Jo Shaw, University of Edinburgh and University of Tampere
What are the constitutional ideals and identities, which are associated with citizenship? How does constitutional law contribute to the regulation of the acquisition and loss of citizenship? What are the relationships between the overlapping categories of citizenship rights, constitutional rights and human rights?
These are the primary lines of enquiry and some of the research questions that lie at the heart of The People in Question: Citizens and Constitutions in Uncertain Times (PiQ). The basic intuition is this: in modern polities, constitutions and citizenship are closely related. Part II of PiQ exposes that point in detail. Some further questions, which are explored in Part III, concern a few of the main pressure points generated within constitutional citizenship, from the trend towards a politics of populism within many countries and from the impact of globalisation upon citizenship within the state. However, more significantly, there is an inescapable normative question to which these enquiries lead us: if it is correct to say that we can rely upon an idea of ‘constitutional citizenship’ in order to do some of the ‘membership work’ within our modern polities, what then are the criteria according to which constitutional citizenship may be judged? Is it just a description of certain facets of citizenship, or of the process whereby concepts of membership emerge within constitutionalised polities, or does it provide a solid grounding for distinguishing, on a principled basis, between insiders and outsiders? This point may be more implicit than explicit in much of the book, but it remains an important concern underpinning the entire project.
As I explain in Part I of PiQ, which analyses the main concepts in play, I approach the task of excavating the concept of ‘constitutional citizenship’ first and foremost by applying interpretative and observational lenses, looking closely at the spaces where constitutional law and citizenship align and intersect. As I discovered when I examined in detail the different ways in which we can try to understand citizenship in constitutional terms, this constitutional content often emerges indirectly. Most constitutions have remarkably little to say about citizenship, or what they do have to say may be misleading. Of course, it may be a good thing when a constitution does not intervene decisively in the sphere of citizenship, given that what that constitution has to say about citizenship may be the embodiment of an ideal of the people and of society that has been transformed out of all recognition by social and economic changes over decades or centuries.
Despite the neglect of citizenship in many formal ‘written’ constitutions, however, my research found that there was no such neglect of citizenship in constitutional law more generally. But we must piece together the constitutional significance of citizenship by parsing the actions of institutions such as courts, legislatures and even the executive. This raises substantive questions about what constitute the most significant constitutional interventions in the sphere of citizenship. It also raises important institutional questions: which element of state power should take precedence, the judiciary or the parliamentarians? Or should ‘the people’ themselves be offered a way to determine who will be ‘the people’ in the future? In sum, I found the idea of ‘constitutional citizenship’ to be rather hard to pin down in both individual cases and as a general phenomenon. Yet given the centrality of constitutional law in any given polity, analysing how citizenship is regulated within that sphere is an important task that we should not neglect, both in terms of what this tells us about the nature of citizenship, from an interpretative and observational point of view, but also for normative reasons which I touch upon below.
The messiness of constitutional citizenship is amply in view across the three chapters of Part II of the book that address its main characteristics in relation to the three questions with which I began this introduction: about ideals and identities, about acquisition and loss of citizenship and about the rights of citizenship. Helpfully, this three-way division of citizenship’s characteristics in relation to constitutions and constitutional law also maps neatly onto some of the classic triptychs often used to encompass the domain of citizenship, such as ‘status, rights and identity’ (Joppke) or ‘rights, access and belonging’ (Wiener), suggesting the durability of these ways of thinking about citizenship.
In Chapter 3, I look to see what we can discern from constitutional law elements which can help us to map the character of citizenship – the question of ‘ideals and identity’ – in a polity. Since constitutions do often articulate the distinctive ideals and identity of a polity, we might expect to be able to ‘read off’ from these constitutional elements at least some intuitions about the nature of citizenship. And indeed, that is often true. Giving examples from across the globe, I attempt to prise open the idea of constitutional citizenship by using associated concepts within constitutional and political theory, such as the people, the ‘demos’, constituent power, popular sovereignty, allegiance and loyalty to the state, constitutional identity, equality and dignity. This is an ambitious menu, and the result may be seen as a pot pourri of diverse stories, in which constitutions offer multiple and often contradictory and contested engagements with concepts (and stories) of citizenship and peoplehood. This diversity is an important element of constitutional citizenship, suggesting that it is a concept that does not provide one-size-fits-all answers to questions about, for example, constitutional identity, but should instead be seen as part of the process of reading citizenship in a constitutional way.
I turn in Chapter 4 to the tools and techniques of inclusion and exclusion which are the rules which govern the acquisition and loss of citizenship (and thus the scope of membership), as well as to related concepts such as statelessness and the ‘denizenship’ enjoyed by lawful permanent residents who lack formal citizenship or ‘nationality’ of the host. It is very rare that the rules of acquisition and loss of citizenship are regulated in detail in constitutions (Latin America is a significant exception here), but basic principles which govern acquisition and loss, such as equality principles, are often to be found in constitutions and are commonly referred to by courts. Furthermore, it is common in the sphere of acquisition and loss of citizenship to come across hard cases such as external kin-based citizenship for descendants or citizenship granted in return for a financial investment. These may be hard to square with the constitutional ideals of the polity granting citizenship and they raise hard-to-resolve questions about the inconsistent ethical basis of many national citizenship laws.
Finally, in Chapter 5 I explore some dimensions of the contents of membership. Again, it is hard to find a simple story to relate. For example, it is difficult to pin down a single suite of ‘rights’ or ‘duties’ to which citizens are uniformly entitled or subjected. Many rights and duties, including those articulated in constitutions or human rights instruments given constitutional weight, are not limited in scope to citizens. There is thus once again little to be found under this heading which can help us to demarcate citizenship’s claim to be a special status, to which those who are resident within a given legal jurisdiction ought to aspire, if they have not received it by operation of law at birth.
The picture of constitutional citizenship is therefore complex. States treat citizenship as simultaneously constitutionally significant and ethically fungible. Citizenship can therefore be a paradoxical element within constitutional settlements, sometimes operating as an empty box or cypher that has to be given content by some other legal or political means. But studying how constitutions and citizenship intersect is none the less an important step we can and should take, in order better to understand both the nature of citizenship within a polity as well as the complex patterns of membership across multiple polities.
But the complexity of constitutional citizenship also reminds us that we cannot completely avoid the vital normative questions which lie at the heart of any conception of citizenship understood as demarcated membership. It is relatively easy to sketch the consequences which flow from constitutional citizenship, but it is harder to state with conceptual clarity a firm basis for the criteria which set the limits of constitutional citizenship. Citizenship may ‘only’ be an artefact of government and not in itself an immanent moral commitment, but none the less it lays claim, if not to our moral sensibilities, at least to our political commitment. It does so in the sense that citizenship promises a framing on the basis of which we can postulate that political decision-making in any given polity should be seen as legitimate, because it is in some senses the expression of the ‘will of the people’. This becomes difficult at the (moving) point where democracy shades into autocracy. The linkage between the idea of a democratic people under a constitutionalised polity and a formal bounding of the polity through a membership status may work well in some circumstances, but constitutional citizenship also needs to be a concept that can operate effectively – at least in descriptive terms – where the democratic legitimacy of a polity is limited. Under conditions of autocracy or authoritarianism, where constitutions may play the function of suppressing rather than embracing pluralism, the democratic dynamic of citizenship will be significantly changed or completely absent. States often laud the constitutional significance of citizenship, while at the same time undermining some of its constitutional core, such as the principles of equality and dignity. Are we set, therefore, to be perpetually disappointed by constitutional citizenship as the basis for a “normatively elevated” (Green 2020) membership status, or to put it in Waldron’s terms, as “a status in each polity that is special, equal and pervasive” (Waldron 2013, 334)? Perhaps, this is the case. Yet it is a crucial part of my argument that we should try at least to prolong the moment before disappointment becomes entrenched, and we can help in this endeavour by thinking of constitutional citizenship less as finality, and more as an ongoing, and contested, process.
While PiQ does not explicitly set out to develop a universally applicable theory of membership, many such normative questions inevitably emerge throughout the book and most clearly in Part III. When we interpret the world, we inevitably contribute to the normative reconstruction of some of the concepts that we describe. Chapters 6 and 7 explore some of the ways in which citizenship, in the modern world, is being placed under pressure both within and beyond the state, and they acknowledge quite explicitly that when we interpret the world we cannot avoid bringing to the fore at least some of our ethical and normative choices about what ought to be invested in the citizenship concept, especially when it is viewed in constitutional terms. As I state at p. 175 of PiQ: “citizenship may be flawed, but equally it may still – in its constitutional guise – be one of the best instruments that we have for ensuring equality”. That is, for providing the principled basis for drawing the boundaries of the polity. It is, however, definitely under pressure.
Chapter 6 highlights some important examples of a shift towards more exclusionary understandings of citizenship in action, by addressing the so-called populist turn in government and politics. There has been a substantial challenge to liberal constitutional ideas of citizenship in recent years from populism as a style of government and from insurgent populist movements. Populists often manipulate citizenship status and rights in order to support their political objectives through the re-construction of the (national) people. They close down the discursive space around citizenship, by forcing changes in constitutional texts and ideas, as well as in citizenship practices. They exploit the tensions inherent within the citizenship principle between democracy, equality, and the idea of a bounded community. Examples of this process can be found in countries as diverse as Canada, the US, the UK, Hungary and India.
In Chapter 7, I stress the importance of taking a transnational perspective on the constitutional dimensions of citizenship, by looking beyond national boundaries. I speculate that one of the greatest tests for the constitutional model of citizenship comes from globalisation. Many of the things which we understand to be part of the bundle of citizenship rights and duties, for example, come from legal sources ‘beyond the state’, such as EU law and international law. At the same time, constitutionalism has also become disconnected from the state alone. At the subnational as well as at the supranational and international levels, it is possible to discern a multitude of (not always consistent) ongoing constitutionalisation processes, within the context of which the question of ‘who belongs’ remains central and frequently contested.
It is because of these tensions that I turn briefly in the conclusions to speculate how it may be possible to reconcile the competing elements of the citizenship ideal, stuck between the universalistic ideals of equality and dignity and the particularistic demands of ‘national’ peoples. In my judgment, the pluralism of constitutionalism and citizenship beyond the state may offer the best hope for finding ways to rebalance the trend whereby citizenship, when stuck within the confines of a single state, so often seems to drift towards thicker and more communitarian understandings (Cohen 1999, 256).
Answering these questions in detail, however, would require further work, for which different intellectual tools to the ones deployed in PiQ would be needed. The more modest and attainable goals of PiQ stop short of this endeavour. They were to map the interactions of citizenship and constitutional law in terms of substance and process to a greater extent than has generally been visible in legal scholarship and to provide some insights into the pressure points relating to issues of constitutional citizenship, which may threaten liberal democratic and liberal constitutional principles. But I hope that the beginnings of a further level of analysis that I have sketched in PiQ will open up a new pathway for legal studies of citizenship which go further in blending empirical and normative analysis than has been visible in most of the works which have hitherto dominated the discipline.