Multilevel Citizenship 9780812208184

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Multilevel Citizenship

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DEMOCRACY, CITIZENSHIP, AND CONSTITUTIONALISM Rogers M. Smith and Mary L. Dudziak, Series Editors

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MULTILEVEL CITIZENSHIP

Edited by

WILLEM MAAS

universit y of pennsylvania press phil adelphia

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Copyright  2013 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data Multilevel citizenship / edited by Willem Maas.—1st ed. p. cm.—(Democracy, citizenship, and constitutionalism) Includes bibliographical references and index. ISBN 978-0-8122-4515-8 (hardcover : alk. paper) 1. Citizenship. 2. Political rights. I. Maas, Willem, 1972– JF801.M865 2013 323.6—dc23 2012048063

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Contents

Preface

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Chapter 1. Varieties of Multilevel Citizenship willem maas

1

Part I. Migrants and Migrations Chapter 2. Denizen Enfranchisement and Flexible Citizenship: National Passports or Local Ballots? luicy pedroza

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Chapter 3. Attrition through Enforcement in the ‘‘Promiseland’’: Overlapping Memberships and the Duties of Governments in Mexican America rogers m. smith

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Chapter 4. Multilevel Citizenship in a Federal State: The Case of Noncitizens’ Rights in the United States jenn kinney and elizabeth f. cohen

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Part II. Empires and Indigeneity Chapter 5. When Did Egyptians Stop Being Ottomans? An Imperial Citizenship Case Study will hanley

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Chapter 6. The Su Bao Case and the Layers of Everyday Citizenship in China, 1894–1904 elizabeth dale

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Chapter 7. The International Indigenous Rights Discourse and Its Demands for Multilevel Citizenship sheryl lightfoot

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Part III. Local, Multinational, and Postnational Chapter 8. Local Citizenship Politics in Switzerland: Between National Justice and Municipal Particularities marc helbling

149

Chapter 9. Multilevel Citizenship and the Contested Statehood of Bosnia and Herzegovina eldar sarajlic´

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Chapter 10. Citizens of a New Agora: Postnational Citizenship and International Economic Institutions tu¨ rku¨ ler isiksel

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Chapter 11. Sites of Citizenship, Politics of Scales catherine neveu

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List of Contributors

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Notes

215

Index

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Preface

This book challenges the dominant concept of citizenship: a unitary and homogeneous legal status granted to an individual by a sovereign state. Before it was monopolized by sovereign nation-states, citizenship had many different meanings, and it was not unusual to think of various levels of citizenship. Today it is important to step back from the details of nationality law under public international law (questions such as which individuals are entitled to acquire or lose national citizenship and how states should handle instances of dual nationality or settle conflicts about which individuals are under their jurisdiction) and counter the assumption that a state is a territorial container whose individual contents, citizens, are both internally equal in status and externally distinct from the contents of other containers. The containers (states) are more multilayered and complex than such a simple model of citizenship allows. Freeing citizenship from its enmeshment within assumptions about territoriality and exclusivity opens up new avenues in which we may explore the activities and identities of individuals and groups in the interstices of sovereignty. A personal motivation for this book is to demonstrate to fellow scholars of European Union citizenship (who are often told that EU citizenship cannot be real citizenship, because real citizenship can be conferred only by states) and its critics that EU citizenship is not sui generis and incomparable with other forms of citizenship but rather the most compelling recent example of a form of multilevel citizenship that has historical precursors and is likely to develop further as Europe’s remarkable project to construct a democratic polity beyond the nation-state continues. Generous funding for this project came from the Social Sciences and Humanities Research Council of Canada (Standard Research Grant 4102010-2588, ‘‘Comparative Politics of Citizenship and Nationality’’); the German Academic Exchange Service—Deutscher Akademischer Austausch Dienst, DAAD (grant for ‘‘Migration and integration in Germany and the

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Preface

European Union’’); and the EU Centre of Excellence (EUCE) at York University, funded by the European External Action Service of the European Commission. Special thanks to EUCE Coordinator John Paul Kleiner for his administrative wizardry. The papers that would later become chapters in the book were first presented at a conference held at Glendon College, the former estate in midtown Toronto that became the founding campus of York University and was officially inaugurated by then–prime minister Lester B. Pearson to provide a first-class liberal arts education in both of Canada’s official languages. In Glendon’s Senior Common Room, participants enjoyed a wonderful meal prepared by chef Maria, who deserves every compliment. Thanks also to Alexandre Brassard, Glendon director of research; and to Jonathan Rubin and Nelson Eddingfield, MPIA students at the Glendon School of Public and International Affairs, for conference support and help with the index, respectively. Colleagues at the Advanced Research on the Europeanisation of the Nation-State (ARENA) Centre for European Studies at the University of Oslo, Norway, asked probing questions during a presentation of the book project, demonstrating that the dominant narrative of statecentric citizenship still has ardent defenders and that breaking down established analytical categories can be frustrating if there are no easily available substitute models. For hosting my talk and for helpful comments, I thank especially Ian Cooper, Meng-Hsuan Chou, and Chris Lord. Students and colleagues at the Jean Monnet Centre of Excellence at the University of Osnabru¨ck, Germany—in particular, Sandra Eckert, Ingeborg To¨mmel, Andrea Lenschow, and Martin Geiger—asked similarly fundamental questions and were willing to consider the reconceptualization of citizenship that becomes necessary once the dominant narrative is shown to be riddled with inconsistencies and exceptions. As always I am grateful to my wonderful wife and children for their support, encouragement, and love. Let me also thank the University of Pennsylvania Press, in particular Peter Agree, Julia Rose Roberts, and Erica Ginsburg. I would like to close by thanking the other authors in this book for a stimulating experience, from initial planning to final editing. Willem Maas

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Chapter 1

Varieties of Multilevel Citizenship willem maas

Citizenship in contemporary societies has come to be defined as a homogeneous legal and political status within the context of a nation-state: in the now-dominant meaning, the only form of membership that may be termed citizenship is membership in a sovereign state. Although undeniably important, this narrow and exclusionary definition of citizenship obscures important developments at both sub- and suprastate levels. For example, the rise of citizenship of the European Union (discussed further below) has raised expectations that other regional integration efforts may also result in meaningful supranational rights. At the same time, many states, particularly federal or multinational ones, face demands for special regional or group-based statuses that directly contradict the ideal of equality before the law. Similarly, some cities are starting to reassert what used to be the dominant meaning of citizenship until current forms of statehood crowded out alternatives: a citizen meant a member of a city (citizen descends from the French cite´ and, before that, the Latin cı¯vita¯s, the community of citizens) entitled to the privileges and rights of that city.1 The comparative history of citizenship provides rich examples of multilevel citizenship in theory and practice, although such examples are today often forgotten or obscured by the dominant narrative of a single and homogeneous, territorial, state-based citizenship. This book aims to upset the now-dominant conception of citizenship by providing a series of examples of alternative concepts of citizenship as they operated or operate in practice or as they are (re-)emerging. The focus is on levels of citizenship, particularly nested and overlapping geographical levels: citizenship not only of the state but also of substate, suprastate, or nonstate political communities. The motivation is the urgent need to reflect

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on citizenship as a construction of political and legal practices and of territorial affiliations that are not limited by physical borders. Rather than advance a single alternative theoretical model of citizenship—an exercise that in any case might be doomed to fail, given the nuances and complexity that the chapters in this book uncover—the intention is to question takenfor-granted assumptions currently embedded in the concept. Although citizenship as an analytical category has come to be narrowly defined as legal and political equality within the context of a sovereign state, such equality has never existed in pure form.2 Indeed, unitary citizenship is the historical exception; more common are varieties of multilevel citizenship. The claim that varieties of multilevel citizenship are historically dominant and that the main contemporary definition of citizenship is a recent aberration in no way challenges the close relationship between this version of citizenship and statehood or the widely shared belief that citizenship in today’s dominant definition would be meaningless without states. The idea that ‘‘without a state, there can be no citizenship’’ is prevalent.3 This poses an existential problem for multilevel citizenship: if only states can confer citizenship, then alternative sources of citizenship such as cities, provinces, nations (to the extent that they do not coincide with a state that they control), or supranational entities such as the European Union cannot bestow citizenship, or at the very least cannot be the primary locus of citizenship.4 By demonstrating that alternative, nonstate communities or jurisdictions do in fact constitute important sources of rights and status, the artificiality and arbitrariness of the sovereign state’s monopoly on conferring citizenship becomes clear. The emergence of the modern institution of citizenship cannot be understood apart from the formation of the modern state and the international state system, but the reverse is equally true.5 States collude to limit competition to their power and authority. One way in which this collusion manifests itself is through the institutionalization of citizenship as the foundational status that individuals must possess under international law—a status epitomized in the form of passports (states choose to recognize only the passports of other states). International agreements specifying that each individual should have precisely one nationality and that this nationality be conferred only by recognized states, rather than alternative forms of citizenship such as those explored in this book, underscore this collusion.6 Much of social science has been infected with the view that, because the world is divided into sovereign nation-states, social scientists should study

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and understand the world according to that division rather than questioning the category by examining the construction of and limits to the geopolitical structures themselves. In addition to the empirical claim that nation-states are the prime way to study what is ‘‘social’’ in social science, there is sometimes the normative claim that ‘‘the community of citizens is the ideal political order’’ or the related claim that attempts to create transnational forms of citizenship are misguided because only a shared national identity can motivate citizens to work together.7 This repeats one of the central tenets of nationalism: every nation should have sovereignty over a national territory, and sovereignty is pure and indivisible.8 (The institutionalization of sovereignty reflects the growth of the international system: the reference in the Covenant of the League of Nations to ‘‘the dealings of organized peoples with one another’’—specifically leaving out unorganized peoples such as those subject to imperialism and colonialism—was rephrased in the Charter of the United Nations as the ‘‘principle of equal rights and self-determination of peoples.’’ Both statements make clear that each ‘‘people’’ is entitled to membership in the international community, as long as it is organized into statehood.) In the nationalist concept, the notion that because citizenship in its dominant definition signifies membership in a ‘‘national society’’ such societies should be privileged to the detriment of other forms of collective membership is bolstered by claims regarding the perceived moral superiority of communities of citizens over other forms of community. Citizenship is thus a political construction. Unquestioningly accepting the dominant definition of citizenship obscures much of the messiness of politics by substituting an anodyne status quo. By contrast, the chapters in this book consider political projects that are not necessarily tied to particular states but rather exist over, under, around, and through them. It is not particularly novel to observe that state sovereignty, nation-based citizenship, and other institutions both public and private are being destabilized and even transformed as a result of globalization, new technologies, and increased mobility.9 This book is not the first to observe that notions of national allegiance are weakening while subnational (for example, municipal, regional) and supranational (for example, EU) allegiances and identities gain.10 However, the implications of these developments are not often pursued. Indeed, many scholars remain in denial, asserting that state-based sovereignty and citizenship are not being transformed or, if they concede the pressures that traditional concepts face, asserting that there is no alternative to a world divided into states that all have the same legal status

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and similar organizational structure. The dominant narrative of statecentric citizenship still has ardent defenders, and breaking down established analytical categories can be frustrating if there is no easily available substitute model. Other models of citizenship do exist, however, and the chapters in this book begin to scratch the surface of the dynamic complexity of multilevel citizenship. To better understand this dynamism and intricacy, we must remember that the state in its modern form is the product of a long evolution and that there have been many different forms of stateness. Although the roots of the modern state can be traced back earlier, the Treaty of Westphalia in 1648 heralded the rise of the nation-state form, and Westphalia is typically cast as marking the historical shift to a new international order in which nation-states are the dominant form of political authority and organization.11 According to Weber, the modern state ‘‘claims binding authority, not only over the members of the state, the citizens, most of whom have obtained membership by birth, but also to a very large extent, over all action taking place in the area of its jurisdiction. It is thus a compulsory association with a territorial basis.’’12 Only after describing states as forms of compulsory association does Weber enumerate the quality of statehood so beloved of international relations scholars: ‘‘The claim of the modern state to monopolize the use of force is as essential to it as its character of compulsory jurisdiction and of continuous organization.’’13 Compulsory association is today eroding, reopening spaces for alternative forms of citizenship, including multilevel citizenship.14 The most developed contemporary literature on multilevel citizenship is situated in the European context, something that is not surprising given the rise of a European Union citizenship that gives concrete rights and entitlements to citizens of EU member states.15 Despite the Court of Justice of the European Communities affirming that Union citizenship is ‘‘destined to be the fundamental status of nationals of the member states,’’ however, some argue that Union citizenship has so far failed to live up to its potential.16 Noting the politically contingent and reversible nature of EU citizenship rights also highlights how individuals and groups may (or perhaps must) mobilize at various levels in order to maintain and advance their rights.17 For example, a study of parental leave policies in Germany found that no single level of government was dominant and that at any one given time, the federal/national, EU, and local levels could all be considered most important; the various actors and spaces merge and blend together, and

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‘‘policy scales are fluid and existing within a system of unstable power relations.’’18 The EU is today the primary case of the ‘‘dispersion of authoritative decision-making across multiple territorial levels.’’19 There are studies of the implications of extending local, European, and sometimes regional voting rights to EU citizens.20 There are also studies, based in the European context, questioning the social welfare literature’s assumption that the existence of a unified, territorial nation-state provides the sole basis for solidarity and social citizenship based on redistributing resources.21 Spatial rescaling, boundary opening, and decentralization have undermined that assumption, as market making, market regulation, and market correction now occur on multiple levels.22 This dynamic is explored in greater depth most notably in Chapters 10 and 11 in this book. Other examinations of multilevel citizenship focus not on Europe but on general or global concerns. For example, some feminist research examines ‘‘whether the existence of tiered government structures strengthens women’s opportunities to experience dual citizenship or divides their energies and efforts.’’23 Other research emphasizes how women’s entitlement to ‘‘national’’ citizenship rights such as gender equality can be challenged by or made to compete with the group rights of ethnic, religious, national, or language communities at another level of government.24 Some globalization theorists, meanwhile, advocate the development of political authority and administrative capacity at regional and global levels, seeing those levels as necessary supplements to the political institutions at the level of the state.25 Both sets of research question the assumption that a homogeneous citizenship based at the level of the territorial nation-state is necessarily the best way of organizing political life. Thereby they place in question the central tenet of contemporary citizenship: that it is a uniform political and legal status that can be bestowed only by sovereign states and must be based on political equality between citizens. The theoretical literature on the concept of citizenship is varied and voluminous but may be grouped into two strands captured under the terms republican (occasionally conflated with communitarian) and liberal.26 The republican concept of citizenship emphasizes participation and civic selfrule, as in Aristotle’s view of citizenship meaning not only being ruled but also sharing in the ruling, Machiavelli’s description of Italian city-states, and Rousseau’s focus on determining the collective will. Liberal citizenship, by contrast, emphasizes the rule of law and the individual’s liberty from state interference, a status rather than an activity. Both republican and

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liberal conceptions of citizenship are subject to the criticism (often associated with feminism, as in the discussion above) that the distinction between public and private implied in both views of citizenship is artificial. They also fall prey to a multicultural critique that promotes different rights for immigrants and minorities (discussed in Chapters 2, 3, and 4) or constituent nations (discussed in Chapters 8 and 9) or to the possibility of group rights inherent in indigenous self-government (discussed in Chapter 7). Such critiques all highlight the question of the extent to which citizenship, viewed either as a unitary status or as a shared engagement and activity, can operate within societies that are undeniably plural and where borders have long since lost the meaning attributed to them most notably at the height of nationalism in the twentieth century. As Chapters 5 and 6 elucidate, other models of citizenship are possible not only in theory but have operated in practice. Let me emphasize again that the aim of this book is not to propose an alternative theory of citizenship. Instead, it is to capture the nuance of citizenship in practice, both at different levels and in different places and times (geographically and historically). Together, the chapters in this book demonstrate the importance of considering alternatives to the view of citizenship that gained prominence after the French Revolution, grew in importance during the nineteenth century, and dominated during the twentieth century but may now be distintegrating: the notion that citizenship operates at one and only one level. The next section summarizes the other chapters, and the final section presents the example of citizenship in the European Union, seemingly an unusual case of citizenship beyond the nation-state but—this is a key point—a case that is certainly not sui generis or incomparable with other varieties of multilevel citizenship.

Outline of the Book Subsequent chapters in this book assess multilevel citizenship with a variety of lenses and can be grouped into three sets. The first, Chapters 2–4, consider the challenges to national citizenship from the perspective of migrants and migrations. The second, Chapters 5–7, focus on the unnatural—from the perspective of contemporary, unitary, territorial, nation-state–based citizenship—idea of imperial citizenship and the continuing assertion by indigenous peoples of their own citizenship rights independent of those

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introduced by the colonial state. The final set of chapters, 8–11, emphasize the truly multilevel nature of uncertainties and questions about the future development of national citizenship.

Migrants and Migrations The first chapter in the section on migrants and migrations, Luicy Pedroza’s chapter—‘‘Denizen Enfranchisement and Flexible Citizenship: National Passports or Local Ballots?’’—focuses on denizens: noncitizens who have been granted the right to reside within a state. In Canada and the United States, such individuals include ‘‘permanent residents,’’ even if their residence is not always permanent. Pedroza shows that denizen enfranchisement reforms are very heterogeneous, that states combine naturalization and denizen franchise in various ways, and that granting rights of political participation to denizens cannot be understood as simply the waning of traditional citizenship, which had voting rights at its core. Next, Pedroza documents a trend according to which states treat citizenship pragmatically and flexibly, disentangling it from traditions of citizenship that have long been held to be impervious, or at least very resistant, to change. Within this trend, she argues, denizen franchise (just like naturalization) can become an instrument for migration control. Pedroza’s overarching question is foundational: she asks whether citizenship still serves as the concept that delimits the membership of people in states. The chapter considers in detail the effects of the disaggregation of the most crucial component of citizenship on the ways in which nationality, citizenship, and migration intertwine. It also examines the question of what this disaggregation means for the principle of equal membership in a self-governing political community. An unanswered empirical question is how the extension of voting rights to denizens affects migration control: more research is needed on the political consequences of denizen enfranchisement, about what kind of difference it makes, because the political significance is far from clear. Are cities governed differently because of denizen voting? How many denizens actually use their political rights? And what is the political agency of migrants; is the development of denizen voting rights a bottom-up or top-down acquisition of rights? Regardless of these empirical questions, the conceptual conclusion must be that citizenship is not uniform, nor is it always tied to the franchise. As Pedroza concludes, even if restricted to the local level, denizen

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enfranchisement acknowledges that one person can maintain several allegiances and political relations to different states on different and usually exclusive levels: local allegiance based on residence and national allegiance based on the person’s citizenship of origin. A parallel study would investigate the wide variety of emigrant voting rights, such as the right to vote in two or more polities, which likewise raises normative as well as empirical questions and highlights the different and perhaps competing views of peoplehood embodied in the right to vote. Rogers M. Smith’s chapter, ‘‘Attrition through Enforcement in the ‘Promiseland’: Overlapping Memberships and the Duties of Governments in Mexican America,’’ considers political conflict in the United States over which level of government—national, regional, or local—should enforce immigration policy. The United States government has been largely gridlocked on the challenges of crafting a comprehensive national immigration policy for almost a quarter century. In recent years, concerted state and local efforts have arisen that seek to establish policies of ‘‘attrition through enforcement’’ at these levels—taking wide-ranging measures against unauthorized (and many legal) immigrants in the hope that the unauthorized will decide life is too difficult in the United States and return home. The U.S. Department of Justice has challenged many of these efforts, aimed primarily at Mexican immigrants, as preempted by the national government’s constitutional power over immigration policy. But ‘‘attrition through enforcement’’ advocates argue that their measures either ‘‘mirror’’ federal policies or fill a vacuum where the national government has failed—and, they argue, it is democratically as well as constitutionally legitimate for state and local governments to contribute to setting national citizenship policies in these ways. Smith’s chapter documents these controversies and argues that ‘‘attrition through enforcement’’ advocates have stronger claims on democratic than on constitutional grounds—but that in light of U.S. national obligations to, in particular, Mexican immigrants and Mexican Americans, these policies should nonetheless be opposed. One question is the extent to which the coercive shaping of identity that Smith describes is the same for all U.S. states or differs between them: do U.S. citizens living in, say, Virginia or Montana have the same obligations toward Mexican Americans as those in Arizona or California? Smith concludes on the hopeful note that if those who value multilevel governance with overlapping memberships accept that this means valuing semisovereign governments and moderate senses of membership, they will be better able to create and contribute to better lives for all concerned.

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Jenn Kinney and Elizabeth F. Cohen’s chapter, ‘‘Multilevel Citizenship in a Federal State: The Case of Noncitizens’ Rights in the United States,’’ focuses on the same phenomenon from a different perspective: differences in state-level regulation of immigrant rights. This chapter argues that the increasing state-level legislation about immigrant rights highlights the vulnerability created by the unevenness of circumstances across states and across time. Even in cases where states have become more inclusive and generous toward immigrants, there is no guarantee that immigrant residents can rely on similar benefits in future years. What seems certain, Kinney and Cohen argue, is that immigrants seeking rights of which prior generations availed themselves are increasingly subject to scrutiny and that this scrutiny takes careful account of their legal status, beyond simply asking whether they are documented or undocumented. The authors conclude that both the extension of inclusionary rights and the retraction of exclusionary rights have effects on whether even documented immigrants can move freely within the United States. The chapter raises the question of the value of free movement and the potential contrast between Europe and the United States. The multilevel citizenship literature focused on the European case cited above demonstrates that central to the whole process of European integration from the earliest days has been the dream of removing barriers to movement and making borders lose their significance.27 Kinney and Cohen’s findings suggest that the opposite dynamic may be at work in the United States: U.S. states are active domains of immigration enforcement, and the variation in their approaches means it is much more desirable to live in some states than others. This leads to a multilevel hierarchy of semicitizenships based on legally assigned statuses and geographic location. Empires and Indigeneity The next three chapters consider multilevel citizenship from the perspective of empires and indigeneity. Will Hanley’s chapter, ‘‘When Did Egyptians Stop Being Ottomans? An Imperial Citizenship Case Study,’’ is a nuanced study of the mutability of citizenship, particularly in contexts of questionable sovereignty. In this case, the context is the flexible, locally conditioned, and ephemeral nature of the imperial Ottoman presence in Egypt around the same time period as Elizabeth Dale’s focus (in the next chapter), the end of the nineteenth century and start of the twentieth. Hanley demonstrates the persistence of the Egyptians’ Ottoman status well into the twentieth century, evidence he argues has been neglected because the nature of

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Ottoman citizens’/subjects’ membership in their state differs from European and American archetypes of citizenship. The triumph of a system of exclusive, universal, commensurate national citizenships is incomplete— Hanley argues that it cannot be completed, and that thinking of unitary citizenship as completable is misleading—and its advent is recent. Hanley contends that occluded variant systems of state affiliation, including that of turn-of-the-century Egyptian Ottomans, need to be recovered and compared, not least because citizenship in late Ottoman Egypt resembles developing forms of multilevel citizenship. This chapter shows, among other things, the fragility of censuses and government attempts to classify and categorize populations. It also lays out an example of a context in which citizenship is about jurisdiction rather than rights and in which taxation or exemption from taxation determines membership. Furthermore, the chapter illustrates again the importance to governments of residence and settlement: both the nomadic Bedouin and the foreign population were anomalous because they were mobile and exempt from the laws that governed other subjects. Hanley argues that the overwhelming focus of citizenship literature on political rights, especially democratic and electoral politics, deadens analysis of legal, social, civil, and other forms of citizenship. Ottoman-Egyptian citizenship was not democratic, and there can thus be no political consideration of it. When political rights are the measure, states in the Middle East must be judged dysfunctional and pathological. But it is possible to take a more positive view, seeing phenomena such as jurisdiction shopping, self-regulating communities, and differentiated rather than equal citizenship as illustrating how citizenship is actually experienced. This case also suggests parallels with indigenous peoples; with Roma and other nomads; and with legal ‘‘persons’’ such as corporations, which today claim exemptions from state laws, as discussed in Chapters 7, 10, and 11, as well as Chapter 6. Elizabeth Dale’s chapter, ‘‘The Su Bao Case and the Layers of Everyday Citizenship in China, 1894–1904,’’ focuses on the trial of Chinese revolutionaries Zou Rong and Zhang Binglin at the Mixed Court in Shanghai, where they were tried and convicted of seditious libel, ultimately being sentenced to two years of hard labor in prison (Zou died in prison while serving out his term). Dale argues that this trial and conviction illustrates how everyday citizenship existed across several sometimes overlapping sovereign spaces. Individual citizenship was defined by the intersection between identity and rights, intersections that were largely determined by

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competing claims of national sovereignty and that could sometimes be manipulated by individuals themselves. The context of the trial is one of the perilous statehood of turn-of-the-twentieth-century China, where the authority and legitimacy of the Chinese state was under constant pressure and where the Shanghai Settlement existed in a quasiautonomous relationship with the Chinese authorities. Zou’s writings questioned the subjecthood under the Qing dynasty, advocating instead a new sort of citizenship, defined and determined by a sovereign people. Dale shows how the scope of Zou’s citizenship was always subject to the political calculations of various different sovereign powers that claimed jurisdiction over him. Nevertheless, for Zou and other revolutionaries such as Zhang, Sun Yat Sen, and others, the ability to exercise the rights of free expression, to act as transnational citizens, could continue so long as they had the desire and the wherewithal to move from country to country. Among other things, this chapter raises the question of the roles of the traveler and the boundary crosser, particularly those who wish to upset or change existing systems of sovereignty and citizenship. It demonstrates that citizenship is shaped but not bounded by the relationship to and with specific states, posing the questions (as elsewhere in this book) of how we can decide whether or not something constitutes citizenship and about how citizenship is made and functions in a world of divided and overlapping sovereignties. Sheryl Lightfoot’s chapter, ‘‘The International Indigenous Rights Discourse and Its Demands for Multilevel Citizenship,’’ explores what differentiated, multilevel citizenship means in theory and in practice for Indigenous peoples. Indigenous peoples around the world have experienced two dominant historical patterns related to citizenship. First, Indigenous peoples were generally denied citizenship because they were deemed too primitive. Second, Indigenous peoples often experience pressures to assimilate into colonial or dominant societies. The tension between discrimination and assimilation forms one backdrop for the international Indigenous rights discourse. The other backdrop, of course, is the state system itself, which, in the words of the United Nations Charter, holds that ‘‘All peoples have the right of self-determination.’’ The effects of the self-determination doctrine are well-known, notably a flurry of declarations of independence during the last century and the continuing tensions between a theoretical world divided neatly into separate territorial containers, one for each people or nation, and a real world in which individuals and collectivities do not fit neatly into these separate containers. Lightfoot’s chapter raises the question

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of what characteristics are necessary for peoplehood—for example, whether a people must have exclusive, sovereign control over a territory or at least aspire to such sovereignty. Lightfoot critically examines the two major international human rights instruments that address Indigenous peoples’ citizenship rights, which proclaim that Indigenous peoples have ‘‘the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions, while retaining their right to participate freely, if they so choose, in the political, economic, and cultural life of the state.’’ This version of Indigenous rights raises questions such as, Does citizenship require statehood? How can or should conflicts between Indigenous citizenship and state citizenship be managed? Who has the authority to determine whether a people is really a people—is it all in the production and recognition of passports? To the extent that Indigenous rights are thought to emanate from original political and cultural integrity, there is the question of time and history: how much is necessary in order to be a people entitled to citizenship? This chapter again highlights the problem of categories and terminology: Are Indigenous peoples forced to use the concepts (such as citizenship) imposed on them? What do they mean by ‘‘citizen’’? Do we understand ‘‘citizenship’’ in the same way other groups do? One conclusion of Canada’s Royal Commission on Aboriginal Peoples was that ‘‘recognition of Aboriginal nationhood poses no threat to Canada or its political and territorial integrity’’28 —but what if it did pose a threat? How would such a threat be defined? Must a people have exclusive control over territory in order to be sovereign? Perhaps most fundamentally in terms of citizenship, who has the authority to determine whether a people is a people, whether the stories of peoplehood are just stories or represent reality? Local, Multinational, and Postnational The final four chapters consider multilevel citizenship from nonstandard scales: local, multinational, and postnational. Marc Helbling’s chapter, ‘‘Local Citizenship Politics in Switzerland: Between National Justice and Municipal Particularities,’’ focuses on the seemingly atypical and uncharacteristic case of Switzerland, in which municipalities retain significant authority and control over naturalization procedures, determining who is included and who is excluded from citizenship. He finds that some socioeconomic factors that might be expected to explain differences in naturalization policies (for example, unemployment rates, the ratio of foreigners living in a municipality, the ratio of applicants from Muslim countries)

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play no role. Instead, the variation can be explained by differences in local understandings of citizenship, coupled with the influence of political parties and formal decision-making structures. Because of the extreme decentralization of naturalization policies, Switzerland may appear unique, but Helbling argues that local application of citizenship laws and understandings of nationhood are found elsewhere also, contradicting the idea of homogeneous nation-states with clear understandings of peoplehood. Indeed, Helbling concludes that it is astonishing how diverse understandings of citizenship and interpretations of national regulations can be within a single nation-state. Even though it undermines the whole idea of the state as a continuous legal space defined by equality of status and of treatment, the chapter suggests that perhaps the maxim that all politics is local is also true in the realm of citizenship. Eldar Sarajlic´’s chapter, ‘‘Multilevel Citizenship and the Contested Statehood of Bosnia and Herzegovina,’’ looks at the multilevel citizenship regime in Bosnia and Herzegovina established by the Dayton Peace Agreement, arguing that human rights outcomes are framed by the Peace Agreement’s citizenship provisions. The chapter examines how the Bosnian citizenship regime relates to the nature of the Bosnian state and its statehood and how this relationship affects the status of human rights. The case of Bosnia-Herzegovina is noteworthy because, among other things, it provides an example of a recently created state, one born out of conflict over territory and sovereignty. It is a case where basic, foundational questions of peoplehood and citizenship remain fresh and unsettled. The creation of new states formed out of the breakdown of previous ones removes a common fiction that states and statehood are eternal or at least age-old givens, pointing instead to the constructed nature of political community. Given both its recent creation and its peculiar characteristics, the complex citizenship regime of Bosnia and Herzegovina does not appear particularly stable. How can a functioning state with a stable citizenship regime be created in the wake of a destructive and bitter war, one that involved ‘‘ethnic cleansing’’ and was ended only with an externally imposed peace agreement? As Sarajlic´ notes, one question that remains unanswered is whether the existing Bosnian citizenship regime is sustainable in the long run, as the statehood contestation/affirmation dynamic reproduced by the multilevel character of the citizenship regime might threaten the country’s basic stability. In other words, the citizenship regime might cause further deterioration of political circumstances through continuation of clashes between two

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mutually irreconcilable political visions of the nature of the Bosnian state and of what it means to be a Bosnian citizen. This instability is exacerbated by relatively weak state capacity and the dual citizenship of ethnic kin: Croats with Croatia and Serbs with Serbia. Sarajlic´ concludes that external factors will also help determine the shape of Bosnian citizenship: the relationship between the Bosnian state and the European Union (all nations in the Western Balkans are candidates for eventual EU membership) is simply the latest chapter for a region that earlier was the site of contestation between the Ottoman and Austro-Hungarian empires.29 Tu¨rku¨ler Isiksel’s chapter, ‘‘Citizens of a New Agora: Postnational Citizenship and International Economic Institutions,’’ examines the creation of what Isiksel terms a ‘‘supernational’’ system of rights and entitlements, which businesses and corporations enjoy under international economic institutions and which they, crucially, help to shape and define. Isiksel accounts for market citizenship as simultaneously a status, a substantive bundle of entitlements, and a practice whereby actors renegotiate those entitlements within a dynamic international context. The entitlements the chapter describes enable firms to hold states responsible for their public policies, so that investors and traders pass on the risks of doing business abroad to host states. In Isiksel’s analysis, the emerging market citizenship is no longer a case of businesses and corporations being represented by the diplomatic and consular protections of sovereign states, although such representation remains important. Instead, she argues, firms enjoy market citizenship because the rights they derive from international economic institutions are not politically inert; participation in adjudicative rule making doubles as institution building. Isiksel recalls the European Court of Justice’s creation of a ‘‘one-way ratchet’’ that permits individual participation in the European legal system only in ways that advance European integration. A similar logic, she claims, has now migrated from the European Union to the global system: a unidirectional citizenship practice that creates insiders (businesses) and outsiders (everyone else), a creeping takeover of democratic politics at the global level by market logic. Isiksel concludes that this appropriation and adaptation of the familiar practices of democratic citizenship into the realm of economic institutions is both fascinating and disquieting. Finally, Catherine Neveu’s chapter, ‘‘Sites of Citizenship, Politics of Scales,’’ critically questions scalar thought by advocating a more expansive

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definition of citizenship. Neveu stresses the debated, contested, and alwaysunder-construction nature of citizenship, including its horizontal dimensions (between persons rather than states) and the fact that not all citizens are legal ones. Because Neveu conceptualizes citizenship as manufactured through a multiplicity of processes and by a diversity of agents, and as necessarily contextual, she critically questions the comfortable dichotomies and exclusive, hierarchical order of ‘‘scalar thought.’’ Empirically, Neveu’s chapter focuses on how practices developed by migrants and their children connect diverse and noncontiguous territories and spaces, subverting the traditional limits of citizenship through practices and forms of public engagement that create ‘‘global’’ cities defined by their inhabitants’ practices, circulations, and networks. Neveu argues that vertical, exclusive, and hierarchical conceptions of citizenship should be replaced by one that denaturalizes the political processes through which localizations, citizenships, and levels are produced. Any so-called multilevel citizenship must be seen in terms of the political projects and imaginaries at play, and analyzed contextually. In other words, Neveu argues, there is no proper or exclusive level for citizenship to be enacted, only contextualised sites and spaces; rather than studying levels of citizenship, scholars should focus on the politics of levels that underlie political mobilizations and projects. Individually and collectively, then, the ten other chapters in this book challenge the prevailing definition of citizenship as determined solely at the level of the nation-state by providing a series of examples of alternative conceptions of citizenship, focusing particularly on nested and overlapping geographical levels: citizenship not only of the state but also of substate, suprastate, or nonstate political communities. The next section briefly relates existing accounts of citizenship with that of citizenship of the European Union, the most important contemporary form of suprastate citizenship.

Multilevel Citizenship in Europe The most exciting case of multilevel citizenship in the contemporary world is undeniably that of European Union citizenship, which consists of an extensive set of supranational rights for individuals and corresponding obligations for states. As discussed above, the dominant definition of citizenship

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sees it as a homogeneous legal and political status within the context of nation-states, the ‘‘sovereigns’’ that distinguish insiders (citizens) from outsiders (noncitizens). EU citizenship supersedes this dominant distinction by removing the ability of European states to discriminate between their own citizens and those of other EU member states. This represents a distinct rupture with both state sovereignty and the claims of states to be the sole arbiters and gatekeepers of citizenship and the only level of government able to bestow the benefits of citizenship.30 States agree under international law that each state may determine under its own laws who its citizens are. Thus the 1930 Hague Convention declared that ‘‘it is in the general interest of the international community to secure that all its members should recognise that every person should have a nationality and should have one nationality only’’ and ‘‘accordingly that the ideal towards which the efforts of humanity should be directed in this domain is the abolition of all cases both of statelessness and of double nationality.’’ In other words, states agree that every individual should be a citizen—the compulsory association that Max Weber had written about earlier, because everyone must have a citizenship (statelessness should be abolished) and no one may renounce citizenship without acquiring a new one—and states claim binding authority over their own citizens: the push to eliminate dual citizenship reflects the desire to reduce potential conflicts over jurisdiction. The development of EU citizenship therefore raises the question of its legal status and of whether it can fully be called citizenship under international law: if every person should have one citizenship only, it is unclear what it means to be a citizen of a member state (France, Germany, Italy, the United Kingdom, and so on) and simultaneously to be a ‘‘citizen’’ of the EU. EU citizenship results from a long historical development dating from the postwar origins of European integration. For example, in Italy in 1943, the Movimento Federalista Europeo envisaged the creation of a European ‘‘continental’’ citizenship alongside national citizenship, consisting of direct political and legal relationships with a European federation. Separately, the ‘‘Milan program’’ called (among other things) for the legal equality of the citizens of all states and the ‘‘option to take out European citizenship in addition to national citizenship,’’ and the Dutch ‘‘European Action’’ group called for European citizenship to supplement national citizenship.31 Despite this and other political support, however, it was not until the Maastricht Treaty entered into force on January 1, 1993, that the legal category

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of EU citizenship was created. The Maastricht Treaty declared that ‘‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union’’ and that ‘‘Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’’ The most important right of EU citizenship is the right of any EU citizen to live and work anywhere within EU territory, eliminating the need for work visas or residence permits common in relations between other states. Second, all EU citizens have the right to vote and to stand for election in European Parliament and local elections in their state of residence, under the same conditions as citizens of that state. Third, EU citizens have the right to consular and diplomatic protection by the foreign service of other EU member states when there is no accessible permanent representation (embassy, consulate general, or consulate) of their own member state, an innovation in international law. The member states expected that introducing common protection arrangements for EU citizens would also ‘‘strengthen the idea of European solidarity as perceived by the citizens in question.’’32 EU citizenship also includes the right to petition the European Parliament and complain to the European Ombudsman; the right to contact and receive a response from any EU institution in one of the EU’s official languages; the right to access certain European Parliament, European Commission, and European Council documents; and the right of equal access to the EU Civil Service. The Lisbon Treaty introduced a new form of political participation for EU citizens, the European Citizens’ Initiative, which allows one million EU citizens from at least a quarter of the member states to invite the European Commission to draft legislation in areas where the Commission has the power to do so. More generally, EU law prohibits any form of discrimination on the basis of nationality: a citizen of any EU member state must be treated in the same way as a citizen of any other EU member state, without discrimination. These are important rights, but because the EU does not issue passports (although member state passports all have the same format, color, and other stylistic elements) or determine under its own laws who its citizens are, it may nevertheless appear that EU citizenship cannot properly speaking be considered citizenship at all.33 Because citizenship defines political actors and the rules within which they operate—separating full members of the polity from others, specifying the rights and duties of each category of people, and privileging certain public identities over others—citizenship

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is always contentious.34 In many national states, both in Europe and elsewhere, the struggle for citizenship has been overwhelmingly a demand for inclusion in the polity, the social dignity attached to the right to vote, and the right to earn a living.35 Inclusion in the polity is the process by which segments of society previously excluded from membership in political and socioeconomic institutions are incorporated into these institutions as citizens.36 Critics of EU citizenship observe that the kinds of social movements which demanded inclusion and recognition in the polity and then struggled for expanding rights in nation-states are largely absent at the level of the EU.37 Yet denying the status of EU citizenship is not quite so clear-cut when compared with the various forms of nested or multilevel citizenship common in federal states, where individuals simultaneously hold citizenship in the national polity and derive important rights from regional or other substate jurisdictions.38 Central governments generally disdain claims to substate ‘‘citizenships’’ such as might be found in ‘‘internal nations,’’ for example, Scottish in Scotland, Que´be´cois (no longer ‘‘French Canadian’’ because of the necessity for a nation to have a territory, a transformation that coincided with the so-called Quiet Revolution) in Que´bec, Catalan in Catalonia, and so on, even though plurinational states adopt a range of policies to foster accommodation and recognition that challenge the idea of the equality of all citizens.39 This and other comparative examples of nested or multilevel citizenship such as those covered in subsequent chapters in this book raise the question of what EU citizenship can become. As in several early federal states, no one today may become an EU citizen without first becoming a citizen of a member state. But the institution of citizenship developed and changed over time in such federal states, becoming ever more oriented away from the constituent units and toward the central (national) level of government. In light of such comparative examples, the question arises about the extent to which the EU could conceivably take over coordination and policy-making functions from member states on citizenship matters, including questions of attribution and loss of citizenship. The EU citizenship introduced at Maastricht recalls the earlier introduction of a national layer of citizenship over preexisting municipal or regional versions. Until the nineteenth century, it was commonly cities rather than nation-states that provided residents with the rights that today are central to nation-state citizenship: the rights of residence and work, of trial in local courts and other civil rights, of political participation, and even

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to social welfare benefits.40 The introduction in the nineteenth century of an initially ‘‘thin’’ layer of nation-state citizenship rights over the existing structure of well-established, ‘‘thick’’ municipal citizenships parallels the current overlaying of a ‘‘thin’’ EU citizenship over those same nation-state citizenships. A weakness of EU citizenship compared with central citizenship in federal states is that EU member states remain the final ‘‘masters of the treaty’’ that established it. The need for all member states to agree unanimously before treaty changes are made makes it difficult to strengthen EU citizenship. For example, during the negotiations that led to the Amsterdam Treaty of 1997, various governments suggested expanding EU citizenship— Ireland proposed granting EU citizens the right to vote in referendums and nonmunicipal elections, establishing an EU volunteer service, and introducing a right to petition the Commission; Italy and Austria jointly proposed introducing a right of petition, a right of association in European trade unions, and a right to education in at least one second language, as well as suggesting that the EU should sign the European Convention on Human Rights and that European political parties should be strengthened. In Austria, the opposition Liberals suggested going even further by extending EU citizenship to third-country nationals who had resided legally within the EU for five years, but this proposal lacked government support and was not included in the joint proposal. Italy later suggested giving the Commission the exclusive right of initiative on issues of immigration, asylum, and external borders (meaning that EU legislation in these areas would have to originate with the Commission), giving the European Court full competence to review legislation and hear appeals and ultimately giving the European Parliament co–decision power over these areas rather than having them remain the exclusive competence of member states. France suggested that free movement issues, including visas, asylum, and immigration, should be decided by qualified majority voting rather than unanimity, which would also make it easier to pass coordinated European legislation. Finland proposed extending ‘‘the social rights and duties of European citizens’’ by adding new rights to EU citizenship, having the EU sign the ECHR, and enacting an EU Bill of Rights; Portugal even drafted a European Citizens Charter, which listed all the rights of European citizenship, including social and economic rights, and was intended ‘‘to provide citizens a clear picture of the advantages and added value of European citizenship.’’ But resistance from Denmark and the United Kingdom scuppered all these

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proposals.41 To meet the Danish and British objections that EU citizenship should not weaken national citizenship, the Amsterdam Treaty added a new clause—‘‘Citizenship of the Union shall complement and not replace national citizenship’’—that went well beyond the declaration attached to the Maastricht Treaty, which stated that the question of whether an individual had the nationality of a member state would be settled solely by reference to the national law. Such difficulties in reaching unanimous decisions in a Union comprising many member states leads some to dismiss claims about the supposed supranational or postnational nature of EU citizenship and conclude instead that it is transnational: despite increasingly complex multilevel and international configurations of rights and membership, citizenship in Europe remains tied to established political communities.42 Yet EU citizenship is not simply a concept but is backed up by supranational institutions with real authority and at least a modicum of bureaucratic capacity. Attempting to further develop the concept of EU citizenship by creating European citizens and encouraging them to use their rights is a role that the European Commission and the European Parliament fulfill in various ways.43 The Court of Justice of the European Communities, in Luxembourg, has over the years also promoted an expansive reading of European rights. The most notable current formulation, repeated time and again with the same wording in a series of Court judgments since 2001, is that ‘‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.’’44 Multilevel citizenship in Europe is not simply about passports but about individuals being able to draw on rights at multiple levels of political authority.45 The development of citizenship of the European Union raises anew the question of the definition of citizenship and reminds us of the complex historical patterns of variegated and multitiered citizenship.

Conclusion This book challenges the dominant narrative of citizenship as a unitary and homogeneous status circumscribed within the context of a sovereign state, the received wisdom that without a state, there can be no citizenship and that substate alternatives such as city- or province-based ‘‘citizenship’’ or

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supranational creations such as European Union citizenship do not qualify for the term. This now-prevailing narrow conception of nation-statemonopolized citizenship crowded out alternative forms of citizenship in the post-Westphalian international system, particularly after the French Revolution’s supposed invention of nationalism, becoming most influential in the long twentieth century. Inextricably linked with the development of state sovereignty, the narrow definition of citizenship is a historical anomaly whose fortunes rose and will wane with those of sovereign nation-states as the dominant form of political organization. The tight linkage between the institution of citizenship and that of state sovereignty has fundamental implications for many fields of inquiry, including international relations. Although the much-heralded ‘‘end of sovereignty’’ may still be a long way off, it is clear that the now-dominant form of the sovereign state and the resulting international system of states in which each sovereign state is treated the same as every other sovereign state (for example, Belgium and Brazil, Iceland and India, Malta and Mozambique all have the same status at the United Nations, all issue passports that are internationally recognized, and all have similar institutions of sovereignty, despite wildly divergent characteristics in terms of population, territory, resources, wealth, and so on) face challenges. Recognizing that citizenship is a construction of political and legal practices and of affiliations and identities not limited by territorial constraints underlines the importance of reassessing the continued power and utility of the now-prevailing view of citizenship as unitary and exclusionary. Subsequent chapters in this book approach the question of multilevel citizenship from a variety of perspectives and raise the possibility that the future shape of citizenship may come to resemble its past and present alternatives, including overlapping jurisdictions, shared governance, and multilevel citizenship.

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PART I Migrants and Migrations

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Chapter 2

Denizen Enfranchisement and Flexible Citizenship: National Passports or Local Ballots? luicy pedroza

It is obvious that the dynamics of migration have profound consequences for both sending and receiving societies. Yet the impact of significant immigration on the practices and understanding of citizenship in democracies fundamentally committed to fair and equal representation remains a puzzle, and not for lack of attention. A full-fledged body of literature— citizenship studies—has emerged, with rich normative and empirical analyses of citizenship that traditionally begin by declaring the fuzziness of the very subject. To paraphrase Linda Bosniak, for example, citizenship is a divided concept both rhetorically and normatively: it comprises distinct discourses designating a range of institutions and social practices that may overlap but are not always coextensive.1 Citizenship is at once a political principle of democracy that involves participation in decision making by political equals of a polity; it is a legal status that carries a set of specified rights and duties; it is a form of membership in an exclusive category that affords a social status and security of membership; finally, it is a pole of identification that can itself become rather thick and crucial in generating solidarity and civic engagement. Indeed, citizenship is all of these things, prioritized differently according to the preferred politico-philosophical stance. Lawyers, typically less troubled by contested sociological or philosophical definitions, offer unambiguous statements such as ‘‘The right to vote has come to define both the practice and the formal status of citizenship the world over. In many constitutional democracies, the right to vote

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is limited to formal citizens and, along with the right to remain, represents the chief attribute that gives content to the formal concept of citizenship.’’2 At first glance, the extension of the chief attribute of citizenship, political participation, to noncitizens across the world seems to suggest there is a readjustment of the several components of citizenship and even a dissociation of the right to vote from the other formal spheres of citizenship. The extension of voting rights to resident migrants seems like another battle for democratic and universal franchise, using the vocabulary of citizenship to question once again the criteria upon which political rights are distributed in a polity. Has political participation ceased to be a privilege of national citizens? What do enfranchising reforms and their spread across time and space suggest about the use of citizenship? This chapter addresses these questions by drawing insights from various theories, especially from historical institutionalist and liberal convergence theories on citizenship change, and contrasting them with original empirical findings. I develop two nested arguments: first, that there are various forms in which states combine and differentiate naturalization and denizen franchise. Thus denizen enfranchisement cannot simply be read as the decline of citizenship-as-nationality, even if these forms point to a fundamental disentanglement between them. Second, as voting rights are disentangled from national membership, states single out voting rights as an entitlement based on residence and contributions; potentially, this allows them to dissociate those rights from complex ideological questions supposedly rooted in nationality traditions that, according to historical institutionalism, are very hard to change. I substantiate these arguments by presenting and analyzing an overview of polities that extended voting rights to noncitizen residents through reforms at different levels (subnational or national), applicable at different levels of government (noncitizens may vote at the local level or at the regional or national level), and according to different levels of conditionality (universal extension or extension focused on certain groups of resident migrants). This overview is based on a data set I built from primary and secondary sources for 46 countries that has enlarged the overviews published so far, which focused mainly on European and Organisation for Economic Co-operation and Development (OECD) countries. I then elaborate on the patterns that can be found in those variations. Finally, I discuss what denizen voting rights mean for the practice and the conceptualization of citizenship when we look at cases with a broad comparative and empirical

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perspective instead of only at the same few cases from Western Europe and the Anglo-Saxon world, and only through the lens of naturalization regimes. I emphasize the level at which enfranchisement reforms commence to show that, in many cases, local governments have promoted their own concepts of citizenship in their enfranchising reforms.3 The Spread of Denizen Voting Rights: The Decline of Citizenship-as-Nationality? The expectation that noncitizen resident migrants (henceforth denizens4) can vote only after they undergo a process of naturalization to become national citizens has been questioned in formal parliamentary debates in close to fifty democratic polities all over the world. What does this mean for contemporary citizenship practices and understandings? At first sight, this number suggests that the time is over in which a relatively homogeneous status characterized all persons involved in the political participation of a state. Going a step further, many authors assume that denizen enfranchisement reveals a reassessment of practices regarding the exclusiveness previously attributed to naturalization as a precedent to acquire ‘‘citizenship-as-nationality.’’5 Following this assumption, denizen enfranchisement is portrayed as an option vis-a`-vis naturalization, either an alternative or a pathway. However, this assumption takes denizen enfranchisement for a much more unitary trend than it is. Around the world, denizen franchise varies in the levels at which denizens can vote and/or be elected, as well as the denizen population it covers. Table 2.1 includes all these distinctions for all national polities where denizen enfranchisement reforms have been discussed in legislatures, including where they failed.6 A further substantial distinction regarding denizen enfranchisement reforms around the world is whether these have been decided by local or regional parliaments (in federal systems) or by a national parliament. This distinction, illustrated in Table 2.2, has remained hidden in the literature on denizen enfranchisement, but it is not trivial: the cases in which the enfranchising authority was not national show that the bundles of rights enjoyed by the population subject to the laws of the same state vary in different levels of the polity and that different categories exist between subjects and citizens according to the level and competencies of state and government administration. Furthermore, those cases suggest that the local

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Greece (2010)

Latvia (2000)

Japan (2000)

Germany (1990, 2009)

France (1981, 2000)

Italy (2005)

Denizen Enfranchisement Reforms that Failed at National Parliaments New Zealand (1975)

Portugal (1992)

Sweden (1975)

Slovenia (2002) Luxembourg (2003)

Guyana (1996) Granada, Mauritius, Namibia, Jamaica, Czech Republic (2001)

Dominica (2007)

Brazil (1971, 2002)

Antigua and Barbuda (2001)

Slovakia (2002)

Burkina-Faso (1993)

Bulgaria (2005)

Belgium (2004)

Lithuania (2002)

Venezuela (1999)

Estonia (1993)

Colombia (1991)

Finland (1991)

Iceland (1986, 2002)

Netherlands (1985)

Norway (1983)

Chile (2005)

Malawi (1993)

Uruguay (1952)

Ireland (2008)

Ireland (1963) Denmark (1981)

National-Level Voting Rights for All Denizens

Regional or NationalLevel Voting Rights for Denizens of Some Nationalities Only

Local-Level Voting Rights Granted for All Denizens

Cape Verde (1982, 1997)

Barbados (1990)

Spain (1990)

Portugal (1971, 1982, 1996)

Belize (1981)

Finland (1981)

Norway (1978)

Denmark (1977)

United Kingdom (1972)

Voting Rights Granted for Local-Level Elections, Restricted to Some Denizens from Selected Countries

Table 2.1. Variations in Denizen Enfranchisement Reforms

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Table 2.2. Resident Immigrant Enfranchising Reforms in Subnational Polities Failed (because a higher instance abrogated it)

Succeeded In Switzerland: Jura (1978), Neuchatel (2000), Apenzell-Außerrhoden (2002), Fribourg (2002), Grisons (2002), Waadt (2004)

In Austria: Vienna (2002) In Germany: Hamburg (1988), Schleswig-Holstein (1989), Bremen (1989), West-Berlin (1989)

In Canada: Saskatchewan and Nova Scotia In Argentina: Buenos Aires and other provinces In the United States: at the level of local councils and school boards in eight municipalities (1988 to 2004)

level has acquired relevance in citizenship matters previously decided by the national state7 and that the disaggregation of political rights in various levels of a polity is not necessarily a top-down phenomenon but can be initiated by local polities. In addition, noncitizen enfranchisement reforms may also vary in the coverage of voting rights (passive and/or active voting rights) and the conditions under which the franchise is implemented (immediately, upon the approval of secondary or higher level legislation, or depending on the signature of bilateral treaties on the condition of legal reciprocity). In view of all these variations, few signs of convergence are visible regarding the phenomenon of denizen enfranchisement, but it is obvious that in the overwhelming majority of cases, denizen voting rights have reached the local level only (communes, city councils, districts). The fact that denizen voting rights are overwhelmingly restricted to local-level elections has led some authors to say that ‘‘the practice is somewhat marginal.’’8 Yet the existence of campaigns to enfranchise denizens at multiple levels of government (specifically, subnational legislative debates and reforms on this matter) should prevent researchers from making such sweeping statements if they are based on evidence from a handful of cases in which denizen enfranchisement was a national-level decision. The one characteristic common to all cases of denizen enfranchisement is that a requirement of residence is paramount to the exercise of denizen

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voting rights.9 The movement away from citizenship-as-nationality toward residence as the main prerequisite for voting rights suggests that migration laws, not citizenship laws, acquire more relevance as the criteria to delimit the demos: those who get a residence permit may vote. There are several discussions about what ‘‘ought to be’’ a sufficient period of residence. In the cases surveyed, the mode is three years, but there is no rule of thumb: residence requirements vary from six months (in Ireland) to 15 years (in Uruguay). In parliamentary debates, the required residence periods may be discussed in cultural-nationalist arguments (for example, the more time one spends in a territory, the more likely one is to assimilate to the culture) or in civic arguments (for example, co-residence facilitates understanding and developing interest in the political system of the receiving society), but exact periods seem hard to delineate.10 Often they are pragmatically defined by comparison with other cases and/or with reference to the length of one full legislative period. The failure of the literature to acknowledge the importance of variations in the residence periods and the level of the enfranchising authorities may be explained by their prevailing theoretical and methodological focus. Most of the literature on denizen enfranchisement is based on rather thin case studies or small-n comparisons; studies with a wide comparative outlook remain the exception.11 The fashionable three-case comparison, for example, confirms time and again that the political culture of a country and the national traditions of self-understanding of citizenship are the paramount factor explaining why states choose one form or another of denizen franchise.12 Plausible as it may seem, this conclusion takes for granted that a trend toward denizen enfranchisement exists, that states simply will differ in their particular responses according to their cultural/constitutional traditions, and that these traditions are unitary and homogeneous within a state. This is already too much to take for granted: these assumptions obscure the fact that, in some cases where one would expect it, denizen enfranchisement may not even have been brought up. There are several well-rooted democracies, such as Costa Rica, with noteworthy proportions of denizens (over 5 percent) that have never discussed denizen voting rights at any level. These assumptions overlook cases in which a subnational polity attempted to enfranchise denizens (and in several cases succeeded) but was later challenged by a higher level player with veto power for example, Vienna in Austria, Schleswig-Holstein and Hamburg in Germany, and Emilia Romagna and Tuscany in Italy. If we look at the debates on denizen

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enfranchisement held in legislative bodies of local and national levels over time and with a wide comparative perspective, it is easy to see the relevance of the issue. Furthermore, the tripartite comparisons always focus on the successful cases, missing the political and judicial discussions pertaining to substantial redefinitions of citizenship that occurred in cases that ultimately failed (such as Germany, Italy, and France and, most recently, Greece). Significantly, it is important to note that not only democracies with high proportions of immigrants tend to discuss denizen franchise. Twentyseven states that have enfranchised denizens have either very low or even negative migration rates. Without any significant population to enfranchise, enfranchisement of denizens in these polities presumably constituted a symbolic measure with different possible purposes:13 first, to signal willingness to follow the dictates of regional integration or boost the chances of being accepted in a region. In an effort to over-comply and outperform, Hungary, Lithuania, Slovenia, Slovakia, Malta, and Estonia extended local voting rights not only to European citizens but to all resident migrants after a certain period of legal residence (with different additional conditions). Second, to respond to reforms made in former colonial metropolises on the official grounds of legal reciprocity or common cultural heritage—for some excolonial countries, the enfranchisement of denizens does not have much impact at home but gives significant advantages to their emigrants in the recipient countries, as is the case of Cape Verdeans in Portugal. This logic may have applied in most Latin American countries that enfranchised denizens after Spain enfranchised denizens strictly on the basis of legal reciprocity (except for Uruguay, where denizens have been enfranchised since 1952). Finally, the remaining cases of denizen enfranchisement in states characterized by emigration rather than by immigration belong to the Commonwealth of Nations, where enfranchising reforms responded to the reciprocity-based denizen franchise introduced in the United Kingdom.

Theoretical Interpretations and Their Omissions Methodological issues aside, the most prominent theories used to explain denizen enfranchisement borrow their insights from the literature on naturalization regimes, consequently highlighting some factors and downplaying others. First, the postnationalist theories regard denizen enfranchisement as a sign of the declining importance of national citizenship: they highlight the

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importance of human, civil, and social rights enjoyed by an increasing number of persons regardless of their national-legal membership14 while downplaying the importance of political rights, deeming them nonessential. They thus overlook the strong differentiation of denizen political rights even among those countries where universal norms and discourses originated.15 Second, the theories on citizenship acquisition regimes have been the main source of hypotheses to study denizen enfranchisement. Their outlook is predominantly historical-institutionalist, emphasizing the weight of national traditions of self-understanding and cultural conditions in determining the direction of citizenship policies. In line with the assumption that naturalization is not only the classic but also the most secure road to the acquisition of citizenship rights, denizen voting rights receive attention only as far as they constitute another quasicitizenship category.16 These accounts tend to assume stasis and to ‘‘cherry pick’’ cases and conclusions: different quasicitizenship regimes are explained in reference to different national traditions through the selection of certain historical episodes or certain particular rules, a method that does not add to our knowledge of the phenomenon at large in the world or to our understanding of its variations. Moreover, for all its focus on naturalization rules, this literature has had difficulty accounting for the convergence trends of naturalization laws identified by Weil and Joppke, according to which jus soli states become more restrictive and jus sanguinis states move toward jus soli, responding to the challenge of immigration in the context of the stabilization of borders and incorporation of democratic values.17 Such a ‘‘trend’’ directly contradicts historical institutionalist predictions because countries that were consistently characterized as conservative in their nationality traditions, such as Germany, have facilitated their rules for naturalization, whereas countries with traditionally ‘‘inclusive’’ regimes, such as France, have moved toward a restrictive direction, all in the space of a few years.18 According to Joppke, this trend is far-reaching: ‘‘More than a tinkering with a minuscule aspect of citizenship, the entire citizenship construct, which had once been kept strictly separate of the exigencies of migration control, has in effect been fused with and subordinated to migration control, with the rights of citizens becoming downwardly approximated to the rights of legal immigrants.’’19 Finally, a third group of theories dealing with denizen enfranchisement has a middle-range perspective compatible to some degree with both historical institutionalism and postnational pluralism. It generally maintains

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that, instead of being blocked into cultural stasis or being subject to postnational decline, citizenship is a realm of politics and policy, hence ever changing.20 The important question is, then, in what direction does it change, and how? The answers from this literature are usually connected to the interaction of domestic institutions, the cultural particularities of a state, and the way transnational challenges are interpreted and addressed. This literature shares Tilly’s21 view about the origin of social identities as relational and cultural; it attributes importance to shared understandings and their representations on the one hand and to historical path dependencies on the other, yet it sees each assertion of identity as a contingent strategic interaction, not a straightforward expression of attributes or continuation of tradition.22 Still, for all the plausibility of this dynamic perspective vis-a`vis the other explanations, its empirical reach has been limited to a few case studies that are already exhausted in the literature: France, United Kingdom, United States, Germany, and, lately, Ireland and New Zealand. Again, a critique extensive to all three strands of literature is that they have not taken seriously their assumptions about voting rights.23 For example: Is enfranchisement of denizens a palliative of democratic bad consciousness, where the requisites for ‘‘full inclusion’’ (naturalization) are too high? Is the case for extension of voting rights to denizens really weakened if access to naturalization is easy? Does the spread of denizen enfranchisement mean, then, that citizenship-as-nationality is in decline? Not necessarily. Table 2.3 demonstrates that the relation between naturalization and denizen enfranchisement is nonexhaustive and indeterminate. There are cases to fill all the cells that combine regimes regarding those two conditions, which makes it impossible to know a priori the existence of denizen franchise by considering naturalization regimes alone. It is perfectly possible that the naturalization regime is a part of the story of denizen enfranchisement; when we look at actual political debates, this regime is frequently a justification to propose enfranchisement.24 However, denizen enfranchisement is not merely an epiphenomenon of particular naturalization regimes. By the same token, the spread of denizen enfranchisement cannot be equated to the wane of citizenship-asnationality. The diversity of levels and the selectivity of denizen enfranchisement rules (especially regarding the enfranchisement on reciprocity grounds or cultural affinity) instead suggest that the right to participate in formal politics is becoming less dependent on the formal status of national citizenship. However, these very variations also suggest that the conditions

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Table 2.3. The Link between Naturalization and Denizen Enfranchisement in Countries with High Proportions of Immigrants Extended Franchise

Not Extended Franchise

Relatively easy naturalization rules

Belgium Ireland Sweden Netherlands (Argentina) (United States)

France Costa Rica Australia

Relatively difficult naturalization rules

Denmark Slovenia Spain (Switzerland) Portugal

Greece Italy Germany Austriaa

Note: Cases in parenthesis indicate that the extensions of the franchise were subnational. a It would be possible to include Austria and Germany in two cells, because Hamburg and Schleswig-Holstein enfranchised resident migrants in Germany, and Vienna did the same in Austria, but those reforms were later abrogated by the Federal Constitutional Courts.

that qualify denizens to participate remain significantly entangled with the rules of access to nationality as an instrument of selection of members. A wide, comparative, empirical perspective on denizen enfranchisement makes it clear that the relation between practices and understandings of citizenship on the one hand and the emergence of denizen enfranchisement on the other should be investigated rather than simply assumed. We need to develop more intricate, middle-ground hypotheses about the meaningattribution processes through which the world has come to have such different denizen enfranchisement regimes. The following sections present some ideas in that direction.

Denizen Enfranchisement and the Rise of Flexible Citizenship Neither globalization nor migration are new phenomena, but the concurrence of fast-paced migration and globalization in a world still divided into national containers begs the question of whether citizenship still serves as the concept that delimits membership of people in the demos. The constitution of the demos is one of the classic and most polemic issues in

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political theory,25 and it has acquired more salience because in a highly mobile, interconnected world it raises questions about justice, as it is obvious that some memberships entail a more attractive set of rights and duties than others. To address this issue, let us return to where we started: that is, to the acknowledgment that however different the interpretations of citizenship, voting rights are the component that citizenship is hardly ever seen without.26 Electoral formulae aside, voting rights are the most equal, formal form of participation embodying the democratic principle that people who are subject to the law should have a say in its making. Not even a passport can be said to embody a more formal proof of citizenship than the vote.27 The postsoviet space has seen a proliferation of passports that grant the status of ‘‘noncitizen,’’ thereby sanctioning the exclusion of some types of members of the state from political decision making in it.28 What does the disaggregation of voting rights mean for the principles of democratic rule? For one thing, it means that political participation has become possible beyond the member/nonmember divide. For Seyla Benhabib, the universalistic extension of political participation rights to denizens heralds a new institution of citizenship by decoupling it from national belonging, particularly within the context of the European Union.29 However, European citizenship (originally created by the Treaty of Maastricht in 1992) was explicitly reformulated in 1997 (Treaty of Amsterdam) to specify that it shall be additional to national citizenship and shall not replace it.30 For the moment, this specification prevents European citizenship from becoming an entitlement based on residence for third-country nationals and reserves the competence to integrate people into European citizenship to the member states. That principle is not new; during the process of German unification, from 1867 until 1913, there was no German citizenship: conferral of citizenship occurred through the members of the North German Confederation and, later, of the German Empire. What is new about European Union citizenship is the basis upon which it has made civil, social, and local-level political rights transnational, anchoring them to the right to free movement of its citizens and on residence-based rights. It is significant that the European Council of Tampere in 1999 pledged to grant third-country nationals ‘‘rights and obligations comparable to those of EU citizens,’’ suggesting that it is becoming increasingly difficult to distinguish between European citizens (nationals of a member state) and third-country nationals who are permanent residents.31

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Beyond Europe, voting rights have disaggregated from citizenship, mainly at the local level. Many reforms keep highlighting national memberships by enfranchising not all denizens but only the denizens of some nationalities. This confirms that denizen enfranchisement reforms have not necessarily led to a weakening of citizenship-as-nationality. However, for those countries that enfranchised denizens universally, the main criterion that determines whether to grant formal participation rights at the local level is no longer the nationality of the applicants but the fact that they live and pay taxes locally and, more specifically, their residence permit, issued by migration, not naturalization authorities. In the language of the classic work by Tomas Hammar, this means that there has been a displacement of the ‘‘third gate’’ (acquisition of national citizenship) by the ‘‘second gate’’ (granting of a residence permit) as prerequisite for political participation rights, and in some cases by the first gate (legal admission).32 Are voting rights becoming a more flexible instrument than naturalization for selection of the members of the demos, an instrument that allows states to avoid intricate questions of ideology? Not necessarily. A closer look at some enfranchisement processes shows that denizen enfranchisement does not preclude ideological issues from reaching enfranchisement discussions. Because of its complex federal structure and the many local processes of citizenship redefinition that occurred almost simultaneously in the late 1980s, the German case is especially rich in insights to illustrate this. In Germany, the Constitutional Court abrogated the enfranchisement of denizens at the local level in two federal states, Hamburg and SchleswigHolstein (although the latter included a reciprocity clause), arguing that their enfranchisement reforms had violated the basic right of selfdetermination of the German people, because only the German people as a whole can decide whether it wants to change the concept of ‘‘the people’’ according to which electoral rights are granted. The attempt of several La¨nder parliaments to reinterpret the German constitution (Grundgesetz) as including noncitizen residents in the understanding of ‘‘the people’’ who constitute the electorate did not succeed. This makes Germany a negative but still very relevant case that suggests that extensions of voting rights may fail precisely because ideological questions related to citizenship cannot be disentangled from the justifications for the reform. Thus, until we know more about how enfranchisement processes were construed in the relevant cases, any conclusion that citizenship is ‘‘lightening’’—at least as substantive understanding of the political relation between

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citizen and state, and as identity—is premature.33 The German example illustrates that the arguably legitimate claims of political participation based on residency are not always recognized and not always successfully disentangled from complex ideological matters of national citizenship. As Table 2.1 shows, Germany is not an exception: political debates on denizen voting rights have often resulted in those rights not being granted.34 At the empirical level, the enfranchisement of denizens across different polities in the Western world seems to be yet another transformation in the history of inequalities that characterize the use of citizenship. Never has citizenship been so inclusive of people as in the contemporary world, yet the barriers it must overcome to include resident foreigners are still very controversial and allow ample room for arbitrariness. The complexity of denizen enfranchisement reforms and their wide variations show that it was naive to expect that democracies facing similar challenges would, constrained by their shared normative commitments, respond similarly. Liberal democracies are more diverse than the bulk of literature on citizenship studies usually admits: within a liberal democratic framework, there is enough room for democracies to interpret what the migration challenge amounts to and how legitimate it is to endow different participation rights to people equally affected by laws in their territory and contributing to its well-being as much as citizens. Obviously, this topic is deeply related to issues of justice in political theory debates. Stolle and Howard have shown that citizenship has served to separate citizens from foreign residents by associating certain rights and privileges with national citizenship.35 Likewise, Carens has famously denounced citizenship in Western liberal societies as ‘‘the modern equivalent of a feudal privilege’’ and advocated abolishing distinctions between citizens and aliens who want to become citizens, a distinction that did not exist until, for example, the early twentieth century in the United States.36 Going a step further, Brubaker has drawn attention to the fact that citizenship is a powerful instrument of social closure: its boundaries allow rich states to draw a line that separates its citizens from potential immigrants from poor countries.37 Indeed, migration regimes seldom liberalize in a manner neutral to the kinds of migrants desired; states use market criteria to conduct migration policy, with economic skills trumping cultural and identity criteria in evaluating potential migration requests.38 A risk of the disarticulation of voting rights is that just as they might follow universalizing criteria of human rights, they might also follow less democratic criteria.

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Where some authors see potential to liberate democratic principles from the chains of nationality, others see the risk that they are controlled by economic interests. Human rights advocates stress that the disaggregation of citizenship and the heterogeneity of legal standings and rights across the citizenry may have an emancipative potential beyond borders as individual rights make claims on global norms of civic participation and nondiscrimination.39 If, however, only well-off migrants benefit from this emancipation because they are the ones who pass migration law screening, the scenario looks rather different. In the unsettling words of Aihwa Ong, ‘‘strict discrimination between the citizens and foreigners is dropped in favor of the pursuit of human capital. . . . As neoliberal values of flexibility, mobility and entrepreneurialism become ideals of citizenship they also undermine democratic achievements of American liberalism based on ideals of equal rights.’’40 Nevertheless, the spread of denizen voting rights does not equal loss of control over the democratic legitimacy of participation in favor of competition for flexible and mobile migrants. The latter did not arise with denizen voting rights but is an inherent risk to any kind of mechanism to select members—also to naturalization! Joppke has documented that Austrian citizenship can be acquired by investment, disregarding the ‘‘normal’’ naturalization rules,41 and there are consulting agencies that specialize in advising on that and other ‘‘citizenship-by-investment’’ programs in Montenegro, Dominica, and St. Kitts & Nevis.42 The normative issues surrounding the extension of voting rights to noncitizens are comparable to the controversies about dual nationality. As a matter of principle, toleration of dual citizenship might be read as a liberalizing move toward the acceptance of cross-border mobility and multiple allegiances, but it may also be seen as a tool for expanding the national community beyond state borders, reattaching ethnicity to citizenship, as happens in countries with unresolved historical border controversies, such as Hungary, Romania, and Moldova and also some Western European countries.43 Dual citizenship has also been used strategically to attract certain descendant elites in India, Mexico, and Australia. Some states may even use dual citizenship as a method of expelling unwanted residents who are dual citizens.44 However, as Benhabib noted, the downside of the increasing tolerance of multiple citizenships has been the discomforting ‘‘flexible citizenship’’ exercised by economic elites who carry three or more passports and navigate three or more national economies.45 As an antidote,

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Benhabib concluded that ties to locality, region, and transnational institutions should be strengthened on the basis of residence. The spread of denizen enfranchisement across the world seems to strengthen such a movement away from citizenship as national membership, toward a citizenship of residency. Yet, in contrast to the developments regarding the acceptance of multiple nationalities, it is rather grounded in the recognition that rights of participation need to follow the pace of a highly mobile world and flexible times, in which the decision to participate in a polity cannot depend on the often transcendental decision to acquire the full citizenship of a country; such a decision might thus be grounded in the development of local ties. A risk of inequality remains, because, as Spiro points out, the choice between residence and citizenship is only accessible to the legal immigrant elite that can clear the hurdles of territorial access.46 Still, the universal requirement of residence to exercise local voting rights wherever these rights have been granted proves that the temporary linkage to a territory is still fundamental. This anchor in residence serves as a guard against the rise of an economically biased flexible citizenship. Otherwise, the hypothetical award of voting rights without a residence requirement would make voting rights a privilege of rich, highly mobile migrants.47 Thus, a residence requirement of six months, as in New Zealand, which has been interpreted as a case of liberal self-interpretation of citizenship,48 seems rather undemocratic if we consider that what is at stake there is hardly a connection to the demos but, primarily, passage through a selection system biased toward immigrants with substantial educational and professional qualifications. When denizens enjoy rights previously exclusive to citizens, the justifications for restricting self-rule to citizens come into question, especially regarding the exclusivity and identity that citizenship requires.49 It is likely that once local voting rights have been awarded to resident migrants, it will be difficult to justify keeping national rights out of their reach. However, so long as denizen franchise is anchored in the requirement of residence, and insofar as it is extended universally, it will be a legitimate democratic tool with which to delineate membership. Another question is whether political participation rights are in any way attractive to migrants. According to Higuchi, the political behavior of newcomers varies widely according to their human capital, organizational basis, and prospects for staying: individuals with human capital and/or organizational basis tend to be more

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politically active; persons looking toward permanent residence will participate more than those who are transient oriented.50 Some have been content to assert that the political rights that European citizenship provides are not particularly relevant to EU nationals living and working in other member states.51 But arguments on the subjective opinions of migrants do not say anything about the relevance of their participation from the point of view of the receiving society or from a normative perspective. In enfranchisement processes, representatives of existing members (or, in exceptional cases, the existing members themselves, as in the case of Switzerland discussed by Helbling in this book) are the ones who decide whether to let nonmembers participate to improve local representation and governance. Even restricted to the local level, as it overwhelmingly appears in the world, denizen enfranchisement has the potential to revive and reform a model of citizenship mostly exercised in the city. This is not insignificant: if local polities can treat foreign residents on the basis of their status as ‘‘local citizens’’ regardless of nationality, they might be more representative, more efficient in providing basic services to a wider subset of the population, and better prepared to address/prevent problems related to migrant communities.

Conclusion The motto of literature on citizenship is that the analysis of what citizenship is good for and how it is understood can tell us a lot about changes in the nature of states as well. However, the strong focus of this literature on the changes of citizenship-as-nationality, particularly the rules of full citizenship acquisition through naturalization, has relegated the disaggregation of its main attribute to the shadows or has deemed it irrelevant because it affects mainly the local level. As a result, citizenship literature has overlooked the fact that debates on political participation, membership, and nationality happen at multiple levels of decision making. More important, it has overlooked the extent to which the dissociation of political rights from citizenship may cause the principle of democratic representation and civic competencies to devolve to the local level. Relieving the urgency to address the democratic deficit suffered by polities with an important proportion of foreign residents in their population, the denizen franchise gives immigrants the decision of how to integrate and

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when to participate. Some interpret this as cheapening citizenship by opening to noncitizens more of those rights that used to be the privilege of citizens; others see it as revaluing citizenship by making it less pressing for denizens to acquire citizenship just to get the rights attached to it and instead think of naturalization as a decision more related to a thicker identity.52 There is another interpretation, according to which ‘‘substantive’’ citizenship is taken out of the map of reasonable expectations for migrants by offering them the crumbs of participation at the local level.53 Yet what all these different normative interpretations ignore is the view from the local receiving society: extending voting rights, even if only at the local level, restores democratic legitimacy to local government and potentially benefits the receiving community by including the voice of foreigners in matters that affect local issues.54 In the literature on citizenship, the portrayal of denizen enfranchisement as weakening national citizenship resulted from its framing as nothing more than an option to naturalization and of poor reflection on its variations, both of which obscured the important connection of denizen enfranchisement to frameworks and discourses of migration. A wider empirical perspective demonstrates that denizen enfranchisement has usually been restricted to certain categories of immigrants or has been decided with an emigrant population in mind. As Joppke notes, citizenship became more porous and the distinction between citizen and legal resident alien became blurred ‘‘because the vast majority of humankind is locked out from the purview of Western states’ citizenship by these states’ immigration policies (which by definition are vastly more exclusive than inclusive, even in their most generous variants).’’55 In the minority of cases, though, denizen enfranchisement has the potential to affect matters of local government by including the resident migrant population. For those cases, the important normative question is, Under which conditions can denizen voting rights uphold the principles of liberal democracy and not simply become another tool of migration control and selection, providing lip service to democratic principles? Even if restricted to the local level, denizen enfranchisement acknowledges that one person can maintain several allegiances and political relations to different states, on different and so far usually exclusive levels: local where they live, national where they come from. This has been largely ignored in the citizenship studies literature, leading scholars such as Joppke to premature conclusions that have declared the ‘‘inevitable lightening of citizenship in

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the West.’’56 What this overlooks is that citizenship does not lighten uniformly but disaggregates differently, even within the West. The frontiers of the relevant forums for political life and of the communities where people would want to exercise citizenship are in a state of flux. However, it is the task of social sciences to remain critical toward generalizations and observe that they usually apply only to a tiny subset of the world’s population—migrants—or to a small subset of cases.57 Through the comparative analysis of enfranchisement processes under differing conditions and over time, we will be better able to refine our statements about the potentialities of denizen voting within citizenship or as a new form of citizenship.

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Chapter 3

Attrition through Enforcement in the ‘‘Promiseland’’: Overlapping Memberships and the Duties of Governments in Mexican America rogers m. smith

As in many other parts of the world, recent American immigration disputes have involved tensions not just between proponents of different policies but also, and increasingly, between champions of the prerogatives of different governments—national, state, and local—governments structured both vertically and horizontally. The vertical dimension includes clashes between the government of the United States and the governments of states such as Arizona, Georgia, and Alabama, as well as between those state governments and some county and municipal agencies.1 The primary horizontal dimension is the relationship between the governments of the United States of America and the United Mexican States, although relationships between American and Mexican state and municipal governments on opposing sides of their long national border are significant as well. Although Islamic and Arabic immigrants have been a major source of concern since September 11, 2001, Latino immigrants generally, and Mexican immigrants in particular, have for a longer time been at the heart of immigration issues in the United States. Over half of the nation’s almost 40 million foreign-born residents in 2010 were born in Latin America or the Caribbean, including around 11.7 million (29 percent of the total) born in Mexico.2 But almost three-fifths of the Mexico-born residents were undocumented, an estimated 6.8 million people (about 59 percent of the total

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undocumented population). Between 2000 and 2011, the Mexico-born undocumented population increased by 2.1 million (an annual average of 190,000), and the next leading source countries were El Salvador (660,000), Guatemala (520,000), Honduras (380,000), and China (280,000).3 By 2012, demographers reported that the largest immigration wave in history from a single country to the United States had stopped and possibly reversed as a result of weakened U.S. employment prospects, heightened border enforcement, a rise in deportations, growing dangers associated with illegal border crossings, long-term decline in Mexico’s birth rates, and broader economic conditions in Mexico.4 Yet the concerns about immigration that continued to contort American politics and policies remained chiefly worries about Latino immigrants, especially anxieties about Mexican immigrants. I have previously argued that one criterion for determining how the U.S. government should treat noncitizens is a ‘‘principle of constituted identities.’’ It holds that the more the United States has coercively constituted the identities of noncitizens in ways that make having certain relationships to America fundamental to their capacities to lead free and meaningful lives, the greater the United States’s obligations to facilitate those relationships—although other conflicting obligations may still prove overriding.5 This principle implies that Mexicans may be owed ‘‘special access to American residency and citizenship, ahead of the residents of the many countries less affected by US policies, and in ways that should justify leniency toward undocumented Mexican immigrants.’’6 But I have also contended that the federal government has obligations to the immigrantreceiving states and municipalities because its policies have constituted these states and municipalities in ways that make unauthorized immigrants appear threatening and burdensome.7 Those obligations obviously can provoke tension: if the United States gives special access to U.S. residency and citizenship to Mexicans, then many white, Anglophone residents of immigrant-receiving states, shaped to expect their cultural predominance and concerned about the political, social, and economic impacts of immigrants, are likely to resist. Especially since 2000, such residents have in fact been resisting national immigration policies more and more aggressively and with sharpening strategic focus. Whereas proponents of immigration restriction once focused almost exclusively on persuading national policy makers, since the mid2000s, they have increasingly used parallel and often coordinated state

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and local government actions that, in the aggregate, may transform American national policies. My aim in this chapter is to identify and assess some political, constitutional, and normative issues posed by these recent efforts of many state and local American officials, in opposition to many others, to seek to alter U.S. national immigration policies ‘‘from below’’ as a key part of a strategy its proponents term ‘‘attrition through enforcement.’’8 The chief aim of this strategy is to reduce the undocumented immigrant populations by adopting state and local policies (and, when possible, national policies) that make life much more difficult for those populations—in the expectation that many unauthorized immigrants will be persuaded to ‘‘self-deport,’’ as presidential candidate Mitt Romney argued in 2012.9 State and local ‘‘attrition through enforcement’’ measures are, however, presented as consistent with, indeed as reinforcements of, existing federal laws, policies, and judicial decisions governing immigration and immigrant statuses. Many proponents of Latino immigrants—including American civil rights, labor, and immigrant advocacy groups, some American national and state officials, some employer advocacy groups, and also Mexican national and state officials—argue that ‘‘attrition through enforcement’’ policies do not significantly reduce the undocumented population and instead only promote discriminatory violations of rights.10 They also contend that these measures unconstitutionally infringe on domestic and foreign policy powers of the United States government.11 Defenders of ‘‘attrition through enforcement’’ reply that these measures are constitutional means of realizing official U.S. policy goals that the national government has failed to fulfill and that it is democratically appropriate within any federal system for state and local officials to use their authority not only to govern within their jurisdictions but also to shape national domestic and foreign policies. Although I side with the critics of many ‘‘attrition through enforcement’’ measures on immigrant policy, human rights, and constitutional grounds, I contend that it is indeed democratically appropriate within a federal republic to seek to shape national policies through such ‘‘bottomup’’ means. The many problems with ‘‘attrition through enforcement’’ only underline one overarching reality. The central message the supporters of ‘‘attrition through enforcement’’ seek to send—that U.S. immigration policies need to be transformed to meet more effectively the nation’s obligations to all concerned—represents a challenge that is not being met.

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The Rise of ‘‘Attrition through Enforcement’’ When Steven Camarota, director of research for the conservative think tank the Center for Immigration Studies (CIS), testified before the House Subcommittee on Immigration in 2002 on the importance of ‘‘making interior enforcement work,’’ he stressed the dangers of immigrant terrorists, costs to the economy, and burdens on taxpayers, as anti-immigration advocates have done before and since; but his recommendations for stronger enforcement focused almost entirely on national actions.12 In 2003, CIS Executive Director Mark Krikorian wrote in National Review that there were ‘‘many things the federal government should leave to lower levels of government or the private sector, but management of immigration isn’t one of them.’’ He contended that the ‘‘chief reason for the lack of enforcement of our immigration laws’’ was ‘‘the firm determination in Congress and successive administrations that the law not be enforced.’’13 And when Krikorian first called for ‘‘a strategy of attrition through enforcement’’ in May 2005, he similarly maintained that ‘‘since at least 1986,’’ national immigration laws had been ‘‘designed to look tough but not be enforced,’’ and he, too, focused primarily on national actions. But Krikorian also endorsed enhanced ‘‘cooperation between federal immigration authorities and state and local police.’’14 When in April 2006 CIS Senior Policy Analyst Jessica M. Vaughan published a more elaborate set of ‘‘attrition through enforcement’’ proposals, she devoted one entire section, entitled ‘‘Law Enforcement Partnerships: Many Hands Make Lighter Work,’’ to the desirability of the new Immigration and Customs Enforcement agency (ICE) cooperating with state and local law enforcement departments to arrest undocumented immigrants via, among other means, formal 287(g) agreements (so-called in reference to the authorizing section of the Immigration and Nationality Act, codified as 8 U.S.C. § 1357[g]).15 Vaughan devoted another whole section to urging ‘‘Zero Tolerance: State and Local Laws Discouraging Illegal Settlement,’’ mentioning laws denying driver’s licenses, occupancy regulations, and local employer regulations as examples.16 As she observed, state and local governments, frustrated with ‘‘the federal government’s failure to make progress in reducing illegal immigration, and under pressure from impatient voters,’’ were already ‘‘taking matters into their own hands.’’17 The CIS advocates had clearly decided to embrace these state initiatives as part of their ‘‘attrition through enforcement’’ strategy—and because they have had less

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success at the national than at many state and local levels, actions at lower levels of government have since come to dominate ‘‘attrition through enforcement’’ initiatives. These state actions have many sources, tracing back at least as far as California’s adoption of the anti-immigrant rights Proposition 187 (the ‘‘Save Our State’’ proposition) in 1994, which a U.S. district court largely invalidated as preempted by national authority over immigration.18 The actions by governments further down America’s jurisdictional vertical axis include local measures, such as Hazleton, Pennsylvania’s ban on renting to illegal aliens, which courts also voided, as well as both county and state requirements for police to verify legal residency status and for social service agencies to deny unauthorized immigrants many forms of public assistance. Strikingly, the pattern is not all one way: some municipalities have instead chosen to be ‘‘sanctuary cities,’’ issuing municipal identification cards to otherwise undocumented aliens and prohibiting further inquiries by public employers into their legal status, but the bulk of state and local actions have been in the opposite direction.19 Still, before the mid-2000s, the many state and local attempts to restrict immigrant rights and discourage illegal immigration operated in largely uncoordinated fashion, with few faring well in federal courts. Along with advocacy by the CIS, the intellectual and political leadership to knit anti-undocumented immigrant state efforts into a cooperative movement across the nation came in significant measure from Kris W. Kobach, formerly counsel to U.S. Attorney General John Ashcroft, who specialized in immigration law and border security. In the early 2000s, Kobach headed the Bush administration’s ‘‘Special Registration’’ program for visitors from Islamic countries, which Krikorian cited in his 2005 paper as having demonstrated that national ‘‘attrition through enforcement’’ measures would mean that ‘‘illegals already here’’ could be prompted to ‘‘give up and leave.’’20 After leaving the federal government, Kobach returned to teaching law at the University of Missouri (Kansas City) School of Law and wrote and taught extensively on immigration issues while serving as counsel to the Immigration Reform Law Institute, an affiliate of the nation’s leading immigration restrictionist group, the Federation for American Immigration Reform (FAIR).21 Kobach then was elected Kansas secretary of state in 2010 while simultaneously serving as legal counsel to municipalities and state legislatures enacting restrictive immigration laws, including Hazleton; the Dallas suburb of Farmers Branch, Texas; the State

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of Arizona; and others.22 In 2012, Mitt Romney celebrated Kobach’s endorsement and promised to ‘‘work with him to take forceful steps to curtail illegal immigration.’’23 Prior to focusing on immigration issues, Kobach’s early scholarly work had argued (in regard to term limits) that in democratic federal systems such as those of the United States and Switzerland, it is legitimate to bring about even constitutional changes, such as women’s voting and prohibition, ‘‘from below’’ through local- and state-level activism—winning local victories throughout the country until so many regions have altered their policies that ratifying national action becomes inevitable and largely symbolic.24 From 2004 on, Kobach made similar arguments in regard to immigration, insisting that the states ‘‘can and should’’ serve as ‘‘force multipliers’’ to arrest illegal immigrants and reduce illegal immigration.25 He wrote a paper on ‘‘State and Local Authority to Enforce Immigration Law’’ for the Center for Immigration Studies in 2004 that Vaughan cited in her 2006 ‘‘Backgrounder,’’ when the CIS first embraced state and local action strongly.26 And in a 2008 article in the Tulsa Journal of Comparative and International Law, Kobach identified such state efforts as the cornerstone of the ‘‘attrition through enforcement’’ strategy.27 Like Krikorian, Kobach emphasized that this approach ‘‘has never been the immigration strategy of the United States.’’ The United States had centered its enforcement efforts on alien smugglers and unauthorized immigrants guilty of violent crimes, Kobach stated, while doing ‘‘virtually nothing to enforce the law against garden-variety illegal aliens.’’28 Kobach later pursued state and local level ‘‘attrition through enforcement’’ advocacy via op-ed pieces, congressional testimony, and direct assistance to state and local legislators sponsoring a wide range of restrictive immigration measures, including former Arizona State Senator Russell Pearce, sponsor of many of that state’s most controversial immigration laws.29 He also worked extensively with ‘‘State Legislators for Legal Immigration,’’ a group founded by Pennsylvania State Representative Daryl Metcalfe.30 This coalition, including state legislators from Arizona, Georgia, Oklahoma, and South Carolina as well as Pennsylvania, urged numerous initiatives to curtail immigrant rights, including state laws denying that children of undocumented aliens born in the United States are citizens under the 14th Amendment and the adoption by states of special birth certificates for such children. Proponents contend that these measures are intended not to usurp federal authority but to ‘‘revive the concept of state

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citizenship.’’31 They also, of course, are meant to be another deterrent to illegal immigration. As states have begun adopting ‘‘attrition through enforcement’’ measures, the strategy has been endorsed ever more vocally by a wide range of immigration restrictionist groups and conservative media, including NumbersUSA, Human Events, National Review, and the blog RedState.com— most of which insist that the evidence so far, from different parts of the country, indicates that ‘‘attrition through enforcement’’ works.32 Of all the ‘‘attrition through enforcement’’ initiatives, none has stirred more controversy than Arizona’s Senate Bill 1070, the ‘‘Support Our Law Enforcement and Safe Neighborhoods Act,’’ signed into law on April 23, 2010, by Arizona Governor Jan Brewer. Section 1 of the act explicitly states ‘‘the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona.’’33 State Senator Pearce, Kobach, and the bill’s other proponents presented it as a means to ensure that all Arizona governments and agencies would actively help enforce federal immigration laws rather than abstaining from or even obstructing enforcement, as they believed some localities were doing. One provision in the bill required all cities to aid immigration enforcement by reporting information on immigrant status to pertinent federal agencies and requesting status information from federal immigration authorities. The bill also added state penalties for violations of some federal immigration laws and immigration-related crimes. Most controversially, it authorized Arizona law officers to require persons to prove their immigration status whenever the officials had ‘‘reasonable suspicion’’ of illegality. Officials could also arrest immigration law violators without warrants so long as police had ‘‘probable cause’’ to believe them guilty of such violations. The Obama Justice Department immediately challenged the law on the grounds that it represented state interference with national policies concerning the enforcement of immigration laws and because it might encourage stops, searches, and arrests on the basis of suspicions that amounted to illegal racial profiling. The president of Mexico, Felipe Caldero´n, and other Mexican officials, including some in the two Mexican states bordering Arizona, also condemned the law, calling it a ‘‘violation of human rights.’’34 On April 30, the Arizona legislature enacted and the governor signed a further measure guaranteeing that state prosecutors would not investigate complaints based on ‘‘race, color, or national origin.’’ But on July 28, 2010, a day before SB 1070 was to go into effect, a U.S. district judge issued a

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preliminary injunction against its authorizations to demand proof of status and to arrest without warrants.35 Arizona appealed her judgment before a Ninth Circuit Court of Appeals panel, which upheld her ruling.36 Even the partial dissent in the case accepted that Section 3 of the law (making it a state crime for aliens to fail to carry documentation required by federal law) was preempted by the efforts of the Immigration and Nationality Act (INA) to establish a uniform and comprehensive system of alien registration and that Section 5 (making it a state crime for unauthorized aliens to seek or accept employment) was preempted by the intent of Congress to focus employment sanctions on employers, not employees. The Circuit Court judges in the majority ruled that Section 2(B) (requiring all Arizona law enforcement officials to determine the immigration status of all persons they stop or detain if there is reasonable suspicion about their status) was also preempted by INA requirements that state enforcement of immigration laws be guided by written agreements with the U.S. attorney general and more broadly, that it interferes with the discretion regarding enforcement Congress has assigned to the executive branch. The judges also held that Section 6 (authorizing state law enforcement officials to arrest without warrant any person they have probable cause to believe guilty of an offense rendering the person removable from the United States) gave state officials more authority to arrest than Congress has approved, so it interfered with what they called a ‘‘carefully calibrated’’ congressional plan for immigration enforcement. On June 25, 2012, in Arizona v. United States, the Supreme Court agreed that the law’s criminalization of failure to carry documentation, ban on unauthorized aliens seeking employment, and authorization for arrests without warrant were all preempted by federal laws, though it sustained the rest of the statute. Justice Anthony Kennedy’s majority opinion indicated that the requirement for stops based on reasonable suspicion of unauthorized status might also be in jeopardy if it fostered invidious discrimination.37 The Obama Justice Department chose not to pursue ‘‘racial profiling’’ challenges when arguing the case, chiefly because the law had not yet been enforced. The question of how far SB 1070 would be sustained was urgent because, in its wake, various states began trying to out-do Arizona and each other by enacting the most stringent anti-immigrant ‘‘attrition through enforcement’’ laws in the nation. Georgia and Alabama quickly passed ‘‘copycat’’ laws that in fact went well beyond SB 1070, with Alabama making it a crime to give a ride or rent housing to anyone known to be an

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undocumented alien.38 In September 2011, an Alabama federal district court judge upheld most of that law despite the Circuit Court ruling on SB 1070.39 And even though SB 1070 was a crucial test case for the constitutionality of the ‘‘attrition through enforcement’’ strategy, the Supreme Court’s decision in Arizona v. United States was not likely to be the last word, particularly since the Court allowed much of the law to stand. Less than a decade after its first articulation, ‘‘attrition through enforcement’’ did indeed appear to be a new instance of state and local officials and voters seeking to shape federal policy, indeed understandings of the Constitution, by concerted political action from below—with increasing momentum and rapidly accumulating legislative successes, even if judicial support and policy efficacy remained in doubt. To see those efforts in full perspective, a related development during 2010 merits notice. On May 12, less than three weeks after enacting SB 1070, the Arizona legislature passed and Governor Brewer signed HB 2281, which banned Arizona school districts and charter schools from offering classes or courses that were ‘‘designed primarily for students of a particular ethnic group’’ or that ‘‘advocate ethnic solidarity instead of the treatment of pupils as individuals.’’40 The state superintendent of public instruction said the bill was aimed at ending the Chicano studies program in the Tucson schools, and on January 4, 2011, his successor took action to do so.41 The law furthered the educational goals of the Arizona voters who gave overwhelming approval in 2000 to Proposition 203, which abolished bilingual education and replaced it with English-immersion classes. Similarly, SB 1070 extended earlier Arizona measures against undocumented immigrants, including Proposition 200, the Arizona Taxpayer and Citizenship Protection Act, which required proof of citizenship to vote and obtain public benefits, and the 2007 Legal Arizona Workers Act, which SB 1070 sought to strengthen because the 2007 law, like federal employer sanctions, had in fact been only sporadically enforced.42 Although many proponents of ‘‘attrition through enforcement’’ contended that they simply wished to curb the presence of undocumented aliens whatever their ethnicity, the linking in Arizona and other states of anti-immigrant measures with laws against Latino-oriented public curriculum and programs appeared to many critics to show that ethnocultural concerns drove these initiatives.43 These developments did not go uncontested within the state. In November 2011, Arizona voters ousted State Senator Russell Pearce in a recall election, voting 53 percent to 45 percent for a more moderate

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Mormon Republican opponent, Jerry Lewis. Arizona business leaders especially turned against Pearce, arguing that his anti-immigrant laws had prompted boycotts that were hurting the state’s economy.44 Many urged that the state adopt the ‘‘Utah Compact’’ promulgated by Utah Attorney General Mark L. Shurtleff, a Mormon Republican who argued for bringing unauthorized immigrants who are not guilty of other offenses into the economic and legal system.45 Legislators in other states have urged similar steps, indicating that the economic and political actors who long encouraged Mexican immigration have not ceased to be significant factors in local and state as well as national immigration debates. The Aspirations of Mexican Governments, Mexicans, and Mexican Americans These contests are intimately bound up with what may be termed the horizontal axis of Mexican American governments and overlapping memberships. Even as many American lawmakers have been worrying about undocumented immigrants, predominantly from Mexico, the government of the United Mexican States has in the last fifteen years taken two major steps to maintain its affiliation with its nationals who go abroad, particularly to the United States. In 1996, Mexico’s governments ratified several constitutional amendments that permitted Mexicans to hold both foreign citizenship and Mexican nationality. The amendments’ chief impacts were to allow Mexicans resident in other countries to naturalize there while still retaining their rights to own land in Mexico, to own Mexican businesses and stocks, and to transmit their Mexican property to their heirs— including children born abroad, who now automatically possess Mexican nationality without having to renounce all other citizenships, as was formerly required.46 Mexican law retained, however, a distinction between Mexican nationality and citizenship, and it confined voting rights to citizens, treating Mexicans resident in other countries simply as nationals. Then in 2005, Mexico amended its constitution again to permit Mexicans living abroad who had obtained voter registration cards in Mexico and who mailed in ballots to have their votes counted in presidential elections. Efforts to permit Mexicans to register to vote entirely outside the country, to vote by other means, and to conduct campaigns in other countries met defeat.47 Attempts to expand the voting rights of nonresident Mexicans continue, particularly on

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behalf of Mexicans resident in the United States. Even if these movements do not succeed, the Mexican national government has already shown great willingness to accommodate people of Mexican origin who wish to be members of both the U.S. and the Mexican economic, political, and cultural communities. Those wishes are far from universal, but they are prevalent and potent. As many scholars have documented, desires to be culturally, economically, and sometimes politically both American and Mexican—rather than simply U.S. citizens—have long been expressed by many, although by no means all, persons of Mexican descent born on both sides of the border. In 1985, for example, historian Mario Garcı´a noted that after the United States took much of what is now the American southwest from Mexico following the Mexican-American War, ‘‘nineteenth-century Mexicans reacted in different ways. Some refused to submit to conquest and defended themselves against Anglo control. Others, however, accommodated themselves to the transformation. Nevertheless, both groups maintained a Mexican cultural, political, and economic presence until reinforced by extensive Mexican immigration’’ in the first third of the twentieth century.48 Garcı´a then identified the conceptions of Mexican American identity expressed in three Mexican American newspapers from the 1920s through the 1970s. La Opinı´on in the 1920s accepted the loss of Mexican lands to the United States but insisted that Mexicans in the United States remained ‘‘an organic part of Mexico’’ who should see themselves as serving their patria by learning skills and gaining income they could contribute upon returning home—and who should therefore not become U.S. citizens.49 From the 1930s to the 1960s, El Espectador instead supported ‘‘a modified form of Mexican-American nationalism . . . the integration of Mexicans into the mainstream of American society, but not at the expense of cultural heritage.’’50 Mexican Americans and Mexican immigrants should instead embrace ‘‘a type of dual cultural citizenship.’’51 Then in the 1960s and 1970s, Sin Fronteras (Without Borders) argued that Mexicans both north and south of the border were victims of ‘‘Yankee political, economic, and cultural colonialism’’; denounced immigration restrictions; and dreamed of establishing a ‘‘greater Mexican workers’ state’’ built from ‘‘Mexican workers on both sides of the border.’’52 Despite their differences, all three positions claimed legitimate residence for many persons of Mexican descent on what was officially U.S. soil, insisting as well on the legitimacy of their identification with Mexicans south of the border.

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Subsequently, anthropologist Leo Chavez combined ethnographic research, interviews, and regression analyses of opinion surveys to argue that undocumented Latino immigrants ‘‘can have multiple identities; they can imagine themselves to be part of their communities ‘back home,’ and they can also imagine places for themselves in their ‘new,’ or host, communities.’’53 Chavez also contended that ‘‘history, social relationships, and economic structures’’ expanded Mexicans’ conceptions of ‘‘where they may legitimately work. . . . Their possible labor market includes places in the United States where they (or a relative or friend) have worked before. The political border between Mexico and the United States does not limit this expanded concept.’’54 Political scientists concur. In 2003, William V. Flores insisted that even after the fading of the socialist Chicano radicalism of the late 1960s and 1970s represented by Sin Fronteras, both undocumented and legally resident Latinos in the United States continued to reject ‘‘the artificial boundaries established by the state to distinguish between citizens and noncitizens’’ through ‘‘a counterideology that stresses Latino unity’’ and ‘‘cultural citizenship.’’55 Flores maintained, however, that the society ‘‘the Latinos envision may be more like the ideal America than the America that exists’’ in that it is ‘‘committed to values of democracy and social justice.’’ As a result, although ‘‘Latinos may not fully belong to America, their hopes and frustrations do.’’56 In a major collaborative study, Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa, Valerie Martinez-Evers, and Gary M. Segura agree. They conclude that ‘‘Latinos have the same long-term goals as other Americans in similar socioeconomic circumstances’’ and in fact ‘‘remain more optimistic about their prospects for achieving their ‘Americano dream’ than their American counterparts.’’ Most are ‘‘willing to take difficult steps to achieve these goals, including ‘adapting’ so as to better fit into American society’’ even as they ‘‘strive to maintain their distinct cultural and language traditions.’’57 The authors also note that ‘‘Latinos simultaneously hold multiple identities’’ and have social networks that are in many cases based on country of origin, but they also perceive ‘‘an equally meaningful and vibrant pan-ethnic identity’’ among ‘‘most Latinos’’ that ‘‘is increasingly self-conscious, crosses nationalities, and is politically relevant.’’58 Even so, variations within and across different national-origin Latino groups mean that efforts to mobilize Latinos on the basis of shared ethnic identities and interests remain both philosophically and politically problematic.59

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These studies confirm that although not all persons of Mexican descent living on either side of the border hope to build lives that belong to, benefit from, and shape both the United States and Mexico, many do. Those aspirations are what the Mexican government sought to facilitate. In many regards, they are also what Arizona and some other state and local governments seek to obstruct. The fact that Arizona legislated not only against what it views as illegitimate economic and political actions by undocumented aliens but also against educational curricula designed to support ‘‘dual cultural citizenship,’’ and that similar restrictions rose elsewhere, shows that the concerns about current immigrants extend beyond simple opposition to the presence of persons in violation of U.S. immigration laws. Many restrictionists oppose the kinds of cultural, economic, and political dual or ‘‘overlapping’’ citizenships that the Mexican government encourages and that many Mexican Americans as well as many Mexicans endorse.

The Principle of Coercively Constituted Identities In regard to what the obligations of the U.S. government are to Mexican Americans, to the Mexican government and Mexican citizens, and to state and local governments like those in Arizona concerned about immigration, I have previously argued for a ‘‘principle of coercively constituted identities.’’ It is built on the premise that political communities are forged and sustained in part through what I have termed ‘‘ethically constitutive stories of peoplehood,’’ stories expressing dominant views of the normative purposes and worthy of those memberships.60 In brief, my argument is that members of political communities generally feel and should feel a sense of obligation to live up to the demands of their ‘‘ethically constitutive’’ stories.61 Next, I presume that the ‘‘ethically constitutive stories’’ advanced by the U.S. government, the Arizona government, the Mexican government, and the other governments involved in immigration controversies all express foundational commitments to respecting and advancing human dignity, rights, and freedoms, even though those commitments and their implications are understood in diverse ways. Finally, I presume that most people can lead meaningful lives only within the cultural contexts that have partly constituted those identities, values, and aspirations—so if we recognize that governments have often used their coercive powers to structure

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the cultural context and narratives that play these constitutive roles in people’s lives, then governments committed to dignity, rights, and freedom have a prima facie obligation to help the persons whose aspirations they have coercively shaped to realize those aspirations. This obligation has limits. All these governments have traditionally officially held, for understandable reasons, that they have special duties to their own citizens, from whom their authority derives, obligations that generally merit priority over any obligations to noncitizens. But whether or not this priority is justified, as I think it generally is, most agree that governments that honor human rights and dignity have to acknowledge some duties to human beings outside their officially delineated community. That is why I think the values of modern constitutional democracies require them to recognize special obligations to all persons who are who they are, and who have the values and aspirations they do, partly because their identities have been constituted by the governments’ coercive measures— whether or not those persons are currently legally citizens. It seems undeniable that when governments impose a particular range of educational systems, religious practices, economic systems, marital and familial structures, forms of expression, and systems of governance on populations, punishing those who seek to live in ways outside that range, rewarding those who live as the governments wish, the governments shape if they do not indeed constitute the core values, affiliations, and senses of self of many in those populations. We should also expect that many of the people coercively shaped in these ways will feel they can best, or can only, lead meaningful lives if they pursue cultural, social, economic, and political endeavors that reflect their mandated forms of socialization—in some cases complying with those forms of socialization, in some cases seeking to adapt or resist them. And just as parents have responsibilities to and for their children, governments should acknowledge that they have responsibilities to and for those they have helped bring into being as persons with particular dreams and prospects.62 In sum, governments that are committed to respecting and assisting persons’ aspirations to lead free and fulfilling lives, and who have exercised their coercive power to make those persons’ aspirations what they are, have special duties to help those persons pursue their preferred ways of life insofar as the governments can do so consistent with their capacities and other obligations. Or so I contend. Some immigration restrictionists argue in precisely the opposite direction. In his original article laying out the case for ‘‘attrition

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through enforcement,’’ for example, Mark Krikorian noted that in 2000, there were ‘‘about 19 times more Filipino immigrants in the United States than Indonesians, 1.4 million versus 73,000,’’ although the countries are in many ways similar and Indonesia is even more populous. The disparity exists, Krikorian explained, because ‘‘we ruled the Philippines for 50 years as a colony and maintained a major military presence there for another 50 years, allowing extensive networks to develop, whereas we have historically had little to do with Indonesia.’’63 But rather than concluding that this long history of American coercive shaping of Filipino identities, opportunities, aspirations, and social networks has created obligations on the part of the U.S. government to assist Filipinos in fulfilling those aspirations, Krikorian called for ‘‘interrupting such networks’’—a task he described as ‘‘harder than creating them’’ but ‘‘not impossible.’’64 He did not pause to consider whether it was right to do so. My argument has been that because America’s coercive impact on Mexico has exceeded even its impact on the Philippines (to which the United States nonetheless does also have some special obligations), the United States should instead join the Mexican government in facilitating quests for forms of dual nationality or dual economic and cultural citizenship, rather than reinforcing state and local government efforts like Arizona’s that seek to reduce the presence of dual nationals, especially Mexicans.65 Indeed, Arizona itself should partner with, rather than obstruct, national immigration polices pursuing obligations arising from coercive policies in which it shared. The Role of Governments in Coercively Constituting ‘‘Anglo Americans,’’ ‘‘Mexican Americans,’’ and Mexicans To make that case, I have recalled the basic facts of how the policies of the United States, the states along the U.S.-Mexico border, and the Mexican government have all contributed to the constituting of the identities of the communities involved in current controversies. In the Jacksonian era, aggressive American westward expansion justified partly in terms of ideologies of Anglo-Saxon superiority as well as the nation’s providential ‘‘Manifest Destiny’’ precipitated mounting conflicts with Mexico.66 Having provoked a Mexican attack on U.S. forces seeking to occupy disputed territory, desiring land, and concerned in part about the impact on Southern slavery of Mexico’s recent abolition of the institution, the U.S. government finally declared war on Mexico in May 1846. U.S. military forces went on

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to defeat Mexican armies and occupy Mexico City. On February 2, 1848, the war ended with the signing of the Treaty of Guadalupe Hidalgo. It forfeited Mexico’s claim to Texas and, in return for $15 million, transferred northwest Mexico, including what is now California, Nevada, and Utah, as well as parts of Arizona, New Mexico, Colorado, Kansas, Oklahoma, and Wyoming, to the United States, giving up roughly half of Mexico’s lands (albeit lands thinly occupied by a small percentage of its population).67 Apart from the indigenous tribes within its modern borders and the territories acquired in the Spanish-American war, whose inhabitants have since been made U.S. nationals or citizens by various statutes, no other nation in the world (including the Philippines) has been coercively compelled to surrender so large a percentage of its territory to the United States. The treaty gave Mexican residents of the transferred lands who chose to remain the option of obtaining U.S. citizenship. Virtually all the estimated 75,000 who stayed did so.68 But as the nineteenth and early twentieth centuries proceeded, persons of Latino descent increasingly found themselves subjected to a wide range of discriminations by U.S. territorial and then state governments throughout the region. Prior to the Civil War, California, New Mexico, Arizona, and Texas adopted constitutions that confined voting rights and jury service to white men, although New Mexico permitted Pueblo Indians to vote until Congress changed the policy in 1853.69 Many new Mexican Americans were of mixed race ancestry and were deemed non-white, especially poor farmers and laborers. Most soon found themselves governed by officials, policed by state and local enforcement officials, and tried by courts with weak commitments to equal treatment. Over time, many Mexican Americans responded with what scholars term ‘‘resistant adaptation’’—acceptance of certain forms of assimilation in return for economic opportunities and somewhat broader rights accompanied by refusal to accept fully the identities and statuses imposed by the American territorial and then state governments upon most persons of Mexican descent.70 Although the Treaty of Guadalupe Hidalgo guaranteed that property rights of Mexicans in the transferred territories would be upheld, individual claims had to be adjudicated in American courts. These often proved unreceptive to the limited documentation many Mexicans could offer, even as state governments sometimes legislated in favor of squatter rights, actively encouraging whites to occupy Mexican-owned lands.71 The resulting trends toward loss of Mexican lands gained powerful reinforcement from the development policies of the Mexican government under the dictatorial

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President Porfirio Dı´az in the late nineteenth century and the United States during its corporate-dominated ‘‘Gilded Age.’’ Through various means, these governments took control of lands held by indigenous tribes, churches, and many small farmers in order to assist the expansion of largely U.S.-owned railroads and mining companies on both sides of the border, to whom Dı´az gave special rights in return for their support.72 U.S. agencies also created irrigation systems that made large-scale commercial farms profitable in the Southwest.73 Consequently, by 1890, almost all Mexicans in the American Southwest had lost their land, along with innumerable small farmers throughout Mexico. Many of those farmers moved to northern Mexico and then across the border seeking employment in the fastexpanding railroads, mines, commercial farms, and in the cities that were beginning to grow, especially El Paso and San Antonio in Texas and Los Angeles in California. Many eventually brought their families along— although they often did so without any sense that they were forever leaving Mexico.74 The significance of this history is that the U.S. government, American territorial and state governments, and the Mexican government all used their coercive authority in the late nineteenth and early twentieth centuries in ways that displaced substantial populations from their lands and homes and made them eager to gain better economic opportunities in the United States, even though they still felt strong links to Mexico and its territories, language, and cultural traditions. The United States and western and southwestern state governments generally welcomed the labor of these immigrants, yet they also discriminated against, especially, poorer Mexican immigrants and Mexican Americans. These discriminations formed part of the heightened embrace of evolution-based doctrines of racial superiority that characterized not only the late nineteenth century Gilded Age but also the American Progressive Era.75 In Arizona, in particular, the role of the U.S. government was striking and consequential in reinforcing anti-Mexican state policies. In the early 1900s, the chairman of the Senate Committee on Territories, Indiana Senator Albert Beveridge, later a leading Progressive and always a proponent of Anglo-Saxon supremacy, opposed statehood for New Mexico and Arizona due to their Mexican-descended populations. The Fifteenth Amendment had abolished explicit racial restrictions on the franchise in 1870. But to gain admission to the Union, the Arizona territorial assembly imposed a $2.50 poll tax and then an English literacy test for voting in the early 1900s,

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effectively disenfranchising poorer and less educated Mexican Americans. The Arizona state constitution then added a ban on voting by those ‘‘under guardianship,’’ which was used to disenfranchise many with both tribal and Hispanic origins. In 1912, the new state legislature also required voters to be able to ‘‘read the Constitution of the United States in the English language’’ well enough to show they were not doing so from memory.76 The United States thus used its power over admission to the Union to endorse, if not indeed to compel, beliefs by ‘‘whiter’’ and more prosperous Arizonans that they were the proper governors of their state because of their racial, cultural, and class identities and must act accordingly or else they might remain merely territorial residents. When U.S. government agencies and courts explicitly denied that the former Spanish colonies acquired in the Spanish-American war were racially and culturally fit to be fully ‘‘incorporated’’ into the United States, the northern European– descended Americans in other states felt authorized to enact similar restrictions on their residents with Mexican ancestry.77 In the first half of the twentieth century, most of the western and southwestern states did so. They used various means—sometimes explicit segregation laws, sometimes restrictive covenants, sometimes police harassment, sometimes deportation—to impose segregated schooling, housing, and restricted economic and political rights and opportunities on Mexican Americans and Mexican immigrants who were deemed nonwhite. Predictably, many Mexican Americans resisted. Others responded by distancing themselves from African Americans and espousing both the superiority of the white race and their membership within it—thereby strengthening the beliefs of all ‘‘whites’’ that they deserved superior status. Some Mexican Americans opposed further Mexican immigration, particularly undocumented immigration, seeing it as a source of their own stigmatization.78 These political circumstances helped make possible various guest worker arrangements, including the Bracero program begun in 1942, through which U.S. employers hired Mexican laborers when needed but subjected them to harsh discrimination. The United States then deported the laborers—and often their American-born children and other Mexican American citizens—whenever job markets dried up.79 In the second half of the twentieth century, many consequences of these past governmental policies continued. Anti-Mexican educational and residential segregation and economic discrimination persisted even in more

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prosperous regions, such as northern California and Oregon, as did divisions among Mexican Americans over how to respond, even though most embraced both American and Mexican identities in one way or another.80 But the triumphs of the modern African American civil rights movement, the forms of political and cultural consciousness stirred by the related Chicano movement of the late 1960s and 1970s, the expanded protections against bars to voting affecting Mexican Americans provided by the 1965 Voting Rights Act and particularly its 1975 amendments, and the rise of modern multiculturalism all worked to limit public and private discrimination against Mexican Americans and Mexican immigrants and to encourage renewed senses of transnational Mexican American dual ‘‘cultural citizenships.’’81 Under pressure from civil rights and labor forces, Congress ended the Bracero program in 1963.82 The symbolic affirmations and public policies designed to promote equal rights and facilitate many forms of cultural diversity that the U.S. government and many state and local governments established in the 1960s and 1970s are also important uses of government power and authority to constitute persons’ values and aspirations—now more inclusively. Yet, after the 1965 Immigration Act, both documented and undocumented Mexican immigration grew, planting the seeds of later immigration controversies. A major effort at comprehensive immigration reform in 1986 sought to stem the influx of undocumented immigrants and still grant amnesty to millions already present in the United States. But those measures, and further reforms in 1990, only increased legal immigration from less-represented countries, failing to reduce undocumented entries (still overwhelmingly Mexican).83 Although policy analysts dispute the amounts, most agree that the costs of providing social services to immigrants have since grown. These costs have fallen mostly on state and local governments in areas where immigrants are concentrated, even as the federal government benefits from immigrants’ taxes and the national economy in general gains from immigrant labor.84 The decisions of the U.S., Mexican, and Canadian governments to join in the North American Free Trade Agreement (NAFTA) in 1992, expanding the existing U.S.-Canada Free Trade Agreement, only accelerated the movement of persons as well as goods across, especially, the U.S.-Mexico border.85 As California’s Proposition 187 showed most vividly, in the 1990s some immigrant-receiving states, particularly those in which ‘‘Anglo’’

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majorities confronted substantial minority populations, responded by adopting their own measures to reduce immigration. These measures too had little impact.86 In 1996, the U.S. government, whose policies had done so much to generate modern immigration and to combat discrimination, began to reduce immigrant rights once again, particularly social welfare entitlements and procedural protections against deportation. Congress also encouraged and, in some regards, compelled the states to follow suit, providing foundations for advocacy of heightened local-state-national partnerships in immigration enforcement. In June 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), expediting the exclusion and arrest, punishment, and removal of those suspected of being alien terrorists or criminals. Section 439 specifically authorized state and local officials to assist the federal government in these endeavors.87 In August, President Bill Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), replacing the New Deal Aid to Families with Dependent Children (AFDC) program with Temporary Assistance to Needy Families (TANF) block grants to the states. The law also made immigrants arriving after its enactment ineligible for all federally funded means-tested benefit programs (such as TANF and Medicaid) for five years, restrictions states had to enforce, although they had the option to include immigrants after the five-year period.88 In September, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) increased resources for immigration law enforcement, including detentions, further streamlined procedures to expedite exclusions and deportations, banned Social Security benefits for undocumented aliens, and authorized states to limit public assistance to aliens, among other measures. Sections 133 and 372 specifically empowered states to play larger roles in immigration law enforcement.89 Consequently, when the Arizona and other state legislatures passed measures requiring evidence of citizenship to vote, barring cities from granting undocumented aliens any public benefits, requiring cities’ assistance in immigration enforcement, and authorizing police to stop and arrest persons suspected of being in the country illegally, they could indeed claim that they were seeking to comply more fully with federal laws that were failing to achieve their objectives, not interfering with federal policies. Again, the fact that the Arizona legislature also banned ethnic studies classes indicates that their concerns went beyond removing illegal aliens from their state. At least in part, these policies were state decisions to perpetuate rather

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than to repudiate their own complicity in past and present discriminatory, coercive policies toward persons of Mexican descent that violated their professed commitments to respect for human dignity. Yet it must also be acknowledged that they were expressing ethnocultural notions of who should be an Arizonan and a U.S. resident that the U.S. government had actively fostered in the past and had, arguably, appeared recently to express again. As anthropologist Lynn Stephen has pointed out, Arizona and others states have passed their ‘‘attrition through enforcement’’ measures over the opposition of a range of grassroots transborder organizations, such as Pineros y Compesinos Unidos del Noroeste (PCUN), the San Augustı´n Transborder Public Works Committee, Mujeres Luchadoras Progresistas (MLP), and others. These groups, some based in Mexico, some in the United States, many with affiliates in multiple states on both sides of the border, work ‘‘within two national contexts’’ to ‘‘establish legitimate forms of cultural citizenship’’ and to ‘‘move some parts of their cultural citizenship into the arena of legal citizenship as formal rights defined in the constitutions and legal codes’’ of state and national governments in the United States and Mexico.90 Their activities confirm that aspirations for forms of dual citizenship remain profoundly significant to many of Mexican descent whose lives have been pervasively shaped by American governmental policies, local, state, and national, past and present. Yet the opponents of dual citizenship have also been pervasively constituted by American governmental policies, in ways that make many feel they have as much or more at stake in limiting the presence of Mexican immigrants as those immigrants do.

The Propriety of ‘‘Attrition through Enforcement’’ I have contended that, on balance, the governmental actions that have helped to generate these conflicting aspirations create special federal obligations to aid the affected Mexican and Mexican American populations and help to meet the costs of immigrant-receiving states, which may reduce the sense of endangerment felt by many of their restrictionist citizens.91 Those conclusions do not, however, provide a full assessment of the legitimacy of the ‘‘attrition through enforcement’’ movement. There are three pertinent issues.

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The first is the policy debate over whether ‘‘attrition through enforcement’’ does in fact reduce the undocumented alien population. Although much has been written on that question, it is difficult to render a definitive judgment. News reports indicated, for example, that when a federal district judge upheld Alabama’s ‘‘attrition through enforcement’’ law, 5 percent of the Hispanic students enrolled in Alabama public schools were absent within a few days, many withdrawing permanently. Farmers, contractors, and homebuilders reported that much of their labor force ceased to show up, producing critical labor shortages.92 Perhaps those developments showed ‘‘attrition through enforcement’’ working in Alabama. But perhaps those Hispanics simply relocated to less hostile parts of the United States, and perhaps coalitions of farmers, homebuilders, and other businesses, faced with the loss of what they see as an affordable, able workforce, along with other immigrant advocates, will successfully apply pressure to limit the enforcement of such laws over time, as they have done even in Arizona. The debate over policy efficacy is a crucial one, but although I lean toward the critics of these policies, it is not clear that the issue can be definitively resolved.93 The second issue is whether all or most of the ‘‘attrition through enforcement’’ state and local measures are constitutional, a question that Arizona v. United States only began to answer authoritatively. Precisely because, especially since 1996, congressional laws have authorized and sometimes required increased partnerships between federal agencies and state and local officials on immigration law enforcement and policies governing public services for immigrants, an arrangement that the Obama administration has in some ways furthered through its ‘‘Secure Communities’’ initiative, that question remains reasonably debatable as a matter of law.94 Architects of ‘‘attrition through enforcement’’ statutes have taken great pains to write them in ways that make it possible to say they are simply ‘‘mirroring’’ and aiding congressionally enacted federal policies. It is clear that on at least some points, judges are likely to agree. This is, however, an issue on which close attention to legal texts obscures undeniable larger political realities—realities that proponents of ‘‘attrition through enforcement’’ not only acknowledge but trumpet when they are trying to win legislative and popular support for their measures. As Krikorian wrote in 2005, as Kobach wrote in 2008, and as the lawsuits brought by the Obama administration against the Arizona, Alabama, and other ‘‘attrition through enforcement laws’’ make clear, ‘‘attrition through

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enforcement’’ has, in Kobach’s words, ‘‘never been the immigration strategy of the United States.’’ These state and local laws are being promoted precisely because, as Krikorian put it, the ‘‘chief reason for the lack of enforcement of our immigration laws’’ is the ‘‘determination’’ of ‘‘Congress and successive administrations’’ that the laws ‘‘not be enforced’’ rigorously. The precise legal questions turn, then, on whether congressional statutes give federal executive branch officials sufficient discretion in how they enforce the laws to make this less-than-severe approach legally permissible or whether the statutes impose mandatory ministerial duties that federal officials are legally obligated to fulfill. On some policy particulars, the claim that official duties are wholly nondiscretionary may be tenable. But as the Supreme Court ruled in regard to SB 1070, for other dimensions of national immigration laws, it is far more credible to read Congress as granting executive officials authority to pursue enforcement in ways that balance oftencompeting international, public welfare, and effective policing concerns, as in many other policy arenas. It is the use of their discretion by national officials, not its legal existence, which is truly in dispute. In consequence, as Keith Cunningham-Parmeter has argued, most of the new state and local laws should be seen legally, as well as politically, as attempts by state and local governments to ‘‘force the federal government to accept their chosen level of immigration control,’’ rather than to reinforce federal policies.95 If that were not the case, the national government would not have sued to overturn those laws on grounds on federal preemption. Even if federal officials are failing to fulfill mandatory ministerial responsibilities, the legal remedy for such failures that seems most appropriate is to sue for judicial orders requiring them to do their statutory duties, not for state and local officials to exercise their powers in their place. The legal bottom line, then, is that unless the courts are prepared to abandon precedents of primary federal authority over immigration that go back to 1849 (admittedly, not in a wholly unbroken line), many state and local ‘‘attrition through enforcement’’ measures should continue to be held inconsistent with the Constitution’s structure of powers.96 Yet constitutionality is not the only standard of legitimacy, and in any case, constitutional interpretations change. Even as state-level immigration restrictions have proliferated, Cristina M. Rodrı´guez, a supporter of immigrant rights, has argued persuasively that nineteenth-century doctrines of exclusive federal power over immigration were never firmly grounded in the Constitution’s text. Instead, they emerged from perceived functional

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needs for a strong, unified sovereign authority in foreign affairs.97 She contends that, in the twenty-first century, functional needs have shifted: state and local efforts, public as well as private, are needed more than ever before to assist immigrants in integrating fully into American economic, civic, and political life.98 She accepts that a substantial state and local role in integrating immigrants implies nontrivial state and local powers to take ‘‘steps that resemble immigration controls.’’99 She urges the development and adoption of a new theory of federalism in relation to immigration—one in which states and localities would come to be seen in law and in fact as partners in the development of viable immigration policies, with the federal government retaining primacy in decisions over admission and removal processes but with states and localities having a more constitutionally recognized voice in the ways, means, and terms of the integration of immigrants into their communities and into American life more broadly.100 I would add that American constitutional democracy, like most federal democracies, is meant to be not only constitutional but also democratic. Commitments to democracy have always meant that we cannot automatically dismiss as illegitimate popular movements for change that do not operate through conventional constitutional channels, even if they represent major challenges to the substance of existing policies and constitutional understandings.101 Constitutional amendments have indeed sometimes legitimately emerged through the accumulation of state-by-state actions. If the Constitution itself may ultimately be changed by such means, then surely national policies over immigration can be as well. Yet this recognition of the democratic legitimacy of efforts to adopt ‘‘attrition through enforcement’’ measures on a basis sufficiently widespread to rewrite national policies ‘‘from below’’ does not mean that these initiatives should in fact be embraced. Even though states and localities do and must play important roles in shaping the fate of immigrants within their bounds, as Rodrı´guez argues, it remains true, as she also acknowledges, that they can do so in ways that interfere with executive foreign policy strategies, as well as in ways that violate constitutional guarantees of equal protection and statutory civil rights mandates, among other federal laws.102 And as Jennifer Kinney and Elizabeth Cohen argue in this volume (Chapter 4), the variations in how state and local governments treat undocumented aliens can create constantly churning uncertainties for all concerned rather than the peaceful resolution of immigration controversies most Americans desire.

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The perspective of the principle of coercively constituted identities and the history reviewed here also indicate that American constitutional values of human dignity make it imperative for national, state, and local governments to cooperate in ways that resist and reconstruct, rather than reiterate, impulses to subordinate and exclude persons of Mexican descent. ‘‘Attrition through enforcement’’ policies at the state and local levels fail to acknowledge that those governments, too, have adopted coercive policies that have contributed to the presence and aspirations of those they now seek to drive away. It cannot be denied, however, that far from being ‘‘carefully calibrated,’’ as the circuit judges who struck down portions of SB 1070 asserted, the federal immigration policies that have emerged from congressional statutes and executive officials’ use of their discretionary powers do not appear to represent any coherent, much less effective, strategy for achieving a constructive national-state-local partnership in coping with the challenges of Mexican immigration. The lesson of this national governmental failure is not to turn to the draconian, questionably effective, and ethnically discriminatory responses represented by many ‘‘attrition through enforcement’’ policies. Still, the voices from the ‘‘bottom up’’ crying for such actions must be heard as evidence that current approaches are not succeeding and that new immigration strategies—national, state, local, and also transnational—must be devised and pursued. This need for new U.S. immigration policies also points to the broader significance of the ‘‘attrition through enforcement’’ movement for issues of multilevel, overlapping citizenships. The political struggles over these new state and local initiatives are occurring precisely because the division of the world into separate national states and the division of many large states into federated and layered parts provide structures that can facilitate the achievement of many human aspirations, but that frustrate others. Historically, many residents of what became the United States of America and the United Mexican States felt they had to establish national independence from their European imperial rulers if they were to have fulfilling lives. Recognition of regional differences and concerns about unduly centralized governmental power also drove support for federal systems in each new nation. Only very small minorities of the citizens of the United States and Mexico today could be expected to support abandoning either their distinctive national existences or their internal federal structures. However, the existence of federated structures inevitably means that the interests and aspirations of many members of particular states may clash

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with those of members of other states within the federal system and, even more, that the interests of citizens of some states can clash with the interests that the national government, claiming to speak for the citizens of the whole country, asserts the power to uphold. Similarly, for many reasons, including the kinds of interwoven national histories reviewed here, there have always been many persons with ‘‘transborder lives,’’ in Lynn Stephen’s phrase, whose aspirations cannot be fulfilled by assimilating fully into standard forms of membership in one nation, much less one state or province. The number of such persons is likely to continue to rise in an age of globalized transportation and communication networks. Many living within state and national structures are also unlikely to see their interests and values fully aligned with those of ‘‘transborder’’ populations. The ‘‘attrition through enforcement’’ controversies suggest that the answers to these tensions inherent in the existence of multilevel and overlapping political memberships cannot be found simply by reasserting the allegedly unbridled sovereign prerogatives of national governments. They are also not likely to be found if national, state, or local governments or citizens dismiss the claims of others whose identities, affiliations, and interests exist largely because of what the governments and citizens in question have done in the past and present. Instead, officials and citizens of different but historically intertwined governments, arranged both vertically and horizontally, need to accept what I have elsewhere termed ‘‘semi-sovereign’’ conceptions of their authority and ‘‘moderate’’ forms of political peoplehood.103 Accepting that each government is at most ‘‘semi-sovereign’’ means recognizing the necessity for cooperative (though still contested) development of policies in which different governments perform different but complementary functions according to their resources and capabilities, much in the manner that Cristina Rodrı´guez advocates. Embracing ‘‘moderate’’ forms of political peoplehood means tolerating, indeed often valorizing, multiple memberships, allegiances, and conceptions of identity, so long as the persons involved are willing to make appropriate contributions to the collective well-being of each of the communities they inhabit. There will of course be times when finding policies on which officials and constituents of different governments can agree will be very difficult and when fulfilling obligations to one political community will make it hard, perhaps even impossible, to fulfill obligations to another. Yet America’s immigration past and present suggests both that undocumented aliens

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are less of a threat to local, state, and national well-being than many proponents of ‘‘attrition through enforcement’’ initiatives believe and that current immigration problems cannot be solved through ‘‘exclusive’’ federal policy making, as many opponents of those initiatives insist. Similarly, it is likely that if those who value multitiered governance with overlapping memberships accept that this means valuing ‘‘semi-sovereign’’ governments and ‘‘moderate’’ senses of membership and act accordingly, they will be better able to find ways to make the forms of political life they inhabit and esteem more effective in contributing to their lives and the lives of all concerned.

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Chapter 4

Multilevel Citizenship in a Federal State: The Case of Noncitizens’ Rights in the United States jenn kinney and elizabeth f. cohen

Introduction Immigration poses an array of complex questions for a receiving polity. Normative questions about integration and rights intersect with practical questions about governance and sovereignty. These questions must be answered at all levels of any society’s government, from local to regional and state to the federal and national levels. At each juncture, answers to these questions will either include or exclude noncitizens from the legal protections of citizenship in their adoptive homes. This creates a complex of multilevel citizenships within any nation-state. While supranational forces that shape multilevel citizenship abound, as evidenced by both Isiksel’s and Neveau’s contributions to this volume (Chapters 10 and 11), there are many reasons to attend carefully to the implications of creating, at the subnational level, exclusions and inclusions that are often ‘‘inclusions/ exclusions of degree,’’ in which noncitizens are accorded some but not all rights of citizenship. The creation of these semicitizenships is a concern not only for people being deprived of rights but also for full citizens of any democratic state committed to egalitarian ideals. In this chapter, we find that the multiple levels of government in the U.S. federal system, as well as the multiplicity of administrative categorizations applied to noncitizens, have constructed a multilevel hierarchy of semicitizenships rooted simultaneously in legally assigned statuses and geographic location.

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Scholars seeking to understand how multilevel citizenships are produced and function can do so from an array of perspectives. In seeking to evaluate the status of noncitizens, Rogers Brubaker and Christian Joppke have each examined immigration ‘‘regimes’’ through the lens of the rules governing naturalization. Their studies of major immigrant-receiving western democratic states differentiate between approaches to noncitizens based on opportunities for, and restrictions on, naturalization.1 However, focusing on the differences that exist across countries in institutional policies such as naturalization deemphasizes the fact that even within a single country with a homogeneous naturalization policy, noncitizens can hold very different political statuses. In short, many institutional arrangements enforce stratification among noncitizens. In light of recent attention to the increasingly proactive approach of U.S. states with respect to noncitizens, embodied most starkly in the furor over Arizona’s SB 1070,2 we believe attention to variations in state laws that affect core citizenship rights is urgently needed in order to understand the effects of immigration federalism for individuals as well as for the idea of multilevel citizenship. We seek to complement analyses such as those of Newton and Adams, which undertake to evaluate whether and how state laws addressing immigrants interact with federal laws, and Schuck, who asserts that states are more generous than Congress with respect to immigrant civil and social rights.3 We also seek to extend the type of analysis of welfare reform’s effect on noncitizen population completed by Fix and Passel in 2002.4 Finally, our work aligns with that of Filindra and Kovacs, who have analyzed elite-level discourse about immigration at the state level in order to demonstrate that border states produce a variety of responses to immigration and immigration federalism.5 As we document below, in the last decade, there has been a fairly steady and marked increase in the number of state laws that affect the rights of noncitizens. This increase in state legislation concerning noncitizen rights means that we have new and more detailed information about how states use their power to confer or deny citizenship rights to noncitizens. Keeping this in mind, our study focuses on a few key questions about immigration federalism. First, overall, is immigration federalism exclusionary? By this we mean to ask whether new laws passed by states tend to restrict rights and tighten enforcement of existing exclusions. Second, is federalism immobilizing? Do state-level differences make it difficult for noncitizens to move freely between states?6 Finally, we wish to draw some conclusions

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about whether immigration federalism is unjust. In other words, are people with similar legal statuses and circumstances of immigration treated differently for reasons that pertain primarily to their state of residence? Exhaustive answers to each of these questions would require more elaborate exploration than can be accomplished here, but our conclusions gesture in the direction of important trends. We begin with a survey discussion of citizenship rights in order to establish the main variables we examine. Following this is a brief discussion of how the pivotal changes following the 1996 passage of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) continue to affect the basic rights of immigrants at the federal level. In this section, we pay special attention to the legal categorization of noncitizens, because the kind of immigration status one holds determines which rights are available for any given immigrant at both the federal and state levels. After establishing these facts, we go on to present and analyze National Conference of State Legislatures (NCSL) surveys of recent state-level legislation that affects immigrants.

An Outline of Core Citizenship Rights Local, state, and federal rules in the United States assign noncitizens different bundles of rights. Political rights are composed of the right to vote, run for office, and be represented. Noncitizens have a federally protected right to run for office; however, at present, too few noncitizens in the United States have the right to vote to warrant this right’s inclusion in this study.7 This distinguishes the United States from the European Union (EU), where member-state citizens have the right to vote and stand for office at the municipal and EU levels anywhere in the EU.8 Only residents of the U.S. territories are entitled to full political rights upon entry to the United States. These individuals, when residing outside the boundaries of the 50 states, are considered U.S. nationals, although as nonresidents they lack the full rights of citizenship.9 In the United States, civil and social rights are more readily distributed to noncitizens than are political rights. Civil rights include rights of worship, privacy, speech, assembly, contract, property ownership, legal representation, and due process. Of these, speech, contract, and legal representation are distributed in notably differential fashion among various noncitizens. Civil rights are of crucial importance to the

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maintenance of a legal immigration status and may represent the only rights available to immigrants whose presence is not legal. Becoming or staying ‘‘legal’’ is a complex process, throughout which individuals risk criminalization and deportation. Social rights include basic welfare provisions, of which programs like Temporary Assistance for Needy Families (TANF, which provides cash benefits for needy families, contingent upon a set of employment-based requirements), Medicare (which provides qualified health insurance to persons who are 65 and older or who have certain disabilities), and Medicaid (which provides means-tested assistance with health care costs to the very poor) are the most relevant to the greatest numbers of immigrants. Federal and state provisions for settlement aid also provide resources for education, in particular language and job training. This is primarily available to refugees. Finally, rights of free movement are relevant to immigrants seeking to stay within the borders of a country, as well as to those who need to travel between the United States and their homeland or another country. Visas and other status-granting documentation define a range of possible relationships that noncitizens have with sovereign borders.

Immigrant Rights and Federalism For most of the twentieth century, immigration was regulated primarily by the federal government.10 Two significant laws passed in 1996, IIRIRA and PRWORA, were catalysts for the devolution to the states of a number of powers previously monopolized by the federal government. Among these was the administration of various social rights, in particular the social rights of immigrants. IIRIRA also breathed life into a practice with an old but previously defunct history within the context of immigration regulation in the United States: the use of state and local police to enforce immigration law. In the provision known as ‘‘287 (g),’’ Congress granted power to the Immigration and Naturalization Service (now held by the secretary of the Department of Homeland Security) to ‘‘enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to Memorandum of Agreement (MOA), provided that local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.’’11

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Many states have used this power to step up efforts to enforce immigration law and policy directly.12 Concurrently, a number of states have also passed new legislation requiring employers to do the same and restricting the social rights of immigrants. Academic literature is only beginning to gauge the effects of these two trends, but a number of American Civil Liberties Union (ACLU) briefs and policy reports indicate a growing belief that these enforcement techniques are restricting the civil and social rights that immigrants can legitimately expect to exercise in the United States.13 These include basic social welfare rights, the right to work, and civil rights of due process. Below we briefly survey the changes in federal protections for noncitizens before presenting our findings for the state level.

Post-1996 Federal Protection of Rights Based on Immigrant Status Social Rights Noncitizens in the United States may have one of several very differently entitled statuses. The distinction between documented and undocumented immigrants is widely and extensively discussed. However, there are also important differences within the documented population. The most consequential of the distinctions within the documented population is that between lawful permanent residents (LPRs) and people caught in what the Migration Policy Institute has described as burgeoning ‘‘temporary immigration systems’’ in the United States.14 Included in this temporary immigration regime are guestworkers and bearers of temporary protected status (TPS). As of 2010, there were nearly 3 million temporary workers in the United States, many of whom had been here for multiple years and some of whom (particularly North American Free Trade Agreement visa holders from Mexico or Canada) may remain indefinitely.15 By early 2012, there were 300,000 bearers of TPS or deferred enforced departure (DED) in the United States.16 We can expect this number to rise in 2012, following the grant of TPS to Syrians fleeing political violence.17 Many people with TPS have been in the country for a long time. For example, persons from El Salvador were first granted TPS in 2001 and have received eight extensions of this status since the initial grant.18 Persons fleeing Liberia were under temporary protection in the United States from 1991 through 2007 and have remained under a DED since 2007.19 The political status of people

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holding TPS bears a closer resemblance to that of guestworkers than to that of refugees. These ‘‘temporary residents’’ may not receive social assistance of almost any sort (emergency medical care and testing for communicable diseases are the two exceptions, both of which are available to all noncitizens) at the federal, state, or local level.20 As of 1996, the federal government disqualified large numbers of noncitizens within this category who were previously understood to be ‘‘qualified’’ from receiving federal benefits, including Supplemental Security Income (SSI), food stamps, TANF, Medicaid, and Child Health Insurance. As we document, a number of states have chosen to fill these gaps, but the qualifications on these rights vary from place to place and are subject to change.21 The restrictions singled out a few groups marked for preferential treatment (in particular, noncitizens from Cuba, Vietnam, and U.S. territories, all of which have distinctive and exceptional political arrangements entitling persons arriving from those places to privileged statuses).22 Both IIRIRA and PRWORA enforced an administrative version of multilevel citizenship by strengthening disparities between the rights bundles of LPRs, refugees, and ‘‘temporary residents.’’ One of the most powerful effects of the new rules was to reinforce the distinction between LPRs and temporary residents. Temporary residents generally cannot receive social welfare benefits from states. Although the position of LPRs remains tenuous, they may enjoy some social rights if they locate strategically in a benefits-conferring state. In addition, they can look forward to the opportunity to become LPRs upon achieving five years of continuous legal residence. No such option awaits temporary residents.

Civil Rights Temporary residents lack many basic civil rights available to other immigrants. Refugees and immigrants admitted at the discretion of the attorney general are entitled to receive federally underwritten legal assistance (provided by the Legal Services Corporation, hereafter LSC) before they become eligible for naturalization.23 Prior to meeting the five-year residency mark, other LPRs have limited access to funded legal assistance, but their rights to due process are more extensive than those available to temporary immigrants. In contrast, temporary immigrants have very limited access to rights and resources associated with representation. People in the process of applying for or awaiting asylum status, bearers of TPS, juvenile immigrants

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without adult guardians, international students, and undocumented workers do not receive access to LSC-funded lawyers, thus depriving them of the resources for legal representation in any criminal proceeding that others in the United States enjoy (although there is a very small provision that allows asylum seekers to obtain minimal legal services).24 People in the country with temporary work visas may access LSC services only in order to address issues directly related to their employment contracts. The significance of this deprivation is underscored by the fact that employers of temporary laborers are not held to the same work safety, child labor, or other labor standards that apply to citizens and even most other foreignborn residents.25 For example, the organization Farmworker Justice notes that many H-2A workers are deprived of adequate housing and Workers’ Compensation following work-related injuries.26 These immigrants are especially vulnerable, because they must assert any claims they might make against the very individuals who provide their right to remain in and reenter the country. If deported, they generally struggle unsuccessfully to pursue claims from outside the country.27

State-Level Regulation of Immigrant Rights National Conference of State Legislatures Data The trend of restricting the rights of noncitizens in the United States, particularly those who do not have LPR status, coincides with both the devolution of powers governing noncitizens to the state level and a dramatic increase in state legislation that deals with the rights of immigrants. For this reason, we believe it is important to thoroughly dissect and study the nature of this state legislation. State-level immigration governance has the potential to address immigrant needs in ways that are specific to the characteristics of immigrant populations that settle in different regions of the country, as well as to the socioeconomic traits of those regions. However, in an era marked by vocal hostility toward immigration and some noncitizens, as well as state-level budgetary austerity, we believe it is equally possible that states may respond to these pressures by forcing the vulnerable noncitizen population to bear a disproportionate fiscal and political burden as their access to social rights shrinks and anti-immigrant hostility rises.

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Our study of the legislation pertaining to noncitizens passed by states since 2005 sheds light on a few aspects of this process. Other scholars have also drawn attention to the complicated relationship between different levels of government in enforcing immigration laws and the incoherence that this dynamic produces. Keith CunninghamParmeter asserts that states are quite limited in their capacity to enforce immigration laws due to ‘‘forced federalism, which limits states to a narrow set of enforcement decisions based on federally defined norms.’’28 There is a great deal of ambiguity not only on the federal-state level but also on the state-local level. The results of a 2010 survey study reveal overlapping responsibilities between federal agents, sheriffs, and city police in enforcing immigration laws.29 These tensions and ambiguities may help to explain why local laws and enforcement activities have not significantly curbed immigration.30 In addition to the persistent vagueness of powers and responsibilities in different layers of government, unauthorized migrants can assert rights ‘‘indirectly and obliquely,’’ patterns that ‘‘reflect a pervasive national ambivalence about immigration outside the law.’’31 For this chapter, we examined a set of reports detailing the activities of state legislatures on issues concerning immigrants and immigration in the United States that the NCSL has been producing since 2005. NCSL is a bipartisan research organization that provides research for policy makers on vital state issues spanning the nation’s fifty states, territories, and the District of Columbia. We derived these data from an analysis of NCSL reports from 2005 to 2011. NCSL has dramatically altered the scope and substance of the data they collect and publish several times in the recent past, notably in 2008–2010. We accommodated these changes by including quantitative and descriptive analysis where appropriate. Although this limited the scope of our categorical conclusions, it allowed us to paint a more richly detailed picture of the precipitous changes to the legislative climate surrounding immigration that have unfolded in the past decade. NCSL data show that some states have been far more active in addressing immigration issues than others. It is also apparent that the attention states give immigration-related issues has been increasing since 2005. The number of laws introduced in the states, the number enacted, and the number of states enacting laws has been increasing steadily every year except 2007, when there was a sharp increase followed by a return to the previously established pattern.

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Table 4.1. Immigration-Related Bills Introduced and Enacted in State Legislatures (2005–2011)

2005 2006 2007 2008 2009 2010 2011

Introduced

Enacted

300 570 1562 1305 1500 1400 1607

33 84 228 203 333 346 306

Note: Numbers differ between different NCSL briefings and reports because some numbers include vetoed bills and others do not. The number of laws enacted each year does not include vetoed laws. All of the numbers from 2005–2010 are listed in NCSL’s 2010 report, ‘‘2010 Immigration-Related Laws and Resolutions,’’ NCSL Immigrant Policy Project (January 5, 2011), http://www.ncsl.org/issues-research/immig/2010-immigration-related-laws-and-re solutions-in-t.aspx, accessed May 14, 2012. The 2011 numbers are listed in the 2011 NCSL report, Brooke Meyer et al., ‘‘2011 Immigration-Related Laws and Resolutions in the States,’’ immigration policy report (National Conference of State Legislatures, December 2011), http:// www.ncsl.org/issues-research/immig/state-immigration-legislation-report-dec-2011.aspx.

The state laws that have been enacted are not specific to one distinct group of noncitizens but rather cut across multiple statuses—legal immigrants, migrant and seasonal workers, refugees, and unauthorized immigrants. The subjects covered span an array of policy arenas and rights, including employment, education, health, identification, driver and other licenses, law enforcement, legal services, public benefits, human trafficking, and voting. A few bills dealt with miscellaneous subjects, such as the allocation of state funds for research projects on issues involving immigrants. Although many proposed resolutions and bills were struck down by courts during these years, the material that we analyzed specifically referred to enacted laws. Identification and licenses laws are associated primarily with provisions of the Real ID Act,32 as are professional and recreational licenses. Employment laws address worker authorization procedures, tax issues, and eligibility for workers’ compensation and unemployment insurance. Public benefits legislation determines qualifications for state-funded benefits, such as supplemental income payments, food stamps, Social Security, tax credits, and medical care. Some of these laws increase state residence requirements for noncitizens and citizens alike. For example, some education laws

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impose residency requirements for both secondary and postsecondary education. Residency requirements such as these demonstrate how states are developing multilevel citizenships not only according to ‘‘national outsiders’’ but also in reaction to ‘‘state outsiders,’’ which may include those who are in possession of U.S. citizenship. Legislation pertaining to law enforcement is largely related to the allocation of state funds for compliance and aid to federal enforcement. Over the past decade, states have developed a greater attention to monitoring human trafficking. The policy arenas touched by these concerns are vast, and states now take divergent approaches to address these matters. Although some states’ involvement in immigration matters is inclusionary, others states’ actions prove exclusionary. This ultimately affects the relative status of noncitizens in different states.

Explanation of Analysis Our quantitative and qualitative analysis of state-level immigration legislation covers the years 2005–2011. The data available from NCSL allow us to provide broad assessments for all of these years. Below, we look at data from each of these years, indicating the number of introduced pieces of legislation, the number of enacted pieces of legislation, and the number of pieces of legislation falling into different policy domain categories (law enforcement, education, public benefits, and so on). We provide a fine-grained analysis of the legislation enacted from 2005– 2007 and 2011. For these years, NCSL provided descriptions of each individual piece of legislation enacted. This level of detail is not available in the 2008–2010 NCSL reports we obtained. What this allowed us to do was to analyze the legislation for 2005–2007 and 2011 even further in order to identify other trends beyond the level of immigration activity occurring in the states. For these years, we were able to address whether the direction of state activity was inclusionary or exclusionary of noncitizens. Each piece of legislation for 2005–2007 and 2011 was analyzed and coded according to whether it was inclusive, exclusive, or neutral toward noncitizens. We determined this by qualitatively assessing the intended outcome of the legislation. Inclusionary laws extend the protection of rights and benefits of citizenship to noncitizens. Exclusionary laws deprive noncitizens of such protection. The fact that some states enacted inclusionary

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legislation and others enacted exclusionary legislation reveals how multilevel citizenship is being constructed spatially within the United States depending on the specific activities occurring on an individual state level. Inclusionary laws and policies extend the rights of citizenship to noncitizens. In other words, if the policy or law provides an opportunity for incorporation, provides some benefit, or appears to accord noncitizens rights that had previously belonged only to citizens, then the legislation is considered inclusionary. This could be achieved by extending civil, political, or social rights to noncitizens. Civil rights include protections against discrimination or repression. They particularly ensure due process or rights to fair trial. They also may include a noncitizen’s ability to associate and participate as members of society. Finally, social rights are those that provide social and economic welfare benefits to noncitizens. In short, inclusionary laws can be identified as those that enhance the rights of noncitizens in a particular state. Exclusionary legislation takes the opposite approach, making it more difficult to be a noncitizen in a particular state. Exclusionary laws include those that target noncitizens in such a way that their lives are made more economically or legally challenging, retract public benefits or services previously granted to noncitizens, or construct a clear distinction that disentitles noncitizens from rights that citizens hold. For instance, when a state imposes taxes and fees specifically on noncitizens, makes it more difficult to work or secure housing, or makes it more difficult to be present within a state without interference, we say that these actions directly target and distinguish noncitizens in an exclusionary manner. In summary, exclusionary acts deny noncitizens the protection of rights and benefits otherwise available to full citizens. As is the case with inclusionary laws, these exclusionary limitations could affect either the civil or social rights of noncitizens; exclusionary laws thus make it more difficult to be a noncitizen in a particular state. Some pieces of legislation are neither inclusionary nor exclusionary but have neutral effects. Legislation that fits into the neutral category simply clarifies or alters rules or funding in a way that is neither inclusive nor exclusive of noncitizens. For instance, many states have allocated funds to research projects that serve to investigate the local impact of immigration. The actions and purposes behind these research projects are not intended to be inclusionary or exclusionary. The information produced by these research projects might be used at a later date to influence inclusionary or

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exclusionary state measures, but the original scope of these projects is in fact neutral. Neutral laws are significant because they reveal a growing interest in immigration matters on a state level. This classification scheme is intended to reveal the wide variety of approaches states are taking to address the issue of immigration in the United States. It serves to highlight the vast discrepancies and patchwork policies that result from the absence of a cohesive national philosophy of immigration.33 Our analysis also allowed us to distinguish the positions of different states, determining which states are more invested in immigration matters (determined by the number of legislative acts enacted) and which states are in opposition to or support incorporating noncitizens into U.S. society.

Analysis At the outset of this chapter, we introduced three guiding questions that we wanted to try to answer. We first asked whether immigration federalism is exclusionary. In other words, do new laws passed by states tend to restrict rights and tighten enforcement of existing exclusions? This led us to wonder whether immigration federalism is immobilizing. Do state-level differences make it difficult for immigrants to move freely between states? Finally, we sought to evaluate whether immigration federalism is ultimately unjust. Are people with similar legal statuses and circumstances of immigration treated differently for reasons that pertain only to arbitrary facts of geography? Below we offer preliminary responses to the first of these questions based on the data we have analyzed. We address the second and third questions in the Conclusion. From 2005 to 2007, individual state governments enacted 301 pieces of immigration legislation. Of these, 140 were exclusionary toward noncitizens, 100 were inclusionary, and the remaining 61 were neutral. Based on the quantity of legislation alone, it is evident that in recent years, states (not just the federal government) have been taking a more active role in matters of immigration enforcement. What is also apparent is that the position of state governments toward immigration is heavily divided. Contrary to Schuck’s projection that states might become more generous than Congress with respect to immigrant civil and social rights, our findings reveal that this is not actually the case. Although there has certainly been state-level

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legislation that has extended civil and social rights to noncitizens, a substantial number of laws and policies enacted by states over the past several years has restricted such rights. In many of these years, the number of exclusionary laws surpassed the number of inclusionary ones. State legislative activities related to immigration have been on the rise since 2005. In 2005, states were just beginning to test the waters of immigration federalism, enacting only 39 bills. Of these 39 bills, 12 were exclusionary. The following year, the number of exclusionary bills more than tripled. In 2006, a total of 72 bills was enacted, 43 of which were exclusionary toward noncitizens. Not only was it clear in 2006 that states were taking a more active role, but given that 60 percent of these bills were exclusionary, it is evident that states were demonstrating a decidedly ungenerous position with respect to immigrant civil and social rights. In 2007, the states took an even greater leap, enacting a total of 190 pieces of legislation, 85 of which were exclusionary. Of these 85 exclusionary bills, 48 directly restricted rights and benefits for noncitizens. The remaining 37 bills were indirectly restrictive, relying on employer sanctions and more stringent requirements for IDs and work. The number of inclusionary bills increased substantially in 2007, demonstrating that states have not only been becoming increasingly concerned with immigration issues but that their positions are becoming increasingly divided. In 2008, there were 142 enacted laws and policies; in 2009, there were 202; and in 2010, there were 208. This shows a continued trend in state involvement in immigration enforcement. As previously mentioned, due to insufficiently detailed information in the 2008–2010 NCSL reports, we cannot precisely break down how many of these bills were exclusionary. However, a qualitative reading of the reports demonstrates that similar trends prevailed in these years, and many states took an active role in restricting the civil and social rights of noncitizens. The complexity of the 2009 data also reveals that the status of noncitizens was disaggregated by states, which created multilevel semicitizenships out of administrative categorizations as well as from the multiple levels of government in a federal system. States continue to enact legislation that is not simply exclusionary or inclusionary toward noncitizens as a whole but instead is dependent on an individual’s precise legal status. These newer laws are complex and do different things for different immigrant groups— refugees, students/visa holders, LPRs, temporary workers, illegal immigrants, and so on. In 2009, there were far more refugee laws enacted than

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in previous years. These laws tended to be inclusionary toward refugees in particular. There were also many exclusionary laws that dealt with work restrictions and employer sanctions and specifically targeted undocumented immigrants. This disaggregation of immigrant groups in state laws suggests that when enacting immigrant legislation, states tend to value political over economic liberties. During 2011, more bills were introduced than in any preceding full calendar year; in all 50 states and Puerto Rico, 1,607 bills and resolutions were introduced. This can be compared to the approximately 300 bills that were introduced in 25 states in all of 2005 and the approximately 1,400 bills and resolutions that were been introduced in 46 states and the District of Columbia in all of 2010.34 This rising trend of state activity highlights immigration as a growing concern and interest at the state level, and there have been no signs of these patterns of immigration federalism subsiding without federal intervention. On a broad scale, 2011 remains consistent with previous trends, particularly the steadily increasing interest and involvement of states in the domain of immigration policy and law. There were 1,607 bills and resolutions introduced in state legislatures in 2011, and 197 pieces of legislation were enacted. Of these 197 enacted pieces of legislation, there was again a much higher number of exclusionary laws than inclusionary laws. Of the enacted legislation, 113 bills were clearly exclusive, 47 were clearly inclusive, and 31 were neutral.35 However, there are some new observations that can be made and new trends to be noted in the current affairs of state legislative activity pertaining to immigration. In 2011, state legislation continued to construct clear differentiations among noncitizen groups (refugees, children and youth, LPRs, legal immigrants, temporary workers, and illegal immigrants). State legislation in prior years has done less to distinguish temporary workers as a specific group. Laws were enacted in 2011 that not only specifically address temporary workers as a group but also demand federal approval for increasing the number of temporary workers in specific locations. Utah, Virginia, Nevada, and Puerto Rico have all enacted laws to extend rights, services, and benefits to temporary workers. Law enforcement, ID, and employment have remained key legislative areas. Many 2011 laws specifically target illegal immigrants but by extension affect noncitizens as a whole through increased surveillance and proof of identity requirements to access various licenses, public services, and benefits. States also

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continued to act in opposing directions, meaning that some introduced and enacted more inclusive legislation and others were more exclusive. In terms of inclusive legislation, the rise continued in the number of states permitting unauthorized immigrant students to be eligible for in-state tuition. A few differences that emerged in 2011 included an increase in legislation related to expanding and protecting temporary workers. There was also a significant increase in the number of enacted omnibus bills. Bills pertaining to felons (especially sex offenders) also increased significantly. For the first time since 2005, there were exclusionary actions toward refugees (in Tennessee in particular). In 2011, territories (such as Puerto Rico), not just states, engaged in state immigration legislation. It became more apparent in 2011 that although the number of bills introduced continued to increase significantly, the number of laws enacted decreased significantly.

Conclusion The explosion of ‘‘patchwork policies’’ across the geographic landscape of the United States has constructed an incredibly varied and sometimes inconsistent understanding of immigrant civil and social rights. As state governments remain divided about whether rights should be extended or restricted for noncitizens, it has become apparent that it is more desirable for noncitizens to live in some states rather than others. The extension or restriction of rights has constructed a multilevel hierarchy of semicitizenships based on legally assigned statuses and geographic location. Federalism has also produced counterintuitive incentives and disincentives for immigrant mobility. These are most directly embodied by the imposition of various state-level probationary periods, during which immigrants must live continuously in a state for a preordained period of time in order to qualify for certain (primarily social) rights.36 These ‘‘deeming requirements’’ penalize newly arrived immigrants and newly relocated immigrants in many states and create two new classes of noncitizen: entitled and disentitled. While waiting periods are a common limit placed upon newly arrived persons seeking to claim rights, they have the effect of immobilizing the newly arrived, many of whom may need mobility in order to seek work in multiple states. Similarly spirited durational residency requirements have been found unconstitutional when applied to U.S. citizens because they create a temporally

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defined two-tiered class system among otherwise equally entitled persons.37 Immigrants are not similarly protected, and we regard it as of great normative concern that an already vulnerable population is further constrained from moving freely by durational residency requirements. Possibly heightening this effect are sanctuary cities that flout federal recommendations for enforcement of immigration law against the undocumented; these can turn into fortresses for persons who depend on the protection of such cities for their livelihood and residency. By extension, this may be a limiting factor for legal immigrants, many of whom have familial and other deep ties to undocumented persons.38 Furthermore, if challenges to the constitutionality of sanctuary policies were to succeed, a vast swath of the immigrant population would be immediately vulnerable to deportation.39 Immigration federalism is a rapidly moving target for social scientific study. Although principled arguments about differentiation within the immigrant population arising from devolution apply broadly, the implications of changes in the post-1996 and post-2001 eras are still developing. Furthermore, trends that are prevalent now may not remain in place if the circumstances that encouraged them are radically disrupted. Comprehensive immigration reform could conceivably alter the landscape in which states operate. In addition, it is clear that recent state budget crises have not yet run their course. Nor do the data on state-level regulation of immigrant rights fully reflect the full scope of reaction to these crises yet. With battles over state laws such as that passed in Alabama in 2011 playing out in the federal courts, much of the fallout from this round of legislation remains uncertain. These unknowns point out the instability that results from immigration federalism. The rise in volume of state-level legislation on immigrant rights brings the vulnerability and variability across states and across time into sharp relief. Even in cases where states have become more inclusive and generous toward immigrants, there is no guarantee that immigrant residents can rely on similar benefits in years to come. What does seem certain is that immigrants seeking rights of which prior generations availed themselves are increasingly subject to scrutiny. This scrutiny takes careful account of their legal status beyond simply asking whether they are documented or undocumented. Finally, both the extension of inclusionary rights and the retraction of exclusionary rights have effects on whether even documented immigrants can move freely within the United States.

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Finally, we turn to the question that the existing literature on immigrant law and policy federalism most frequently raises. Are the results of recent devolutions unjust? This is a deeply complicated question. After examining the recent trends chronicled in the NCSL data, we conclude that the trend toward further restricting the rights of people whose claim on residency has the shortest lifespan is worrisome. If this group included only undocumented persons who had no legal expectation of continued residence, it might be easy for restrictionists to argue that reducing their civil and social rights was justifiable. However, the trend toward restricting rights seems to equally include people with TPS and other temporary statuses. Particularly in the case of temporary asylum, a status that is often extended repeatedly, we are hard-pressed to justify the ongoing withdrawal of basic citizenship rights previously accorded to such persons. More generally, if federalism is premised upon the idea that subnational political, social, and economic variations are significant enough to warrant state-level autonomy, it would seem that any variation in the extension of rights is justifiable. However, newly arrived persons by definition cannot hold intensely particularistic attachments to states or localities. Furthermore, because states do not have the authority to override federal rules regarding the admission of immigrants or, significantly, the status assigned to persons (temporary worker, TPS holder, family reunification, and so on), it stands to reason that allowing states wide latitude to endow each status with widely divergent sets of rights is normatively problematic.

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PART II Empires and Indigeneity

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Chapter 5

When Did Egyptians Stop Being Ottomans? An Imperial Citizenship Case Study will hanley

Historians of the Ottoman Empire are dramatically recasting our understanding of the empire in its provinces, demonstrating the flexible, locally conditioned, and often ephemeral nature of the imperial presence in each provincial setting.1 Although it was one of the empire’s most important provinces, Egypt has not figured very significantly in this revision. There are some good reasons for this omission:2 although Egypt remained part of the Ottoman Empire until World War I, Istanbul’s direct influence over its province waned dramatically over the course of the nineteenth century. By the time Britain invaded and occupied Egypt in 1882, few remnants of direct control remained. Historians agree that Egypt was, for all intents and purposes, independent of the Ottoman Empire by the last quarter of the century.3 This conventional narrative deserves reexamination, on both theoretical and empirical grounds. Theoretically, the new literature on Ottoman provincialism is only part of a broader reconceptualization of empire that aims to confront the normative position of the European experience.4 This reconceptualization has drawn on new empirical data concerning the varieties of forms of membership, political and otherwise, occasioned by empire.5 Meanwhile, a different kind of empirical experience—of globalized, variegated polities in contemporary Western democracies—elicits new thinking about the nature of belonging and citizenship.6 Studies of multilevel citizenship have thus far concentrated largely on formal membership in the context of the European Union, but extra-European and extrapolitical contexts also offer intriguing analytical possibilities. Europe’s

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recent citizenship troubles, especially those touching Islam, suggest that its citizenship models demand elaboration.7 Ottoman history, for its part (and despite the pioneering work of Ariel Salzmann and Engin Isin), lacks a theoretical framework for talking about the complexities of its membership regimes.8 This chapter demonstrates the persistence of Egyptians’ Ottoman status well into the twentieth century, something that has been neglected because the nature of Ottoman citizen/subjects’ membership in their state differs from European and American archetypes of citizenship. The triumph of a system of modular, exclusive, universal, commensurate national citizenships is incomplete and its advent is recent. Occluded variant systems of state affiliation (such as that practiced by turn-of-the-century Egyptian Ottomans) need to be recovered and compared, not least because they reveal much about the general phenomenon of citizenship. This chapter suggests that conventional genealogies of national citizenship, largely derived from a small set of early adopters (especially France, Britain, and the United States), might fruitfully be revised in light of evidence of alloyed imperial citizenships. The most illuminating comparative historical studies of citizenship— works such as Rogers Brubaker’s study of citizenship in France and German—sample only a fraction of the vast range of human experience.9 Meanwhile, scholarship on multilevel citizenship, constitutional pluralism, and imperial citizenships labors under the need to justify its validity in terms of the small set of normative Western examples.10 The weight of history and of demography shows that the citizenships at the center of mainstream theory are marginal experiences. In that light, the absence of either/ or citizenship in late Ottoman Egypt resembles certain quite common twenty-first century forms of citizenship. This imperial genealogy of dual citizenship, statelessness, multilevel citizenship, and the like may help to normalize these often abhorred statuses. In each case, sovereignty is divided. Multiple, overlapping sovereignties, the defining feature of multilevel citizenship, are as common in history as they are rare in political theory. To efforts (such as this book) that address this imbalance, the OttomanEgyptian evidence offers two lessons. First, conventional descriptive vocabularies founder in the face of multiple sovereignties. Actors and institutions in such systems often employ singular identities to present themselves in

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imperial administrations, social science research, and litigation. This selfrepresentation is performative, however, and analysts who adopt its terms soon discover its incoherence.11 Citizenship practices provide an analytical basis that is more certain than identity labels. Second, the centrality of political rights in conventional reckonings of citizenship hinders analysis of membership under multiple sovereigns. In these settings, legal, economic, and even cultural practices must be given weight equal to that given to political participation. This chapter consists of five sections. The first considers the idea that Egypt was independent of the Ottoman Empire before the turn of the twentieth century. The second examines citizenship laws and practices of nationality in order to qualify that sense of independence. The third and fourth take up two bodies of evidence (from censuses and law courts, respectively) seeking signs of enduring Ottoman citizenship in Egypt. The concluding section argues for the analytical merits of the apolitical model of Ottoman citizenship found in British Egypt.

Post-Ottoman Egypt? Egypt’s historiography is overwhelmingly nationalist. The territorial configuration of the modern nation-state sets the boundaries for almost every inquiry into the region’s pre-twentieth century history.12 The compact and isolated physical geography of the lower Nile valley and its delta enhances the sense of historical distinctiveness, as does the fact that Egypt was a separate Ottoman province from the time of its conquest in the early sixteenth century. The Ottomans referred to provinces by the name of the city that ruled them; only in the late nineteenth century did the name for Cairo (Misr) begin to provide the rhetoric of Egyptianness, as its adjectival form came to be applied to all the residents of the capitol’s hinterland.13 The traditional historiography takes 1798 (the year of Napoleon’s invasion) and 1805 (the rise of Mehmet Ali Pasha, the ‘‘founder of modern Egypt’’) as the start dates of the modern nation’s independent story.14 These moments signal a break with the Ottoman Empire that was both intellectual (the advent of Western thought) and political (Mehmet Ali’s establishment of hereditary, largely autonomous dynastic rule). Although we now know a good deal about the royalist historiographical contrivances that lie behind

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this chronology, as well as the exclusively Turkish character of the ruling household even in the mid-nineteenth century, the presumption of Egyptian independence endures.15 It is enhanced by researchers’ sociology: most historians working on nineteenth-century Egypt use Arabic-language ‘‘provincial’’ sources and do not read the ‘‘imperial’’ documents, which are in Ottoman Turkish. Ironically, the British occupation of Egypt in 1882 and the Veiled Protectorate that followed did much to bolster notions of Egypt’s national independence. During the early years of the occupation, the situation of Egypt vis-a`-vis the British and Ottoman Empires was characterized by two fictions. Public discourse pretended that the Ottomans retained a measure of control over Egypt and that Egypt retained a measure of independence from Britain. In official correspondence, Egypt was carefully and consistently referred to as al-qutr al-misri, the ‘‘Egyptian region.’’ It was also referred to with safe synonyms for ‘‘region,’’ such as taraf and diyar.16 In the interests of pragmatism, oppositional political strategy was structured around opposition to British imperial control. The nationalist discourse that emerged in the 1890s appeared to instrumentalize (or even marginalize) Ottomanism in order to address the British.17 Nevertheless, it seems that the Veiled Protectorate instilled its narrative of light, almost imperceptible rule successfully: Britain’s influence over Egypt’s citizens is obscured in historical memory. Although Britain drew most nationalist political fire, the Ottoman Empire remained the key referent for Egypt’s elite political and intellectual culture, even as late as the turn of the century. Egyptians were active observers of, and indeed participants in, the Ottoman reform movements of the early twentieth century. Egypt is often portrayed as a site of exile for Young Turks, but it was not merely an inert foreign land.18 Just as the United States of America remained (and remains) in the cultural, economic, and indeed political sphere of the British empire long after independence, so too did Egypt remain part of the Ottoman commonwealth. This commonwealth was most visible in the writings of a small intelligentsia. The Ottoman Empire experienced a brief episode of constitutionalism and limited representative government in 1876 and another starting in 1908. Egypt, meanwhile, had no constitution or elections until the 1920s. Government was for bureaucrats, not citizens, and political discourse was the realm of journalists and a handful of elite activists.

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A whole literature endeavors to define Ottomanism, and it is by no means unusual that this elusive label should fail to fit Egyptians exactly.19 Ottoman citizenship, the central concern of this chapter, had its first legal articulation in 1869.20 The idea of citizenship was foreign to the nineteenthcentury Ottoman Empire; the great Egyptian chronicler of Napoleon’s 1798 invasion merely transliterated the term: sitwayan. The Arabic jinsiya (related to ‘‘genus’’) came to designate ‘‘nationality.’’ Even the neologism for national citizen (muwatin) does not designate the rights-bearing liberal subject of a certain vision of Western citizenship. Subjecthood, on the other hand, has a more stable Arabic and Ottoman vocabulary, in common usage during the nineteenth century. The Arabic/Ottoman term tab‘iyat/tabiiyet derives from tabi‘/tabii, meaning subject (of a state or sovereign). But the truly stable term is the eighth-century reaya, for ‘‘flock’’ or ‘‘subjects.’’21 The relationship of shepherd (the Ottoman sultan) and flock (his subjects) was based on protection and loyalty rather than sovereignty and allegiance. This tie was bolstered by the sultan’s role as caliph, or earthly head of the Islamic community.22 Even when his secular powers were limited, the Ottoman sultan maintained spiritual dominion, to which Egypt signaled its symbolic loyalty. The province was given the right to mint its own currency in 1834 (a mark of monetary autonomy), but this token of independence bore the sultan-caliph’s name (his tugra) until 1914. The same name was invoked at Friday prayers throughout this period. On this basis, more recent scholarship argues that as late as 1905, ‘‘in the final analysis, the majority of Egyptians considered themselves to be Ottoman subjects,’’ and those interested in forging an independent Egypt pursued a policy of deOttomanization as a result.23 Ottoman wars were increasingly defined as Islamic, and enthusiastic moral and material support from Egyptians during the Italo-Turkish war over Libya (1911–1912) were the last great sign of Egypt’s Ottoman affiliation. The fact remains, however, that the sultan’s direct control over his Egyptian flock was definitively supplanted by his own governor during the 1830s. After that point, Ottoman sovereignty was reduced to suzerainty and symbolic payment of tribute; no more Egyptian troops fought Ottoman wars. If the sultan retained only spiritual and symbolic authority over his Egyptian subjects, his nominal subalterns enhanced direct sovereignty at the provincial level. The upstart governor Mehmet Ali and his descendants used the techniques of modern control to extract ever more military,

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agricultural, and public works labor from Egyptians. The debt crisis of the 1870s and British occupation of the 1880s transferred much of this dominion to the European comptrollers who directed the Egyptian economy. The Egyptian state, figuratively controlled by the Ottomans and literally controlled by the British, communicated with its subjects through its officials. These agents of the ‘‘local government’’—tax collectors, police, and local headmen—articulated economic, legal, and military subjecthood at the local level.

Citizenship Laws and Nationality Practices It should now be clear that political participation played no significant role in turn-of-the-century Egyptian citizenship. Western archetypes of citizenship are therefore ill fitting. French and American visions of membership in the nation-state find no counterpart.24 None of the terms of Marshall’s classic civil-political-social citizenship typology fully apply, either.25 Instead, liberal imperialism’s ugly underbelly was on display: for most Egyptians, membership meant only labor in the planned national cash-crop economy, an economy focused on foreign debt payments. The state made much of its authority through law, however. Although few Egyptians could be considered rights-bearing subjects in the conventional Western sense, the law offered them new possibilities of civil standing. In order to understand this variety of citizenship, then, this chapter focuses on a little-studied set of evidence concerning legal rather than political citizenship. Gianluca Parolin’s survey of citizenship in the Arab world employs a purely textual sense of Egyptian nationality.26 According to this understanding, Ottoman nationality began with the first code of nationality in 1869. Parolin describes this legislation as a reaction to the capitulations, extraterritorial exemptions to Ottoman prosecution, taxation, search, and conscription enjoyed by subjects of Western nations since the sixteenth century.27 In order to curb abuse of this foreign privilege (including by Ottoman-born subjects exploiting loopholes), the Ottoman sultan finally asserted his right to approve all changes of nationality. The Ottoman nationality law functioned as a code of naturalization rather than citizenship: it granted no intrinsic rights. Its articles concerned only questions of acquisition of nationality (in which context jus sanguinis reigned).28 The 1900 Egyptian nationality law, which fits on a single page of the state’s

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official journal, is also exclusively focused on acquisition.29 Clearly, then, membership was about jurisdiction rather than rights. It seems that the 1900 nationality law was forgotten. When a comprehensive nationality law was enacted in 1926, this earlier law went unmentioned. In the mid-1920s, the only citizenship law Egypt had was the 1869 law of the Ottoman Empire, a political entity that had by then disappeared. But whether Egyptian nationality law began in 1900 or 1926, it is clear that during the 1890s, a heyday of Egyptian nationalism, Egyptians who traveled abroad, used the law courts, or responded to census questions could represent themselves only as Ottoman citizens. Egyptian passports of the 1890s and the 1900s were printed not in Arabic, but in Ottoman Turkish and French.30 Evidence of nationality practice poses two problems for the traditional narratives of Egyptian independence from Ottoman control. First (according to census and legal sources), Ottomans were consistently identified as locals rather than foreigners. Second (according to census and noncensus evidence, such as law court practice, passports, and political agitation), Egyptians were persistently identified as Ottoman. This incoherence poses serious difficulties for any doctrinal study, and Parolin seems compelled to tell a story that goes beyond statute.31 He offers assertions about Egyptian nationality that depart from the evidence he presents: at some indeterminate point after 1869, a sense of ‘‘indigenous nationality’’ (ra‘awiyah mahalliyah) emerged in the Ottoman provinces, including Egypt. ‘‘By the end of the 19th century, the Egyptian indigenous nationality was fully shaped,’’ he argues.32 ‘‘By the turn of the 20th century, Arab lands—where religious affiliation was the only known form of membership beyond the kin group—suddenly witnessed the rise of two new forms of secular membership, an overarching Ottoman nationality and a local indigenous one.’’33 And again: ‘‘Indigenous nationality only complemented Ottoman nationality, the latter being conditional to the former . . . , and the Egyptian was treated internationally as an Ottoman subject.’’34 This tangle of assertions, emerging in the context of an otherwise wellordered study, points to a breakdown in categories: archetypes of Western citizenship fail to account for certain varieties of non-Western experience. I will return to this theme in the conclusion, but permit me to emphasize several problematics here. The ‘‘full shape’’ of nineteenth-century ‘‘indigenous nationality’’ that Parolin invokes cannot have been essentially legal (there was no Egyptian nationality law) or political (there were no political rights to be had). Nor did ‘‘indigenous nationality’’ reside in the domain of

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civil citizenship rights—in the Ottoman context, these had been articulated much earlier, in the 1839 Gu¨lhane rescript and its Tanzimat cousins.35 Nor were Egyptians, who traveled on their ‘‘own’’ passports by the turn of the century, simply treated internationally as Ottoman subjects. Religious and kin-group memberships, meanwhile, were not the ‘‘only known forms’’ of membership: professional and neighborhood associationalism was extensive in Egypt. During this period, Egyptian citizenship was a performative entity that dodged rigorous legal scrutiny. There are no ready solutions to this puzzle, but citizenship as practiced seems a good place to start to sharpen our categories of analysis. Ottoman and Egyptian citizenship legislation were in both cases acts of translation, performed for Western diplomatic audiences. For ordinary subjects, both Egyptian and Ottoman, what mattered was application of the law through mobility control, identity documents, the census, taxation, military service, arrest and search, legal standing at law courts, and so on. Yet in all studies of Egyptian nationalism and deOttomanization, many of the most basic questions about the civil affairs of Ottoman-Egyptian subjects remain obscure. The position of Gazi Ahmed Muhtar Pasha, the ‘‘extraordinary commissar’’ (mısır fevkalade komiseri) who represented the Ottoman state in Egypt from 1885 to 1908, was no more contrived than that of the British ‘‘agent and consul-general’’ Baring Cromer, who held ultimate power in Egypt between 1883 and 1907.36 Cromer’s veiled power was of a familiar type, however, and a large historiography makes him an easy figure to digest.37 The Ottoman administration of multilevel membership, on the other hand, because it does not so readily fit available imperial forms, awaits further research.38 For the time being, other kinds of clues offer insight into the workings of citizenship. For instance, government employment was one sphere of domestic control for the Egyptian administration. At some point a decade or so after 1900, the local government began to insist that its employees be Egyptian and Egyptian only. This group of foreign aspirants to Egyptianness, who became known as the Mutamassirun in the interwar years, initially sought to retain the material advantages associated with nationality.39 In 1913, for example, two Tunisian public employees, both lawyers with the native court system, were informed by the Egyptian Ministry of the Justice that they would lose their positions if they did not confirm Egyptian nationality by renouncing their French protection.40 One of these men had previously paid the badaliya, a special tax to exempt his son from serving

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in the Egyptian army. Payment of this tax was taken as a sign of subjecthood. Indeed, Ottoman subject formation had traditionally circulated around the question of taxation. Reaya were, quite simply, those who paid taxes, and the askeri elite were those who received that surplus.41 Tax exemption was the ‘‘most important marker of legal status in the Ottoman Empire.’’42 Thus it is entirely consistent that taxation status would be a central marker of the new national citizenship. Nation-state citizenship of the archetypal variety does not originate in employment or ‘‘taxation without representation.’’ Still, in a global sense, these experiences of citizenship are more common than experience of citizenship as political participation.43 Gaps in description of Ottoman-Egyptian citizenship arise not from the shortcomings of that historical example but from the assumptions of conventional conceptual vocabulary.

Census Taxonomies The citizenship law category consternation just described echoes the confusion of European-trained census takers who worked to measure the Egyptian population in the late nineteenth century. In this section, I examine nationality categories used in the Egyptian censuses of 1882, 1897, 1907, and 1917. In a sense, the malleable landscape of nationalities reflected in these censuses appears a category game, in which the population was reclassified by different criteria each decade. As we will see in the next section, however, nationality was anything but an abstraction: in the complex legal landscape of turn-of-the-century Egypt, nationality determined jurisdiction over the bodies of the territory’s subjects.44 The confounding incoherence of nationality categories in the Egyptian census shows that in a system of overlapping sovereignty, identification is performative. Egyptians and Ottomans were labeled not for their own needs—the labels entailed no access to rights—but for presentation to their imperial administrators. Like nationality law, the census provides only unsteady ground for the study of Ottoman-Egyptian citizenship. The 1882 census was hardly the first to categorize Egypt’s population by national type. The 1800 Description de l’Egypte described eight groups: Egyptians, Turks, Arabs, Moors (specifically, Maghrabis), Greeks, Syrians, Jews, and Europeans.45 The 1840 census divided the population between

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those under local authority (dakhil al-hukuma) and those beyond government authority (kharij al-hukuma).46 A contemporary study of the 1855 cholera epidemic differentiated between eleven categories: Europeans, Greeks, Armenians, Syrians, Copts, Israelites, Natives, Turks, Maghrabis, Barbaris, and Blacks.47 The 1882 census employed a new hierarchy of three major categories (settled native, nomad, and foreigner), each of which was subdivided into minor categories. The decennial censuses of 1897, 1907, and 1917 reduced the decisive split to foreign and local. Local subjects (as opposed to foreigners) were subdivided in the four censuses in question, as shown in Table 5.1. This table shows four main groups adulterating a vision of a purely Egyptian local population: Ottomans, Bedouins, Sudanese, and local subjects of European origin (such as Greeks). The 1897 census divided the local population much as the one in 1882, but Sudanese were dropped, and the divide between settled and nomadic Egyptians was set aside. Sedentary, Bedouin, and Ottoman were all clearly labeled as ‘‘real’’ Egyptians. In 1907, Sudanese reappeared, and certain Ottomans were divided into four ‘‘local’’ nations. The 1907 census was the first since the inchoate Egyptian nationality law of 1900. Perhaps as a result, Ottomans appeared for the first time as foreigners.48 Subdivision was extended ten years later: Egyptians were distinguished according to sect, and four new miscellaneous population categories were added. But only now, once it was divided in a dozen ways, did ‘‘local’’ emerge as a distinct, collective category given a cumulative population figure of its own. In previous years, census makers offered an aggregate total of foreigners but never of local subjects. From the time of the 1882 census, settlement was the hallmark of a national population; Bedouins and foreigners were anomalous because they were mobile. Although the desert and sea hinterlands of the Nile valley were sites of problematic flux, ‘‘real’’ Egyptians were suitable for counting because they were tied to the land and isolated from other nations. Turkish and Syrian immigration had slowed, and Europeans were now the principal immigrant group. Their ‘‘distinct social and political behaviour (almukhtalifiyin mashraban/situation sociale et politique a` part) prevent[ed] them being confused with the native population (zumrat al-wataniyin),’’ which was agrarian and sedentary.49 The census makers claimed that this distinction was ‘‘social and political’’; in reality, it was jurisdictional. Bedouins and foreigners were considered separately because they were exempt

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Egyptians from other parts of the Ottoman Empire

Those from other parts of the Ottoman Empire

Source: Census taxonomy of locals, 1882–1917

Sudanese

Egyptians: Bedouins

Egyptians: settled natives

‘‘Real’’ Egyptians

Bedouins: • Semisedentary • Nomadic

1897

1882

Table 5.1. Census Taxonomy Table

Other races

Jews

Greeks

Berberi

Sudanese

Armenian

Armenian Sudanese

Arabian

Syrian

Turkish

Bedouin

Egyptian: • Muslim • non-Muslim

1917

Arabian

Syrian

Turkish

Egyptian Bedawi

Egyptian sedentary

1907

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from the laws that governed other subjects.50 The distinction between real Egyptians and all others made operative sense in terms of 1880s domestic policy, according to which dangerous Bedouins were to be taken under government control, foreigners were to be protected, and settled natives were to be taxed. Nonstandard subjects were deficient subjects, and they tarnished the census project. In an opening apologia, the authors of the 1882 census distinguished their work, which only measured de facto population, from the study of resident population that a proper European state required. Only the systematization of civil status would make such a project possible in Egypt.51 In other words, something like ‘‘indigenous nationality’’ had to be clearly defined if Egypt was to join the community of nations. Subsequent censuses track the progress of this project. By 1917, a full range of local nationalities joined the foreign diversity previously on display. It is no surprise that census counts of national groups in Alexandria were as inconsistent as the categories themselves. Although the overall population of the city increased steadily from census to census to census, the share assigned to each group fell and rose and rose and fell. Faced with these unwieldy categories, social historians are as off balance as the legal scholars cited in the previous section. Daniel Panzac has produced several studies of the population of nineteenth-century Egypt in which he displays careful critical faculties. His suspicion of uneven growth rates, for instance, leads him to a radical departure from census figures of Egypt’s aggregate population.52 But where nationality is concerned, his work is in the thrall of the census and its categories and content to trace a smooth growth rate for the foreign population, ignoring the fact that Ottomans appear and disappear from the census figures.53 Other studies of the censuses avoid this trap, but their critical approach toward statistics rarely extends to the categories employed.54 This remarkable omission manifests the allure of dividing population into singular nationalities that seem to possess some inherent validity discouraging critical probing. Three pieces of evidence call into question the national categories of identity used by census takers: the changing stock of categories used; the inconsistent statistics that they produced; and the calculated, nuanced performances that court documents (discussed in the next section) demonstrate lay behind most black-and-white claims to nationality. Census makers certainly witnessed the same genre of performance on polling day. Little is known of the details of their data collection.55 In theory, aggregate

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231,396 49,693 171,854 503 5,169 4,367 181,893

100 21.5 74.3 0.2 2.2 1.9 78.6

% 319,766 46,118 254,358 4,984 14,306 — 273,648

Count

1897

100 14.4 79.5 1.6 4.5 — 85.6

% 332,246 59,368 245,136 714 21,827 5,201 245,850

Count

1907

100 17.9 73.8 0.2 6.6 1.6 74d

%

444,617 84,722 321,367 2,503 28,912 7,130 359,912

Count

1917

100 19.1 72.3 0.6 6.5 1.6 80.9

%

Source: Census returns for Alexandria, 1882–1917. Note: Not all of these categories appear in the censuses themselves. Foreign and local totals are, for the most part, my own aggregates. Note that in the 1917 census figures, the sum of foreign and local exceeds the city population by 17. a This group consisted principally of Greeks, Italians, French, British, with other nationalities making up a fifth of the total. b 1917 figure is an aggregate of all ‘‘local’’ categories except Egyptian, Bedouin, Sudanese, and Berberi. c 1917 figure includes Berberi. d In 1907, this figure excludes Ottomans and Sudanese. Ottoman and Sudanese figures are not added to the foreign total, either.

Total population Total foreignersa Sedentary Egyptians Bedouins Ottomanb Sudanesec Total locals

Count

1882

Table 5.2. Census Returns for Alexandria

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counts and individual attribution of nationality depend on the same evidence. In the Ottoman Empire, a single administrative division (the nu¨fus mu¨diriyyet) handled both tasks.56 But when nationality meant more than a trivial label for census day performance, as it did in law courts, a more complex picture of membership emerged.

Ottoman and Egyptian in Court In Ottoman-Egyptian practice, citizenship was the aggregate of many minor claims or assertions. The census was one field on which these assertions were exercised, and the law courts were another. Tracking these assertions is difficult, precisely because each is relatively unimportant (and certainly apolitical) in its moment. Yet, occasionally, the records reveal acts of selfidentification that ring strange, and these merit our attention. Thus in September 1908, we find Hussein ‘Abd al-Latif, a Muslim ‘‘commission agent’’ (wheeler-dealer) in the delta town of Dessouk, identifying himself in an affidavit as an ‘‘Ottoman subject’’ and elsewhere (in an earlier letter) as a ‘‘local subject.’’57 By 1908, the categories were (legally speaking) incommensurate, as shown in statute and census. So is this self-identification deliberate or careless? Hussein disappears from the record after this trial, and no definite answer is possible, but the ‘‘error’’ suggests that even in legal documents submitted before a court, the distinction between Ottoman and Egyptian did not always obtain.58 If for some litigants these technicalities were of minor importance, for others they were determinative. This was especially true of the wealthy. When Antun Yussuf ‘Abd al-Massih died in Cairo in February of 1885, his will assigned his immense fortune of half a million pounds to his wife Ellen. A Chaldean Catholic, Antun was born in Baghdad. He was thus an Ottoman subject by birth. For the last decades of his life, however, he lived in Egypt. There, he registered as a British prote´ge´, and his widow took his probate to the British consular court, his usual tribunal, in October 1885. Five years of high-powered and high-priced litigation ensued, as Antun’s sisters Angela and Cecilia challenged their brother’s will and the jurisdiction of the probate court. At the core of this litigation was a debate over the proper jurisdiction over the estate of the deceased. The widow argued that Antun was a British subject, and his estate should be disposed according to the formulation of

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his will; that is, accorded to his wife. The sisters argued that Antun was an Ottoman subject, and jurisdiction belonged to the Ottoman state, which applied Islamic law of the Hanafi school to personal status cases. This law stipulated that the testator could not leave more than a third of his or her estate to ‘‘strangers’’ (such as a widow) without the consent of blood heirs (such as the sisters). The case proceeded from the Cairo and Alexandria British Consular Courts (February 24, 1886)59 to Britain’s Supreme Consular Court in Constantinople (May 28, 1886)60 and finally to the Privy Council in London (March 17, 1888).61 This series of hearings considered the question of jurisdiction; finally, the Privy Council decided that in Antun’s case, ‘‘the law of Turkey governing the succession of a member of the Chaldean Catholic Community domiciled in Turkey [should] be followed.’’ But which law was that, precisely? A new round of litigation began treating this question. Now the widow’s lawyers argued that although Antun was an Ottoman subject, jurisdiction in his case followed his personal status and belonged to the Chaldean Church. In this case, the will would also be considered valid. This interpretation led to competing claims between the Egyptian branch of the church, which automatically received 5 percent of any estate under its jurisdiction, and the Baghdad church, which received ‘‘what the family could afford to give.’’ In the end, the case was settled, by binding arbitration, largely in favor of the sisters.62 By this time, lawyers’ fees had absorbed some 25,000 pounds sterling.63 Ironically, all of these arguments were again heard by the British consular courts, despite the sole conclusion of the first round—that the British courts did not have jurisdiction over Antun’s estate. In the context of empire, European justice systems often moved to endorse non-European law. The French justice system made such efforts in the Mediterranean context. But the Ottoman law that the British courts engaged in Antun’s case had apparently already been codified in a Europeanized form during the third quarter of the nineteenth century.64 Why did such vast ambiguity remain? And why was the British consular court the venue in which such questions should be decided? The answer to these questions is outside the scope of this chapter, and the case of Antun Yussuf ‘Abd al-Massih certainly deserves a careful, detailed study of its own.65 A number of observations serve our purposes, however. First, it is clear that despite the vast nineteenth-century expansion of codified law in the Ottoman Mediterranean, the authority of a single

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state over a single individual had not been established. When large sums of money were at stake, as in Antun’s case, lawyers had no trouble questioning the principle of exclusive national affiliation. The arguments deployed in the case show that the lawyers found many ways to argue the question. The new formulations of nationality were a total puzzle, and this case revealed many of the inconsistencies of the emerging system. Second, this case shows that courts of European imperial states (notably Britain and France) were preferred venues for jurisdictional litigation. This preference was the result of the authority and enforcement power of these strong states, rather than the regularity of their laws. Antun’s case, as settled in arbitration by the British justice system, had nothing to do with British law. Despite the venue in which it was delivered, however, the conclusion of this case was that an Ottoman subject could not become a member of the British community in Alexandria purely ‘‘so as to attract to himself English law.’’66 But the principle asserted by the court—that nationality and protection meant more than mere legal convenience—had long been a fiction for many bourgeois prote´ge´s in Alexandria. Nationality games began with the dead, reclassifying bodies (such as that of Antun) that had already been objectified in legal process. It was, more properly, Antun’s widow who discovered the change in prote´ge´ status—Antun himself was oblivious. There are numerous (but less lucrative) similar examples from various courts. In the decades that followed, arguments over national classification of individuals moved on to the living, however, and came to involve those who could not be fixed in national space as easily or permanently as could an interred corpse. The agency of the living created problems, certainly, but the settlement marched ever forward in its effort to answer two interrelated questions: who gets which nationality, and what is that nationality worth? Even during their occupation of Egypt, the British repeatedly affirmed Ottoman legal sovereignty. Following a 1908 question in the British Parliament, for example, consular legal authorities determined that Ottoman law applied to real property in Egypt.67 The case of Nicola Adamidis offers another example of capacious Ottoman nationality. He was born in Ottoman territory to a Greek father in 1838. He moved to Cairo in 1859, then to England in 1865, where he was naturalized three years later. In 1870, he asked the Secretary of State for a certificate allowing him to live outside the United Kingdom for more than six months without losing naturalization.

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He received this certificate but did not take the necessary oath before returning to Egypt in 1874. He lived in Alexandria for the rest of his life, where he was a member of the Greek Orthodox church and ‘‘identified himself actively with the Greek Community and their charitable societies. But he registered himself at the British Consulate as a British subject and was always so regarded.’’68 After Adamidis died while visiting Athens in July 1906, his heirs (a brother and seven nieces and nephews) asserted Adamidis’ British nationality. They did this because his will, which satisfied the terms of Greek law as well as that of the Orthodox Patriarchate (the law in Turkey relating to Ottoman subjects belonging to the Orthodox church), was invalid under English law. If Adamidis was a British subject, he would be ruled intestate, and his relatives stood to inherit more of his estate under intestacy law than they did under the terms of the will. Unfortunately for them, the British judge who heard the case ruled that Adamidis ‘‘was without a nationality. He had ceased to be a British subject and we have it in evidence that he was no longer a Greek subject.’’ It did not matter whether he was Greek, Egyptian, or Turkish domiciled, because the will was recognized under all three laws. Citing the ‘Abd al-Massih case, he ruled that Adamidis could not become a member of the British community ‘‘so as to attract to himself English law’’ and asserted that the same was probably true of the Greek community. Thus local law (Ottoman law) applied, which dictated that Adamidis was governed by his community (the Orthodox church). Adamidis was reclassified in the grave. He had lived his whole life under consular protection, and his name featured in all consular lists of subjects.69 Only after intense judicial scrutiny (and his own death) was his identity made to appear multiple and problematic and his British status ruled false. The contest over the nationality of Adamidis’ dead body was all about money, but the question of nationality was not only material but also physical. Subaltern subjects felt the physicality of national jurisdiction. A prisoner transfer undertaken just before the British occupation shows how tightly bound were the Ottoman and Egyptian states at that point. The prisoner in question (a Maltese British subject named Giovanni Callus) had been convicted of theft by the British consular court in Alexandria and sentenced to five years of penal servitude in Malta. In the course of investigation, it was discovered that in 1870, Callus had escaped from the ‘‘Central Turkish

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prison’’ in Istanbul, where he was serving another five-year sentence for theft. Before he could begin his sentence in Malta, he had to complete his sentence in Istanbul.70 Negotiations over the transfer reveal the complex relationship between empire and autonomous province. Initially, the Ottoman police requested the prisoner from the Egyptian foreign minister, by way of their own (Ottoman) foreign minister. The British consul-general in Alexandria (who had custody of Callus) refused this Egyptian intermediary, stating that the prisoner would only be handed over to local authorities upon a ‘‘properly attested [direct] request from the Ottoman authorities.’’ Eventually (follow me here), Callus was transferred following an Ottoman request to the British consul in Istanbul, which was then conveyed to the British consulate in Alexandria, which then transferred the prisoner to the Egyptian police, who transferred him to the British prison in Istanbul, whence he was transferred to Turkish prison. The Egyptians could not sit at the bargaining table, but they could pass messages and of course the prisoner himself. Womens’ bodies were a key site of nationality contest. In 1902, Nafissa Hanim fled the Alexandria home of her husband, Shaikh Ahmad Sulaiman Pasha, a French prote´ge´ of Algerian origin, while he was away in Cairo. In order to compel her return, Shaikh Ahmad called on the qadis and muftis of the Islamic courts, the local police, and the French consular courts.71 In hearings before the French consular tribunal, Nafissa resisted foreign protection, arguing against French jurisdiction over her, claiming the right to exercise Muslim (rather than French) personal status. The French court agreed that this was a case of Muslim personal status. Since 1896, however, it had been the consular tribunal and not the qadi that governed the personal status of French-administered Muslims in the Levant.72 This new power was exercised according to French codification of Islamic law. In this case, the court referred to articles of its ‘‘Hanafi code’’ (both husband and wife being Hanafis), which showed that a Muslim man could indeed compel his wife to return to his home. On this basis, the French consular court upheld Shaikh Ahmad’s right to compel Nafissa to return. It remained for the court to spell out the means by which he could enforce this right. This was no trifling matter, for the French consular court often failed to see its sentences carried out. Nafissa’s husband had a fatwa from the mufti of Alexandria allowing him to use the police (‘‘la force publique’’) to force her to return. The tribunal agreed that it could not delay her return, even according to French procedure,

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because Muslim law insists that the return be immediate. Nafissa was therefore ordered to return home at once, regardless of appeal. Evidently, Nafissa did not comply; several weeks later, she attempted to have the judgment overturned because the means of its execution were not specified.73 The court again ruled against her, stating that the means were multiple, not limited, and that force was not excluded. The tribunal announced that it must take into consideration procedures used in similar circumstances in the Muslim world. Correspondence on this topic with the governor of Alexandria was added to the dossier. His expert view showed that in Egypt (and in the Muslim world in general), judgments returning wives to their conjugal homes could be executed by means of constraint and even force.74 Although Nafissa was not directly subject to this rule, under the French version of Muslim personal status law, she was subject to the norms in place in local Muslim society. The judgment was therefore confirmed. Although her determined defense shows a sort of liberal legal agency, Nafissa was ultimately unable to escape her husband’s control.75 She managed for a time to exploit cracks in the legal apparatus, but the institutions eventually succeeded in uniting and imposing their will. Some have argued that the Egyptian legal reform of the late nineteenth century was liberal in its approach to individual rights.76 Practical evidence suggests that any liberal face that the reformed justice system presented was incidental. Although expanded liberty was not a goal of the reform, it was sometimes an outcome. On a number of occasions, individuals were able to use their ‘‘rights’’ to oppose the ordained order. But universalizing legal personality, legal subjecthood, meant the end of legal pluralism in at least two senses. First, it meant the end of institutional choice for the elite, those who had the resources to forum shop. Second, it meant the end of the informal settlement option for many disputes involving nonelites. In the preceding era of the disinterested state, when communities had the power of selfregulation, many individuals chose not to involve the state in their disputes, resolving them instead (or not resolving them, as the case may be) according to any number of informal or ad hoc means. For good or ill, universal subjecthood meant the end of invisibility and the legal pluralism it offered. Through all of this time, Ottoman was the default nationality. It was not the grounds for positive rights, but rather the status of last resort. This was the case of Miss Margaret Ann Gowans, a girl living in Istanbul who lost both her birth parents (nationality unknown) and her adoptive parents

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(British). She was sent to work in Alexandria, where she was treated as an Ottoman subject, despite the best intentions of the British consulate to give her British protection.77 It was also the case for a Tunisian-born Jew named Nessim Rahmin Benrubi, who failed to register at the French consulate when he moved to Egypt. When his widow sought Tunisian French subject status in 1912, she was told by the French consular court that her husband, by failing to register with the French consulate in Egypt, had become an Ottoman subject.78 At the same time, numerous cases exist of Algerians and Tunisians receiving foreign protection even after holding Ottoman passports.79

Conclusion: The Problem with Political Citizenship The existing literature on citizenship focuses overwhelmingly on political rights, especially democratic and electoral politics. Although this focus largely corresponds to the major problematics of Western citizenship theory, it deadens analysis of legal, social, civil, and other forms of citizenship. The account I have just given of Ottoman-Egyptian nationality brackets the political—there was no democratic citizenship in Egypt—and excludes it from analysis. This move is not an idle, contrarian thought experiment. It is a corrective effort to get at citizenship as a general (and not merely Western) phenomenon. A rich literature describes the inescapable, formative power of Western rationality (especially in the form of historicism) over any study of the nonWest.80 This literature is pessimistic, in a certain sense: the hegemony is insurmountable, and in any case it is hardly practical to dismantle the whole edifice of Western thought. The task of the postcolonial scholar is instead to explore and articulate the ramifications of this bias, to assist the unsteady progress of scholarship rather than clear the ground for some new project.81 Early studies of postcolonial citizenships focused on political agency in the context of nationalist struggle, but more recent scholarship finds that political focus leaves little place for life as ordinarily lived in the postcolonial world. Postcolonial scholarship has instead emphasized the legal dimensions of citizenship.82 The focus on political citizenship impoverishes analysis of Middle Eastern citizenship in at least two ways. First, it condemns analysis of Middle East citizenship to pathologies of a body that is either immature or broken,

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for which conventional definitions of citizenship are prescriptions. Second, it sets Middle Eastern historians seeking to restore honor to the region’s past on an impossible quest for a Holy Grail of indigenous political citizenship that was destroyed by outside forces.83 (In Egypt, the interwar period is the ground where this work takes place).84 The citizenship that is (in Linda Bosniak’s words) ‘‘portrayed as the most desired of conditions, as the highest fulfillment of democratic and egalitarian aspiration’’ haunts attempts to describe the global history of imperialism.85 In their efforts to situate the Ottoman experience vis-a`-vis this ideal, for example, Ottoman historians tend to lose sight of the differentiated nature of Western citizenship itself.86 Outside the Middle East, the privileging of politics also engenders problems in any empirically informed study of citizenship. Mass nonparticipation in electoral politics in democratic Western states points to the limits of this model. Or, to take a multilevel citizenship example: European regionalism has been at its heart an economic phenomenon; its democratic counterpart is yet (if ever) to be fully realized.87 The United Nations, the World Trade Organization, and a host of other international bodies offer no political participation to the world’s citizens, despite their military and economic authority over citizens’ lives. How to cast these and other cases as anything but pathologies? Multilevel citizenship might reframe political participation as a relatively rare practice within the broader field of citizenship. It might instill skepticism about any exclusive and singular labels of national affiliation. Evidence from late Ottoman Egypt suggests that these disorienting moves can move us closer to an understanding of citizenship as it is most commonly (if not ideally) experienced.

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Chapter 6

The Su Bao Case and the Layers of Everyday Citizenship in China, 1894–1904 elizabeth dale

Near the end of the Qing Dynasty, six Chinese nationals were arrested in the International Settlement at Shanghai and charged with acts of treason against the Chinese state. Their arrest prompted an international crisis and, as a result, took almost a year to resolve. The men were arrested in July 1903, but it was not until May 1904 that a specially constituted court finally entered sentences for the two defendants, who remained on trial. For those two, the sentences were relatively light: one was sentenced to three years in prison, the other imprisoned for two.1 For all its anticlimactic end, that trial, known as the Su Bao case after , Su Bao)2 with which the defendants were associated, the newspaper ( marks the moment in Chinese history when the radicals who called for the end of dynastic governance and the creation of a democracy split from the reformers who sought the creation of a constitutional monarchy. It was also a turning point in China’s constitutional order: the diplomatic disputes over the trial, the conviction of Zhang and Zou, and Zou’s subsequent death while serving out his prison term helped publicize and popularize the cause of constitutional change. Here, I approach the case from a constitutional perspective, considering what it tells us about how citizenship is made and functions in a world of divided and overlapping sovereignties. At its most basic, my study considers how people negotiated those different sovereignties in order to create a citizenship that existed in several different layers. In asserting that people could create their own multilayered citizenship, this study follows those who argue that citizenship is not simply a

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creature of law but is enacted by ‘‘subjects through their struggles for rights.’’3 And it does so from a deliberately historical perspective: histories of constitutional orders routinely sketch the ways in which constitutional systems have had to adapt to incorporate new lands, peoples, or spaces, or otherwise engage the problems posed by intersecting sovereignties and people with multiple loyalties and affiliations.4 It is thus on the theory that close examination of the constitutional past offers a useful way to explore how people might construct a multilayered citizenship in a world of multiple sovereigns that this study looks at the Su Bao case, and it does so with the explicit purpose of adding to our understanding of how people in the present can define themselves as citizens in such a world.

Activism and Punishment The Su Bao case brought to an end a decade-long conversation about constitutional change in China by sharpening the terms of the constitutional discourse. At the same time, it marked a new beginning in China’s constitutional order by expanding the spheres of political engagement and increasing the possibilities for political action. The constitutional conversation that the case brought to a close began in 1894, when Sun Yat Sen presented a memorandum proposing some minor constitutional reforms to a local government official. That petition was ignored, and in 1895, Sun turned to more aggressive action, conspiring to stage an uprising against the local government in Canton. When his revolt failed, Sun was forced to flee to Hong Kong.5 That same year, two scholars, Kang Youwei and Liang Qichao, responded to China’s recent military defeat at the hands of Japan by presenting their own petition (signed by a number of other scholars) calling for political and constitutional reforms.6 Their modest reform proposals initially generated interest in Beijing and culminated in a series of political initiatives undertaken by the Guangxu emperor in 1898. Within a few months, a palace coup brought those efforts to an end. The emperor was removed from power and replaced by conservative forces led by the dowager empress; Kang and Liang were forced into exile, and some of their allies were captured and executed.7 Notwithstanding their early failures, Sun, Kang, and Liang became the poles around which advocates of Chinese constitutional reform organized.8 Initially, their goals were quite similar: all three sought to turn the Chinese

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emperor into a constitutional monarch. However, although Kang remained a monarchist until the end of his career, in the first years of the twentieth century, Sun and Liang began to call for the elimination of the dynasty and the creation of a popular government.9 Sun remained committed to democratic constitutionalism until his death, although over time he modified his understanding of what that meant; Liang, in contrast, shifted back and forth between advocating a constitutional monarchy and a popular government until the Revolution of 1911 toppled the dynasty and forced his hand.10 At the start of the twentieth century, when those divisions in China’s constitutional reform movements had begun to emerge, Zou Rong was a schoolboy in Sichuan. Long frustrated by the limits of traditional Chinese scholarship, Zou finally convinced his father to let him go to Japan to study in late 1901 or early 1902.11 He stayed in Japan roughly a year, until he was forced to leave the country after he led a group of students to attack a Chinese official sent to monitor the students’ political activities. That incident converted Zou from a supporter of constitutional monarchy to a radical who demanded the revolutionary overthrow of the Qing and the creation of a democratic government.12 On his return to China, Zou moved to Shanghai and settled in the city’s International Settlement, where he shared an apartment with Zhang Binglin. Zhang, who by this point was in his late thirties, was a longstanding participant in China’s constitutional movements. He had been a follower of Kang Youwei’s in 1895 and was forced to flee to Formosa, which was a Japanese colony, after the 1898 coup. During his voluntary exile, Zhang split with Kang and Liang and began to urge more radical reforms; he spent most of 1901 in Japan, where he worked with student radicals. In 1902, Zhang moved back to Shanghai, where he became one of the leaders of the anti-Manchu forces. When Zou moved to the International Settlement, he quickly allied himself with two radical enterprises with which Zhang was , patriotic study associated: an organization, the ai guo xue she ( club) and the newspaper, Su Bao. Ai guo xue she had been radical since its inception.13 In contrast, Su Bao’s views had evolved. Originally founded as a paper associated with Liang Qichao and the cause of moderate reform, in 1902, Su Bao marked its transformation to a more radical view by hiring a new editor.14 By May 1903, Zhang and Zou had added their own publications to the radical constitutional discourse eddying around Su Bao. Zhang , Refutation of wrote a letter, published as Bo Kang Youwei Shu (

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Kang Youwei), that attacked Kang Youwei’s arguments for a constitutional monarchy and described the Guangxu emperor (who was still nominally in , xiao chou).15 Zou published control of the country) as a little clown ( , The Revolutionary Army), which a longer pamphlet, Ge Ming Jun ( called for a violent popular uprising to overthrow the dynasty and replace it with a constitutional and democratic government that protected the political rights of the people. Su Bao printed Zhang’s letter and then published a second essay that he wrote to serve as the introduction to Zou’s book.16 By June 1903, the government in Beijing had had enough. It ordered the Shanghai daotai, the highest ranking official in the city, to silence Zou, Zhang, and Su Bao. Unfortunately, because Zou and Zhang and the editors of Su Bao lived and wrote in the International Settlement, they were outside the daotai’s control. When the daotai tried to persuade the settlement officials to cooperate by arresting the men, they refused. It was only after the daotai agreed that the men could be tried in the settlement, rather than by a Chinese tribunal, that agreement was reached. The settlement court issued an arrest warrant, and settlement police went to the Su Bao office, where they seized some papers and arrested four men. None of the men they took into custody were Zhang or Zou, but after the daotai confirmed that everyone arrested in the case would be tried in the settlement, both Zou and Zhang turned themselves in. They were promptly charged with seditious libel and jailed with the others who had been arrested at the Su Bao offices.17 That prompted the first in what would be a series of diplomatic and constitutional crises. The Chinese government demanded that all the Su Bao defendants, including Zou and Zhang, be turned over so they could be punished under Chinese law. Chinese officials emphasized that the men were charged with making attacks on the Chinese government and its authority and pointed to the basic principle of international law that a sovereign had the power to punish those who acted against it. Initially, reaction within the international community favored China’s claim. Representatives of the French and Russian governments quickly endorsed China’s position, and an editorial published in a French paper called on officials of the International Settlement to respect China’s sovereignty and extradite the defendants. The British and American representatives made similar arguments; only the Italian ambassador and the officials in the International Settlement took strong stands against extraditing the Su Bao defendants.18

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The settlement lacked the international heft of the other parties to the debate, but its officials made up for that by vehemently pressing their claim that the Chinese argument that the Su Bao defendants should be tried in Chinese courts was an affront to the settlement’s sovereignty. According to the North China Herald, the settlement rested its position on three claims: 1. The settlement provided its Chinese residents with the opportunity to exercise freedom of the press and engage in political criticism, which meant it had an obligation to protect their rights to do so and to punish them if they went too far. 2. The Chinese government was so corrupt that it did not deserve recognition as a sovereign nation, which meant that the principles of sovereignty cited by the Chinese government were irrelevant. 3. A recent incident involving a Chinese journalist—who had been arrested for sedition in Beijing, tortured until he confessed, and then beaten to death without a trial—demonstrated that, sovereign or not, the Chinese government was incapable of providing due process.19 Chinese officials tried to respond, repeating the claim that basic principles of Westphalian sovereignty required that other countries respect China’s legal system and its right to punish its own people.20 Those arguments failed to persuade; instead, the grisly facts of the Beijing case shifted international opinion. The British government instructed its ambassador not to let the Su Bao defendants be taken from the International Settlement, and the prime minister promised the House of Commons that the defendants would be tried in the settlement’s court. The U.S. government likewise declared that the Su Bao defendants could not be turned over to China for trial. As representatives of other foreign governments began to fall into line, the Shanghai daotai proposed a compromise: the Su Bao defendants would be tried in the settlement before a court that had one judge appointed by the viceroy in Nanjing, another appointed by the daotai, and a third appointed by the officials of the settlement. When the settlement and the various foreign governments agreed to this proposal, the Chinese government in Beijing grudgingly accepted the deal.21 The Su Bao defendants finally were brought to trial before the special court in December 1903. It was immediately apparent that most of the defendants had nothing to do with the case. Two were low-level employees of Su Bao who had neither written nor published anything seditious, and a

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third was the son of the editor of the journal; he was apparently being held hostage to pressure his father to give himself up. The fourth man had participated in an uprising in 1900, but although that suggested he was a radical, there was no evidence that he had anything to do with Su Bao.22 After a few more days of legal wrangling over the status of those four, the trial, now just a case against Zhang and Zou, finally began.23 The prosecution quickly put on evidence that the two had written the seditious material; then the two defendants took the stand. Zhang Binglin testified first and promptly denied that he had intended to publish the letter that became Bo Kang Youwei. He claimed instead that he had composed it as a private letter to Kang. When asked how a private letter came to be published, Zhang suggested that someone at the offices of Su Bao must have gone through his papers, found a rough draft of the document, and published it without asking his permission. Zou Rong’s testimony was similar. He claimed that Ge Ming Jun was a paper he had written for a class in Japan and was nothing more than a summary of some political theories he had learned. Zou also denied that he ever intended to publish his essay, and, after noting that someone had stolen some of his papers while he was in Japan, he speculated that the essay was taken during the theft and given to a printer by the thief. In contrast to Zhang, who refused to repudiate the arguments in his letter, Zou asserted that the theories in Ge Ming Jun no longer represented his political views. However, Zou’s further claim that he had become a follower of Rousseau suggested that he had not renounced the goal of creating a popular government. With that, the defense ended its presentation in the case; after the prosecution entered the two pamphlets into evidence, the trial came to an end.24 The close of the evidence prompted another round of dispute between the various governments. The next day, the Chinese judge appointed by the viceroy declared that both Zhang and Zou had committed treason. He noted that Chinese law required that anyone convicted of such a crime should be decapitated but added that the empress dowager had decided that it would be punishment enough if the two men were imprisoned for life.25 That prompted yet another lengthy delay as the various governments negotiated over the proper verdict. Finally, in May 1904, five months after the trial had ended, the court finally issued its judgment. It found both Zhang and Zou guilty of sedition. Zhang was sentenced to three years in prison and Zou to two (both sentences were to include the time the men spent in jail awaiting their trial and the verdict). The court also ordered

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that the men leave the International Settlement after their sentences were completed.26 The two went to jail, where Zou died in early April 1905, just three months before his jail term would have ended. Zhang was released in July 1906 and promptly returned to Japan, where he joined Sun Yat Sen’s radical constitutional movement.27

Constitutional Context: Layered Sovereignty Throughout the debates over the Su Bao trial, Qing officials insisted that other countries had to respect China’s status as a sovereign state. But by the late nineteenth century, China’s sovereignty had been so hopelessly compromised that this demand was easy for foreign powers to ignore. Writing twenty years after the Su Bao case was over, Sun Yat Sen characterized China as a ‘‘hypo-colony,’’ because it was under the control of multiple imperial powers; the point could have been made well before the Su Bao trial began.28 From the mid-nineteenth century on, the Western powers and Japan had used wars and a series of unequal treaties to push their way into China, claiming autonomous settlements, extraterritorial rights, and all manner of economic benefit. In practice, that meant that foreign countries had a range of powers across China. In some areas, that power was effectively absolute: Germany laid claims to parts of Shandong Province in the northeast, where it established settlements in Jinan and the port city of Qingdao; the French were granted a 99-year lease to Guangzhuwan, a port in the southeast of China, in 1898, and had control of Fujian, across from Taiwan; Hong Kong became a British colony after the First Opium War in the 1840s, and the British gained control of Weihai, a port city in Shandong, in 1898. In 1860, after the Second Opium War, Russia gained control over part of Manchuria, in far northern China. Macau, which had been occupied by the Portuguese since the 1840s, was ceded to Portugal in 1887, and Japan took control of Formosa in 1895, after the Sino-Japanese War.29 In other sections of China, various foreign powers claimed special economic powers and privileges based on a combination of treaties, informal agreements, and physical (especially military) presence. Often, these spheres of influence extended from holdings that abutted China. The French colonies in Vietnam, for example, formed the basis of a French sphere of influence in south China. Britain’s holding in Hong Kong gave it particular influence over the neighboring Yangtze valley, and Russia’s

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proximity gave that country authority in China’s north through 1905, when its defeat at the hands of Japan forced Russia to cede its Chinese claims to Japan.30 Treaties also gave foreign nationals extensive extraterritorial rights and protections throughout China.31 Extraterritoriality agreements exempted foreign companies from Chinese taxes, permitted foreign military to set up bases in Chinese territories, and authorized military officers to move freely throughout the countryside. Other agreements allowed citizens of favored foreign nations the right to move around China and, even more important, exempted them from Chinese law, allowing them to be tried according to their own nation’s laws in courts set up and administered on Chinese territory by their own nation’s representatives.32 In the midst of that crazy quilt, Shanghai was a special case. Although it was never under the control of a particular foreign country, the city started to serve as an economic center for foreign businesses and government outposts located around the Yangtze River in the middle of the nineteenth century. As early as 1843, the year the port of Shanghai was opened to foreign trade in the aftermath of the First Opium War, the Shanghai daotai agreed to lease land to English settlers. That land grant, intended to create a space reserved for English residents, became the first of several sites set apart for Shanghai’s foreign inhabitants. The United States negotiated a deal for its own settlement just north of the British settlement in 1848; France entered into an agreement to create a similar settlement, to the south of the British settlement, a year later. Under the original terms of these agreements, foreigners were not allowed to purchase property in a settlement; they could only enter into permanent leases. The agreements also provided that Chinese nationals who lived in the ceded space had to be evacuated to make way for the foreigners and created limited zones in which foreign residents could work and move in Shanghai.33 Within a little more than a decade, events and practices drastically redefined the settlements. In 1855, the Shanghai daotai reaffirmed that Chinese nationals could not acquire land or rent property in any foreign concession without the permission of the Chinese government and its foreign counterpart. But Chinese nationals had begun to return to the British Settlement well before the daotai’s declaration. That migration, originally considered a stopgap during an eighteen-month-long civil war just outside of Shanghai, became a permanent pattern after considerable debate among the settlement’s foreign residents. Many who favored permitting Chinese nationals to live permanently in the settlement did so on economic grounds: renting

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to the Chinese was a quick way to turn a significant profit. Those who objected worried that the Chinese would bring crime, disease, and the destruction of property. Profit prevailed over policing, and the Chinese were allowed to rent property and live within the British Settlement’s boundaries as long as they registered with the authorities. Significantly, that decision was set out in an agreement between England, France, and the United States; neither the daotai in Shanghai nor the government in Beijing had any role in negotiating the agreement or was asked to approve it.34 That was an all-too-frequent pattern in late Qing China, where foreign governments (or corporations) simply ignored Chinese officials as they struck deals among themselves. The result was a patchwork of layered, and often porous, sovereignties spread across Chinese territory.35 The central government in Beijing had several elements: the emperor (represented in the early twentieth century by the dowager empress) was advised by the Grand Council, the Grand Secretariat, six boards (Civil Appointments, Revenue, Rites, War, Punishment, and Public Works), and the Hanlin Academy. That government, in turn, appointed several levels of local officials. The country was divided into a number of provinces, each of which was under the control of a governor and a military commander.36 Each province included several prefectures and each prefecture several subprefectures; each subprefecture contained several counties. All those layers of government had officials assigned to them; above them, a viceroy, with his own staff, governed regions composed of several prefectures. Daotais, yet another layer of Chinese government, were assigned to trade or port cities and served a variety of different roles. In Shanghai, the daotai was subordinated to the viceroy in Nanjing and the governor of the province (whose office was in Suzhou), but he was the highest ranking Chinese official in the city.37 Although their political structures within China were far less complicated, the various foreign powers also had several layers of officials on the ground at the turn of the century. The diplomatic corps, representing the interests of their respective national governments, worked out of Beijing. Foreign consuls were assigned to various cities, such as Shanghai. The consuls served in a variety of roles. Typically, consuls represented the economic interests of their nations, but they often also acted as local agents for the diplomatic corps. In the cases of countries with rights of extraterritoriality, the consuls frequently functioned as judges for the extraterritorial courts;

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where foreign countries had established settlements within China, consuls often served as governors in these little colonies.38 By the time of the Su Bao trial, the Shanghai International Settlement was in a special, autonomous category of its own. When it was created in 1869, following the merger of the British and American Settlements, the newly renamed International Settlement was put under the control of its own governing body, the Municipal Council. In addition, the International Settlement had its own police force and a court system.39 Settlement police investigated crimes, executed warrants, and maintained the settlement jail. Officially, their job was to maintain order within the settlement, and they answered to the Municipal Council and court, but as the arrests in the Su Bao case suggest, in practice they served a variety of masters. They carried out arrests within the settlement for the Chinese government, worked in concert with the police of the French Concession and the Shanghai Police, and were sometimes assisted (and sometimes challenged) by the private police forces and militia groups that worked throughout Shanghai and other parts of China.40 The settlement’s court, known as the Mixed Court of Shanghai, was established in 1868, a year before the merger of the American and British Settlements. Initially, the court had jurisdiction to hear civil (as opposed to criminal) cases that related to issues arising in the settlement and (a) were brought by a foreign national against a Chinese national who lived or worked in the settlement or (b) were between Chinese nationals living in the settlement. In addition, the court could hear cases involving minor criminal matters that took place within the settlement’s borders; more serious criminal claims had to be referred to the Chinese courts. The court, in its earliest manifestations, had very limited jurisdiction over foreigners. It lacked the authority to hear claims against foreign nationals who were subject to extraterritoriality agreements, nor could it handle cases of any sort that involved foreign nationals who were not governed by extraterritoriality agreements, since they remained subject to Chinese law and courts.41 But the Mixed Court’s insistence that only it had the power to determine its jurisdiction allowed the court to quickly expand its powers; by the turn of the century, the court had successfully stretched its reach to cover foreign nationals who were not protected by extraterritoriality, and it heard a wide range of criminal cases involving Chinese defendants, up to and including murder.42

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The court’s expansion of its jurisdiction obviously posed a challenge to the Chinese legal system; it also put the Mixed Court into competition with other court systems established in China by the various foreign powers. Throughout the nineteenth century, there were jurisdictional disputes between the courts of the International and French Settlements. In 1902, these two settlements and Chinese government officials worked out a jurisdictional agreement to try to preempt those problems, but even after that agreement, the courts continued to fight over claims, and litigants continued to try to play the two courts off against each other.43 The Mixed Court also competed for jurisdiction with the consular courts that heard claims and charges involving foreign nationals who were subject to extraterritoriality.44 In addition, the Mixed Court found itself in an uneasy relationship with several ad hoc systems of justice in the settlement, which were run by guilds and native place societies. Those groups informally mediated disputes between their members and sometimes judged and punished member wrongdoing. At various times, the settlement and Mixed Court administered justice in concert with those ad hoc systems, sometimes because guilds referred their members to the Mixed Court for judgment, other times when the guilds or associations carried out the punishments ordered by that court. But the guilds and associations reserved the right to punish their own, and on more than a few occasions, they helped their members resist court process.45 As that suggests, a number of governmental, quasigovernmental, and extragovernmental institutions competed with the institutions of the Chinese government, weakening Chinese sovereignty without creating any single sovereign power to take its place. As a result, sovereignty in China and its environs resembled the patchwork of porous, partial, and linked sovereignties that Lauren Benton has characterized as the hallmark of the imperial age.46 As in Benton’s book, the different institutions and governments in China cooperated, competed, and sometimes ignored one another completely, creating shifting and temporary spaces of power.

Citizenship: Law and Practice To the extent that we assume a coherent, autonomous sovereign authority is a necessary precondition of citizenship, the fragmented sovereignty of turn-of-the-century China seems to deny the possibility that Chinese could

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act as citizens.47 Yet, although their claims to the rights and protections of citizenship in turn-of-the-century China were legally tenuous, the everyday experiences of Chinese constitutional activists offer a counterweight to that assumption. There is no question that the laws and practices of the Chinese government, coupled with the laws and practices of the various other governmental and quasigovernmental forces that worked within China’s borders, set limits on citizenship by establishing restrictions on Chinese nationals. Throughout the nineteenth century and into the twentieth, the very concept of Chinese citizenship was rarely regulated or defined by law, and the few laws that did exist (which typically dealt with Chinese migrants) offered restrictions, in place of protections. For most of the nineteenth century, one Chinese law declared that any Chinese national who left China and stayed away for more than three years was no longer Chinese, which made many members of China’s diaspora stateless.48 Even after that law was repealed in the mid-1890s, the legal status of the Chinese who spent time overseas remained confused. Another law passed in 1909 defined Chinese nationality as including anyone born to a Chinese father, whether in China or abroad, or anyone born in China to a Chinese mother if the nationality of the father was unknown. (Anyone born in China to a Chinese mother and father was, presumptively, Chinese under the law.)49 But that law did not explain what rights or protections a Chinese national was entitled to, and its equation of citizenship with blood put it into conflict with the laws of several countries where Chinese nationals had settled. In the United States, for example, as a matter of constitutional law, children born in the United States to Chinese parents were citizens of the United States from the moment of their birth.50 The question of Chinese citizenship was further complicated by another Chinese law that declared that the Chinese could not become citizens of another country. The intersection of these various provisions meant that the people of China’s diaspora often found themselves suspended between several different sovereign powers, a position that often meant no sovereign power recognized their rights or their existence.51 Zou’s experience as a student made it clear that even countries such as Japan that were somewhat welcoming could be quick to deport Chinese nationals perceived to pose a risk or the threat of trouble. This was particularly a problem for constitutional activists. In 1895, the British government forced Sun Yat Sen out of Hong Kong on the ground that ‘‘his presence would be dangerous to the peace and good order of the Colony.’’ Hong

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Kong was not concerned that Sun would lead a revolution within its borders; it just hoped that expelling Sun would appease China and encourage trade. In 1907, Sun was barred from French Indochina after he tried to encourage bandits along the border to take up arms against the Qing. That same year, the Qing demanded that Japan expel Sun, and the Japanese government, worried about Sun’s effect on the already radical Chinese students, did force Sun to leave.52 The ambiguities of legally fluid, ill-defined citizenship were not confined to the Chinese of the diaspora. Foreign colonies and holdings inside China’s borders were treated as foreign spaces, and that could muddy status in a variety of ways. Children born to Chinese nationals within the jurisdiction of Hong Kong, for example, could and did claim to be British.53 Nor was birth in another sovereign’s space the only way to turn Chinese nationals into citizens of other lands: foreign countries in China frequently sold citizenship to anyone who could pay. In his obituary for Zou Rong, Zhang Binglin recounted an incident in which Zou confronted a wealthy Shanghai merchant named Feng, who had arranged to buy British citizenship.54 Although Zou objected to Feng’s lack of patriotism, the ability to buy one’s way to a new identity offered opportunities as well. Chinese merchants purchased citizenship as a form of insurance (and a way of reducing their taxes), Shanghai’s international population of criminals changed citizenship to escape from the jurisdiction of consular or Chinese courts, and revolutionaries shifted their citizenship to enable them to move more freely from place to place.55 There were other ways as well around laws that restricted travel and, with it, activism. Sun gained access to the United States on at least one occasion by falsely claiming that he had been born in Hawaii. Activists and other immigrants who could speak English were able to evade Australia’s immigration controls, which were based on a language exam, and merchants, scholars, and those who could claim (even falsely) family ties could gain entry to the United States even under the Chinese Exclusion Act.56 China’s constitutional activists also benefited from the networks of China’s vast and multifaceted diaspora enabled by this hodgepodge of laws and loopholes. Unrest during the middle years of the nineteenth century, drought and famine toward its end, and increasing calls that Chinese youth be given a modern education so that they could help China deal with the modern world sent Chinese laborers to Peru, California. and Cuba; Chinese merchants to Malaysia, Hawaii, San Francisco, and Vancouver; and Chinese

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students to Japan, Europe, and the United States.57 The constitutional movements created by Kang, Liang, and Sun worked within networks inside the diaspora. Sun Yat Sen started his radical movement in the communities of Chinese merchants in Hawaii; by 1904 and 1905 he had established other ties to Chinese students in Europe and to the networks of Japanese radicals and Chinese students in Tokyo. Kang Youwei and Liang Qichao worked with Chinese merchants in Vancouver and competed with Sun for the support of Chinese laborers and merchants in San Francisco and Chinese students living abroad.58 China’s diaspora could be brought into and help fund the constitutional movements established by Liang and Sun, but it also gave Chinese activists access to spaces that were outside the immediate reach of China’s government and laws. Within those overseas spaces, China’s radicals and revolutionaries could, albeit sometimes only temporarily, publish pamphlets and journals challenging the Chinese government; join study groups that debated political, economic and social theory; and make or attend speeches that demanded constitutional reform at home.59 As a transnational space from which Chinese activists could press their demands on the Chinese government and rally others to the cause of constitutional change, the Chinese diaspora enabled China’s radicals and reformers to act as citizens. The Su Bao case suggests that China’s activists also were able to navigate China’s confusing constitutional waters in ways that allowed them to act as citizens. Inside China’s borders, they moved around and through the layers of sovereignty created by the international settlements to find spaces in which to make their arguments and reach their different audiences, exercising rights and claiming authority that China did not recognize in law. Those lessons were not lost on China’s activist citizens, who used the Su Bao prosecution as a platform for their work. No sooner had Su Bao been shut down by the authorities than radical papers began to spring up in Shanghai and other areas. Many, to be sure, did not last long, and few achieved Su Bao’s revolutionary tone. But by calling attention to China’s oppositional press, the case helped demonstrate the importance of the critical press and encouraged others to publish in China and abroad.60 China’s activists also were quick to capitalize on the attention the trial brought to the tracts by Zou and Zhang. Sun Yat Sen paid to have at least a thousand copies of Ge Ming Jun published and then arranged to have them distributed through his various overseas networks.61 Huang Xing, a student radical recently returned from study in Japan, purchased another thousand copies

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of Zou’s book and distributed it through networks of fellow students inside China.62 Radical and revolutionary bookstores, many situated in foreign settlements, sold other copies and offered opportunities to other authors of radical and reformist tracts. Finally, activists used the case itself to illustrate a number of different lessons. Radical students in Japan argued that the prosecution of the case revealed that the Qing were opposed to the people exercising their fundamental rights to freedom of thought, speech, and the press and urged people to rise up against the Qing in support of those fundamental rights. Others argued that the case revealed the weakness of the Qing and the power of fair trials to protect activists.63 In all those respects, the mere fact of the trial helped advance the activist citizens’ cause. As Peter Zarrow put it, the Su Bao case prompted one of the ‘‘first nationwide instances of full-blown anti-Qing feeling: not just simple criticism of the government, but the desire to replace the dynasty entirely.’’64 In that sense, the case allowed activists to expand the sphere of their endeavors in a very basic way, bringing the constitutional debates to a far wider audience than they had previously had. At the same time, the activists’ claims that the trial was a victory for freedoms of thought, speech, and press emboldened others to publish, purchase, and read radical materials. That expanded their audience, but it also brought more voices into the discussion, helping to build the debate and strengthen the criticism directed at the Qing.65

Conclusion The history of the Su Bao case offers several lessons. Most obviously, the trial of the Su Bao defendants revealed, and helped to expand, a space that allowed Chinese activists (and their allies) to claim rights, engage a number of sovereign and semisovereign powers, and push for constitutional reform. To do so, those activists crossed national borders to learn from other activists, to build support (financial and otherwise) for their constitutional movements, and to spread their arguments for constitutional change to a larger audience. They also moved through different layers of sovereign space within China. In that respect, the history of the Su Bao case suggests that people can express their citizenship in a world of fragmented sovereignty, across overlapping layers of transnational political spaces.

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But the Su Bao case offers two further lessons about how a transnational citizenry can engage in popular constitutionalism. These Chinese activists had several audiences and multiple goals. They wanted to spread their arguments to the Chinese people at home and abroad, to convince them that constitutional change was necessary and possible, and they also wanted their criticisms to be heard by their ultimate target, the Chinese government. However, they, like many transnational groups, had to deal with a number of other sovereign and semisovereign powers along the way. They did so, at least in part, not by treating all those sovereign powers as allies of the Chinese government but by negotiating momentary alliances with them, turning them into temporary allies, and otherwise playing them off against each other. They also (at least sometimes) let others whose voices were more readily recognized publicize their claims for them. The North China Herald was hardly a willing ally, but its stories about the trial set out the claims of the Su Bao activists in considerable detail for its Englishlanguage audience. In each of those ways, the activists were not a unitary public whose critical discourse targeted a single government. Instead, they were part of a shifting public that sometimes engaged several governments at once and sometimes allied with some governments against others. Finally, the history of the Su Bao case demonstrates that as the Chinese activists moved from space to space to escape punishment for their activism and to find places that would let them exercise their rights to speak, write, and advocate, they enabled their own citizenship and created their own constitutional order.66 At some level, of course, the idea that people can invent their own citizenship is not a particularly novel insight. That is arguably the lesson offered by the European bourgeoisie who first created the public sphere; the revolutionaries in late eighteenth-century France and the United States, whose acts embodied different manifestations of constituent power; and the residents of contemporary global cities whose practices define the nature of their citizenship.67 But looking at how the Chinese activists associated with the Su Bao case defined their citizenship through their acts helps us see how being a citizen is defined by making claims to justice—by breaking out of the habitus to ‘‘act in a way that disrupts already defined orders, practices and statuses.’’68 Thus, although constitutional scholarship often assumes that there can be no citizenship without sovereignty, the very lives of the activists in the Su Bao case call that assumption into question, demonstrating that historical subjects could act in ways that helped define their citizenship and expand

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the possibilities of citizenship for others. The activists who negotiated their way through the layers of sovereignty in China and across the constantly shifting landscape of the Chinese diaspora found spaces that allowed them to press demands on their government and encourage others to join them. Those spaces were always fluid and the opportunities within them very fragile, but for those who were willing to negotiate through them, there was space enough to challenge the Chinese government, push for change, and create ruptures in the constitutional order. In that respect, the experiences of these Chinese activists suggest that people can make themselves citizens when they act against their government and force it to respond to their demands.

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Chapter 7

The International Indigenous Rights Discourse and Its Demands for Multilevel Citizenship sheryl lightfoot

As the construction of state sovereignty has become more complex and nuanced in recent years, the coordinating concept of citizenship has also undergone significant transformation: it has increasingly been constructed in plural ways and has departed from its exclusive tie to territorially bounded, sovereign nation-states. As the international system changes to accommodate different postcolonial and transnational realities, so the concept of citizenship adapts and becomes increasingly complex. Indigenous peoples1 represent one such complexity of citizenship and, in fact, have always presented a set of challenges to the dominant narrative of territorially bounded state citizenship. First, Indigenous peoples have a prior existence as sovereign nations in many territories that later became nationstates—a historical reality reflected in the hundreds of treaties signed between Indigenous nations and Great Britain, France, the Netherlands, the United States, Canada, and New Zealand. A second complicating factor, often coupled with the first, is the transnational character of some Indigenous nations,2 such as the Ojibwe or the Haudenosaunee (or Iroquois) Confederacy, which span the U.S.-Canadian border; the Tohono O’odham nation, which traverses the U.S.-Mexican border; and the Saami people, who are located in the Arctic region of four different Scandinavian countries. For these reasons, Indigenous peoples often do not fit comfortably within the dominant nation-state model. Many states and Indigenous peoples are struggling with these complex realities, with states often reverting to either a national citizenship model

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that excludes Indigenous peoples or applying a model of uniform national citizenship that does not recognize the inherent human right Indigenous peoples have to self-determination. In recent years, an international rights discourse has emerged that, although recognizing the fundamental rights of Indigenous peoples to land; resources; self-determination; and free, prior, and informed consent, also serves as a guiding framework for Indigenousstate relations and can thus help reconcile competing state responses to the question of Indigenous peoples’ citizenship. The multilevel citizenship arrangements of Indigenous peoples in Canada and the United States may be imperfect, ambiguous, and sometimes problematic, emanating from different histories and constitutional assumptions, but they do offer the world some exemplary frameworks for Indigenous plural or multilevel citizenship arrangements that can help deal with the complicated historical realities and transnational complexities of Indigenous peoples’ citizenship. This chapter explores what multilevel citizenship means in theory and in practice for Indigenous peoples in both the international sphere and in some specific national contexts. First, I will contextualize citizenship for Indigenous peoples, discussing what it has meant historically, and how the Indigenous rights discourse on multilevel citizenship has arisen to rectify harmful and unjust historical practices. Second, I will show how the international Indigenous rights discourse calls for forms of multilevel citizenship in order to accommodate the historical and contemporary realities of states and Indigenous nations within a global framework of justice and respect for human rights. Finally, I will demonstrate how Canada and the United States, in spite of their underlying resistance to the full battery of international Indigenous rights, are, in fact, recognizing, albeit imperfectly, ambiguously, and sometimes problematically, forms of Indigenous multilevel citizenship that can serve as a starting point for a global conversation on multilevel citizenship arrangements for Indigenous peoples.

Citizenship and Indigenous Peoples Indigenous peoples around the world have experienced two dominant historical patterns related to citizenship. These patterns seem to be common whether or not (a) the colonizing state is a settler society;3 (b) the colonizing population intermarried with the Indigenous population, thus creating a ‘‘mestizo’’ dominant group;4 or (c) the tribal groups have lived alongside

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other dominant groups for centuries, as is the case in vast areas of Asia and Africa. First, Indigenous peoples experience a separation of themselves from ‘‘citizenship’’ in the state because they are deemed too primitive to handle the rights and duties of ordinary citizenship. Thus, a dichotomy is established between ‘‘Indigeneity’’ and ‘‘citizen.’’ Under this scenario, Indigenous peoples have been denied or considered ineligible for citizenship and participation in the national polity because of their status as ‘‘outsiders’’ to the national polity; their dependency status, expressed as wardship or trustee status within a nation-state; or both. This model existed in the United States and Canada prior to 1924 and 1960, respectively, the years when each country unilaterally extended state citizenship rights to Indigenous peoples within their borders, whether or not those Indigenous peoples desired such citizenship. As will be elaborated below, prior to these dates, both the United States and Canada treated Indigenous peoples first as foreigners and then as dependents. Likewise, in Australia, the Aboriginal peoples were deemed too primitive and not granted Australian citizenship until 1967. Throughout many areas of Africa and Asia today, a similar discourse continues to operate, separating ‘‘citizens’’ from ‘‘tribals.’’ Second (and related to the first historical pattern), Indigenous peoples often experience pressure to assimilate into dominant societies and take up the rights of ‘‘citizenship’’ within the nation-state. Under this model, Indigenous peoples are presumed to advance along a modernization trajectory within which they eventually reject and forfeit Indigenous values, customs, and identity, including ultimately their membership in the Indigenous community or nation, in order to join modern society as equal citizens of the nation-state. Indigenous peoples are assumed to desire this trajectory. Global examples of this second model are numerous as well. Across Africa and Asia, Indigenous peoples are typically referred to as ‘‘backwards’’ in a manner that presumes their eventual assimilation into ‘‘civilized society.’’ Likewise, throughout North and Latin America, where Indigeneity is often strongly linked to poverty and low social class, it is presumed that the impoverished ‘‘indio’’ or ‘‘Indian’’ desires to pursue economic development, upward class (and racial) mobility, and eventual entry into the ranks of the urbanized, middle-class citizenry. In North American conversations, wonderment is often expressed as to why ‘‘those poor Indians’’ don’t just leave their remote reservations, find jobs in the cities, and join American/

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Canadian society as equal citizens. In New Zealand, controversy reigns over whether under different language versions of the Treaty of Waitangi, Maori became equal subjects/citizens of the Crown or whether they maintain a separate sovereignty within the New Zealand state. Oftentimes, these two dominant impulses—exclusion and assimilation—operate simultaneously within a single nation-state, producing a confusing array of two forms of simultaneous oppression: exclusion/discrimination and pressures for assimilation within the nation-state. At the same time, Indigenous peoples have experienced a particular violation of their human rights on the international level. When the right of self-determination was constructed at the United Nations in the middle of the twentieth century, it was initially defined as meaning the right to independence as a territorially bounded, sovereign state. The associated imperative was that colonial territories were to be freed from European control and the inhabitants thereof were to gain citizenship in new or reconstructed postcolonial nation-states. A particular exclusion, however, called the Salt Water Thesis, stated that only noncontiguous colonial territories qualified for decolonization. Thus, Indigenous peoples were deliberately excluded from the right of self-determination in a highly discriminatory way and left with the dichotomous construction of citizenship previously outlined above operating in most nation-states. As Anaya wrote, ‘‘Indigenous peoples [found] themselves subject to political orders that [were] not of their making and to which they did not consent.’’5 The international Indigenous rights discourse that has emerged since the 1980s attempts to remedy all of the above situations; essentially, it calls for multilevel citizenship arrangements to balance the demand of states for protection of their sovereignty/territorial integrity with the inherent human right of Indigenous peoples to self-determination.

The International Indigenous Rights Discourse on Multilevel Citizenship Two major international human rights instruments deal with Indigenous peoples’ citizenship rights: the International Labour Organization’s Convention Number 169 (ILO 169), passed in 1989, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration), which passed the UN General Assembly in September 2007. These

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two instruments represent attempts to balance antidiscrimination with antiassimilation provisions; all are couched within a wider framework of international human rights. These instruments exist because ‘‘indigenous peoples have been denied equality, self-determination, and related human rights. It does not create for them new substantive human rights that others do not enjoy. Rather, it recognizes for them rights that they should have enjoyed all along as part of the human family, contextualizes those rights in light of their particular characteristics and circumstances, and promotes measures to remedy the rights’ historical and systematic violation.’’6 ILO 169 contains two articles that reference Indigenous peoples’ citizenship rights. Taken together, the two articles imply a multilevel citizenship expectation for Indigenous peoples within nation-states. Article 4, paragraph 3 states: ‘‘Enjoyment of the general rights of citizenship, without discrimination, shall not be prejudiced in any way by such special measures.’’ In other words, Indigenous people may not be denied ordinary state citizenship. At the same time, Article 8, paragraph 2 states that Indigenous peoples ‘‘shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights.’’ Here the ILO is communicating that Indigenous peoples retain the right to decide their internal affairs, including identity and membership issues, as long as the institutions and customs they follow do not conflict with national laws or international human rights standards. As an international treaty, ILO 169 is legally binding on the states that sign and ratify it.7 Norway, for example, a signatory to ILO 169, extends full Norwegian citizenship rights to Saami while leaving Saami membership and identity issues entirely in Saami hands. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) passed the General Assembly in 2007 with 143 states voting for it and four states voting against (Canada, the United States, Australia, and New Zealand). All of the states that voted against UNDRIP have since switched positions and have now publicly expressed support for UNDRIP, although the number and the substance of their stated qualifications and exclusions on Indigenous rights leaves their underlying commitment to Indigenous rights open to serious question.8 Although most states currently describe UNDRIP as merely ‘‘aspirational,’’ Indigenous rights norms could eventually ‘‘crystallize into customary international law once they are supported by appropriate evidence of state practice.’’9 Yet, despite the lax commitment

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by some states, and although it is not strictly binding under international law, UNDRIP does constitute the formation of ‘‘customary norms’’10 and serves as an interpretive mechanism11 for Indigenous people–state relationships based on principles of justice. In short, UNDRIP provides a guiding framework for the refounding and renegotiation of Indigenous people– state relationships based on a postcolonial model grounded in mutual respect and respect for human rights.12 UNDRIP alludes, in several of its 46 articles, to rights of multilevel citizenship within nation-states for Indigenous peoples by simultaneously recognizing both their inherent right to autonomy and their right to fully participate as equal citizens of the nation-states in which they live. First, Article 3 of the Declaration recognizes Indigenous autonomy: ‘‘Indigenous peoples have the right to self-determination. By virtue of this right they freely determine their political status.’’ This means that Indigenous peoples have the right to negotiate the level of autonomy versus integration that they wish to maintain with the surrounding nation-state. Article 4 of the Declaration also states, ‘‘Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs.’’ Finally, Article 9 states that ‘‘Indigenous peoples and individuals have the right to belong to an Indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned, without discrimination of any kind that may arise from the exercise of such a right.’’13 The ability to determine one’s own membership, or citizenship, is deemed absolutely fundamental to the right of self-determination, not just for Indigenous peoples but internationally as well. For Indigenous peoples who have lived under national governments that have presumed the right to define who is and who is not Indigenous, this right is even more central to the concept of selfdetermination.14 Another cluster of articles recognizes the right of Indigenous peoples to citizenship and participation within the nation-state. As Article 6 clearly states, ‘‘Every indigenous individual has the right to a nationality.’’ Coupled with Article 5, which states that Indigenous peoples have ‘‘the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate freely, if they so choose, in the political, economic, social and cultural life of the state,’’ Indigenous peoples’ citizenship is essentially envisioned as multilevel within the state structure.15 So, according to the international Indigenous rights

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discourse, Indigenous peoples should have full and complete access to the ordinary rights and privileges of citizenship within the state, but they also have a right to maintain autonomy, or a distinct political community if they wish, but not relinquishing their right to full and equal state citizenship. Under the principle of self-determination, such duality is not considered inconsistent for Indigenous peoples. Rather, as Anaya states, the dual aspects of autonomous governance and participatory engagement ‘‘are appropriately viewed as simultaneously distinct from, yet joined to, larger units of social and political interaction, units that may include indigenous federations, the states within which they live, and the global community itself.’’16 The Declaration thus clearly assumes that Indigenous peoples, having been previously denied the right of self-determination, will effectively recover that right ‘‘or develop it within the framework of the states in which they live, through contextually defined arrangements that accommodate diverse realities.’’17 Thus, the Indigenous rights discourse is pushing the international understanding of self-determination toward an alternative understanding that can include ‘‘diverse cultural identities and co-existing political and social orders.’’18 Ultimately, therefore, the decoupling of selfdetermination from statehood, along with a respect for autonomous Indigenous political institutions, have together led naturally to an alternative view of citizenship that is necessarily plural and multilevel.19 Such multilevel citizenship arrangements are often described and conceptualized as ‘‘government-to-government’’ or ‘‘nation-to-nation’’ relationships between Indigenous nations and nation-state governments. Indigenous political autonomy, however limited, is minimally expected to include issues of membership, or citizenship, within Indigenous nations, which are then included, to varying degrees, under the larger national polity. In reality, as the following case studies of Canada and the United States will demonstrate, Indigenous multilevel citizenship arrangements are still developing in accordance with international human rights standards, as nation-states and their governments tend to stop short of considering Indigenous nations as co-equal sovereigns. ‘‘In particular, a three-layer structure—‘triple’ or ‘triadic sovereignty’ of federal, state and tribal governments, has not been achieved.’’20 Rather, an ambiguity of citizenship remains in law and in policy practice, emanating from particular constitutional assumptions and subject to the discretion of national governments. Yet, in spite of these realities and their general reticence to fully embrace Indigenous rights, both Canada and the United States do maintain models

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of multilevel citizenship for Indigenous peoples that offer several possible frameworks for the ongoing global conversation about how to accommodate Indigenous peoples’ political autonomy and differentiated citizenship alongside nation-state citizenship.

The Gradual Development of Multilevel Citizenship for Indigenous Peoples of Canada For most of Canadian history, Indian status and citizenship have been defined and dictated by the Indian Act of 1876.21 The Indian Act, a statute enacted under Section 91 (24) of the Constitution Act of 1867, established the exclusive right of the Canadian federal government to legislate matters concerning registered Indians and Indian lands under the Minister of Indian Affairs and Northern Development. Under the Indian Act, the Canadian state is constitutionally (and exclusively) allowed to define who is a registered Indian and then determine what rights, benefits, and detriments are connected to such status. From the adoption of the Indian Act until the late twentieth century, Aboriginal people were left with a difficult dichotomy of citizenship. ‘‘On the one hand, they could maintain a devalued but meaningful Indian status and, on the other hand, they could abandon their Indigenous identities as the price for acquiring Canadian citizenship.’’22 Status as an ‘‘Indian’’ was completely antithetical to the concept of ‘‘civilization,’’ to which ‘‘citizenship,’’ meaning Canadian citizenship, adhered. The colonial Indian Act codified the reserve and band council system and defined the powers of tribal self-government, albeit very narrowly. Under the Indian Act, the Canadian government declared that Indians were wards of and dependent upon the federal government, as they were considered incapable of taking care of themselves.23 Under the original provisions of the Indian Act, both band membership and ‘‘Indian status’’ were exclusively defined by the federal government.24 Indian status could be lost in a variety of ways, including marriage to a nonstatus man (although not marriage to a non-status woman), being born out of wedlock to a nonstatus father, having a mother and paternal grandmother who were non-status by birth, and, up until 1960, gaining the franchise in various ways.25

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It was typically assumed, and enacted through this legislation, that Aboriginal people had to become ‘‘civilized’’ before they could accept the rights and responsibilities of Canadian citizenship.26 Because Indians were considered wards of the Canadian state ‘‘to the extent that an otherwise Indian person learned/decided to run her own life in a more or less whitestream manner, the law considered that she stopped being Indian.’’27 Canadian citizenship was therefore only to be acquired by giving up Indian identity and assimilating into non-Aboriginal society.28 Enfranchisement meant removing oneself from the Indian Act and giving up Indian status in order to become a Canadian citizen. The Indian Act was thus clearly an assimilationist vehicle in both cultural and political terms. Later court decisions and amendments to the Indian Act allowed Indians to become Canadian citizens without forfeiting Indian status. Beginning in 1960, Indians could gain the franchise without giving up their status.29 Also in the 1960s, the Hawthorn Survey Report, which was the first government-funded study in Canada to fundamentally alter the assimilationist assumptions of the Indian Act, introduced the notion of ‘‘citizens plus’’ for Aboriginal peoples, whereby the existence and preservation of ‘‘ongoing entitlements . . . would identify the Indian peoples as deserving possessors of an additional category of rights based on historical priority.’’30 As Denis writes, ‘‘citizens plus’’ is a status where ‘‘in addition to enjoying full Canadian citizenship, persons of Indigenous descent would also carry an Indigenous citizenship.’’31 The passage of Bill C-31 in 1985 ended many, but not all, of the discriminatory provisions of the Indian Act32 and also included a limited reinstatement of Indian status for some individuals who had lost status under the original act. In addition, it allowed individual bands to define their own membership rules for the first time. Since 1985, some bands have adopted open membership policies; others are much more restrictive. A 1992 review of 236 First Nations band membership codes revealed four main types of codes: (1) one-parent descent rules, in which a person is eligible for membership based on the membership of one parent; (2) two-parent descent rules, in which both parents must be band members; (3) blood quantum rules, which base membership eligibility on the percentage of Indian blood an individual is determined to have (typically 50 percent); and (4) membership based on the Indian Act rules.33 However, the Indian Act still defines who has Indian status, meaning that bands may recognize some individuals

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as members, or citizens, of the band even though that person does not hold Indian status under the Indian Act, and vice versa. Despite these steps, which more closely aligned Canada’s Indigenous citizenship laws and policies with the international Indigenous rights discourse, voices of general opposition to First Nations self-government and multilevel citizenship still regularly arise. As Denis writes, ‘‘The ideology of the twinned pair ‘primitive/civilized’ is far from having been abandoned, despite shallow acknowledgements of pluralism in liberal circles.’’34 Critiques of Aboriginal self-government and self-directed citizenship policies for bands tend to follow two dominant lines of argumentation. First, such citizenship policies are regarded as being racist or racially grounded. Second, such policies are then charged with being premodern (meaning, primitive) and incompatible with Canadian democracy and citizenship. Flanagan argues that one of the primary propositions on which First Nations self-government relies is the assumption of First Nations as selfgoverning political communities prior to European arrival. He disputes this proposition, however, arguing that First Nations had failed, prior to the arrival of Europeans, to achieve the level of organization and formality of ‘‘civilized societies’’35 and therefore have no grounds on which to claim self-government or multilevel citizenship because such rights are clearly grounded in modernity as expressed and experienced by Europeans. Flanagan also sees such arrangements as unfair based not only upon levels of civilization but also on racial grounds, arguing that ‘‘the attribution of privileges . . . on the basis of ancestry is anomalous in a liberal democracy because it contradicts a fundamental aspect of the rule of law.’’36 Widdowson and Howard join Flanagan in objecting to Aboriginal self-government on racial grounds, charging that it ‘‘is contrary to the modern understanding of democracy and human rights upon which countries such as Canada are based.’’37 Despite such detractors, the Canadian government continues to move in the direction of respecting and accommodating Indigenous citizenship as a plural arrangement within the Canadian federal structure. A Royal Commission on Aboriginal Issues was appointed in the early 1990s to investigate the evolution of the relationship between the government of Canada and Indigenous peoples and to propose solutions to the problems in those relationships. The official 1996 Report of the Royal Commission disputes the multiple lines of critique against multilevel citizenship in favor of a national policy that is supportive of Aboriginal self-government and

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multilevel citizenship based upon the historical nationhood of Indigenous peoples. The Royal Commission report defines Aboriginal nations as political communities with bonds of ‘‘culture and identity, not blood,’’ with a unity that stems from a shared history and identity as peoples. It acknowledges the nationhood status they held when they entered trade and military alliances with European countries and signed treaties, and it notes that they are still nations today ‘‘in their coherence, their distinctiveness and their understanding of themselves.’’ The report also states unequivocally that Aboriginal nations pose no threat to the Canadian state but rather have typically sought ‘‘coexistence, cooperation and harmony’’ as partners in the federation.38 The Canadian ministry that handles Indigenous policy, Aboriginal Affairs and Northern Development Canada, now operates under a policy that favors implementation of self-government for Aboriginal peoples under several types of instruments: treaties, land claims agreements, and self-government agreements with First Nations.39 Accommodation of plural, multilevel citizenship for Aboriginal peoples has been attained in several instances: the creation of the Inuit territory of Nunavut, for example, and through the British Columbia Treaty Process, particularly the Nisga’a treaty. Territory of Nunavut The territory of Nunavut was officially split off from the Northwest Territories on April 1, 1999, through the Nunavut Act and the Nunavut Land Claims Settlement Agreement, which was completed in 1992 and ratified by 85 percent of the voters of Nunavut. Nunavut, which means ‘‘our land’’ in the Inuit language, was one of Canada’s first experiences with multilevel Indigenous citizenship under the self-government policy. Inuit membership and Nunavut citizenship overlap and intersect in a complex manner in Nunavut that reflects one possible model of multilevel Indigenous citizenship. On the one hand, Nunavut operates with citizenship that is territorially defined and bounded. Nunavut is a clearly delineated territory, with its own legislative assembly and public government, separate from the government of other provinces and territories and subject to the federal government of Canada. Although 85 percent of the population is Inuit,40 the government of Nunavut is equally responsible and accountable to all Nunavummiut, an

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Inuit word that refers to all citizens of Nunavut, either Inuit or non-Inuit.41 However, the Legislative Assembly of Nunavut operates in the Inuit language and in accordance with Inuit customs and values, in a consensus decision-making style, and without political parties. At the same time, the Nunavut Land Claims Agreement recognizes that Inuit are best able to define for themselves who is, in fact, Inuit. As articulated under the Land Claims Agreement, an Inuit is a person who is a Canadian citizen, is Inuk as determined in accordance with Inuit customs and usages, identifies as Inuk, is associated with an Inuit community, and is entitled to enrolment on the Inuit Enrolment List.42 British Columbia Treaty Process In contrast to most of the rest of Canada, the majority of the territory of British Columbia was settled without treaties; that is, outside the legitimate transfer of ownership and title. In 1973, the Supreme Court of Canada acknowledged this fact, ruling that Aboriginal title remained intact throughout most of the territory of British Columbia. In a search for certainty of land title, the province and the federal government initiated a treaty process to settle these unresolved land claims. The Nisga’a nation was the first First Nation to complete negotiation of a modern treaty under this process, ratifying their treaty in 1999. In their treaty, the Nisga’a ‘‘negotiated and defended a form of legally and conceptually differentiated citizenship in Canada. . . . The Nisga’a First Nation struggled for recognition of their aboriginal rights, including the ability to control their membership criteria and call themselves ‘citizens of the Nisga’a Nation.’ ’’43 The Nisga’a insisted on breaking with the Canadian convention of calling an individual a ‘‘member’’ of a First Nation or a ‘‘participant’’ in a land settlement agreement in favor of identifying themselves as First Nation ‘‘citizens.’’44 In a complete break with previous practice, the Nisga’a Final Agreement refers to the Nisga’a as ‘‘citizens’’: ‘‘a citizen of the Nisga’a Nation as determined by Nisga’a law.’’45 Chapter 2 of the Final Agreement acknowledges that ‘‘Nisga’a citizens who are Canadian citizens or permanent residents of Canada continue to be entitled to all rights and benefits of other Canadian citizens or permanent residents.’’46 Nisga’a self-government and citizenship exist but are, without a doubt, subordinate to the authority of the Canadian government. In fact, as Denis writes, in order to achieve usage of the word ‘‘citizen’’ for Nisga’a, the Nisga’a negotiators ‘‘had to swallow a variety of

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non-negotiable demands from both governments (i.e., federal and provincial) that limit sharply the nature and extent of self-government and citizenship.’’47 The negotiation over the word ‘‘citizen’’ in the Nisga’a context launched a great deal of controversy. The Nisga’a who testified for use of the word argued that ‘‘citizen was the best word to signal their affiliation with the political community that is the Nisga’a Nation. They did not deny that the treaty meant that they had different rights but hastened to say that they sought a differentiated citizenship within Canada.’’48 At the same time, however, one Nisga’a negotiator added that ‘‘We wish to affirm, not deny, our existence as the Nisga’a nation, a nation that is within Canada.’’49 According to the Nisga’a Final Agreement, the powers of ‘‘citizenship’’ of the Nisga’a Nation are ultimately limited by the treaty. As a lawyer reported, ‘‘They can’t grant passports or entry into or out of Canada or create citizens or take citizenship away from anybody—Canadian citizenship. . . . But it doesn’t mean more than if we had used the word ‘member.’ . . . It’s used in a way that does not in any way imply sovereignty.’’50 In essence, Blackburn writes, the ‘‘Nisga’a have created a novel political space within Canada. . . . Their government is distinct and changes the relationship they have with the Canadian state, and Nisga’a welcome the transition from being an Indian Act band to a nation with governmental decision-making abilities that do not require oversight from the Department of Indian Affairs.’’51 In essence, what was at stake was not dual citizenship as typically conceived of in international law, as citizenship of two separate and distinct equal sovereign entities. Rather, what was being conceptualized was a multilevel citizenship arrangement in accordance with international Indigenous rights discourse understanding: recognition by Canada that the Nisga’a belonged to a unique and distinct form of self-determining political community within the sovereign territorial state of Canada. As demonstrated by changes in the Indian Act, as well as multilevel citizenship constructions in both Nunavut and the Nisga’a Nation, Canada’s move away from an ‘‘Indian’’/citizen dichotomy and toward the accommodation of multilevel citizenship arrangements for First Nations people has been very gradual. Canada’s moves reflect a slow, evolutionary transformation in constitutional arrangement, away from a purely colonial construction of Indigenous people–state relationships, toward a relationship between First Nations and the Canadian government that more closely

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resembles a nation-to-nation characterization, although its stops short of considering First Nations as in any way ‘‘sovereign’’ nations within the Canadian state.

Indigenous Multilevel Citizenship Established Early in the United States In contrast to Canada, which gradually developed multilevel Indigenous citizenship over time, the United States has operated under a dual construction of Indigenous citizenship since the 1830s, when the United States Supreme Court issued a series of rulings52 that attempted to define the nature of tribal nations’ sovereignty, as well as the citizenship status of individual Indians within the new republic. The United States started from a different set of constitutional assumptions regarding the status of tribes and the citizenship of individual Indians, yet, as with its neighbor to the north, the construction of multilevel citizenship for Native Americans in the United States has evolved over time. Unlike Canada, however, the United States has always shrouded citizenship questions for Native Americans in an atmosphere of ambivalence regarding tribal sovereignty and Indigenous rights. Ambivalence is the one staple evident throughout the history of United States federal Indian policy. On the one hand, law and policy have sometimes supported tribal sovereignty and agreements by treaty. On the other hand, the federal government has often resorted to trusteeship, assimilation, and termination in order to dispossess Native Americans of their lands and resources. Although all federally recognized tribes in the United States have always had the power to determine their own membership (citizenship), the process of becoming a federally recognized tribe is highly stringent. Tribal sovereignty is generally recognized by the federal government, but the doctrine of plenary power (read: absolute power) that Congress claims for itself over tribal nations certainly mitigates such sovereignty.53 In 1831, Chief Justice John Marshall, in his majority court opinion in Cherokee Nation v. Georgia, expressed the ambiguity of relationships between the United States and Indigenous peoples by stating that ‘‘the relation of the Indians to the United States was marked by peculiar and cardinal distinctions which exist no where else.’’54 Chief Justice Marshall coined the

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term ‘‘domestic dependent nations’’ in order to capture the ‘‘peculiar’’ status of nationhood within another state. Over the next several decades, the Supreme Court developed a set of legal doctrines to accomplish two simultaneous and seemingly conflicting goals: impose federal authority over tribes and individual Indians and at the same time create legal barriers or protection for tribes and tribal sovereignty. It thus created federal plenary power that, loosely based in the Commerce Clause of the Constitution, has allowed the federal government to claim, at its discretion, plenary (read: absolute) power over tribes and individual Indians. At the same time, however, the Court created the trust doctrine, a notion that was solidified in the U.S. v. Kagama decision of 1886, which extended guardianship or wardship status to Indians and tribes.55 As in Canada, ‘‘Indian’’ and ‘‘citizen’’ were thought, for many years, to be mutually exclusive terms. In order to acquire citizenship in the United States, which was attached to civilization, one needed to cast off Indian identity, culture, and values. A progression, including desirability, was presumed to exist between ‘‘Indian’’ on one end of the spectrum and ‘‘citizen’’ on the other. Although the United States initially presumed Indians to be citizens of ‘‘domestic dependent nations,’’ however, it gradually began to offer various pathways for ‘‘Indians’’ to progress toward becoming American ‘‘citizens.’’ From the earliest days of the republic, individual Indians could be naturalized as American citizens, although they were expected to abandon their tribal citizenship and relinquish all tribal property and rights.56 The opportunity for individuals to cast off tribal ways and take up American citizenship was often articulated in early treaties. An 1884 ruling by the U.S. Supreme Court, Elk v. Wilkins, ruled that Indians did not qualify for citizenship under the Fourteenth Amendment as citizens by birth because they were not subject to U.S. jurisdiction at the time of birth. At that time, Indians needed to be naturalized in order to become American citizens. The first major act of Congress that aimed to integrate large numbers of Indians into the American polity was the General Allotment Act of 1887. This act aimed to break up tribal lands into individual landholdings in order to bring ‘‘civilized’’ farming to the Indians. Under the General Allotment Act, every Indian born within the territorial limits of the United States and to whom an allotment was made, as well as every Indian that had left his or her tribe and taken up an independent, individual existence, was to

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be ‘‘hereby declared to be a citizen of the United States, and entitled to all of the rights, privileges, and immunities of such citizens.’’57 In 1890, Congress passed the Indian Territory Naturalization Act, which stated that Indians living in Indian Territory (what would later become the state of Oklahoma) could petition the federal court for citizenship, although unlike under the General Allotment Act, there was no requirement that they forfeit tribal citizenship.58 In the next several decades, U.S. ambivalence toward the citizenship status of Indians prevailed. In 1888, any Indian woman who married a U.S. citizen was automatically declared to be a U.S. citizen.59 In 1901, all Indians in Indian Territory (present-day Oklahoma) were declared citizens.60 In 1916, the Supreme Court ruled that Indians could be citizens of the United States without forfeiting their tribal citizenship. As Justice VanDevanter wrote in the Court’s majority opinion, ‘‘citizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians or placing them beyond the reach of Congressional regulations adapted for their protection.’’61 In 1919, Congress extended citizenship rights to all Indian veterans of World War I,62 and by 1924, it had passed the Indian Citizenship Act, which extended U.S. citizenship to all remaining Indians born within the territorial limits of the United States but not otherwise declared U.S. citizens.63 Thus, Indian tribes in the United States are best understood as separate political communities, not just minority or racial groups. They are recognized in treaty relationships, which no other minority or ethnic group has entered into or maintains. Indian tribes are also subject to the trust doctrine, meaning that the U.S. federal government has an obligation to protect them and their lands from outside encroachment. Indian tribes were specifically mentioned in the Commerce Clause of the U.S. Constitution, which states that Congress has the power ‘‘to regulate Commerce with foreign nations, and among several States, and the Indian tribes,’’ a clause the Marshall Court later interpreted as meaning that Indian tribes located within the borders of the United States were ‘‘domestic dependent nations.’’ As a result of these converging factors, an Indian tribe is typically viewed as ‘‘a distinct political entity that exercises a measure of jurisdictional power over a specific territory, . . . not a fully independent power in a pure sense.’’64 Some tribes, including Choctaw, Chickasaw, Cherokee, Seminole, Creek, and Iroquois, have consistently and repeatedly refused a multilevel

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citizenship model, arguing instead that they were preexisting sovereign nations that had never consented to the imposition of United States sovereignty and citizenship. They maintain that their treaties preserve their sovereignty as nations and often adamantly refuse to accept an imposed or assumed American citizenship.65 These tribal nations have independently applied, albeit unsuccessfully, for League of Nations and United Nations membership. Iroquois citizens have always and continue to travel internationally on their own passports and travel documents. U.S. policy, up until 2010, had been to accept the Iroquois passports as valid travel documents and allow reentry into the United States. A problem arose, however, during the summer of 2010 when the Iroquois men’s lacrosse team was unexpectedly denied United Kingdom visas and, during the associated media frenzy, the United States also balked on its acceptance of the Iroquois passports, with Secretary of State Hillary Clinton announcing that Iroquois passports would only be valid this one last time. Once the media coverage abated, however, the United States quietly returned to its previous policy practice of recognizing the Iroquois passports as valid.66 Because the U.S. Constitution and the U.S. Supreme Court have, since the earliest days of the republic, assumed some measure of internal tribal sovereignty, membership, or tribal citizenship, determinations have always been assumed to belong to each individual tribe, not to the U.S. federal government. Therefore, no single, uniform criterion for tribal enrollment exists in the United States, and the criteria for citizenship in each tribe vary substantially. Such criteria are articulated in individual tribal constitutions and ordinances. Most common are lineal descent from an original tribal roll and/or a minimum blood quantum, or percentage of Indian blood (typically 25 percent or 50 percent), along with residency, or continued contact with the tribe. Some tribes have enrollment procedures that are strictly administrative; others have deeply political processes, involving votes by the tribal membership on individual applications for enrollment. The United States Bureau of Indian Affairs does maintain genealogical records on tribal enrollments and degree of Indian blood of individuals, but the U.S. government generally recognizes the inherent and sovereign right of tribes to determine their own citizenry (membership). The government has therefore largely remained outside of tribal membership controversies within individual tribal nations. Even when highly problematic practices occur, such as mass tribal disenrollments at the Pechanga Tribe

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in California or the exclusion of the descendents of slaves and freedmen from enrollment in the Seminole and Cherokee Nations, the federal government does not intervene, viewing membership decisions as an internal tribal matter. Thus, unlike in Canada, which has been gradually evolving from a constitutional assumption of pure paternalism toward one of multilevel citizenship arrangements for First Nations people, the sovereignty of American Indian tribes in the U.S. constitution, including the right of tribal citizenship determinations, is clearly not based upon authority delegated by the federal or state governments but rather reflects an understanding of a right that is inherent and original. As in the international Indigenous rights discourse that articulates inherent human rights, American Indian tribal sovereignty is thought to emanate from original political and cultural integrity. In the United States, tribal nations are, in legal fact if not always in practice, as ‘‘a third set of sovereigns—along with the federal and state governments.’’67

Conclusion Indigenous citizenship is complex and contentious, reflecting a history of both exclusionary and assimilative impulses by states toward Indigenous peoples. Indigenous nations do not fit comfortably with the nation-state model, typically originating before the existence of the state, sometimes maintaining a treaty relationship with the state, and occasionally crossing state borders. Indigenous citizenship has therefore always served as a challenge to the notion that citizenship operates only at the national level, and it continues to question the central tenet of contemporary citizenship: that it must be based on political equality between citizens. For Indigenous peoples, such a unitary construction of citizenship is actually highly problematic, silencing the self-determination rights of preexisting sovereign, Indigenous nations and overlooking the transnational character of some Indigenous nations, effectively breaking apart Indigenous political communities with the imposition of national borders and separate national citizenships. Given historical circumstances, treaty relationships, and the right to at least internal political autonomy, negotiated plural or multilevel citizenship arrangements are often the only answer to the vexing question of Indigenous citizenship.

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For Indigenous peoples, citizenship is not a trivial matter. Individuals who hold citizenship in Indigenous nations, and Indigenous nations as collective political communities, are often entitled to certain rights at multiple levels of political authority; for example, treaty rights and certain governmental funding streams, especially for education and health care. Sometimes there are specific economic benefits at stake, as some Indigenous nations have valuable natural resources and have entered the capitalist economy in order to exploit them. For others, certain tax exclusions or residency restrictions may apply. Although states may extend national citizenship to Indigenous peoples, this is not always welcomed by Indigenous peoples, who may view themselves strictly as their own nation, with their own identity, and may strongly defend their right to a separate sovereign existence apart from any nation-state. The international Indigenous rights discourse both calls on states to respect Indigenous peoples’ political autonomy, including citizenship determinations, and provides protections for state sovereignty and territorial integrity. At the same time, it compels states to offer full citizenship rights and political participation opportunities to Indigenous peoples within their borders. UNDRIP expects states to recognize Indigenous individuals as citizens and also respect their right to be part of autonomous and self-governing Indigenous political communities. Given the primacy of the dominant model of citizenship that demarcates ‘‘citizens’’ according to national territorial sovereignty, states often find themselves pulled in many directions with regard to Indigenous citizenship and can often see Indigenous nations as a threat to their sovereignty and territorial integrity. Even for states that strongly desire to comply with Indigenous rights, the question of how to simultaneously accommodate individual state citizenship and Indigenous nations’ self-determination is a vexing one. In spite of their lack of adherence to the full battery of Indigenous rights as articulated in UNDRIP, the various Indigenous multilevel citizenship arrangements in Canada and the United States, arrived at through different historical trajectories and constitutional assumptions, demonstrate a multiplicity of options for plural and multilevel Indigenous citizenship that is largely, although not completely, compliant with the expectations of UNDRIP and does not disrupt the sovereignty or territorial integrity of those states. The international Indigenous rights discourse has arisen to address, among many issues that Indigenous peoples face around the world, the ambiguity and unresolved tensions between the right of Indigenous

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nations to determine their own citizenship and the right of national governments to ensure the equality of all their citizens. Multilevel citizenship models, like the ones utilized and recognized by Canada and the United States, illustrate how various multilevel citizenship arrangements for Indigenous peoples can evolve, be negotiated, and function in practice in ways that align with the emerging international Indigenous rights discourse.

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PART III Local, Multinational, and Postnational

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Chapter 8

Local Citizenship Politics in Switzerland: Between National Justice and Municipal Particularities marc helbling

Introduction Although the nation-state is commonly regarded as a crucial actor and the most relevant level when it comes to citizenship politics, related policies are often executed or even shaped at the regional and the local levels. As a consequence, policies can vary from region to region or from town to town within the very same nation-state. Switzerland constitutes the most extreme case when it comes to local-level variations in citizenship policies. In this country, every municipality—be it a city of 100,000 inhabitants or a village of 400—has the right to decide its own criteria for naturalizing foreigners. As a result, we observe a large range of different naturalization policies— from the very generous to the very restrictive—between regions, cities, and even villages. As regulations on the national and cantonal (subnational) levels are very sparse, each local political entity decides the formal procedures and criteria by which its alien residents are naturalized. Given the high degree of autonomy possessed by municipalities in this area, the naturalization procedures, the applied criteria, and consequently the ratio of rejected candidates vary greatly from one municipality to another. This chapter explores local naturalization politics in an effort to explain why in some municipalities more candidates for naturalization are rejected than in others. I advance three political and cultural factors to clarify why

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some municipalities pursue a more restrictive naturalization policy than others. Given the high degree of Swiss federalism and the autonomy of local units in citizenship matters, I expected to find different understandings of citizenship; that is, diverging ideas of what it means to become a Swiss citizen. Although such ideological aspects certainly play a crucial role, I also investigated the contentious and political nature of citizenship politics, which led to a focus on the political actors in these municipalities and how influential they are in local politics. The results of this investigation appear to show that municipalities in which the Swiss People’s Party—a major right-wing populist party—is powerful reject more applicants than others. Finally, I tested whether or not direct democratic decision-making procedures led to more rejections. My results demonstrate that such procedures provide an opportunity for right-wing populist parties to mobilize the people. Moreover, the rule of anonymity favors discriminatory decisions, as social control and external checks are absent to inhibit selfish behavior. Besides exploring municipal naturalization politics in Switzerland, a second aim of this chapter is to discuss local citizenship politics more generally. Diverging applications of citizenship laws and understandings of nationhood are not found only in Switzerland. In fact, naturalization politics in many nation-states, as is the case in many policy fields, are decentralized to a certain extent. Especially in federal states such as Germany, but also in centralized states such as France, we can observe diverging applications of national regulations. Discussing a large variety of cases permits us to abolish the idea of homogeneous nation-states and demonstrate that citizenship can take different forms and meanings within a nation-state. This discussion leads us to the general question regarding whether or not citizenship policies should be decentralized. The advantage of a decentralized system is that regulations and laws can be implemented by accounting for regional or local specificities. Moreover, local political actors and administrative officials are closer to those people who seek to be naturalized or need to be integrated; they may also be better equipped to evaluate the applications. However, it remains questionable whether or not foreigners should be treated differently within the same nation-state. In the next section, I present in more detail how foreigners are naturalized at the local level in Switzerland. In order to explain local naturalization politics, I then discuss various studies that have explored local and regional naturalization and immigrant politics in different European countries and the United States. Most of these works conclude that political and cultural

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factors largely help us understand the various policy outcomes. On the basis of this general idea, I present in more detail my three arguments and explore to what extent they help explain the local naturalization policies. In the concluding section, I address the normative questions that need to be raised in the context of internal variance of citizenship politics. Naturalization Procedures in Swiss Municipalities A Swiss is not only a citizen of his or her country but also of a canton (subnational state) and of a municipality. Accordingly, a foreign resident applying for citizenship gets naturalized at all three of these levels. The sequence of decision making with regard to naturalizations between the three political levels differs from canton to canton. However, in each case the procedure on the local level constitutes the crucial part of the process. Whereas the decisions of the Confederation and the cantons are made using rather formal and administrative procedures on the basis of very few but clearly specified criteria, the municipalities make mainly political decisions. The federal law concerning citizenship merely stipulates that only those foreign residents can be naturalized who have lived in Switzerland for at least twelve years, respect the legal order, do not compromise the interior and exterior safety of the country, and are integrated and familiar with Swiss habits and customs. The first three criteria are quite clear, easy to verify, and are always checked by the federal administration. As for the questions of integration and familiarity, not only do they constitute vague requirements, but they also are judged exclusively by local actors. Which local actors are involved in the decision-making processes? The local administration is in most cases in contact with applicants during the entire naturalization procedure. They inform applicants about the formal aspects of the process and check whether certain criteria for naturalization are fulfilled. Often they also discuss with candidates whether they have any chance of getting a Swiss passport and make recommendations to the political bodies (the local parliament or naturalization commission, for example) involved in the process. In almost all municipalities, a naturalization commission composed of local politicians discusses the dossiers in detail and makes recommendations to those who make the final decisions. Sometimes dossiers are circulated several times between the various collective bodies involved in the decision-making processes. It might also happen that the local parliament or the executive body makes recommendations before

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the final decisions are made. Final decisions are made in some municipalities by the entire population, either by ballot or during a municipal assembly. In other municipalities, it is the local parliament or the executive body which decides who can become a Swiss citizen. The candidates often have to pass a kind of exam or interrogation to verify that they are familiar enough with the Swiss political system, Swiss history, and the language of the particular region. There exists a wide range of different naturalization policies, from very generous to very restrictive. In some municipalities, a complete integration of the naturalization candidates is presumed after twelve years of residence in Switzerland. In other municipalities, applicants have to prove their degree of integration by passing tests or by showing how well they are acquainted with the Swiss citizens of their municipality. However, it would be too simplistic to range the municipalities exclusively along such a scale, because naturalization procedures also differ with regard to the issues that mold the respective debates. In some cases, language ability constitutes the crucial element of the contest. It may happen that some actors in a specific municipality require that the applicants speak Swiss German, whereas for others it suffices that an applicant has a good command of any of the four national languages. In still other municipalities, the question of whether applicants can be naturalized if they are benefiting from social security or disability insurance is at the center of debates. The local administration and decision makers decide whether and to what extent candidates have to pass such tests or interrogations. The criteria can therefore differ among municipalities even within the same canton. Formal regulations at the local level are rare, and when they exist, the criteria that have to be fulfilled are formulated in a very general way. Decisions depend therefore even more on the interpretations of municipal politicians or the opinions of the local population. Moreover, it appears that various actors are involved in municipal naturalizations and that the evaluation of the candidates’ dossiers occurs at different stages. Naturalizations can therefore be compared to decision-making processes in other political fields in which political actors have to come to an agreement as to which policy must be pursued.

Local Citizenship Politics in Europe Let us now turn to the question of how to explain diverging local citizenship policies. To this end, let us first look at studies that have explored local

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citizenship politics in other European countries. Diverging applications of citizenship laws and understandings of nationhood are not found only in Switzerland. With regard to the implementation of naturalization laws, the one case that probably comes closest to the Swiss system is Germany, where the citizenship law is regulated at the national level but executed by the La¨nder (subnational states).1 The La¨nder organize the naturalization procedure and decide who fulfills the criteria for being naturalized and who does not. A crucial difference between Switzerland and Germany, however, is that in Germany an administrative body decides on applications. This does not negate the possibility that different standards may be applied: various studies have shown that naturalization rates and citizenship politics differ significantly between La¨nder.2 The varying applications of federal citizenship laws in Germany are often explained by the political orientation of the regional governments and the attitudes of the authorities that are involved in the decision-making process. Hagedorn, for example, observed changes in naturalization policies when the political majority of a Land switched from right to left or vice versa.3 More interestingly, she has shown that the number of naturalized foreigners depends on the attitudes of the representatives of the regional administrations.4 Thra¨nhardt has even revealed that in one Land, differences exist at the local level between different naturalization offices, depending on the resources of the particular authorities and how they control the documents of the applicants.5 Dornis explored how language tests and the verification of the candidates’ documents vary among the La¨nder and discovered that individual officers regularly encourage applicants to withdraw their application if the officers have the impression that they have little chance of being naturalized.6 Hagedorn reports that it sometimes happens that the authorities protract the procedures on purpose when they consider the regulations too generous for certain candidates.7 In other countries, divergent practices of citizenship can be observed, too. Waldrauch and Cinar and Cinar and Waldrauch present diverging implementation policies and integration requirements at the regional level in Austria.8 They explain regional differences with the indeterminacy of the integration requirements. Some provinces require that applicants adapt to the ‘‘Austrian way of life,’’ be active in local associations, and have a high level of language proficiency; other provinces are much more liberal. There are also differences concerning the fees for acquisition of Austrian nationality. North examined the administrative structure of the American

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naturalization program and came to the conclusion that the formal procedures and the approaches of the examiners vary a great deal among district offices.9 There are differences with regard to how language tests are evaluated and how and when people are persuaded to withdraw their dossiers when they seem not to be qualified for naturalization. North demonstrated that rejection rates vary between zero and 11.5 percent.10 Differing implementations of the naturalization laws can even be observed in highly centralized states such as France. Weil observed applications that clearly contradict the voluntaristic citizenship model with which France is often associated.11 In some regional offices, candidates are even manifestly dissuaded from applying for French citizenship. Costa-Lascoux reports that the assimilation of candidates is tested very differently from one regional office to the other,12 and Hagedorn found that candidates are often refused for lack of assimilation.13 Because the degree of assimilation is exclusively judged by regional officers, arbitrary decisions cannot be excluded.14 Variations in the national consciousness can be observed not only in the context of naturalizations but also, more generally, when we analyze local integration politics and how municipalities manage ethnic diversity (see, for example, Kinney and Cohen in this volume [Chapter 4] on the U.S. case). It is often argued that cities have always been more closely confronted by problems related to migration than nation-states and thus constitute more interesting cases to analyze.15 In those studies, it is argued that the local political structures shape the ways migrants are integrated. Although an influence of the national citizenship regime on local politics can sometimes be detected,16 various empirical studies have demonstrated that forms of local integration and citizenship policies cannot be explained (at least not exclusively) by their embedment in a national system. The essays collected in Penninx et al. demonstrate that in various countries, local politics regarding immigrants varies a great deal and that this heterogeneity is mainly attributable to differences between local political systems and prevailing citizenship paradigms.17 Ireland, Koopmans, and Bousetta demonstrate that local integration regimes and citizenship frameworks have an impact on the way and on the degree to which immigrants participate in political debates.18 Garbaye has explored how two cities in France and Great Britain manage ethnic diversity and identifies three elements that explain the different approaches: the relations between central and local governments, the organization of political party systems, and the organization of local government.19 It is particularly interesting to observe that even

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in a country such as France, cities make different uses of their existing discretionary power to integrate foreigners.20

How to Explain Municipal Naturalization Politics in Switzerland Studying naturalization and migration politics at the regional or local level permits us to abolish the idea of homogeneous nation-states and to demonstrate that citizenship can take different forms and meanings within a nation-state. All of the aforementioned studies partly explain differences in naturalization or migration politics by the different attitudes of the regional authorities and politicians concerning the question of who has the right to become a citizen of their country. The fact that different citizenship or migration policies are pursued within a country suggests that these policies cannot simply be explained by national citizenship models. Rather, we must explore how these models are applied and how this implementation depends on local understandings of citizenship and political constellations. In other words, it is cultural and political factors that explain diverging citizenship policies—how the people perceive Swiss citizenship and how they struggle over the question of who can be admitted for naturalization. To specify this idea, I have developed three arguments.21 The first argument draws on Brubaker and Favell, who argue that it is cultural idioms and political traditions that explain the respective citizenship policies.22 Brubaker’s comparison of citizenship politics in Germany and France is probably the most prominent study adopting this approach.23 According to him, differences in citizenship politics and immigrants’ attitudes toward naturalization are due to the facts that France represents a republican, expansive, and assimilationist model of citizenship and Germany defines citizenry as a community of descent that is very restrictive toward non-German immigrants. Similarly, Favell explains the divergent responses to ethnic and racial groups in France and Britain in terms of each nation’s public philosophy and political tradition.24 According to him, France’s republican tradition favors a policy of integration rather than accommodation and consequently opposes separate Islamic institutions because this arrangement would violate the state’s ideological commitment to integrating individual outsiders into the French political culture. On the other hand, in Britain, more emphasis is placed on allowing separate groups

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to retain their distinctive identities. As a consequence, Islamic groups and the development of independent Muslim communities are recognized through public policy. To be sure, Swiss municipalities are not nations. Still, different understandings of what it means to be part of the Swiss nation may nonetheless prevail at the local level. As it is hardly possible to distinguish clear citizenship models as Brubaker and Favell have proposed them, I prefer a continuous scale, which demonstrates how restrictive or exclusive the understanding of citizenship is in a municipality. At one end of the scale, we find those municipalities with a very liberal understanding of citizenship; at the other end, we can place those municipalities with very hostile attitudes toward immigrants (allowing for several options between the extremes). To measure cultural idioms and public philosophies, Brubaker and Favell rely on official discourses, political decisions, and other resources.25 I had to resort to alternative sources, because written documents hardly exist. To find out how restrictive the understanding of citizenship is in a municipality, I base my analysis on municipal results of national referenda on aliens’ acts, immigration, and facilitated naturalization between 1982 and 2002.26 These referenda provide information on the attitudes of the respective municipal Swiss populations toward alien residents and on the significance of their national identity. If, in a municipality, laws on facilitated naturalization are rejected and laws limiting immigration are approved, this indicates that the majority of Swiss citizens have a restrictive understanding of citizenship.27 Although ideological perspectives have a high impact on how foreigners are naturalized, we also have to remember the contentious and political nature of citizenship: the outcome of a specific naturalization policy is the result of ongoing political struggles over the questions of who we are and who belongs to us. Following Howard and Janoski, we need to account for the actual politics of citizenship—we need to know which political actors participate in citizenship politics and what their ideas are about the Swiss nation.28 Joppke has argued that left-wing parties favor liberalization and de-ethnicization of citizenship politics, whereas right-wing governments prefer a more restrictive policy and a re-ethnicization of citizenship politics.29 I assume that citizenship politics depends to a large extent on rightwing populists and their influence in naturalization politics.30 Immigration politics has become one of the main issues of these parties in several European countries. In Switzerland, the Swiss People’s Party—a major

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right-wing populist party—is the most active political actor in this area and defends very pronounced positions. Its representatives fear mass naturalizations and incessantly warn of the depreciation of Swiss culture that will take place if too many people are granted Swiss citizenship. Given the distinct political structures at the local level, it is hardly astonishing that municipalities can also be distinguished by their party systems. Most municipalities have their own sections of cantonal and national parties. Thus, local political parties constitute crucial actors in municipal politics. I argue that local naturalization politics depends to a large extent on the position of the local Swiss People’s Party. If this party plays an important role in local politics, a higher rejection rate can be expected. For my analysis, I had only information on the power of the local parties in municipal politics in general, not for naturalizations in particular.31 This is a rather crude indicator, because the power structure within a municipality runs only partly along party lines. However, it is the most valid indicator available for a large-N analysis. This indicator relies on the perception of the strength of the respective parties. The municipal secretaries were asked to indicate how important each political party is.32 Ladner has shown that evaluations of municipal secretaries are congruent with the real power distribution.33 This is better than accounting for the seats of the different parties in the local parliament or the executive body, because the number of received votes does not necessarily reflect the power of these parties. Particularly in small towns and villages, the position of individual actors is often more important than the size of the party. A last relevant factor in naturalization politics is the formal decisionmaking structures. They are important insofar as they provide different opportunity structures facilitating or inhibiting mobilizations against naturalization or the activation of discriminatory attitudes.34 Recent political and judicial debates in the context of local naturalization have mainly focused on those procedures in which the population makes the final decision on naturalization requests by ballot or during a municipal assembly. Such procedures enable discriminatory decisions because people do not have to account for their decisions. Direct democratic institutions provide a particular opportunity for right-wing populists to mobilize the people for their cause; anonymous decisions favor discriminatory decisions, as social control and external checks are absent to inhibit selfish behavior. Guiraudon puts forward a challenging argument concerning the mobilization hypothesis, arguing that it is the scope and locus of political debate that is

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relevant for policy outcomes.35 It makes a difference whether immigration and citizenship policies are the object of intense political mobilization and public debates or the status of foreigners is discussed mainly within the bureaucracy. Whether these issues are debated in open or closed political arenas changes the actors and processes involved. In the case of immigration and citizenship, public debates are greatly influenced by actors pursuing a restrictive immigration and citizenship policy. Marginal actors, such as extreme-right parties, who have otherwise no channels of access to restricted policy venues get the opportunity to put forward their positions. The most famous case of local naturalization politics in Switzerland provides an excellent example in this regard. In the town of Emmen, on the outskirts of Lucerne, the municipal parliament decided naturalization applications until 1999, when the majority of the population voted in favor of a referendum—launched by the Swiss Democrats, a minor right-wing party—requiring that henceforth decisions be made by secret ballot. This change of procedure generated a lot of media attention and public debates in Switzerland and a great deal of astonishment beyond the Swiss borders, because after the change, the population of this town regularly made discriminatory decisions, refusing most or all candidates from Muslim countries. It seems that the absence of social control enhances discriminatory decisions when decisions are made anonymously. Of course, social control only has an impact if the person is motivated to comply with the referents in question. Moreover, intentions are not only controlled but can also be reinforced if other people share the same attitudes. In municipalities with a traditionally rather restrictive naturalization policy, it is certainly much easier to publicly maintain discriminatory arguments against certain groups of foreigners. It might, however, be assumed that the basic principles of liberal democracy, such as equality of treatment, constitute important arguments in most local debates on naturalization. Such normative and moral principles are not only difficult to counteract, they also themselves constitute social control mechanisms or external checks that avoid blind, selfish, and short-sighted behavior and enhance reasonable and nonregrettable outcomes.36 In my analysis, I distinguished municipalities in which the entire population decides in a secret ballot from those in which decisions are made during municipal assemblies. Although both systems constitute direct

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democratic institutions, we will see whether it makes a difference when decisions are made in complete anonymity by secret ballot or when people must vote publicly during municipal assemblies.37 Besides the three explanatory factors—local understanding of citizenship, the influence of political parties, and formal decision-making structures—I control for a series of other variables. Various researchers have argued that the interrelationship between citizens of a country and its immigrants can be explained by economic and sociostructural factors. Olzak argues that economic competition between ethnic groups leads to conflict.38 Competition for a share is the result of sociostructural changes undermining traditional local identities and opening the opportunity for ethnic identities. She enumerates four processes that influence competition and ethnic conflicts: a large number of immigrations, economic crisis, government augmenting the resources of the ethnic groups, and organizational structures (political parties and social movements). Quillian argues that prejudice is not necessarily linked to the individual interests of group members but is rather the result of a feeling that their prerogatives are threatened by the subordinate group.39 This feeling of threat is largely influenced, according to Quillian, by both the relative size of the subordinate group and the economic circumstances of the dominant group.40 To test these arguments, I examined unemployment rates, ratios of foreigners living in a municipality, and percentages of applicants from Muslim countries. This last factor is of particular importance, as this group is the largest immigration and naturalization group in Switzerland.41 Finally, I tested whether the location of the municipality has an impact on naturalization politics. It might be argued that large and urban municipalities pursue a more liberal policy. Moreover, it is often put forward that the population of the French-speaking part of Switzerland has a different relationship with its nation and with its foreigners than that of the population of the German speaking part, both being inspired by the French and German understandings of nationhood, respectively. The often-invoked trench between these two language regions when it comes to questions about the political opening toward Europe could also be relevant in citizenship politics. Consequently, it might be expected that municipalities in the French part of Switzerland would be inspired by the French republican citizenship model and thus pursue a more generous naturalization policy than Swiss German municipalities influenced by the German jus sanguinis principle.42

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The Impact of Cultural and Political Factors To explore why some municipalities pursue a more restrictive naturalization policy, I analyzed the local naturalization policy by means of the average rejection rates between 1990 and 2002; that is, the ratio between rejected and submitted applications. Particularly, I wanted to determine whether local rejection rates could be explained by cultural and political or by socioeconomic and sociostructural factors. Since I lacked data for the relative power of political parties for a considerable number of cases, I retained only the variable for the influence of the Swiss People’s Party (SVP) for the regression analysis in Table 8.1. More detailed analyses have shown that other political parties have no significant influence on the rejection rate. As I possessed information on the strength of the SVP for only a restricted number of municipalities, I had to make sure that both the full and the restricted samples were part of the same population. Thus, I ran the regression analysis for both samples (see Models 1 and 2). Because it might be assumed that the power of the SVP has an influence on the local understanding of citizenship and on formal decision-making procedures, that variable has been included separately in Model 3. The individual coefficients changed only slightly between the three models; therefore, it can be presumed that both groups are from the same population and that the strength of the SVP has no significant impact on other variables. The results in Table 8.1 confirmed my hypotheses and did not confirm competing explanation models: it appears that the perception of the unemployment rate, the percentage of foreigners living in a municipality, the percentage of applicants from Muslim countries, the language region, and the size and the urbanity of a municipality have no direct influence on the naturalization policy. Rather, political and cultural elements help us predict the outcome of naturalization policies: in municipalities with a restrictive understanding of citizenship among the population, more applications are rejected. Moreover, I have shown that we must account for the dominant actors and their attitudes: municipalities in which the SVP was an influential force in local politics refused Swiss citizenship to more persons. The rejection rate increases immensely when the entire population makes decisions by ballot, which confirms the commonly held opinion that direct democratic decisions lead to a more restrictive naturalization policy. However, I observed no significant increase of rejected candidates in

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22.7*** 3.0 3.5** — 0.0 0.1 2.4 2.9 3.7 0.0 2.5 0.43 95

Model 1 (4.3) (2.4) (1.2) — (2.1) (0.1) (4.2) (2.4) (2.5) (0.0) (4.7)

25.7*** 2.3 4.5*** — 0.1 0.0 1.2 2.8 0.4 0.0 6.5 0.48 75

Model 2 (4.5) (2.8) (1.3) — (2.3) (0.1) (4.6) (2.8) (2.7) (0.0) (5.0)

28.3*** 2.6 4.7*** 5.9** 0.3 0.0 0.2 1.1 0.9 0.0 1.6 0.53 75

Model 3 (4.4) (2.6) (1.2) (2.1) (2.2) (0.1) (4.4) (3.0) (2.9) (0.0) (5.6)

p ⬍ 0.01. *** p ⬍ 0.001.

Note: ** Only municipalities have been retained in which at least ten applications were submitted between 1990 and 2002. I lost some cases in Model 1 because data for one or several independent variables were missing (listwise deletion).

Popular votes at ballot Municipal assembly Understanding of citizenship Influence of the SVP Unemployment rate Percentage of foreign residents Percentage of Muslim candidates Language region Rural area Number of inhabitants Constant R2 (adj.) N

Independent Variables

Table 8.1. Rejection Rates of All Applications: Nonstandardized Regression Coefficients (standard error in parentheses)

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municipalities in which the population decides in municipal assemblies. This can be explained by the fact that in municipalities with votes by ballot, individual decisions are made in complete anonymity, whereas in municipal assemblies, the show of hands is exposed to other citizens. But what about those assemblies at which decisions are made by secret ballot? With the data used in this survey, I am unfortunately unable to distinguish such cases and to systematically investigate this aspect. However, by means of a more detailed analysis of 14 case studies, I was able to distinguish such cases and to determine that municipalities with assemblies at which decisions are made by secret ballot also reject significantly more candidates.43 Many incidents and controversies in the context of local naturalizations refer to a particular group of people, namely the increasing number of immigrants from the countries of the former Yugoslavia and Turkey. A look at the data from my survey shows that 36 percent of all applications in Swiss municipalities between 1990 and 2002 were submitted by people from those countries. When it comes to the number of rejected dossiers, the percentage of these people rises to 56 percent. This makes it clear that the majority of rejections concerns candidates from Muslim countries. Thus, I needed to test whether or not the models in Table 8.1 explain the rejection rates of applicants from Muslim countries. The results of this test are presented in Table 8.2. This table makes it clear that my explanatory model predicted the number of rejected applicants from Muslim countries even better than the general rejection rate. The explained variance rises to 65 percent in Model 3. Looking at the individual coefficients, you can see that the value of the indicator for popular votes at ballot increases strongly, although it is already relatively high in Table 8.1. The coefficients of the other explanatory factors—the understanding of citizenship and the influence of the SVP—do not change a lot. This reveals that candidates from Muslim countries face a particularly hostile naturalization procedure in municipalities where the entire population decides on such requests. Popular votes not only produce a restrictive naturalization policy but are also the cause of discriminatory decisions against candidates from the former Yugoslavia and Turkey. It is of particular interest that the number of Muslim candidates has no significant impact on the rejection rates of this group. This finding reveals that it is not the mere presence but rather the perception that the local population has of this group of immigrants that explains the high number of rejections.

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44.2*** 3.5 2.4 — 0.2 0.1 7.8 1.6 2.6 0.0 0.0 0.49 95

Model 1 (5.9) (3.3) (1.7) — (2.8) (0.2) (5.7) (3.3) (3.4) (0.0) (6.3)

52.0*** 1.4 4.0* — 1.0 0.0 6.8 0.3 1.8 0.0 4.7 0.63 75

Model 2 (5.6) (3.4) (1.6) — (2.8) (0.2) (5.7) (3.5) (3.4) (0.0) (6.2)

54.5*** 1.6 4.1* 5.5* 1.3 0.0 5.8 3.4 1.3 0.0 2.9 0.65 75

Model 3 (5.6) (3.3) (1.6) (2.7) (2.8) (0.2) (5.6) (3.8) (3.3) (0.0) (7.1)

p ⬍ 0.05. ** p ⬍ 0.01. *** p ⬍ 0.001.

Note: * Only municipalities have been retained in which at least ten applications have been submitted between 1990 and 2002. I lost some cases in Model 1 because data for one or several independent variables were missing (listwise deletion).

Popular votes at ballot Municipal assembly Understanding of citizenship Influence of the SVP Unemployment rate Percentage of foreign residents Percentage of Muslim candidates Language region Rural area Number of inhabitants Constant R2 (adj.) N

Independent Variables

Table 8.2. Rejection Rates of Candidates from Muslim Countries: Nonstandardized Regression Coefficients (standard error in parentheses)

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Enforcing National Justice or Allowing Local Particularities? In Switzerland, but also in other countries, it is the formal procedure and the composition of local political actors involved in the decision-making process that tells us what policy is pursued. Accordingly, and unlike all other European countries, Swiss discussions about naturalization focus less on the question of what criteria must be fulfilled and more on the appropriate decision-making procedure and whether or not the population should decide on applications. In the last few years, the Swiss system of naturalization has led to a lot of political and judicial debates, especially after discriminatory decisions were made in some municipalities and applicants from the former Yugoslavia were regularly refused Swiss citizenship. Opponents of the existing system criticize the arbitrariness of municipal decision-making processes that expose applicants to the attitudes of the local population and politicians. In July 2003, the Swiss Federal Court ruled that popular votes by ballot on naturalization requests violate the Swiss Constitution. In May 2004, it further declared that decisions during municipal assemblies must be made by open ballot. Because the Swiss Federal Court regards naturalization as a purely administrative procedure, it has declared that justifications for the decisions and possibilities for appeals against such decisions on this subject must be provided. These two rights, according to the Swiss Federal Court, are not guaranteed by the system of votes by secret ballot. After these verdicts from the Federal Court, municipalities in which naturalization status was decided by secret ballot abolished or suspended this procedure. In a national referendum on June 1, 2008, the Swiss population rejected the idea that each municipality should have the right to decide naturalization procedures, thus indirectly supporting the decisions of the Federal Court. Advocates of the Swiss People’s Party who launched this referendum object that the verdicts by the Swiss Federal Court violate the autonomy of the municipalities and the democratic rights of Swiss citizens. They argue that the sovereign body (meaning the people) should be accorded the right to decide who fulfills the criteria to be a member of their community. A shift of decision-making power from the people to the public authorities or the executive body constitutes for them an offence against popular sovereignty. Representatives of the Swiss People’s Party argue that Swiss citizens should be accorded the right to decide on naturalization, as this decision concerns the crucial question of who becomes a member of their national

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community. As such decisions are virtually irreversible, their argument runs, a large part of the population should be involved in the decisionmaking process. The referendum was rejected by almost two-thirds of the Swiss population and found a majority in one canton only. Since then, the debate on naturalization policies has calmed down, as a large majority of all direct democratic municipalities has switched to representative democracy over the last few years. However, discriminatory decisions in municipalities where the local assemblies decide on naturalization applications still sometimes spark controversies. This debate leads us to a general question regarding whether or not citizenship policies should be decentralized. The advantage of a decentralized system is that regulations and laws can be implemented by accounting for regional or local specificities. Moreover, local political actors and administrative officials are closer to those people who seek to be naturalized or need to be integrated; they may also be better equipped to evaluate the applications. However, it remains questionable whether the same foreigners should be treated differently within a single nation-state. Following Kinney and Cohen (Chapter 4 in this volume), one could ask to what extent the unequal treatment of immigrants is unjust. The crucial issue here is, What is the most relevant level at which a foreigner legally becomes a member of Swiss society? In processes of naturalization, is a foreigner first and foremost becoming a member of a local community or a member of a nation-state? Even if we agree that a foreign resident is becoming a national citizen and that criteria for naturalization must thus be regulated at the national level, variations in implementation practices can hardly be avoided. The example of France, where naturalization policies are not decentralized, has shown this. Administrative bodies themselves have different interpretations of national laws. I argue, therefore, that variations are not a problem as long as decision-making processes follow certain standardized procedures. Most critics of the current system in Switzerland do not bemoan the local variations so much as they resent the opacity of decisions and their discriminatory consequences. In the large majority of Swiss municipalities, there are no formal or detailed regulations as far as the criteria to be fulfilled. It is therefore often not clear on what grounds decisions are made. Accordingly—and my study has confirmed this—decisions depend a great deal on the personal opinions of those people who are involved

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in decision-making procedures. In a decentralized system, transparency should be guaranteed at the local level. Because foreign residency necessarily implies being part of a national community, citizenship policies should be regulated in detail at the national level with regard to both the formal procedures and the applied criteria: the same criteria should be applied for every candidate, and decisions should not depend on subjective impressions and evaluations. A standardized system provides an even better guarantee that the general will of society is reflected in each decision, as detailed regulations are the result of a deliberative process during which varying opinions and convictions may be accounted for. Detailed regulation at the local and national levels also facilitates the work of local decision makers. In my interviews, I often got the impression from various political party representatives that they find it difficult to make decisions because they do not know what the general standards should be. Furthermore, clear-cut criteria make it easier for potential candidates to know what a country expects from them and how they should proceed to fulfill the criteria.44 A last point concerns the openness of the decision-making arena. It is important that the better part of the population is involved when citizenship regulations are established. After all, naturalization is about the formation and modification of a national community, and this national community should have a say. Naturalization norms and criteria should reflect how all individuals perceive their nation. It is another matter altogether when it comes to the application of these criteria. At this stage, there must be a guarantee that the will of the people is respected and that political actors cannot alter the rules of the game as they like. It is therefore most useful if decisions are made within an administrative or executive body. Does this imply that bureaucrats and members of executive bodies are any less arbitrary than ordinary citizens? Not necessarily. A government may comprise representatives of right-wing populist parties, and bureaucrats may easily interpret regulations in a restrictive way. However, their leverage is rather limited, as they, first and foremost, must defer to existing laws and regulations. As such, their actions would be institutionally constrained, thereby at least reducing the possibility of arbitrary decisions. Finally, administrative decisions have to be justified on the basis of existing laws or regulations that, in most liberal democracies anyway, will follow the principle of equal treatment.

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Conclusion As the European Union increasingly becomes a supranational organization with its own citizenship that offers rights and privileges to the citizens of its member states, Switzerland—the small country in the middle of Europe— stands out by virtue of its decentralized naturalization processes. Swiss naturalization politics might first appear to be a unique case. However, a better understanding of this case is of interest in a wider context. Divergent applications of citizenship laws and understandings of nationhood are found not only in Switzerland. In fact, naturalization politics in many nationstates are decentralized to a certain extent. European Union citizenship provides another example of nested or multilevel citizenship that can be better understood by comparing it with the Swiss case.45 As Maas points out, EU citizenship is contingent on the naturalization policies of EU member states.46 As in Switzerland, these national policies depend to a large extent on cultural and political factors, as several studies have shown.47 Switzerland should be considered as a unique research opportunity, allowing us to discuss citizenship and nationalism from new perspectives. A closer look at naturalization processes is revealing in that it enables us to go beyond formal regulations and citizenship laws and shows us how national citizenship models are interpreted and put into practice. It is astonishing how diverse understandings of citizenship and interpretations of national regulations can be within a single nation-state. This contradicts to a certain point the idea of homogeneous nation-states with a clear cultural consciousness.

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Chapter 9

Multilevel Citizenship and the Contested Statehood of Bosnia and Herzegovina eldar sarajlic´

Examining the multilevel citizenship regime in Bosnia and Herzegovina as established through the provisions of the Dayton Peace Agreement (DPA), this chapter considers how the citizenship regime relates to the character of the Bosnian state and its statehood and how this relationship affects human rights. I argue that the existing multilevel citizenship regime harms human rights because of its particular and ambiguous relation with the sovereignty of the state. The current two levels (state and entity) of citizenship help sustain the fragile stability and sovereignty of the country but also create a basis for instability by allowing ethnic agents to contest the country’s statehood. The interplay between these two processes results in political outcomes detrimental to citizens’ human rights. There is a strong correlation between the sovereign character of a democratic state and respect for human rights. Absent historically embedded democratic culture, strong state institutions can play an important role in protecting citizens’ rights. Having been established as part of a peace treaty and enforced within a highly sensitive and conflicting environment, Bosnia’s multilevel citizenship regime aimed to reconcile diverging ethnopolitical claims rather than establish institutions to ensure respect and protection of citizens’ human rights. The regime creates complex and asymmetrical relations between individuals, ethnic groups, and the state and thus disregards individual rights and ideological institutionalization of group rights. This explains Bosnia’s poor human rights and social inclusion record.

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The Bosnian multilevel citizenship regime should be analyzed within a wider regional context. The immediate neighborhood of Bosnia and Herzegovina has an enormous effect on the country’s social and political perspectives. Thus, Bosnian multilevel citizenship should be contextualized within a constellation of competing local and regional networks of power and citizenship regimes1 whose interaction and mutual contestation directly affect the quality of human rights of Bosnian citizens. Understanding the historical background of the role of citizenship in the creation of Bosnian statehood entails a focus on different periods of Bosnian history, particularly the period of socialist Yugoslavia. Although the focus here is on analyzing citizenship legislation, I also discuss the political and substantive dimensions crucial for human rights–based outcomes, from social exclusion of noninstitutionalized groups to naturalization provisions and their effects.

The Formative Effect of the Socialist Period Before becoming a republic for the first time in the midst of World War II, Bosnia and Herzegovina had been part of more powerful empires and neighboring states. As a part of the Ottoman Empire between 1463 and 1878, Austria-Hungary between 1878 and 1918, and the Kingdom of Yugoslavia between 1918 and 1943, Bosnia and Herzegovina could not develop modern institutions and establish an independent citizenship regime.2 Although the rudiments of political subjectivity and independent citizenship started to develop during the Austro-Hungarian phase, when individual investment in being Bosnian had been partly determined as legal through local institutions, it was in the first stages of the socialist period that the first full, republican citizenship was created for Bosnia and Herzegovina.3 This citizenship had a distinct character and was integrated into a wider political system that rested on federal (and later confederal) relations between the Yugoslav federal units and the center. The most salient characteristic of the citizenship regime established and maintained during the Socialist Federal Republic of Yugoslavia (SFRY) was its multilevel or bifurcated nature, with federal and republic citizenships existing simultaneously.4 This meant that Bosnian citizens had republic (Bosnian) and federal (Yugoslav) citizenship at the same time. Their relation was determined by

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the constitutions and by the federal and republic citizenship laws enacted over a period of roughly thirty years, from 1945 to 1977. Although the citizenship of the Socialist Republic of Bosnia and Herzegovina (SRBiH) was not multilevel in its nature, it was part of a wider political system and directly related to a federal, multilevel citizenship framework that determined its political significance and meaning. Socialist Yugoslavia had gone through a number of constitutional phases that reflected the ideological and geopolitical shifts the ruling Communist Party pushed forward, but these shifts also affected the shape of the party’s constituent parts, the republics.5 However, the constitutional development of Yugoslavia can be also seen through the prism of political identities developed in direct relation to the structural evolution of the country and the position of particular republics within it, including Bosnia and Herzegovina. Throughout socialist Yugoslavia’s political history, there was a trade-off between federal and republican levels of power that became discernible through the pattern of Yugoslav constitutional changes.6 In a strict ideological sense, the unity at the level of political ideas was beyond question (at least during the first thirty years of the Yugoslav federation), and the respective federal constitutions reflected this fact. However, as the revolution and uprising against a foreign enemy during World War II were understood not only in terms of class but also, which is very important, in terms of ethnic and national liberation, nationality understood as ethnic belonging, and the nation-state as such, always influenced Yugoslavia’s internal politics. This was clearly reflected in the relationship between the federation and its constituent republics, which were established and changed with the evolution of Yugoslavia’s constitutional law. The initial founding documents had very ambiguous terminology and avoided explicit nation-state labels to describe both the federation and constituent republics, using more vague terms of ‘‘people’’ as socialist ‘‘demos’’; later constitutional developments cleared the ambiguity and established a more confederal relation between the federation and the republics as nationstates of their respective ethnic majorities.7 This was especially evident with the 1974 constitution and its definition of the state as a community of ‘‘united peoples and their socialist republics.’’ Thus, Yugoslavian citizenship must be understood in the nationbuilding terms that had been attached more to the constituent republics (nations) than to the federal state itself. The evolution of multilevel citizenship laws followed the changes in the federal constitution and framed the

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ways in which individuals belonged both to their respective republic and to the common federation. Still, citizenship in the republic of Bosnia and Herzegovina did not imply a necessary national identification with the Bosnian socialist republic, because Bosnia and Herzegovina was the only exception to the obvious nation-state rule that shaped Yugoslavia’s constituent units, a republic without a titular nation.8 The ethnic origin of Bosnian citizens was mixed and consisted of three main groups, the Bosnian Muslims (later to be referred to as Bosniaks), Croats, and Serbs, with many minorities, including Jews, Roma, Hungarians, and others. Bosnia’s exception to the general rule of a titular nation facilitated the creation of a particular, but insubstantial, republican and somewhat civic identity among Bosnians. But this identity was weak because of the distinctive federal setting and internal ethnic complexity, as well as the existence of two adjacent national homeland republics, Serbia and Croatia. Bosnian Muslims, who subsequently developed into the largest single ethnic group in Bosnia (many other ethnic Muslims lived in Montenegro and Serbia), gained official recognition as one of the Yugoslav titular nations (narodi) only during the 1960s, after which they continued to share the republic with its other inhabitants. As a consequence of its particular character, the multilevel nature of the Yugoslav citizenship model raised a number of theoretical issues about whether federal or republican citizenship was supreme. There is no consensus among legal scholars, but most argue that federal citizenship was ‘‘derivative’’ and republican citizenship was ‘‘primary.’’9 This was especially the case with Yugoslav legislation that introduced more confederal relations between the federation and the republics, leading eventually to a higher degree of republican sovereignty in determining citizenship provisions. The federal constitution of 1974 and the corresponding republican citizenship laws of 1976 and 1977 illustrate this. Thus the 1977 Bosnian citizenship law stipulated that the ‘‘decision on the acquisition and termination of the citizenship of the SFRY and SRBiH will be rendered by the Republican Secretariat for Internal Affairs’’ (art. 24, para. 1),10 indicating that sovereignty in terms of citizenship was at the republic level. Because citizens of all republics had equal rights and duties in the territory of the entire federation, as provided by the 1974 federal constitution, republic citizenship had few practical consequences, and many people were not even aware that they were citizens of the republic as well as of Yugoslavia. The dissolution of Yugoslavia and war in Bosnia created

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new citizenship practices based on the legal continuity of the republic and highlighted Bosnia’s contested statehood, sovereignty, and legitimacy. Independence and the New State In the early 1990s, the newly independent Republic of Bosnia and Herzegovina introduced one of the most inclusive citizenship regimes in the region.11 Although other former Yugoslav republics, such as Slovenia and Croatia, created ethnocentric laws aimed at creating more ethnically homogeneous nation-states,12 the Bosnian authorities followed some of the principles of the ‘‘new state’’ citizenship model and enacted inclusive legislation that opened Bosnian citizenship to all former citizens of the Bosnian socialist republic, as well as all permanent residents from other Yugoslav republics.13 The background was the notion of legal continuity with Bosnia’s republican citizenship within the Yugoslav federation14 and also a strategic exigency for military conscription, desperately needed in a besieged and militarily inferior state. The new state continued informal consociational arrangements for the different communities, including a collective presidency and a government consisting of communal (ethnic) representatives. There were no efforts to construct a civic Bosnian nation or mold different ethnic communities into a new supraethnic group, although legislative fundamentals for this option were established, including a unified civic and republican citizenship regime. In terms of citizenship legislation, Bosnia and Herzegovina seemed to be headed for a unified political identity framed within civic and republican notions of belonging, but the social and political reality was far different. The nascent Bosnian post-Yugoslav republicanism and statehood based on the notion of historical continuity was undone by a mix of explicit ethnic separatism by Serb (and partially Croat) groups and efforts by leading Bosnian Muslims (renamed in 1993 Bosniak, instead of Muslim) to claim Bosnia and Herzegovina as an exclusive homeland for their ethnic group. The interplay between three ethnonationalisms aiming to advance their particular interests eventually destroyed any basis for civic republicanism and led the communities deeper into conflict that would end only with American diplomatic intervention and a peace treaty drafted in Dayton, Ohio, and signed in Paris in late 1995. A unified, republican, and independent citizenship regime was perceived by many in Bosnia and Herzegovina as historically insubstantial and unsustainable.

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Negotiating Multilevel Citizenship and the State With the Dayton Peace Agreement, Bosnia and Herzegovina entered a new phase in its political history. The peace agreement specified that the country would have two entities as its constituent parts: the Republic of Srpska (Republika Srpska), which was defined as an entity of the Serb people, and the Federation of Bosnia and Herzegovina, defined as an entity of Bosniaks and Croats. The text of the peace agreement, accepted and signed by the presidents of Bosnia and Herzegovina, Croatia, and Serbia, also contained Bosnia’s constitution, one of the ten annexes to the agreement. The implementation of the peace agreement provisions was delegated to the newly created institution that proved critical for sustaining political order: the Office of the High Representative for Bosnia and Herzegovina (OHR). In addition to two entities, the subsequent arbitration of the international community established a separate District Brcˇko in northern Bosnia, the only area in the country ruled and administered independently of the ethnicitybased entities. However, Brcˇko district is a distinct institutional anomaly. The Dayton agreement created Bosnia and Herzegovina as a consociational polity, with power-sharing arrangements institutionalized on both the state and entity levels. The three main ethnic groups share power in all state institutions, enjoy veto powers in the main decision-making bodies, and exert local (territorial) control throughout the country. Officially, the country is a democratic polity, with free elections, freedom of speech, and free movement, but the focus on ethnicity undermines the state’s democratic quality, although some authors have tried to describe it as a form of ‘‘ethnic democracy.’’15 Besides being institutionalized at all formal political levels,16 it shapes the dominant social and cultural trends, drives the behavior of most political and social actors, and frames almost all electoral outcomes. Ethnicity also framed the new citizenship regime that emerged from the Dayton negotiations.17 It welded ethnic group identities and established the definition of citizenship as legal belonging through provisions establishing a multilevel (state and entity) citizenship structure. The new constitution established ‘‘a citizenship of Bosnia and Herzegovina, to be regulated by the Parliamentary Assembly, and a citizenship of each Entity, to be regulated by each Entity’’; it also echoed the earlier relationship between Yugoslavia’s federal and republican citizenships, stipulating that ‘‘all citizens of either Entity are thereby citizens of Bosnia and Herzegovina.’’18 As with Yugoslav citizenship, this provision raised a number of questions concerning the

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‘‘primary’’ or ‘‘derivative’’ nature of entity citizenships and the subsequent emphasis on the sovereignty of the state or its administrative units.19 As a tool devised to satisfy both sides of the conflict and ensure the basis for the legal existence of the country, one might argue that it was aimed much more at sustaining peace than it was at positive constitutional design, although its practical effects in keeping the state together cannot be denied. The Law on Citizenship of Bosnia and Herzegovina was enacted by the state parliament in 1999, after the OHR imposed it two years before. It provided the legal ground for subsequent enactments of entity citizenships, the Law on Citizenship of Republika Srpska and the Law on the Citizenships of the Federation of Bosnia and Herzegovina. Both entity laws equally provided that citizens of the entity ‘‘are thereby citizens of Bosnia and Herzegovina.’’20 The relation between state and entity citizenships is further defined in Articles 25 through 29 of the Law on Citizenship of Bosnia and Herzegovina. These provisions seem to indicate that entity citizenships are primary and the state citizenship is derivative. This is especially the case with provisions such as those in Article 27, which stipulates that a person who loses the citizenship of one entity without acquiring the citizenship of the other automatically loses the citizenship of Bosnia and Herzegovina.21 The Dayton constitution and the 1999 law annulled all previous legislation on citizenship, including the acts and laws of the Republic of Bosnia and Herzegovina and the previously unrecognized Republic of Sprska; both provided that all persons holding citizenship in the Republic of Bosnia and Herzegovina were automatically citizens of Bosnia and Herzegovina,22 supporting claims that political primacy belongs to the historically continuant state of Bosnia and Herzegovina, within which the entities subsequently emerged. But the provision of separate and mutually exclusive entity citizenships is problematic, given the conflicting dynamics of existing interethnic relations in the country, which reinforce ethnic claims and undermine the country’s statehood.

Entity Citizenships and Yugoslav Scenario? Entity citizenship laws provide that all citizens of Bosnia and Herzegovina who on April 6, 1992, resided on territory that today belongs to one of the entities are citizens of that entity. Republika Srpska’s citizenship law differs from the Federation citizenship law in specifying that persons who resided

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on the territory of the Federation on April 6, 1992, but moved to the Republic by January 1, 1998, are citizens of Republika Srpska (Article 39).23 The difference reflects the opposite political strategies of the two entities and their respective ethnic majorities. Federation leaders emphasize the return process in the country and advocate for more entity integration in the structures of the state; Republic leaders seek to maintain the status quo and prevent integration by discouraging the return of refugees to their prewar residences. Provisions granting automatic Republika Srpska citizenship to refugees from the Federation clearly further this goal. Republika Srpska’s citizenship law has another controversial provision that allows all former Yugoslav citizens who assumed residence in Republika Srpska between April 6, 1992, and January 1, 1998, and maintained it for more than two years to acquire Republika Srpska citizenship.24 Because this provision extended citizenship to Serb refugees from Croatia, it altered Republika Srpska’s ethnic structure, to the resentment of Bosniak and Croat leaders.25 Citizens of one of the entities residing in the other may change their entity citizenship if they wish, if the change of residence occurred after this law entered into force.26 Upon acquiring citizenship in one entity, persons automatically lose the citizenship of the other; thus Bosnians cannot hold a multientity citizenship, as entity citizenships are mutually exclusive. Bosnia’s citizenship regime is clearly a product of the Dayton negotiations and the stability-sustaining priorities of the international mediators; it also circumscribes the sovereignty of the state of Bosnia and Herzegovina. The citizenship regime’s basic structure reflects its predecessor, the Yugoslav (ethnonationally) decentralized citizenship regime. But it satisfies both sides of the political divide, and, unlike the Yugoslav case, builds on the (however weak) notion of the historical continuity of Bosnia and Herzegovina. Paradoxically, this simultaneously provides (historical, political, legal) legitimacy to the state and normative grounds for its contestation on an ethno-political basis. Reflecting other constitutional provisions and institutional arrangements of the Dayton agreement, the citizenship provisions perpetuate political crisis and disable social and political change. An Outer Level: Dual Citizenships and the Regional Context One of the most salient characteristics of the regional citizenship constellation in the former Yugoslavia is the issue of dual citizenship. Almost all of

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the successor states faced this issue, but Bosnia faces the most complex consequences because dual citizenship adds another level of complexity in the country and frames many citizenship-related outcomes. The Law on Citizenship of Bosnia and Herzegovina provides that citizens of Bosnia and Herzegovina may hold citizenship in another state if there is a bilateral agreement with that state. By 2011, agreements had been signed and ratified only with Serbia and Sweden, and around nine thousand dual citizenships had been acquired on that basis by this date. Sweden accepted a large number of Bosnian refugees between 1992 and 1995, many of whom were subsequently granted Swedish citizenship. But the number of Bosnian citizens holding Serbian citizenship is also significant and includes not only ethnic Serbs who acquired Serbian citizenship as refugees from territories controlled by Bosnian or Croat forces but also ethnic Muslims from the Sandzˇak area (in Serbia) who migrated to Bosnia. One wave of this migration occurred during the war, when many men escaped being drafted into the Yugoslav Army for the wars in Croatia, Bosnia and Herzegovina, and Kosovo (from 1991 to 1999); the other wave followed the pattern of economic and partially ethnic migration. Recent changes in Serbia’s citizenship law enable Bosnian Serbs to acquire Serbian citizenship easily,27 so the increase of dual citizenships with Serbia is likely to increase, especially in Republika Srpska. The current regional political context and the common history of Yugoslav successor states creates a complex situation regarding the dual nationality of Bosnian citizens, especially in the case of Croatia, because around eight hundred thousand individuals hold both Bosnian and Croatian citizenship. The Law on Croatian Citizenship allows Croats (and those identifying themselves as Croats) residing outside of Croatia to obtain Croatian citizenship.28 Most Croat citizens of Bosnia and Herzegovina used this opportunity (16 percent of the Bosnian population, around five hundred thousand individuals), together with a significant number of non-Croats (estimated to be another three hundred thousand individuals), especially in the western parts of the country. In 2011, after long discussions and negotiations, an agreement between Bosnia and Herzegovina and Croatia was ratified that enabled more than eight hundred thousand Bosnians to keep their Croatian citizenship. However, Bosnian law stipulates that unless bilateral agreements with other countries are signed by January 1, 2013, Bosnian dual citizens will lose their Bosnian citizenship.

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Bosnian citizens who also hold Croatian citizenship enjoy various benefits, such as the ability to vote in Croatian presidential and parliamentary elections and utilize various social services provided by the Croatian state.29 Individuals convicted of crimes or facing trial often escape the law or avoid detention by fleeing across the border: 282 persons escaped Bosnia and Herzegovina (106 of them fled to Croatia, 100 to Serbia, 24 to Montenegro, and 56 to parts unknown); 46 convicted individuals from Croatia fled to Bosnia and Herzegovina.30 Negotiations between Bosnia and Herzegovina and Croatia to resolve this problem revolve around amending the provision stipulating loss of Bosnian citizenship upon acquiring another citizenship if no bilateral agreement exists. Faced with the necessity of renouncing their Bosnian citizenship when acquiring the citizenship of another state that does not allow for dual citizenships (such as Germany), more than fifty thousand people have already renounced their Bosnian citizenship. Because there are around one million citizens of Bosnia and Herzegovina residing abroad (mostly in North America and Europe) who have acquired the citizenship of their host country, amending the citizenship law will probably remain on the political agenda.

Multilevel Citizenship and the State of Bosnia and Herzegovina As already noted, the multilevel nature of Bosnia and Herzegovina’s citizenship regime reinforces both claims to unity and fragmentation of the country. Political actors who push for a more unitary concept of Bosnia and Herzegovina find justification in legislative provisions linking historical continuity with the socialist Bosnian republic within Yugoslavia and try to forge a ‘‘thicker’’ definition of legal belonging that disregards inherent ethnic differences and emphasizes the common Bosnian identity. Yet these political actors are usually representatives of the most populous ethnic group, Bosniaks, aiming to construe an intrinsic and exclusive (though implicit) link between their ethnic constituency and the state of Bosnia and Herzegovina as a national homeland. Although they tend to be more inclusive than those aiming to break up the country, their vision of Bosnian citizenship is imbued with implicit notions of particular (Bosniak) ethnic ownership of the country. Those advocating more decentralization and

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fragmentation of the common political domain tend to emphasize the ethnic- and entity-based citizenship provisions. The very existence of entity- (as ethnicity-)based citizenships lends these claims credibility and legitimacy. These actors tend to be more exclusive and ethnocentric, and most of them are in Republika Srpska, although some Croat ethnic parties also favor further fragmentation of the Bosniak-Croat Federation of Bosnia and Herzegovina. These actors all perceive citizenship through a web of ethnocultural nation-state categories that conflate political and cultural communities. Because this cannot be provided under the existing institutional framework, they clash with one another and perpetuate political crisis. More important, they lock all political negotiations within principles of collective rights and leave no room for policies based on individual and minority rights in majority areas. The structurally ambiguous relation of the Dayton citizenship regime to the basic definition of the state of Bosnia and Herzegovina and its citizens sustains these kinds of struggles and weakens human rights protections. In a context of permanent ethnic mobilization based on differentiated and incommensurable interpretation of constitutional and citizenship provisions, state institutions that could protect citizens’ individual rights are unable to break the chain of ethnic legitimacy and act as independent actors. Both internal and external structures limit the possibilities for ethnically independent state action: regional constraints and networks of power limit the scope of political possibilities available to state institutions. Even broader sources of power also shape citizenship outcomes and the relationship between the state of Bosnia and Herzegovina and its citizens.

The Ethnocentric Character of Dayton Citizenship and Human Rights Since its establishment, the Dayton institutional framework in Bosnia and Herzegovina has been criticized for its perceived trade-off between stability and human rights.31 By ensuring stability after the end of hostilities, Dayton created a framework that favors the dominant group but marginalizes minority ethnic and other groups.32 Multilevel citizenship, in this context, allows social exclusion33 and ‘‘ethnic engineering’’ of Bosnia’s internal ethnic domains.34 This is most visible in the realm of passive (and partially active) political rights, from which certain population groups are outright

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disenfranchised. Entity citizenships, in combination with entity residence, prevent minority individuals from running for office at certain levels of government, such as the state presidency. For example, a Serb individual residing in the Federation of Bosnia and Herzegovina can neither vote nor run for the office of Serb member of the state presidency, because only individuals from Republika Srpska are able to run and vote for this particular office. Bosniaks and Croats residing in Republika Srpska are similarly disenfranchised, illustrating the detrimental effects of Bosnia’s multilevel citizenship regime. The need to transform the constitutional structure of Bosnia and Herzegovina and promote human rights has been at the top of the agenda of both international and local analysts, with the Council of Europe’s Venice Commission suggesting ‘‘changing the emphasis from a state based on the equality of three constituent peoples to a state based on the equality of citizens,’’ because, if ‘‘the interests of individuals are conceived as being based mainly on ethnicity, this impedes the development of a wider sense of nationhood.’’35 The Venice Commission emphasized the incompatibility of particular constitutional provisions and the electoral law with the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols. The constitution distinguishes the ‘‘constituent peoples’’ (the main ethnic groups, Bosniaks, Croats, and Serbs) from ‘‘others’’—individuals and groups with any other origin, such as Jewish or Roma. Key state institutions such as the House of Peoples of the Bosnian Parliament or the presidency are composed exclusively of members of the three ‘‘constituent peoples’’; others are excluded from the country’s political institutions. This exclusion was even higher before 2000, because entity constitutions defined entities as the exclusive domains of their ethnic majorities; for example, Republika Srpska as a state of the Serb people and the Federation as a state of Bosniaks and Croats. The Constitutional Court of Bosnia and Herzegovina changed this in 2000, ruling that giving special rights to ethnic majorities violated the state constitution stipulating the equality of all three ethnic groups on the entire territory of Bosnia and Herzegovina.36 The ruling provided a more democratic environment,37 but it did not substantially change the ethnocentric structure of the legal and political system, because it continued to favor ethnic groups over individuals in the entitlements of civic rights. Moreover, by limiting political rights to members of the three dominant groups, the ruling continued the exclusion of other ethnic

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minorities and further entrenched the tripartite ethnic ‘‘ownership’’ of Bosnia and Herzegovina that limits substantial citizenship only to the three main groups. As a result, some members of disenfranchised groups decided to fight the exclusionary provisions under international law. Following the written confirmation from the Central Election Commission that he was ineligible to run for elections because of his Jewish origin, Mr. Jakob Finci, a citizen of Bosnia and Herzegovina with a Jewish ethnic background, and Mr. Dervo Sejdic´, a fellow citizen of Roma origin, filed a suit against Bosnia and Herzegovina at the European Court of Human Rights. In 2009, the court ruled that the constitutional ineligibility of these individuals to run for office lacked an objective and reasonable justification and therefore breached the right to free elections and two prohibitions on discrimination of the European Convention on Human Rights.38 As of this writing, this ruling and other international commentary puts pressure on Bosnia and Herzegovina to comply with international human rights standards and may lead to a substantial redefinition of relations between the Bosnian state and its citizens. However, any changes are unlikely to affect the multilevel nature of the Bosnian citizenship regime itself. The most likely course of reforms might affect the inherent ethnic content of multiple levels of citizenship but not its overall structure.

Citizenship and Political Interest: The Case of Naturalizations Besides being influenced by ethnic agendas and regional nationalizing policies, the Bosnian citizenship regime has also been shaped by the short-term political interests and tactics of various political parties, which have often resulted in human rights violations. This is particularly true regarding naturalizations of individuals participating in the warring armies between 1992 and 1995. The most problematic naturalizations concerned individuals from Islamic countries of Africa and the Middle East who joined the Army of Bosnia and Herzegovina. Their naturalizations were made possible by the liberal provisions of the Law on Citizenship of the Republic of Bosnia and Herzegovina that enabled members of the Bosnian Armed Forces to acquire citizenship.39 Around two thousand individuals benefited from this preferential treatment, although there are no clear statistics. The subsequent Dayton Agreement and citizenship legislation made these individuals

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legal citizens of the new country, tied to one of the entities (the Federation of BiH). Although the existing naturalization provisions are fairly liberal and inclusive, with a requirement of eight years of residence (or five years of marriage to a Bosnian citizen), the legacy of the previous laws still raises human rights concerns. Naturalization became particularly sensitive after the September 11, 2001, terrorist attacks in the United States. Following U.S. pressure, the Bosnian authorities detained, arrested, and deported some individuals who remained in Bosnia and Herzegovina after the war and were suspected of using the country as a base for terrorist operations. The most notorious case concerned the so-called ‘‘Algerian Group’’: six men arrested and handed over to U.S. authorities who transferred them to Guantanamo prison in January 2002. Five of the men were stripped of their Bosnian citizenship immediately after their deportation to Guantanamo. The U.S. authorities ultimately failed to prove any involvement in terrorist activities and in 2008, their case resulted in the first Guantanamo release under a court order. Given the global context and the local political sensitivity, the issue had wide media attention and clearly influenced debates and issues around Bosnian citizenship. Bosnia’s attempts to reverse past overinclusive naturalization policies caused new human rights violations. The Helsinki Committee for Human Rights in Bosnia and Herzegovina (which included other international organizations, such as the European Parliament and the Council of Europe) was particularly concerned with the revocations of citizenship and the extradition of individuals suspected of terrorist activities, especially the ‘‘Algerian Group,’’ considering the extradition of the six men a violation of international conventions on human rights and citizenship.40 Both liberal naturalization policies and subsequent denaturalizations reflected political and party interests rather than human rights concerns. Wartime naturalizations reflected the priorities of the ruling Bosniak ethnic elite in Sarajevo, which aimed to increase the number of people under arms but also show a symbolic solidarity with Islamic countries and groups in an attempt to win more sympathy and potential military assistance. After the war ended, pressure from the United States and other western governments forced the new generation of politicians to change course. In the processes of both granting and revoking these citizenships, the institutions of the state had a minor role; substate (ethnic parties and politicians) and suprastate (U.S. government) actors prevailed.

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Conclusion: The Perspectives of Multilevel Citizenship in Bosnia and Herzegovina Bosnia and Herzegovina’s complex citizenship regime, created in response to stability challenges and freezing existing patterns of political interaction, weakens central state institutions and fails to protect basic human and political rights. The prospect of Bosnia’s accession to the European Union does not threaten the multilevel citizenship regime because the legislation was largely designed and imposed by European representatives. The multilevel nature of the citizenship regime itself does not contradict any of the EU conditions that would require its alteration. Still, it is unclear how sustainable the citizenship regime is in the long run, because the statehood contestation/affirmation dynamic reproduced by its multilevel character fosters instability. In other words, it might cause further deterioration of political circumstances, given two mutually irreconcilable political visions, fragmentarianism and unitarianism. This does not mean that the root cause of the problem lies in the multilevel citizenship itself. Rather, it lies in the interaction of the institutions (including citizenship) created by Dayton in the interests of ‘‘ethnic entrepreneurs’’ and the major political parties. These interests have prevented the resolution of the country’s struggles since the end of the war. Reform efforts must disentangle this link and establish institutions and practices that lead to more democratic outcomes. Some look hopefully in the direction of the EU and its ability to transform Bosnia’s institutional and political life. The introduction of European citizenship might render Bosnia’s internal conflicts irrelevant because it would no longer matter which entity’s citizenship individuals in the country hold; all would be EU citizens. On the other hand, EU accession would add an additional layer of complexity, increasing the number of levels of citizenship to three (entity, state, and EU) and reopening politically sensitive issues. Unlike most EU member states, which solidified their citizenship models before joining the Union, Bosnian citizenship is still a work in progress.41 If Bosnia-Herzegovina is pushed toward unification to make it resemble the prevailing nation-state model in the EU, this will deepen the crisis, because much of the Bosnian population would resist. But decentralization would also cause friction and alarm those who fear further ethnic, social, and territorial fragmentation. Another problem concerns the timing of EU accession. Given their internal coherence, which reflects their ethnically homogenous nature rather than a genuine democratic development, both Croatia and Serbia

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(but also Montenegro) are ahead of Bosnia and Herzegovina in meeting EU accession requirements. This allows them to shape Bosnia’s political perspectives both directly, through the Dayton agreement (both Serbia and Croatia are signatories of the agreement) and indirectly, through shared citizenship with large parts of the Bosnian population. If Serbia or Croatia or both join the EU before Bosnia, many Bosnians will become citizens of the EU before the country itself fulfills the necessary requirements for accession. This may allow Croat or Serb political parties and interest groups in Bosnia to influence internal political processes and thus control the accession dynamic by demanding concessions that would further harm political stability. A regional context in which Bosnia’s accession to the EU is delayed would suggest that the EU does not welcome Muslims. However, even Bosnia and Herzegovina’s accession to the EU would interfere with the development of democratic forms of citizenship and statehood. The prospects of a European citizenship that diminishes the relevance of member-state citizenship by allocating more authority to the Union and to local levels of governance might circumvent the relevance of state citizenship in Bosnia and Herzegovina and reinforce citizenship in the entities, directly affecting the state’s sovereignty. Given the Serbian and Croatian policies of extending citizenship to Bosnian citizens of Croat and Serb origin and these groups’ reluctance to identify with the Bosnian state, the need for a state level of citizenship and governance might gradually dissipate, rendering the Bosnian state superfluous, or at least limited to only one of its constituent groups—the Bosniaks. This might produce further friction and tensions, not only in Bosnia and Herzegovina but also in the wider region, as well as challenging the equality of Bosnian citizens with respect to their state. European institutions could have a crucially important role, just as in the case of the Sejdic´ and Finci suit against Bosnia and Herzegovina at the European Court of Human Rights, in promoting inclusive and democratic outcomes. In considering the phenomenon of multilevel citizenship and its future perspectives in Bosnia and Herzegovina, then, we need to take into account the regional development and position of Bosnia within a broader European framework. This means that Bosnian citizenship, as a sociopolitical phenomenon embedded in the regional political reality, is inherently multilayered and dependent on various sources of power that transcend the country’s national boundaries. Any future development of this regime thus depends on events beyond Bosnia and Herzegovina, just as in previous periods of the country’s attachment to large empires.

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Chapter 1 0

Citizens of a New Agora: Postnational Citizenship and International Economic Institutions tu¨ rku¨ ler isiksel

Globalization is eroding the certainties of citizenship, but not citizenship itself. Instead, new supernational regimes and institutions are increasingly populated by new forms of political subjecthood and participation, creating new possibilities for citizenship.1 Contrary to the hopes expressed in the literature on global citizenship, however, not all of these possibilities are salutary. In particular, although much of this literature has focused on the development of human rights regimes and transnational mobilization by civil society groups, the vocabulary of citizenship is unexpectedly relevant for characterizing the growing body of trade-related rights and entitlements that businesses enjoy under international economic institutions. This chapter traces the processes by which private economic actors, in claiming their newly minted rights, participate in building institutions of economic governance. Taken together, these rights add up to a deterritorialized and functionally specific status that I propose to call market citizenship.2 Insofar as market citizenship consists of political enfranchisement for private actors in postnational economic governance, it pinpoints a different kind of fragmentation and layering of citizenship. In recent years, scholars have documented highly consequential ways in which the traditional elements of citizenship are becoming disassembled at the national level and reassembled at different tiers of political organization.3 This chapter helps map the complex landscape of multilevel citizenship by documenting the

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functional specialization of citizenship practice. To continue the spatial metaphor, my overall argument is that the multilevel nature of citizenship should be understood not only vertically, across sub- and supranational levels, but also in terms of a horizontal dispersal: asymmetric rights of political participation attach to individuals and legal entities by virtue of the particular activities they pursue as well as by virtue of their territorial presence or membership. Those who engage in cross-border commerce, for example, increasingly enjoy special legal protections and political enfranchisement under specialized international regimes that operate quasiautonomously from national jurisdictions. By contrast, the relinquishment of certain functionally delimited domains of policy to supernational or nonmajoritarian institutions of governance can leave large constituencies of citizens with few effective channels through which to contest the policy decisions that affect them. Market citizenship is symptomatic of a world in which citizenship entitlements are not only reshuffled along a vertical axis stretching from local to regional and global levels of governance but also redistributed horizontally across different policy domains, disproportionately favoring the interests of some and excluding others. In what follows, I begin by unpacking the phrase market citizenship and outlining three distinct dimensions of market citizenship. I then critically evaluate the impact of this new form of political agency on traditional democratic institutions, emphasizing the asymmetries that they create between different forms of citizenship practice.

Preliminaries Can specialized international regimes, particularly economic ones, engender some form of citizenship practice? In what sense can one be a citizen of the market, as opposed to a mere market actor? When speaking about the citizenship of market actors, we usually refer to their broader social obligations. Good corporate citizenship means assuming responsibility for the places and communities within which a firm operates, beyond the profits those places and communities make possible for the firm’s shareholders.4 Thus, businesses are called upon to maintain labor standards that correspond to the needs of employees, comply with human rights, refrain from corrupt business practices, respect local cultures and ways of life, and ‘‘give back’’ to the community through philanthropic projects. Moreover, as

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environmental disasters such as the BP oil spill in the Gulf of Mexico in 2010 periodically remind us, we also expect corporations to offset the ‘‘negative externalities’’ that they cause—that is, to clean up after themselves. Somewhat like regular citizenship, then, good corporate citizenship entails certain duties that arise as a result of participating in the life of a community. This chapter is not about corporate citizenship in that sense. Rather, I argue that the term citizenship captures the ways in which private economic actors participate in the operation of international economic institutions as political subjects in their own right. Many such bodies foster the involvement of corporations and industry groups in their political and legal development by bestowing on them rights, entitlements, and advantages that go beyond the domestic. Most important, the adjudicative mechanisms commissioned by institutions such as the European Union (EU), the World Trade Organization (WTO), and the North American Free Trade Agreement (NAFTA) open a window within public international law through which private economic actors can register their preferences and interests in the development of these institutions. For instance, rights of cross-border commerce can be invoked before the European Court of Justice (ECJ) as ‘‘fundamental freedoms’’ and are treated with the kind of urgency normally reserved for conventional constitutional rights.5 Firms’ claims of market access can be raised before the WTO’s dispute resolution panels indirectly with the aid of business-friendly government agencies responsible for foreign trade. Bilateral and multilateral investment treaties signed by states create opportunities for private investors to challenge the macroeconomic policies of states before investor-state arbitration bodies. Cumulatively, these legal channels vest supernational dispute settlement mechanisms with power over rule making, often at the expense of policy ends other than trade.6 The legal recognition that private economic actors enjoy before these bodies provides not only privileged access to economic and other forms of politically consequential decision making but also a voice in shaping the very institutions within which they transact. To put it provocatively, this may currently be the most formal and effective citizenship status that exists in the postnational realm. In sketching the elements of market citizenship, this chapter draws primarily on three international economic institutions: the EU (and its predecessor, the European [Economic] Community); the WTO (particularly the 1947 General Agreement on Tariffs and Trade, or GATT); and the International Center for the Settlement of Investment Disputes (ICSID), which

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operates under the auspices of the World Bank. Although they share a primarily economic focus, each of these bodies is very different from the others in terms of its institutional framework, membership composition, and functions. Despite the inevitable awkwardness of considering them under such general terms as ‘‘institution,’’ ‘‘regime,’’ or ‘‘system,’’ these cases demonstrate the construction of a new, legally protected status for businesses in the institutional architectonic of postnational governance.

Three Dimensions of Market Citizenship Over the past two decades, scholars have latched onto citizenship theory as a particularly suitable analytical perspective for making sense of the shifting parameters of political organization. Much of the work in this area is enriched by a perspective that treats citizenship as a ‘‘bundle’’ of distinct elements that can be studied individually, such as formal membership, rights and duties, cultural identity, allegiance and belonging, and political engagement.7 Each of these traditional features of citizenship faces a particular series of challenges, many of which can be traced to the sovereign state’s diminished ability to serve as the exclusive locus of political power. The methodology of disaggregation responds to the diversity of contemporary citizenship practices, as well as the uneven evolution of citizenship’s many elements. Perhaps most important, it highlights the reemergence of traditional features of citizenship at nontraditional levels of governance, including cities, regions, states, stateless nations, and the odd supranational polity. Following this tack, I account for market citizenship first as a status; second, as a substantive bundle of entitlements; and third, as a practice whereby actors renegotiate those entitlements within dynamic institutional contexts. First, I show that private actors have begun to enjoy different forms of legal recognition under many international economic regimes. Investment treaties, the EU, and NAFTA all grant some form of standing to private parties to bring disputes before their adjudicative mechanisms. Second, private economic actors can raise a notable array of rights claims by virtue of economic institutions. Third, and most important, corporations use these incipient forms of legal recognition to gradually widen their access to the decision-making mechanisms of these institutions. Litigation lends corporations a voice in how international bodies develop, enabling

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them to ‘‘act back’’ on the institutions that give them the tools of political agency. Over time, the combined effect of these three elements (status, rights, and political participation) is to shape global economic governance in line with the priorities of transnational firms and commercial actors. Understood in this way, the kind of political agency that private economic actors exercise in the realm of global economic governance is strongly reminiscent of citizenship.

Market Citizenship as Legal Status At the most rudimentary level, citizenship can be understood as membership in a self-contained political unit. Market citizenship is perhaps most weakly defined as a formal status of this sort. Clearly, no existing international regime designates corporations as its subjects or issues passports to them. Unlike states, international economic institutions are not comprehensive territorial units. Their activities are typically concentrated in one functionally specialized sphere, and the obligations they place on states are limited to their delegated scope of competence. In this respect, then, applying the idea of citizenship to trade regimes may seem counterintuitive. Nevertheless, the extension of citizenship to forms of political organization other than the territorial state begins to make sense if we consider citizenship not as a specimen frozen in the amber of the nation-state but as a concept whose meaning undergoes reflexive shifts in response to the evolution of new legal and political institutions. In developing the category of market citizenship, therefore, I also mean to highlight the gradual functional disaggregation of citizenship. Rather than being a formal member of a territorially defined and functionally comprehensive political unit (the sovereign state), market citizens are ad hoc co-constituents of specialized and only partially autonomous institutions of governance. I use the term co-constituent because I do not mean to imply that international economic regimes are republics populated exclusively by corporations or that the state is no longer the preeminent actor in the international realm. Rather, I mean to argue that these regimes have moved beyond the classical paradigm of interstate politics in the sense that they take some private actors (not solely states) as their direct addressees, and because corporations, as well as states, feed directly into the evolution of these regimes.

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At present, the most consequential form of legal recognition that international economic regimes extend to private economic actors is the legal standing to activate dispute settlement proceedings, particularly by bringing claims against sovereign states. For instance, the European Union has long afforded supranational rights to cross-border traders and others falling within the (mostly economic) scope of European law. In 1963, the ECJ held that the EC Treaty, initially little more than an agreement among states, gave rise to rights that individuals could claim before the domestic courts of member states.8 Moreover, in the event of a conflict between an individual’s European rights and the domestic laws of a member state, the ECJ directs national courts to disregard the latter,9 even if the offending law is a provision of that state’s constitution.10 As a consequence, the European legal order has provided a supranational forum for private parties hoping to enforce European law over conflicting domestic laws that offers countless opportunities for individuals, firms, and interest groups to challenge national systems of market regulation.11 In fact, the phrase ‘‘market citizenship’’ originates in Michelle Everson’s work describing the status of individuals under European Community law where, prior to the Maastricht Treaty of 1992, member state nationals exercised supranational rights even though they were less than full citizens of a supranational polity.12 Those who engaged in economic activity across borders found themselves subject to the ever-expanding functional domain of the ‘‘European economic constitution.’’13 With the gradual expansion of the scope of EC law, particularly since the introduction of the status of Union citizenship and the modest range of civil and political rights that complements it, the status of individuals in the European Union has broadened beyond market citizenship.14 In many ways, the most interesting application of this functionally specific, conditional, and postnational form of political agency lies elsewhere than the EU. Increasingly, many investment regimes also enable private economic actors to sue signatory states in order to protect the assets they have invested in their territories. There are about twenty-five hundred bilateral investment treaties (BITs) currently in effect around the world.15 A former deputy secretary-general of ICSID observed that the shoring up of enforcement through the institutionalization of investor-state arbitration mechanisms has greatly encouraged the conclusion of a greater number of BITs.16 Most often, BITs will assign particular regimes or arbitral venues to settle disputes between investors and states. ICSID is the most popular

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among these institutions, followed by the International Chamber of Commerce and other private arbitral forums. Chapter 11 of the North American Free Trade Agreement similarly enables investors to sue a member state before investment tribunals if they consider it to have violated its obligations.17 As the most diverse and comprehensive international trade body, the World Trade Organization does not allow private parties to activate its dispute settlement system. Although firms lack formal standing to enforce the law of international trade, domestic government agencies such as the U.S. International Trade Commission, the International Trade Administration of the Department of Commerce, or the Office of the U.S. Trade Representative fulfill a key role. These agencies mediate between national industry interests and international institutions such as the WTO, where only states can negotiate agreements and bring infringement proceedings. They enable businesses to bring the noncompliant policies of other states to the attention of their governments18 and act as conduits for businesses to use in challenging those policies in intergovernmental venues. For instance, the 1974 U.S. Trade Act enables private firms and trade associations to petition the Office of the U.S. Trade Representative concerning foreign trading practices that appear to violate the laws of international trade and charges the Office of the U.S. Trade Representative with ‘‘investigating and combating foreign trade barriers.’’19 The market access unit of the European Commission’s Directorate-General for Trade fulfills a similar function in the EU. Moreover, the relationship does not go only one way. Governmental institutions rely on businesses and trade associations to report foreign trade barriers, provide them with information on the impact of those barriers, and help their governments prepare claims to be brought before the WTO dispute settlement mechanism.20 In sum, even in the absence of formal standing to bring disputes, private economic actors spearhead the initiation of complaints and provide the legal and technical expertise that underpins the formal positions adopted by their governments. Market Citizenship as a Series of Subjective Rights Most international agreements, economic ones included, set out a series of policy objectives and the correlative duties states must perform to realize those objectives. The international economic institutions considered here are designed to liberalize the circulation of goods, services, and capital

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across borders. This objective finds expression as, inter alia, obligations to lift quantitative restrictions and barriers to trade and investment, reduce customs duties, and minimize a host of other burdens associated with cross-border commerce. However, if an agreement grants legal standing to private parties to initiate disputes against signatory states, this straightforward model is called into question. Most important, as a result of private rights of action, policy objectives codified in the agreement can be litigated as subjective rights that states are bound to respect. Because these objectives often have to do with facilitating the movement of factors of production across borders,21 the substantive rights and entitlements that private economic actors enjoy under these institutions cluster around market access. For the most part, market access entails two major claims, the first relating to free circulation and the second prohibiting discriminatory, unfavorable, or arbitrary treatment of foreign economic actors. Thus, if traders are granted legal standing to sue states under a particular agreement, the obligation to apply the same standards to domestic products and their imported equivalents becomes a right not to be discriminated against on the basis of nationality. Similarly, the requirement to accord ‘‘fair and equitable treatment’’ to foreign investors turns into an open-ended right, requiring dispute resolvers to fashion standards of fairness with which to gauge the behavior of states. Crucially, once the principles and standards enumerated in an interstate agreement are translated into state duties that corporations can claim as rights owed to them, supernational economic governance undergoes a qualitative change: unlike the classical public international law model of cooperation among states, the economic regimes in question begin to function as platforms that protect private economic actors as subjects of international law in their own right. As I will show in the next section, combined with the private cause of action recognized by many economic regimes, even such a limited set of rights and freedoms can transform into a kind of de facto subjecthood for corporate entities in the international realm. Market Citizenship as Political Agency: I Sue Therefore I Am . . . a Citizen? So far, I have pointed to the forms of recognition and the substantive rights that businesses enjoy under the auspices of international economic institutions. However, do these two elements add up to a kind of citizenship,

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especially given that the corporate rights in question are negative rights that create duties of noninterference on the part of states? As John McCormick points out, in the context of the EU, citizenship, whether within or beyond the state, is ‘‘characterized by the substantive social, public, and political exercise of formal rights rather than the mere enumeration or even observance of them.’’22 Joseph Weiler’s quip that ‘‘long before women and Jews were made citizens they enjoyed direct effect’’ gets at the same idea: politically disenfranchised groups can nevertheless often claim civil rights, but this, alas, does not make them into citizens.23 On this reading, having certain rights granted to them by international bodies does not raise corporations to the status of citizens. Recent scholarship on the cumulative impact of supernational forms of dispute settlement complicates this assessment. Although negative rights can only create passive subjects, rights adjudication coupled with important structural conditions turns out to be a surprisingly dynamic and politically consequential process.24 Once individuals gain legal standing to claim their rights in judicial or quasi-judicial forums, processes variously described as ‘‘legalization,’’25 ‘‘judicialization,’’ and ‘‘constitutionalization’’ can be set in motion.26 These are fed by the increasingly common institutional choice of complementing economic regimes with binding dispute settlement mechanisms whose decisions are difficult to overturn.27 Most notably, the outcome of each dispute signals to states, traders, and other institutions the kinds of arguments and actions that are likely to pass muster in future disputes, leading to what Alec Stone Sweet terms ‘‘feedback effects.’’28 A significant body of scholarship documents the way in which the steady output of decisions from dispute settlement mechanisms of international economic institutions crystallizes over time into a de facto body of norms by which states and other actors are bound regardless of whether they have formally consented to them.29 Litigation acts as a catalyst for further normproduction that not only sets parameters for the behavior of actors going forward but also further develops and entrenches the regime in question. For decades, the prime example of judicialized postnational governance has been the European Union (and its predecessor, the EC). In adopting the doctrine of direct effect, the European Court of Justice enlisted the ‘‘vigilance of individuals concerned to protect their [Community] rights,’’30 in order to create a ‘‘decentralized enforcement mechanism for EC law.’’31 Once granted directly enforceable rights under supranational law, individuals with a positive stake in the abolition of national barriers to trade were

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quick to bring enforcement actions against member states in their domestic courts. Over time, the ECJ found that more and more pieces of EC law gave rise to private causes of action and instructed national courts to invalidate national legislation found to infringe on those rights. National courts, in turn, took up this invitation with unanticipated zeal.32 Particularly useful to traders was the ECJ’s doctrine that products legally produced and marketed in one member state could be sold in all other member states barring narrowly construed, overriding public policy justifications.33 The doctrine of ‘‘mutual recognition,’’ as this principle is known, has served as the battering ram used by cross-border traders to tear down trade-restrictive national regulatory frameworks.34 This logic can take hold in the context of other international economic regimes even if they are not as robustly institutionalized as the EU. Within the realm of bilateral and multilateral investment treaties, businesses that resort to arbitration against states have been likened to ‘‘private attorneys general’’ of international trade law.35 Through litigation, loosely formulated treaty terms such as ‘‘investments,’’36 ‘‘indirect expropriation,’’37 ‘‘fair and equitable treatment,’’ and ‘‘state of necessity’’ can be gradually expanded in favor of the interests of private economic actors. Moreover, although investment tribunals are constituted to resolve a single dispute, they often interpret rules and terms in a way that spells out, builds on, and expands their meaning. These meanings, in turn, get picked up by the litigating parties and adjudicators in future disputes. Although investment tribunals lack formal rules of precedent, they often appropriate the analytical strategies and substantive interpretations of their predecessors and peers.38 Most important, future decision making by governmental institutions and businesses is conducted in the ever-growing ‘‘shadow’’ of the body of rules and standards to which adjudicators hold states.39 This process is more formalized at the World Trade Organization, where the reports of ad hoc panels are subject to appellate review by a permanent Appellate Body (AB), an institutional innovation introduced by the 1996 Uruguay Round. The AB has been praised for lending stability and uniformity to the interpretation of the GATT.40 Its authority is enhanced by two considerations. First, the AB’s decisions are binding on parties unless unanimously rejected by the WTO’s membership, which is highly improbable given that it would require the winning party to renounce the decision in its favor. Second, it is exceedingly difficult to amend the GATT to correct the AB’s growing jurisprudence. Institutional mechanisms such as appellate

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review help to consolidate trade law over time and make it more effective, particularly in comparison to other, less well entrenched international regimes, many of which happen to pursue goals other than trade. It is in light of these processes of norm making and polity building through litigation that the concept of market citizenship begins to make sense. What makes businesses market citizens, as opposed to mere market actors, is that the rights they derive from international economic institutions are not politically inert. Because most legal orders that attribute independent legal status to firms are works in progress, participating in adjudicative rule making doubles as institution building for the future. Through litigation, private economic actors can engage in a kind of ‘‘constitutive citizenship activity’’41 that lets them register their preferences and interests in the development of international institutions. In sum, if citizenship entails exercising authorship of the laws by which one is governed, then this is precisely what supernational economic litigation has shown to be possible, even if this kind of political participation occurs via the judicial route rather than through traditional representative channels. Corporations thus have access to important legal avenues within international commercial institutions that enable them to exercise forms of political agency with consequences beyond their own incidental interests.

Market Citizens versus Old-Fashioned Citizens Democratic legitimacy is perhaps the trickiest issue raised by the emergence of postnational institutions. Establishing even a minimal degree of citizen control over political processes beyond the state is beset by problems of diversity, scale, and attenuation: institutions such as the WTO, International Monetary Fund (IMF), or even the EU are simply too far removed from effective oversight by democratic publics.42 Modern institutions of representative democracy have been imagined in the state context and assume the congruence of a variety of conditions, including territorial contiguity, concentrated political authority, and some measure of cultural commonality among the governed. As a result, political scientists have sought to reimagine institutional mechanisms that would bring democratic criteria to bear on governance beyond the state, most notably by making international institutions more accessible and responsive to those whom they govern.43

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Given the gravity of this challenge, we may be tempted to chalk up any successful mechanism by which private stakeholders can participate in supernational governance as a gain in democratic legitimacy. Seen this way, processes that enable private parties to raise claims concerning the practices of states seem to democratize global economic institutions by making them more accessible to nonstate actors. The adjudicative mechanisms of these institutions provide a rare opportunity for nonstate entities to participate in the evolution of international institutions that are otherwise tightly controlled by states. Furthermore, if the judicialization thesis is even partially correct,44 and litigation by private parties really does help create an enforceable body of norms that bind states, the practices described here present a strikingly effective mode of postnational political agency by nonstate actors. Does market citizenship amount to a democratization of global governance? The key to addressing this question lies in investigating how functionally specialized and deterritorialized practices of market citizenship affect domestic practices of citizenship within democratically constituted political communities. The asymmetric political enfranchisement that market citizenship entails should be viewed against the broader forms of disenfranchisement to which it gives rise. To be sure, this claim calls for detailed empirical research to study the effects of international economic rule making on specific domestic policy choices. The examples below are meant simply to illustrate (rather than conclusively demonstrate) a series of tradeoffs that favor the rights of market actors over the prerogatives of democratically constituted public institutions at the domestic level. Starting in 2002, ICSID began to hear a number of arbitral disputes filed against Argentina by U.S. firms on the U.S.-Argentina bilateral investment treaty. In one of these cases, CMS, a gas distribution firm that had invested in Argentina’s newly privatized gas transportation sector, alleged that the emergency economic management measures taken by Argentina during its economic crisis of 1999–2002—including devaluing its currency and subsidizing consumer gas prices—amounted to a breach of CMS’s rights as an investor.45 The ICSID panel commissioned to resolve the dispute sided with the firm. It found that Argentina had breached the fair and equitable treatment standard by failing to assure the ‘‘stability and predictability of the business environment’’ in which CMS operated. Unimpressed by the respondent’s pleas concerning the gravity of this crisis (and the general climate of turmoil it created not just for foreign investors but for all

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Argentineans), the panel held Argentina responsible for CMS’s financial losses.46 It also rejected Argentina’s argument that its acts were justified under the ‘‘state of necessity’’ exception set out in the U.S.-Argentina BIT concluding that Argentina was responsible for the crisis without the slightest hint of humility about its own competence to second-guess immensely complex questions of macroeconomic policy and domestic public order.47 The panel ordered Argentina to pay $133 million to compensate the firm for its losses, a significant amount given that this was only one out of scores of such claims brought against Argentina (many of them successful) for its actions during the same period.48 Even more important are the long-term effects of the panel’s reasoning: if future investment arbitration panels follow its logic, the interpretation of the ‘‘state of necessity’’ exception advanced by the CMS decision would dramatically curtail the policy options available to states in responding to economic and social crises, opening up virtually any emergency measure to challenge by a potentially unlimited pool of international investors.49 Taken as a whole, this decision neatly illustrates the ‘‘shadow’’ effect mentioned earlier.50 Even though the CMS arbitral panel’s decision is technically only binding on the parties in that dispute and does not constitute formal precedent for ICSID or other arbitral bodies, it nevertheless signals a winning legal strategy to investors operating in similarly volatile political or economic environments and a warning to policy makers contemplating their options in situations of crisis. In this case, it implies that states bound by agreements must first consider the interests of foreign investment firms when responding to public emergencies.51 From a democratic perspective, what is particularly problematic about dispute settlement at the level of international economic institutions is that the national measures challenged by business and industry groups through adjudication often involve public policy objectives other than market liberalization. Over the past two decades, the adjudicative mechanisms of international economic regimes have entered into public concerns as diverse as consumer protection, public health, environment, domestic security, and human rights, appraising the policies of signatory states from the point of view of their conduciveness to the interests of investors, traders, and other market actors. Thus, WTO panels and the Appellate Body have been asked to adjudicate disputes in which the rights of exporting countries were pitted against other member states’ rights to adopt marine stewardship policies,52 regulate the sale of cigarettes,53 and ban the importation of toxic products54

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and cattle reared on artificial growth hormones.55 Because different policy domains are often closely entwined, dispute resolvers stake out the contours of trade law, where the outer reaches of market freedoms intersect with questions of broader societal needs and recourses. The teleological nature of the treaties that ‘‘specialized judicial bodies’’ are called on to interpret can result in ‘‘a biased approach to questions of clashes between different values and issue areas.’’56 The problem of overreach and colonization through ‘‘linkages’’57 is compounded because trade regimes tend to be more deeply institutionalized than looser areas of international cooperation.58 As a result, economic liberalization, as one substantive policy in the full universe of public policy objectives, threatens to colonize the rest. In evaluating domestic measures in the light of market liberalization norms or the rights of cross-border economic actors, the adjudicative organs of international economic institutions undertake functions that resemble judicial review. As with domestic processes of constitutional entrenchment, the consolidation of market norms through binding dispute settlement in the international realm can be said to place ‘‘economic liberties and rules allowing for free movement of transnational capital beyond the reach of majoritarian control.’’59 Although the translation of states’ obligations into subjective rights protects private economic actors who benefit from the global deregulation of commerce, this happens at the cost of reducing the ability of domestic institutions to safeguard a broader spectrum of interests. In democratic systems, this curtails the authority that citizens at other levels (regional, domestic, or subnational) may exercise over the laws that govern them. When the rights of cross-border economic actors are backed up by the prospect of litigation, compensatory penalties, retaliatory measures, and capital flight, it is as if market citizens exercise a veto over lawmaking carried out in the name of all other citizens. In contrast, citizens and civil society groups that represent interests other than market advantage lack access to transnational mechanisms of adjudication. They cannot use international economic regimes to challenge the policies pursued by states either domestically or through international agreements, much less to hold accountable other private parties such as foreign investors. This is a critical asymmetry whose significance bears emphasis. To be sure, ‘‘citizen pilgrims’’60 can pursue policies that tend to counterbalance economic liberalization such as labor rights, social and economic rights, transnational distributive justice, environmental protection, public health, and gender equality.61 Global civil society actors have

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had a significant impact in the realm of international institutions, not least by using the UN and other forums to raise awareness of their causes, by spearheading the development of new treaties, by monitoring states’ compliance with their international obligations, and by providing resources with which to foster the participation of citizens and developing nations in international affairs. In addition, consumer, labor, and environmental rights groups have made much headway in terms of propagating minimum standards of corporate conduct,62 even if there exists no central enforcement body to secure compliance with these standards. In all these ways, transnational advocacy networks can temper the hegemony of market forces by promoting ‘‘globalization from below.’’63 In fact, since the 1990s, transnational activism by NGOs within the global economic system has garnered extensive academic attention, to the point that transnational activists are often seen as the closest thing to a new class of global citizens.64 Focusing on the rights of firms rather than conventional transnational citizens’ movements does not deny the consequential role of NGOs in global governance but underlines the fact that within the realm of global economic institutions, another type of actor, the profit-seeking enterprise, enjoys a more formalized degree of subjecthood. Regrettably, the legal recognition accorded to noncommercial activists within formal mechanisms of global economic governance falls far short of the three criteria central to the practice of market citizenship. First, although some transnational institutions have limited participatory opportunities for NGOs and citizens’ groups, these actors rarely enjoy comparable access to dispute settlement mechanisms that drive norm production over time. For instance, although nongovernmental organizations have been allowed to submit amicus briefs in WTO dispute settlement proceedings on a case-by-case basis,65 no economic regime gives NGOs standing to initiate binding dispute resolution processes against sovereign states. Second, the lack of legal standing and recognition keeps global civil society groups from claiming or acquiring legal rights or entitlements similar to those enjoyed by corporations.66 Third, the fact that global economic institutions tend to be more deeply institutionalized than noneconomic regimes places the claims of civil society groups on a defensive footing: for instance, whereas exporters can dismantle barriers to trade by pushing their countries of origin to bring disputes against their trading partners before the WTO, competing public policy concerns can be raised only as exceptions

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or derogations that have to be justified against the liberalizing presumption. As a result, NGOs’ status, rights, and opportunities for participation in global economic governance are not formalized to the same extent as those of corporations as producers and investors. Again, if the judicialization thesis is correct and important political consequences do flow from the apparent technicality of firms having legal standing to initiate disputes before international economic institutions, private economic actors claiming rights under functionally specialized regimes can shape postnational institutions of governance in line with their interests. To the extent that international economic regimes tend to be the most deeply entrenched institutions in the complex landscape of global legal governance, this means that private economic actors have a significant advantage over civil society institutions representing noncommercial interests. This stark asymmetry of access to dispute resolution is often justified by market liberals on the grounds that corporations are directly and individually affected by the failure of states to adhere to the laws of international commerce.67 Thus, in explaining the disproportionate influence private businesses wield over domestic policy thanks to arbitral remedies, advocates often invoke the principle of affected interest: foreign investors and traders constitute a vulnerable group whose interests may not be adequately protected by domestic systems of justice. Most such defenses neglect the point that the affected-interest argument cuts both ways: investors may have few recourses against host states, but the communities in which they do business have few means of holding them accountable. As U.S. diplomat George W. Ball, otherwise as ardent a defender of market liberalization as any, asked: ‘‘Where does one find a legitimate base for the decisions of a corporate management that can profoundly affect the economic life of a nation to whose government it has only limited responsibility?’’68 Moreover, although it is generally assumed that governments who negotiate international treaties and respond to legal complaints can effectively represent the full universe of countervailing societal concerns, in practice, they are often reluctant to curb the privileges of corporations for fear of repelling investors.69 In more egregious cases, states and corporations are jointly complicit in violations of labor, environmental, and human rights standards.70 Widely publicized examples include Unocal’s knowing use of slave labor in its Burmese operations, Shell’s complicity in the

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imprisonment and execution of opposition activists in Nigeria, as well as countless sweatshops that manufacture goods for high street labels in countries whose governments keep wages at a minimum so as to attract capital.71 This tendency is reinforced by bilateral investment treaties that tend to reflect asymmetrical economic relationships among industrialized and developing countries eager to gain a greater share of foreign direct investment. This can often give wealthy countries an upper hand at the expense of developing countries.72 This highlights a somber and less frequently noted implication of the legal transformation that cosmopolitans have hailed as the post–World War II rights revolution, namely the emerging status of individuals as subjects of international law in their own right.73 To be sure, we should welcome the political salience of human rights regimes such as the European Convention on Human Rights and the EU Charter of Fundamental Rights, as well as the growing willingness of domestic courts to take account of certain fundamental rights as peremptory law of customary international norms and assert universal jurisdiction against severe violations of them.74 Borrowing a concept used by Miguel Maduro in the EU context, we might call this the gradual ‘‘subjectivation’’ of international law.75 However, market citizenship as developed here throws into sharp relief a different kind of subjectivation, in which legal persons rather than natural ones populate supernational institutions, position themselves as their true subjects, and use their newly minted rights to dismantle the autonomy of traditional democratic publics. When citizenship becomes dispersed among multiple ‘‘nested and overlapping’’ orders,76 there is no guarantee that its benefits and burdens will be distributed equally among different levels of governance. This taps into the deep irony of market citizenship: private rights of action and treaty-based market freedoms may have enhanced the possibility for private parties to voice their preferences in building the new institutions of global economic governance, but the rights claims raised by market citizens are by no means universally inclusive. In Saskia Sassen’s words, ‘‘a privatizing of capacities for making norms . . . brings with it strengthened possibilities of norm-making in the interests of the few rather than the majority,’’ attended by ‘‘the sharper restricting of who might benefit.’’77 Most important, vast segments of the world population who may be adversely affected by market integration measures have little access to the privileged portals of political contestation offered by the dispute settlement

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mechanisms of international economic institutions. As Anne-Marie Slaughter and Walter Mattli put it in the context of the European Community, ‘‘the [European Court of Justice] was careful to create a one-way ratchet by permitting individual participation in the system only in a way that would advance Community goals,’’ most notably those of market integration.78 The ‘‘one-way ratchet’’ metaphor is equally appropriate for other economic regimes. The result is a unidirectional citizenship practice that creates new ‘‘outsiders’’ of those who draw limited benefits and have limited opportunities for participation in shaping the new market order. This is not necessarily to impugn programs of economic liberalization; it is rather to observe that the participatory avenues opened up by supernational economic regimes are restricted in scope and betray the egalitarian and inclusive thrust of rights associated with citizenship.79 The irony of market citizenship, therefore, is that although it furnishes a rare example of private parties participating successfully in global governance, its effect is to favor already privileged actors through the systemic exclusion of wider constituencies of citizens.

Finally: The Changing Nature of Citizenship We have indeed come a long way from classical understandings of citizenship. Linda Bosniak rightly warns us against overextending citizenship into a conceptual vessel that captures much and signifies little.80 With this concern in mind, my use of market citizenship as a characterization of the developing status of private economic actors in global governance remains, to some extent, metaphorical rather than literal. Pace the U.S. Supreme Court’s reasoning in the controversial Citizens United decision,81 corporations are not people, and the term citizenship should ultimately be reserved for real individuals whose needs and aspirations should be the primary concern of public institutions. Nonetheless, I hope to have developed the term market citizenship in a way that captures the problematic arrogation (not to say hijacking) of legal concern at the global level in favor of profitseeking enterprises and often at the expense of real human beings. This, along with the fact that corporations espouse derivative and contingent interests rather than long-term loyalties and principled commitments brings out the critical agenda behind my deliberately unsettling use of the term citizenship in this chapter. What should concern normative scholars

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of citizenship (not to mention citizens themselves) is not the ways in which the market citizenship of corporations falls short of a bona fide conception of citizenship but just how closely it mimics the essential institutional features that make citizenship so indispensable to the moral dignity of individuals. In turn, this new form of political agency and its fictitious subjects indicate that greater changes are afoot. Recall that within the traditional vocabulary of democracy, agora refers to a public forum where citizens assemble to partake of the bustling political life of a community of their peers. Over time, the word agora has shifted away from its original meaning as the center of civic life in classical Athens to connote a marketplace. The account I have given in this chapter suggests a similar shift in priorities at the global level: market citizenship is symptomatic of a creeping takeover of the possibilities for democratic politics by market logic.82 For this reason, the adaptation of the familiar practices of democratic citizenship to the realm of economic institutions is fascinating and disquieting in equal measure.

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Chapter 1 1

Sites of Citizenship, Politics of Scales catherine neveu

There is in the literature on citizenship a frequent tendency to focus on nation-state citizenship, obscuring other sites, spaces, and levels where citizenship manufacturing processes also take place. But even when citizenship analysis does include other sites, spaces, and levels, such diversity is too often analyzed through the lens of nation-state citizenship, which is thus maintained as the implicit norm. As a contribution to the debates on the notion of multilevel citizenship, I argue that they might be more fruitful if connected to an in-depth analysis of their ‘‘politics of scale’’ as a way in which to grasp how, in processes that are built on circulation and exchange, the role of some levels or scales become forgotten and denied and that of others (especially the central or nation-state one) is underlined, made central, and reified. It is indeed not just the sheer plurality of levels and spaces that matters when considering how to grasp and understand such politics of scale but the ways in which each is generally connected to specific competences, attitudes, or audiences. That is, for some analysts, there are different ways to be a citizen (or even an impossibility in becoming one), depending on the level or space where one acts; thus, configurations connecting competences, audiences, and levels depend not on these levels as such but on the political projects at play and their politics of scale. It is such sets of (dis)connections with which I would like to critically engage, both by replacing them within a more general discussion about the ‘‘topographic imaginations of politics’’ underlying them and by relying on empirical research, the aim being to highlight the extent to which maintaining ‘‘scalar thought’’ today constitutes a major obstacle to the analysis of a growing number of processes.

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Critically Questioning ‘‘Scalar Thought’’ This chapter starts by discussing scalar thought as one of the main sources through which citizenship is assigned to one and only one level; that is, the national or central state. It then proceeds to explore some of its effects and alternative practices, based on the French context. According to Isin, ‘‘the scalar thought that underlies our understanding of modern political entities (cities, regions, nations, states . . . ) assumes exclusive, hierarchical and ahistorical relations among and between these entities, and conceals their multiple, fluid and overlapping forms of existence.’’1 In terms of citizenship, such scalar thought implies that there is one and only one level of belonging and loyalty, which is the state level: ‘‘because of its exclusive and encompassing logic, the scalar thought implies an exclusive thought of citizenship itself, as being essentially connected to the state as the only producer of identification, belonging and engagement. A critical analysis of such conceptions is then a pre-condition to grasp the very complexity of citizenship, and the diversity of its sites, levels and spaces of production and enactments.’’2 But before going any further, it seems useful to clarify the meanings given to citizenship and citizen here; indeed (and it is an issue French speakers are often confronted with in English), it is not meant to refer, or at least not only, to a status, a reduction implied by the often-found confusion between nationality and citizenship and typical of seeing ‘‘through the gaze of scalar thought.’’3 If such a confusion has indeed to be analyzed as part of this scalar thought, instead of being taken for granted, enlarging our understanding of citizenship processes beyond their sole statutory dimension is essential for yet other reasons. According to Balibar: I don’t think one can entirely follow legal writers and political scientists who define as of principle citizenship as a status (like nationality). Because what makes for the continuity in history of different modes of instituting citizenship . . . is precisely the fact that the notion of citizen . . . expresses a collective capacity to ‘‘constitute the state’’ or the public space. In other words, it expresses a social link in which the rights and freedoms recognized to individuals, and the obligations that are their counterparts, as limited as they might be, do not emanate from a transcendent power, but only from the ‘‘convention’’ of citizens.4

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Questioning the politics of scale from the perspective of citizenship processes thus requires including a wider set of practices and representations than those connected to its legal dimensions. Along with the anthropological turn citizenship studies have gone through in the recent period,5 Dagnino stresses the need to analyze ‘‘citizenship from below’’ and to take into account the terms in which struggles for citizenship are conducted, in Latin America but more generally, too, ‘‘beyond the incorporation into the political system in a restricted sense of the formal-legal acquisition of rights, [and into] a project for a new sociability, a more egalitarian framework for social relations at all levels, new rules for living together in society.’’ This is what Kabeer6 and Neveu7 call the ‘‘horizontal dimension’’ of citizenship, ‘‘one which stresses that the relationship between citizens is at least as important as the more traditional ‘vertical’ view of citizenship as the relationship between the state and the individual.’’8 The approach to citizenship adopted here is thus one that stresses its debated, contested and always-in-the-making character and includes in the frame its horizontal or ‘‘deep’’ dimensions9 and the fact that not all ‘‘actual’’ citizens are legal ones. It is because I hold a view of citizenship(s) as manufactured through a multiplicity of processes and by a diversity of agents, and as necessarily contextual, that I came to critically question the comfortable dichotomies and exclusive, hierarchical order of scalar thought. Indeed, ‘‘as soon as we begin to shift the question of rights and obligations from the juridico-legal site into social, cultural, ethical, aesthetic and indeed political sites, scalar thought comes up against severe limitations.’’10

Politics of Scales The argument developed here points to the need for an in-depth questioning of a certain number of representations, as powerful as they are rendered invisible, and that impregnate most conceptions of politics, citizenship, and scales or levels that we are brought to use. It is part of a wider move that questions a ‘‘commonsense cartography of the social and political space,’’ mainly relying on a ‘‘vertical topography of power.’’11 From an in-depth analysis of the contemporary uses and success of the notion of ‘‘civil society’’ in anthropological research in Africa,12 Ferguson stresses the existence of a specific spatial imaginary, in which the state is located in a universal ‘‘up there,’’ with a civil society sandwiched between it and the family, which

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would be ‘‘down here.’’ Such a vertical topography of power is consequential, because its very verticality is connected with representations about the local (as authentic, rooted, actual) and grassroots social movements on the one hand and the state and the global (as abstract, artificial) on the other.13 In order to empirically explore some aspects of these representations and their effects, I will examine some commonly found discussions and representations in France about the relationships between levels/spaces and citizenship(s). Indeed, the French case is a revealing one as far as the exclusive connection between the national or central level and citizenship is concerned; arguments denying any relevance to the EU level as a potential site of citizenship have been discussed elsewhere,14 and I will focus here on arguments about ‘‘the local’’ as a site for citizenship, to highlight the extent to which they can be read as many examples of specific politics of scale; that is, specific ways in which to think of politics, citizenships, and their sites, forms, and agents. In the French context,15 research dealing with citizenship issues is rarely empirically based, and anthropological research on citizenship processes is indeed rare.16 Conversely, the now important literature dealing with participatory democracy practices (mainly implemented at the local level) rarely mentions citizenship or citizens as relevant categories. This omission can be explained by the fact that such words are indeed seldom referred to by agents involved in these practices or in the local level more generally.17 However, on closer examination, another and more interesting explanation can be provided for this double absence that connects it to the level at which research occurs or, more precisely, to a set of representations concerning the local, the main level where participatory democracy practices are managed and anthropological research conducted. In the French context, the local remains relatively ill defined and implicitly stands for what is not the national or state level, the latter remaining an unavoidable yardstick. Meanwhile, it is endowed with specific characteristics that are paradoxically used to both justify the implementation at that level of a series of public policies and delegitimize the possibility that it could be a legitimate or efficient level for ‘‘real’’ politics. The local, generally under the guise of the urban neighborhood, is thus often constituted, in academic literature as well as in policies, as a privileged space where propinquity would ‘‘naturally’’ provide for the necessary resources with which solidarity and citizenship might be (re-)developed. In the same move and for the same reasons, this ‘‘localist’’ local is generally

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conceived of as a purely pragmatic space, devoid of the qualities and characteristics of an actual political level or space.18 Thus, when Crowley19 considers the local as a level for bargaining about resources and contrasts such a bargaining with ‘‘properly political deliberation’’ that, according to him, can take place only at the national (or more exactly, central state) level, he implicitly mobilizes, on the one hand, a purely pragmatic and instrumental reading of bargaining and, on the other, a specific conception of politics. Indeed, one could question the notion according to which such bargaining practices have as their sole basis the defense of and negotiations about particular interests. As research on EU institutions has shown clearly, bargaining is also about accommodating a diversity of political cultures; that is, about discussing and negotiating compromises not as much on concrete resources as on worldviews and ways to describe and qualify them20 and thus to understand and build them as political issues. The European level is not unique here, and a similar reading of local mobilizations can be made. Struggles by foreign residents in U.S. cities to gain the right to vote could be seen as bargaining practices to gain access to local resources, such as school boards. But other analyses, such as that by Coll, clearly show that what is fundamentally at stake is to change representations about access to rights and their foundations.21 In other words, even when local mobilizations seem to be organized around what might look at first sight like bargaining for resources, it is essential to try and grasp, beyond and through their ‘‘obvious’’ objects, the significations with which they are endowed as well as the transformative power they carry; for instance, in terms of social justice, political projects, or the framing of issues as political.22 Conceptions that attribute distinct and exclusive processes to levels that are also conceived of as distinct and exclusive privilege an ‘‘encasement,’’ a Russian-doll–like logic, according to which the passage from actual to abstract, from authentic to artificial, and from bargaining to politics would require a climb in generality (which implies detachment from one’s conditions and localizations) progressively gained through upscaling: for each level, specific types of publics, of sets of stakes, and of structures. A (possibly foundational) bargaining at the local level could thus potentially allow for an access to qualitatively and geographically higher (more abstract) levels, those defined as properly political and, thus, as the only ones where citizenship can be enacted. It is essential here to underline the extent to which such a vertical/ hierarchical encasement logic distinguishes specific publics for each of its

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levels. Analyzing participatory democracy practices, Blondiaux thus stressed how publics are called upon ‘‘sometimes as users to whom services are delivered; sometimes as residents whose advice is sought but who are assigned to a territory and whose deliberations are maintained within the confines of the neighborhood; much more rarely as citizens able to express themselves on the very opportunity of projects, to raise the discussion to a more general level; that is, to simply do politics.’’23 Users, residents, and citizens are here as categories connected to specific processes and issues (service delivery, consultation, politics) to which specific and different levels are assigned. Such representations that connect specific categorizations to specific levels and endow them with specific competences and attributes are common.24 What is at stake is their denaturalization and the exploration and understanding of the political processes and projects that are thus envisioned and enacted. In the French context, inhabitants are thus perceived as belonging and contributing to the development of participatory democracy; citizens are perceived as belonging to the realm of representative democracy. The former engage in actual and concrete stakes and the latter are abstract individuals. Inhabitants’ legitimacy flows from their users’ expertise, their rootedness; citizens should abstract themselves from their social determinations and from all forms of belonging aside from the national or central one in order to deliberate as equals in the public sphere. It is not enough to simply state that such conceptions are both mechanical (each scale corresponds to a category, a type of process, and expected attitudes and competences) and hierarchized; what is necessary is for analysts to grasp and understand the specific conceptions of politics, and of citizenship, these ideas rely on and carry. In what has been discussed above, these representations and connections are shot through with the French dominant model of the citizen as an abstract individual, acting in the public sphere from a position of detachment from any kind of belonging or identification (local, cultural, gender, social, and so on), a conception still largely shared by many political scientists. We cannot continue uncritically to distinguish between the citizen, defined as an individual able to abstract himor herself from social and localized rootedness, and the resident or inhabitant, defined as a localized expert, and to attribute these two categories to distinct levels, qualities, and competencies. Such perspectives blind us to the political projects at work and their politics of scale and maintain a simplistic dichotomy that forbids any critical discussion of these notions.25 Is the citizen necessarily a disembodied being who speaks clearly and rationally? Is

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she or he really, or only, a ‘‘being without qualities’’ who deliberates in the public sphere by abstracting him- or herself from her or his connections and belongings, this form being considered as the only way to define ‘‘the general interest’’ and ‘‘be political’’?26 Does the expertise of the resident flow only from spatial closeness, when his or her own actual practices are often inscribed in other references and levels?

Articulating Different Spaces of Citizenships It is this last point I will now try to explore in more detail. The abovementioned ‘‘Russian doll’’ approach to social and political sites and levels and its underlying conceptions of citizenship can be even more fruitfully explored if one considers citizenship practices and processes that connect noncontinuous places, levels, and sites. Indeed, if the EU or other regional spaces can be ‘‘levels of citizenship’’ and local rights be claimed (see the chapter by Helbling in this volume), what happens when citizenship practices are enacted by connecting spaces and levels that are not physically or politically continuous or are not in a ladder-like relationship? Some elements taken from an ongoing research program analyzing the practices through which West African migrants in France and their French children connect discontinuous sites are relevant here. The links between citizenship and territory have conventionally been conceived of as exclusive: as a status managed by states, citizenship was supposed to be attached to and practiced within a state’s territory. But as has been hinted above, such ties are produced through what Sassen has called ‘‘bundlings,’’ sets of connections whose contingency has been concealed in the processes of institutionalization that reified and naturalized them.27 Recent decades have been marked by processes of destabilization or unbundling in which these connections have been made more visible and more contestable; according to Sassen, citizenship and the national state have evolved historically so as to constitute a ‘‘tightly packaged bundle of what were in fact often rather diverse elements. The dynamics at work today are destabilizing these particular bundlings and bringing to the fore the fact itself of that bundling and its particularity. Through their destabilizing effects, these dynamics are producing operational and rhetorical openings for the emergence of new types of political subjects and new spatialities for politics.’’28

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Among these contemporary dynamics, international migrations have certainly been particularly powerful in destabilizing, and thus denaturalizing and rendering visible, the contingency and particularity of such bundlings, rendering them more available to investigation.29 I will thus concentrate again on some issues raised in the French context. Because, as has been said earlier, scalar thought and the vertical topography of power are consequential, the exclusive connection they assume between (state) territory, on the one hand, and citizenship, on the other, has very practical results that can be empirically observed and analyzed. Thus public policies in France that target migrants and their (mostly) French children tend to present as two completely different and separated issues: integration (into French society) and development aid (in the migrant’s country of origin),30 even though migrants’ practices31 have long been in a different dynamic connecting the two. Such a separation and distinction implies and results in the necessity of choosing between two sites or spaces (France or the country of origin), as well as between sets of references and concerns that are presented as the appropriate ones for each (integration and development). Following Tarrius, my ongoing research project attempts to grasp how practices developed by migrants and their children connect, sometimes in paradoxical ways, diverse and disconnected territories and spaces, thus subverting the traditional limits of citizenship.32 For more than fifty years now, migrants from the Senegal river valley (Mali, Senegal, and, to a lesser extent, Mauritania) have been financially and otherwise involved in multiple development projects.33 Too often, such projects are viewed by state agencies as initiatives whose exclusive aim is for participants to prepare to return to their country of origin; in fact, not only do they not ‘‘return home’’ after the projects are launched; such projects work as powerful tools for them to use to envision their citizenship differently, both in France and in Senegal or Mali. Although these migrants have not yet succeeded in gaining a right to vote in France, even in local elections,34 they nevertheless claim and assert, through these many projects and actions ‘‘out there,’’ original forms of spatial and social belonging and political agency in France,35 rendered even more important with the birth and socialization of their children in France. Thus, their involvement in decentralized international cooperation schemes with local authorities has not only allowed them to find further support for their projects, it has also enhanced their recognition as active agents instead of just passive migrants. This recognition has in turn been sometimes influential in initiating new

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relationships, projects, and representations at the local level, concerning their role and claims in French society, as well as those of their families. Conversely, it has provided them with renewed resources in Mali or Senegal, where some migrants have been elected as mayors in the new communes created by decentralization. Many migrants from the Senegal river valley have progressively settled into specific forms of migratory circulations and new, more complex citizenship practices. Far from relying on disconnection between these many spaces of engagement and citizenship, such involvements contribute to the emergence of new dynamic and complex articulations that connect territories, identities, and mobilities in ways that cannot be seen through the scalar gaze. Some of the effects of such practices have been explored by Cartiaux; in her analysis of the practices and discourses of members of voluntary groups created by Senegal river valley migrants and their children, she notes three ways in which relationships between France and West Africa are conceived of and practiced.36 The first one she calls ‘‘translation’’ (as a notion of geometry), the transfer of persons or resources from one site to another (usually from a village to the hostel where migrants in France live and organize). Although sites and spaces are not directly connected through translation, practices and relationships in one site have effects in the other—for instance, in terms of changing social relationships within traditional peer or age groups. The second model of connection between these distant sites is ‘‘conjunction,’’ different in that it includes something common to the two concerned territories: an administrative level, such as when two cities are connected or the capital city of one of the countries is used as a site for meetings and exchanges. When there is conjunction, citizenship practices connect sets of agents involved in common projects, mostly at the local level, and only refer to the state level when specific support or planning authorization is required. The third conception is ‘‘enlargement,’’ which can rely on a thematic approach to concerns expressed in the Senegal river valley, such as health or education, but also mining; in that case, the connected sites include not only concerned neighborhoods or voluntary groups in France and SenegalMali but also other sites where similar issues are debated (in the case of gold mining, contacts have been made with Canadian groups). Thematic enlargement can also flow from concerns in France, such as access to employment, struggles against discrimination, and assertion of legitimate belonging to French society despite or because of one’s origins. Cartiaux

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shows, for instance, how agents in volunteer groups involved in social, economic, or cultural activities in urban French neighborhoods link these territories with those of their inhabitants’ origins, thus introducing new coherence into their actions. Such initiatives then create a ‘‘spiderweb’’ connecting a local space (a neighborhood or a city) to multiple other territories that are close to it not geographically speaking, but through social and cultural networks; a connection that is then ‘‘horizontal’’—it does not comply with the previously discussed ‘‘Russian doll’’ logic but creates spaces for citizenship practices and representations that connect sites located at different levels (villages, capital cities, regions, states . . . ).37 Cartiaux concludes her analysis by stressing that ‘‘it is difficult to ‘fix’ the territorial configurations expressed in voluntary groups . . . , they trifle with scales. . . . But in all these configurations, the French state appears somehow absent [en creux], and dynamic citizenly positions may not directly confront the statutory or normative positions that the state has the power to concede. The conceptions of citizenship proposed [through these practices] disconnect it from the nation-state; [state] authorities still have to admit it.’’38 This chapter has considered the potential of approaches that critically question scalar thought and consider citizenship as not just a status with which individuals are endowed by states but as a constant construction fed by a diversity of sites, agents, and practices. By examining some aspects of how citizenship and locality are connected in the French context, as well as how practices by migrants destabilize taken-for-granted associations, I have tried to empirically ground the fact that connections made between citizenship(s), sites, levels, and competencies are signs of the politics of scales; that is, of specific conceptions about politics, citizenship, and their legitimate levels and forms of expression and enactment. At stake is the need to replace mechanical, vertical, exclusive, and hierarchical conceptions and uses with a problematized approach that denaturalizes the political processes through which localizations, citizenships, and levels are produced and bundled in specific ways. If citizenship(s) can be multilevel, what this actually means must be related to the political projects and imaginaries at play and analyzed contextually. In other words, there is no ‘‘proper’’ or exclusive level at which citizenship(s) must be enacted but rather contextualized sites, spaces, and locations, differently connected according to the stakes and projects. It is thus not ‘‘scales’’ of citizenship as such that should be studied but the ‘‘politics of scales’’ that underlie political mobilizations and projects.

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Contributors

Elizabeth F. Cohen (PhD Yale) is associate professor of political science at the Maxwell School of Citizenship and Public Affairs, Syracuse University. She teaches contemporary and modern political theory, history of political thought, immigration, and citizenship. Elizabeth Dale (PhD Chicago) is professor of history and law at the University of Florida. She teaches courses on constitutional and legal history. Will Hanley (PhD Princeton) is assistant professor of history at Florida State University. He is a former Rhodes scholar at Oxford and postdoctoral fellow at McGill University and teaches courses on Egypt, the Middle East, and imperialism. Marc Helbling (PhD Zurich) is head of the research group Immigration Policies in Comparison (IMPIC) at the Social Science Research Centre Berlin (WZB). He has been a visiting fellow at Princeton University, Harvard University, and New York University. Tu¨rku¨ler Isiksel (PhD Yale) is assistant professor of political science at Columbia University and a former Jean Monnet Fellow at the European University Institute in Florence, Italy. Her research interests include constitutional theory, citizenship, and political institutions beyond the nationstate. Jenn Kinney is a PhD candidate in political science at the Maxwell School of Citizenship and Public Affairs of Syracuse University. She specializes in the areas of political theory, public law, citizenship, and identity.

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Sheryl Lightfoot (PhD Minnesota) is assistant professor of First Nations studies and political science at the University of British Columbia. She specializes in Indigenous peoples’ rights and global Indigenous political movements. She is a citizen of the Lake Superior Band of Ojibwe. Willem Maas (PhD Yale) is Jean Monnet Chair and associate professor at Glendon College, York University and founding co-president of the Migration and Citizenship Section of the American Political Science Association. Catherine Neveu (PhD EHESS Paris) is directrice de recherche at Transformations Radicales des Mondes contemporains (TRAM), E´cole des Hautes E´tudes en Sciences Sociales in Paris. She studies citizenship, urban politics, and participation. Luicy Pedroza (PhD Bremen) is a postdoctoral fellow at the Lateinamerika Institut, Free University of Berlin. Her research interests include political theory, comparative politics, and democratization. Eldar Sarajlic´ is a PhD candidate at the Central European University in Budapest. His main research focus is in political theory, within which he examines the notion of autonomy in the literature on liberal perfectionism and state neutrality. Rogers M. Smith (PhD Harvard) is the Christopher H. Browne Distinguished Professor of Political Science at the University of Pennsylvania and chair of the Penn Program on Democracy, Citizenship, and Constitutionalism.

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Notes

Chapter 1 Let me repeat the acknowledgments from the preface and in particular thank again the other authors for a wonderfully stimulating experience, from initial planning to final editing. Of all those who provided feedback on this chapter, let me mention Meng-Hsuan Chou and Ian Cooper for special thanks. Let me also again gratefully acknowledge support from the Social Sciences and Humanities Research Council of Canada (Standard Research Grant 410-2010-2588, ‘‘Comparative Politics of Citizenship and Nationality’’), the German Academic Exchange Service—Deutscher Akademischer Austausch Dienst, DAAD (a grant for ‘‘Migration and integration in Germany and the European Union’’), and the European Union Centre of Excellence at York University, funded by the European Commission. 1. The English word citizen comes not from nation-states but from cities, the Old French citeain, and before that, the Latin cı¯vita¯ta¯num, as seen also in other Romance languages: an inhabitant of a city or (often) of a town, especially one possessing civic rights and privileges. The Oxford English Dictionary further notes that the Latin cı¯vita¯s was the noun form of the condition of being cı¯vis, a citizen. Its primary sense was therefore citizenship (specifically, ‘‘the body of citizens, the community’’), and only in later times was the word taken as the town or place occupied by the community. The historical relation between the Roman cı¯vita¯s and cı¯vis was thus the reverse of that between the English city and citizen. 2. Leaving aside the question of the degree of sovereignty that states actually exercise; see Robert H. Jackson, Quasi-States: Sovereignty, International Relations, and the Third World, Cambridge Studies in International Relations 12 (Cambridge: Cambridge University Press, 1990). Following the tripartite development described by T. H. Marshall, one can say there is near-unanimous consensus that citizenship should mean equal civil rights for all citizens, strong but not unanimous consensus that all citizens should have the same political rights, and less consensus that citizenship implies equal social rights. The proper content and extent of each of these categories of rights is also contested, particularly those of newer or less settled social rights. T. H. Marshall, Citizenship and Social Class and Other Essays (Cambridge: Cambridge University Press, 1950).

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3. Juan J. Linz and Alfred C. Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (Baltimore: Johns Hopkins University Press, 1996), 28. 4. For example, the notion of an overarching European Union citizenship is jarring as long as EU member states continue to exist as states and the EU itself is not a state. See Willem Maas, Creating European Citizens (Lanham, MD: Rowman & Littlefield, 2007), 2. 5. Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992), 72. 6. Indeed the very concept of international law reflects the priorities of states; after all, it is not transnational law or global law or any other version of non-state law; and the recognized parties under international law are states, although Chapter 10 in this book argues that businesses are starting to play a large role and Chapter 7 argues that Indigenous peoples are also starting to play a role in determining the development of international law. 7. Michael Walzer, ‘‘Response to Chaney and Lichtenberg,’’ in Boundaries: National Autonomy and Its Limits, ed. Peter G. Brown and Henry Shue (Lanham, MD: Rowman & Littlefield, 1981), 101, and David Miller, Citizenship and National Identity (Cambridge: Polity Press, 2000). 8. There is no space, nor is it the role of this chapter, to add to the voluminous literature on nationalism. For an overview of some recent work, see Willem Maas, ‘‘Emerging Themes and Issues in Nationalism, Ethnicity, and Migration Research,’’ in The International Studies Encyclopedia, ed. Robert A. Denemark (Oxford: Blackwell, 2010), 1348–1359. For a recent argument that rights to territory ‘‘belong in the first place to peoples and not to the states that represent them’’ and the conclusion that ‘‘the idea that states may claim and exercise the full set of territorial rights as representatives of the peoples they govern appears sound,’’ see David Miller, ‘‘Territorial Rights: Concept and Justification,’’ Political Studies 60, no. 2 (2012): 265, 266. 9. See, for example, Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996) and David J. Elkins, Beyond Sovereignty: Territory and Political Economy in the Twenty-First Century (Toronto: University of Toronto Press, 1995). 10. For some recent examples, see Gertjan Dijkink and Virginie Mamadouh, ‘‘Territoriality and the EU Citizen,’’ in State Territoriality and European Integration, ed. Michael Burgess and Hans Vollaard (New York: Routledge, 2006), 147–174; Laura Cram, ‘‘Does the EU Need a Navel? Implicit and Explicit Identification with the European Union,’’ JCMS: Journal of Common Market Studies 50, no. 1 (2012): 71–86; and Ju¨rgen Gerhards and Holger Lengfeld, ‘‘European Integration, Equality Rights and People’s Beliefs: Evidence from Germany,’’ European Sociological Review 28, no. 4 (2012). 11. Connie L. McNeely, Constructing the Nation-State: International Organization and Prescriptive Action (Westport, CT: Greenwood Press, 1995), cited in Maas, Creating European Citizens, 3.

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12. Max Weber, ‘‘The Fundamental Concepts of Sociology,’’ in The Theory of Social and Economic Organizations, ed. Talcott Parsons (New York: Free Press, 1964), 156. 13. Ibid. 14. Elkins, Beyond Sovereignty. 15. Maas, Creating European Citizens. Also Rogers Brubaker, Nationalism Reframed: Nationhood and the National Question in the New Europe (Cambridge: Cambridge University Press, 1996). 16. Willem Maas, ‘‘Migrants, States, and EU Citizenship’s Unfulfilled Promise,’’ Citizenship Studies 12, no. 6 (2008): 583–595. The quotation is from Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, case C-184/99, ECR 2001 I-06193 (20 September 2001) and has since been repeated often. 17. Willem Maas, ‘‘Unrespected, Unequal, Hollow? Contingent Citizenship and Reversible Rights in the European Union,’’ Columbia Journal of European Law 15, no. 2 (2009): 265–280. 18. Heather MacRae, ‘‘Multiple Policy Scales and the Development of Parental Leave Policy in Germany,’’ in Federalism, Feminism and Multilevel Governance, ed. Melissa Haussman, Marian Sawer, and Jill Vickers (Burlington, VT: Ashgate, 2010), 139. 19. Liesbet Hooghe and Gary Marks, Multi-Level Governance and European Integration (Lanham, MD: Rowman & Littlefield, 2001), xi. There is a wealth of literature on multilevel governance in Europe. Recent works include Hubert Heinelt and Miche`le Knodt, eds., Policies Within the EU Multi-Level System: Instruments and Strategies of European Governance (Baden-Baden: Nomos, 2011); Ingeborg To¨mmel and Amy Verdun, eds., Innovative Governance in the European Union: The Politics of Multilevel Policymaking (Boulder, CO: Lynne Rienner Publishers, 2009); Beate Kohler-Koch and Fabrice Larat, eds., European Multi-Level Governance: Contrasting Images in National Research (Cheltenham: Edward Elgar, 2009); Ian Bache, Europeanization and Multilevel Governance: Cohesion Policy in the European Union and Britain (Lanham, MD: Rowman & Littlefield, 2008). 20. Jo Shaw, ‘‘Citizenship and Electoral Rights in the Multi-Level ‘Euro-Polity’: The Case of the United Kingdom,’’ in A Right to Inclusion and Exclusion? Normative Fault Lines of the EU’s Area of Freedom, Security and Justice, ed. Hans Lindahl (Oxford: Hart Publishing, 2009), 241–253; Jo Shaw, ‘‘Political Rights and Multilevel Citizenship in Europe,’’ in Illiberal Liberal States: Immigration, Citizenship and Integration in the EU, ed. Elspeth Guild, Kees Groenendijk, and Sergio Carrera (Farnham, England: Ashgate, 2009), 29–50. 21. Michael Keating, ‘‘Social Citizenship, Solidarity and Welfare in Regionalized and Plurinational States,’’ Citizenship Studies 13, no. 5 (2009): 501–513. 22. Ibid. 23. Louise A. Chappell, ‘‘Feminist Engagement with Federal Institutions: Opportunities and Constraints for Women’s Multilevel Citizenship,’’ in Representation and

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Democratic Theory, ed. David H. Laycock (Vancouver: UBC Press, 2004), 66; Louise A. Chappell, Gendering Government: Feminist Engagement with the State in Australia and Canada (Vancouver: UBC Press, 2002). 24. Melissa Haussman, Marian Sawer, and Jill Vickers, eds., Federalism, Feminism and Multilevel Governance (Burlington, VT: Ashgate, 2010), 234. 25. David Held, Cosmopolitanism: Ideals and Realities (Cambridge: Polity Press, 2010), 177. See the section entitled ‘‘Multilevel citizenship, multilayered democracy.’’ 26. For an expanded treatment of the ideas in this paragraph, see Willem Maas, ‘‘Citizenship,’’ in The Encyclopedia of Political Science, ed. George Thomas Kurian, James E. Alt, Simone Chambers, Geoffrey Garrett, Margaret Levi, and Paula D. McClain (Washington, DC: CQ Press, 2011), 226–230. 27. Willem Maas, ‘‘The Genesis of European Rights,’’ Journal of Common Market Studies 43, no. 5 (2005): 1009–1025; Maas, Creating European Citizens. 28. Canada, Royal Commission on Aboriginal Peoples, Rene´ Dussault, and Georges Erasmus, People to People, Nation to Nation: Highlights from the Report of the Royal Commission on Aboriginal Peoples. (Ottawa: The Commission, 1996). 29. See ‘‘European Commission, Western Balkans Communication,’’ March 5, 2008, http://ec.europa.eu/enlargement/balkans_communication/index_en.htm. 30. Maas, Creating European Citizens. 31. Piero Malvestiti, cited in Maas, ‘‘The Genesis of European Rights,’’ 1012. 32. European Council, 1995, cited in Maas, Creating European Citizens. 33. This paragraph and the next draw on Maas, ‘‘Migrants, States, and EU Citizenship’s Unfulfilled Promise.’’ 34. Maas, Creating European Citizens, 115. 35. Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge, MA: Harvard University Press, 1991), 2–3. 36. Harry Eckstein, Regarding Politics: Essays on Political Theory, Stability, and Change (Berkeley: University of California Press, 1992), 345. 37. See Maas, Creating European Citizens. 38. Vicki C. Jackson, ‘‘Federalism and Citizenship,’’ in Citizenship Today: Global Perspectives and Practices, ed. T. Alexander Aleinikoff and Douglas Klusmeyer (Washington, DC: Carnegie Endowment for International Peace, 2001), 127–182; T. Faist, ‘‘Social Citizenship in the European Union: Nested Membership,’’ Journal of Common Market Studies 39, no. 1 (2001): 37–58; Rainer Baubo¨ck, ‘‘Political Boundaries in a Multilevel Democracy,’’ in Identities, Affiliations, and Allegiances, ed. Seyla Benhabib, Ian Shapiro, and Danilo Petranovic´ (Cambridge: Cambridge University Press, 2007). 39. For a recent work examining such issues, see Ferran Requejo Coll and Miquel Caminal i Badia, eds., Federalism, Plurinationality and Democratic Constitutionalism: Theory and Cases (New York: Routledge, 2012). 40. Maarten Prak, ‘‘Burghers into Citizens: Urban and National Citizenship in the Netherlands During the Revolutionary Era (c. 1800),’’ in Extending Citizenship, Reconfiguring States, ed. Michael Hanagan and Charles Tilly (Lanham, MD: Rowman & Littlefield, 1999).

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41. These examples are covered in Maas, Creating European Citizens, 68–69. 42. Espen D. H. Olsen, Transnational Citizenship in the European Union: Past, Present, and Future (London: Continuum, 2012). 43. Maas, Creating European Citizens. 44. Grzelczyk, case C-184/99, ECR 2001 I-06193 (20 September 2001). 45. Elsewhere I have argued that the most important substantive rights of EU citizenship are those of free movement, which have been developing since the postwar origins of European integration (Maas, Creating European Citizens). Within the growing field of migration studies, most research focuses on international migration, movement between states involving international borders. But migration across jurisdictional boundaries within states is at least as important as international migration. Within the European Union, free movement often means changing residence across jurisdictional boundaries within a political system with a common citizenship, even though EU citizenship is not traditional national citizenship. The EU is thus a good test of the tension between the equality promised by common citizenship and the diversity institutionalized by borders. See Willem Maas, ‘‘Equality and Free Movement of People,’’ in Democratic Citizenship and the Free Movement of People, ed. Willem Maas (Leiden: Martinus Nijhoff, 2013). Chapter 2 1. Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, NJ: Princeton University Press, 2006), 3. 2. Cristina Rodrı´guez, ‘‘Noncitizen Voting and the Extraconstitutional Construction of the Polity,’’ International Journal of Constitutional Law 8, no. 1 (2010): 1. 3. See Marc Helbling, ‘‘Local Citizenship Politics in Switzerland: Between National Justice and Municipal Particularities,’’ Chapter 8 in this volume. 4. Tomas Hammar, Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration (Aldershot: Ashgate, 1990), rescued this term from a forgotten academic use to refer to settled immigrants who function in host societies almost indistinguishably from citizens but lack the formal citizenship that would give them electoral rights at all levels and the right to work in certain professions. Rainer Baubo¨ck has redefined it as ‘‘a status of residential quasi-citizenship combined with external formal citizenship’’ (‘‘Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting,’’ Fordham Law Review 75, no. 5 [2007]: 239). I borrow it here in precisely that sense, referring to those migrants that arrived and have a legal status to remain in the territory. Regarding countries that belong to the European Union, in the text or in the tables, note that I do not refer to the electoral rights of Europeans in European countries but to the denizen rights of ‘‘third country nationals.’’ 5. Rogers Brubaker, Immigration and the Politics of Citizenship in Europe and North America (New York: University Press of America, 1989); William Safran, ‘‘Citizenship and Nationality in Democratic Systems: Approaches to Defining and Acquiring Membership in the Political Community,’’ International Political Science Review 18

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(1997); Randall Hansen and Patrick Weil, eds., Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe (New York: Berghan Books, 2002); Thomas Hammar, ‘‘Dual Citizenship and Political Integration,’’ International Migration Review 19, no. 3 (1985); Ju¨rgen Habermas, ‘‘Citizenship and National Identity: Some Reflections on the Future of Europe,’’ Praxis International 12 (1992); Richard Mu¨nch, Nation and Citizenship in the Global Age: From National to Transnational Ties and Identities (New York: Palgrave Macmillan, 2001). 6. On the possibility principle that recommends the selection of relevant negative cases for comparative research, see James Mahoney and Gary Goertz, ‘‘The Possibility Principle: Choosing Negative Cases in Comparative Research,’’ American Political Science Review 98, no. 4 (2004). 7. A federal system is a necessary condition for reforms at the local level but is not sufficient: there are also federal systems where denizen enfranchisement (restricted to the local level) has been a national reform. 8. See Rodrı´guez, ‘‘Noncitizen Voting,’’ 33. 9. Rules for minimum residence are sometimes complex (accounting for various types of residence, continuity, exceptions, etc.), but I focus here on the total minimum requirements. Although there is no agreement on a fair minimum, previous studies consider five years accessible; for example, see Marc M. Howard, ‘‘Comparative Citizenship: An Agenda for Cross-National Research,’’ Perspectives on Politics 4, no. 3 (2006). 10. For a study of these arguments at the normative level, see Daniel Munro, ‘‘Integration through Participation: Non-Citizen Resident Voting Rights in an Era of Globalization,’’ International Migration and Integration 8 (2008). Empirical studies of political discourse of denizen enfranchisement reforms include Dirk Jacobs, ‘‘Discourse, Politics and Policy: The Dutch Parliamentary Debate about Voting Rights for Foreign Residents,’’ International Migration Review 32, no. 2 (1998), and Luicy Pedroza, ‘‘But Don’t Mention Migration! Explaining the ‘Failed’ Denizen Enfranchisement Reforms in Germany,’’ DISC Working Papers 15 (Center for the Study of Imperfections in Democracies), 2011, available at https://disc.ceu.hu/sites/default/files/ field_attachment/page/node-3320/discwp201115.pdf [accessed on August 2012]. 11. David Earnest, Noncitizen Voting Rights: A Survey of an Emerging Democratic Norm (Washington, DC: George Washington University, 2002); Harald Waldrauch, ed., Citizens, Non-citizens and Voting Rights in Europe (University of Edinburgh, 2005); Rainer Baubo¨ck, ‘‘Wessen Stimme Za¨hlt? These u¨ber Demokratische Beteiligung in der Einwanderungsgessellschaft,’’ Wiener Hefte zu Migration und Integration in Theorie und Praxis 1, no. 1 (2003), Defizita¨re Demokratie—MigrantInnen in der Politik. 12. The most famous examples are the works by William R. Brubaker: ‘‘Immigration, Citizenship, and the Nation-State in France and Germany: A Comparative Historical Analysis,’’ International Sociology 5, no. 4 (1990), and Immigration and the Politics of Citizenship. 13. The first to offer hypotheses regarding the reasons to enfranchise noncitizens in countries with very low or negative immigration rates were Harald Waldrauch,

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‘‘Electoral Rights for Foreign Nationals: A Comparative Overview of Regulations in 36 Countries,’’ National Europe Centre Paper no. 73, 23–24; and Rainer Baubo¨ck, ‘‘Expansive Citizenship: Voting beyond Territory and Membership,’’ PSOnline (2005): 685. Though prima facie plausible, these hypotheses would require more research about the processes of enfranchisement in those cases. 14. David Jacobson, Rights across Borders: Immigration and the Decline of Citizenship (Baltimore: Johns Hopkins University Press, 1996); Yasemin Soysal, ‘‘Toward a Post-national Model of Membership,’’ in The Citizenship Debates, ed. Gershon Shafir (Minneapolis: University of Minnesota, 1998), and ‘‘Between National and Postnational: Membership in the United States,’’ in Toward Assimilation and Citizenship: Immigrants in Liberal Nation-States, ed. Joppke and Morawska (New York: Palgrave Macmillan, 2003). 15. Christian Joppke, ‘‘The Evolution of Alien Rights in the United States, Germany, and the European Union,’’ in Nationality Law in Europe, ed. Randall Hansen and Patrick Weil (London: Macmillan, 2001), 17. 16. David Earnest, ‘‘Political Incorporation and Historical Institutionalism: A Comparison of the Netherlands, Germany and Belgium’’ (2005); Richard Mu¨nch, Nation and Citizenship in the Global Age. 17. Christian Joppke, ‘‘Integrating Immigrants in Liberal Nation-States,’’ in Toward Assimilation and Citizenship: Immigrants in Liberal Nation-States, ed. Joppke and Morawska (New York: Palgrave Macmillan, 2003), 5; Randall Hansen and Patrick Weil, ‘‘Introduction: Citizenship, Immigration and Nationality: Towards a Convergence in Europe,’’ in Towards a European Nationality: Citizenship, Immigration and Nationality Law in the EU, ed. Randall Hansen and Patrick Weil (Basingstoke, Hampshire: Palgrave, 2001), 1–23. 18. Patrick Weil, ‘‘The History of French Nationality: A Lesson for Europe,’’ in Towards a European Nationality: Citizenship, Immigration and Nationality Law in the EU, ed. Randall Hansen and Patrick Weil (Basingstoke, Hampshire: Palgrave, 2001), 52–67; Rainer Baubo¨ck et al., eds., Acquisition and Loss of Nationality, vol. 1, Comparative Analyses (Amsterdam University Press, 2006), and Acquisition and Loss of Nationality, vol. 2, Policies and Trends in 15 European Countries: Country Analyses (Amsterdam: Amsterdam University Press, 2007). 19. Christian Joppke, ‘‘Comparative Citizenship: A Restrictive Turn in Europe?’’ Law and Ethics of Human Rights 2, no. 1 (2008): 7. 20. See Christian Joppke, ‘‘The Evolution of Alien Rights,’’ 36–62; Willem Maas, ‘‘Unrespected, Unequal, Hollow? Contingent Citizenship and Reversible Rights in the European Union,’’ Columbia Journal of European Law 15, no. 2 (2009): 267; Randall Hansen and Jobst Koehler, ‘‘Issue Definition, Political Discourse and the Politics of Nationality Reform in France and Germany,’’ European Journal of Political Research 44 (2005): 624. As Hansen and Koehler put it, Brubaker’s story remains partially correct: deeply held views on citizenship shape political actors’ attitudes to citizenship and their policy on it. However, his view on political stasis and the reinforcing effects of

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value-laden concepts overlooks the extent to which citizenship, however ideologically determined, remains a policy area. 21. Charles Tilly, ‘‘Citizenship, Identity and Social History,’’ International Review of Social History 40, S3 (1995). 22. Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge University Press, 2004). 23. Exceptions are Howard, ‘‘Comparative Citizenship’’; Rainer Baubo¨ck, ed., From Aliens to Citizens: Redefining the Status of Immigrants in Europe (Vienna: European Centre Vienna, 1994); Baubo¨ck, ‘‘Expansive Citizenship’’ and ‘‘Stakeholder Citizenship’’; Harald Waldrauch, ‘‘Electoral Rights for Foreign Nationals: A Comparative Overview’’ (paper delivered at the ESF/LESC-SCSS Exploratory Workshop ‘‘Citizens, Non-citizens and Voting Rights in Europe,’’ School of Law, University of Edinburgh, 2005). 24. See Harald Waldrauch, ‘‘Electoral Rights’’; Dirk Jacobs, ‘‘The Debate over Enfranchisement of Foreign Residents in the Netherlands and Belgium: Absence of the Ethnic Minority Voice?’’ (paper presented at the Joint Sessions of the European Consortium for Political Research, Mannheim, March 26–31, 1999). 25. Robert A. Dahl, Democracy and Its Critics, 12th ed. (New Haven, CT: Yale University Press, 1991); Michael Walzer, Las Esferas de la Justicia: Una Defensa del Pluralismo y la Igualdad (Mexico City: Fondo de Cultura Econo´mica, 1997); Joseph Carens, ‘‘The Integration of Immigrants,’’ Journal of Moral Philosophy 2, no. 1 (2005): 29–46. 26. The notion of political citizenship is reserved for democratic governments under which citizens are not only legal subjects of a state but holders of political rights—voting rights—and may participate regularly in the political process. See Maas, ‘‘Citizenship,’’ in International Encyclopedia of Political Science, ed. George T. Kurian (Washington, DC: CQ Press, 2011), 226. 27. According to Torpey, in the system of nation-states, the regulation of movement through identification processes that relied on nationality (e.g., passport and visa regulations) played a decisive role in assigning identities as citizens and as nationals that are hard to escape (The Invention of the Passport: Surveillance, Citizenship and the State [Cambridge University Press, 2010], 166). 28. Latvia is the case par excellence of ‘‘noncitizenship’’ status based on exclusion on ethnic grounds—see Susanne To¨nsmann, ‘‘Documenting Existence: Citizens’ Passports and Non-Citizens’ Passports,’’ in Do Not Exist: Europe, Woman, Digital Medium, ed. Andrea Sick and Claudia Reiche (Bremen: thealit), 205–15. However, a noncitizen passport was also issued in the last two decades in the Central Asian republics of Tajikistan and Uzbekistan to address the stateless status of many displaced peoples without granting them political participation rights. 29. Seyla Benhabib, ‘‘Twilight of Sovereignty or the Emergence of Cosmopolitan Norms? Rethinking Citizenship in Volatile Times,’’ Citizenship Studies 11, no. 1 (2007): 30.

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30. See more on the development of European citizenship in Willem Maas, Creating European Citizens (Lanham, MD: Rowman and Littlefield, 2007). 31. Third-country nationals enjoy free-movement rights within the EU after five years of residence and with further conditions attached, according to Directive 2004/ 38/EC of the European Parliament and of the Council of April 29, 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states, also known as the Citizens Directive, 2004/38. See more in Christian Joppke, ‘‘The Inevitable Lightening of Citizenship,’’ Archives Europe´ennes de Sociologie 51, no. 1 (2010): 26. 32. Hammar, Democracy, 21. 33. Cf. Joppke, ‘‘The Inevitable.’’ 34. Kees Groenendijk, ‘‘Local Voting Rights for Non-Nationals in Europe: What We Know and What We Need to Learn’’ (Migration Policy Institute, 2008), 6, http:// www.migrationpolicy.org/transatlantic/docs/Groenendijk-FINAL.pdf. 35. Dietling Stolle and Marc M. Howard, ‘‘Civic Engagement and Civic Attitudes in Cross-National Perspective: Introduction to the Symposium,’’ Political Studies 56 (2008): 3. 36. Joseph Carens, ‘‘Citizenship and Civil Society: What Rights for Residents?’’ in Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe, ed. Randall Hansen and Patrick Weil (New York: Berghan Books, 2002), 230; cf. Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Cambridge, MA: Harvard University Press, 2009). On denizen voting rights in the history of the United States, see Ron Hayduk, Democracy for All: Restoring Immigrant Voting Rights in the United States (New York: Routledge, 2006). A very recent discussion in the United States, where only citizens are allowed to vote in national and statewide elections, has arisen after the New York Times made known a case of a permanent resident, a citizen of St. Kitts and Nevis registered in the electoral roll back in 1992 who faced deportation (Kirk Semple, ‘‘For Some Immigrants, Voting Is a Criminal Act,’’ New York Times, October 15, 2010). This case made evident that although immigrants who are granted permanent residency (a green card) enjoy an array of privileges, including the right to work, they can lose them all, be imprisoned for up to a year, and be expelled from the country if the authorities discover that they have even registered to vote. The citizens of Portland, Maine, voted on November 2, 2010, to decide whether legal residents should get voting rights in municipal elections so they could have a voice on issues that affect their taxes. A few cities in Massachusetts have already passed similar efforts, and San Francisco politicians have proposed allowing all parents of public school children to vote in school elections (Ken Garcia, ‘‘Propositions Key to Deciding Who Can Vote, When,’’ San Francisco Examiner, October 10, 2010). As in most other debates regarding denizen enfranchisement, some opponents argue that advocates for the immigrant community would be better off helping them decide and work toward acquiring citizenship ‘‘rather than fight to win them only some of the rights that come with it’’ (‘‘Our View: Voting Rights Should Not Be Extended to Noncitizens,’’ Portland Press Herald, October 18, 2010).

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37. Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 2008), x. 38. Fiona Adamson, ‘‘Crossing Borders: International Migration and National Security,’’ International Security 31, no. 1 (2006): 182. 39. Yasemin Soysal, ‘‘Toward a Post-national Model of Membership,’’ in The Citizenship Debates, ed. Gershon Shafir (Minneapolis: University of Minnesota, 1998). 40. Aihwa Ong, ‘‘Mutations in Citizenship,’’ Theory, Culture & Society 23, nos. 2–3 (2006): 499; Yasemin N. Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 2007). 41. Joppke, ‘‘The Inevitable,’’ 18. 42. Brochures of citizenship consulting agencies promote a second citizenship not only as an ‘‘effective tool for international tax planning’’ that offers ‘‘more privacy in banking and investment’’ but as ‘‘the best form of insurance money can buy’’: ‘‘the passport from a small, peaceful country can save your life when travelling and in times of political unrest, civil war, terrorism, and other delicate situations.’’ Overall, St. Kitts & Nevis offers the most attractive citizenship-by-investment program available today, closely followed by a recently introduced program in Montenegro (‘‘Why You Need an Alternative Citizenship,’’ Henley & Partners, https://www.henleyglobal.com/ citizenship/why-alternative-citizenship). 43. Rainer Baubo¨ck, ‘‘The Trade-Off Between Transnational Citizenship and Political Autonomy,’’ in Dual Citizenship in Global Perspective: From Unitary to Multiple Citizenship, ed. Thomas Faist (Basingstoke: Palgrave Macmillan, 2007). 44. Engin Isin and Bryan Turner, ‘‘Investigating Citizenship: An Agenda for Citizenship Studies,’’ Citizenship Studies 11, no. 1 (2007): 11. 45. See Benhabib, ‘‘Twilight of Sovereignty,’’ 20. 46. Peter J. Spiro, Beyond Citizenship: American Identity after Globalization (Oxford University Press, 2008), 159. 47. This happens with rules of acquisition of nationality that ignore residence, thus encouraging citizenship tourism through unrestricted jus soli, or it happens with citizenship for descendants of citizens who have never touched the territory of the state in question through jus sanguinis—see Costica Dumbrava, ‘‘How Illiberal Are Citizenship Rules in European Union Countries?’’ Working Paper 50 (Florence: EUI RSCAS Working Papers, 2010). 48. Rodrı´guez, ‘‘Noncitizen Voting,’’ 45. 49. Cf. Elizabeth F. Cohen, Semi-Citizenship in Democratic Politics (Cambridge: Cambridge University Press, 2009), 249. 50. Naoto Higuchi, ‘‘Political Participation of Noncitizens in Japan: Continuity and Change in the 1990s’’ (Social Science Research Papers, University of Tokushima, no. 15, 2002), 262–263. 51. Adrian Favell, Eurostars and Eurocities: Free Movement and Mobility in an Integrating Europe (Malden, MA: Blackwell, 2008), 20. 52. See Baubo¨ck, From Aliens, and cf. Ruth Rubio-Marı´n, ‘‘Stranger in Your Own Home: The Incorporation of Resident Aliens into the Political Community: Theory

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and Constitutional Practice in Germany and the United States’’ (PhD diss., European University Institute, 1997). Recently the Western world has seen desperate campaigns to make citizenship acquisition harder and more highly ‘‘prized.’’ According to Joppke, the language of the citizenship tests that are mushrooming from the Netherlands to Australia aims to appease native populations after the significant opening for legal immigration of the highly skilled, which is still deeply unpopular (‘‘Do Obligatory Civic Integration Courses for Immigrants in Western Europe Further Integration?’’ [October Policy Brief 8, Bundeszentrale fu¨r Politische Bildung, 2007]). 53. Cf. Munro, ‘‘Integration through Participation’’; Waldrauch, ‘‘Citizens, Noncitizens.’’ 54. All these arguments were also formulated during the denizen enfranchisement debates in Germany. See Pedroza, ‘‘But Don’t Mention Migration!’’ 55. Joppke, ‘‘The Inevitable,’’ 12. 56. Joppke, ‘‘The Inevitable,’’ 12. 57. Cf. Kentaro Fukumoto, ‘‘A Hierarchy of Citizenship: Identity Politics of Suffrage Extension and Welfare Development’’ (USJP Occasional Paper 04–03, Harvard University, 2004), 2. Chapter 3 The reference is to the song ‘‘Living in the Promiseland,’’ a country hit that Texan Willie Nelson sang and produced in 1986, the same year Congress enacted its last major (unsuccessful) effort at comprehensive immigration reform legislation, the Immigration Reform and Control Act of 1986 (IRCA). The act provided amnesty to an estimated three million undocumented aliens, but the promises of its advocates that it would thereby reduce the undocumented alien population and quiet controversies over immigration were not fulfilled. The undocumented population grew, as did rancor over immigration. 1. The vertical dimensions linking ‘‘multilevel citizenships’’ are, of course, central to many of the chapters in this volume, and they provide ample evidence that the American patterns discussed here have at least partial counterparts in other federal systems. See especially the chapters by Maas, Helbling, Sarajlic´, and Neveu (Chapters 1, 8, 9, and 11). 2. Elizabeth M. Grieco, Yesenia D. Acosta, G. Patrica de la Cruz, Christine Gambino, Thomas Gryn, Luke J. Larsen, Edward N. Trevelyan, and Nathan P. Walters, ‘‘The Foreign-Born Population in the United States: 2010,’’ American Community Survey (Washington, DC: U.S. Census Bureau, 2010), http://www.census.gov/prod/ 2012pubs/acs-19.pdf. 3. Michael Hoefer, Nancy Rytina, and Bryan Baker, ‘‘Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011,’’ Population Estimates, Office of Immigration Statistics Policy Directive (Department of Homeland Security, 2012), 4, http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_ pe_2011.pdf.

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4. Jeffrey Passel, D’Vera Cohn, and Ana Gonzalez-Barrera, ‘‘Net Migration from Mexico Falls to Zero—and Perhaps Less,’’ Pew Hispanic Center report (Pew Research Center, 2012), http://www.pewhispanic.org/files/2012/04/Mexican-migrants-report _final.pdf. 5. Rogers M. Smith, ‘‘Constitutional Democracies, Coercion, and Obligations to Include,’’ in The Limits of Constitutional Democracy, ed. Jeffrey K. Tulis and Stephen Macedo (Princeton, NJ: Princeton University Press, 2010), 280–296. An earlier online formulation is Rogers M. Smith, ‘‘The Principle of Constituted Identities and the Obligation to Include,’’ Ethics & Global Politics 1, no. 3 (2008): 139–153. 6. Smith, ‘‘Constitutional Democracies,’’ 295; Rogers M. Smith, ‘‘ ‘Living in a Promiseland? Mexican Immigration and American Obligations,’’ Perspectives on Politics 9 (2011): 545–557 . The current essay incorporates portions of both. 7. Smith, ‘‘Living in a Promiseland?’’ 8. The phrase appears to have first been used in 2005 by Mark Krikorian, longtime director of the Center for Immigration Studies (CIS), created in 1985 to urge immigration restrictions. Mark Krikorian, ‘‘Downsizing Illegal Immigration: A Strategy of Attrition through Enforcement,’’ Backgrounder (Center for Immigration Studies, May 2005), http://www.cis.org/ReducingIllegalImmigration-Attrition-Enforcement. See, e.g., Steven A. Camarota (CIS director of research), ‘‘Making Interior Enforcement Work,’’ testimony prepared for the House Judiciary Committee Subcommittee on Immigration and Claims (Center for Immigration Studies, June 19, 2002), http:// www.cis.org/node/524. 9. David Boroff and Roque Planas, ‘‘Romney Says He Favors ‘Self-Deportation,’ ’’ New York Daily News, January 24, 2012, http://articles.nydailynews.com/2012-01-24/ news/30657385_1_mitt-romney-illegal-immigrants-deportation. 10. See, e.g., America’s Voice Research on Immigration Reform, ‘‘ ‘Attrition through Enforcement’: Just Another Name for Mass Deportation,’’ report (America’s Voice, February 2011), http://americasvoiceonline.org/research/entry/attrition_ through_enforcement_just_another_name_for_mass_deportation; Walter A. Ewing, ‘‘The Many Facets of Effective Immigration Reform,’’ Sociology 47 (February 19, 2010): 110–117, DOI 10.1007/s12115–009–9288–4 (Immigration Policy Center, American Immigration Council), http://www.immigrationpolicy.org/sites/default/files/docs/ Ewing_47-2_M-A_2010.pdf. 11. Gabriel J. Chin, Toni M. Massaro, and Marc L. Miller, ‘‘The Constitutionality of Arizona SB 1070 and Other State Immigration Laws,’’ issue brief (American Constitution Society for Law and Policy, November 22, 2010), http://www.acslaw.org/public ations/issue-briefs/the-constitutionality-of-arizona-sb-1070-and-other-state-immi gration-law-0. 12. Camarota, ‘‘Making Interior Enforcement Work.’’ 13. Mark Krikorian, ‘‘A Stern Face and a Warm Welcome’’ (Center for Immigration Studies, October 27, 2003), http://www.cis.org/node/358. 14. Krikorian, ‘‘Downsizing Illegal Immigration,’’ 3, 5. The previous year, Krikorian had published an earlier version of this essay, including the call for working with

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state and local officials but without using the ‘‘attrition through enforcement’’ label (Mark Krikorian, ‘‘Not Amnesty But Attrition: The Way to Go on Immigration’’ [Center for Immigration Studies, March 22, 2004], http://www.cis.org/AttritionNot Amnesty). 15. Jessica M. Vaughan, ‘‘Attrition through Enforcement: A Cost-Effective Strategy to Shrink the Illegal Population,’’ Backgrounder (Center for Immigration Studies, April 2006), 9–10, http://www.cis.org/Enforcement-IllegalPopulation. 16. Vaughan, ‘‘Attrition through Enforcement,’’ 13–14. 17. Vaughan, ‘‘Attrition through Enforcement,’’ 13–14. 18. See, e.g., Gebe Martinez, ‘‘Beyond Arizona: Without Comprehensive Immigration Reform, Intolerance Will Rise Across Our Country’’ (Center for American Progress, 2010), 4–8, http://www.americanprogress.org/issues/2010/05/beyond_ari zona.html. 19. Martinez, ‘‘Beyond Arizona,’’ 9–11; Cristina M. Rodrı´guez, ‘‘The Significance of the Local in Immigration Regulation,’’ Michigan Law Review 106 (2007–2008): 577– 579; and for a comprehensive overview, see Kinney and Cohen (Chapter 4) in this volume. 20. Krikorian, ‘‘Downsizing Illegal Immigration,’’ 4. 21. Jeffrey Kaye, ‘‘Re-living Our Immigrant Past: From Hazleton to Arizona and Back Again,’’ Perspectives on Immigration (Immigration Policy Center, American Immigration Council, 2010), http://www.immigrationpolicy.org/sites/default/files/ docs/Jeffrey_Kaye_-_Hazleton_052010.pdf. 22. Kansans for Kobach, ‘‘Kris Kobach, Kansas Secretary of State, Defender of Cities and States that Fight Illegal Immigration,’’ http://www.kriskobach.org/index1.html. While a Yale Law student from 1993 to 1995, Kobach twice served as my teaching assistant in constitutional law courses, very ably, despite some respectful disagreements with the course instructor. 23. ‘‘Mitt Romney Announces Support of Kansas Secretary of State Kris Kobach’’ (Romney: Believe in America, January 11, 2012), http://www.mittromney.com/news/ press/2012/01/mitt-romney-announces-support-kansas-secretary-state-kris-kobach. 24. Kris W. Kobach, ‘‘Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments,’’ Yale Law Journal 103 (1994): 1971–2007. 25. Kris W. Kobach, ‘‘The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests,’’ Albany Law Review 69 (2006): 179– 235; ‘‘Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration,’’ Georgetown Immigration Law Journal 22 (2008): 459–483. 26. Vaughan, ‘‘Attrition through Enforcement,’’ 15n40. 27. Kris W. Kobach, ‘‘Attrition through Enforcement: A Rational Approach to Illegal Immigration,’’ Tulsa Journal of Comparative and International Law 15 (2008): 155–163. Kobach cited Vaughan in turn at 163n24. 28. Kobach, ‘‘Attrition through Enforcement,’’ 156. 29. See, e.g., Kris W. Kobach, ‘‘The Immigration Answer,’’ New York Post, February 13, 2008, http://www.kriskobach.org/Assets/Files/Immigration_Answer.pdf; Public

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Safety and Civil Rights Implications of State and Local Enforcement of Federal Immigration Laws, Before the House Comm. on Judiciary, Subcomm. on Constitution, Civil Rights, and Civil Liberties and Subcomm. on Immigration, Citizenship, Refugee, Border Security, and International Law (April 2, 2009) (testimony of Kris W. Kobach), http:// judiciary.house.gov/hearings/pdf/Kobach090402.pdf; Kris W. Kobach, ‘‘Why Arizona Drew a Line,’’ New York Times, April 29, 2010, A31; John Hanna, ‘‘Kris Kobach, Architect of Arizona Immigration Law SB1010, Is Behind Other Controversial Laws,’’ Huff Post Politics, May 10, 2010, http://www.huffingtonpost.com/2010/05/10/kriskobach-architect-of_n_570662.html. 30. Kaye, ‘‘Re-living Our Immigrant Past,’’ 2; State Legislators for Legal Immigration, ‘‘An Update on Invasion PA’’ (2012), http://www.statelegislatorsforlegalimmi gration.com/. 31. Julia Preston, ‘‘State Lawmakers Outline Plans to End Birthright Citizenship, Drawing Outcry,’’ New York Times, January 6, 2011, A16. 32. See, e.g., danfmarsh, ‘‘How ‘Attrition Through Enforcement’ Works’’ (NumbersUSA for Lower Immigration Levels, December 10, 2007), https://www.numbers usa.com/content/print/282?; James R. Edwards, Jr., ‘‘Prince William County Proves ‘Attrition Through Enforcement’ Works’’ (Human Events: Powerful Conservative Voices, January 6, 2011), http://www.humanevents.com/article.php?id41008; Mark Krikorian, ‘‘Attrition Through Enforcement Marches On,’’ National Review Online, April 20, 2010, http://www.nationalreview.com/corner/198210/attrition-throughenforcement-marches/mark-krikorian; Daniel Horowitz, ‘‘Attrition Through Enforcement Policy Works in Alabama’’ (RS Redstate, October 4, 2011), http://www .redstate.com/dhorowitz3/2011/10/04/attrition-through-enforcement-immigrationpolicy-works-in-alabama/. 33. Senate Bill 1070, State of Arizona, 49th Leg., 2nd Reg. Sess. (2010), http:// www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf. 34. William Booth, ‘‘Mexican Officials Condemn Arizona’s Tough New Immigration Law,’’ Washington Post, April 27, 2010, http://www.washingtonpost.com/wp-dyn/ content/article/2010/04/26/A R2010042603810. 35. Randal C. Archibald, ‘‘Judge Blocks Arizona’s Immigration Law,’’ New York Times, July 28, 2010. 36. United States v. State of Arizona, D.C. No. 2:10-cv-01413-SRB, 2011 U.S. App. (9th Cir. Apr 11, 2011), http://www.ca9.uscourts.gov/datastore/general/2011/04/11/ 10-16645_opinion.pdf. 37. Arizona et al. v. United States, U.S. Supreme Court Docket 11–082 (June 25, 2012), http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf. 38. Daniel Altschuler, ‘‘The Georgia and Alabama Anti-Immigration Laws,’’ Americas Quarterly, June 24, 2011, http://www.americasquarterly.org/node/2611. 39. Campbell Robertson, ‘‘Alabama Wins Its Ruling on Immigration Law,’’ New York Times, September 29, 2011, A16.

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40. House Bill 1070, State of Arizona, 49th Leg., 2nd Reg. Sess. (2010), http:// www.azleg.gov/legtext/49leg/2r/bills/hb2281s.pdf. 41. Nicole Santa Cruz, ‘‘Arizona Bill Targeting Ethnic Studies Signed into Law,’’ Los Angeles Times, May 12, 2010, http://articles.latimes.com/2010/may/12/nation/lana-ethnic-studies-20100512; Michael Martinez, ‘‘Arizona Education Chief Moves to Ban Ethnic Studies in Tucson Schools’’ (CNNUS, January 4, 2011), http://articles.cnn .com/2011-01-04/us/arizona.ethnic.studies.ban_1_arizona-schools-superintendentethnic-studies-tucson-program?_sPM:US. 42. Eric V. Meeks, Border Citizens: The Making of Indians, Mexicans, and Anglos in Arizona (Austin: University of Texas Press, 2007), 244–245; Nicole Santa Cruz, ‘‘Arizona Has Rarely Invoked Its Last Tough Immigration Law,’’ Los Angeles Times, April 19, 2010, http://articles.latimes.com/2010/apr/19/nation/la-na-employer-san ctions19-2010apr19. 43. For a critical review and assessment of these and other developments leading to SB 1070, see Kristina M. Campbell, ‘‘The Road to S.B. 1070: How Arizona Became Ground Zero for the Immigrants’ Rights Movement and the Continuing Struggle for Civil Rights in America,’’ Harvard Latino Law Review 14 (2011): 1–22, http://harvard llr.com/wp-content/uploads/articles/vol14/1-22.pdf. 44. Marc Laey and Katharine Q. Seelye, ‘‘Recall Election Claims Arizona AntiImmigration Champion,’’ New York Times, November 10, 2011, A22. 45. Julia Preston, ‘‘A Die-Hard Conservative, But Not on Immigrants,’’ New York Times, April 2, 2012, A9. 46. Paula Gutierrez, ‘‘Mexico’s Dual Nationality Amendments: They Do Not Undermine U.S. Citizens’ Allegiance and Loyalty or U.S. Political Sovereignty,’’ Loyola of Los Angeles International & Comparative Law Journal 19 (1997): 1008–1015. 47. Jesu´s Martı´nez Saldan˜a, ‘‘The Political Rights of Mexican Migrants: Opportunities and Challenges’’ (paper presented at the public seminar on Mexican Migrant Civic and Political Participation, Woodrow Wilson Center International Center for Scholars, Washington, DC, November 4–5, 2005), http://www.wilsoncenter.org/sites/ default/files/Martinez%20Saldana%20-%20Political%20Rights%20of%20Mex%20 Migrants.pdf. 48. Mario Garcı´a, ‘‘La Frontera: The Border as Symbol and Reality in MexicanAmerican Thought,’’ Mexican Studies/Estudios Mexicanos 1 (1985): 195–225, 197. Around the same time, political scientist John A. Garcia used survey data to argue: ‘‘Mexican immigrants usually possess multiple concepts of self identities (i.e., ethnic identity, U.S. national chauvinism, etc.) which can serve to bridge regional and ethnic diversity within ‘the centripetal forces’ of central authority’’ (John A. Garcia, ‘‘The Political Integration of Mexican Immigrants: Examining Some Political Orientations,’’ International Migration Review 21[1987]: 373–374). 49. Garcı´a, ‘‘La Frontera,’’ 198–201. 50. Garcı´a, ‘‘La Frontera,’’ 212.

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Notes to Pages 53–56

51. Garcı´a, ‘‘La Frontera,’’ 213. 52. Garcı´a, ‘‘La Frontera,’’ 216, 220, 223. 53. Leo R. Chavez, ‘‘The Power of the Imagined Community: The Settlement of Undocumented Mexicans and Central Americans in the United States,’’ American Anthropologist 96 (1994): 52–73. 54. Leo R. Chavez, Shadowed Lives: Undocumented Immigrants in American Society, 2nd ed. (Belmont, CA: Wadsworth Thomson Learning Inc.), 42. 55. William V. Flores, ‘‘New Citizens, New Rights: Undocumented Immigrants and Latino Cultural Citizenship,’’ Latin American Perspectives 30 (2003): 96–97. For a nuanced discussion of the strengths and weaknesses of this and related perspectives, see Cristina Beltra´n, The Trouble with Unity: Latino Politics and the Creation of Identity (New York: Oxford University Press, 2010). 56. Flores, ‘‘New Citizens.’’ In Latino Political Power (Boulder, CO: Lynne Rienner Publishers, 2005), Kim Geron argues similarly that Latino elected officials tend to be liberals concerned with promoting economic and educational opportunities for all the less advantaged but especially concerned with aiding their Latino constituencies, including support for ethnic studies programs (198–214). In Mexican Americans: The Ambivalent Minority (Cambridge, MA: Harvard University Press, 1993), Peter Skerry also identified these priorities, although he expressed concern that Mexican American leaders were failing their constituents by emphasizing too strongly a civil-rights era ‘‘racial minority’’ agenda of grievances. 57. Luis Ricardo Fraga, John A. Garcia, Rodney E. Hero, Michael Jones-Correa, Valerie Martinez-Evers, and Gary M. Segura, Latino Lives in America: Making It Home (Philadelphia: Temple University Press, 2010), 181, 187–188. 58. Fraga et al., Latino Lives in America, 185. 59. See, e.g., Beltra´n, The Trouble with Unity; Rodolfo O. De La Garza, Marisa A. Abrajano, and Jeronimo Cortina, ‘‘Get Me to the Polls on Time: Coethnic Mobilization and Latino Turnout,’’ in New Race Politics in America, ed. Jane Junn and Kerry L. Haynie (New York: Cambridge University Press, 2008), 95–113; Victoria M. DeFrancesco Soto and Jennifer L. Merolla, ‘‘Se Habla Espanol: Ethnic Campaign Strategies and Latino Voting Behavior,’’ in Junn and Haynie, New Race Politics in America, 114–129. 60. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale University Press, 1997), 30–39, 470–488, Stories of Peoplehood: The Politics and Morals of Political Membership (New York: Cambridge University Press, 2003). It relies also on Will Kymlicka’s claim that persons can only have ‘‘meaningful’’ choices within the frameworks of the (usually multiple and complex) cultural contexts and narratives that have partly constituted their identities and values. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford University Press, 1995), 82–83. 61. Smith, Stories of Peoplehood, 72–125. 62. I believe these responsibilities are greater when governments have coerced persons, rather than simply having put them in situations they might have avoided or

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resisted without fear of any kind of direct governmental punishment. But I do not defend that position here. For discussion, see Smith, ‘‘Constitutional Democracies,’’ 282–284. For distinct but related arguments from which I have benefited, see Lea Ypi, Robert E. Goodin, and Christian Barry, ‘‘Associative Duties, Global Justice, and the Colonies,’’ Philosophy & Public Affairs 37 (2009): 104–113; Arash Abizadeh, ‘‘Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders,’’ Political Theory 36 (2008): 37–65; Robert E. Goodin, ‘‘Enfranchising All Affected Interests, and Its Alternatives,’’ Philosophy & Public Affairs 35 (2007): 40–68; Rainer Baubo¨ck, ‘‘Political Boundaries in a Multilevel Democracy,’’ in Identities, Affiliations, and Allegiances, ed. Seyla Benhabib, Ian Shapiro, and Danilo Petranovic´ (New York: Cambridge University Press, 2007), 85–109. 63. Krikorian, ‘‘Downsizing Illegal Immigration,’’ 4. 64. Krikorian, ‘‘Downsizing Illegal Immigration,’’ 4. 65. Smith, ‘‘Constitutional Democracies’’; Smith, ‘‘’Living in a Promiseland?’’ 66. Smith, Civic Ideals, 205–206. 67. See, e.g., Gregory Rodriguez, Mongrels, Bastards, Orphans, and Vagabonds (New York: Pantheon Books, 2007), 89–92, 98–99; Lisa Garcı´a Bedolla, Latino Politics (Cambridge, UK: Polity Press, 2009), 36–39. 68. Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, NJ: Princeton University Press, 2004), 51. 69. Garcı´a Bedolla, Latino Politics, 42. 70. Meeks, Border Citizens, 4. 71. Garcı´a Bedolla, Latino Politics, 44–5. 72. Fred Wilbur Powell, The Railroads of Mexico (Boston: The Stratford Company, 1921), 128. 73. Powell, Railroads, 46–48; Meeks, Border Citizens, 31, 36; Rodriguez, Mongrels, Bastards, 129–130; Jules Davids, American Political and Economic Penetration of Mexico, 1877–1920 (New York: Arno Press, 1976), 173, 180, 186–189. 74. Garcı´a Bedolla, Latino Politics, 47–51; Meeks, Border Citizens, 73–75; Rodriguez, Mongrels, Bastards, 131–136. 75. Smith, Civic Ideals, 346–469. 76. Meeks, Border Citizens, 38, 42. 77. On the relationship of doctrines of Anglo-Saxon superiority to imperialism, domestic racial policies, and judicial decisions in the late 19th and early 20th century, see Smith, Civic Ideals, 411–424, 429–453. 78. Garcı´a Bedolla, Latino Politics, 51–63; Rodriguez, Mongrels, Bastards, 159–178; Meeks, Border Citizens, 109–117. 79. Garcı´a Bedolla, Latino Politics, 52–53; Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America (Princeton, NJ: Princeton University Press, 2002), 173–174; Zaragosa Vargas, Crucible of Struggle: A History of Mexican Americans from Colonial Times to the Present Era (New York: Oxford University Press, 2011), 220, 263–298.

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Notes to Pages 61–64

80. Vargas, Crucible of Struggle; Stephen J. Pitti, The Devil in Silicon Valley: Northern California, Race, and Mexican Americans (Princeton, NJ: Princeton University Press, 2003), 173–197; Lynn Stephen, Transborder Lives: Indigenous Oaxacans in Mexico, California, and Oregon (Durham, NC: Duke University Press, 2007), 63–94. 81. Stephen, Transborder Lives, 240, 253; Garcı´a Bedolla, Latino Politics, 63–92; Rodriguez, Mongrels, Bastards, 201–261; Meeks, Border Citizens, 180–210. 82. Garcı´a Bedolla, Latino Politics, 52–53; Tichenor, Dividing Lines, 203–211. 83. Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America (Cambridge, MA: Harvard University Press, 2006), 382–383; Stephen, Transborder Lives, 76. 84. Zolberg, A Nation by Design, 392. 85. Zolberg, A Nation by Design, 393; Bill Ong Hing, Ethical Borders: NAFTA, Globalization, and Mexican Migration (Philadelphia: Temple University Press, 2010), 7–28. 86. Zolberg, A Nation by Design, 385, 387–388. 87. Charles Doyle, ‘‘Antiterrorism and Effective Death Penalty Act of 1996: A Summary’’ (Federation of American Scientists, June 3, 1996), http://www.fas.org/irp/ crs/96–499.htm. 88. In fact, PRWORA originally made even many immigrants present at the time of its enactment ineligible for Supplemental Security Income (SSI) and food stamps, but Congress restored eligibility to most pre-enactment immigrants via the 1997 Balanced Budget Act, the 1998 Agricultural Research Extension and Education Act, and the Farm Security and Rural Investment Act of 2002. The states have chosen to provide TANF and Medicaid benefits to most pre-enactment immigrants (Audrey Singer, ‘‘Welfare Reform and Immigrants: A Policy Review’’ [2004], 23, 27–28, http://www .brookings.edu/⬃/media/research/files/reports/2004/5/demographics%20singer/200 405_singer). 89. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104–208, 110 Stat. 3009 (1996), http://www.uscis.gov/ilink/docView/PUBLAW/ HTML/PUBLAW/0-0-0-10948.html. 90. Stephen, Transborder Lives, 20, 236, 271, 316. 91. For these contentions, see Smith, ‘‘Living in a Promiseland?’’ and also Rogers M. Smith, ‘‘Reply to Barvosa, Alarco´n, and DeSipio,’’ Perspectives on Politics 9 (2011): 571–573. 92. Campbell Robertson, ‘‘After Ruling, Hispanics Flee an Alabama Town,’’ New York Times, October 4, 2011, A1. 93. Evidence from Europe suggests that, facing the choice between ignoring the underground economy or attempting to control it, governments constantly adjust their policies regarding residence and employment rights for migrants, but such adjustments generally fail to meet their objectives. Willem Maas, ‘‘Unauthorized Migration and the Politics of Regularization, Legalization, and Amnesty,’’ in Labour Migration in Europe, ed. Georg Menz and Alexander Caviedes (New York: Palgrave, 2010), 232–250.

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94. On the ‘‘Secure Communities’’ initiative, see U.S. Immigration and Customs Enforcement, ‘‘Secure Communities’’ (Department of Homeland Security, n.d.), http://www.ice.gov/secure_communities/. 95. Keith Cunningham-Parmeter, ‘‘Forced Federalism: States as Laboratories of Immigration Reform,’’ Hastings Law Journal 62 (2011): 1677. 96. The Passenger Cases (Smith v. Turner; Norris v. Boston), 48 U.S. 283 (1849). 97. Rodrı´guez, ‘‘Significance of the Local,’’ 572. 98. Rodrı´guez, ‘‘Significance of the Local,’’ 581–590. 99. Rodrı´guez, ‘‘Significance of the Local,’’ 571. 100. Rodrı´guez, ‘‘Significance of the Local,’’ 572–573, 609–637. 101. See, e.g., the analysis and examples of routes of popular constitutional lawmaking in Bruce A. Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1993). 102. Rodrı´guez, ‘‘Significance of the Local,’’ 572–573. 103. Smith, Stories of Peoplehood, 24–27, 31, 130–132, 156, 169–173. Chapter 4 1. Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1998); Christian Joppke, Immigration and the Nation State: The United States, Germany, and Great Britain (Oxford: Oxford University Press, 1999). 2. Arizona Senate Bill 1070, titled ‘‘Support Our Law Enforcement and Neighborhoods Act,’’ was an omnibus bill approved by the Arizona legislature and signed into law by Governor Jan Brewer in April 2010. As summarized by the National Conference of State Legislatures (NCSL), ‘‘SB 1070 includes provisions adding state penalties to immigration law enforcement including trespassing, harboring and transporting illegal immigrants, alien registration documents, employer sanctions, and human smuggling.’’ Several concerns were raised regarding the implementation of the bill, including the degree to which ‘‘reasonable suspicion of immigration status’’ would be interpreted by local law enforcement officials and the limitations on what documents constituted eligible proof of one’s lawful presence. The constitutionality of the bill was challenged in lower circuit courts and reached the Supreme Court in December 2011, with specific concerns being raised about due process, equal protection under the Fourteenth Amendment, conflicts in relation to unreasonable search and seizure under the Fourth Amendment, and federal preemption under the Supremacy Clause of the U.S. Constitution. Ann Morse, ‘‘Arizona’s Immigration Enforcement Laws’’ (National Conference of State Legislatures, last revision July 28, 2011), http://www .ncsl.org/issues-research/immig/analysis-of-arizonas-immigration-law.aspx. For an extended discussion of the impact of SB 1070, see Rogers M. Smith’s contribution to this volume (Chapter 3). 3. Lina Newton and Brian E. Adams, ‘‘State Immigration Politics: Innovation, Cooperation or Conflict?’’ State Politics & Policy Quarterly 11 (2011): 390–414; Peter

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Notes to Pages 71–72

H. Schuck, ‘‘Taking Immigration Federalism Seriously,’’ University of Chicago Legal Forum 57 (2007): 57–92, especially pp. 62–63. Schuck generalizes from pre-2006 findings that ‘‘the largest immigrant-receiving states as well as some cities are in act consistently more generous toward immigrants, even including undocumented ones, than Congress’’ (p. 60). 4. Michael Fix and Jeffrey Passel, ‘‘The Scope and Impact of Welfare Reform’s Immigrant Provisions’’ (discussion paper, Urban Institute, 2002), http://www.urban .org/Uploadedpdf/410412_discussion02-03.pdf. Fix and Passel found widespread declines in benefits usage by immigrants following welfare reform in 1996 despite the fact that half of all families being studied were considered poor and were uninsured (p. 2). Their study also found that ‘‘together, seven large immigrant-receiving states (California, New York, Texas, Florida, Illinois, New Jersey, and Arizona) account for three quarters of the nation’s foreign-born population. California is alone in providing substitutes in the areas of health, cash assistance, and nutrition. Of the six other states, three now offer substitute health programs, but little else. Even the most generous states in the nation, like Massachusetts, condition immigrants’ access to substitute programs in ways that reduce their availability and, in some circumstances, would be illegal if applied to citizens’’ (p. 10). 5. Alexandra Filindra and Melinda Kovacs, ‘‘Analysing US State Legislative Resolutions on Immigrants and Immigration: The Role of Immigration Federalism,’’ International Migration 50 (2012): 33–50, doi: 10.1111/j.1468–2435.2010.00658.x. 6. Mobility has been identified as crucial to egalitarianism in federalist systems. See John G. Francis and Leslie P. Francis, ‘‘Rights Variation within a Federalist System: Understanding the Importance of Mobility,’’ Political Research Quarterly 64, no. 1 (2009): 82–93. The concern that globalization, of which immigration is an integral part, may actually immobilize people rather than erasing boundaries and increasing mobility is described pithily by Bryan S. Turner, ‘‘Enclosures, Enclaves, and Entrapment,’’ Sociological Inquiry 80, no. 2 (2010): 241–260. On the potential for state and local governments to treat immigrants justly with particular attention to freedom of movement, see Christina Rodriguez, ‘‘The Significance of the Local in Immigration Regulation,’’ Michigan Law Review 106 (2008): 567–642. 7. David Earnest, ‘‘Noncitizen Voting Rights: A Survey of an Emerging Democratic Norm,’’ (paper presented at the annual meeting of the American Political Science Association, Philadelphia, PA, August 28–31, 2003), http://www.odu.edu/ ⬃dearnest/pdfs/Earnest_APSA_2003.pdf. Earnest notes that although there is a trend toward offering voting rights to noncitizens, the United States is conservative in comparison with other countries and does not offer noncitizens very many or very robust voting rights. On immigrant voting rights, see also Sarah Song, ‘‘Democracy and Noncitizen Voting Rights,’’ Citizenship Studies 13 (2009): 607–620. 8. See Maas, Chapter 1 in this volume. 9. For the purposes of better specifying each concept, it is important to recognize the distinction between nationality and citizenship. Nationality does not confer the

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full panoply of rights associated with citizenship, but it is possible under certain circumstances to enjoy many of the rights of citizenship without holding the passport associated with the nation-state responsible for conferring a given set of rights. Wendy Zimmerman and Karen Tumlin, ‘‘Patchwork Policies: State Assistance for Immigrants Under Welfare Reform,’’ occasional paper no. 24 (Urban Institute, 1999), http://www .urban.org/PDF/occ24.pdf. 10. Schuck, ‘‘Taking Immigration’’; Rodriguez, ‘‘Significance of the Local.’’ 11. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. §§287 (2002). 12. In this chapter, we focus primarily on ‘‘immigrant law and policy’’; however, we also include some matters of ‘‘immigration law.’’ For an extended discussion of the distinctions, see Linda Bosniak, ‘‘Citizenship Denationalized,’’ Indiana Journal of Global Legal Studies 7 (1994): 447. 13. ‘‘Immigration Reform Must Respect Civil Liberties, Says ACLU’’ (American Civil Liberties Union, March 19, 2010), http://www.aclu.org/immigrants-rights/immi gration-reform-must-respect-civil-liberties-says-aclu. Many other related ACLU briefs can be accessed at the ‘‘Immigrants’ Rights’’ section of the ACLU website, http://www .aclu.org/immigrants-rights. 14. Jeanne Batalova, ‘‘The Growing Connection between Temporary and Permanent Immigration Systems,’’ Insight no. 14 (Migration Policy Institute, January 2006), http://www.migrationpolicy.org/ITFIAF/TFI_Batalova.pdf. 15. Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics (Department of Homeland Security, St. Louis, MO: U.S. Government Printing Office, August 2011), http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2010/ois_eyb_ 2010.pdf. 16. Ruth Ellen Wasam and Karma Esta, ‘‘Temporary Protected Status: Current Immigration Policy and Issues,’’ Report no. RS20844 (Congressional Research Service, December 13, 2011), http://www.fas.org/sgp/crs/homesec/RS20844.pdf. 17. ‘‘Temporary Protected Status Designated for the Syrian Arab Republic,’’ update (U.S. Citizenship and Immigration Services, March 29, 2012), http://www .uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid 556d2d912d556310VgnVCM100000082ca60aRCRD&vgnextchannelc94e6d26d17 df110VgnVCM1000004718190aRCRD. 18. CIS No. 2510-11, DHS Docket No. USCIS 2007-0028, RIN 1615-ZB06, 77 Fed. Reg. 1710–1715 (January 11, 2012), http://www.gpo.gov/fdsys/pkg/FR-2012-0111/html/2012-143.htm. 19. ‘‘Deferred Enforced Departure for Liberians,’’ memorandum for the secretary of homeland security (The White House, March 19, 2010), http://www.whitehouse.gov /the-press-office/presidential-memorandum-deferred-enforced-departure-liberians. 20. Later amendments added caveats that re-entitled some immigrants who arrived before 1996 to certain forms of social assistance, which of course benefited them, but these amendments did little to change the message or future effects of the laws.

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21. Zimmerman and Tumlin, ‘‘Patchwork Policies,’’ p. 14. 22. Immigrants from Cuba, Vietnam, and all U.S. territories are entitled to special treatment upon arrival in the United States. Cuban immigrants are entitled to legal status upon arrival, providing they are able to leave their homeland and enter the United States. Persons arriving from U.S. territories are also entitled to exercise political rights upon arrival by virtue of the fact that they are considered U.S. nationals, even though they do not exercise these rights while resident in U.S. territories. 23. Zimmerman and Tumlin, ‘‘Patchwork Policies.’’ 24. There is a very small provision that allows minimal legal services to be furnished to asylum seekers. Laura K. Abel and Risa E. Kaufman, ‘‘Preserving Aliens’ and Migrant Workers’ Access to Civil Legal Services: Constitutional and Policy Considerations,’’ University of Pennsylvania Journal of Constitutional Law 5, no. 3 (2003): 491–496. 25. Etan Newman, Weeun Wang, Virginia Ruiz, and Jessica Felix-Romero, ‘‘No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers,’’ report (Farmworker Justice, n.d.), http://farmworkerjustice.org/images/ stories/eBook/pages/fwj.pdf. 26. Newman et al., ‘‘No Way to Treat a Guest,’’ 24, 28. 27. Temporary work visas are granted by the federal government to employers, who in turn bestow them upon the individuals whose services they wish to engage. These visas last for a one-year period, at the end of which the employer is responsible for returning the worker to his or her home country. Only after they have returned can temporary workers be granted permission to work for another year in the host country. This silences all but the most dire employee complaints, because uncooperative workers can normally expect to be replaced by one of the many others who seek work in the United States. 28. Keith Cunningham-Parmeter, ‘‘Forced Federalism: States as Laboratories of Immigration Reform,’’ College of Hastings Law Journal 62 (2011): 1673. 29. Monica W. Varsanyi, Paul G. Lewis, Doris Marie Provine, and Scott Decker, ‘‘A Multilayered Jurisdictional Patchwork: Immigration Federalism in the United States,’’ Law & Policy 34, no. 2 (2012): 138–158. 30. Huyen Pham and Van H. Pham, ‘‘The Economic Impact of Local Immigration Regulation: An Empirical Analysis,’’ Cardozo Law Review 485 (2010): 485–518. 31. Hiroshi Motomura, ‘‘The Rights of Others: Legal Claims and Immigration Outside the Law,’’ Duke Law Journal 59 (2010): 1723–1786. 32. The Real ID Act of 2005 was an act of Congress that set new standards for the issuance of driver licenses and state identification cards. In the United States, driver licenses and ID cards are issued by state governments. States have argued that this demand is unconstitutional in respect to federalism, for its effective implementation requires the allocation of state funds and resources to enforce federal law. As a result, many states have passed separate acts stating that they will not comply with the federal act based on the impositions that would be incurred.

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33. On the absence of a coherent philosophy of immigration in the United States, see Elizabeth F. Cohen, ‘‘Carved from the Inside Out: Public Philosophies of Immigration and Citizenship in the United States,’’ in Debating Immigration, ed. Carol Swain (New York: Cambridge University Press, 2007). 34. Gillian Johnston and Ann Morse, ‘‘2010 Immigration-Related Laws and Resolutions in the States,’’ report (Immigrant Policy Project, National Conference of State Legislatures, January 5, 2011), http://www.ncsl.org/default.aspx?tabid21857. 35. Although there were 197 pieces of legislation enacted in 2011, some of these individual laws strongly mirrored other laws enacted in individual states and appeared to have the same intended impact as other laws enacted in individual states. Due to this overlap, our data established that although there were 197 total pieces of legislation enacted in the states, there were only 191 distinct pieces of legislation enacted in the states. In Louisiana, two separate bills dealing with employer contracts and the E-verify system were enacted. In California, three separate laws providing more tuition benefits to noncitizens were enacted. Oklahoma passed three separate laws related to the licensing of police and peace officers. Utah enacted two bills related to sex offenders that also required the registration of immigration status. Due to the same intended consequences of these laws, they were condensed in the coding process as representing four distinct laws rather than ten separate laws. 36. For a discussion of the origin and meaning of probationary periods in U.S. citizenship law, see Elizabeth F. Cohen, ‘‘Reconsidering US Immigration Reform: The Temporal Principle of Citizenship,’’ Perspectives on Politics 9, no. 3 (2011): 575–583. 37. ‘‘The Right to Travel,’’ annotations to the U.S. Constitution, Fourteenth Amendment, p. 33 (FindLaw: For Legal Professionals, 2012), http://caselaw.lp.findlaw .com/data/constitution/amendment14/33.ht mlf1. 38. On relationships between documented and undocumented persons and families, see Jeffrey S. Passel and D’Vera Cohn, ‘‘Unauthorized Immigrant Population: National and State Trends, 2010’’ (Pew Hispanic Center, Pew Research Center, February 1, 2011), http://njdac.org/blog/wp-content/plugins/downloads-manager/upload/ 2010%20undocumented%20trends%20by%20state.pdf. 39. For a recent discussion of these issues, see Pratheepan Gulsekaram and Rose Cuison Villazor, ‘‘Sanctuary Policies and Immigration Federalism: A Dialectic Analysis,’’ Wayne Law Review 55 (2009): 1683–1724. Chapter 5 1. The chief works in this vein include Ariel Salzmann, ‘‘An Ancien Regime Revisited: ‘Privatization’ and Political Economy in the Eighteenth-Century Ottoman Empire,’’ Politics and Society 21, no. 4 (December 1993): 393–423; Dina Rizk Khoury, State and Provincial Society in the Ottoman Empire: Mosul, 1540–1834 (Cambridge: Cambridge University Press, 1997); Eugene L. Rogan, Frontiers of the State in the Late Ottoman Empire?: Transjordan, 1850–1921 (Cambridge: Cambridge University Press, 1999); Ussama Makdisi, The Culture of Sectarianism: Community, History, and Violence

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in Nineteenth-Century Ottoman Lebanon (Berkeley: University of California Press, 2000); Jens Hanssen, Thomas Philipp, and Stefan Weber, eds., The Empire in the City: Arab Provincial Capitals in the Late Ottoman Empire, Beiruter Texte Und Studien Bd. 88 (Wu¨rzburg: Ergon in Kommission, 2002); Selim Deringil, ‘‘ ‘They Live in a State of Nomadism and Savagery’: The Late Ottoman Empire and the Post-Colonial Debate,’’ Comparative Studies in Society and History 45, no. 2 (2003): 311–342; Marc Aymes, ‘‘Provincialiser l’empire: Chypre et la Me´diterrane´e ottomane au XIXe sie`cle,’’ Annales 62, no. 6 (2007): 1313–1344. For a convenient summary (though emphasizing the eighteenth century), see Dina Khoury, ‘‘The Ottoman Centre vs. Provincial Power Holders,’’ in The Cambridge History of Turkey, vol. 3: The Later Ottoman Empire, 1603–1839, ed. Suraiya Faroqhi (Cambridge: Cambridge University Press, 2006), 135–156. 2. One not so good reason is the longstanding gulf (and sometimes rivalry) between historians of Egypt who use Ottoman-language sources and those who use Arabic. A recent generation of historians aims to bridge this gulf. For the eighteenth century, see Alan Mikhail, Nature and Empire in Ottoman Egypt: An Environmental History, Studies in Environment and History (Cambridge: Cambridge University Press, 2011); James E. Baldwin, ‘‘Islamic Law in an Ottoman Context: Resolving Disputes in Late 17th/Early 18th-Century Cairo’’ (PhD diss., New York University, 2010). 3. This consensus is so widespread that Egypt’s independence is assumed rather than argued. For a sense of the position, consult Israel Gershoni and James P. Jankowski, Egypt, Islam, and the Arabs: The Search for Egyptian Nationhood, 1900–1930 (New York: Oxford University Press, 1987); James P. Jankowski and Israel Gershoni, eds., Rethinking Nationalism in the Arab Middle East (New York: Columbia University Press, 1997); M. W. Daly, ed., The Cambridge History of Egypt, vol. 2: Modern Egypt, from 1517 to the End of the Twentieth Century (Cambridge: Cambridge University Press, 1998). 4. For powerful summary interpretations of this broad literature, see Frederick Cooper, Colonialism in Question: Theory, Knowledge, History (Berkeley: University of California Press, 2005); Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton, NJ: Princeton University Press, 2010). 5. Eve Troutt Powell, A Different Shade of Colonialism: Egypt, Great Britain, and the Mastery of the Sudan (Berkeley: University of California Press, 2003), is an example with an Egyptian setting. Much of this work has been decidedly Western in focus: Daniel Gorman, Imperial Citizenship: Empire and the Question of Belonging (Manchester: Manchester University Press, 2006). 6. Here my thinking has been informed by writing about migration and multiculturalism. Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1996); Rebecca Saunders, ed., The Concept of the Foreign (Lanham, MD: Lexington Books, 2003); Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, NJ: Princeton University Press, 2006); Charles Taylor and Amy Gutmann, Multiculturalism: Examining the Politics of Recognition (Princeton, NJ: Princeton University Press, 1994).

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7. Revision of legal rights is the place to start. See, for instance, Sherene H. Razack, ‘‘The ‘Sharia Law Debate’ in Ontario: The Modernity/Premodernity Distinction in Legal Efforts to Protect Women from Culture,’’ Feminist Legal Studies 15, no. 1 (January 2007): 3–32. 8. Ariel Salzmann, ‘‘Citizens in Search of a State: The Limits of Political Participation in the Late Ottoman Empire,’’ in Extending Citizenship, Reconfiguring States, ed. Michael P. Hanagan and Charles Tilly (Lanham: Rowman & Littlefield, 1999), 37–66; Engin F. Isin, ‘‘Citizenship after Orientalism: Ottoman Citizenship,’’ in Citizenship in a Global World: European Questions and Turkish Experiences, ed. Fuat Keyman and Ahmet Icduygu (New York: Routledge, 2005), 31–51. 9. Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992). 10. Notable studies of imperial citizenship that display this tendency include Elizabeth Thompson, Colonial Citizens: Republican Rights, Paternal Privilege, and Gender in French Syria and Lebanon (New York: Columbia University Press, 2000); Alice L. Conklin, A Mission to Civilize: The Republican Idea of Empire in France and West Africa, 1895–1930 (Stanford, CA: Stanford University Press, 1997); Gary Wilder, The French Imperial Nation-State: Negritude & Colonial Humanism between the Two World Wars (Chicago: University of Chicago Press, 2005); Tamara Lynn Loos, Subject Siam: Family, Law, and Colonial Modernity in Thailand (Ithaca: Cornell University Press, 2006). 11. On the danger of using actors’ categories as analytical categories, see Rogers Brubaker and Frederick Cooper, ‘‘Beyond ‘Identity,’ ’’ Theory and Society 29 (2000): 1–47. 12. A notable recent exception is Ilham Khuri-Makdisi, The Eastern Mediterranean and the Making of Global Radicalism, 1860–1914 (Berkeley: University of California Press, 2010). 13. Timothy Mitchell, Rule of Experts: Egypt, Techno-politics, Modernity (Berkeley: University of California Press, 2002), 180–181. 14. The outstanding example of this narrative is Afaf Lutfi Sayyid-Marsot, A Short History of Modern Egypt (Cambridge: Cambridge University Press, 1985). 15. Ehud R. Toledano, State and Society in Mid-Nineteenth-Century Egypt, Cambridge Middle East Library: 22 (Cambridge: Cambridge University Press, 1990); Khaled Fahmy, All the Pasha’s Men: Mehmed Ali, His Army, and the Making of Modern Egypt, Cambridge Middle East Studies: 8 (Cambridge: Cambridge University Press, 1997). On the royalist narrative, see Yoav Di-Capua, Gatekeepers of the Arab Past: Historians and History Writing in Twentieth-Century Egypt (Berkeley: University of California Press, 2009). 16. All three terms are used, for example, in a case file from 1881: Foreign Office records, National Archives, London (hereinafter FO) 847/3/17. See also Ami Ayalon, Language and Change in the Arab Middle East: The Evolution of Modern Political Discourse (New York: Oxford University Press USA, 1987); Di-Capua, Gatekeepers of the Arab Past, 49–50.

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17. Gershoni and Jankowski, Egypt, Islam, and the Arabs. 18. A reissued Ottoman novel on this episode is Bekir Fahri, Jo¨nler (Istanbul: . Iletisim Yayinlari, 1985). 19. Classics of this literature include C. Ernest Dawn, From Ottomanism to Arabism: Essays on the Origins of Arab Nationalism (Champaign: University of Illinois Press, 1973); Hasan Kayali, Arabs and Young Turks: Ottomanism, Arabism, and Islamism in the Ottoman Empire, 1908–1918 (Berkeley: University of California Press, 1997); Butrus Abu Manneh, ‘‘The Christians Between Ottomanism and Syrian Nationalism: The Ideas of Butrus al-Bustani,’’ International Journal of Middle Eastern Studies 2 (1980): 287–304; William L. Cleveland, The Making of an Arab Nationalist: Ottomanism and Arabism in the Life and Thought of Sati‘ Al-Husri, Princeton Studies on the Near East (Princeton, NJ: Princeton University Press, 1971). More recently, see Jens Hanssen, Thomas Philipp, and Stefan Weber, eds., The Empire in the City: Arab Provincial Capitals in the Late Ottoman Empire (Wu¨rzburg: Ergon in Kommission, 2002); Abigail Jacobson, ‘‘Negotiating Ottomanism in Times of War: Jerusalem During World War I Through the Eyes of a Local Muslim Resident,’’ International Journal of Middle East Studies 40, no. 1 (2008): 88a; Michelle Campos, Ottoman Brothers: Muslims, Christians, and Jews in Early 20th Century Palestine (Stanford, CA: Stanford University Press, 2010). 20. For the text of the law, see Pierre Arminjon, E´trangers et prote´ge´s dans l’Empire ottoman (Paris: A. Chevalier-Maresq & cie, 1903), 330–332. 21. Ayalon, Language and Change in the Arab Middle East, 43–53. 22. This role was especially emphasized by Sultan Abdul Hamid II (r. 1876–1909). See Selim Deringil, The Well-Protected Domains: Ideology and the Legitimation of Power in the Ottoman Empire, 1876–1909 (London: I. B. Tauris, 1998); Mona Hassan, ‘‘Loss of Caliphate: The Trauma and Aftermath of 1258 and 1924’’ (PhD diss., Princeton University, 2009). 23. Di-Capua, Gatekeepers of the Arab Past, 63 (quotation), 75, and passim. 24. The French archetype is most clearly explained in Brubaker, Citizenship and Nationhood in France and Germany; Patrick Weil, How to Be French: Nationality in the Making Since 1789 (Durham, NC: Duke University Press, 2008). For citizenship in the United States during this period, start with William J. Novak, ‘‘The Legal Transformation of Citizenship in Nineteenth-Century America,’’ in The Democratic Experiment: New Directions in American Political History, ed. Meg Jacobs, Julian E. Zelizer, and William J. Novak (Princeton, NJ: Princeton University Press, 2003), 85–119; Barbara Young Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States, 1st ed. (Cambridge: Cambridge University Press, 2010). 25. T. H Marshall, Citizenship and Social Class, and Other Essays (Cambridge: Cambridge University Press, 1950). 26. Gianluca Paolo Parolin, Citizenship in the Arab World: Kin, Religion and Nation-State (Amsterdam: Amsterdam University Press, 2009).

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27. A similar argument animates Turan Kayaog˘lu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press, 2010). On the capitulations generally, see Maurits H. van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beratlis in the 18th Century, Studies in Islamic Law and Society (Leiden: Brill, 2005). 28. Parolin, Citizenship in the Arab World, 74. 29. For the edict announcing Egyptian nationality, see al-Waqa’i‘ al-Misriya 70, no. 74 (July 4, 1900): 1. 30. An 1899 example can be found in Bas¸bakanlık Ottoman Archives (hereinafter BOA) DH TMIK M 62/65. 31. Parolin, Citizenship in the Arab World, 80. 32. Parolin, Citizenship in the Arab World, 79. 33. Parolin, Citizenship in the Arab World, 75. 34. Parolin, Citizenship in the Arab World, 80. 35. The best elaboration of the provincial results of Tanzimat ‘‘emancipation’’ is Makdisi, The Culture of Sectarianism. 36. Feroz Ahmad, ‘‘Mukhta¯r Pasha,’’ Encyclopaedia of Islam, vol. 7, 2nd ed., ed. C. E. Bosworth, E. van Donzel, W. P. Heinrichs, and C. Pellat (Leiden: Brill, 1993); M. . Cavid Baysun, ‘‘Muhtar Pas¸a,’’ in Diyanet Islaˆm Ansiklopedisi (Istanbul: Tu¨rkiye Diyanet Vakfi, 1979). 37. Roger Owen, Lord Cromer: Victorian Imperialist, Edwardian Proconsul (Oxford: Oxford University Press, 2004); Afaf Lutfi Sayyid-Marsot, Egypt and Cromer: A Study in Anglo-Egyptian Relations (London: Murray, 1968). 38. The administrative history of the Ottoman Empire is, as Carter Findley reminds us, a topic of ‘‘world historical importance.’’ Three decades after his pathbreaking study, there are still vast unknown realms in this history. Carter V. Findley, Bureaucratic Reform in the Ottoman Empire: The Sublime Porte, 1789–1922, Princeton Studies on the Near East (Princeton, NJ: Princeton University Press, 1980), 5. 39. Joel Beinin explores this term in more than one context: Workers on the Nile: Nationalism, Communism, Islam, and the Egyptian Working Class, 1882–1954, Princeton Studies on the Near East (Princeton, NJ: Princeton University Press, 1987); The Dispersion of Egyptian Jewry: Culture, Politics, and the Formation of a Modern Diaspora (Cairo: American University in Cairo Press, 2005). 40. Ministe`re des Affaires E´trange`res, Centre des Archives Diplomatiques de Nantes (hereinafter CADN) Alexandrie 442 (‘‘Au sujet du changement de nationalite´ des tunisiens qui de´sirent acque´rir la nationalite´ e´gyptienne, 1913–26’’). This folder contains thirty-odd letters concerning this question. 41. Dror Ze’evi, Producing Desire: Changing Sexual Discourse in the Ottoman Middle East, 1500–1900, Studies on the History of Society and Culture: 52 (Berkeley: University of California Press, 2006), 66. 42. Boogert, The Capitulations and the Ottoman Legal System, 33, citing Colin Imber.

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43. Even scholars who put recognition of this fact at the center of their analyses often keep their gaze fixed on the horizon of political participation. For instance, Mahmood Mamdani, ‘‘Beyond Settler and Native as Political Identities: Overcoming the Political Legacy of Colonialism,’’ Comparative Studies in Society and History 43, no. 4 (October 2001): 651–664. 44. For an overview of this legal system, see my essay ‘‘The 1876–83 Reform and Its Implementation: Many Institutions or One?’’ in New Approaches to Modern Egyptian Legal History, ed. Khaled Fahmy and Amr Shalakany (Cairo: American University in Cairo Press, forthcoming). 45. Quoted in Daniel Panzac, ‘‘Alexandrie: e´volution d’une ville cosmopolite au XIXe sie`cle,’’ Annales Islamologiques 14 (1978): 195. 46. Kenneth Cuno and Michael J. Reimer, ‘‘The Census Registers of NineteenthCentury Egypt: A New Source for Social Historians,’’ British Journal of Middle Eastern Studies 24, no. 2 (November 1997): 204–205. 47. Quoted in Justin McCarthy, ‘‘Nineteenth-Century Egyptian Population,’’ Middle Eastern Studies 12, no. 3 (1976): 9. 48. Ottoman censuses have their own historiography. See Cem Behar, ‘‘Qui compte? Recensements et statistiques de´mographiques dans l’Empire ottoman du XVIe au XXe Sie`cle,’’ Histoire & Mesure 13 (1998): 135–146; Cem Behar, ‘‘Sources pour la de´mographie historique de l’Empire ottoman: Les tahrirs (de´nombrements) de 1885 et 1907,’’ Population 53, nos. 1–2 (1998): 161–178; Ipek K. Yosmaoglu, ‘‘Counting Bodies, Shaping Souls: The 1903 Census and National Identity in Ottoman Macedonia,’’ International Journal of Middle East Studies 38, no. 1 (2006): 55–77. 49. Egypt, Direction du Recensement, Recensement ge´ne´ral de l’E´gypte, 15 Gamad Akher 1299—3 Mai 1882 (Le Caire: Imprimerie Nationale de Boulaq, 1884), French introduction: 25, Arabic introduction: page kaf. 50. Egypt, Direction du Recensement, Recensement ge´ne´ral, section 1: 9. 51. Egypt, Direction du Recensement, Recensement ge´ne´ral, French introduction: 14–15. 52. Daniel Panzac, ‘‘The Population of Egypt in the Nineteenth Century,’’ Asian and African Studies 21 (1987): 11–15. 53. Panzac, ‘‘The Population of Egypt,’’ 26–27. Much of the jump in foreign numbers in 1917, for example, is due to the addition of more than 11,000 Ottoman foreigners who were previously considered local subjects. 54. The only essay that explores the mentality of census takers to any degree is Roger Owen, ‘‘The Population Census of 1917 and Its Relationship to Egypt’s Three Nineteenth-Century Statistical Regimes,’’ Journal of Historical Sociology 9, no. 4 (December 1996): 457–472. As far as the purely statistical studies are concerned, the best critique (and the best job of catching irregularities, such as the presence of Sudanese in local population counts [p. 28]) is McCarthy, ‘‘Nineteenth-Century Egyptian Population.’’ 55. The 1917 census is the only one for which methodology was recorded. See analysis in Owen, ‘‘Population Census.’’

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56. See, for instance, an age verification of a child sentenced to prison in 1910. BOA DH SN THR 15/4. 57. FO 847/39/35 (Rex vs. Farag Douek, 1908). 58. A similar inaccuracy characterizes the description of Ahmed Mohamed Bahadur, tried in the Native Courts for the murder of a British subject, as an ‘‘Ottoman subject.’’ (FO 847/49/3 (Inquest on body of Regina Laredo nee Ebbo, 1913). 59. FO 847/9/11 (Re Antoun Yussef Abdel Messieh, 1885). 60. See especially FO 97/617 (Anton Wousouf Abdul Messih Succession, 1886–1900). 61. See FO 847/9/11 (Re Antoun Yussef Abdel Messieh, 1885) and especially FO 97/617 (Anton Wousouf Abdul Messih Succession, 1886–1900). 62. Most of the details in this sketch are drawn from the arbiter’s report, contained in FO 847/9/11 (Re Antoun Yussef Abdel Messieh, 1885). 63. FO 847/29/3 (John Grech Mifsud vs. Bank of Egypt Ltd., 1899). 64. Relevant studies of the later nineteenth century include Iris Agmon, ‘‘Recording Procedures and Legal Culture in the Late Ottoman Shari’a Court of Jaffa, 1865– 1890,’’ Islamic Law & Society 11, no. 3 (July 2004): 333–377; Iris Agmon, Family & Court: Legal Culture and Modernity in Late Ottoman Palestine, Middle East Studies Beyond Dominant Paradigms (Syracuse: Syracuse University Press, 2006); Avi Rubin, ‘‘Ottoman Judicial Change in the Age of Modernity: A Reappraisal,’’ History Compass 7, no. 1 (2009): 119–140; Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity (New York: Palgrave Macmillan, 2011). 65. The case represents an earlier exploration of the citizenship debates examined in Sarah Abrevaya Stein, ‘‘Protected Persons? The Baghdadi Jewish Diaspora, the British State, and the Persistence of Empire,’’ American Historical Review 116, no. 1 (February 1, 2011): 80–108. 66. See citation in judgment notes, FO 847/36/1 (Estate of Nicola Adamidis, 1906), discussed below. The judge applied the same reasoning to Adamidis’s attempts to join the British and the Greek communities in Alexandria. 67. FO 369/138 (1908). 68. FO 847/36/1 (Estate of Nicola Adamidis, 1906) and FO 847/43/54 (Estate of Nicola Adamidis, 1909). 69. See, for instance, the list of naturalized subjects in the consular census of 1888–1889, (FO 881/5968). 70. FO 847/2/47 (Regina vs. Giovanni Callus, 1880). 71. CADN Alexandrie 532/p37 (Cheik Ahmed Soloman Pacha c. Nefissa Hanem ne´e Zohni, 7 April 1902). See also Nafissa’s consular registration dossier, (CADN Alexandrie 50/1269). For more on obedience and cohabitation, including the finding that such cases constituted five percent of marriage-related cases in a shari‘a court sample from turn-of-the-century Daqahliyah, see Kenneth M. Cuno, ‘‘Disobedient Wives and Neglectful Husbands: Marital Relations and the First Phase of Family Law Reform in Egypt,’’ in Family, Gender, and Law in a Globalizing Middle East and South Asia, ed.

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Kenneth Cuno and Manisha Desai (Syracuse, NY: Syracuse University Press, 2009), 3–18; Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998). 72. This change is detailed in the article ‘‘Nos prote´ge´s musulmans,’’ La Re´forme (August 1896), which is enclosed in CADN Alexandrie 109, folder ‘‘Questions relatives au statut personnel des prote´ge´s et catholiques sujets locaux.’’ 73. CADN Alexandrie 532/p43b (Nefissa Hanem c. Cheik Ahmed Soloman Pacha, 30 April 1902). 74. In his letter of April 24, 1902 (no. 16), the governor cited a Khedival decree to this effect, which is certainly that 1897 Egyptian civil procedure code discussed in Cuno, ‘‘Disobedient Wives and Neglectful Husbands,’’ 10–11. As Cuno argues, the right to compel return was an innovation—before 1897, the most severe sanction for departure was loss of maintenance. Clearly, the five-year-old procedure code was transmitted into the French system in the guise of ‘‘advice’’ about ‘‘local practice.’’ 75. When Ahmed died in 1908, Nefissa was registered as his widow. CADN Alexandrie 56/1733. 76. Nathan Brown surveys the ‘‘liberal legality’’ hypothesis in The Rule of Law in the Arab World: Courts in Egypt and the Gulf, Cambridge Middle East Studies: 6 (Cambridge: Cambridge University Press, 1997), 8–11, 49–56, and passim. 77. FO 847/36/13 (Miss Margaret Ann Gowans, 1906). See also Nazan Maksudyan, ‘‘The Fight over Nobody’s Children: Religion, Nationality and Citizenship of Foundlings in the Late Ottoman Empire,’’ New Perspectives on Turkey 41 (Fall 2009): 151–180. 78. CADN Alexandrie 537/p8 (Anissa fille de Youssef Cohen Solal Solal, 12 April 1912). This proved advantageous for the widow Anissa, however: Ottoman nationality was not transferred to foreign wives, so when her husband died she reverted to her original status (inherited from her father), which was that of an Algerian French prote´ge´. 79. CADN Recensement des alge´riens 1061 (1880), 1306, 1307, 1310 (1892), 1497 (1903), 1972 (1914); Recensement des tunisiens 305 (1883). 80. Key references include Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference, Princeton Studies in Culture/Power/History (Princeton, NJ: Princeton University Press, 2000); Prasenjit Duara, Rescuing History from the Nation: Questioning Narratives of Modern China (Chicago: University of Chicago Press, 1995); Cooper, Colonialism in Question. 81. For a call to expand the European-dominated paradigm, based on Asian evidence of transnationalism, see Elaine Lynn-Ee Ho, ‘‘Citizenship, Migration and Transnationalism: A Review and Critical Interventions,’’ Geography Compass 2, no. 5 (September 2008): 1294–1296. She also argues that the literature on migration and citizenship suffers from an analytical bias toward receiving states (1292). 82. Signal examples of this work include Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, Princeton Studies in Culture/Power/History (Princeton, NJ: Princeton University Press, 1996).

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83. This point is also made in Isin, ‘‘Citizenship after Orientalism.’’ 84. Afaf Lutfi Sayyid-Marsot, Egypt’s Liberal Experiment, 1922–1936 (Berkeley: University of California Press, 1977); Marius Deeb, Party Politics in Egypt: The Wafd and Its Rivals, 1919–1939, St. Antony’s Middle East Monographs: 9 (London: Ithaca Press for the Middle East Centre, St Antony’s College, Oxford, 1979). 85. Bosniak, The Citizen and the Alien, 1. 86. Salzmann, ‘‘Citizens in Search of a State,’’ 5; Isin, ‘‘Citizenship after Orientalism,’’ 44. 87. Joe Painter, ‘‘Multi-level Citizenship, Identity and Regions in Contemporary Europe,’’ in Transnational Democracy: Political Spaces and Border Crossings, ed. James Anderson (New York: Routledge, 2002), 10–12. For an argument that European integration has long been about much more than economics, namely a political project of transcending borders and building a European community of people, see Willem Maas, Creating European Citizens (Lanham, MD: Rowman & Littlefield, 2007). Chapter 6 1. Mary Backus Rankin, Early Chinese Revolutionaries: Radical Intellectuals in Shanghai and Chakiang, 1902–1911 (Cambridge, MA: Harvard University Press, 1971), 86–95. See also Peter Zarrow, China in War and Revolution, 1895–1949 (London: Routledge, 2005). 2. At times, citations in this chapter will call this the Su Pao case. That difference in spelling, like the occasional differences in spelling proper names, is the result of historical changes in methods of transliteration. 3. Engin F. Isin, ‘‘Citizenship in Flux: The Figure of the Activist Citizen,’’ Subjectivities 29 (2009): 367, 383. 4. See, e.g., Tamar Herzog, Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America (New Haven, CT: Yale University Press, 2003); Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens: University of Georgia Press, 1986). 5. Harold Z. Shiffrin, Sun Yat Sen and the Origins of the Chinese Revolution (Berkeley: University of California Press, 1968), 39–40. 6. Philip C. Huang, Liang Ch’i-ch’ao and Modern Chinese Liberalism (Seattle: University of Washington Press, 1972), 24. 7. See generally Zarrow, China in War and Revolution, especially Part I. 8. Peter Zarrow, ‘‘The Reform Movement, the Monarchy, and Political Modernity,’’ in Rethinking the 1898 Reform Period: Political and Cultural Change in Late Qing China, ed. Rebecca Karl and Peter Zarrow (Cambridge, MA: Harvard University Press, 2002), 17, 18. 9. Marius Jansen, The Japanese and Sun Yat-sen (Cambridge, MA: Harvard University Press, 1954), 78–80; Schiffrin, Sun Yat Sen, 65; Frank Fe Wong, ‘‘Liang Ch’iCh’ao and the Conflict of Confucian and Constitutional Politics’’ (PhD diss., University of Wisconsin, 1965), 21, 50, 63–65.

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10. The range of Liang’s views is suggested in Huang, Liang Ch-i-Ch’ao, 77–80. 11. Zhang Binglin ( ), ‘‘Zeng Da Jiang Jun Zou Jun Mu Biao’’ ( ‘‘Bestowing the Honorary Title of General on Mr. Zou for His Memorial’’), in Chai Degeng ( ) et al., comps., Xin hai ge ming ( , The Revolution of 1911) (Shanghai: Shanghai ren min chu ban she, 1957), I: 365. 12. Zhang, Zeng Da Jiang, 365 (Zou and the other students pushed their way into the official’s apartment, slashed his cheek with a knife, and cut off his queue). For a different account of this incident, see Paula Harrell, Sowing the Seeds of Change: Chinese Students, Japanese Teachers, 1895–1905 (Stanford, CA: Stanford University Press, 1992), 147. See also Rankin, Early Chinese Revolutionaries, 50–56. 13. Zhang Huangxi ( ), ‘‘Su Bao An Shi Lu’’ ( , ‘‘True Record of the Su Bao Case’’), in Degeng, Xin hai ge ming, I: 367. 14. Rankin, Early Chinese Radicals, 88–95. 15. Zhang, Su Bao An Shi Lu, 368. 16. Zhang, Su Bao An Shi Lu, 376. Chinese language versions of both pamphlets are in John Lust, ed. and trans., The Revolutionary Army (Paris: Mouton, 1968). See also Rankin, Early Chinese Revolutionaries, 88–95. 17. ‘‘The Freedom of the Native Press,’’ North China Herald, July 3, 1903, 10. 18. ‘‘The Supao Case,’’ North China Herald, July 24, 1903, 175; ‘‘The Supao Case,’’ North China Herald, August 7, 1903, 314; ‘‘The Supao Case,’’ North China Herald, September 4, 1903, 487. 19. ‘‘The Sedition Trial,’’ North China Herald, July 24, 1903, 196–197; ‘‘The Supao Case,’’ North China Herald, July 31, 1903, 225–226; ‘‘Supao Case,’’ North China Herald, August 7, 1903, 314; ‘‘The Supao Case,’’ North China Herald, August 14, 1903, 345; ‘‘The Supao Case,’’ North China Herald, 4, September 1903, 487; ‘‘The Supao Case,’’ North China Herald, September 25, 1903, 669. 20. Gu Hong Ming, ‘‘Letter to the Editor: Political Offense and Its Punishment in China,’’ North China Herald, September 11, 1903, 577–578. 21. ‘‘The Supao Case,’’ North China Herald, August 7, 1903, 314; ‘‘Les Suprises du Soupao,’’ North China Herald, August 14, 1903, 330–331. 22. ‘‘The Supao Case,’’ North China Herald, December 18, 1903, 1281. 23. ‘‘The Supao Sedition Trial,’’ North China Herald, December 4, 1903, 1210–1211. 24. ‘‘Supao Sedition Trial,’’ North China Herald, December 11, 1903, 1245. 25. ‘‘Extraordinary Developments,’’ North China Herald, December 11, 1903, 1246. 26. ‘‘The Supao Sedition Trial,’’ North China Herald, May 27, 1904, 1121. 27. Zhang, Su Bao An Shi Lu, 384. 28. Sun Yat Sen, San Min Zhu Yi ( , The Triple Demism of Sun Yat-sen), trans. Pasquale d’Elia (Wuchang, China: Franciscan Press, 1931), 98. 29. Immanuel C. Y. Hsu, ‘‘Late Ch’ing Foreign Relations, 1866–1905,’’ in Cambridge History of China: vol. 11, Late Ching, 1800–1911, ed. John K. Fairbank and Kwang-Ching Liu (Cambridge: Cambridge University Press, 1980), 70.

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30. Hsu, ‘‘Late Ch’ing Foreign Relations,’’ 113–115. 31. See the summary of extraterritoriality rights and powers in Elbert D. Thomas, ‘‘Extraterritoriality in China,’’ S. Doc. No. 102 (1943). 32. Zarrow, China in War and Revolution, Part I. 33. See generally A. M. Kotenev, Shanghai: Its Mixed Court and Council (Shanghai: North China Daily News, 1925); Hanchao Lu, Beyond the Neon Lights: Everyday Shanghai in the Early Twentieth Century (Berkeley: University of California Press, 1999). 34. Lu, Beyond the Neon Lights. 35. Cf. Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010). 36. The governors were typically Han Chinese, the military governors usually Manchu. 37. Kelly Hammond, ‘‘The Shanghai Mixed Court 1863–1880: Colonial Institution Building and the Creation of Legal Knowledge as a Process of Interaction and Mediation Between the Chinese and the British’’ (master’s thesis, Simon Fraser University, 2007), 30; Yuen-Sang Leung, The Shanghai Taotai: Linkage Man in a Changing Society, 1843–1890 (Honolulu: University of Hawaii Press, 1990), 6–8 and Tables II-b and II-c. 38. Shanghai’s French Concession, for example, created its own municipal council, which was under the control of the French consul-general. It also had a code of regulations that had much in common with the regulations of the International Settlement next door. Victoria Tahirih Lee, ‘‘Law and Local Authority at the International Mixed Court of Shanghai’’ (PhD diss., Yale University, 1900). 39. Lee, ‘‘Law and Local Authority,’’ 83, n147, 87. 40. Lee, ‘‘Law and Local Authority,’’ 87–88. 41. The Mixed Court’s procedures were even more complicated than its jurisdiction. See Lee, ‘‘Law and Local Authority,’’ 54. 42. Lee, ‘‘Law and Local Authority,’’ 48–49, 95; Manley O. Hudson, ‘‘The Rendition of the International Mixed Court in Shanghai,’’ American Journal of International Law 21 (1927): 451, 456; Lu, Beyond the Neon Lights, especially chapter 1; John Lust, ‘‘The Su Pao Case: An Episode in the Early Chinese Nationalist Movement,’’ Bulletin of the School of Oriental and African Studies 27 (1964): 408, 411–412; ‘‘The Mixed Court,’’ North China Herald, January 8, 1904, 36. 43. Lee, ‘‘Law and Authority,’’ 106–107. 44. Thomas, ‘‘Extraterritoriality,’’ 6–7; Tahirih V. Lee, ‘‘The United States Court for China: A Triumph of Local Law,’’ Buffalo Law Review 52 (2004): 923. 45. Lee, ‘‘Law and Local Authority,’’ 59, 63–65. 46. Benton, A Search for Sovereignty. 47. The discussion that follows rests on an understanding of citizenship that would not have made much sense to constitutional scholars at the turn of the twentieth century. The idea of citizenship in China was deeply contested (see Shen

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Sung-chiao, ‘‘Discourse on Guomin [‘the citizen’] in Late Qing China, 1895–1911,’’ Inter-Asia Cultural Studies 43 [2009]: 1463), but standard constitutional theory probably would have asserted that Zou was a subject of the Qing Dynasty, not a citizen of China. Zou himself drew a distinction between the Chinese people ( , wu zhongguo, my fellow Chinese) and the (guomin, citizens) who would be created if his plan unfolded as he proposed. Although this suggests that even Zou thought citizenship was possible only in the future, Zou and his allies were wrestling with issues and engaging in practices that modern scholarship treats as aspects of citizenship. They worried about rights and how they were guaranteed, they were concerned about the relation between the state and the individual, they were troubled by the ways host countries treated citizens or subjects of other lands, and they speculated about how citizenship related to questions of ethnic or national identity. 48. Rebecca Karl, Staging the World: Nationalism at the Turn of the Century (Durham, NC: Duke University Press, 2002), 54–55. 49. Shao Dan, ‘‘Chinese by Definition: Nationality Laws, Jus Sanguinis, and State Succession, 1909–1980,’’ Twentieth-Century China 35 (2009): 4, 9. 50. United States v. Wong Kim Ark, 169 US 649 (1898). 51. Jansen, Japanese and Sun Yat-sen, 122–123. For examples of the problems Chinese migrants faced in different countries, see, e.g., Gordon C. K. Chang, ‘‘Involuntary Migrants, Political Revolutionaries, and Economic Energisers: A History of the Image of Overseas Chinese in South East Asia,’’ Journal of Contemporary China 43 (2005): 54–55; Sascha Auerbach, Race, Law and the ‘‘Chinese Puzzle’’ in Britain (New York: Palgrave Macmillan, 2009); Evelyn Hu-Dehart, ‘‘Immigrants to a Developing Society: The Chinese in Northern Mexico, 1875–1932,’’ Journal of Arizona History 21 (1980): 275. 52. Steven Tsang, A Modern History of Hong Kong (London: I. B. Tauris, 2004), 81; Jansen, Japanese and Sun Yat-sen, 122–123, 125. 53. Britain, for example, passed a law in 1908 that sought to limit the number of foreign-born (particularly Chinese) sailors on British ships. Chinese sailors got around this prohibition by claiming that they had been born on British territory. Auerbach, Race, Law and ‘‘The Chinese Puzzle,’’ 39–40; Dan, ‘‘Chinese by Definition,’’ 10. This chapter has benefited from discussions with Shao Dan, and I am grateful for her suggestions. 54. Zhang, Zang Da Jiang, 365. See also the discussions of this practice in Lee, ‘‘Law and Local Authority,’’ 50–51, 91. 55. Lee, ‘‘Law and Local Authority,’’ 91. Lee also notes that questions of court jurisdiction could be confused by another declaration: Chinese nationals employed by some foreigners would be considered foreign nationals for purposes of Mixed Court jurisdiction and removed from that court’s jurisdiction as a result. Lee, ‘‘Law and Local Authority,’’ 52. 56. Adam McKeown, Melancholy Order: Migration and the Globalization of Borders (New York: Columbia University Press, 2011), 194–197 (Australia), 275–283 (false family claims), 421 n. 58 (Sun Yat Sen).

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57. Jansen, Japanese and Sun Yat-sen, 112–113. 58. Elizabeth Dale, ‘‘Constitutional Movements: An Example from China, 1894– 1924,’’ Research Paper No. 2009–38 (University of Florida Levin College of Law, 2009), http://ssrn.com/abstract1496303. 59. On China’s diaspora and its relation to the reform and radical movements, see Jansen, The Japanese and Sun Yat-sen, 112–113; L. Eve Armentrout Ma, Revolutionaries, Monarchists, and Chinatowns: Chinese Politics in the Americas and the 1911 Revolution (Honolulu: University of Hawaii Press, 1990); Adam McKeown, Chinese Migrant Networks and Cultural Change: Peru, Chicago, Hawaii, 1900–1936 (Chicago: University of Chicago Press, 2001); Shehong Chen, Being Chinese, Becoming Chinese American (Champaign: University of Illinois Press, 2002); Andrew R. Wilson, Ambition and Identity: Chinese Merchant Elites in Colonial Manila, 1880–1916 (Honolulu: University of Hawaii Press, 2004). 60. Harrell, Sowing the Seeds, 151–152; Rankin, China’s Early Revolutionaries, 97–103. 61. Dale, ‘‘Constitutional Movements.’’ 62. Harrell, Sowing the Seeds, 153–155. 63. Harrell, Sowing the Seeds, 151. The argument about the fair trial suggests that the activists were willing to manipulate the facts to support their message, because the idea that the Su Bao trial was fair is ludicrous. The parties and the judges never agreed on the precise nature of the charges against the defendants (more than a minor problem), but they did seem to agree that an accusation of seditious libel required proof that Zou and Zhang had written and published the pamphlets. Yet the prosecution put forth no evidence to support the claim that Zou or Zhang agreed to have their essays published, and both denied having done so. Given that, the fact that they were found guilty and sentenced to any type of punishment is a sign that the outcome of the trial was a political compromise, not something required by either law or fairness. 64. Zarrow, China in War and Revolution. 65. Rankin, Early Chinese Radicals, 95. Recall the North China Herald’s assertion that the International Settlement promised its Chinese residents freedom of the press. 66. Isin, ‘‘Citizenship in Flux,’’ 382. 67. Jurgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger and Frederick Lawrence (Cambridge: Polity Press, 1989), 51, 57; Antonio Negri, Insurgencies: Constituent Power and the Modern State, trans. Maurizia Boscagli (Minneapolis: University of Minnesota Press, 2009), chapters 4–5; Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, NJ: Princeton University Press, 2006), 315–319. 68. Isin, ‘‘Citizenship in Flux,’’ 384. For another discussion of how citizenship may be created through acts, see the article by Neveu, ‘‘Sites of Citizenship,’’ in this book (Chapter 11).

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Chapter 7 1. Every piece of scholarship on Indigenous peoples must include a note about terminology. On the international level, the terms Indigenous and Indigenous peoples are typically used, implying the transnational status of such groups. In national contexts, terminology differs greatly by geography and across time. The term Indian has been and remains a legal and policy term officially utilized by both governments. The question of whether or not to capitalize the word Indigenous remains unresolved. Some authors capitalize while others do not. This author prefers to capitalize, although where others have been cited, their (non)capitalization has been maintained. 2. Different Indigenous peoples and different countries use a variety of terms to describe these entities: Indigenous nations, First Nations, and tribes are all commonly used. In the United States, the official term is tribe; in Canada, there are three recognized Indigenous groups: ‘‘First Nations,’’ which are the equivalent of Indian tribes; ‘‘Inuit,’’ in the Arctic region; and ‘‘Me´tis,’’ a group comprising the descendants of Indigenous women and early French settlers in Canada. Indigenous nation is a term that is increasing in international usage. 3. By settler society, I refer to countries that were explored and then settled by Europeans and that became the dominant group in the new territory, often but not necessarily becoming the majority population. These countries are typically thought to include the United States, Canada, Australia, New Zealand, and South Africa. 4. This model of colonization was dominant throughout Latin America. Mestizos typically think of themselves as apart from or higher in status than the ‘‘indios’’ or ‘‘Indians’’—the Indigenous peoples. 5. S. James Anaya, International Human Rights and Indigenous Peoples (Austin, TX: Wolters Kluwer Law and Business, 2009), 60–61. 6. Ibid. 7. See Convention No. 169, International Labour Organization, last modified 2012, http://www.ilo.org/indigenous/Conventions/no169/lang—en/index.htm. As of this writing, ILO 169 has been ratified by 20 countries. Neither the United States nor Canada has signed or ratified it. 8. Sheryl R. Lightfoot, ‘‘Selective Endorsement without Intent to Implement: Indigenous Rights and the Anglosphere,’’ International Journal of Human Rights 16, no. 1 (2012): 100–122. For the full text of UNDRIP, see United Nations General Assembly, Resolution 61/295, ‘‘United Nations Declaration on the Rights of Indigenous Peoples,’’ September 13, 2007, http://www.un.org/esa/socdev/unpfii/documents/ DRIPS_en.pdf. 9. Stephen Allen, ‘‘The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International Project,’’ in Reflections on the UN Declaration on the Rights of Indigenous Peoples, ed. Stephen Allen and Alexandra Xanthanki (Oxford: Hart Publishing, 2011), 230. 10. Allen, ‘‘The UN Declaration,’’ 227–228.

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11. S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford: Oxford University Press, 2004), 61–72. 12. Alexandra Xanthaki, Indigenous Rights and United Nations Standards: SelfDetermination, Culture and Land (Cambridge: Cambridge University Press, 2007.) 13. United Nations General Assembly, Resolution 61/295. 14. Carole Blackburn, ‘‘Differentiating Indigenous Citizenship: Seeking Multiplicity in Rights, Identity, and Sovereignty in Canada,’’ American Ethnologist 36, no. 1 (2009): 66–78. 15. United Nations General Assembly, Resolution 61/295. 16. Anaya, International Law and Indigenous Peoples, 62. 17. Anaya, International Law and Indigenous Peoples, 60. 18. Anaya, International Law and Indigenous Peoples, 60. 19. Cindy Holder and Jeff Corntassel, ‘‘Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights,’’ Human Rights Quarterly 24, no. 1 (2002): 151. 20. Sigfried Wiessner, ‘‘Rights and Status of Indigenous Peoples: A Global Comparative and International Analysis,’’ in International Law and Indigenous Peoples, ed. S. James Anaya (Burlington, VT: Ashgate Publishing, 2003), 293. 21. See Consolidation: Indian Act, R.S.C., 1985, c. I-5, Department of Justice, last modified January 31, 2011, http://laws-lois.justice.gc.ca/PDF/I-5.pdf. 22. Claude Denis, ‘‘Indigenous Citizenship and History in Canada: Between Denial and Imposition,’’ in Contesting Canadian Citizenship, Historical Readings, ed. Robert Adamoski, Dorothy Chunn, and Robert Menzies (Peterborough, ON: Broadview Press, 2002), 1. 23. Blackburn, ‘‘Differentiating Indigenous Citizenship.’’ 24. Blackburn, ‘‘Differentiating Indigenous Citizenship,’’ 70. 25. Denis, ‘‘Indigenous Citizenship and History in Canada,’’ 1. 26. Blackburn, ‘‘Differentiating Indigenous Citizenship,’’ 67. 27. Denis, ‘‘Indigenous Citizenship and History in Canada,’’ 1–2. 28. Blackburn, ‘‘Differentiating Indigenous Citizenship,’’ 67. 29. Consolidation: Indian Act. 30. Alan C. Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State (Vancouver, BC: UBC Press, 2000), 12. 31. Denis, ‘‘Indigenous Citizenship and History in Canada,’’ 2. 32. For example, the so-called ‘‘second generation cut-off ’’ rule, which strips Indian status from people after two generations of mixed parentage. 33. Stewart Clatworthy and Anthony H. Smith, Population Implications of the 1985 Amendments to the Indian Act: Final Report (Winnipeg, MB: Four Directions Consulting Group, 1992). 34. Denis, ‘‘Indigenous Citizenship and History in Canada,’’ 5. 35. Thomas Flanagan, First Nations? Second Thoughts (Montreal, QC: McGillQueen’s University Press, 2008), 23–24.

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36. Flanagan, First Nations?, 22. 37. Frances Widdowson and Albert Howard, Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation (Montreal, QC: McGill-Queen’s University Press, 2008), 108–109. 38. Royal Commission on Aboriginal Peoples, People to People, Nation to Nation: Highlights from the Report of the Royal Commission on Aboriginal Peoples (Aboriginal Affairs and Northern Development Canada, 1996), http://www.aadnc-aandc.gc.ca/ eng/1100100014597. 39. See Aboriginal Affairs and Northern Development Canada, home page, last modified May 30, 2012, www.ainc-inac.gc.ca. 40. Statistics Canada, 2006 Aboriginal Population Profile, http://www12.stat can.ca/census-recensement/2006/dp-pd/prof/92-594/details/page.cfm?LangE&Geo 1PR&Code162&Geo2PR&Code201&DataCount&SearchTextNunavut &SearchTypeBegins&SearchPR01&B1All&GeoLevelPR&GeoCode62. 41. Conference Board of Canada, Nunavut Economic Outlook: An Examination of the Nunavut Economy (Ottawa, ON: Conference Board of Canada, 2001), 1. 42. Nunavut Land Claims Settlement Agreement (Department of Communications, Nunavut Tunngavik Inc., 2000), Article 35.3.1: 235–236, http://www.usask.ca/ nativelaw/factums/view.php?id116. 43. Blackburn, ‘‘Differentiating Indigenous Citizenship,’’ 66. 44. Denis, ‘‘Indigenous Citizenship and History in Canada,’’ 10. 45. Nisga’a Final Agreement, April 27, 1999, Aboriginal Affairs and Northern Development Canada, 1:10, http://www.nnkn.ca/files/u28/nis-eng.pdf. 46. Nisga’a Final Agreement, 2: para. 15, 19. 47. Denis, ‘‘Indigenous Citizenship and History in Canada,’’ 10. 48. Blackburn, ‘‘Differentiating Indigenous Citizenship,’’ 70. 49. Blackburn, ‘‘Differentiating Indigenous Citizenship,’’ 70. 50. Blackburn, ‘‘Differentiating Indigenous Citizenship,’’ 71. 51. Blackburn, ‘‘Differentiating Indigenous Citizenship,’’ 76. 52. These are known collectively as the ‘‘Cherokee cases,’’ as all were cases that involved the Cherokee Nation. 53. David E. Wilkins, American Indian Politics and the American Political System (Lanham, MD: Rowman & Littlefield Publishers, 2002). 54. David E. Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997), 20. 55. Wilkins, American Indian Sovereignty and the U.S. Supreme Court. 56. Wilkins, American Indian Politics, 51. 57. F. Paul Prucha, ed., Documents of United States Indian Policy, 3rd ed. (Lincoln: University of Nebraska Press, 2000), 172. 58. Wilkins, American Indian Politics, 55. 59. Prucha, Documents of United States Indian Policy, 175. 60. Prucha, Documents of United States Indian Policy, 198.

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61. Wilkins, American Indian Politics, 55. 62. Prucha, Documents of United States Indian Policy, 215. 63. Prucha, Documents of United States Indian Policy, 218. 64. Prucha, Documents of United States Indian Policy, 47. 65. Prucha, Documents of United States Indian Policy, 56. 66. Kenneth Deer (Mohawk, member of the Iroquois [Haudenosaunee] Confederacy, representative of the Indigenous World Association, editor of the Eastern Door), interview by Sheryl Lightfoot, March 20, 2012, Vancouver, British Columbia. The Eastern Door is an award-winning, independent newspaper serving the Mohawk community of Kahnawake. Mr. Deer is highly active in international Indigenous politics and has traveled to more than 20 countries on his Iroquois passport. 67. Deer, interview, 48. Chapter 8 This chapter presents results from a research project on local citizenship politics in Switzerland that was generously financed by the Swiss National Science Foundation (NFP 40) for three years between December 2003 and January 2007. I draw extensively on discussions of my findings in previous publications, especially Marc Helbling, Practising Citizenship and Heterogeneous Nationhood: Naturalizations in Swiss Municipalities (Amsterdam: Amsterdam University Press, 2008), chapter 4; Marc Helbling, ‘‘Decentralised Citizenship Politics: Between National Justice and Municipal Particularities,’’ IMISCOE Policy Brief no. 9 (Amsterdam: IMISCOE, 2008); Marc Helbling ‘‘Naturalization Politics in Switzerland: Explaining Rejection Rates at the Local Level,’’ in The Local Dimension of Migration Policymaking, ed. Tiziana Caponio and Maren Borkert (Amsterdam: Amsterdam University Press, 2010). 1. See Heike Hagedorn, ‘‘Fo¨deralismus und die deutsche Staatsangeho¨rigkeit: Die Einbu¨rgerungspolitik der Bundesla¨nder,’’ in Integrationspolitik in fo¨deralistischen Systemen (Jahrbuch Migration), ed. Lale Akgu¨n and Dietrich Thra¨nhardt (Mu¨nster: Lit, 2001), 91–117; Heike Hagendorn, ‘‘Einbu¨rgerungspolitik in Deutschland und Frankreich,’’ Leviathan 29 (2001); Alice Ludwig, ‘‘Why Should Austria Be Different from Germany? The Two Recent Nationality Reforms in Contrast,’’ German Politics 13 (2004); Christian Dornis, ‘‘Einbu¨rgerung in Deutschland: Eine vergleichende Untersuchung der Verwaltungspraxis in verschiedenen Regionen,’’ Demographie aktuell 15 (1999); Christian Dornis, ‘‘Einbu¨rgerung in Deutschland: Die Verwaltungspraxis in verschiedenen Regionen im Vergleich,’’ in Integrationspolitik in fo¨deralistischen Systemen (Jahrbuch Migration), ed. Lale Akgu¨n and Dietrich Thra¨nhardt (Mu¨nster: Lit, 2001); Peter F. Bultmann, Lokale Gerechtigkeit im Einbu¨rgerungsrecht (Berlin: Duncker & Humblot, 1999). 2. Hagendorn, ‘‘Fo¨deralismus,’’ 91–117; Hagendorn, ‘‘Einbu¨rgerungspolitik,’’ 36–57; Dornis, ‘‘Einbu¨rgerung in Deutschland: Eine vergleichende Untersuchung’’; Dornis, ‘‘Einbu¨rgerung in Deutschland: Die Verwaltungspraxis,’’ 63–99.

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3. Hagendorn, ‘‘Fo¨deralismus,’’ 91–117; Hagendorn, ‘‘Einbu¨rgerungspolitik,’’ 36–57. 4. See also Bultmann, Lokale Gerechtigkeit, 196–202. 5. Dietrich Thra¨nhardt, ‘‘Regionale Ansa¨tze und Schwerpunktaufgaben der Integration von Migrantinnen und Migranten in Nordrhein-Westfalen,’’ in Texte zu Migration und Integration in Deutschland, ed. Dietrich Thra¨nhardt (Mu¨nster: Arbeitsstelle fu¨r interkulturelle Kommunikation, 1999). 6. Dornis, ‘‘Einbu¨rgerung in Deutschland: Die Verwaltungspraxis,’’ 76–85. 7. Hagendorn, ‘‘Einbu¨rgerungspolitik,’’ 40. 8. Harald Waldrauch and Dilek Cinar, ‘‘Staatsbu¨rgerschaftspolitik und Einbu¨rger¨ sterreich,’’ in O ¨ sterreichischer Migrations- und Integrationsbricht, ed. ungspraxis in O Heinz Fassmann and Irene Stacher (Klagenfurt: Drava Verlag, 2003); Dilek Cinar and Harald Waldrauch, ‘‘Austria,’’ in Acquisition and Loss of Nationality: Policies and Trends in 15 European States, vol. 2, Country Analyses, ed. Rainer Baubo¨ck, Eva Ersboll, Kees Groenendijk, and Harald Waldrauch (Amsterdam: Amsterdam University Press, 2006). 9. D. S. North, The Long Grey Welcome: A Study of the American Naturalization Program (Washington: NALEO Education Fund, 1985); D. S. North, ‘‘The Long Grey Welcome: A Study of the American Naturalization Program,’’ International Migration Review 21 (1987): 311–326. 10. North, The Long Grey Welcome, 38–39. 11. Patrick Weil, Qu’est-ce qu’un Franc¸ais? (Paris: Gallimard, 2004), 377–387. 12. Jacqueline Costa-Lascoux, ‘‘ ‘Devenir Franc¸ais Aujourd’hui . . .’ Re´flexion sur la Sociologie des Naturalizations,’’ in Etre Franc¸ais Aujourd’hui: Premier Bilan de la Mise en Oeuvre du Nouveau Droit de la Nationalite´, ed. Hugues Fulchiron (Lyon: Presses Universitaires de Lyon, 1996), 149. 13. Hagendorn, ‘‘Einbu¨rgerungspolitik,’’ 43–44. 14. See also Hugues Fulchiron, ed., Etre Franc¸ais Aujourd’hui: Premier Bilan de la Mise en Oeuvre du Nouveau Droit de la Nationalite´ (Lyon: Presses Universitaires de Lyon, 1996). 15. Alisdair Rogers and Jean Tillie, eds., Multicultural Politics and Modes of Citizenship in European Cities (Aldershot: Ashgate, 2001); Alisdair Rogers, ‘‘Citizenship, Multiculturalism and the European City,’’ in A Companion to the City, ed. Gary Bridge and Sophie Watson (Oxford: Blackwell, 2000); Rinus Penninx, Karen Kraal, Marco Martiniello, and Steve Vertovec, ‘‘Introduction: European Cities and Their New Residents,’’ in Citizenship in European Cities: Immigrants, Local Politics and Integration Policies, ed. Rinus Penninx, Karen Kraal, Marco Martiniello, and Steve Vertovec (Aldershot: Ashgate, 2004); Adrian Favell, ‘‘Integration Policy and Integration Research: A Review and Critique,’’ in Citizenship: Global Perspectives and Practices, ed. Thomas A. Aleinikoff and Douglas Klusmeyer (Washington, DC: Brookings Institute and Carnegie Endowment, 2001). 16. E.g., Romain Garbaye, ‘‘Ethnic Minority Local Councillors in French and British Cities: Social Determinants and Political Opportunity Structures,’’ in Citizenship

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in European Cities: Immigrants, Local Politics and Integration Policies, ed. Rinus Penninx, Karen Kraal, Marco Martiniello, and Steve Vertovec (Aldershot: Ashgate, 2004). 17. Rinus Penninx, Karen Kraal, Marco Martiniello, and Steve Vertovec, eds., Citizenship in European Cities: Immigrants, Local Politics and Integration Policies (Aldershot: Ashgate, 2004). 18. Patrick Ireland, The Policy Challenge of Ethnic Diversity: Immigrant Politics in France and Switzerland (Cambridge: Harvard University Press, 1994); Ruud Koopmans, ‘‘Migrant Mobilisation and Political Opportunities: Variation among German Cities and a Comparison with the United Kingdom and the Netherlands,’’ Journal of Ethnic and Migration Studies 30 (2004); Hassan Bousetta, ‘‘Citizenship and Political Participation in France and the Netherlands: Reflections on Two Local Cases,’’ New Community 23 (1997): 215–231. 19. Romain Garbaye, ‘‘Ethnic Minorities, Cities, and Institutions: A Comparison of the Modes of Management of Ethnic Diversity of a French and a British City,’’ in Challenging Immigration and Ethnic Relations Politics: Comparative European Perspectives, ed. Ruud Koopmans and Paul Statham (Oxford: Oxford University Press, 2000). 20. Damian Moore, Ethnicite´ et Politique de la Ville en France et en GrandeBretagne (Paris: L’Harmattan, 2001); Damian Moore, ‘‘Migrants as Mediators in a Comparative Perspective,’’ in Citizenship in European Cities: Immigrants, Local Politics and Integration Policies, ed. Rinus Penninx, Karen Kraal, Marco Martiniello, and Steve Vertovec (Aldershot: Ashgate, 2004). 21. For information on the data collection and the design of this study, see Helbling, Practising Citizenship, 67–73, 81–87. 22. Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992); Adrian Favell, Philosophies of Integration: Immigration and the Idea of Citizenship in France and Britain (Basingstoke: Macmillan, 1998). 23. Brubaker, Citizenship and Nationhood. 24. Favell, Philosophies of Integration. 25. Brubaker, Citizenship and Nationhood; Favell, Philosophies of Integration. 26. Results from similar referenda are also used in other studies to measure locally prevailing attitudes toward foreigners or citizenship politics; see Ireland, Policy Challenge, chapter 6; Sandro Cattacin and Bu¨lent Kaya, ‘‘Le De´veloppement des Mesures d’Inte´gration de la Population Migrante sur le Plan Local en Suisse,’’ in Histoire de la Politique de Migration: D’Asile et d’Integration en Suisse depuis 1948, ed. Hans Mahnig (Zu¨rich: Seismo, 2005), 309–318; Etienne Piguet and Philippe Wanner, Les Naturalizations en Suisse: Diffe´rences entre Nationalite´s, Cantons et Communes, 1981–1998 (Neuenburg: Bundesamt fu¨r Statistik, 2000), 66–73; Christian Bolliger, ‘‘Spielt es eine Rolle, wer entscheidet? Einbu¨rgerungen in Gemeinden mit Parlaments—und Volksentscheid im Vergleich,’’ in Paradoxien im Bu¨rgerrecht: Sozialwissenschaftliche Studien zur Einbu¨rgerungspraxis in Schweizer Gemeinden, ed. Pascale Steiner and Hans-Rudolf Wicker (Zu¨rich: Seismo, 2004). The Swiss Federal Statistical Office provided the data

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for this indicator. The following referenda were considered for the measurement of the indicator: Aliens Act (1982), Federal Resolution on the facilitation of certain naturalizations (1983), Federal Law on the residence and establishment of foreigners (1987), Asylum Act (1987), Initiative on the limitation of immigration (1988), Revision of the federal regulation of the facilitated naturalization of young foreigners (1994), Federal Law on sanctions against migrants (1994), Initiative against illegal immigration (1996), Asylum Act (1999), Initiative against the misuse of asylum rights (2002). See Swiss Federal Statistical Office, last modified June 21, 2012, http://www.bfs .admin.ch/bfs/portal/en/index.html. 27. I carried out a factor analysis with the percentages of ‘‘yes’’ votes. The second resulting factor matched my conceptualization of the understanding of citizenship fairly well and was therefore retained for the ensuing regression analysis. It constitutes a continuous variable; high values mean a restrictive understanding of citizenship. 28. Marc M. Howard, The Politics of Citizenship in Europe (New York: Cambridge University Press, 2009); Thomas Janoski, The Ironies of Citizenship: Naturalization and Integration in Industrialized Countries (New York: Cambridge University Press, 2010). 29. Christian Joppke, ‘‘Citizenship between De- and Re-ethnicization,’’ European Journal of Sociology 44 (2003): 429–458. 30. See also Marc M. Howard, ‘‘Comparative Citizenship: An Agenda for CrossNational Research,’’ Perspectives on Politics 4 (2006): 443–455. 31. The perception of the strength of political parties and unemployment rate variables were taken from a dataset provided by Andreas Ladner and his collaborators at the University of Berne, who carried out three national surveys in all Swiss municipalities in 1988, 1994, and 1998; see Andreas Ladner, Politische Gemeinde, kommunale Parteien und lokale Politik: Eine empirische Untersuchung in den Gemeinden der Schweiz (Zu¨rich: Seismo Verlag, 1991), 237–238. 32. The municipal secretaries were asked how important, according to their opinion, party X was in the political life of their municipality—whether it was ‘‘very important,’’ ‘‘important,’’ ‘‘rather unimportant,’’ or ‘‘unimportant.’’ For the regression analysis, the party variables were dichotomized (important/unimportant). 33. Ladner, Politische Gemeinde. 34. See Marc Helbling, ‘‘Citizenship, Right-Wing Populism and the Direct Democratic Dilemma,’’ in Right-Wing Extremism in Switzerland: National and International Perspectives, ed. Marcel Niggli (Baden-Baden: Nomos, 2009), 102–112. 35. Virginie Guiraudon, ‘‘Citizenship Rights for Non-Citizens: France, Germany, and the Netherlands,’’ in Challenge to the Nation-State: Immigration in Western Europe and the United States, ed. Christian Joppke (Oxford: Oxford University Press, 1998), 287–297. See also Barbara S. Gamble, ‘‘Putting Civil Rights to a Popular Vote,’’ American Journal of Political Science 41 (1997): 249. 36. Claus Offe and Ulrich K. Preuss, ‘‘Democratic Institutions and Moral Resources,’’ in Political Theory Today, ed. David Held (Cambridge: Polity, 1991), 143–171.

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37. After the operationalization of the decision-making structure, I transformed the nominal variable of the formal procedures into dummy variables. 38. Susan Olzak, The Dynamics of Ethnic Competition and Conflict (Stanford, CA: Stanford University Press, 1992). 39. Lincoln Quillian, ‘‘Prejudice as a Response to Perceived Group Threat: Population Composition and Anti-Immigrant and Racial Prejudice in Europe,’’ American Sociological Review 60 (1995): 586–611. 40. Quillian, ‘‘Prejudice as a Response.’’ 41. For the unemployment rate, I asked the secretaries of local administrations to what extent their municipalities were affected. Unlike using the effective unemployment rate, this method better measures the perception of the local economic situation, which might also be influenced by the situation at the regional level. The municipal secretaries were asked whether their municipalities had been affected ‘‘very much,’’ ‘‘partly,’’ or ‘‘not at all’’ by increasing unemployment. This variable was dichotomized (not affected/partly or very much affected). For the percentage of foreigners, I used the percentage of the municipal population that was of foreign origin. To account for the impact of the number of candidates from Muslim countries, I use the number of applications by immigrants from the former Yugoslavia and Turkey and the total. I am conscious of the fact that all candidates who emigrated from the countries of the former Yugoslavia are not Muslims, nor am I sure whether all Muslim applicants are religious. Unfortunately, I do not have data on the religious affiliation of the individual candidates, but Muslims from Kosovo constitute by far the largest immigrant group from the former Yugoslavia. 42. To measure the language region effect I included a dummy variable in my model (Swiss German region  1). The Italian region was not included in this study. 43. Helbling, Practising Citizenship, chapter 5. 44. Helbling, Practising Citizenship, chapter 6. 45. Willem Maas, ‘‘Migrants, States, and EU Citizenship’s Unfulfilled Promise,’’ Citizenship Studies 12 (2008): 583–596. 46. Willem Maas, ‘‘Unrespected, Unequal, Hollow? Contingent Citizenship and Reversible Rights in the European Union,’’ Columbia Journal of European Law 15 (2009): 265. 47. Howard, The Politics of Citizenship in Europe; Janoski, The Ironies of Citizenship. Chapter 9 This work was supported by funding from the CITSEE project (The Europeanisation of Citizenship in the Successor States of the Former Yugoslavia), based at the University of Edinburgh, UK. CITSEE is funded by the European Research Council (ERC) under the European Union’s Seventh Framework Programme, ERC Grant no. 230239, and the support of the ERC is acknowledged with thanks. Some parts of the chapter have appeared elsewhere, as will become clear in later notes. I wish to thank

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Jo Shaw and Igor Stiks for research support, as well as Willem Maas, Phil Triadafilopoulos, and an anonymous reviewer for the University of Pennsylvania Press for useful comments on earlier versions of this chapter. 1. Rainer R. Baubo¨ck, ‘‘Studying Citizenship Constellations,’’ Journal of Ethnic and Migration Studies 36, no. 5 (2010): 847–859. 2. Mustafa Imamovic´, Bosnia and Herzegovina: Evolution of Its Political and Legal Institutions (Sarajevo: Magistrat, 2006); also Fikret Karcˇic´, Bosˇnjaci i izazov modernosti: kasni osmanlijski i habsbursˇki period (Sarajevo: El-Kalem, 2004), and Y. Ko¨ksal, ‘‘Rethinking Nationalism: State Projects and Community Networks in 19th Century Ottoman Empire,’’ American Behavioral Scientist 51, no. 10 (2008): 1498–1515. 3. For a broader analysis, see Eldar Sarajlic´, ‘‘The Bosnian Triangle: Ethnicity, Politics, Citizenship,’’ CITSEE Working Paper No. 2010/06 (Edinburgh: School of Law, University of Edinburgh, 2010), and Eldar Sarajlic´, ‘‘A Citizenship Beyond the Nation-State: Dilemmas of the ‘Europeanization’ of Bosnia and Herzegovina,’’ CITSEE Working Paper No. 2010/09 (Edinburgh: School of Law, University of Edinburgh, 2010). 4. D. Medvedovic´, ‘‘Federal and Republican Citizenship in the Former SFR Yugoslavia at the Time of Dissolution,’’ Croatian Critical Law Review 3, nos. 1–2 (1998): 21–56. 5. Dejan Jovic´, Jugoslavija: drzˇava koja je odumrla: Uspon i pad Kardeljeve Jugoslavije (1974–1990) (Zagreb: Prometej, 2003); also Edvard Kardelj, ‘‘Osnovni uzroci i pravci ustavnih promjena,’’ in Socijalizam i demokracija, ed. Edvard Kardelj (Zagreb: Globus, 1980), 385–403. 6. Robert Hayden, Blueprints for a House Divided: The Constitutional Logic of the Yugoslav Conflicts (Ann Arbor: Michigan University Press, 2000). 7. Omer Ibrahimagic´ and Suad Kurtcˇehajic´, Politicˇki sistem Bosne i Hercegovine (Sarajevo: Magistrat, 2002). 8. Neven Andelic´, Bosna i Hercegovina: izmedju Tita i rata (Beograd: Samizdat B92, 2005). 9. Esad Muminovic´, ‘‘Problems of Citizenship Laws in Bosnia and Herzegovina,’’ Croatian Critical Law Review 3, nos. 1–2 (1998): 71–87; also V. Rakic´, ‘‘State Succession and Citizenship: The Example of FR Yugoslavia,’’ Croatian Critical Law Review 3, nos. 1–2 (1998): 57–67, and Igor Sˇtiks, ‘‘Nationality and Citizenship in the Former Yugoslavia: From Disintegration to European Integration,’’ South East European and Black Sea Studies 6, no. 4 (2006): 483–500. 10. Zakon o drzˇavljanstvu Socijalisticˇke Republike Bosne i Hercegovine, Sluzˇbeni list SRBiH, br. 10/77. 11. For details on Bosnian republican citizenship, see E. Muhibic´, ‘‘Citizenship as Human Right in Bosnia and Herzegovina: Wartime and Current Practice,’’ Croatian Critical Law Review 3, nos. 1–2 (1998): 89–98. 12. Francesco Ragazzi and Igor Sˇtiks, ‘‘Croatian Citizenship: From Ethnic Engineering to Inclusiveness,’’ in Citizenship Policies in the New Europe, ed. Rainer

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Baubo¨ck, B. Perchinig, and W. Sievers (Amsterdam: Amsterdam University Press, 2009). 13. On the new state model, see Rogers Brubaker, ‘‘Citizenship Struggles in Soviet Successor States,’’ International Migration Review 26 (1992): 269–291. 14. Muminovic´, ‘‘Problems of Citizenship Laws,’’ 71–87. 15. Valerie Perry, ‘‘Ethnic Democracy in Bosnia and Herzegovina: Containing the Spectre?’’ in The Fate of Ethnic Democracy in Post-Communist Europe, ed. Sammy Smooha and Priit Jare (Open Society Institute: Budapest, 2005); on the concept, see Sammy Smooha, ‘‘The Model of Ethnic Democracy,’’ ECMI Working Paper No. 13 (Flensburg: European Centre for Minority Issues, 2001), and Sammy Smooha, ‘‘The Model of Ethnic Democracy: Israel as a Jewish and Democratic State,’’ Nations and Nationalism 8, no. 4 (2002): 475–503. 16. Florian Bieber, ‘‘Institutionalization of Ethnicity in the Western Balkans: Managing Change in Deeply Divided Societies,’’ ECMI Working Paper No. 19 (Flensburg: European Centre for Minority Issues, 2004). 17. Dejan Guzina, ‘‘Dilemmas of Nation-Building and Citizenship in Dayton Bosnia,’’ National Identities 9, no. 3 (2007): 217–234. 18. The Dayton Peace Agreement, Annex 4, Constitution of Bosnia and Herzegovina, Article 1, para. 7. See Annex 4: Constitution of Bosnia and Herzegovina (University of Minnesota Human Rights Library, December 1, 1995), http://www1.umn.edu/ humanrts/icty/dayton/daytonannex4.html. 19. Muminovic´, ‘‘Problems of Citizenship Laws,’’ 84. 20. Zakon o drzˇavljanstvu Republike Srpske, cˇlan 2. Sluzˇbeni glasnik Republike Srpske, 35/99; Zakon o drzˇavljanstvu Federacije Bosne i Hercegovine, cˇlan 2. Sluzˇbeni glasnik Federacije BiH, 43/01. 21. Zakon o drzˇavljanstvu Bosne i Hercegovine, cˇlan 27. Sluzˇbeni glasnik BiH, 13/99. 22. Muminovic´, ‘‘Problems of Citizenship Laws,’’ 84. 23. Zakon o drzˇavljanstvu Republike Srpske, cˇlan 2. Sluzˇbeni glasnik Republike Srpske, 35/99. 24. Article 40 of Republika Srpska law. For more details on citizenship provisions, see Bakir Dautbasˇic´, Vodicˇ kroz propise o drzˇavljanstvu Bosne i Hercegovine (Sarajevo: Magistrat, 2003). 25. Shpend Imeri, ed., Rule of Law in the Countries of the Former SFR Yugoslavia and Albania: Between Theory and Practice (Gostivar: Association for Democratic Initiatives, 2006), 63. 26. Article 31 for Republika Srpska and Article 27 for the Federation of BiH. 27. Nenad Rava, ‘‘Serbia: Elusive Citizenship in an Elusive Nation-State,’’ CITSEE Working Paper No. 2010/08 (Edinburgh: University of Edinburgh, 2010). See also Jelena Vasiljevic, ‘‘Citizenship and Belonging in Serbia: In the Crossfire of Changing Nationhood Narratives,’’ CITSEE Working Paper No. 2011/17 (Edinburgh: University of Edinburgh, 2011).

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28. Ragazzi and Sˇtiks, ‘‘Croatian Citizenship,’’ 345. 29. See Eldar Sarajlic´, ‘‘Citizenship and Social Justice in Croatia, Bosnia and Herzegovina and Serbia,’’ CITSEE Working Paper No. 2012/24 (Edinburgh: School of Law, University of Edinburgh, 2012). 30. See more at ‘‘DW: Nema vise bjezanja od pravosudja u Hrvatsku ili BiH,’’ Nacional (February 10, 2010), http://www.nacional.hr/clanak/77430/dw-nema-visebjezanja-od-pravosuda-u-hrvatsku-ili-bih. 31. L. Balasz, ‘‘Bosnia and Herzegovina: Transition, Times Two,’’ L’Europe en formation 349–350 (2008): 105. 32. Florian Bieber, ‘‘Institutionalization of Ethnicity,’’ 2004; Tarik Haveric´, Ethnos i demokratija: slucˇaj Bosne i Hercegovine (Sarajevo: Rabic, 2006); Barry Hitchner, ‘‘The Process and Prospect of the Constitutional Reform Process in Bosnia and Herzegovina,’’ report to the Peace Implementation Council (Paris: Dayton Project, 2005); Edin Sˇarcˇevic´, E. ‘‘Dejtonski ustav: karakteristike i problemi,’’ Status 13 (2008): 153–168. 33. The exclusion of various minorities throughout Bosnia and Herzegovina has been confirmed by many empirical research studies conducted in the country over the past ten years. Among recent ones, the UNDP’s National Human Development Report on Social Inclusion recorded that more than 50 percent of the population in the country faces exclusion on various grounds, from ethnicity to gender identity to age to disability. See more in Maida Fetahagic´, Boris Hrabacˇ, Fahrudin Memic´, Ranka Ninkovic´, Adila Pasˇalic´-Kreso, Lejla Somun-Krupalija, and Miodrag Zˇivanovic´, ‘‘Social Inclusion in Bosnia and Herzegovina,’’ National Human Development Report (Sarajevo: United Nations Development Programme, 2007), http://www.undp.ba/upload/ publications/NHDRengl.pdf. 34. Sˇtiks, Igor, ‘‘Nationality and Citizenship in the Former Yugoslavia: From Disintegration to European Integration,’’ South East European and Black Sea Studies 6, no. 4: 483–500. 35. European Commission for Democracy through Law (Venice Commission), ‘‘Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative,’’ adopted at the 62nd plenary session, Venice, March 11– 12, 2005, p. 25, http://www.venice.coe.int/docs/2005/CDL-AD(2005)004-e.pdf. 36. New York University School of Law and Central European University, ‘‘Constitutional Watch: A Country-by-Country Update on Constitutional Politics in Eastern Europe and the Ex-USSR,’’ East European Constitutional Review 10, no. 1 (2001), http://www1.law.nyu.edu/eecr/vol10num1/constitutionwatch/bosnia.html. 37. A. M. Mansfield, ‘‘Ethnic But Equal: The Quest for a New Democratic Order in Bosnia and Herzegovina,’’ Columbia Law Review 103, no. 8 (2003): 2052–2093. 38. Registrar, European Court of Human Rights, ‘‘Grand Chamber Judgment: Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06),’’ press release, December 22, 2009, http://cmiskp.echr.coe.int/tkp197/view.asp?action html&documentId860265&portalhbkm&sourceexternalbydocnumber& tableF69A27FD8FB86142BF01C1166DEA398649.

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39. Sarajlic´, ‘‘The Bosnian Triangle,’’ 21–23. 40. Mirsad Pandsic, ‘‘Six Years after Deportation of the Algerian Group,’’ Human Rights House Network, January 18, 2008, http://humanrightshouse.org/Articles/ 5113.html. 41. For a discussion of citizenship transformation, see Christian Joppke, ‘‘Citizenship Between De- and Re-Ethnicization,’’ Archives Europe´ennes de Sociologie 44, no. 3 (2003): 429–458; Christian Joppke, ‘‘Transformation of Citizenship: Status, Rights, Identity,’’ Citizenship Studies 11, no. 1 (2007): 37–48. Chapter 10 I would like to thank the Robert Schuman Centre for Advanced Studies at the European University Institute, where, during the 2010–2011 academic year, I held a Jean Monnet Fellowship, which made possible, among other things, the preparation of this chapter. I am grateful to the director of the Global Governance Programme at the EUI, Miguel Maduro, for the invitation to present a version of this chapter at the Conference on Transnational Law at the European University Institute, held in Fiesole March 10–11, 2011. The argument advanced here has been greatly improved thanks to conversations with Rainer Baubo¨ck, Seyla Benhabib, Elizabeth F. Cohen, Jennifer C. Rubenstein, Rogers Smith, and Neil Walker. Last but not least, I am grateful to Willem Maas for inviting my contribution to this volume and for his valuable editorial comments. 1. I use the term supernational to refer to institutions, norms, and processes that exist outside the domestic context of the nation-state. Supernational is meant as a blanket term and should not be confused with supranational, which implies that the entity in question exists in a superordinate hierarchical relationship vis-a`-vis states. Genuinely supranational institutions are few and far between, an advanced example being certain institutional mechanisms of the EU. Supernational is also more general than transnational, which is most frequently used with regard to nongovernmental processes operating through and across nation-state borders. Third, it is distinct from international, which is most apposite in the context of interactions between sovereign states and classic public law structures authorized by them. Last, I reserve the term postnational to denote the limited range of processes or forms of political ordering that have truly transcended or superseded the nation-state in some important respect. 2. This term was developed in the context of the European Union by Michelle Everson, ‘‘The Legacy of the Market Citizen,’’ in New Legal Dynamics of European Union, ed. Jo Shaw and Gillian More (Oxford: Clarendon Press, 1995). Everson attributes it to German jurist H. P. Ipsen, Europa¨isches Gemeinschaftsrecht (Tu¨bingen: Mohr, 1972). For a less critical formulation, see Tony Downes, ‘‘Market Citizenship: Functionalism and Fig-Leaves,’’ in Citizenship and Governance in the European Union, ed. Richard Bellamy and Alex Warleigh (London: Continuum, 2001). Saskia Sassen has used the term economic citizenship in a sense similar to that used in this chapter. She understands it to cover the rights and entitlements that multinational corporations

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draw from global economic institutions. See Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996), chapter 2. Also see Saskia Sassen, Territory, Authority, and Rights: From Medieval to Global Assemblages (Princeton, NJ: Princeton University Press, 2006), especially chapter 6. 3. A selection of contributions to this voluminous literature includes (in chronological order) Yasemin N. Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1994); Rainer Baubo¨ck, Transnational Citizenship: Membership and Rights in International Migration (Aldershot: Edward Elgar, 1994); Seyla Benhabib, The Rights of Others: Aliens, Citizens, and Residents (Cambridge: Cambridge University Press, 2004); Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, NJ: Princeton University Press, 2006); Willem Maas, Creating European Citizens (Lanham, MD: Rowman & Littlefield, 2007); Jo Shaw, The Transformation of Citizenship in the European Union (Cambridge: Cambridge University Press, 2007). For a recent overview of scholarship investigating the overlapping layers of citizenship practice, see Rainer Baubo¨ck and Virginie Guiraudon, ‘‘Introduction: Realignments of Citizenship: Reassessing Rights in the Age of Plural Memberships and Multi-level Governance,’’ Citizenship Studies 13, no. 5 (2009): 439–450. See also the contributions to the present volume. 4. Since the 1990s, multinational corporations have resorted to voluntary codes of corporate conduct and so-called social accounting mechanisms in order to ensure fair working conditions for their employees worldwide. The UN Global Compact sets out a voluntary baseline of good corporate citizenship practices. UN Special Representative John Gerard Ruggie compiled a policy framework relating to human rights and transnational corporations: United Nations Human Rights Office of the High Commissioner, ‘‘Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework’’ (New York: United Nations, 2011), http://www.ohchr.org/Documents/Publications/GuidingPrinciples BusinessHR_EN.pdf. The U.S. Department of Commerce offers its own guidelines for corporate conduct: U.S. Department of Commerce, Business Ethics: A Manual for Managing a Responsible Business Enterprise in Emerging Market Economies (Washington, DC: International Trade Administration, 2004). 5. For a more thoroughgoing comparison of the EU’s ‘‘fundamental freedoms’’ of cross-border trade and ‘‘fundamental rights’’ as they are conventionally understood, see N. Tu¨rku¨ler Isiksel, ‘‘Fundamental Rights in the EU after Kadi and Al Barakaat,’’ European Law Journal 16, no. 5 (2010): 551–577, especially 553–556. 6. For different analyses sharing this basic diagnosis, see Neal C. Tate and Torbjo¨rn Vallinder, eds., Global Expansion of Judicial Power (New York: NYU Press, 1995); Wayne Sandholtz, ‘‘Globalization and the Evolution of Rules,’’ in Globalization and Governance, ed. Aseem Prakash and Jeffrey A. Hart (New York: Routledge, 1999); Neil Fligstein and Alec Stone Sweet, ‘‘Constructing Polities and Markets: An Institutionalist Account of European Integration,’’ American Journal of Sociology 107, no. 5 (2002):

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1206–1243; Robert Howse and Kalypso Nicolaı¨dis, ‘‘Legitimacy through ‘Higher Law’? Why Constitutionalizing the WTO Is a Step Too Far,’’ in The Role of the Judge in International Trade Regulation, ed. Thomas Cottier and Petros C. Mavroidis (Ann Arbor: University of Michigan Press, 2003). 7. Examples include Saskia Sassen, ‘‘The Participation of States and Citizens in Global Governance,’’ Indiana Journal of Global Legal Studies 10, no. 5 (2003): 5–28; Soysal, Limits of Citizenship; Linda Bosniak, ‘‘Citizenship,’’ in The Oxford Handbook of Legal Studies, ed. Peter Cane and Mark V. Tushnet (Oxford: Oxford University Press, 2003); Benhabib, The Rights of Others. 8. European Court of Justice Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1. 9. European Court of Justice Case 6/64, Flaminio Costa v. E.N.E.L. [1964] ECR 585. 10. European Court of Justice Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978], ECR 629; European Court of Justice Case C-213/89, The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] ECR I-2433. 11. For detailed accounts of exactly how this process unfolded, see Eric Stein, ‘‘Lawyers, Judges, and the Making of a Transnational Constitution,’’ American Journal of International Law 75 (1981): 1–27; Joseph H. H. Weiler, ‘‘The Transformation of Europe,’’ Yale Law Journal 100 (1991): 2403–2483; Anne-Marie Burley and Walter Mattli, ‘‘Europe before the Court,’’ International Organization 47, no. 1 (1993): 41–76; Karen Alter, Establishing the Supremacy of European Law (Oxford: Oxford University Press, 2001); Alec Stone Sweet, The Judicial Construction of Europe (Oxford: Oxford University Press, 2004). 12. Everson, ‘‘Legacy of the Market Citizen,’’ 79. 13. Miguel Poiares Maduro, We the Court: The European Court of Justice and the European Economic Constitution (Oxford: Hart Publishing, 1998); Christian Joerges, ‘‘What Is Left of the European Economic Constitution? A Melancholic Eulogy,’’ European Law Review 30 (2005): 461–489. For a controversial, ordo-liberal construal of the ‘‘European economic constitution,’’ see Manfred E. Streit and Werner Mussler, ‘‘The Economic Constitution of the European Community: ‘From Rome to Maastricht,’ ’’ in Constitutional Dimensions of European Economic Integration, ed. Francis Snyder (The Hague: Kluwer Law International, 1996). 14. The precise extent to which ‘‘the legacy of the market citizen,’’ as Michelle Everson calls it, lingers in the way Union citizenship is experienced today but remains subject to elaborate debate. See, in particular, Michelle Everson, ‘‘European Citizenship and the Disillusion of the Common Man,’’ in Conflict of Laws and Laws of Conflict in Europe and Beyond, ed. Rainer Nickel (Antwerp: Intersentia/Metro, 2010); Tamara K. Hervey, ‘‘Migrant Workers and Their Families in the European Union: The Pervasive Market Ideology of Community Law,’’ in New Legal Dynamics of European Union,

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ed. Jo Shaw and Gillian More (Oxford: Clarendon Press, 1995); Willem Maas, ‘‘Unrespected, Unequal, Hollow? Contingent Citizenship and Reversible Rights in the European Union,’’ Columbia Journal of European Law 15, no. 2 (2009): 265–280; Shaw, The Transformation of Citizenship in the European Union. 15. John Ruggie, United Nations Human Rights Council, Eighth Session, Agenda Item 3, A/HRC/8/5, ‘‘Protect, Respect, and Remedy: A Framework for Business and Human Rights,’’ April 7, 2008, p. 5, http://www.unglobalcompact.org/docs/issues_doc /human_rights/Human_Rights_Working_Group/29Apr08_7_Report_of_SRSG_to_ HRC.pdf. 16. Quoted in Michael Fitz-James, ‘‘Corporations Flex Their Treaty Rights,’’ Corporate Legal Times 10, no. 106 (September 2000): BWB 15. 17. NAFTA requires that disputes arising under Chapter 11 be resolved either under the United Nations Commission on International Trade Law (UNCITRAL) rules or by ICSID. 18. In a case study of the Kodak-Fuji dispute at the WTO, Jeffrey Dunoff documents in detail the active role that firms play in every stage of the dispute resolution process, arguing that NGOs are already involved to a significant extent in WTO processes. For the purposes of his article, Dunoff does not distinguish between firms and nongovernmental organizations that pursue policy ends other than the commercial. See Jeffrey L. Dunoff, ‘‘The Misguided Debate over NGO Participation at the WTO,’’ Journal of International Economic Law 1, no. 3 (1998): 433–456. 19. Cited in Aaron Catabagan, ‘‘Rights of Action for Private Non-state Actors in the WTO Dispute Settlement System,’’ Denver Journal of International Law and Policy 37, no. 2 (2009): 279–302, especially 283. 20. Gregory Shaffer, ‘‘What’s New in EU Trade Dispute Settlement? Judicialization, Public-Private Networks and the WTO Legal Order,’’ Journal of European Public Policy 13, no. 6 (2006): 832–850. 21. The EU is unique among contemporary supernational economic institutions in lifting restrictions on the free movement of persons in addition to commodities. For a consideration of some of the issues involved in the free movement of workers as compared with ‘‘other’’ factors of production, see Robert E. Goodin, ‘‘If People Were Money . . .’’ in Free Movement: Ethical Issues in the Transnational Migration of People and of Money, ed. Brian Barry and Robert E. Goodin (University Park, PA: Pennsylvania State University Press, 1992). 22. John P. McCormick, Weber, Habermas, and Transformations of the European State (New York: Cambridge University Press, 2007), 197, emphasis in original. 23. J. H. H. Weiler, The Constitution of Europe (Cambridge: Cambridge University Press, 1999), 337. 24. See, e.g., Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge: Harvard University Press, 2004), especially chapter 1.

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25. Here, I use the term as developed by Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal, ‘‘The Concept of Legalization,’’ International Organization 54, no. 3 (2000): 400–419. 26. Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2002). 27. The reports of WTO panels and of the post-Uruguay WTO Appellate Body are binding on the parties unless the entire composition of the organization votes unanimously to reject them. The ECJ has been commissioned as the authoritative interpreter of European law. Investment treaties and free trade agreements, including NAFTA, often vest arbitral bodies such as ICSID with final authority over disputes between investors and states. For the dynamics of rights litigation and third party dispute resolution, see Alec Stone Sweet, ‘‘Constitutionalism, Legal Pluralism, and International Regimes,’’ Indiana Journal of Global Legal Studies 16 (2009): 621–645. 28. Alec Stone Sweet, Governing with Judges (Oxford University Press, 2000), 195. 29. Tate and Vallinder, Global Expansion; Judith Goldstein, Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter, ‘‘Introduction: Legalization and World Politics,’’ International Organization 54, no. 3 (2000): 385–399; Thomas Cottier and Petros C. Mavroidis, eds., The Role of the Judge in International Trade Regulation: Experience and Lessons for the WTO (Ann Arbor: University of Michigan Press, 2003); Alec Stone Sweet, ‘‘Investor-State Arbitration: Proportionality’s New Frontier,’’ Law and Ethics of Human Rights 4, no. 1 (2010): 47–76, http://papers.ssrn.com/sol3/papers.cfm?abstract _id1569412. 30. Van Gend en Loos v. Nederlandse Administratie der Belastingen, 13. 31. Stone Sweet, Judicial Construction, 69. See also Alter, Establishing the Supremacy of European Law; R. Daniel Kelemen, ‘‘Suing for Europe: Adversarial Legalism and European Governance,’’ Comparative Political Studies 39, no. 1 (2006): 101–127. 32. Alter, Establishing the Supremacy of European Law; Anne-Marie Slaughter, Alec Stone Sweet, and Joseph Weiler, eds., The European Courts and National Courts (Oxford: Hart Publishing, 1998). 33. This logic was developed in the now-legendary Cassis de Dijon decision. European Court of Justice Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung fu¨r Branntwein [1979] ECR 649. 34. Neil Fligstein and Alec Stone Sweet, ‘‘Constructing Polities and Markets: An Institutionalist Account of European Integration,’’ American Journal of Sociology 107, no. 5 (2002): 1206–1243; Maduro, We the Court. 35. Ari Afilalo, ‘‘Constitutionalization through the Back Door: A European Perspective on NAFTA’s Investment Chapter,’’ NYU Journal of International Law and Politics 34 (2001): 1–55, especially 4. 36. Investment treaties often define ‘‘investments’’ broadly to include not only tangible property but also an open-ended list of intangible property, including trademarks, patents, copyrights, contractual rights, licenses, ownership interests, and even potential investments that have not yet been made.

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Notes to Pages 193–196

37. Indirect expropriation clauses require states to compensate firms for measures that have an effect tantamount to nationalization or wealth deprivation. The vagueness of the legal term enables firms to hold states responsible for a range of public policies that diminish the value of their investments and pass on the risks of doing business abroad to host states. A 2004 OECD report notes that ‘‘concepts such as indirect discrimination may be applicable to regulatory measures aimed at protecting the environment, health and other welfare interests of society.’’ See Catherine Yannaca-Small, OECD Directorate for Financial and Enterprise Affairs, Working Papers on International Investment No. 2004/4, ‘‘ ‘Indirect Expropriation’ and the ‘Right to Regulate’ in International Investment Law’’ (2004), 2, http://www.oecd.org/investment/invest mentpolicy/33776546.pdf. Also see Afilalo, ‘‘Constitutionalization through the Back Door.’’ 38. Stone Sweet, ‘‘Investor-State Arbitration’’; Alec Stone Sweet and Jud Mathews, ‘‘Proportionality Balancing and Global Constitutionalism,’’ Columbia Journal of Transnational Law 47, no. 1 (2008): 73–165. 39. Gregory Shaffer, ‘‘Developing Country Use of the WTO Dispute Settlement System: Why It Matters, the Barriers Posed,’’ Legal Studies Research Paper Series No. 08–50 (University of Minnesota Law School, 2009), 171–175, http://papers.ssrn.com/ sol3/papers.cfm?abstract_id1320222. 40. For a positive appraisal of the Uruguay Round innovations and the AB, see Claus-Dieter Ehlermann, ‘‘Experiences from the WTO Appellate Body,’’ Texas International Law Journal 38 (2003): 469–488. 41. Richard Bellamy, ‘‘The ‘Right to Have Rights’: Citizenship Practice and the Political Constitution of the EU,’’ in Citizenship and Governance in the European Union, ed. Richard Bellamy and Alex Warleigh (London: Continuum, 2001), 42. 42. Robert A. Dahl, ‘‘Can International Organizations Be Democratic? A Skeptic’s View,’’ in Democracy’s Edges, ed. Ian Shapiro and Casiano Hacker-Cordo´n (Cambridge: Cambridge University Press, 1999). 43. Robert O. Keohane and Joseph S. Nye, Jr., ‘‘Between Centralization and Fragmentation: The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy’’ (paper presented at the American Political Science Convention, Washington, DC, August 31–September 3, 2000); Ruth W. Grant and Robert O. Keohane, ‘‘Accountability and Abuses of Power in World Politics,’’ American Political Science Review 99, no. 1 (2005): 29–43; David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995). 44. Some argue that it is not. Jose´ E. Alvarez, ‘‘The New Dispute Settlers: (Half) Truths and Consequences,’’ Texas International Law Journal 38 (2003): 405–444. 45. Award, CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No. ARB/01/8 (May 12, 2005), http://icsid.worldbank.org/ICSID/FrontServlet?request TypeCasesRH&actionValshowDoc&docIdDC504_En&caseIdC4. 46. Argentina’s claim that it had been forced to take the measures in question in response to one of the biggest financial crises in modern times was supported by U.S.

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economists who advised the panel. CMS Gas Transmission Co. v. Argentine Republic, para. 320. 47. CMS Gas Transmission Co. v. Argentine Republic, para. 329. 48. One third of all the cases pending before ICSID in 2007 were brought against Argentina. Sarah Anderson and Sara Grusky, ‘‘Challenging Corporate Investor Rule: How the World Bank’s Investment Court, Free Trade Agreements, and Bilateral Investment Treaties Have Unleashed a New Era of Corporate Power and What to Do about It,’’ Food & Water Watch (Washington, DC: Institute for Policy Studies, April 2007), ix, http://www.ips-dc.org/reports/070430-challengingcorporateinvestorrule.pdf. 49. William W. Burke-White, ‘‘The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System,’’ Research Paper No. 08–01 (University of Pennsylvania Institute for Law and Economics, January 24, 2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id1088837. 50. Shaffer, ‘‘Developing Country Use.’’ 51. The CMS Gas Transmission Co. v. Argentine Republic decision was criticized in the international law community on these and other grounds; for instance, in Burke-White, ‘‘The Argentine Financial Crisis.’’ Some of the penalties levied against Argentina by ICSID panels were reexamined by ad hoc annulment committees constituted under ICSID rules. Each of these committees found fault with the application of the U.S.-Argentina BIT, although not all of them opted to annul the arbitral awards. The CMS case’s annulment committee strongly criticized the CMS panel’s application of the law but found that it had no authority to annul the panel’s decision absent a manifest misuse of its powers. The annulment committees commissioned to review the decisions of arbitration panels in the Sempra Energy and Enron disputes (in which U.S. investors had successfully sued Argentina over the same set of economic recovery measures contested in the CMS dispute) did vote to reverse the decisions of both panels in 2010, scaling back the impossibly restrictive standards imposed by the three panels and restoring a greater measure of policy autonomy to states under the necessity defense. See Annulment Proceeding, CMS Gas Transmission Company v. Argentine Republic, ICSID Case No. ARB/01/8, September 25, 2007, http://icsid.worldbank.org/ ICSID/FrontServlet?requestTypeCasesRH&actionValshowDoc& docIdDC687_En&caseIdC4; Annulment Proceeding, International Center for the Settlement of Investment Disputes, Enron Creditors Recovery Corp. Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case No. ARB/01/3,30 July 2010, http://icsid.world bank.org/ICSID/FrontServlet?requestTypeCasesRH&actionValshowDoc& docIdDC1271_En&caseIdC13; Annulment Proceeding, International Center for the Settlement of Investment Disputes, Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16, Annulment Proceeding, 29 June 2010, http:// icsid.worldbank.org/ICSID/FrontServlet?requestTypeCasesRH&actionValshow Doc&docIdDC1550_En&caseIdC8. 52. World Trade Organization, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel, WT/DS58/R, May 15, 1998, http://

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Notes to Pages 196–198

www.worldtradelaw.net/reports/wtopanels/us-shrimp(panel).pdf; World Trade Organization, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, October 12, 1998, http://www.world tradelaw.net/reports/wtoab/us-shrimp(ab).pdf. 53. GATT Panel Report, Thailand—Restrictions on the Importation of and Internal Taxes on Cigarettes, Report of the Panel, DS10/R–37S/200, November 7, 1990, http:// www.wto.org/english/tratop_e/dispu_e/90cigart.pdf. 54. World Trade Organization, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Appellate Body, WT/DS135/AB/R, March 12, 2001, http://www.wto.org/english/tratop_e/dispu_e/135abr_e.pdf. 55. World Trade Organization, EC Measures Containing Meat and Meat Products (Hormones), Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R, January 16, 1998, http://www.wto.org/english/tratop_e/dispu_e/hormab.pdf. 56. A. L. Paulus, ‘‘From Territoriality to Functionality? Towards a Legal Methodology of Globalization,’’ in Governance and International Legal Theory, ed. Ige F. Dekker and Wouter G. Werner (Leiden: Martinus Nijhoff Publishers, 2004), 75. 57. On the ‘‘linkages’’ or ‘‘trade and . . .’’ debate, see David W. Leebron, ‘‘Linkages,’’ American Journal of International Law 96 (2002): 5–21. 58. Goldstein et al., ‘‘Introduction,’’ 387. 59. Ran Hirschl, ‘‘The Political Origins of the New Constitutionalism,’’ Indiana Journal of Global Legal Studies 11, no. 1 (2004): 71–108, especially 94. 60. Richard Falk, On Humane Governance (University Park: Pennsylvania State University Press, 1995). 61. For a comprehensive historical overview of the role of NGOs in international law up to the mid-1990s, see Steve Charnovitz, ‘‘Two Centuries of Participation: NGOs and International Governance,’’ Michigan Journal of International Law 18 (1997): 268–270. Prominent works documenting the influence of transnational civil society in global governance include Peter J. Spiro, ‘‘New Global Communities: Nongovernmental Organizations in International Decision-Making Institutions,’’ Washington Quarterly 18, no. 1 (1995): 45–56; Peter Willetts, ed., ‘‘The Conscience of the World’’: The Influence of Non-Governmental Organizations in the UN System (Washington, DC: Brookings Institution, 1996). Appraisals of the role of NGOs in major global economic institutions include Jan Aart Scholte, ed., Building Global Democracy? Civil Society and Accountable Global Governance (Cambridge: Cambridge University Press, 2011) and Robert O’Brien, Anne Marie Goetz, Jan Aart Scholte, and Marc Williams, Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (Cambridge: Cambridge University Press, 2000). 62. For a maximalist account of transnational NGOs as exercising a surrogate function of ‘‘market engineering’’ in the absence of public institutions of economic regulation on a global scale, see Peter J. Spiro, ‘‘New Global Potentates: Nongovernmental Organizations and the ‘Unregulated’ Marketplace,’’ Cardozo Law Review 18 (1996): 957–969.

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63. Falk, On Humane Governance. 64. The terms NGO and global civil society are contentious. Strictly speaking, firms, too, are nongovernmental organizations and, as such, a part of civil society. Here, I take pains to distinguish between, on the one hand, private economic actors (firms, industry groups, and business associations, even where the latter are not for profit) and on the other, civil society groups that pursue ends other than the strictly commercial. For a treatment of these and other distinctions bedeviling these terms, see Charnovitz, ‘‘Two Centuries of Participation,’’ especially pp. 185–188. For a conceptual account, see John Keane, Global Civil Society (New York: Cambridge University Press, 2003), especially chapter 1. 65. The decision to accept or reject amicus briefs is at the discretion of the individual panels and the Appellate Body. For a legal history of this development, see Peter Van den Bossche, The Law and Policy of the World Trade Organization (New York: Cambridge University Press, 2005), 196–202. 66. Although human rights regimes such as the European Convention on Human Rights constitute an obvious exception, my point is limited to the lack of legal status for nonmarket private actors within international economic regimes. 67. The ICSID tribunal in the Tecmed dispute articulated this argument clearly as a claim from affected interests: ‘‘the foreign investor has a reduced or nil participation in the taking of the decisions that affect it, partly because the investors are not entitle [sic] to exercise political rights reserved to the nationals of the State, such as voting for the authorities that will issue the decisions that affect such investors.’’ Moreover, the tribunal cited case law from the European Court of Human Rights to the same effect: the ECtHR had held that ‘‘non-nationals are more vulnerable to domestic legislation,’’ both because they are not politically enfranchised and because covert protectionist motives may be operating against them that would disadvantage them vis-a`-vis nationals. Tecnicas Medioambientales Tecmed, S.A. v. Mexico, ICSID Case No. ARB (AF)00/2, May 29, 2001, para. 122, http://icsid.worldbank.org/ICSID/FrontServlet ?requestTypeCasesRH&actionValshowDoc&docIdDC602_En&caseIdC186. 68. George W. Ball, ‘‘Citizenship and the Multinational Corporation,’’ Social Research 41, no. 4 (1974): 657–672, especially 668. 69. The Ruggie report points to the impunity with which multinational firms operate in developing countries, either due to a lack of political will or because of the constraints of competition for foreign direct investment. Ruggie, ‘‘Protect, Respect, and Remedy’’; Pauline Herrmann, ‘‘Human Environmental Crisis and the Transnational Corporation: the Question of Culpability,’’ Human Ecology 23, no. 2 (1995): 285–289. 70. Mahmood Monshipouri, Claude E. Welch, Jr., and Evan T. Kennedy, ‘‘Multinational Corporations and the Ethics of Global Responsibility: Problems and Possibilities,’’ Human Rights Quarterly 25 (2003): 965–989; Jackie Smith, Melissa Bolyard, and Anna Ippolito, ‘‘Human Rights and the Global Economy: A Response to Meyer,’’ Human Rights Quarterly 21 (1999): 207–219. Cf. William H. Meyer, ‘‘Human Rights

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Notes to Pages 200–201

and MNCs: Theory versus Quantitative Analysis,’’ Human Rights Quarterly 18, no. 2 (1996): 368–397. 71. Debora L. Spar, ‘‘The Spotlight on the Bottom Line: How Multinationals Export Human Rights,’’ Foreign Affairs 77, no. 2 (1998): 7–11. 72. By contrast, BITs are rarely if ever concluded among developed countries, presumably because they share proximate standards of investor protection. See Ryan Suda, ‘‘The Effect of Bilateral Investment Treaties on Human Rights Enforcement and Realization,’’ in Transnational Corporations and Human Rights, ed. Olivier de Schutter (Oxford: Hart Publishing, 2006); Andrew T. Guzman, ‘‘Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties,’’ Virginia Journal of International Law 38 (1998): 639. 73. Among others, Andrew Linklater, The Transformation of Political Community (University of South Carolina Press, 1998); Nigel Dower, ‘‘The Idea of Global Citizenship: A Sympathetic Assessment,’’ Global Society 4 (2000): 553; Seyla Benhabib, Another Cosmopolitanism (New York: Oxford University Press, 2006); Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2001). For a historiographical critique of the standard postwar narrative of the ‘‘human rights revolution,’’ see Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard/Belknap, 2010). 74. For influential analyses of the invocation of jus cogens norms in the context of the Alien Tort Claims Act, see Anne-Marie Burley, ‘‘The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor,’’ American Journal of International Law 83, no. 3 (1989): 461–493; Ruti Teitel, ‘‘The Alien Tort and the Global Rule of Law,’’ International Social Science Journal 57 (2005): 551–560. For a survey and causal investigation of U.S. courts’ willingness to project their jurisdiction abroad, not least in jus cogens cases, see Tonya L. Putnam, ‘‘Courts without Borders: Domestic Sources of U.S. Extraterritoriality in the Regulatory Sphere,’’ International Organization 63 (2009): 459–490. 75. Maduro, We the Court 9. 76. Karen J. Alter and Sophie Meunier, ‘‘Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute,’’ Journal of European Public Policy 13, no. 3 (2006): 362–382. 77. Sassen, Territory, Authority, and Rights, 247. 78. Burley and Mattli, ‘‘Europe before the Court,’’ 60. 79. In his classic essay, T. H. Marshall emphasized a peculiar dynamism inherent to citizenship rights. According to his historical and sociological account, rights are characterized by a dual tendency toward inclusion and expansion: not only do they come to include ever-greater groups of hitherto disenfranchised or excluded people, they also protect an ever-growing range of interests. T. H. Marshall and Tom Bottomore, Citizenship and Social Class (London: Pluto Press, 1992), 18. 80. Bosniak, The Citizen and the Alien, 35. On the problem of ‘‘concept stretching’’ more generally, see Giovanni Sartori, ‘‘Concept Misformation in Comparative Politics,’’ American Political Science Review 64 (1970): 1033–1053.

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81. Of course, the extension of legal personhood to corporations far predates the Citizens United decision. See Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886). See also Citizens United v. Federal Election Commission, 558 U.S. 50 (2010). 82. Margaret Somers gives a lucid critique of how similar processes (which she terms the ‘‘contractualization of citizenship’’) operate within the domestic context of U.S. politics: Margaret R. Somers, Genealogies of Citizenship: Markets, Statelessness, and the Right to Have Rights (Cambridge: Cambridge University Press, 2008). Chapter 11 This chapter’s arguments largely flow from an ongoing collective discussion involving John Clarke (Open University, UK), Kathleen Coll (Stanford University), and Evelina Dagnino (University of Campinas, Brazil). 1. Engin F. Isin, ‘‘City.State: Critique of Scalar Thought,’’ Citizenship Studies 11, no. 2 (2007): 211–228. Isin locates its emergence in the development of the modern state and its will to ‘‘reduce the chaotic, disorderly, constantly changing social reality beneath it to something more closely resembling the administrative grid of its observations.’’ James Scott, Seeing Like a State (New Haven, CT: Yale University Press, 1998), quoted in Isin, ‘‘City.State.’’ 2. John Clarke, Kathleen Coll, Evelina Dagnino, and Catherine Neveu, Comparing Scales of Citizenship: Between Legal and Social Representations, final report of the IPAS project (Paris: FMSH Paris-Columbia University, 2007). 3. Isin, ‘‘City.State,’’ 218. 4. Etienne Balibar, Nous, citoyens d’Europe? Les frontie`res, l’Etat, le peuple (Paris: La De´couverte, 2001), 251–252, emphasis in the original. 5. See, among others, Pnina Werbner and Nira Yuval-Davis, Women, Citizenship and Difference (London: Zed Books, 1999). 6. Naila Kabeer, ed., Inclusive Citizenship: Meanings and Expressions (London: Zed Books, 2005). 7. Catherine Neveu, Anthropologie de la citoyennete´, document de synthe`se (Habilitation a` Diriger des Recherches [HDR], Universite´ de Provence, 2005). 8. Kabeer, Inclusive Citizenship, 23. 9. See Catherine Neveu, ‘‘Rescuing Citizenship from Its Theories: Anthropological Perspectives’’ (paper presented at the Open University conference ‘‘Opening the Boundaries of Citizenship,’’ Milton Keynes, UK, February 6–7, 2012). 10. Isin, ‘‘City.State,’’ 218. 11. James Ferguson, ‘‘Power Topographies,’’ in A Companion to the Anthropology of Politics, ed. David Nugent and Joan Vincent (London: Routledge, 1994), 383–399. 12. As Ferguson rightfully emphasizes, such uses and success tend to replace the previous enthusiasm of anthropologists for ‘‘the local.’’ Categorizations may change, but not the topography of politics underlying them, even if the values they are associated with can be reversed.

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13. As Massey points out, ‘‘there are, then, many reasons for that territorial, locally centred, Russian doll geography of care and responsibility. Nonetheless, it seems to me, it is crucially reinforced by the persistence of the refrain that posits local place as a seat of genuine meaning and global space as in consequence without meaning, as the abstract outside.’’ Doreen Massey, ‘‘Geographies of Responsibility,’’ Geographiska Annaler 86B, no. 1 (2004): 5–18, 9. 14. See Catherine Neveu, ‘‘European Citizenship, Citizens of Europe and European Citizens,’’ in An Anthropology of the European Union: Building, Imagining and Experiencing the New Europe, ed. Ire`ne Bellier and Thomas Wilson (London: Berg, 2000), 119–136; Neveu, Anthropologie de la citoyennete´; Elizabeth Meehan, ‘‘European Integration and Citizens’ Rights: A Comparative Perspective,’’ Publius 26, no. 4 (1996): 99–121. 15. As well as in many others; see Lister when she remarks, after Conover et al., ‘‘that much theoretical debate in the North about the meaning of citizenship is ‘conducted in what is virtually an empirical void’ ’’ (Ruth Lister, ‘‘Young People Talking about Citizenship in Britain,’’ in Inclusive Citizenship. Meanings and Expressions, ed. Naila Kabeer (London: Zed Books, 2005), 114). 16. For more details, see Catherine Neveu, ‘‘Comment faire l’anthropologie d’un objet ‘trop lourd’?’’ Anthropologie et Socie´te´s 33, no. 2 (2009): 25–42. 17. For a more developed analysis, see Catherine Neveu, ‘‘Habitants, citoyens: Interroger les cate´gories,’’ in La de´mocratie participative: Histoires et ge´ne´alogies, ed. M.-H. Bacque´ and Y. Sintomer (Paris: La De´couverte, 2011), 39–50. 18. For lack of space, I cannot fully develop this argument here; see Neveu, Anthropologie de la citoyennete´, or Philippe Genestier, ‘‘Le sortile`ge du quartier: Quand le lieu est cense´ faire lien,’’ Les Annales de la Recherche Urbaine 82 (1999): 142–153. 19. John Crowley, ‘‘The Spaces and Scales of Citizenship: Some Thoughts on ‘Locality,’ ’’ in De la citoyennete´ locale, ed. R. Leveau, C. Wihtol de Wenden, and K. Mohsen-Finan (Paris: Travaux et Recherches de l’IFRI, 2003), 111–126. 20. Marc Abe´le`s, ‘‘Itine´raires en anthropologie politique,’’ Anthropologie et Socie´te´s 29, no. 1 (2005): 183–204. 21. Kathleen Coll, ‘‘Citizenship Acts and Immigrant Voting Rights Movements in the US,’’ Citizenship Studies 15, no. 8 (2011): 993–1009. 22. Similarly, ‘‘bargaining’’ about concrete resources such as access to meeting or religious buildings necessarily carries a debate about the place to which each group is assigned and about equality within society. 23. Loı¨c Blondiaux, ‘‘Ou` en est la de´mocratie participative locale en France? Le risque du vide,’’ Les Cahiers du DSU 35 (2002): 9–10. 24. It must be stressed, however, that there is no single connection made between any given category, level, or competence; what connections are made depend on the political projects at work and the stakes discussed. Thus, for instance, ‘‘the poor’’ are often summoned to be or to act as (good) ‘‘citizens’’ at the local level; see Numa

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Murard, ed., Pauvres et citoyens? Faites vos preuves! Research report (FAS, Fonds d’Action Sociale; Paris: Association Trass, 1995). See also Neveu, Anthropologie de la citoyennete´. 25. See Neveu, ‘‘Habitants, citoyens.’’ See also, for another analysis of such categorization processes, Denis Merklen, Quartiers populaires, quartiers politiques (Paris: La Dispute, 2009). 26. Dominique Boullier, ‘‘Choses du public et choses du politique: Pour une anthropologie des inouı¨s,’’ in Les intermittences de la de´mocratie: Formes d’action et visibilite´s citoyennes dans la ville, ed. Marion Carrel, Catherine Neveu, and Jacques Ion (Paris: L’Harmattan, 2009), 21–37. 27. Saskia Sassen, ‘‘The Repositioning of Citizenship: Emergent Subjects and Spaces for Politics,’’ Berkeley Journal of Sociology 46 (2002): 78–103. 28. Sassen, ‘‘Repositioning of Citizenship,’’ 80. For a more developed discussion, see John Clarke, Kathleen Coll, Evelina Dagnino, and Catherine Neveu, Disputing Citizenship (London: Policy Press, forthcoming). 29. It is not possible here to mention even a small part of the literature discussing the ‘‘post-’’ or ‘‘trans-’’ national character of certain practices and trends; see, for instance, Thomas Faist, ‘‘Transnationalisation: Its Conceptual and Empirical Relevance,’’ in Migration in a Globalised World: New Research Issues and Prospects, ed. Ce´dric Audebert and Mohamed Kamel Doraı¨ (Amsterdam: Amsterdam University Press, 2010), 79–106. For more original approaches to these processes of ‘‘unbundlings,’’ see Linda Green Basch, Nina Glick Schiller, and Cristina Szanton Blanc, Nations Unbound: Transnational Projects, Postcolonial Predicaments and Deterritorialized Nation-States (London: Routledge, 1994); Kathleen Coll, Remaking Citizenship: Latina Immigrants and New American Politics (Stanford, CA: Stanford University Press, 2010); or Georgie Wemyss, The Invisible Empire: White Discourse, Tolerance and Belonging (London: Ashgate, 2009). 30. Although changes have been noticed recently (see below), these two policy domains are largely dealt with by distinct services or agencies. In addition, development aid tends to be conceived of and used as a tool in the reinforcement of international migration control; see Nathalie Kotlok, ‘‘Le ‘de´veloppement solidaire’: Une politique migratoire au service du de´veloppement des pays africains?’’ Hommes et Migrations, 1286–1287 (2010): 268–278. 31. See below and also Patrick Gonin, ‘‘International Migration and Territorial (Re-)Construction: the Place and Role of Migrants as ‘Frontier Runners’ in Development,’’ in Migration in a Globalised World: New Research Issues and Prospects, ed. Ce´dric Audebert and Mohamed Kamel Doraı¨ (Amsterdam: Amsterdam University Press, 2010), 161–180. 32. Alain Tarrius, La mondialisation par le bas. Les nouveaux nomades des ´economies souterraines (Paris: Balland, 2002). The research program Citoyennete´ active et implications territoriales en Ile de France is financed by the Conseil Re´gional d’Ile de France within its PICRI project.

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Notes to Pages 210–212

33. See Patrick Gonin, Nathalie Kotlok, and Ste´phanie Lima, ‘‘Entre re´seaux et territoires, des mobilisations multiscalaires pour le de´veloppement: Re´seaux migratoires et communes rurales dans la re´gion de Kayes, Mali,’’ Espace, populations, socie´te´s 2 (2011): 265–278; Patrick Gonin, ‘‘Jeux d’acteurs et enjeux territoriaux: quelles migrations pour quel de´veloppement? L’exemple du bassin du fleuve Se´ne´gal (Re´publique du Mali),’’ in E´migre´s, Immigre´s dans le de´veloppement local, ed. Mohamed Charef and Patrick Gonin (Agadir: ORMES/Sud Contact, 2005), 259–278. 34. As long as they do not hold French nationality, in which case they have a right to vote in all elections; they meanwhile succeeded, at least in Mali, in gaining representation in Parliament through seats elected by ‘‘Malians from outside.’’ 35. As well as at the European level, because many migrants lobby EU institutions in support of their projects and actions. 36. Marielle Cartiaux, Repe`res spatiaux au sein d’associations ‘‘issues des migrations’’: E´tude de cas autour du GRDR, report (master’s thesis, University of Poitiers, 2008). 37. Such practices and forms of public engagement could thus be read as prefiguring differently ‘‘global’’ cities, global not because of their capacity to attract and manage global financial flows but by their inhabitants’ practices, circulations, and networks. See Massey, ‘‘Geographies of Responsibility.’’ 38. Cartiaux, Repe`res Spatiaux, 59 (emphasis added).

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Index

Aboriginal: people, 12, 129, 134–37; rights, 138 Aboriginal Affairs and Northern Development Canada, 137 Africa, 129, 180, 205, 209, 211 African Americans, 60–61 Aid to Families with Dependent Children (AFDC), 62 Alabama, 43, 50, 64, 85 Alexandria, 100–101, 103–8 Algeria, 106, 108 Algerian Group, the, 181 Ali, Mehmet (Pasha), 91, 93 American Civil Liberties Union (ACLU), 74 Amsterdam, Treaty of, 19, 35 Anglo-Saxon, 27, 57, 59 Antiterrorism and Effective Death Penalty Act (AEDPA), 62 Arab, 43, 94–95, 97; immigrants, 43 Arabic, 92–93, 95 Argentina, 29, 34, 195–96, 266 n.46, 267 nn. 48, 51 Aristotle, 5 Arizona, 8, 43, 48–51, 55, 57–60, 62–64, 71; Senate Bill 1070, 50–51, 65, 67, 71, 233 n.2 Arizona Taxpayer and Citizenship Protection Act, 51 Arizona v. United States, 51, 64 Armenians (in Egypt), 98–99 Ashcroft, John, 47 assimilation, 11, 58, 129–31, 135, 140, 154–55 attrition through enforcement, 8, 43, 45–51, 63–68 Australia, 122, 129, 131 Austria, 19, 29, 30, 34, 153, 169, 253 n.1; citizenship of, 38 Austria-Hungary, 14, 169

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INDX

Baghdad, 102–3 Barbaris, 98 Bedouins, 98–101 Beijing, 111, 113–14, 118 Benhabib, Seyla, 35, 38–39 bilateral investment treaties (BITs), 189, 195, 200 Binglin, Zhang, 10–11, 110, 112–13, 115–16, 122–23, 249 n.63 Bosnia and Herzegovina, 170–72, 174, 180; Office of High Representative, 173–74 Bosniak, Linda, 25, 109 Bosniak-Croat Federation, 178 Bosnians, 13–14, 168–69, 171–72, 175–77, 179–83 Bracero program, 60–61 Brewer, Jan, 49, 51 Britain, 89–90, 92, 103–4, 114, 116, 121, 127, 154, 155, 248 n.53; citizenship of, 122; Consular Court of Alexandria of, 103, 105; Consulate of, 105–6, 108; consul-general in Alexandria of, 106; consul in Istanbul of, 106; Empire, 92; House of Commons, 114; Parliament of, 104; Settlement in China, 117–19; Supreme Consular Court in Constantinople of, 103 British Columbia Treaty Process, 137–38 Brubaker, Rogers, 37, 71, 90 Bush administration, 47 Cairo, 91, 102–4, 106 Caldero´n, Felipe, 49 California, 8, 47, 58–59, 61, 122, 144, 234 n.4, 237 n.35 caliph, 93 Canada, vii–viii, 7, 12, 29, 61, 74, 127–41, 144–46; Supreme Court of, 138 Canton, 111

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276

Index

Cape Verdeans, 31 Carens, Joseph, 37 Caribbean, 43 Center for Immigration Studies (CIS), 46, 48 Chavez, Leo, 54 Cherokee, 142, 144, 252 n.52 Cherokee Nation v. Georgia, 140 Chicano movement, 61 Chicano studies program, 51 Chickasaw, 142 Child Health Insurance, 75 China, 10–11, 44, 110–14, 116–26; diaspora of, 121–23, 126 Chinese Exclusion Act, 122 citizenship: acquisition of, 32, 40, 225 n.52; cultural, 53, 55, 57; dual, vii, 5, 14, 16, 38, 57, 63, 90, 139, 175–77; economic, 57; flexible, 7, 34, 38–39; foreign, 52; multilevel, vii, 1–2, 4–6, 9–13, 15, 18, 20–21, 70–71, 75, 79–80, 89–90, 109, 128, 130–31, 132–34, 136–37, 139, 140, 144–46, 167–70, 173, 177–79, 182–84, 203; political, 94, 108–9, 222 n.26; nationstate, 18–19, 97, 134, 203 Citizens United decision (U.S. Supreme Court), 201 civil rights movement, 61 Clinton, Bill, 62 Clinton, Hillary, 143 Commerce Clause (United States Constitution), 141–42 Communist Party (Yugoslavia), 170 Constitution Act of 1867 (Canada), 134 Copts, 98 Costa Rica, 30, 34 Council of Europe, 181; Venice Commission, 179 Court of Justice of the European Communities. See European Court of Justice Croats, 171, 173, 176, 179 Cromer, Baring, 96 Cuba, 75, 122, 236 n.22 Dallas, 47 daotai of Shanghai, 113–14, 117–18 Dayton Peace Agreement (DPA), 13, 168, 172–75, 178, 180, 182–83 deferred enforced departure (DED), 74 denizens, enfranchisement of, 26, 27, 29, 30–34, 36–37, 38, 39–41. See also voting rights

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Dı´az, Porfirio, 59 District of Columbia, 77, 83 Dominica, 28, 38 Egypt, 9–10, 89–109, 238 nn.2–3, 5, 244 n.74; British occupation of, 92 Elk v. Wilkins, 141 El Paso, 59 El Salvador, 44, 74 Emmen, 158 enfranchisement. See voting rights England, 104, 118. See also Britain ethnic: diversity, 154, 229 n.48; identities, 54, 159, 229 n.48; solidarity, 51 ethnic group, 51, 142, 159, 168, 171–73, 177, 179 Europe, vii, 5, 9, 18, 20, 27, 36, 123, 152, 167, 177, 217, 232 n.93 European Charter of Fundamental Rights, 208 European Commission, viii, 17, 20 European Convention on Human Rights, 19, 179, 180, 200, 269 n.67 European Council, 17; European Council of Tampere, 35 European Court of Human Rights, 180, 183, 269 n.67 European Court of Justice (ECJ), 4, 14, 19–20, 186, 189, 192–93, 201, 265 n.27 European Parliament, 17, 19–20, 181, 233 n.31 Europeans, 97–98, 136, 219 n.4, 250 n.3 European Union, vii, viii, 1, 3–5, 14, 16–19, 35, 40, 72, 89, 167, 182–83, 186–87, 189–90, 192–94, 200, 206–7, 209, 216 n.4, 219 n.4, 219 n.45, 223 n.31, 261 n.1–2, 262 n.5, 264 n.21, 274 n.35 European Union citizenship, vii, 2, 4, 6, 15–21, 35, 40, 167, 182, 183, 192, 219 n.45 Farmworker Justice, 76 Federation for American Immigration Reform (FAIR), 47 Federation of Bosnia and Herzegovina, 173 Filipino immigrants in the United States, 57 First Nations, 135–37, 139–40, 144, 250 n.2 foreigner, 12, 37–38, 41, 95, 98, 100–101, 117, 119, 129, 149, 150, 153, 155–56, 158–60, 165, 242 n.53, 248 n.55, 255–56 n.26, 257 n.41

INDX

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PAGE 276

Index foreign resident, 37, 40, 43, 76, 117, 151, 161, 163, 165, 207 France, 16, 19, 28, 31, 32–34, 90, 104, 117–18, 125, 127, 150, 154–55, 165, 206, 209–11 General Agreement on Tariffs and Trade (GATT), 186, 193 General Allotment Act of 1887, 141–42 Georgia, 43, 48, 50 Germany, 4, 16, 28–37, 90, 116, 150, 153, 177; citizenship, 35, 153, 155; Constitutional Court, 36 globalization, 3, 5, 34, 184, 198 Greeks, 97–99, 101 Guadalupe Hidalgo, Treaty of, 58 Guangxu emperor, 111, 113 Guangzhuwan, 116 Guantanamo prison, 181 Guatemala, source of undocumented immigrants in the United States, 44 Gu¨lhane rescript, 96 Hamburg, 36 Hanafi: code of Islamic law, 106; school of Islamic law, 1–3. See also Islam; Muslim Hanlin Academy, 118 Haudenosaunee Confederacy, 127. See also Iroquois Hawaii, 122–23 Hawthorn Survey Report, 135 Hazleton, 47 Helsinki Committee for Human Rights in Bosnia and Herzegovina, 181 Herzegovina, 13, 168–83, 260 n.33 Hispanic students, 64 historical institutionalism, theory on citizenship change, 26, 32 Homeland Security, Department of (United States), 73 Honduras, source of undocumented immigrants in the United States, 44 Hong Kong, 111, 116, 121–22 human rights. See rights, human Hungary, 31, 38; Hungarians, 171 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 62, 72 immigrants, undocumented, 45–46, 51–53, 83, 86

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INDX

277

immigration, 6, 8–9, 19, 25, 32, 34, 37, 39, 43–47, 52–53, 55, 59, 66, 68–69, 98, 219 n.4, 225 n.52, 226 n.8, 232 n.88, 234 n.4, 235 n.20; through Australia, 122; in Egypt, 98; and enfranchisement, 29, 31, 40–41, 220 n.13; and federalism, 71–73, 77, 81–85; and globalization, 234 n.6; law, 47–53, 55–57, 62, 64–65, 67, 72–74, 77–79, 81–86, 225 headnote to chapter 3; from Mexico to the United States, 57, 59, 60–61, 63, 67; rights, 71–76, 81–82, 84–85; in Switzerland, 150, 154–56, 158–59, 162, 165; temporary systems of, 74–76, 83–84; undocumented, 46–49, 60, 62, 72, 82–83, 233 n.2; United States, 70–71, 81, 85, 223 n.36, 233 n.2, 236 n.22, 237 n.33, 237 n.35 Immigration Act (United States), 61 Immigration and Customs Enforcement agency (ICE), 46 Immigration and Nationality Act (INA), 46, 50 Immigration and Naturalization Service, 73 Indian Act of 1876 (Canada), 134–36, 139 Indian Affairs and North Development (Canada), 134, 139 Indian Citizenship Act, 142 Indian Territory Naturalization Act, 142 indigeneity, 9, 129 Indigenous: citizenship, 12, 109, 128, 130–33, 135–37, 140, 144–46; peoples, 6, 10–12, 58–59, 127–37, 139–40, 144–45; rights, 12, 127–28, 130–33, 136, 139–40, 144–45 Indigenous nationality, 95, 100, 133, 145 Indonesia, 57 International Center for the Settlement of Investment Disputes (ICSID), 186, 189, 195–96, 264 n.17, 265 n.27, 267 nn. 48, 51, 269 n.67 International Labour Organization Convention Number 169 (ILO 169), 130 International Monetary Fund (IMF), 194 International Settlement, 110, 112, 113, 114, 116, 119, 123, 247 n.38, 249 n.65 Inuit, 137–38, 250 n.2 investment, citizenship by, 38, 224 n.42 Ireland, 19, 28, 30, 33–34, 154 Iroquois, 127, 142–43, 253 n.66 Islam, 90, 93; Islamic courts, 106. See also Hanafi; Muslim;

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278

Index

Istanbul, 89 Italo-Turkish war, 93

Moors, 97 Muhtar, Gazi Ahmed (Pasha), 96 Mujeres Luchadoras Progresistas (MLP), 63 Muslim: countries, 12, 158–60, 162–63, 257 n.41; law, 107; Muslim world, 107. See also Hanafi; Islam

Japan, 28, 111–12, 115–17, 121–24 Jews, 97–99, 171, 179, 192 Joppke, Christian, 32, 38, 41, 71, 156 Kennedy, Anthony, 50 Kobach, Kris, 47–49, 64–65 Kosovo, 176, 257 n.41 Krikorian, Mark, 46–48, 57, 64–65, 226 n.8 Latin America, 31, 43, 129, 205, 250 n.4 Latino immigrants, 43–45, 54 Latinos, 54, 58, 230 n.56 League of Nations, 3, 143 Legal Arizona Workers Act, 51 Legal Services Corporation (LSC), 75, 76 Libya, 93 Los Angeles, 59 Lucerne, 158 Maastricht, Treaty of, 35, 189 Macau, 116 Machiavelli, Niccolo`, 5 Maghrabis, 97–98 Malaysia, 122 Mali, 210–11 Malta, 21, 31, 105–6 Manchuria, 116 Manifest Destiny, 57 Maori, 130 market citizenship, 14, 184–91, 194–95, 198, 200–202 Marshall, John (Chief Justice), 140 Mauritania, 210 Medicaid, 62, 73, 75, 232 n.88 Medicare, 73 Mediterranean, 103 Metcalfe, Daryl, 48 Mexican Americans, 8, 52–53, 55, 57–61, 63 Mexican-American War, 53 Mexican immigration to the United States. See immigration, from Mexico to the United States Mexico, 38, 43–44, 49, 52–55, 57–59, 61, 63, 67, 74 Middle East, 10, 108–9, 180 Moldova, 38 Montenegro, 38, 171, 177, 183

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Nanjing, 114, 118 National Conference of State Legislatures (NCSL), 72, 76–79, 82, 86 Native Americans, 140. See also Indigenous people naturalization, 7, 12–13, 26–27, 31–34, 36, 38, 40–41, 71, 75, 256 n.26; in Bosnia, 169, 180–81; in the Ottoman empire, 94, 104; in Switzerland, 149–60, 162, 164–67 Nevada, 58, 83 New Mexico, 58–59 New Zealand, 28, 33, 39, 127, 130–31, 250 n.3 NGOs, 198–99, 264 n.18, 268 n.61–62 Nile, 91, 98 Nisga’a, 137–39 North America, 177 North American Free Trade Agreement (NAFTA), 61, 74, 186, 190 Nunavut, 137–39; Land Claims Settlement Agreement of, 137–38; Legislative Assembly of, 138 Oklahoma, 48, 58, 142, 237 n.35 Opium War, First, 116–17 Opium War, Second, 116 Oregon, 61 Organization for Economic Co-operation and Development (OECD), 26 Ottoman Empire, 9–10, 89–109, 169, 241 n.38 Pennsylvania, 48 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), 62, 72–73, 75, 232 n.88 Peru, 122 Philippines, 57–58 Pineros y Compesinos Unidos del Noroeste (PCUN), 63 Puerto Rico, 83–84 Qichao, Liang, 111–12, 123 Qing Dynasty, 11, 110, 112, 116, 118, 122, 124

INDX

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PAGE 278

Index refugees, 73, 75, 78, 82–84, 175–76 residence, permanent, 7, 35, 40, 74, 138, 172, 223 n.36 rights: civil, 18, 45, 61, 66, 72, 74–75, 80, 192, 215 n.2, 230 n.56; group, 5–6, 168; human, 12–13, 19, 37–38, 45, 49, 56, 128, 130–33, 136, 144, 168–69, 178–81, 183–85, 196, 199–200, 262 n.4, 269 n.66; individual, 38, 107, 168, 178; participation, 35–37, 39, 222 n.28; social, 71. See also voting rights Roma, 10, 171, 179–80 Romania, 38 Romney, Mitt, 45, 48 Rong, Zou, 10, 11, 110, 112–13, 115–16, 121–24, 246 n.12, 248 n.47, 249 n.63 Rousseau, Jean-Jacques, 5, 115 Royal Commission on Aboriginal Issues (Canada), 12, 136–37 Russia, 113, 116–17 Saami, 127, 131 Salt Water Thesis, 130 San Antonio, 59 San Augustı´n Transborder Public Works Committee, 63 San Francisco, 122–23, 223 n.36 Sarajevo, 181 Scandinavia, 127 Senegal, 210–11 Serbia, 14, 171, 173, 176–77, 182–83 Serbs, 14, 171, 176, 179 Shandong (China), 116 Shanghai, 10–11, 110, 112, 117–19, 122–23; Mixed Court of, 10, 119–20, 248 n.55 Sino-Japanese War, 116 Slovenia, 28, 31, 34, 172 Social Security (United States), 62, 78, 152 South Carolina, 48 Spanish-American War, 58, 60 Srpska, Republic of, 173–76, 178–79 Su Bao (newspaper), 10, 110, 112–16, 119, 123–25, 249 n.63 Sudanese, 98–99, 101 Sulaiman, Shaikh Ahmad (Pasha), 106 Sun Yat Sen, 11, 111, 116, 121, 123 Supplemental Security Income (SSI), 75, 232 n.88 Sweden, 28, 34, 176 Swiss Democrats, 158

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INDX

279

Swiss People’s Party (SVP), 150, 156–57, 160, 164 Switzerland, 12–13, 29, 34, 40, 48, 149–53, 155–56, 158–59, 164–65, 167, 253 n.1; Federal Court of, 164 Syrians, 74, 97–98 Temporary Assistance for Needy Families (TANF), 62, 73, 75, 232 n.88 temporary protected status (TPS), 74–75, 86 temporary workers, 74, 82–84, 236 n.27 Tennessee, 84 Texas, 47, 58–59 Tohono O’odham nation, 127 Tunisians, 96, 108 Turks, 92, 97–98 United Kingdom, 16, 19, 28, 31, 33, 104, 143. See also Britain, England United Nations, 21, 109, 130, 143, 262 n.4; Charter of, 3, 11; Declaration on the Rights of Indigenous Peoples (UNDRIP), 130 United States, 7–9, 29, 33–34, 37, 85, 90, 92, 117–18, 121–23, 125, 150, 181, 223 n.36, 234 n.7, 236 n.22, 236 nn. 27, 32, 237 n. 33, 240 n.24, 250 nn.2–3, 7; Bureau of Indian Affairs, 143; Congress, 46, 50, 58, 61–62, 65, 71, 73, 81, 140–42, 225 headnote to Chapter 3, 232 n.88, 234 n.3, 236 n.32; and immigration, 43–45, 48, 50, 52–55, 57–60, 63–65, 67; and indigenous rights, 127–29, 131, 133, 140–46; and multilevel citizenship, 70, 72–74, 76–77, 80–81, 84; Supreme Court of, 140 Uruguay, 28, 30–31, 193, 265 n.27 U.S.-Canada Free Trade Agreement, 61 U.S. Immigration and Customs Enforcement (ICE), 73 U.S. Trade Act of 1974, 190 U.S. v. Kagama, 141 Utah, 52, 58, 83, 237 n.35 Vancouver, 122–23 Venice Commission (Council of Europe), 179 Vietnam, 75, 116, 236 n.22 Virginia, 8, 83 voting rights, 5, 7–8, 26–28, 29–33, 35–39, 41, 52, 58, 222 n.26, 223 n.36, 234 n.7

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280

Index

Voting Rights Act (United States), 61 Waitangi, Treaty of, 130 Weber, Max, 4, 16 Westphalia, Treaty of, 4 World Bank, 187, 267 n.48 World Trade Organization (WTO), 109, 186, 190, 193; Appellate Body (AB) of, 193, 196, 265 n.27, 269 n.65

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World War I, 89, 142, 240 n.19 World War II, 169–70, 200 Wyoming, 58 Youwei, Kang, 111–13, 115, 123; Bo Kang Youwei Shu (China), 112, 115 Yugoslavia, 162, 164, 169–71, 173, 175, 177, 257 n.41

INDX

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PAGE 280