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Friday, May 9, 2014

Immigration Debates and a Working Theory of Citizenship

I am not an immigration lawyer, not a specialist or a real activist; my life is largely insulated from the burdens of migration and a life without status, except that I enjoy the comfort and sustenance provided by hard-working immigrants. 

I am an American lawyer with an intense interest in the present crisis and the fleeting moments of possibility before us.  My family and I marched alongside our neighbors of faith in Montgomery against Alabama’s awful HB56.   My friends at Alabama Appleseed joined with others in the litigation that ultimately dismantled the law.  

This spring at the 2014 Christian Scholars Conference at Lipscomb University, I will participate in two panels that will engage potential paths for reform.  People of good will may disagree about the options before us, but no one is satisfied with the injustice of the status quo.   In this project, I have considered more closely my own ideas about citizenship, what it means, who deserves it, from which it springs.  

Often in the immigration debates, we seem to assume that citizenship is a prize for the worthy, primarily intended for its benefits, to bestow rights, entitlements, profit and power.  In such a framework, to share citizenship with immigrants means to divide a zero-sum pie, to give them what belongs to us.   If citizenship is a golden ticket to a private club, then whoever does not have it is the less-than Other.   This is short-sighted and destructive.  

Here is an excerpt from my responsive essay prepared for the Christian Scholars Conference, with light edits, on a theory of citizenship and its implications for justice.  These certainly are not original ideas, and I welcome responses, ideas and reflections to make them better.   

            Citizenship is not a prize or gift bestowed on the most worthy.  Citizenship is not merely a means to access the rights and entitlements of the nation.  Almost all of us are accidental (or providential) Americans, and we enjoy the privileges and immunities of citizenship by virtue of our laws and constitution.   Citizenship is something greater than membership in an exclusive club.1    We are a republic, so the benefit of citizenship is also the burden of self-government, participation in our civil society and submission to the Rule of Law because we have the rights make our own.2

            Citizenship in this republic imposes duties and obligations, and it calls us to engagement as our own sovereigns.   Citizenship is not an invitation to the Star Chamber or the Privy Council.  Citizenship is the calling to self-governing, civic responsibility, the high callings of voting, serving on juries, running for office, paying taxes to ensure the elements of peaceful, safe civilization.   Citizenship is making laws by which we all must abide.  

            Just as the owner of property has more incentive to maintain, improve and invest in the property than does a tenant, so does the citizen have a greater incentive and role in the well being of the nation than does the resident alien.   Citizenship indeed is a privilege, but it is also imposes a greater burden.  Citizenship is and ought to be more than a utilitarian means to profit and personal prosperity.   

            Thus, drawing the migrant laborer, the immigrant, toward citizenship is an incentive toward legal compliance, toward greater civic responsibility and investment, toward the virtues of self-government.   For the worker who has stolen across our borders to labor, to learn, to build, we should welcome her to citizenship so that she can be formed with us, her neighbors, by the calling and burden of self-government and social engagement.  To leave her ever on the margins, to leave her ever as a tenant, we leave her without the incentive to invest and to seek the good of the republic.3  She would be essentially stateless forever and subject to the endemic stress of temporary status and instability, all of which reduces her capacity to thrive in and for the nation.

            As a matter of legal policy, to promote the Rule of Law and the virtues of self-governance in the Republic, we should move immigrant without status toward citizenship for their good and for ours.4   The nation grows stronger as more of those within its borders feel the obligations and calling of citizenship.  

        The immigrant who labors, lives and learns in our land will invest more, will flourish more surely, will contribute more to society when they are citizens than if they exist ever on the margins of civil society and public life.   Many immigrants have worked far harder and have risked far more to enjoy the fruits of American society than most of us who were born to it. 

            Therefore, a policy that creates a status between undocumented and citizen may be better than the status quo, but it is not the best policy.    [Some call] for incremental moves toward citizenship that create incentives for the immigrants and safeguards for society.  This is good, because citizenship for the dispossessed is better for the immigrant and for the nation.    Building a massive class of permanent half-citizens will perpetuate injustice and will not create incentives to improve, grow, participate and serve the nation.   A path to citizenship is the more just policy, and it is the best economic, political and social policy, too.   This is not merely justice for the immigrant but justice for the nation, a reconciliation that promotes our common flourishing as a self-governing people.   

___________________________________________

1 Citizenship is many things:

Citizenship as a value and a construct has been conceptualized variously as the status and role that define the authority and the obligations of individual members of a community (Cooper 1984); peers who share equally in the distribution of authority (Flathman 1981; Walzer 1970), political status, and role guaranteed in terms of qualifications, rights, and obligations by constitutions and statutes (Lowi 1981); man in society (Mosher 1941); a result of the interaction between the legal and ethical dimensions of the Constitution (Long 1981); an expression of one’s membership in a political community (Kymlicka and Norman 1994); civil “temper” coupled with attitudes and values concerning the nature of political  authority (Sniderman 1981); an institutional status from within which a person can address governments and other citizens and make claims about human rights (Van Gunsteren 1988); an embodiment of virtue and moral character (Hart 1984); and an enhanced and ennobled public motivated by a shared concern for the common good (Frederickson 1991).

Kalu N. Kalu, Of Citizenship, Virtue and Administrative Imperative: Deconstructing Aristotelian Civic Republicanism, 63 Public Administration Review 418 (2003).

2 Alexander Hamilton rested his argument against George III on this principle in his pamphlet, A Full Measure of Vindication of the Measure of Congress (1774):

The only distinction between freedom and slavery consists in this:  In the former state a man is governed by the laws to which he has given his consent, either in person or by his representative, in the latter, he is governed by the will of another.  In the one case, his life and property are his own; in the other, they depend upon the pleasure of his master.  It is easy to discern which of these two states is preferable.  No man in his senses can hesitate to be free, rather than a slave.

If we build a policy that exploits the labor, talent and willingness of the immigrant, without giving her a share of self-governance, we risk imposing the same grievances that gave rise to our own revolution. 

3 Our systems of government determine the shape and virtue of citizenship:

Following Aristotle, Rousseau, and John Stuart Mill, many modern philosophers assume that political participation itself will teach people responsibility and toleration. They place their fate in the activity of participation as the means whereby individuals become accustomed to the duties of citizenship. They believe that as political participation enlarges the minds of individuals, familiarizes them with interests that lie beyond the immediacy of personal circumstances and environment, they will acknowledge that public concerns are the proper ones to pay attention to (Oldfield 1990). However, in light of the political realities of the modern state, political participation can hardly be taken for granted as a universally binding or desirable axiom. Political participation can be a result of the scope or nature of political or civil liberties granted to the citizens by the state. When these liberties are circumscribed— say, in an oligarchy, dictatorship, or other forms of authoritarian systems, or where severe discriminatory practices have become institutionalized—the vigorous exercise of political participation as a  condition of authentic citizenship becomes inconsequential.

Kalu at 421.

4 As a nation, we are deeply invested in the virtue of all of our neighbors among us:

[T]he health and stability of a modern democracy depends, not only on the justice of its 'basic structure' but also on the qualities and attitudes of its citizens: for example, their sense of identity and how they view potentially competing forms of national, regional, ethnic, or religious identities; their ability to tolerate and work together with others who are different from them- selves; their desire to participate in the political process in order to promote the public good and hold political authorities accountable; their willingness to show self-restraint and exercise personal responsibility in their economic demands and in personal choices-which affect their health and the environment. Without citizens who possess these qualities, democracies become difficult to govern, even unstable. As Habermas notes, "the institutions of constitutional freedom are only worth as much as a population makes of them" (Habermas 1992, p. 7).

Will Kymlicka and Wayne Norman, Return of the Citizen: A Survey of Recent Work on Citizenship Theory, 2 Ethics 352,  352-353 (1994).

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