The (Dwindling) Rights and Obligations of Citizenship
Spiro, Peter J., The William and Mary Bill of Rights Journal
Citizenship is central to modern narratives of individual well-being. As Chief Justice Earl Warren declared, "[citizenship is man's basic right for it is nothing less than the right to have rights."1 The popular conception holds that significant rights and obligations attach peculiarly to the citizenry. In his 20 1 2 convention acceptance speech, Barack Obama framed citizenship as "a word at the very heart of our founding," as part of a recognition "that we have responsibilities as well as rights."2 At a more prosaic level, the website of U.S. Citizenship and Immigration Services asserts that "[citizenship offers many benefits and equally important responsibilities."3
This Essay interrogates the conventional wisdom that citizenship is central to situating the legal place of individuals in society. It concludes that citizenship status has material consequence. However, citizenship is not incommensurable. Citizenship has value, but that value is bounded.
What the state extracts from you and what it owes you is contingent on citizenship status in some contexts. Within the national territory, civil rights are extended without regard to citizenship or immigration status. Permanent resident aliens are legally disadvantaged with respect to some economic incidents of the welfare state, political rights, and immigration benefits. However, formal differentials have been counterbalanced by workarounds and underenforcement. In other words, rights differentials are not as significant as they might appear. The differential is narrower in the context of obligations. With the exception of jury duty, citizenship imposes no additional societal burdens not also shouldered by noncitizen residents. Tax and military service obligations fall equally on citizens and noncitizens. All persons physically present are required to pay taxes. Mandatory military service is of historical significance only, and in any case applies equally to citizens and permanent residents alike. Americans are required to do nothing for their country that they would not be required to do as mere legal residents.
Outside the national territory, citizenship has greater salience on both sides of the balance sheet. Passport issuance is contingent on citizenship, as is diplomatic protection by U.S. authorities. The Supreme Court has found certain constitutional protections inapplicable to noncitizens outside of the United States, where (as a matter of doctrine) the Bill of Rights is fully portable for citizen carriers. External citizens also carry substantial tax obligations that are citizenship contingent. However, formal rights differentials have been counterbalanced by the rise of international human rights, which apply on a citizenship-blind basis.
The contemporary convergence of citizenship and noncitizenship status reflects an evolution from more significant historical differentials. Although noncitizens have always enjoyed certain equivalent constitutional protections, they were historically disadvantaged with respect to important legal capacities, including the right to own property and engage in some kinds of business. Compulsory military service was once required only of the citizen or the citizen-in-the-making. Citizenship status has grown less consequential in terms of situating an individual within society.
Part I of this Essay considers citizenship as an independent variable in the allocation of rights and obligations within the United States, with a focus on locational security, social benefits, and political rights. Part II situates the question in a global context, considering rights and obligations attaching to citizenship on an extraterritorial basis. In this context, the citizenship differential is also diminishing. The Essay concludes with brief observations on the implications of the convergence for the future of national community.
I. TERRITORIAL RIGHTS AND OBLIGATIONS
Few important rights hinge on citizenship status. …