COMMENT
Should citizenship be constitutionalised?
Rainer Bauböck, European University Institute and Austrian Academy of Sciences
Jo Shaw’s book looks at the relation between constitutionalism and citizenship through the lens of ‘constitutional ethnographies’, a term and approach that she borrows from Kim Lane Scheppele. This means that she examines the broad array of issues that link constitutions with citizenship laws and rights mainly through analytical reflections on case studies. In this perspective, which deviates from a purely doctrinal interpretation of law, constitutional text is “just words” and “context is indeed everything” (p. 33). The book approaches its topic therefore through a very comprehensive survey of the relevant literature and a large number of vignettes on episodes from around the world that illustrate the meanings and dynamic changes of citizenship when seen through the lens of constitutionalism.
This book is an impressive achievement and it has a powerful effect on the reader, making her or him aware of complexities and variations that tend to get lost not only in doctrinally oriented comparative constitutionalism, but also in social science approaches that aim at generalisation and the testing of explanatory hypotheses.
Yet I want to suggest that at the core of Shaw’s book there is a puzzle that still calls for more general answers than she is willing to provide. This puzzle has an empirical and a normative version: Why is citizenship law so rarely or weakly constitutionalised? Should citizenship law be more strongly constitutionalised and if so, how?
The empirical question is acknowledged by Shaw as “the puzzle that there is relatively little direct constitutional regulation of citizenship” (p. 44). Quantitatively minded social scientists could design indicators measuring the degree of constitutionalisation of citizenship law and test then independent variables to explain variation across countries and time. Yet this would not provide an answer to the question, which involves a counterfactual. Since “the people” is one of the three basic elements constituting a modern state, why is it not the case that citizenship is constitutionalised to the same extent as the boundaries of territorial jurisdictions and the setup of government institutions are? Shaw’s book provides the evidence for the diagnosis of highly uneven and generally low degrees of direct and indirect constitutional regulation of citizenship[1] across the vastly different contexts she examines. But she only occasionally suggests more general explanations, such as that naturalisation may be more appropriately regulated by statute than constitutional law since there are so many different conditions that states attach to voluntary acquisitions of their citizenship (p. 119-20).
I don’t have a good answer to the why question either, so I will address in my contribution the normative one instead. Asking an entirely new question that is clearly beyond the scope of the book is of course not what reviewers are meant to do. But it is not a cop-out because the question does arise from Shaw’s factual account and any answer to it must pass the test of context sensitivity that pervades her analysis. In other words, I could hardly have asked the question without having read the book. I am also curious to get her response and find out what she thinks about taking her book as a starting point for a normative inquiry.
Before diving into this terrain, let me very roughly summarise the evidence provided by Shaw in chapter 4. Ius soli seems to be most frequently constitutionally entrenched, but this is mainly true for its unconditional form, which prevails in the Western hemisphere only. Ius sanguinis is much less often a constitutional principle, although it has occasionally been read into a constitutional conception of the nation as an ethnic people – as in the controversial judgment of the Greek Council of State that struck down a conditional ius soli reform in 2010 (see pp. 111-112). With regard to naturalisation, “[w]hile the possibility is referred to in many […] constitutions [of the Council of Europe member states], the process is rarely dealt with in any depth” (p. 119) and “no constitution comes close to postulating a ‘right’ to naturalization” (p. 120). Unsurprisingly, dual citizenship comes up in constitutions most often where it is prohibited or constrained (including exclusions of dual citizens from public offices) and never where it is tolerated (pp. 123-131). With regard to loss of citizenship, there are “few states that adopt the position of the ‘constitutional sovereignty’ of the citizen, which has hitherto held sway in the US” (p. 133) and which disempowers the executive to strip US citizens of their status – unless they have acquired it through fraud. International legal norms, such as those against statelessness or gender discrimination have had some impact on citizenship legislation and are occasionally reflected in constitutional provisions, but apart from these, “it is not clear that questions of citizenship have attained a high salience in the context of either international development work or international human rights promotion” (p. 148). So the glaring citizenship gap in domestic constitutions is neither compensated for by existing international legal norms, nor can it realistically be filled by strengthening the latter.
What is the point of constitutionalising citizenship?
Broadly speaking, constitutionalising legal norms can serve at least three different functions: signalling, entrenching, and guiding. Article 1 of my country’s federal constitution reads: “Austria is a democratic republic. Its law emanates from the people.” This is a signalling statement declaring a constitutional identity and a principle of democratic legitimacy. On Shaw’s count, the word ‘citizenship’ comes up in 151 constitutions, but the term is mostly left undefined and without substance (p. 38). It could still be significant that democratic constitutions identify their addressees as citizens, since this signals that they are not only subjects of the law and bearers of individual rights but also addressed collectively as those who authorise political power through democratic procedures and participation.
Entrenching is probably the most familiar function of constitutional norms. Most constitutions are harder to change than ordinary legislation, so including rules about citizenship shields these to greater extent against frequent amendments. The entrenchment of unconditionalius soli through the 14th amendment of the US Constitution is a well-known example (p. 105-6). Such protection is of course not absolute, as the 2004 modification of Ireland’s ius soli through constitutional referendum illustrates (p. 106). Constitutionalising citizenship would thus reduce incentives for legislators and political parties to put forward frequent partisan reform proposals. This can block reactionary as well as progressive changes. The effect would be to depoliticise citizenship rules to a certain extent by turning them into a taken-for-granted background feature of the democratic constitution.
Constitutions also have a guiding function when they spell out principles that are meant to inform ordinary legislation and that can be invoked by constitutional courts when evaluating such legislation. Instead of determining precisely who is and who is not a citizen, constitutions can spell out principles of inclusion and exclusion that ought to guide ordinary legislation. Such principles need not always be enshrined in constitutional documents. Courts can read principles into the constitution, as the German Constitutional Court is doing frequently, or glean them from precedent even in the absence of a written constitution, as in the UK common law system.
Constitutionalising citizenship could thus serve all three functions. From a normative perspective, the goal would obviously not be to entrench existing citizenship rules, no matter how arbitrary and illegitimate they might be, but to newly introduce constitutional rules and principles that would enhance democratic inclusion. The present silence of many constitutions on citizenship could even present opportunities to do so without having to overturn established constitutional doctrines and jurisprudence.
The point of constitutionalising citizenship would not just be to complete a lopsided architecture of democratic constitutions that specifies the division of powers and the territorial features of jurisdiction while leaving the composition of ‘the people’ to ordinary legislation and thus exposed to partisan politics. The so-called ‘democratic boundary problem’ is not only a philosophical paradox but has real-world ramifications that can damage democracy gravely. Immigration states in the global North host large populations whose access to citizenship often depends on harsh conditions for naturalisation and where the immigrants’ offspring grow up as foreign citizens in their native country. At the same time, sending states all over the world have greatly expanded the inclusion of emigrant origin diasporas into their citizenship via toleration of multiple citizenship, unlimited transmission of citizenship iure sanguinis and voting rights in national elections. Finally, in countries of the global South, large populations remain without access to their country’s citizenship or even stateless due to a lack of effective administration (for example with regard to birth registration) or arbitrary exercise of power by the executive. All these phenomena can undermine democratic legitimacy and upset the common assumption of congruence between states’ territories and their citizens. They require that the constitutional conception of ‘the people’ be made explicit.
A proposal for constitutionalising genuine links
But what should be the substance of constitutionalised citizenship? Let me propose here that democratic states should constitutionalise a ‘genuine link principle’ that has so far only been fleshed out in international law by the 1955 Nottebohm judgment of the International Court of Justice and that is still hotly contested among international lawyers (Sloane 2009; Spiro 2011; Thwaites 2019). As a constitutional formula it could be spelled out like this: “Country X is a democracy. It includes as its citizens those with a genuine link to X through residence, territorial birth or parentage.”
The idea is similar to Ayelet Shachar’s ius nexi (Shachar 2009, discussed by Shaw on p. 101), except that it would not focus only on residence as a condition for genuine link. By referring also to birth and parentage, the formula would salvage ius soli and ius sanguinis as legitimate interpretations of genuine links to states, whose membership is automatically determined at birth for good reasons (Bauböck 2018, 64-75).
The negative function of such a constitutional formula is to exclude other criteria, such as financial investments, special achievements, cultural similarity or ethnic ancestry unless the individuals proposed for citizenship inclusion on such grounds qualify also because of their links to the country.
A broad principle invoking different indicators for genuine links would still allow for settling disputes, e.g. over the relation between ius sanguinis and ius soli in the legislature rather than leaving this entirely to constitutional courts.[2] Legislators retain thus a rather wide scope of action when deciding on rules for acquisition of citizenship through ius soli, ius sanguinis and naturalisation. Constitutional courts would be called upon to interpret these principles. Over-inclusive and under-inclusive laws will remain contested. But overt political manipulation could be better blocked.
Constitutional traditions vary widely across democratic states. Some could actually amend their constitutions to include such a ‘citizenship clause’. Where constitutions are very difficult to amend or consist in an assemblage of historical documents and rules citizenship would have to be constitutionalised through a mixture of parliamentary and court decisions. What matters is not the constitutional form, but the substance of a membership recognition rule guiding decisions on citizenship status.
The principle could also be interpreted as protecting those who have genuine links from the revocation of their citizenship. But it need not be the only constitutional provision regulating citizenship status. A more far-reaching protection could be constitutionally entrenched on grounds that in democratic states political authorities are authorised by citizens and thus must not have the power to deprive those citizens of their membership. Without being included in the constitution, such a principle has emerged from the case law of the U.S. Supreme Court since the 1960s (Weil 2013). The mere absence of a provision on revocation in the citizenship law is not a sufficient guarantee against arbitrary deprivation, which requires the signalling, entrenching and guiding provided by constitutional principles. The Polish constitution is exemplary in this respect by stating: “A Polish citizen shall not lose Polish citizenship except by renunciation thereof” (Article 34 (2)). Finally, constitutionalising a principle requires also well-functioning institutions that do not treat constitutions as ‘mere words’. This is illustrated by article 20 of the South African Constitution that “no citizen may be deprived of citizenship” (p. 86), which seems to be ignored by ordinary legislation (Hobden 2018, 10-11).
Equally desirable would be a constitutional principle of non-discrimination not only on grounds of gender, race, religion, etc., which is backed by international legal norms, but also between citizens by birth and by naturalisation.[3] This would be especially needed in Latin American democracies (p. 122).
Migration and globalisation have shattered the self-evidence of citizenship allocation, constitutionalising principles for citizenship inclusion and boundary drawing could restore it to some degree and citizenship determination could again become a taken for granted background feature even in a mobile and interconnected world, with attention focusing on political competition over representing citizens’ interests, ideas and identities rather than on changing the composition of the demos.
Limits and objections
Let me conclude by acknowledging that my proposal is both limited in scope and controversial. It is limited because it applies only to democratic states. While in international law the genuine link doctrine serves to avoid conflicts between states over the recognition of nationality, from a domestic perspective it serves to identify those with a legitimate stake in democratic self-government (Bauböck 2018, 37-47). States that lack a minimum level of democratic legitimacy should be pressed to avoid statelessness and abolish discriminatory features of their citizenship policies; pushing the Gulf States to turn all their residents into citizens amounts to calling for a democratic revolution.
The proposal is also controversial. To lawyers it may seem utopian or plainly useless to ask democracies to adopt common constitutional principles on matters that have not been settled in international law and that are strongly shaped by different constitutional traditions. Most normative theorists of democracy are also likely to disagree with me. In a recent book on the boundaries of the demos problem, Svenja Ahlhaus has usefully classified views of this problem into sovereignist, liberal, agonistic and deliberative perspectives (Ahlhaus 2020). Sovereignts will object that the capacity to determine who are the citizens is the essence of democratic self-determination and must not be constitutionally constrained to the extent I have proposed. Agonists will oppose to depoliticising the membership question and will want to keep it open so that outsiders can permanently contest existing boundaries. Deliberative theorists prefer to construct an alternative demos that decides on the question of who should be included, as Ahlhaus does with her own proposal of ‘boundary assemblies’ composed of current members and non-members that should have legislative power on citizenship matters. My proposal belongs in this classification to a liberal perspective that embraces the role of constitutions in constraining democracies with regard to deciding on their own boundaries in order to set them free to shape their own future as distinct and stable political communities.
Jo Shaw’s book does not aim to answer “The People Question” but it provides those who want to answer it with a map of the rocky terrain that they have to know well before they can start on this difficult journey.
[1] This refers to citizenship as a legal status of membership. In contrast with citizenship status, citizenship rights are frequently spelled out in constitutions.
[2] See Shaw’s discussion of the 2010 Greek Council of State decision at p. 111-112.
[3] Art. 5 (2) of the European Convention on Nationality includes a deliberately weak statement of this principle: “Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.”