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Abstract:
This paper sketches a new international law of citizenship. To the extent that international law has in the past constrained state citizenship practices, it has been on a boundary management basis. States were constrained in membership decisions only to the extent that such decisions trespassed on the rights of other states. In practice, this meant that international law sometimes restricted, but never required, the extension of nationality. Recent trends suggest a shift to an individual rights orientation, which will give rise to cases of mandated membership. The paper deploys international approaches to dual citizenship and to naturalization and birth citizenship as evidence of this new orientation. Naturalization and birth citizenship were once wholly outside the ambit of international law, and states were free to set conditions for the acquisition of citizenship. That insulation may be eroding. As naturalization and birth citizenship regimes converge, there may some baselines to which states will have to adhere. Unlike past constraints on citizenship practice, those baselines will constrain a state's core capacity to define its citizenry.

The paper explores the implications of this shift. These developments are a logical extension of the human rights revolution and the triumph of liberalism as the metric of international norms. As the international law of nationality comes to focus more on issues of exclusion rather than of interstate stability, it should enhance the rights and status of individuals in their places of residence, especially as against the use of citizenship practices as a surrogate for other internationally proscribed types of discrimination (that is, where citizenship law is used as an instrument of subordination on the basis of race, religion, and other such characteristics). That trajectory is normatively consistent with a human rights frame. The ultimate implications of dictating access to membership may be less clearly rights and status enhancing. To the extent national citizenship has in the past reflected internally constructed national identities, it has facilitated and consolidated community solidarity, which may be a condition to thick public governance at the national level. The exogenous imposition of membership standards could undermine the rough correspondence of citizenship and identity. That could in turn drive solidarities into other forms of collective association, not so constrained, and with them many of the functions of the modern welfare state.

citizenship, nationality, international law

Abstract:
Foreign relations law presents a particularly fertile field in which to explore constitutional dynamics. This article uses the recent debate over the constitutional interchangeability of Article II treaties (requiring supermajority approval of the Senate) and congressional-executive agreements (approved with a bicameral majority) as a case study in constitutional method. The article first critiques arguments by Laurence Tribe, who on a textual basis argues the constitutional illegitimacy of the North American Free Trade Agreement and the World Trade Organization Uruguay Round, both approved as congressional-executive agreements; and by Bruce Ackerman and David Golove, who assert their constitutionality in all cases as grounded in a constitutional moment following World War II. This article argues that the constitutionality of congressional-executive agreements can be established, but only at the end of an accretive historical practice and only in a narrow range of substantive contexts. In contrast to Tribe, the article demonstrates the constitutionality of congressional-executive agreements; in contrast to Ackerman and Golove, it denies the full interchangeability of congressional-executive agreements with treaties. The article uses post-war developments to show that the congressional-executive agreement form is acceptable in some contexts (with respect to trade agreements, where it may in fact be mandatory) and not in others (most notably with respect to arms control agreements, where the Senate has maintained an institutional opposition to submitting such agreement via any route other than Article II).

The article uses this case study to pose a model of constitutional increments. In contrast to the moments approach, the increments model accepts the evolutionary, episodic development of constitutional norms. The model offers four metrics for assessing the constitutional significance of any particular constitutional episode: acceptance by relevant actors, including non-judicial and, in some cases, non-governmental actors; the degree of contestedness evidenced in an episode (the more contested a principle, the greater significance afforded the resolution of that contest); the age of the episode (older episodes being less significant, at least as unsupported by more recent practice); and the pedigree of the principle for which the episode is offered. This model, the article asserts, offers greater constitutional determinacy than competing models of constitutional development. The model also better advances the central normative virtue of constitutionalism, namely of facilitating recognition of long-term community aspirations through the constraint of shorter-term continuity.

treaties, executive agreements, nafta, constitutional method, constitutional custom, foreign relations law

Abstract:
This paper, a revised version of which will appear in the Oxford Handbook of International Law (forthcoming 2007), attempts to distill major theoretical approaches to NGO participation in international law both generally and with specific application to international environmental law. The chapter extracts three models from the major academic work on the question: liberal, stakeholder, and post-national. The liberal model continues to center the state as the primary locus of decisionmaking authority, while allowing the indirect influence of NGOs on the shape of international decisions. Domestic, transnational, and institutionalist variants of the liberal model frame the relevant terrains of NGO activity differently, as bounded or not bounded by national borders, but always with states as the key target actors and ultimate repositories of power. Stakeholder and postnational models, by contrast, recognize independent NGO power, inside public international institutions under the former approach and outside public institutions altogether under the latter.

All three models accurately describe a segment of NGO participation in international environmental lawmaking. Insofar as the Liberal model hews to a state-ordered worldview, it may lose traction as an explanatory framework for considering the place of NGOs going forward. Liberal models are at least implicitly offered as universal theories of global political ordering, which serve as the exclusive tool for understanding international politics. But Liberal theory is in fact ill-equipped to explain evolving new pathways of NGO participation. It is only as good as far as it goes, that is, in explaining how NGOs work through states to advance their agendas; otherwise, it is an approach in denial. Hence the value added of stakeholder and postnational models, which confront, explain, and justify novel forms of NGO participation, at the same time that they accept the fact of state-channeled influence. As those forms of participation ramify and entrench, the scholarly challenge will migrate correspondingly.

NGOs, international legal theory, international environmental law, international relations theory

Abstract:
This article asserts the consequentiality of global context for the development of constitutional law, past and future. The article offers an account of the differential doctrines of foreign relations law in which they are contingent on the historical architecture of international relations, and explains why these doctrines may no longer be sustainable against the increased institutionalization of interstate relations, the disaggregation of the nation-state, and heightened international economic competition. Insofar as these elements of globalization lower the risk of catastrophic interstate conflict and take account of actors outside of the traditional diplomatic apparatus, differential foreign relations doctrines departing from baseline norms of judicial review, federalism, and individual rights are appropriately contested. These doctrines, the article argues, were once dictated by a hostile, unstable international system and the threats that it posed to the nation; all should be reexamined in globalization's wake, the events of September 11 notwithstanding. In this respect, the article parts ways with other voices in current foreign relations law debates that deploy standard, domestically-oriented metrics of constitutional discourse. The article also sketches, though only suggestively, the possibility that global context may come to determine constitutional norms beyond the traditional foreign relations law canon.

Abstract:
This essay adapts the tools of International Relations theory to the question of how international law might be incorporated into U.S. law, the putative global dominance of the United States notwithstanding. IR theory is not typically deployed to explain internal state dynamics salient to the initial incorporation of international law, focusing more on domestic politics as an independent variable. Nor has IR theory been prominently deployed to explain or to project the relationship of the United States to international law. This essay describes how discrete elements of the United States, including private actors and disaggregated governmental components beyond the traditional foreign policy apparatus, may be developing an institutional interest in the acceptance of international regimes. This essay thus suggests a future in which international law is absorbed into U.S. law not because it is good - although it may well be that, too - but because rational institutional action will pull in that direction. This incorporation will occur in American constitutional law as in other areas, as international law ramifies through judicial and political channels. The essay attempts to marry Constructivist foregrounding of transnational actors with Liberal IR premises of institutional self-interest and domestic power-politics, sketching a new model of international relations under the moniker of liberal transnationalism.

international relations theory, international law, constructivism, realism

Abstract:
This essay reviews T. Alexander Aleinikoff's Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard University Press, 2002). The book considers the constitutional marginalization of Native Americans, aliens, and residents of Puerto Rico and other unincorporated territories. In Aleinikoff's view, citizenship supplies both the explanation for and the answer to the subordination of these communities. Citizenship has been a powerfully equalizing force in the American constitutional tradition for those within the circle. Insofar as rights have been made contingent on citizenship status, however, those outside are left without constitutional armor. Aleinikoff suggests a reconception of citizenship, extending core constitutional status to those for whom citizenship is not a constitutional entitlement (namely, Native Americans and territorial residents) as well as to some who are not citizens at all (permanent resident aliens).

With citizenship as a baseline, the argument is a powerful one. But one might at a more fundamental level question the continuing utility of that baseline and of citizenship as an institution. An emerging body of postnational scholarship is challenging citizenship and the nation-state as delimitations of human community, posing instead diasporas, social movements, and other nonstate groupings as competing locations of identity and governance. Aleinikoff brackets the postnational assault; he is seeking to transform citizenship, not transcend it. In this respect, the analysis presents more of an exercise in recentering citizenship than - as claimed - one of decentering it. But the postnational challenge is unavoidably implicated in any attempt to deploy citizenship as an institutional vehicle. Even as an expansive and benign quantity, Aleinikoff's vision of citizenship may suffer the same problems as its exclusionary predecessors: however the circle is drawn, many are left out, including many with deep attachments to the national community. To the extent, on the other hand, that the circle is drawn ever more widely, the tie that citizenship is understood to represent grows ever thinner. This dynamic would seem to present an inescapable dilemma for the institution of liberal citizenship, and perhaps for liberalism itself.

citizenship, constitutional law, aliens, territories, Native Americans, postnational, liberalism

Abstract:
In the immediate wake of the September 11 attacks, there was well-founded anxiety that the enormity of the episode and the war talk that followed would result in the significant curtailment of civil liberties, and particularly the rights of aliens. The historical precedents pointed in that direction, and some proposals would have constituted a serious setback to individual rights. But the more extreme fears have not been realized. Although elements of the government's response to 9/11 have been rights-restrictive, the overall resiliency of rights protections has perhaps been more remarkable.

This essay explores three possible explanations for why the early predictions of rights reversals have not come about. First, it may be that however dramatic the attacks, they did not in fact constitute so serious a threat as to warrant - as a matter of policy - the severe curtailment of rights. A second explanation highlights a largely extrajudicial dynamic in which more rights-invasive anti-terrorism proposals have been defeated as inconsistent with constitutional norms. Finally, the international community and international law appear to have played a significant role in restraining the government from a more serious assault on civil liberties. Geopolitical dominance and the unilateralist bluster of the present Administration notwithstanding, U.S. practice is being disciplined by international rights norms.

Abstract:
Can a treaty override an individual right protected under the Constitution? There is perhaps no element of the foreign relations law canon more universally held than the proposition that constitutional rights prevail as against inconsistent international agreements; a consensus of commentators, courts, and other constitutional actors has long held that, in this respect, the Constitution stands supreme. This essay questions the hegemony of domestic constitutional rights, in both historical and contemporary contexts. In at least three nineteenth-century contexts - extradition, the settlement of foreign claims, and the operation of consular courts - treaty regimes resulted in the override of otherwise tenable constitutional entitlements. In the modern era, international human rights norms played an important part in the expanded conception of domestic civil rights, while other individual rights were constrained in the face of foreign relations concerns; no account of twentieth-century constitutional rights is complete without international geopolitical referents. The transforming global architecture may now allow for an open assault on constitutional hegemony. Although constitutional subordination is unlikely to be adopted as a matter of doctrine, the analysis supplies an additional platform for considering other deployments of international norms in the realm of U.S. constitutional law. If one can establish a basis for privileging international rights determinations over domestic ones, then international law can be put to lesser tasks as an interpretive tool.

treaties, Bill of Rights, Reid v. Covert, Boos v. Barry, international law, Supremacy Clause, consular courts, foreign claims settlement, extradition

Abstract:
This essay, a revised version of which will appear in the Research Handbook on Human Rights (Edward Elgar, forthcoming 2009), attempts to systematize NGO activity relating to human rights. It first describes why human rights supplies fertile ground for the study of non-governmental organizations. As human rights obligations cannot be explained in terms of reciprocal state interest, non-state actors are a probable causal agent in the entrenchment of human rights regimes. The chapter confronts NGOs as agents of material power. The chapter then describes four primary pathways for the exercise of NGO power: through and against states, international organizations, corporations, and each other. Only by situating NGO power relative to state and non-state entities does the breadth and novelty of NGO participation in today's global decision-making come into full relief. Given the fact of that broad power, the chapter concludes by addressing the question of NGO accountability, suggesting that institutionalization of NGO power holds the most promise for appropriately constraining its exercise.

non-governmental organizations, NGOs, human rights, international relations theory, international organizations

Abstract:
Under the moniker of the plenary power doctrine, courts have long hewed to an exceptional regime of deference to political branch conduct as against constitutional challenges to federal immigration law. The Supreme Court's recent decisions in Nguyen and Zadvydas, however, point the way to the doctrine's demise. Although Nguyen upheld a provision of the Nationality Act discriminating on the basis of gender, it did so by ostensible application of the normal rules of equal protection. In Zadvydas, the Court cast serious constitutional doubt on the indefinite detention of removable aliens, also applying non-exceptional tests for civil commitment and affording the executive branch little deference beyond that demanded in other agency contexts.

This essay seeks to explain the possible abandonment of plenary powers by situating the doctrine in an international context. It first rejects other possible causes of the retreat, including accounts that highlight the Court's efforts in other contexts to assert judicial supremacy in constitutional interpretation. The essay then traces the origins of plenary powers to a world in which immigration implicated unstable relations among states, in which foreign relations dynamic the courts played little or no role. In recent years, however, the risks of judicial participation in global policy has been diminished. As those risks have diminished, baseline constitutional values should be restored to the area. The essay concludes that the September 11 attacks, although posing a challenge to vigorous participation of the courts in immigration law, will not necessarily interrupt the trajectory set by Nguyen and Zadvydas.

Abstract:
This contribution to a memorial symposium in honor of Kim Barry confronts the political rights of non-resident citizens. It first describes the trend towards extending to and facilitating the exercise of the franchise by external citizens. An increasing number of states permit non-residents to vote, in many cases without requiring return to the homeland. The trend requires a changed conception of citizenship and nationhood, as political membership decouples from territorial location. The essay addresses objections to non-resident voting rights, including those based on assumptions that non-residents will be irresponsible and uninformed voters, that they will form unpredictable and destabilizing voting blocs, and that non-resident voting will impose unsustainable logistical costs. None of these objections carry enough weight, empirically or normatively, to deny the franchise to non-resident citizens, voting rights validated by the increasing degree to which non-residents can access information and maintain significant interests in their home states. Nevertheless, voting rights need not be extended on a one-person, one-vote basis. In certain circumstances - in particular, cases in which the home state sets a low bar for non-resident citizenship and where the non-resident citizen population is large relative to the resident population - it may be justifiable to accord lower proportional voting power to non-residents, at least where their interests are discretely represented in national legislatures. In other words, once the concepts of nationhood and full citizenship are no longer bounded by geography, it may be normatively acceptable to derogate from the creed of formal equality between citizens and within the nation. The increasingly prominent practice of non-resident voting, the piece concludes, thus presents a formidable challenge to political liberalism.

Abstract:
Does the dramatic rise of plural citizenship portend a postnational future? This essay describes how plural citizenship both reflects and accelerates postnationalism, in the sense that it undermines state-based identities. This proposition may pose an initial paradox, insofar as plural citizenship could be thought to facilitate state-based connections. But acceptance of plural citizenship is likely to lower the intensity of the citizen-state affiliation and, in turn, the intensity of bonds among citizens. A citizenship regime tolerant of dual citizenship will count more members who subordinate the attachment to other national attachments, as an inevitable corollary of the move from an exclusive to a non-exclusive relationship. States, however, have incentives to accept plural citizenship notwithstanding these identity-diluting effects. Moreover, insofar as international norms begin to require acceptance of plural citizenship, at least in some cases, states will be increasingly constrained from rejecting the status at the same time that acceptance may result in constitutive challenges to the state as a form of community.

Abstract:
Jack Goldsmith and Eric Posner's "The Limits of International Law" shrugs in the face of undeniable advances in the rule of international law. Their primary strategy is to source those advances to something other than international law itself, or, more specifically, to something other than conduct undertaken out of a state's sense of legal obligation. This review essay, a contribution to a symposium issue on the book, first argues that international law is not demoted insofar as it reflects the rational interests of states. Other forms of law are also more or less grounded in the rational action of their target actors, and most of what Goldsmith and Posner say about international law can be said of ordinary domestic law. As corporate actors, states by and large comply with international law where it is in their interest to do so; the same can be said of corporations vis a vis domestic law and indeed in many cases of individuals as they calculate their own conduct. The essay then highlights the book's bracketing of actors other than states. By omitting any serious consideration of non-state actors from their analysis, Goldsmith and Posner are left with a partial understanding, at best, of the new international law dynamic. This bracketing is understandable from the authors' game-theory premises, as it would be difficult to model the interaction of polymorphic actors that results. But NGO's and corporations are now independently consequential actors in the dynamic of international law, as an empirical matter, and so international law models must move to take account of them. Insofar as Goldsmith and Posner brush them aside, their analysis is at least incomplete.

Abstract:
For most of modern history, dual citizenship was considered an anomaly at best and an abomination at worst. It has since become a commonplace of globalization. The sequence has been from strong disfavor to toleration; some states have moved to embrace the status. Could plural citizenship now achieve the status of a right?

This essay makes a bounded case for recognizing a right to acquire and/or maintain plural citizenship where an individual is otherwise eligible for the status. It does so through the optics of freedom of association and liberal autonomy values. Citizenship comprises both a form of association and a vehicle for individual identity. The liberal state has no business obstructing alternate national ties in the absence of a compelling interest. That interest once existed, to the extent that dual nationality destabilized interstate relations, and explains the historical opprobrium attached to the status. Laws directed at reducing the incidence of dual citizenship may also unjustifiably burden the exercise of political rights.

Today, the material downside risks (if any) posed by plural citizens have dissipated to the point that the state is no longer justified in suppressing the status. To the extent that dual citizenship undermines social solidarities necessary to liberal governance, that is too diffuse an interest to overcome individual autonomy values. The essay concludes with some indirect evidence from practice that dual citizenship is gaining traction as a right.

citizenship, dual citizenship, dual nationality, freedom of association, human rights

Abstract:
This essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably the decision is no longer good law if it ever was.

But Holland may yet live. The key moving part here is the transformed global context. Globalization disaggregates nation-states, facilitating the global interactivity of constituent subnational jurisdictions. This creates new spaces for the states as international actors, including as parties to international agreements. These new international capacities may lessen the need for Holland-like powers in the national government, as the states become more amenable to international discipline. To the extent that international law implicates areas of exclusive subnational authority, the architecture of global society now includes suitable channels of interaction. On the other hand, the transaction costs of managing treaty relationships with multiple subnational entities argues for the maintenance of intermediary power in national governments. The discipline of subnational authorities may remain insufficient to address global imperatives. Some global issues can't wait for the perfection of the legal personality of subnational actors.

In other words, the world may need Missouri v. Holland. If Holland is to be resurrected, it probably won't be out of indigenous American concern. More likely, other actors will press the use of Holland's powers on the United States, in the way of demands lodged with the national government to bring the states into line with international undertakings. Although the national government has finessed recent situations in which a broad interpretation of the Treaty Power might have been required, it has yet to be put to the test. But it is not hard to conjure up scenarios in which the balance would tip in favor of using a treaty to trump state authority.

Missouri v. Holland, Treaty Power, federalism, Bricker Amendment

Abstract:
American identity has always been capacious as a concept but narrowed in its application. Citizenship has mostly been about being here, either through birth or residence. The territorial premises for what it takes to be an American have worked to resolve the peculiar challenges of American identity. But globalization is detaching identity from location. What used to define American was rooted in American space. Now one can be anywhere and be an American, politically or culturally. Against that backdrop, it becomes difficult to draw the boundaries of human community in a meaningful way. With the explosion of global migration and communications, historically entrenched notions of democratic citizenship are becoming increasingly outmoded, even as we cling to them. Beyond Citizenship charts the trajectory of American citizenship and shows how American identity is unsustainable in the face of globalization.

The book recounts how citizenship law both reflected and shaped the American national character, exploring the histories of birthright citizenship, naturalization, dual citizenship. Those legal regimes helped reinforce an otherwise fragile national identity. But against a shifting global landscape, citizenship status has become increasingly divorced from any sense of actual community on the ground. As the bonds of citizenship dissipate, membership in the nation-state has become a less meaningful quantity. The rights and obligations distinctive to citizenship are now trivial. Naturalization requirements have been relaxed, dual citizenship embraced, and territorial birthright citizenship entrenched, developments that are all irreversible. Loyalties, meanwhile, are moving to transnational communities defined in many different ways: by race, ethnicity, gender, religion, age, and sexual orientation. These communities are replacing bonds that once connected people to the nation-state, with profound implications for the future of governance. The lessons of citizenship in the state may not translate to these new and resurgent forms of alternate community. Where the state once stood above other forms of associations as the polestar of individual identity, it will increasingly share the stage of human association, with enormous attendant challenges for decision makers and scholars alike.

citizenship, naturalization, birthright citizenship, dual citizenship, rights of citizenship, citizenship theory, nonstate communities