COMMENT
Sandra Seubert, Goethe-Universität
‘Constitutional Citizenship’ between is and ought
Jo Shaw’s book The People in Question brings into focus the concept of ‘constitutional citizenship’ in order to explore the linkage of citizenship, constitutional law and constitutions. This involves empirical questions as well as conceptual ones, and it is this combination which makes the book an important contribution to an interdisciplinary discourse between constitutional scholars and political theorists, as well as between comparative and normative approaches.
Shaw gives a very substantial amount of empirical information about different citizenship regimes – using material from the GLOBALCIT observatory which she is co-directing. At the same time, she is addressing conceptual questions which are taken up in different sections of the study and at different stages of reflection. Combining empirical and normative insights is a challenge that goes back to Aristotles’ Politeia and reappears in modern Political and Legal Theory under methodologically tightened conditions. On the one hand it involves the question: “what constitutions do I find around me?” – which is a descriptive task, on the other hand it aims at exploring “what is the good, the best constitution we could think of?” which is an evaluative, normative task. Shaw’s book addresses these two issues by 1.) giving empirical information about various citizenship regimes in Europe and also around the world and 2.) reconstructing ‘constitutional fundamentals’, normative universals – equality in the first place – ideas which are the basis of modern constitutions but are nevertheless contextual: They have evolved historically, with progress and regress next to each other.
Navigating between the two perspectives brings to light a certain tension, reappearing with astonishing continuity over time: Under ‘non-ideal’ conditions, when states are confronted with questions of inclusion and exclusion they tend to prefer a pragmatic, instrumental over a principled approach: when more citizens are needed, polities, regardless of what character and size, tend to adapt their policies of inclusion accordingly (for a discussion of current politics of inclusion and their arbitrary effects see Shachar 2020). Leaving the methodological aspect as an introductory remark, I will continue by addressing the discussion of ‘constitutional fundamentals’, raising some questions about the transformative dynamics which we are currently facing and which the book takes up in the last part.
The normative fundamentals of modernity: equality as ‘Leitmotiv’
Shaw considers dignity and respect as moral conceptions, human universals, that have nevertheless been subject to historical change: the idea of equality as a driver evolved and specified over time, with the result of including more categories of persons – overcoming exclusion on the basis of class, race, gender – a process far from being accomplished. As political equality these moral conceptions have entered modern constitutions and, following the narrative of successful democratic revolutions, became the basis for claims to shared rule and constituent power.
Shaw draws attention to a paradoxical dialectic of modern constitutionalism: mediating the universal claim to equal respect – what we owe each other as human beings or citizens of the world (“Weltbürger”) – with the special treatment derived from interacting as political equals within bounded political communities – what we owe each other as citizens of a state, as republican citizens. The paradox describes a tension between the universal and the particular which has driven and continues to drive the dynamics of modern citizenship: A universalist tendency inherent in the claim to an equal entitlement to freedom which runs against the particularistic constraints of its own realization, i.e. membership in a bounded political community. The normativity of modernity requires protection of the rights of non-citizens – just on the basis of their being human – but it also requires the materialization of fundamental rights on the basis of reciprocity (Balibar 2014).
In principle the universal commitment is supposed to be already protected: modern constitutions include a list of fundamental rights, which makes human rights protection a political project (Benhabib 2016). But as Hannah Arendt famously argued, de facto the best safeguard for the ‘right to have rights’ is turning human rights into citizenship rights. The insufficient protection of human rights raises the question of inclusion with a new priority: who should be included on what terms? And how to become a citizen? By taking up these questions the book is entering a contested terrain which is no longer just about mapping how different regimes are solving the question of inclusion and exclusion. It reaches out to give an answer about what would be a normatively justifiable solution. This obviously links to the book title The People in Question: What can a theory of ‘constitutional citizenship’ contribute to normative questions of political inclusion?
Constitutional citizenship and political inclusion
The ‘people’ has become a central concept in political discourse again, but it is increasingly brought forward in a way that is deeply conflicting with aspirations of emancipatory politics: there are exclusivist definitions of ‘the people’ with phantasms of homogeneity on the rise that openly attack the pluralist constitution of modern democracy. Chapters 4-6 present contested answers: from a nativist perspective, brought forward by right wing populists, the question of inclusion is always already answered: it is the native citizens with close ethnic and cultural ties who form a ‘people’ and can claim equality. From a globalist perspective this question should always be posed anew: a people shall be conceived of as continuously constructed and reconstructed. This need not amount to a ‘no border’-position but should rather be understood as an argument for fluid boundaries.
However, there are also movements on the rise that recuperate a revolutionary meaning of ‘the people’ and reclaim popular sovereignty after decades of elitist government (Mouffe 2018). Two questions arise in this context: Shaw presents citizenship as a ‘normatively dependent concept’ (Forst), i.e. dependent on more general moral and political principles which need to be spelled out. Does this presuppose that citizenship (and constitutions?) are both dependent on a common normativity of modernity (as described above: a morality of equal freedom and respect)? Or are they supposed to be normatively dependent concepts in the sense that might move them beyond a common ground? The latter implies that there is a plurality of possible contexts which shape citizenship-regimes but with no possibility of ranking them, no hierarchy between them. Due to a huge diversity over time, different forms of ‘constitutional citizenship’ might develop, dependent on the respective context. Recently, the concept of ‘constitutional identity’ has gained increased popularity as a juridical and discursive means, e.g. for claiming a right to deviate from the common ground of European law. Developed as a doctrine to shield areas of the national legal systems from the influence of European law it has the potential to weaken if not undermine the process of European integration, as critics warn (Fabbrini & Sajó 2019, 457-473). How would the concept of ‘constitutional citizenship’ help to solve conflicts in this respect? What would the two alternatives imply for the legitimacy of different politics of inclusion?
From a normative point of view, putting ‘the people in question’ should lead to re-constructions of ‘constitutional identity’ and more fluid boundaries. This brings up the second question: the emergence of ‘constitutional citizenship’ beyond the state. Jo Shaw presents this as a ‘scenario’ which might have an ‘irresolvable democracy problem’. Under conditions of ‘shifting spatialities’ it is no longer possible to view citizenship in a singular optic. A pluralist perspective of many citizenships is needed, as Shaw argues in the conclusion. Again, taking the EU as an example, the answer seems to be dependent on the possibility of shifting not only the concept of constitution but also the concept of ‘constituent power’ to the transnational realm. Only then can constitutional citizenship also be characterized as democratic citizenship. It is obvious that this relates to the complex question of the kind of democracy the EU or similar regional entities are able to realize. Putting the people in question certainly includes finding cultural and institutional ways of discursively mediating plurality. But it also means finding common ground and dealing with power asymmetries among and beyond different levels. For this it is important to envisage citizens themselves as ‘agents of construction’ of new political communities, creating new constitutive stories and developing new political subjectivities (Butler 2015).