American Citizenship Between Past and Present Brunella Casalini One

American Citizenship between Past and Present Brunella Casalini One of liberalism's main categories, from Rawls to Dworkin, is the idea of the person as bearer of certain fundamental rights requiring universal recognition. The tension between this universalistic aspiration of rights and the specificity of the body politic, which the concept of citizenship has embodied since its beginning in XVII century, is an issue that liberalism rarely deals with. Several among the most conscious liberal thinkers have admitted that and thus revealing liberalism's cosmopolitan and Illuministic roots in the end, there is only one justifiable community from an ethical point of view: the community of mankind1. Nevertheless, the existence of a plurality of culturally distinct nations more often than not berefts the body politic of any theoretical underpinning and its supposed homogeneity, or its necessary degree of internal cohesion, is taken for granted. In both A Theory of justice and Political Liberalism, for example, Rawls imagines a close society in which you are born and die as a citizen2 and the issue of liberty of movement is considered only as one of citizen s fundamental rights within the state. All the questions linked to the problem of inclusion and exclusion, immigration and rights of legal residents and illegal aliens living in the national territory are absent and thus left without an answer. Left unanswered also are the challenges that these problems represent for the identity of a political community that intends to defend and guarantee the person s rights consistently. Liberal theory has not yet brought the consequences following from its main categories into account. For example, the possibility of appealing to supranational organs of justice, such as the European Court of Justice, has already transformed - according to some contemporary analysts - the old nation-state into the agent or executor of decisions taken outside the state s borders. While, at the same time, the extension of a set of fundamental rights to legal residents now taking place both in Europe and The Unites States is devaluating the meaning of the citizen s status3. The United States case is worth studying more than any other if we want to understand this contemporary development because it has long been considered (unjustifiably, as I will argue in what follows) either an exception to the exclusive and particularistic character of the European nation-state and an example of a liberal and inclusive political identity founded on constitutional patriotism, or because some aspects of American contemporary experience seem to anticipate the traits of a post-national citizenship. The defence of rights by an extensive and widespread judicial review today considered a model also for the European Court of Justice contributed, particularly in the constitutional jurisprudence of the last thirty years, to an almost complete equalisation of legal residents and citizens status, through the extensive application of due process and equal protection of the law. This phenomenon has been interpreted as opening the way to a process of reshuffling - if not of actual devaluation - of the functional meaning of citizenship4. The modern procedural republic, the fruit of liberal individualism, emphasises and defends the existence of rights considered so fundamental as to be indispensable and prior to any conception of the common good whatsoever. According to some critics of American contemporary society, this liberal trend has changed public life radically, impoverishing social ties and weakening the motivation for political participation. Faced with the current degradation of loyalties toward the state, in the last decades,liberalism's critics have shown a growing temptation to look back at the early Republic in search of an alternative to liberal thought. Thus is the appeal to the lost souls of American political tradition - Protestant, Republican, Populist and Communitarianist5 - now common. Michael Sandel, for example, holds that Republicanism may still represent a corrective to the impoverishment of American life, while recognising the dark episodes that have riddled the history of the Republican tradition, starting with its coexistence with racism, exclusion of women and nativist hostility6. From this point of view, my paper has two aims. The first is to present a reconstruction of the main moments in which American citizenship has been defined. I will emphasise the plurality of civic ideals (often conflicting) that have moulded American political identity, generating lines of development contradictory to the liberal and universalistic image spread by most of the literature on the subject, e.g. Hartz, Lipset and, more recently, Schlesinger and Walzer7. The second aim is to offer an analysis of the latest developments and the most meaningful transformations that have occurred in the second half of this century in such areas as immigration and citizenship. The comparison between the past of American citizenship and its present intends to bring to light the ambivalence of the contemporary devaluation of citizenship and at the same time to deal with the implications of resorting to the communitarian tradition. Though pointing out liberalism's indifference to the ties holding the political body's numerous members together, we cannot forget the positive, transformative strength revealed by rights talks in history as is evidence by the civil rights movement in the 60s and 70s. Rather than giving up liberalism altogether it seems worth considering as I will maintain here the possibility of reconciling liberalism and republicanism, starting over with the thought of Madison. I Federalists, Antifederalists and the Issue of Citizenship According to line of interpretation which sees liberalism s hegemony in American political tradition in its origins, belonging to the national community has never been relevant for American constitutionalism. Thus, in The Morality of Consent (1975), Alexander Bickel argued that "the concept of citizenship [played] only the most minimal role in the constitutional scheme ... The original Constitution presented the edifying picture of a government that bestowed rights on people and persons, and held itself out as bound by certain standards of conduct in its relations with people and persons, not with some legal construct called citizen"8. In sharp contrast to this account, American history proves that the extension of the Constitution s formal domain was limited for a long time by the kind of answer given from time to time to the question: Who belongs to 'We the People ? As late as the beginning of the XX century and to a smaller extent as late as the 50s and 60s, a large part of American population were deprived of the enjoyment of the most fundamental rights because of its exclusion from the status of citizenship on the basis of race, gender and census. The 1856 Supreme Court opinion Dred Scott v. Sandford, in which justice Taney maintained that blacks were not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States9, is the saddest example of the weight given to a citizen formal legal standing. Women, on the other hand, were second-class citizens, or rather they were citizens only in a derivative way: their will was in fact subordinated, from a legal point of view, to that of their husbands. If the Revolution had demolished the patriarchal relationship between sovereign and subjects, it certainly did not impinge on the domestic sphere. Considered moral guardians of the new republic, women had none of the privileges of American citizenship: the vote, the right to hold office, eligibility to serve on juries or as judges, and, if married, the right to independent ownership of property10 were all denied them. Overturning Bickel s interpretation, it is possible to read the silence of the Constitution on the issue of citizenship as an important clue, as Roger M. Smith asserts11, of the crucial role played by the citizen s formal legal status and of the constituent s necessity of coming to a compromise on such matters as slavery and the relation between state and federal citizenship. In the heated national debate of 1787 between Federalists and Antifederalists, one of the fundamental issues at dispute was the competition of diverging and conflicting civic ideals. Antifederalists granted important functions to the state in matters such as civic education and religion. They were suspicious of the constitutional clauses, in particular of Art. VI, section 3, which deprived of any public support and prevented the imposition of religious oaths for holding public offices. Henry Abbott, an Antifederalist in North Carolina, defined the secular underpinnings of the Constitution as dangerous . Indeed, he believed it encouraged Pagans, Deists, and Mahometans to hope that they could obtain office in the United States12. Another negative element, according to the Antifederalists, was the wanting homogeneity of a republic of such great dimensions and open borders. Their critique of the liberal immigration politics of Pennsylvania went along the following lines. Pennsylvania they observed has chosen to receive all that would come there. Let any indifferent person judge whether that state in point of morals, education, energy is equal to any of the eastern states. [which] by keeping separate from the foreign mixture, [have] acquired their present greatness in the course of a century and a half, and have preserved their religion and morals Reasons of equal weight may induce other states to keep their blood pure13. Antifederalists civic humanism clashed with Federalists liberal-republicanism views. For the latter, the very enlargement of the orbit and the pluralism of sects, interests and opinions would be the great advantage of the new republic in comparison to the old republic of small dimensions. The commercial republic, as envisioned by the Federalists, was more inclusive and less demanding in terms of civic virtues.

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