Mapping Citizenship Status, Membership, and the Path in Between

58 Pages Posted: 16 Dec 2015 Last revised: 22 Sep 2017

See all articles by D. Carolina Núñez

D. Carolina Núñez

Brigham Young University - J. Reuben Clark Law School

Date Written: December 11, 2015

Abstract

The concept of citizenship poses an interesting asymmetry: though all citizens receive the same rights and obligations on equal terms, citizenship is not distributed to individuals on equal terms. In the United States, some are citizens by virtue of birth within the national territory or birth to citizen parents. Others must undergo the process of naturalization. Different citizenship rules appear to solve for different variables, and it is not clear whether and how those variables relate to one another. Though commentators have not explicitly recognized the apparent paradox of unequal citizenship rules resulting in equal citizenship, I believe it lies at the heart of many contemporary critiques of citizenship.

This article begins unraveling the paradox. I argue that the apparent paradox results from a failure to understand the relationship between citizenship’s formal and substantive dimensions. Here, I re-conceptualize citizenship by decoupling substantive and formal citizenship. Formal citizenship is not, as many commentators have assumed, a static condition that is or even ought to be synonymous with more abstract notions of membership and belonging. Rather, citizenship is a path that leads toward substantive citizenship, and formal citizenship rules serve as entrances to that path. Mapping and understanding the way that formal citizenship can relate to substantive citizenship can inform contemporary debates about citizenship, immigration, and membership.

Here, I offer a typology of the ways in which formal citizenship can relate to substantive citizenship. Citizenship rules can play a “descriptive” role by conferring citizenship on individuals who have already achieved some measure of substantive citizenship. But citizenship can also encourage an individual’s development of the qualities that make someone a desirable member of the polity. That is, citizenship rules may be “prescriptive” in that they distribute citizenship to individuals who are not yet full substantive citizens. Citizenship rules may also be “predictive” in nature: they bestow citizenship on individuals who are likely to become substantive citizens and help facilitate that development. Other citizenship rules operate to claim individuals without regard to notions of membership and belonging; these may be fairly described as “conscriptive” citizenship rules. To illustrate the value of my framework, I use it to recast two contemporary debates that touch on citizenship: challenges to territorial birthright citizenship and the creation of a “path to citizenship” for DREAMers.

Keywords: 14th Amendment, ascriptive citizenship, birthright citizenship, conscriptive citizenship, DREAM Act, formal citizenship, immigration, jus sanguinis, jus soli, membership, naturalization, path to citizenship, predictive citizenship, status, substantive citizenship, undocumented immigrants

Suggested Citation

Núñez, D. Carolina, Mapping Citizenship Status, Membership, and the Path in Between (December 11, 2015). 2016 Utah Law Review 477, BYU Law Research Paper No. 15-25, Available at SSRN: https://ssrn.com/abstract=2702456

D. Carolina Núñez (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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