Alien Equality

The Citizen and the Alien and The Birthright Lottery are impressive books. Both works provoke innovative ways for thinking about equality and justice within the concept of citizenship. This essay presses on the authors’ claims and assumptions about equality as they relate to citizenship. In particular, I raise questions about the treatment of borders, indigenous peoples, and what we could consider acts of global citizenship. ∗Associate Professor of the Politics of Citizenship and Intercultural Relations Department of Political Science, McMaster University, Hamilton, Canada. Email: nyersp@mcmaster.ca. Edward Said once observed that the “problem of beginnings is the beginning of the problem” (Said 1985: 45). If citizenship is meant to denote the beginning of political membership, belonging, and subjectivity, then of what problems should we be wary? What are the pitfalls and dangers of placing citizenship at the beginning of our investigations about being political? What are the implications of placing birth—the origin of personhood—as the foundation for allocating membership in the political community? Claims to origins are always political because they shape what is to follow and, more crucially, disavow other points of departure and modes of being. In the case of citizenship, this means effacing all other means of being political as both fantasies for the future and hopelessly naïve in the present day world of sovereign states. The two books under discussion in this Symposium—Linda Bosniak’s The Citizen and the Alien and Ayelet Shachar’s The Birthright Lottery—combine sophisticated scholarly analysis with deep normative convictions about the injustices and inequalities that exist at the borderlines of the nation, state, and citizenship. The books illustrate that the fine line that separates the citizen from the noncitizen is actually the site of deeply political contestations and struggles. Each author is forward thinking, breaks new conceptual ground, and provokes innovative ways for thinking about and strategizing for equality and justice within the concept of citizenship. In addition to their new insights and conceptual innovations, Bosniak and Shachar also do justice to Said’s invitation to problematize beginnings. For Bosniak, this involves investigating the laws and practices that produce, sustain, and contest the line that separates the citizen from the alien. In conventional narratives, citizenship signifies the beginning of political membership, rights, and voice, while alienage signifies their end. Bosniak exposes the arbitrariness of this relationship, and seeks to think about political community and belonging in ways that do not replicate such a strict us/them relationship. Much of the analysis is driven by a normative commitment to justice, which Bosniak understands as equality of access to civil and social rights regardless of legal status. To deny these rights is tantamount to “imperialism by the membership domain” (Bosniak 2006: 45). For Shachar, problematizing beginnings involves a sustained critique of how birthright citizenship signifies the beginning of national membership, legal status, and, perhaps most importantly, overall life possibilities. By taking a critical, global perspective, birthright citizenship is revealed as something more than just a hereditary form of membership allocation; it is also a key means for the transgenerational transfer of wealth (or poverty), autonomy (or dependence), privilege (or struggle). Shachar meets these inequalities with some bold proposals for a “birthright citizenship levy” and a jus nexi citizenship regime. Bosniak and Shachar have written impressive books about how to recognize and combat inequality as it is manifested in citizenship. I have titled my 1 Nyers: Alien Equality Published by De Gruyter, 2011 contribution to this Symposium “Alien Equality” in order to highlight the theme of (in)equality between citizens and noncitizens as it is discussed in these two books. While the two books present a strong moral argument, equality—like citizenship—is a fundamentally political concept. I am interested in pushing the authors on some of their claims and assumptions about equality as they relate to citizenship. I do so in the spirit of Foucault’s famous remark that “everything is dangerous”—and equally in the spirit of his reassuring qualifier that this means that “we will always have something to do” (Foucault 1983: 231-32). In terms of dangers, I raise some questions about the way certain issues are and are not discussed in the books; namely, the treatment of borders, indigenous peoples, and acts of global citizenship. In terms of possibilities, I want to make an argument for investigating minor acts of citizenship—as opposed to the major institutional transformations to the citizenship regime as proposed in concepts like jus nexi. The advantage of such a shift in focus, I argue, is that it allows us to keep a sustained focus on the ways in which people constitute themselves as beings capable of making claims—that is to say, capable of being political. Here, it is not so much the distribution of rights that interest me (although that is undoubtedly important) but the emergence and mobilization of subjects capable of making claims for what Arendt called the “right to have rights.” What would an analysis of citizenship’s inequalities look like if processes of subjectification were given a central place? The Citizen and the Alien The Citizen and the Alien begins by problematizing a constitutive dualism of citizenship. On the one hand, the story of citizenship is “often recounted as a tale of progressive incorporation, with new social classes increasingly demanding, and ultimately achieving, inclusion as citizens over time” (Bosniak 2006: 29). Citizenship in this tale is “treated as the highest measure of social and political inclusion” (3). On the other hand, state citizenship is also a bounded and exclusive concept that is generative of social and political hierarchies with noncitizens or “aliens” (3). This fundamental tension—between a universalizing aspiration for equal rights and a particularizing force that limits who can and cannot be a member of political society—is at the core of Bosniak’s book. Her aim is to examine how the “twin citizenship regimes—one committed to inclusion of persons, the other to the exclusion of strangers—converge to produce the ambiguities of alien status in liberal democratic societies” (9). That the alien’s relationship to citizenship is marked by “ambiguities” is significant, and constitutes one of the key insights and contributions of the book. While the citizen/alien distinction is deeply divided in law, the discussion of alienage in this book remains within a legal framework, and can be contrasted to the much more 2 Issues in Legal Scholarship, Vol. 9 [2011], Art. 11 DOI: 10.2202/1539-8323.1131 ambiguous figure of the “foreigner” as discussed by Bonnie Honig (2001) that can be productively read in several domains at once—literary, legal, cultural, legislative, etc. Bosniak argues that the lived experience of alienage is much more complicated than the inside/outside logic of state sovereignty. The external “sphere” of borders, exclusions, and foreignness are not as distinct and separate from the internal “sphere” of belonging, equality, and rights as the conventional narrative of citizenship suggests. If the spheres were truly separate, once aliens were within the universal sphere of the domestic community they would be “entitled to a broad range of important civil and social rights—rights of a kind that are commonly described in the language of citizenship” (34). Her analysis of U.S. case law, however, demonstrates that the opposite also occurs: the spheres overlap but it is “citizenship’s exclusionary threshold [that] shifts inside to operate directly within the territory of the national society” (34). For Bosniak, the distinction between the alien and the citizen is a fundamentally political one that reveals a tension within liberal societies between the exceptional sovereign powers that are enacted in border politics, versus the equality principle that is supposed to apply to all members of the political community. There is a fundamental tension between regulating the border and the equality principle: the first involves the external practices of sovereign power, while the second is said to be an aspiration internal to the social realm. In taking a critical look at the citizen/alien divide, Bosniak’s analysis illuminates in important ways some of limits of our received traditions of the political. But there is an additional dynamic that further complicates the citizen/alien distinction that is unexplored in this book, as well as in Shachar’s The Birthright Lottery. Neither book includes any substantive analysis of the relationship between citizenship, alienage, and indigenous populations. The status of the latter does not fit neatly onto the continuum of citizen-alien, nor can the existence of territorial disputes and divisions within and across state boundaries be adequately addressed with the concepts of borders, migration, or birthright citizenship. This is significant because in settler societies like Canada and the United States, treaties with indigenous peoples are an important condition of possibility for the development of a constitutional system that allows “citizenship” to emerge (Henderson 2002: 431). The negotiations between territory-citizenship-state involved in the claim making of indigenous struggles in Canada and the United States are much more complicated than Bosniak’s reading of citizenship and alienage. Different kinds of boundaries, distinctions, and identities are being assumed and enacted in these circumstances. At times, negotiating the territory-citizenship-state dynamic involves refusing the birthright citizenship accorded by settler states. To illustrate the implications of this point,