Jean Monnet Center at NYU School of Law

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I. Introduction: The Reality of Citizenship

U.S. citizenship should mean something. The Constitution itself requires no less: by restricting some offices to U.S. citizens,[1] it sends the message that U.S. citizenship is important. Yet the Constitution curiously lacks an explanation of how and why this importance should find expression. This vagueness of purpose continues to afflict U.S. citizenship doctrine in the form of an impoverished vocabulary, which attempts to encompass in one word a legal status, a state of mind, a civic obligation, an immigration benefit, an international legal marking, and a personal virtue.

Citizenship contains two essential aspects. The first is a "functional" aspect: the legal relationship between the individual and the United States. The functional content of U.S. citizenship rests in "alienage distinctions," [2] the differences between the rights and duties of U.S. citizens and those of the most privileged alien group, lawful permanent residents. Congress recently increased this functional content by passing the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the "1996 Act"),[3] which excludes many aliens, including permanent residents, from numerous social welfare programs.[4] The second aspect is nonfunctional: a sense of cultural identity and community that pervades all members of the nation. This attitude of nationhood, which this Note calls "nationality," is no less important to the existence of a nation-state and is intuitively compelling, despite being difficult to define.

This Note argues that functional citizenship and nationality are in fundamental tension in the United States because they are combined in a single concept. As the importance of functional rights reserved to citizens increases, eligible aliens will pursue citizenship not out of a sense of cultural affinity, but as a means of insuring their material future against alienage distinctions. The result of the 1996 Act is a flood of naturalization applications motivated by a desire both to escape current deprivations and to guard against future alienage distinctions. [5] The ensuing emphasis on the functionality of citizenship inhibits the United States's historical interest in stimulating national affection through its concept of membership.

As a remedial measure, this Note prescribes an official decoupling of U.S. citizenship into functional citizenship and nationality. Part II presents the analytical distinction between the two and examines situations in which decoupling has yielded a richer conception of citizenship law. Part III details the incentive structure of current U.S. citizenship law and concludes that it encourages permanent residents to naturalize primarily to secure material benefits.

Part IV then proposes a decoupling of U.S. functional citizenship and nationality to resolve this tension. U.S. citizenship law already implicitly endorses this decoupling and requires only minor changes to make it official and explicit. Part IV also argues that the United States may stimulate American national identity more effectively if nationality is kept free of concerns about material personal rights. Part V concludes by considering the implications of an explicit separation of functional citizenship and nationality.

[]1 See U.S. CONST. art. I, § 2, cl. 2; id. § 3, cl. 3; id. art. II, § 1, cl. 5.

[]2 See, e.g., Bhandari v. First Nat'l Bank of Commerce, 829 F.2d 1343, 1351 n.15 (5th Cir. 1987); Victor C. Romero, Equal Protection Held Hostage: Ransoming the Constitutionality of the Hostage Taking Act, 91 NW. U. L. REV. 573, 607 (1997); Note, The Birthright Citizenship Act: A Threat to Equality, 107 HARV. L. REV. 1026, 1037 (1994). Alienage distinctions differ from distinctions among groups of aliens, such as the different rights of permanent residents and temporary workers or illegal aliens.

[]3 Pub. L. No. 104-193, §§ 400-451, 110 Stat. 2105, 2260-77.

[]4 See id. § 401(c)(1), 110 Stat. at 2262 (excluding aliens from "any grant, contract, loan, professional license, or commercial license provided by an agency of the United States" and "any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit").

[]5 See Sally Jacobs, US Eases Rules for Immigrants with Disabilities, BOSTON GLOBE, Mar. 19, 1997, at A3; Teresa Mears, Fears for Benefits Spur Rush for US Citizenship, BOSTON GLOBE, Mar. 11, 1997, at A3.

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