 autonomous, 65, 81, 141 democratic, 111 foundational, 67 of marriage, 196 political, 97 relative, 65, 81 governmentality, 1, 30, 116–30, 138, 140, 149, 164, 165, 186, 187, 194; also see Foucault, Michel Great Britain. See England

Index Greece, 13, 102, 104, 164; also see Greeks Greek citizenship, 101, 102, 105 Greek city-states, 101, 106 Greek democracy, 105, 108 Greek thought, 100 oikos, 100 polis, 100 Greeks, 100, 101, 102, 108; also see Greece green card, 22, 172, 181 gross concepts, 4 Grotius, Hugo, 157 Guam, 146 guests, 3, 162 discretionary, 72 guestworkers, 2, 72, 76, 79, 147, 162, 163, 168, 169, 170, 172, 207 Habermas, Jürgen, 25, 44, 48, 55, 65, 172, 173, 174 Hart-Celler Act, 1965, 162 Hartz, Louis, 128 healthcare, 62, 65, 68, 75, 112, 172, 180 homeless persons, 11, 92, 135, 145, 148 homosexuality, 28, 197, 201; also see gays and lesbians Honig, Bonnie, 50, 51 human trafficking, 161 identity groups, 7, 86, 89, 91, 92, 121, 175 Illegal Immigration Reform and Immigrant Responsibility Act, 1996, 156 immigrants, Chinese, 162 citizenship-track, 172, 207 deportable, 163 documented, 11 economic, 9, 147, 156, 158, 159, 166–69, 176 non-refugee, 164, 166, 176, 178 non-status, 147 permanent, 162

Index recent, 135 temporary, 162 Turkish, 162, 169 undocumented, 11, 72, 147, 157, 163, 164, 172 Immigration Reform and Control Act, 1986, 163 inclusion, 4, 9, 35, 39, 49, 50, 51, 82, 83, 84, 85, 94, 96, 98, 122, 123, 130, 135, 136, 140, 193, 197, 203, 204, 206, 209, 210; also see exclusion indentured servitude, 76, 161, 170 indigenous, groups, 68 peoples, 148 persons, 2, 51 populations, 146 inequality, 3, 7, 33, 49, 50, 89, 90, 91, 92, 119, 125; also see equality insane. See mentally ill International Court of Justice, 144 Irish, 63 Israel, 44 Italy, 164 Janoski, Thomas, 54, 55, 65, 69, 78, 81 Japan, 45 Jews, 53, 83, 84, 166 Joppke, Christian, 20, 153, 154 jury duty, 22 jus sanguinis, 38, 44, 45, 84, 85, 131, 145, 152, 153, 154, 176, 186, 207 jus soli, 38, 84, 131, 145, 152, 153, 170, 176, 186 justice, 5, 41, 43, 47, 49, 50, 66, 90, 91, 92, 117, 130, 183, 190, 191, 207, 208 juvenile justice system, 190, 191 Kant, Immanuel, 2, 3, 21, 112, 141, 198 law, administration of, 16

231 Anglo-American, 28 public, 17 Roman, 185, 192 LGBTs. See gays and lesbians liberal democracy. See democracy liberalism, 8, 27, 46, 88, 96, 97, 98, 100, 111, 113, 114, 115, 117, 126, 127, 128, 129, 130, 140, 143, 151, 152, 164, 174, 179, 182, 185, 189, 193, 195, 197, 201, 205, 210 Lister, Ruth, 13, 20, 21, 56, 80 Locke, John, 98, 117, 184, 185, 186, 187, 198 long-term resident, 52, 173 Madison, James, 2, 3, 135 majority, age of, 62, 120, 131, 134, 181, 187, 206 Mann, Michael, 42, 80, 107, 127, 128, 136, 137 margizens, 52 marriage, 10, 71, 109, 183, 184, 193–201, 209; also see contract; gays and lesbians church, 199 civil, 199 heterosexual, 195, 197, 201 non-traditional, 194 opposite-sex, 201 traditional, 196 Marx, Karl, 85, 86, 88, 137, 138 mentally defective. See mentally ill mentally ill, 28, 35, 39, 63, 74, 123, 127 metic, 3, 101 Mettler, Suzanne, 17, 44 military, 63, 64, 73, 74, 91, 100, 101, 102, 106, 107, 123, 135, 137, 180, 190, 191, 195, 208 military courts, 6, 63, 73, 191 Mill, John Stuart, 98, 182, 183, 185, 187 minimum wage, 172 minorism, 181, 182, 183, 186; also see minority, age of

232 minority, 36, 134, 138, 203 age of, 35, 131, 179, 181, 189, 198, 207; also see minorism cultural, 3 national, 68, 144, 148 racial, 68 sexual, 179 misrecognition, 138; also see recognition Montesquieu, 88, 98, 109, 198 Myrdal, Gunnar, 128 national health insurance. See healthcare national identity, 44 National Origins Quota Act, 162 nationalism, 144 nationality, 6; also see rights native-born, 53, 150, 154, 162, 172, 178 naturalization, 45, 76, 80, 94, 146, 154, 155, 158, 169, 176, 206 New Zealand, 2 non-nationals, 10, 63, 157, 174, 189, 208; also see foreign-born ombudsmen, 191 Oommen, T. K., 30, 113 oppression, 49, 74, 89, 92, 93, 118, 209 economic, 137, 167 of marginal groups, 206 political, 88, 164, 167 racial, 137 sexual, 137 structural, 92, 209 orphans, 148 palimony, 199 participation, 12, 20, 21, 26, 30, 32, 37, 44, 45, 57, 65, 67, 98, 104, 114, 124, 141, 157, 173, 192 political, 18, 23, 46, 90, 168 passport, 1, 31, 35, 73, 74, 133, 146, 147, 149, 177 paternalism, 67, 183, 189, 192 patriarchy, 100, 118

Index patriotism, 87 pension plans, 172 permanent residents, 64, 73, 148, 155 persecution, 66, 72, 156, 165, 169 political, 166 religious, 53, 157 personhood, 27, 139, 185 philosophy, 44; also see citizenship liberal, 98 political, 49, 144, 183 Stoic, 104 Pocock, J. G. A., 105, 106, 185 Poggi, Gianfranco, 126, 132, 134 police, 121, 123, 130, 209 polyarchy, 45, 46, 57 Portugal, 164, 166 postcolonialism, 148, 166 privileges, 24, 37, 73, 77, 107, 156, 157, 168 procreation, 196, 200 property, 6, 23, 41, 63, 67, 88, 101, 102, 103, 112, 113, 114, 154, 155, 164, 185, 192, 194, 198, 199, 200, 201 Protestant work ethic, 113 Prussia, 153, 154, 155 Puerto Ricans, 68, 83, 148, 166 Puerto Rico, 63, 146, 166 race, 17, 85, 89, 91, 93, 108, 137, 165, 175 racism, 93 Rawls, John, 74, 115, 117 reason of state, 82, 118, 203 recognition, 7, 11, 12, 22, 44, 91, 92, 93, 104, 138, 147, 195, 201, 206, 209, 210; also see misrecognition legal, 188, 200, 205 political, 2, 203 politics of, 11 redistribution, 69 politics of, 11 refugees, 9, 52, 53, 92, 127, 145, 147, 148, 152, 156–59, 162, 164, 165, 166, 167, 168, 169, 181; also see economic refugee

Index registered partnerships. See gays and lesbians representation, 23, 26, 57, 68, 69, 80, 84, 106, 112, 141, 181, 188, 191, 192, 209 legal, 206 political, 79, 112, 131, 181 republicanism, 7, 23, 40, 43–47, 67, 114, 183, 184, 197 responsibilities, 5, 13, 27, 40, 75, 147, 151 rightlessness, 10 rights; also see contingency, of rights; gays and lesbians active, 69 of asylum, 80, 158, 168 autonomous, 6, 7, 10, 65, 66, 68–73, 76, 77, 78, 79, 85, 86, 94, 96, 97, 99, 100, 101, 103, 106, 108, 109, 110, 111–13, 115, 116, 117, 120, 121, 125, 129, 131, 139, 140, 141–43, 144, 146, 155, 156, 157, 165, 166, 168, 169, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 186, 187, 194, 195, 202, 203, 207, 209 to bequeath property, 63 bundle of, 6, 8, 25, 43, 59, 62, 63, 64, 68, 70, 78, 83, 94, 113, 133, 134, 168, 175, 180, 204 of children, 10, 83, 131, 182, 183, 185, 190, 198 civil, 23, 25–27, 40, 41, 42, 46, 62, 63, 64, 66, 67, 69, 71, 72, 73, 78, 79, 80, 83, 84, 91, 98, 113, 141, 154, 157, 161, 168, 174, 176, 201, 209 of conscience, 81 contingency of, 6 to contract, 63, 67, 69, 114 cultural, 42, 68, 80, 81, 203 democratic, 5, 27, 67, 112, 115, 131 denial of, 82, 93, 133, 176 to drive, 64

233 to due process, 69, 74, 135 economic, 42, 46 of entrance, 144, 145, 146, 147 environmental, 42, 172 to form families, 66, 141 of free expression, 209 of free movement, 9, 62, 66, 72, 74, 76, 98, 103, 106, 114, 117, 141, 142, 143–46, 147, 150, 151, 153, 155, 156, 157, 160, 161, 165, 174, 178 to free speech, 141 to freedom of thought, 141 fundamental, 24, 25, 27, 28, 61, 70, 134, 172, 204, 210 to hold office, 67 of hospitality, 3 human, 27, 47, 165 of immigration, 165 individual, 41, 130, 164, 170, 198 internally disaggregated, 9 to justice, 41 legal, 69, 78, 190 of legal recognition, 200 liberal, 8, 82, 89, 112, 114, 138, 201 to liberty, 24 of marriage, 71, 91, 193, 195, 196, 197, 198, 202, 203 of membership, 77, 80, 81, 190 moral, 78 of nationality, 6, 9, 27, 63, 69, 72, 73, 78, 142, 146, 152, 153, 155, 171, 175, 176, 177, 178, 180, 187, 208 to naturalize, 145 to one’s bodily integrity, 66 of ownership, 192 parental, 185 parenting, 195, 196, 201, 203 partial, 6, 175 of participation, 41, 98 passive, 69 paternal, 185 to petition, 161 of place, 98

234 rights (cont.) political, 6, 10, 23–26, 62, 63, 67, 69, 73, 78, 79, 80, 83, 87, 92, 93, 98, 152, 157, 173, 176, 191 positive, 24 postnational, 173 of property, 6, 23, 41, 67, 101, 113, 154, 199, 200 of refuge, 164 relative, 6, 7, 10, 64–70, 72, 73, 76, 77, 78, 79, 85, 86, 94, 96, 97, 98, 99, 100, 101, 103, 106, 108, 109, 110, 112, 113, 115–17, 120, 121, 125, 129, 131, 139, 140, 141, 142, 143, 146, 155, 156, 157, 165, 166, 168, 169, 173, 175, 176, 178–203, 207 remedial, 180, 189, 193, 201, 209 of representation, 69, 112 reproductive, 80, 81 of residence, 6, 9, 62, 66, 68, 72, 76, 92, 98, 101, 106, 114, 141, 142, 144–53, 155, 156, 161, 164, 165, 168, 169, 178 to self-govern, 69, 167 social, 6, 15, 23–27, 31, 41–43, 51, 55, 62, 63, 69, 72, 73, 75, 78, 79, 80, 83, 92, 98, 113, 114, 131, 134, 157, 168, 170, 176 of space, 103 special, 209 to special representation, 209 to speech, 24 of visitation, 196 voting, 25, 26, 27, 45, 46, 65, 77, 93, 174, 191 welfare, 23, 24, 41, 75, 113, 114, 141 to work, 42, 156, 160 Roma, 51, 72 Rome, 105, 106 Rousseau, Jean-Jacques, 2, 3, 44, 50, 98, 106, 109, 111

Index Sahlins, Peter, 62, 154 same-sex partnerships. See gays and lesbıans Sandel, Mıchael, 46, 47 Schengen, agreement, 74 Treaty, 164 visas, 173 Schuck, Peter, 52, 53, 157, 186, 187 Scott, James, 4, 150 security, 6, 10, 12, 26, 41, 66, 67, 68, 73, 85, 117, 124, 127, 149, 174, 176, 186 self-determination, 30 self-government, 69, 100, 101, 102, 108, 114, 129, 146, 167, 184, 187, 189 self-representation, 12 sexism, 92 Shklar, Judith, 3, 18, 32, 33, 63 slaves, 53, 100, 104, 107, 108, 160, 161 Smith, Rogers, 3, 17, 128, 137, 186, 187 social security, 172 social welfare, 18, 23, 46, 75, 113, 180 Somers, Margaret, 18, 48 Sorites Paradox, 34, 59, 60 sovereignty, 8, 28, 35, 51, 52, 53, 68, 88, 89, 103, 105, 118, 121, 122, 124, 129, 130, 139, 142, 143–50, 168, 169, 174 Soysal, Yasemin, 172, 173, 174 Spain, 164, 166 state, administrative, 50, 66, 100, 110, 117, 135, 149, 186 as cockpit of politics, 126, 139, 165, 174, 189, 199 constitutional, 2 democratic, 12, 25, 37, 94, 146, 147, 157, 179, 184, 202, 206, 207 liberal, 4, 88, 89, 138, 151, 153, 154, 199, 205

Index liberal democratic, 1, 2, 5, 7, 9, 10, 22, 31, 50, 70, 83, 95, 96, 128, 129, 156, 168, 180, 186, 202, 204, 206 modern, 13, 99, 110, 119, 125, 133 welfare, 89 stateless persons, 72, 74, 75, 92, 132, 133, 145, 146, 148, 175, 176, 187, 190, 210 stoicism, 102–05 Stoics, 104 strangerhood, 102 subjecthood, 54, 132 subjects, 2, 54, 88, 89, 121, 122, 146, 154, 176, 182, 198 taxes, 11, 22, 50, 101, 106, 191, 194, 195 Temporary Protected Status, 145, 148, 157, 168, 176 temporary protected statutes, 208 temporary residence, 149, 204 territoriality, 52, 103 theory, democratic, 3, 8, 21, 22, 30, 36, 49, 55, 61, 71, 75, 82, 96, 98, 100, 102, 103, 110, 112, 115, 116, 117, 118, 124, 129, 136, 143, 151, 165, 179, 182, 183, 184, 185, 189, 196, 197 ethical, 121, 176 liberal, 3, 82, 89, 110, 112, 115, 124, 130, 136, 139, 142, 165, 167 of membership, 96 modernization, 19 moral, 89 neo-Aristotelian, 46 normative, 7, 8, 14, 18, 29, 31, 55, 60, 69, 75, 83, 95, 98, 99, 102, 110, 116, 117, 118, 119, 120, 124, 131, 136, 165, 207, 208 republican, 23, 43 social, 118 of the state, 111

235 Third Country Nationals, 173, 174, 175 Tichenor, Daniel, 158 Tilly, Charles, 34, 64, 65, 109 Tocqueville, Alexis de, 128 transients, 39, 74 Turner, Bryan, 42, 66, 137 United Kingdom; see England United States, 1, 17, 22, 27, 54, 63, 68, 74, 75, 76, 85, 86, 91, 111, 114, 135, 148, 154, 156–63, 164, 167, 168, 170, 171, 181, 184, 191, 195, 208 United States Constitution, 27, 29, 52, 54 utilitarianism, 23 Virgin Islands, 146 virtue, 17, 18, 43–47, 51, 57, 105, 183, 184, 197, 199 visas, 22, 76, 122, 133, 147, 149, 163, 166; also see Schengen Bracero, 76 H1-B, 163 H2, 163, 172 H2-B, 163, 172 HB, 163 H-Class, 163 temporary, 147, 163, 169, 171, 172 work, 163, 171 voting, 26, 77, 129, 174, 190 Walzer, Michael, 54, 166 Washington D.C., 63 Weber, Max, 20, 34, 118 women, 17, 35, 53, 63, 91, 100, 101, 104, 108, 137, 138, 192, 193 work permits, 147, 157, 158, 166 workers, 53, 55, 160, 161, 162, 169 agricultural, 163 foreign, 171 HB, 163 native-born, 172

236 workers (cont.) skilled, 163 temporary, 9, 115, 156, 157, 160, 171, 176 undocumented, 76, 163, 170, 172 unskilled, 163

Index xenos, 101 Young, Iris Marion, 49, 50, 55, 74, 77, 89–91, 93, 119, 209 Yugoslavia, 168 zero immigration, 149

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