SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE, AND AMERICAN CITIZENSHIP. By T. Alexander Aleinikoff. (1) Harvard University Press. 2002. ix + 301 pp. $48.00. (2)
I agreed to review this excellent book some two years ago, shortly after it came out; the pressure of other commitments led me to take much longer completing my task than I had intended. However, almost all clouds have silver linings; my delay has enabled me, upon rereading the book, both to see new implications in 2004 that I might have missed in early 2002 and, therefore, to weigh differently some of Aleinikoff's arguments. His topic, which is "sovereignty" and its "semblances," is at the forefront of both much current public debate and discussion by scholars interested in both the theory and practice of politics or of legal systems. But he is also vitally interested in examining the meanings (and importance) that we ascribe to citizenship; indeed, he offers as one of his central purposes to "decenter" the relevance of citizenship to enjoying relatively full membership in the American legal order. Both topics are of great--and ever stronger--interest to me. (4)
But one can scarcely be uninfluenced in the consideration of such issues by ever-forward movement by the United States into a presumably endless "war on terrorism." Crucial to that war is the continuing importance (or lack of same) of such analytic concepts like "sovereignty," especially if we emphasize the "Westphalian" definition of sovereignty as the inviolability of national borders. Perhaps even more to the point, we are pressed, almost daily, to emphasize the importance of differentiating between friend and foe with regard to the conduct of that war (including, of course, deciding which national borders have lost their presumptive inviolability). One finds grim corroboration for the German (5) political philosopher Carl Schmitt insight that politics "can be understood ... in the context of the ever present possibility of the friend-and-enemy grouping." (6) I elided the one word "only," for I am certainly suspicious of reducing all of politics to the singular context of the grouping of "friend-and-enemy." But this is not to deny that the perceived presence of a true enemy, like the prospect of one's death (with which, of course, it is connected) tends to clarify the mind and, inevitably, to influence the kinds of politics seen in any given situation. "Friend-and-enemy" can take many forms; for all too many, on occasion, the categories of "friend-and-enemy" seem to invite the use as proxies of the legal categories "citizen" and "alien."
I will first discuss some of Aleinikoff's arguments concerning citizenship and then turn to the explicit issue of "sovereignty." I should make clear at the outset, though, that any political system, such as our own, that is founded on the popular sovereignty of "We the People" must necessarily have some special interest in 1) who exactly comprises the sovereign People; 2) whether citizenship is relevant to being a member of that sovereign entity; and, finally, 3) whether the demos, however defined, has truly unlimited power, at least in theory, to decide as they will, free of any binding normative constraints.
It is no small point that one of Aleinikoff's purposes is to attack any strong reliance on the category of citizenship. The United States, quite obviously, was built by immigrants from other countries, most who came to this country voluntarily, though some most certainly did not. And most retained, for greater or lesser periods, some measure of identification with and loyalties to their "old countries." From one perspective, the United States, as a collective political entity following ratification of the 1787 Constitution, has never been a genuine "nation-state" inasmuch as that term suggests that each geographically organized polity (i.e., "state") consists even primarily, let alone exclusively, of a single discernable ethnos (i.e., "nation"). It has always organized itself, at least officially, around an ideology of what I have elsewhere termed "constitutional faith." (7)
Because of changes in American immigration law beginning in the 1960s, the United States continues, to a remarkable degree, to be a nation of immigrants and, therefore, of resident aliens, some of them legal, some of them, of course, not. Consider in this context a projection by the United States Census Bureau that the U.S. population in 2050 will be slightly over 400 million, (8) as compared with a current estimated population of 294,107,506. (9) The Bureau makes its estimates by assuming one birth every eight seconds, one death every 12 seconds, and one international migrant (net) every 25 seconds, with a net gain of one person every eleven seconds. (10) Of this projected growth, 36 percent may result from immigration, with over 45 million new immigrants likely to be added next 50 years. Many will undoubtedly wish to become citizens (especially if the United States becomes increasingly tolerant of "dual nationality," which was barred by the Naturalization Act of 1795), (11) but many, no doubt, will wish to proclaim only their initial political identity, whether for reasons of sentiment or because they expect to return to the "old country" after amassing a suitable nest egg here. (12)
There is no reason to believe that Aleinikoff objects to such developments; indeed, as already suggested, he welcomes strangers to our shores and is especially attentive to the possibility that such aliens will be discriminated against by a polity that views them as (mere) strangers. This leads him to offer a "decentered" (pp. 9, 152, 177ff) conception of citizenship, the practical import of which is to lessen its relative importance as a predicate condition for enjoying a host of constitutional rights, ranging from classic "negative liberties" celebrating the "right to be let alone" (13) by the state to more affirmative rights to enjoy the benefits of a welfare state and, ultimately, the right to participate in institutions of self-governance such as voting. "[L]awful, settled members of a polity are entitled to consideration from, and perhaps participation in, the political system that exercises power over them.... [O]nce an immigrant is admitted and takes up permanent residence in the United States, discrimination on the basis of alienage alone begins to appear arbitrary" (p. 174) and, therefore, unconstitutional. "State laws excluding aliens from opportunities should be seen as no more legitimate than laws excluding redheads" (id.).
What this means, obviously, is that citizenship can no longer be viewed as a necessary (though, presumably, it remains a sufficient) condition for the enjoyment of a variety of rights (including, possibly, participation rights) within the American polity. He views as "too binary" the distinction between citizen and alien, in which the "first status is accompanied by full membership rights, the second by only those political and social rights that a beneficent sovereign [the "We the People" that presumably consist only of the citizenry] grants to its guests" (p. 147). In place of the binary distinction, Aleinikoff offers the notion of "denizenship" to address the rights that should be enjoyed by "lawful residents who participate in and contribute to the social and economic life of a community" (id.).
Aleinikoff explicitly renounces the claim "that we have entered a postnational world where, as Yasemin Soysal has argued, the legitimacy of the nation-state is grounded on its conformance with international human rights principles rather than on popular sovereignty" (p. 179). It is not clear to me, though, why he is not more sympathetic to Soysal, (14) especially inasmuch as he clearly wishes to emphasize one's status as a "person" rather than a "citizen" when, for example, interpreting the Fourteenth Amendment. He fully agrees with Alexander Bickel's laconic observation that citizenship "is a simple idea for a simple government" and is thus unsuited to the considerably more complex world within which we live (and, for that matter, have always lived). (53) (15) One might well object, for example, to Dred Scott not only because of its racist assumption that blacks are incapable of becoming American citizens, but also because of its (not so) latent assumption that only citizens can be members of the American constitutional community and, therefore, entitled to a full panoply of rights (one of which, for Taney, is the right to bear arms). (16) But one should also recognize, for better and worse, that Taney's argument sounded deeply in the theory and logic of "popular sovereignty." Although we can rejoice that the opinion was "overruled," as it were, by the first sentence of the Fourteenth Amendment, (17) one can relatively easily conceive of a counter-history whereby a less liberal United States placed into its text an explicit statement, as with the Nationalization Act of 1790, that only whites could be citizens. (18) If one adopts a certain reading of the Constitution only because it is, in fact, the best understanding of what that particular document commands, then that implies, as a logical correlative, that the Constitution could be quite different, possibly committed to completely opposite values, if only the relevant sovereign so commanded. (19) But if one truly regards certain rights as "fundamental," one should admire the post-World War II German Constitution far more than the United States Constitution inasmuch as the former made certain of its human dignity provisions unamendable. (20) It also follows, though, as an equally logical correlative, that this involves rejecting a robust notion of sovereign legal power in favor of overarching substantive norms. It is, perhaps, unfair to criticize Aleinikoff for not writing an even more ambitious book on political and constitutional theory than the very interesting one that he did write. That...