15 May 2014


'Treason, Expatriation and 'So-Called' Americans: Recovering the Role of Allegiance in Citizenship' by Ashwini Vasanthakumar  in (2014) 12 Georgetown Journal of Law & Public Policy comments
Allegiance is an essential element of citizenship, featuring in its statutory definition and invoked in its rituals. Most scholars have dismissed allegiance as a vestige from a feudal past. Certainly, the last several decades have witnessed a revolution in citizenship: access to citizenship has been liberalized, and citizenship is now widely recognized as a ‘right to have rights’ that states are loath to infringe upon. Allegiance would seem to have no place in this context. In this Article, I seek to recover the role of allegiance in citizenship and demonstrate its continued legal and normative relevance. I develop two illustrative conceptions of allegiance by analogy to political obligation and civic virtue. I then undertake a close reading of select Supreme Court decisions in treason and statutory expatriation — contexts in which the betrayal or transfer of allegiance is of moment. I draw upon these decisions to further illuminate the concept of allegiance as well as to identify its normative implications for citizenship. Through inchoate allusions to allegiance, states recently have deprived individuals of their citizenship and undermined the protections that status once afforded. Clarity about allegiance is necessary to avoid abuse; this Article begins a preliminary investigation.
Vasanthakumar  argues
American citizens have recently been described as citizen sovereigns, secure in a status that guarantees them the ‘right to have rights.’ This security is the culmination of a general trend in the twentieth century of embracing liberalism in citizenship, both in terms of access to the status of citizenship as well as in what that status entails. In general, citizenship can no longer be denied to individuals on the basis of their national origin, religious beliefs, or political ideologies. Importantly, the state cannot act unilaterally to revoke the status of citizenship, or to reduce the rights and privileges it affords. This evolution in citizenship and nationality laws — observed across liberal democracies — has been heralded as a triumph for individual rights; where nationality once was the exclusive domain of a sovereign state, it is recognized increasingly as a human right, infringements of which are regulated by international law. As with other areas of international law, sovereignty has shifted from the state to the individual, even in those matters, such as determinations over nationality, that once were exclusively under the purview of the state.
For all this apparent indestructibility, however, citizenship is under threat, and citizens no longer can be assured of either their status as citizens nor of its attendant rights and privileges. The imperatives of national sovereignty, and national security in particular, have recently asserted themselves in liberal democracies. At its extreme, this is suggested by targeted killings of American citizens abroad. But these imperatives of state sovereignty also inform more routine administrative determinations. For example, the Home Secretary in the United Kingdom is empowered to deprive British nationals of their citizenship, including native-born citizens. Defending these powers, governments have rejected the conception of citizenship as a right. They have instead insisted that “citizenship is a privilege not a right” and introduced distinctions between citizens — between the ‘upstanding’ and the undesirable, the true Americans and their ‘so-called’ counterparts. These distinctions are invoked to justify taking actions against some citizens but not others, including actions that deprive them of their citizenship or of the basic protections this citizenship typically affords. The justification for these actions may take the form of a legal claim — for example, that lethal force against American citizens abroad is sometimes lawful — or may be an exercise of rhetoric, aiming to persuade others that these actions are not morally objectionable. In both law and politics, allegiance is invoked to justify drawing distinctions between the undesirable and the upstanding, and to authorize taking actions against some whilst extending protections to others.
In this Article, I explore the concept of allegiance: Who owes allegiance? What does owing allegiance entail? How does allegiance to the polity co-exist with the affection, loyalty, and attachment other communities inspire? And does allegiance provide a morally attractive basis for drawing distinctions between citizens—for looking beyond formal status to identify ‘true’ citizens? This Article begins a preliminary investigation into the concept of allegiance. Through a close reading of select Supreme Court decisions on treason and statutory expatriation, I seek to illuminate key features of the concept of allegiance, to illustrate its continued legal relevance, and to identify the different conceptions of allegiance and citizenship the Supreme Court implicitly relies upon. On its face, allegiance might seem to bear little relevance to contemporary citizenship. I focus on allegiance for two reasons: first, it has long been essential to definitions of citizenship but has been largely ignored, and second, in spite of the relative inattention from theorists, allegiance may be a promising concept from which to develop a thicker conception of citizenship. Let me elaborate briefly on these two points.
Allegiance is an essential element of citizenship. American nationality, for example, is tautologically defined with reference to allegiance: an American national is statutorily defined as any “person owing permanent allegiance to the United States.” Indeed, allegiance retains ritual importance — in pledges and oaths, for example — and continues to be subject to legal and political contestation, suggesting that references to allegiance are not purely ceremonial. Defining citizenship in terms of allegiance is not merely a vestige of a feudal past.
For all this, the concept of allegiance has not been subject to sustained scrutiny, even though vagueness as to its meaning creates opportunities for abuse. In his magisterial survey of the crime of treason in America, for example, William J. Hurst notes that in the Constitutional Convention’s deliberations on the treason clause “the idea of ‘allegiance’ itself receives no exposition.” Elsewhere, allegiance is merely likened, with little elaboration, to such diverse political concepts as identification, solidarity, loyalty and obligation. This lack of exposition is troubling for two reasons. For one, it means that American citizenship is defined with reference to a concept that remains opaque. It is unclear, for example, what owing allegiance consists in, whether allegiance is a necessary, sufficient, or merely desirable feature in citizens, and whether citizens can owe allegiance to more than one polity. Answers to these questions would sharpen our understanding of allegiance, and hence, of citizenship. They would potentially inform policies regarding naturalization, denationalization, multiple nationality, and amnesty for unauthorized residents. Without fuller exposition, however, allegiance may be invoked in policy debates in arbitrary or inconsistent ways. The lacuna in our understanding of allegiance invites, at a minimum, incoherence; more troubling, it also allows for otherwise indefensible assumptions and stereotypes to be smuggled in. If the element of allegiance in citizenship suggests a conception of citizenship beyond formal status, but that element is left undefined, then countless individuals may find themselves cast as ‘so-called’ citizens because their religious adherence, political ideologies, or national identity call into question their allegiance. Vagueness about the meaning and role of allegiance in citizenship lends itself to abuse.
Avoiding abuse, however, is not the only impetus for an inquiry into allegiance. Allegiance also warrants closer inspection because it may provide a promising basis for an alternative to liberal citizenship. A number of academics and policy makers have urged for a thicker conception of citizenship, criticizing liberal citizenship as morally impoverished and political unfeasible. They have explored several bases for a more robust conception of citizenship, including nationalism, communitarianism, and constitutional patriotism. Nationalists ground a thicker conception of citizenship on shared national identity; communitarians, on shared values, traditions and practices; and constitutional patriots, on a shared commitment to the universal values embodied by a constitutional order.
There are many variations and nuances to these accounts, which I will not explore in this Article. Let me here note only that each of these accounts has exclusionary potentialities that the concept of allegiance may more easily avoid. Allegiance mimics liberal accounts of political obligation by requiring a voluntary undertaking on the part of the citizen and situating the citizen in relationships of reciprocity with the state and with fellow citizens. Unlike most liberal accounts, however, it also seems to call for the citizen to hold a particular attitude towards the state, and is therefore more demanding than liberal citizenship. This attitude is available to putative citizens who do not share a national identity, do not participate in dominant traditions and practices, and who do not endorse the political values embodied in a polity’s constitutional order. As such, I suggest, allegiance potentially provides the basis for a more robust conception of citizenship but one that is more inclusive than prominent alternatives. Allegiance thus holds out the promise of a relationship between citizens and their state that is consensual but not contractual, that is held together by shared commitments if not a shared culture, and that is both principled and particular. This promise warrants further inquiry.
Clarifying the meaning and role of allegiance in contemporary citizenship challenges the dominant liberal conception of citizenship. Instead of being the ‘right to have rights,’ citizenship might call for certain attitudes and actions. This thicker conception of citizenship may have a number of implications for practices surrounding citizenship. For example, it potentially restricts access to citizenship by heightening the criteria for both naturalization and for regularizing the status of unauthorized residents. It might also hinder citizens’ ability to retain formal ties to other polities, to maintain multiple nationalities, and to work in foreign governments. And finally, it might make the removal of citizenship easier. In short, recovering the role of allegiance in citizenship would likely check the liberalizing trend towards citizenship celebrated by many as a victory for individual rights. In this respect, then, it might seem to mimic the problematic distinctions between true and ‘so-called’ Americans I identified at the outset. Indeed, perhaps it lends them a veneer of theoretical respectability. On the contrary. Distinctions between real and ‘so-called’ citizens loom large in the public imagination and in political discourse, and they are invoked — sometimes to great effect — to justify the infringement of fundamental rights. These distinctions appeal, inchoately, to a thicker conception of citizenship. Providing a coherent account of this conception allows us to determine whether it is normatively defensible and desirable, to more clearly identify its limits, and to therefore avoid the arbitrary distinctions and deprivations that it otherwise invites.
I develop this account through a close-reading of select Supreme Court decisions in cases of treason and statutory expatriation. I draw upon the Court’s discussions for three reasons. First, these discussions provide insight into what role, if any, allegiance plays in more contemporary practices and notions of citizenship. Second, they provide relatively coherent expositions that aid in illuminating various aspects of the concept of allegiance. And finally, they provide concrete illustrations of the legal and political consequences of giving effect to different notions of allegiance. Let me emphasize that I do not use the Court’s decisions to trace the development of its jurisprudence on allegiance, or to identify the ramifications of this jurisprudence for other areas of law.19 Rather, I treat the Court’s decisions as particularly coherent, authoritative and illustrative pronouncements on the contemporary meaning and relevance of allegiance.
I argue that the Court’s discussions of allegiance involve two competing conceptions of allegiance: a thin conception of allegiance that collapses into political obligation and a thick conception of allegiance that appeals to notions of civic virtue. The Court’s holdings seem to signal a move — widely celebrated — towards a liberal conception of citizenship that reduces allegiance to political obligation. I argue, however, that the Court does not fully abandon the language of allegiance or the thicker conception of citizenship to which it gives rise. The Court thus leaves open the door to, among other things, involuntary expatriation and the abuses that inchoate distinctions between true and ‘so-called’ citizens license. The Court’s decisions, however, are helpful in outlining two competing conceptions of allegiance and in identifying the implications these conceptions have for such questions as who owes allegiance, when it is betrayed, and when it is abandoned.
This preliminary investigation into allegiance proceeds in the following way. In Part I, I briefly consider the contexts in which concerns about allegiance and betrayal are invoked, and outline the claims about allegiance made in contemporary political and academic discussions. Here, I focus on the advent of multiple nationality. I then outline in Part II two conceptions of allegiance and illustrate the normative implications of each for political membership and community. In Part III, I analyze the Court’s jurisprudence of treason, and in Part IV, its jurisprudence of statutory expatriation, focusing on how allegiance is defined and relied upon. I conclude by reflecting on what these opinions reveal about the contemporary concept of allegiance, the implications of invoking allegiance in law and politics, and areas of further inquiry.