Introduction

In this chapter, we go under the bonnet of constitutional citizenship by examining how constitutions shape or affect the processes of acquisition or loss of citizenship. The conceptual connection between questions of acquisition and loss and those core issues of constitutional and citizenship theory, which structured the discussion in Chapter 3, is very hard to pin down. Patrick Weil issued a warning about this, arguing that there is often a ‘complete opposition between the mechanism used to attribute nationality to a person and the one used to constitute the nation’ (2008, 185). This suggests taking a precautionary approach to any attempts to read those ideas and concepts across into this chapter. It also reflects the observation that citizenship should be principally seen as ‘an artifact [sic], a creature of government’ (Orgad 2018, 792).

The chapter proceeds thematically. First, we address some examples where constitutional provisions have had an impact on the main modes of acquisition of citizenship (ius soli and ius sanguinis birthright citizenship, along with naturalization), before looking at the topic of dual citizenship. We then look at constitutional provisions on loss of citizenship, before shifting the focus onto a broader discussion of how constitutional principles and norms can impact on acquisition and loss even in the absence of constitutional provisions directly regulating citizenship. By this point in the chapter we can finally begin to see some links between the materials discussed here and the presentation of foundational constitutional principles, including equality and dignity, in Chapter 3. The chapter concludes with a short comment bringing together material focused on campaigns to enhance aspects of the ‘right to a nationality’ via constitutional amendments (and thus to eliminate statelessness), drawing on issues discussed in previous sections. This concluding section also highlights, by way of comparison, another field of campaigning, in the area of gender equality. In some cases, the two sets of campaigns merge together, as in the case of efforts to ensure that mothers and fathers are in the same position to pass their citizenship to their children (whether born within or outside the national territory).

Introduction

The idea of constitutional citizenship demonstrates how a concept of membership can ‘sit’ within state polities, all of which possess some form of written or unwritten, documentary or dispersed, constitution, constitutional law and constitutional principles. Since constitutions often articulate the distinctive ‘ideals’ of the state, this seems to be a good starting point for a mapping of how citizenship and constitutions/constitutional law interact. To do this, we need to prise open the idea of constitutional citizenship, using associated concepts within constitutional and political theory, such as the people, the ‘demos’, constituent power, popular sovereignty, allegiance and loyalty to the state, constitutional identity, equality and dignity. That is the task of this chapter.

Woven through the notes that follow are many examples exploring what constitutional citizenship looks like in the specific circumstances of different constitutional frameworks. The conceptual discussions and exemplary case studies are closely linked in so far as the examples help us to understand how the concepts are evolving. Material is drawn from beyond the canon of liberal and democratic constitutionalism. The proliferation of studies of populist constitutionalism, of authoritarian constitutionalism, and of constitutions and constitutionalism in illiberal polities demands a response in terms of thinking about the role and character of constitutional citizenship in such contexts. In illiberal, or semi-liberal polities, the ‘state is expressly not neutral, privileging a substantive vision of the good, informed by ethnicity, religion or communal morality’ (Thio 2012, 136). We will also discuss a number of examples of illiberal constitutionalism in Chapter 6 from the perspective of populism.

There are certainly challenges and risks involved in opening up the field of enquiry in this way. Looking at constitutions and constitutional law in isolation can give a distorted picture of reality. For instance, the Soviet-era constitutions of the states behind the Iron Curtain were full of references to citizens, democracy and various freedoms, but the reality, because they were one-party states, was quite different (Herzog 2012). Even while transition is underway, a constitution can claim to be ‘democratic’ but not live up to the claim. This was the case with the Constitution of the Federal Republic of Yugoslavia (FRY) (the territorially reduced and short-lived [1992–2003] successor to the Socialist Federal Republic of Yugoslavia [SFRY]), which contained multiple references to democracy, freedoms and the rule of law

I embarked on the task of exploring The People in Question by embracing a widely shared intuition, namely that constitutions and citizenship are closely related in modern states. I then took it into an intellectual space that seemed to be surprisingly sparsely occupied. Hitherto, there have been few in-depth attempts to make sense of the interactions between citizenship and constitutions, or to place those interactions in a wider context. This was a puzzle, which demanded an answer. A second puzzle also formed part of my motivations. Why is it that citizenship is so rarely regulated, in substantive terms, within constitutions themselves? Why is it, as we have seen throughout Part II, that the constitutional substance of citizenship so often reveals itself in ways that are indirect or that present a fragmented picture, so that the pieces need to be assembled from different sources in order construct an intelligible picture? Is citizenship really such a taken-for-granted element of the typical constitutional set-up that it is sufficient for constitution-makers just to refer to it glancingly in the text of the constitution, delegating the task of settling the detailed terms of membership to the various majoritarian or non-majoritarian institutions of the state? And if the latter, how do we choose who should decide? If the task is one of fixing the people, then who but ‘the people’ can complete the task? The problem seems circular in nature.

This unresolved dilemma reinforces one insight that has emerged from pursuing these puzzles about citizenship and constitutions. There is no such thing as a purely descriptive approach to examining the interactions of citizenship and constitutions. This is what I intended to imply by choosing the book title of The People in Question. Even if we treat state membership largely as an artefact of government, the task of describing citizenship and constitutions in the same space remains an exercise in understanding and interpreting those interactions in the context of the claims of citizenship and of constitutionalism as idealized practices. Such a task involves ethical choices, which inevitably have distributional, social and political effects.

It has not been my primary intention at any point to impose my own view about what citizenship ought to encompass and how it should be dealt with by constitutions, about who ought to belong and who ought not, or about who should determine the answers to questions such as these.

Introduction

Throughout Chapter 1, I placed inverted commas around the terms ‘constitutional citizen’ and ‘constitutional citizenship’, in order to suggest that they are terms of art requiring further definition and specification in the particular context in which I am using them. Rainer Forst (2014) has argued that citizenship is a ‘normatively dependent concept’ in the sense that its full meaning only emerges through context and usage and by reference to other principles and concepts, themselves contested. So when we combine citizenship and constitutions or constitutional law, we have to be doubly clear about what we are referring to, and keenly aware that we are combining and potentially comparing two sets of concepts that are rooted in specific legal, political, social and cultural contexts and about which it is accordingly difficult to generalize.

At one level, constitutional citizenship is simply the place where constitutions and citizenship meet. We have already noted in Chapter 1 that scholars, and sometimes judges, assert that the citizen is the core constitutional subject and that the citizen is central to the concept of the modern constitutional state. Another example of this genre comes from Ernst Hirsch Ballin, who asserts that ‘in an era of growing migration and trans-border connectivity, the democratic meaning of citizenship finds its fulfilment within the territoriality of states.’ Indeed, he argues that:

In this book, I will treat this type of claim about the territorial state with a degree of scepticism. Substantial parts of the book recognize that the deterritorialized dimensions of citizenship are just as relevant to understanding the membership relation and even its supposedly constitutional core as are those related to the territorial state. Furthermore, the claim that this constitutional setting can set citizenship ‘free from ethnic privileges and prejudices’ seems to represent an idealism on which the state's performance in relation to citizenship often fails to deliver. But it represents a reasonable starting point for the discussion in this chapter, which explores constitutional citizenship in more detail.

In a classic contribution to understanding citizenship, Verena Stolcke (1997, 61) argued that:

In this part of the book, across three chapters, we will explore how both the practical ‘nuts and bolts’ of the constitutional framework and the ideas of constitutionalism can operate to structure or fill out this controversial issue relating to the people of the state. We will show how these issues play out by exploring three interrelated sets of questions concerned with (a) constitutional ideals and identities; (b) the definition of who are and who are not the citizens; and (c) the challenge of identifying citizenship in terms of (constitutional) rights and duties. These are above all what questions, which enable the study of citizenship as a set of practices: from this thematic approach, what can we discern about the relationship between citizenship and constitutional law? The aim is, through the juxtaposition of conceptual reflection and practical illustration, to pull out a preliminary set of answers to the questions posed in Chapter 1: What does it mean to buttress claims to the legitimacy and authority of national concepts of citizenship (a) by reference to a constitutional concept of the citizens or of ‘the people’ and (b) through the regulation of citizenship (directly or indirectly) via constitutional law?

A passing familiarity with many of the standard works on citizenship in the late 20th and early 21st century will reveal that there are strong parallels between the three-way division adopted in this part of the book and many efforts by scholars to encapsulate the sphere of citizenship. The distinction that Jean Cohen (1999) draws, between the juridical, the political and the identitarian elements of citizenship, was highlighted in Chapter 1. There are many other examples of closely aligned citizenship ‘triptychs’.

Introduction: constitutional rights and citizenship

This final chapter of Part II turns to the topic of the rights associated with citizenship. Here we will need to confront the ambiguous role of the state and of state institutions in relation to citizenship. Significant questions can be raised over whether it is appropriate to equate citizenship rights with constitutional rights, and what conclusions can be drawn from the differing treatment – across the globe – of the various types of constitutional rights, from the civil and the political to the economic and the social. The story of the evolution of citizenship rights highlights the differing ways in which state institutions have been co-opted into processes of struggle and resistance in relation to the enhancement and spread of citizenship rights, sometimes promoting the interests of citizens and citizen groups, and sometimes pushing back. Even though the leitmotiv of modern citizenship is supposed to be equality, it has still been the case that struggles for citizenship rights that are simply asking for equality can endure over many decades before achieving a positive outcome. A good example is the struggle for female suffrage (Ramirez et al 1997), where women ‘citizens’ could be excluded from full citizenship rights precisely because the law did not, in effect, recognize them as full citizens. It is hard, in that sense, to draw a line distinguishing between claims for citizenship and claims for rights. What is more generally true is that for citizens’ rights to be legally enforceable, as opposed to merely aspirational, the institutions of the modern constitutional state – judicial, legislative and executive – will inevitably have a role to play.

Against the backdrop of the uneven and sometimes sparse treatment of citizenship across the world's constitutions, it is interesting to note the ubiquity of rights in those same documents. They appear in literally every constitution in the world, including those inspired by Islamic principles that rely to a much greater extent on the language of duties and community rather than that of rights. Moreover, 38 current constitutions explicitly refer to the ‘rights of citizens’. More generally, the rights provisions of many constitutions are frequently drafted by reference to rights enjoyment by citizens, and with a view to those institutions required to protect those rights (courts, executive, special offices such as Ombudsman, and so on).

Introduction

This chapter presents reflections on how constitutional citizenship is challenged by the practice of populist politics. It includes, among other examples, a short exposition of the remarkable explosion of populist politics in the UK, its move from the fringes to the mainstream and its impact on issues of citizenship, in particular in the context of the referendum on leaving the EU. This discussion is framed by further case studies focused on Canada, the US, Hungary and India.

Following the apparent triumph of liberal and constitutional democracy in the wake of the end of the Cold War and the fall of the Soviet Union, alongside the rise of human rights as both ideological framework and legal practice since the Second World War, some were inclined to suggest that ‘history’ had somehow ended, because the last ideological alternatives to liberalism and capitalism had been eliminated. Indeed, capitalism does seem to have triumphed (for now), but liberalism is not in such good health 30 years after the end of communism. Nationalism, and associated ideologies, have hardly disappeared, and now seem to live on, embedded within many ostensibly liberal democratic constitutional settlements. Astute commentators noticed this rather quickly. In the second decade of the 21st century, many aspects of nationalism have become central topics of political commentary, along with the discourse of ‘populism’, which seems to have become predominant, not just in authoritarian polities, or in Latin American countries with personalized presidential systems and high levels of socioeconomic inequality, but in more or less every polity, including those with well embedded parliamentary systems and liberal constitutional frameworks incorporating multiple checks and balances. We now live, many people have claimed, in an era of populism, or, as it is sometimes called ‘the new populism’. This is also reflected by the extended discussions of populism we can find in the media. However, the controversial topic of populism covers a much wider range of issues than can be discussed in this chapter.

It is ‘modish’ to describe more or less any sort of invocation of ‘the people’ within political discourse as being a manifestation of ‘populism’ (Walker 2019b).