COMMENT
Chulwoo Lee, Yonsei University
How to set manageable boundaries for studying citizenship must be an enduring question for most people in the field. As a scholar working mainly on laws governing citizenship qua state membership, I often wonder what I can say about citizenship meaning civic virtue, the practice of participation, or struggle for recognition. I get frustrated when I find myself in the middle of a discussion on cosmopolitan citizenship, the citizenship of noncitizens, the performative side of citizenship, and all sorts of citizenship charged with lofty ideals and aspirations. Admittedly, “citizenship does not have a settled meaning” and is “a result of dialogical processes that have no fixed endpoint” (p. 16). Be that as it may, I cannot wander in an ever-expanding universe with numerous galaxies governed by disparate semantic practices. It is in this context I found The People in Question very attractive. Its central concept, ‘constitutional citizenship’, sounded like a conceptual coupling between multiple institutional dimensions of citizenship but with a clear referent and seemed able to provide a useful map that would guide me to a discursive territory with controlled borders.
After a thorough reading, my copy of the book was replete with underlines, highlights and pencil notes. Written by a Co-Director of GLOBALCIT, the book presents a vast array of information of citizenship practices at political, legislative and judicial arenas garnered from all across the globe. Enlightening information and observations were, however, not the only reason why I tried so hard not to miss any word or phrase. The author is so cautious in making definite arguments and generalizations that very often the reader has to interpret her position by scrutinizing nuanced statements spread across multiple paragraphs and sections. It is to the author’s credit that many of the vexing questions remain open as they should be. Yet, for that reason, one can scarcely avoid the impression that the book also remains a grand research proposal with a comprehensive literature review. Hence, my comments are interrogative, modestly asking for elaborations, rather than critical.
My first and foremost question is the very question that runs through the book: what are the parameters of ‘constitutional citizenship’? The term might sound like something that has a clear ground in the constitution and is, therefore, more stable than statutory citizenship, as in the case of US citizenship under the 14th Amendment of the US Constitution in contrast to the US citizenship of Puerto Ricans (Smith 2017). In a similar vein, one may attend to citizenship provisions in written constitutions, as Shaw does in the first part of Chapter 2. Yet what the author intends to signify by ‘constitutional citizenship’ is far broader. She begins by bringing to light a number of different ways in which citizenship-related matters are inscribed in constitutional texts. She asks why there is on the whole “little direct constitutional regulation of citizenship” (while such countries as Nigeria or Malaysia have a lengthy and detailed set of rules in the constitution). No straightforward answer is given. Instead, the author refers to “a broad corpus of constitutional law” into which citizenship discourse flows. The ‘constitutional’ is not limited to the presence of citizenship in constitutional texts. Its absence or “apparent neglect” (p. 8) is also a feature of constitutional citizenship. Citizenship relations are governed by various sources of norms which form that broad corpus of constitutional law in purpose and function (p. 24), including statutory rules and sometimes ‘organic laws’ with stricter amendment conditions, the jurisprudence of courts and constitutional courts in particular, and either federal laws or local legislation in federal states. Understandably, she explains that “the dividing line between ‘constitutional’ and ‘non-constitutional’ public law is … hard to pin down” and that “the book will err on the side of inclusiveness in its approach to that dividing line” (p. 24).
Shaw unfolds her discussion of citizenship at different levels of governance, from subnational political spaces and national constitutional orders, conditioned by transnational interconnectedness, to the levels of international law and supranational institutions such as the European Union (Chapter 7). Although she judges EU law as having limited constitutional effects and is cautious about acknowledging the existence of an international law of citizenship as well as the idea of global constitutionalism, she recognizes the discursive potential of citizenship and constitutionalism beyond the state. Up to that stage, Shaw speaks about the regulation of citizenship in the domain of conventional public law. Yet, when she spells out, at the end of the book, her anticipation of a reworking of the concept of constitutional citizenship from a pluralist perspective that would tap the “unfulfilled potential of a world of freely associating communities” (p. 258), I cannot help but wonder whether she is contemplating taking the concept into a very different theoretical terrain. Indeed, earlier in the book, Shaw cites Chris Thornhill and Gunther Teubner as promoters of a “sociological constitutionalism” that strives to overcome the state-centred vision in the study of constitutionalism (p. 29). But Thornhill and Teubner go much further than simply being sociological and critical of state-centred approaches. Their ‘societal constitutionalism’ widens Luhmann’s explanation of the constitution in terms of structural coupling between politics and law towards a concept of constitution that accounts for coupling between the reflexive mechanisms of the law and those of other autonomous systems of communication – economic, environmental, religious, health, and so forth – amid an ever-increasing functional differentiation of society, which is world society (Teubner 2012; Thornhill 2018). Societal constitutionalism has many strengths in explicating some of the most challenging issues arising from the discussion of constitutional peoplehood and citizenship, such as the paradoxical nature of constitutional founding and making ‘we the people’ (see Hahm and Kim 2015) and the growing role of the unelected branch of government, the judiciary. But I am curious whether Shaw is willing to embrace this theory in furthering her idea of constitutional citizenship.
My second question relates to the author’s appraisal of Christian Joppke, whom she singles out alongside Peter Spiro (2018) as a key contestant to her idea of constitutional citizenship with his instrumental turn (p. 58). It is true that Joppke (2019) shows a heavy inclination towards emphasizing the instrumental character of citizenship practice on the part of both individuals and states. Yet most of his literature until recently was in search of who is what rather than who gets what from an institutional perspective and underscored the resilience of the nation-state as the locus of citizenship (see Joppke 1999). To me, his valorization of the anti-discrimination principle as a key mechanism of liberal integration (Joppke 2010: chap. 3) sounds consonant with Shaw’s emphasis on equality as a kind of pivot expanding and adjusting the scope of constitutional citizenship. Does Joppke deserve the label of challenging “the very basis of the argument about constitutional citizenship”? This question should be posed to Christian Joppke as well.
Third, the book provides a compelling criticism of simplistic binaries such as civic v. ethnic, which early Brubaker (1992) paired with ius soli v. ius sanguinis. It calls for a context-sensitive approach in understanding citizenship regimes (p. 53). Often, the context is far simpler than, say, political or economic one. Legal transplants account for much of a country’s citizenship law, as pointed out by Patrick Weil (2011). While legal transplants should be analyzed with their political and other social contexts in mind, the power of scholarly stimulus and citizenship indicators, such as CITLAW, MIPEX and CPI, should not be slighted. Now that comparative constitutional lawyers are increasingly interested in the transplantation of constitutional rules and doctrines (Halmai 2019), I wonder whether the study of legal and constitutional transplants can be incorporated into the theorization of constitutional citizenship.
One of the freshest contributions of The People in Question is its analysis of the populist challenge to constitutional citizenship (Chapter 6). Here the author introduces a few sets of indices of populism and delineates cases of populism, from which those indices were drawn. This makes the discussion circular, and it may be a reason why left populism is marginalized in the chapter. The Syriza government’s attempt to introduce ius soli in Greece (p. 191) is a fascinating story which deserves elaboration with reference to its political and ideological backgrounds. Isn’t Spain’s Podemos worthy of discussion? How about Sinn Féin in Ireland, which is known for its opposition to the 2004 constitutional amendment to narrow the scope of ius soli, although one might question whether the party is populist in the first place?
Returning to the conceptual issue, I find constitutional citizenship capable of sensitizing research to political dynamics surrounding national citizenship as well as the play of legal rules and practices at the subnational, national and international levels. Yet constitutional citizenship, as is specified in The People in Question, has unclear parameters, which is perhaps due to the insufficient globalization of the political system and the vagaries of the relationship between politics and law, a structural coupling between which the constitution constitutes.