09 July 2014

Blood Rights

'Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation' by Kristin A. Collins in (2014) 123 Yale Law Journal 2134 comments
The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of restrictions on father-child citizenship transmission was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. At formative moments in the development the laws governing jus sanguinis citizenship – what is now called derivative citizenship – gender- and marriage-based domestic relations laws were enlisted by administrators, judges, and legislators to deny the citizenship claims of nonwhite children, especially those who were excludable under the race-based immigration and naturalization laws.
For those who study citizenship and immigration law, Illegitimate Borders illustrates the concrete and enduring ways that ideas concerning family, gender, and race have shaped the rules that govern formal membership in the American polity. For legal historians and scholars interested in the development of the administrative state and nation building, this article provides a window onto the central role administrators played in crafting American nationality law. For family law scholars, Illegitimate Borders highlights the ways that laws regulating illegitimacy – long used to create and maintain racial hierarchies within the American polity – were regularly used to shape the racial composition of the polity as well. Finally, for constitutional law scholars, the history charted here undermines the view that gender-asymmetrical jus sanguinis citizenship laws reflect natural and inevitable means of regulating parent-child derivative citizenship – an understanding that has been embraced by a majority of the Supreme Court. Instead, the historical sources reveal that gender-asymmetrical citizenship laws are the product of choices made by officials and shaped by contemporary norms concerning gender, parental roles, and – as illustrated in great detail – the official imperative to enforce race-based nationality laws. To speak of gender-based distinctions drawn in modern citizenship law as inevitable obscures their origins and elides the ways that such laws continue to play an illiberal role in the practice and politics of citizenship.
'Citizens As Customers' by Wolfgang Streeck in (2012) 75 New Left Review comments
Four decades ago, in a landmark Public Interest article titled ‘Public Goods and Private Status’, Joseph Monsen and Anthony Downs took up the question of why American society was, in the phrase coined by John Kenneth Galbraith, ‘privately rich but publicly poor’. The authors were not convinced by what they took to be the received explanation at the time: the ‘clever and nefarious advertising techniques’ used by large corporations to manipulate consumers, so that they would ‘buy private goods and services they do not relatively need or want’. Instead, Monsen and Downs suggested ‘a more fundamental factor’ was at work, accounting for the differential allocation of goods between the public and private sectors: a ‘desire’ on the part of consumers ‘for emulation and differentiation’, driving them ‘to create visible distinctions between large groups and classes, and, within such groups, more subtle distinctions of individuality’. Drawing on Veblen’s notion of conspicuous consumption in The Theory of the Leisure Class, as well as 1960s explanations of status-seeking consumer behaviour in American society, Monsen and Downs described this desire as ‘an intrinsic part of man’s character, evident to at least some degrees in all societies, past and present’—‘so fundamental that it can be considered a “law” of human nature.’
Why should this ‘law of consumer differentiation’, conceived as something close to an anthropological constant, affect the relative allocation of resources between the private and the public spheres of a modern political economy? The central point of Monsen and Downs’s argument is that what they call ‘government goods’—those produced or distributed by public authorities—are ‘designed with an eye to uniformity’. The standardization of army rifles is the most evident case in point:
Such goods are easier to produce and administer by the bureaucracy, and they accord with the ideal of equality which underlies the distribution of government goods. But by that very nature, such goods cannot be used easily for status differentiation which is a major function of most goods in advanced industrial societies.
In what follows, I shall make use of Monsen and Downs’s productive distinction between these two modes of provision, with inherent capacities favouring different kinds of goods: one mode is public and collective, administered by state authorities; the other is private and individual, mediated by commercial markets. But rather than comparing the two modes synchronically, or examining them within the eternal property space of economic anthropology, I will take a longitudinal view on the development of their mutual relationship. Moreover, instead of anchoring product diversification in a timeless human disposition towards status-seeking, I will relate it to a particular mode of utility maximization favoured in the transition from a need-supplying to a want-supplying economy, from sellers’ to buyers’ markets, and from poor to saturated to affluent societies, which was getting underway around the time (1971) that Monsen and Downs’s article appeared. In this sense, I will suggest a return to the ‘institutionalist’ explanation for the starvation of the public sphere, which Monsen and Downs rejected in favour of their human-nature theory.