Local Fragmentation as Immigration Regulation
Immigration scholars have traditionally focused on the role of national borders and the significance of nation-state citizenship. At the same time, local government scholars have called attention to the significance of local boundaries, the consequence of municipal residency, and the influence of the two on the fragmentation of American society. This paper explores the interplay between these two mechanisms of spatial and community controls. Emphasizing their doctrinal and historic commonalities, this article suggests that the legal structure responsible for local fragmentation can be understood as second-order immigration regulation. It is a mechanism that allows for finer regulatory control than the crude boundary and membership regulations at the national level. It also serves as a means by which, in the absence of a national consensus, the competing interests surrounding immigration can still be negotiated and reconciled on the ground. Not only does this framework provide a conceptual bridge that unifies boundary and membership controls that, until now, have been perceived as disparate and unconnected areas of law, but it also raises important questions about policies at the heart of today’s immigration debates.
Three Models of Citizenship
This conference paper, focusing on the citizenship debate in the U.S., elaborates three distinctive models of citizenship, which I call nationalistic, human rights, and Marshallian (after sociologist T. H. Marshall's seminal essay). I analyze each model along three normative dimensions: justification, territoriality, and entitlements. The nationalistic model is justified by a theory of mutual democratic consent and emphasizes bounded territoriality as the main basis for membership. A liberal, highly individualistic polity like the U.S. takes a decidedly ambivalent view of entitlements. On the one hand, they are part of the quid pro quo, the social contract on which consensual membership rests, at least in contemporary society. Moreover, most Americans manifestly believe that even in a liberal polity - or perhaps especially in such a polity - certain minimum entitlements are in fact necessary to secure a dignified, participatory, independent life for their fellow citizens and for at least some of the non-citizens who reside and work among them. On the other hand, Americans also manifestly believe that additional entitlements, either in kind or amount, threaten these very same values, especially independence, and would at the margin reduce the motivation to work and to take responsibility for oneself and one's family. Although all developed societies exhibit this ambivalence, different ones strike the balance among the benefits, costs, and risks of entitlements quite differently, with the U.S. being an outlier in limiting publicly-funded welfare supports. The human rights model is justified by the imperative of securing individual and group rights that will assure humane and protective conditions for those who are unfortunate enough to reside in cruel or despotic states, and for those who are outside their country of nationality and at risk of unequal and inhumane treatment in their new locations. The human rights model's domain is emphatically transnational, not territorially bounded. On this account, one's birth in a particular state and to particular parents is adventitious; such a locational accident is arbitrary and should not determine one's access to rights that, as a matter of distributive justice, should be enjoyed universally, not only by national members. On entitlements, this model is keen to preserve, not diminish, the full panoply of civil and political rights that are already guaranteed (constitutionally or by statute) to nationals in the U.S., European states, and other liberal democracies. These rights constitute the baseline for entitlements; the model's goal is to extend them to all people who are located within the state and thus subject to its governmental authority The Marshallian model focuses not on the rights of non-citizens but rather on what he viewed as the incomplete set of rights accorded to those who are already full citizens. Its justification lies in its aspiration for social equality for all citizens, including their equal access to those resources that are essential for full and equal participation in community life. It has little to say about territoriality, perhaps because he assumes the autonomy of the nation-state, specifically his own, the United Kingdom. Unlike the other models, Marshall's fails to discuss the phenomenon so central today of large-scale immigration and the consequent claims against the state by non-citizens. On entitlements, the model focuses on full participation in the society, polity, and economy. Its proponents view the U.S. as a "welfare laggard" in this respect, a premise that I question by calling attention to six complicating factors: size, immigration, demography, privatization, globalization, and intra-EU dynamics. For each model, the paper poses what strikes me as the most urgent, and usually neglected, question to be raised about it, and I offer a very tentative and all-too-brief and simple, if not simplistic, answer to each question. For the nationalistic model, the question is about its continuing relevance in a rapidly globalizing world. For the human rights model, the question is whether it contains any real limits, internal to itself, on the obligations that it would impose on states in their dealings with people who are often (not always) perfect strangers in all but a universalistic, humanistic sense. The question for the Marshallian model is why it has gained much less public support in the United States than in most of the European states. The conclusion briefly speculates about the future of the Marshallian model in both the U.S. and Europe. It predicts that a distinctively liberal, individualistic, privatistic form of nationalist citizenship will continue to flourish, one that will bewilder Europeans even as they edge their way inexorably toward their own more communitarian version of it.
Race, the Immigration Laws, and Domestic Race Relations: A 'Magic Mirror' into the Heart of Darkness
This article analyzes the history surrounding racial exclusions in the immigration laws and contends that the exclusionary laws reveal majority sentiment about racial minorities in the United States. Subordination of Asian immigrants and exclusion of Asian immigrants evolved into more subtle forms of exclusion with the transformation of racial sensibilities. Besides analyzing the treatment of minorities under the immigration laws, this Article posits that the harsh treatment of immigrants of color suggests how this nation might treat citizens of color if afforded the opportunity. As psychological theory suggests, the virulent attacks on noncitizens in effect represent transference and displacement of animosity for racial minorities generally. Psychological theory also helps explain some historical oddities about U.S. society's seemingly contradictory treatment of different minority groups, particularly African Americans, and groups historically classified as "foreign," such as Asian Americans and Latinos. For example, the Equal Protection landmark of Brown v.Board of Education vindicated the rights of African Americans; but it was decided the very same year (1954) that the U.S. government commenced Operation "Wetback," a massive deportation campaign that resulted in tens of thousands of persons of Mexican ancestry, including some citizens, to Mexico. When the law constrained attacks on domestic minorities, animosity was displaced to foreign minorities in our midst and at our borders. In the end, we peer into a heart of darkness where the deepest fears of racial minorities -- that a majority of society desires and has consistently strived for Anglo-Saxon homogeneity and hegemony -- are demonstrated to be more than justified.