When I was reading the second set of proofs in late February, I had no idea that the world would be changed so dramatically, and perhaps permanently, by the time my new book was published in June 2020. The People in Question (‘PiQ’) is a survey of the connections between citizenship and constitutions, combined with an attempt to engage with some important contemporary challenges to both citizenship and constitutions.
So first of all PiQ looks at the constitutional foundations of the ideas and practices of citizenship by asking a few core questions:
What are the constitutional ideals and identities which are linked with citizenship?
How do constitutions help to regulate the acquisition and loss of citizenship?
What is the relationship between the related categories of citizenship rights, constitutional rights and human rights?
As to the questions of challenges…. Well, as I understood the world when preparing the manuscript, this seemed quite straightforward. I diagnosed the most important challenges as those of populism and globalisation. At first sight, this combination may seem paradoxical, but in fact it does make sense.
Populists manipulate citizenship status and rights in order to support their political objectives through the re-construction of the (national) people. They close down the discursive space around citizenship, often by forcing changes in constitutional texts and ideas, as well as in citizenship practices. They exploit the tensions inherent within the citizenship principle between democracy, equality, and the idea of a bounded community.
But the realities of social and economic life suggest that viewing states, and their citizenship regimes, as islands, hermetically sealed off each from other, is no longer possible (if it ever was). In many respects, citizenship has moved ‘beyond the state’. We live in a world of many citizenships, at different levels and with a variety of nodes of authority. It’s therefore quite possible for populism and globalisation to operate simultaneously as pressures upon the ‘national’ model of citizenship.
While writing the book, I was tracking ongoing developments such as President Trump’s interventions in the sphere of US citizenship, the citizenship implications of Brexit (inside the UK and elsewhere in the EU27) and the impact of measures such as India’s Citizenship Amendment Act, 2019. I commented in the preface that there are considerable challenges involved in re-building the ship at sea. At a certain point in early 2020, the tracking of contemporary events had to cease. PiQ does not, therefore, comment on the implications of the coronavirus, of the disease to which it gives rise — COVID-19 — and of the consequential pandemic (as social phenomenon and regulatory environment) for the topic of constitutional citizenship.
News reports about the novel coronavirus, which seems to have originated in China, spread across the world in January 2020. They travelled alongside the virus itself, carried by the millions of people who, in normal times, regularly criss-cross the globe. By the end of January 2020, the city of Wuhan and Hubei Province were in lockdown. But cases were starting to emerge in many other countries. Without being widely observed, community transmission was already underway. Yet few realised what the implications could be across the rest of the world until the end of February and the beginning of March, as the first deaths outside China began to be reported. It is hard to fathom, with hindsight, why it took so long for there to be widespread recognition that the only effective steps to retard the progress of the virus, given its capacity to spread amongst those who are asymptomatic, would involve drastic changes in our lifestyles. Then came lockdown.
Since lockdown (which started for most people at some point between the beginning and the end of March), so many aspects of SARS-COV-2 and the political, legal, social, economic and cultural consequences of the steps taken to arrest the spread of the disease and to mitigate the effects of the pandemic have already been subject to detailed analysis. This has included commentary on the citizenship dimensions of the spread of the disease. So far this has mostly focused on one of the pandemic’s most dramatic effects: the drastic reductions in human mobility, both within and across countries, and the travel restrictions (however counterproductive) and ‘stay at home’ advisories and orders which have cemented these reductions. Reductions in human mobility and international trade, along with drastic changes to human behaviour including physical and social distancing, do seem to have slowed the spread of the disease. They have permitted some countries, which are physically isolated, such as Australia and New Zealand, effectively to eliminate new infections. But the steps taken during ‘the emergency’ have had severe and unequally experienced costs in economic terms and certainly raise significant legal doubts in terms of both domestic law and international law, and pose challenges to conventional democratic norms.
This leaves me with one big question, from which a number of smaller questions flow: will my book still be relevant in the post-pandemic world? What insights can flow from persisting with the constitutional analysis of citizenship? Does the description of how citizenship and constitutions intersect and interact still hold in the pandemic and post-pandemic worlds (the latter being, at the time of writing, largely still a matter of speculation)? What adjustments or supplements might it be useful to make to the description and analysis? Given that one of the primary consequences of the pandemic is to convert mobility from being a widely desired aspect of the human condition into a reviled vector of infection, does that upend the model on which much of the book has been constructed?
The idea of constitutional citizenship
To address those questions, let me first outline the book’s contents in a little more detail. The starting point for the argument in PIQ is the claim that citizenship remains a formidable and significant dimension of how we organise human affairs, under the still dominant heading of ‘states’. States are important in the world today, and we can see that especially clearly during the pandemic, as they exercise their regulatory powers and control their borders. States have constitutions, which in turn help to organise the government of societies, with recognised territories and peoples. But here comes a paradox. Although citizenship as we know it today is essentially an artefact of government, what is perhaps surprising is that explicit and detailed regulation of citizenship via constitutional law is relatively unusual across the world. Yet despite the absence of detailed constitutional regulation in many countries (there are exceptions, especially in Latin America), many scholars and judges still act on the premise that constitutions and citizenship are intimately intertwined. In order to show how this type of thinking works, I can cite a short statement by a judge in a case before the English Court of Appeal (G1 v SSHD; para. 43 of the judgment of Lord Justice Laws):
The conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State. They touch the constitution, for they identify the constitution’s participants.
This quotation suggests a method (studying the conditions for acquisition and loss of citizenship), so that we can identify the participants in the constitution (the citizens) and separate them from the non-participants (the non-citizens). This in turn will tell us something about the state.
This looks pleasingly straightforward and unproblematic. In fact, writing a book on ‘constitutional citizenship’ showed that the relationship between citizenship and constitutions throws up many more questions than it does answers. I also found very few precedents in previous academic research that I could follow or adapt. Further exploration from a conceptual perspective had the effect of injecting substantial complexity and a fair degree of uncertainty into my field of enquiry.
For example, the quotation from G1 refers to the ‘nation State’. This does not accurately reflect the UK (where the quotation originates), since a more accurate diagnosis of the UK is that it is a ‘union state’ with multiple nations with separate political authorities, to which certain powers that touch upon citizenship have been devolved (even though there is a single ‘national’ status: British citizenship). And that is before we start discussing the status of Northern Ireland, especially after Brexit. Furthermore, states are often challenged from above as well as below. In many European countries, the relationship between states and their citizens is rendered more complex, as those states operate within wider supranational and global networks of norms established under EU law and human rights law. Some of those norms give rights to citizens which they can exercise against their own and other states, such rights of free movement, all under the heading of EU citizenship. Similar conditions apply in other regions across the globe. Human mobility has also resulted in extensive overlaps between the citizenship regimes of different countries (mixed citizenship families, dual citizenship, etc.). And yet at the same time it is true that citizenship as a membership status has hard edges; this has been the experience of those who have experienced the effects of citizenship deprivation, whether historically (e.g. married women) or more recently (e.g. those associated with ‘foreigner fighters’ in Syria).
In addition, we need to pay close attention to institutional questions which are central to understanding issues of democracy and legitimacy. A state’s constitution and its constitutional law are often seen as offering a special institutional framework, settling key governance and accountability questions and lifting them beyond the realm of ordinary politics (and law). While this might have been expected to include one of the most important political questions that a state must face, namely the question who are its members, in fact we find a patchy constitutional regulation of citizenship, as most questions about who is or is not a citizen (and with what consequences) are settled by the ordinary politics of legislatures, often within the confines set by non-majoritarian institutions such as courts (themselves interpreting constitutional provisions). Since legislatures themselves are elected by citizens, it could be said that the problem becomes essentially circular: why should citizens’ representatives take into consideration the interests of non-citizens when setting the boundaries of citizenship?
In sum, reflecting these conceptual complexities, citizenship law is not a neat conceptual package that answers all the questions which might arise about citizenship status and rights, alongside delivering promised equality between citizens. What emerges instead is that ‘constitutional citizenship’ is oftentimes more a question of symbolism and imagery, rather than hard regulation. Constitutional citizenship, although a useful framework for enquiry, requires a subtle and in-depth investigation if it is to help us better to understand citizenship. More often than not, citizenship law comprises a jumble of norms that have evolved over time, as a result of a variety of internal and external influences, including those that stem from constitutions. Constitutional citizenship is not a closed box, but emerges as a fragmented picture, where the different pieces need to be assembled from a variety of sources in order to construct an intelligible picture. This is the task that PiQ takes on.
Citizenship: hard or soft?
One important reason for the complex relationship between citizenship and constitutional law is that despite the hard edges of citizenship as status, some aspects of citizenship cannot be summarised as reflecting a simple binary divide between ‘in’ and ‘out’ and between citizen and non-citizen. Many citizenship rights, for example, operate on a scale of inclusion and exclusion, reflecting various partial or quasi-citizenship statuses (such as those enjoyed by many long-term residents).
A good example can be taken from pandemic-related measures impacting upon migrants and those without formal citizenship rights. It was widely reported in the media that Portugal was conferring temporary ‘citizenship rights’ upon a group of migrants within the country. On closer inspection, it becomes apparent that the Portuguese migration authorities have issued secondary legislation protecting the situation of those who have pending applications under the Foreigners’ Law or under the Asylum Law, who — after the declaration of a National State of Emergency on 18 March 2020 — could no longer be seen by the relevant authorities in person in order to review their cases. Time stands still on their applications until 30 June 2020 and the measure have simply secured their existing rights as lawfully resident non-citizens, e.g. in relation to access to healthcare, to work and to claim social security benefits. Even those without legal residence status in Portugal have been partially protected, so far as concerns their right to emergency healthcare (including treatment for COVID-19 and maternal and foetal/new born health conditions).
Portugal’s relatively generous and pro-active approach has been highlighted alongside other positive case studies regarding the treatment of migrant workers in Europe. Unfortunately, there are many other cases of restrictive and problematic treatment of migrants by states and by employers, despite the fact that, across the EU27, 13% of key workers are migrants from countries outside the EU. In that sense, although often stigmatised as low skilled workers, they are a resource on whom almost all countries rely. Often they pay the cost. Outside the EU, there is plenty of evidence of migrant workers bearing the brunt of the effects of the pandemic, especially in countries such as India, the Gulf States and Singapore. Although in India, it will be the case that many migrant workers are citizens of the country, having migrated from poorer and rural regions to the cities, in many smaller countries which are heavily dependent on foreign migrant workers, this is not the case. Steve Vertovec has predicted a Singapore-like restrictive future for migrant workers across the world. Such groups are perpetually excluded from achieving long term residence status and from enjoying family reunion. The chimera of acquiring local citizenship is an unattainable dream.
The reason for drawing out this point is to acknowledge that the most salient questions around citizenship and the pandemic may not immediately call our attention back to the constitutional regulation of citizenship or to the challenges that constitutional citizenship faces. Or at least not directly. Look a little closer, however, and we can see that the pandemic contributes to stripping citizenship back to its fundamentals, revealing it to be both an artefact of government and also an omnipresent element of human community, and its organising ethical and social principles. In that sense, any analysis of the ‘people and the pandemic’ should grapple with the inevitable tensions between the symbolic role of the citizen at the heart of constitutionalism and the instrumental behaviour of states and government in relation to citizenship status and citizenship rights.
Whither globalisation?
The globalisation that underpins the claim that national citizenship regimes are never islands, seems at first sight to be on hold. Human mobility is lower than at any point in the recent past. In most parts of the world, passports sit unused in desk drawers. In the United States, it has become significantly more difficult to obtain a new passport during the crisis. In the one place where passports had previously been rendered largely obsolete for most ordinary mobility, namely the Schengen Zone, border-crossings have been restricted, physical borders have been re-erected, travel bans have been put in place, and quarantine regimes enacted. We seem to be not so much ‘beyond the state’, as walled inside it. And when we do eventually break outside the walls of the state, it may be that actual passports (and visas) may be less significant than issues such as ‘immunity status’ (with tendentious proposals for extending the idea of immunity passports beyond the standard palette of immunisations and certificates) or even a willingness to take risks. Furthermore, at a certain point, pandemic-related travel restrictions will encounter the ongoing challenges of climate change and the phenomenon of ‘flight shame’. Is the era of easy and relatively accessible mobility over for ever?
Furthermore, while much ‘mobility of privilege’ may have been stopped, there is still plenty occurring, often of a barely voluntary character. There are migrant worker returns either within countries (as in India) or across national boundaries (as in much of Latin America). There are forced mobilities, such as continued practices of expulsion, especially clear in the United States which has exported/deported part of its infected pool to Guatemala, making up a high percentage of coronavirus infections in Guatemala, as well as cutting off a source of remittances to the country.
I would argue that while globalisation may be reconfigured, but it is not likely to disappear any time soon. While distinctive national models for restricting transmission have emerged, many of them cemented with militaristic and nationalistic rhetoric, the search for scientific solutions in the form of vaccines and drugs involves an international research effort and the global flow of scientific papers. The supply chains for goods and services remain transnational (and have been substantially protected thus far), even if there is some talk about insourcing national production of goods such as pharmaceuticals and personal protective equipment. As regards human mobility, the effects of previous eras of substantial human mobility will be felt for generations to come, even if future generations conduct themselves somewhat differently.
But as with every aspect of the virus, the effects of immobility (or changed patterns of mobility) are experienced by different groups in different ways. Clearly, the closing of borders has had a disproportionate impact upon all mobile populations, including those which are nomadic, such as pastoralists in Africa. These groups, as well as others such as stateless persons, displaced persons, refugees and minorities are often amongst the highly vulnerable people, whose situation is rendered worse by a disease which is exacerbating inequalities (along vectors of race, gender, class, poverty etc.) and reinforcing xenophobia and other hate crimes. The pandemic creates new and enhanced risks of statelessness, especially in parts of the world experiencing geo-political or violent upheaval.
But over time we can expect borders to soften once more and to become more flexible, even though states may take more seriously in the future their responsibility to protect residents and citizens, and new solidarities, both within and across states, will emerge.
The boundaries of membership
The now widespread phenomenon of dual citizenship raised new questions in the face of the crisis. Which government is responsible for consular protection in the form of repatriation flights in such circumstances? What about the rights of citizens and non-citizen permanent residents (often in mixed-status families) to return to ‘their’ country as a family unit. However, there is an emerging consensus, that the pandemic will not lead to the rollback of decades of liberalisation of dual citizenship. The crisis may have little, if any, direct impact upon the building blocks of the acquisition and loss of citizenship. It may, however, diminish the market for citizenship as a ‘luxury good’.
But citizenship is not only a regulatory matter. It is also a question of human sociality. Constitutions often express that sociality through elements that we can term ‘constitutional identity’. The impact of human sociality on citizenship is laid bare when processes of acquisition of citizenship are hampered as a result of COVID-19. For example, in many countries naturalisation processes have been delayed, especially those parts of the process such as citizenship ceremonies, some of which require social acts such as hand-shaking which are impossible at present. The mandatory or advisory wearing of facial coverings to stop the spread of disease can also collide with societal assumptions about what constitutes the good citizen. How can the facial covering in the form of a mask be made mandatory, when the burqa and other face coverings in the name of Islam are still illegal in certain countries, and the wearing of such garments is posed as an obstacle to citizenship? In other cases, birth registration has been delayed by the pandemic, and in cases where birth registration is not comprehensive this obstacle could significantly set back the cause of eliminating statelessness.
The pandemic, governments and citizens
It has been suggested that the coronavirus pandemic has been a gift to authoritarian governments fond of using populist techniques to create the notion of a single people, especially where these techniques shade into forms of nativism which facilitate the scapegoating of outsiders and the stigmatisation of foreigners as vectors of disease. Along these lines, we’ve heard about the Chinese or Wuhan virus from Donald Trump. But others have argued that since overcoming the virus demands reason and science rather than emotional appeals to the people, this may prove fatal to at least some populists in government. The evidence so far is mixed. Some populists, such as those in power in Hungary, have taken advantage of the emergency in order to cement their grip on power. But this is not so much a symptom of populism as a case of actual or candidate autocracies taking a bludgeon to democratic accountability. At the same time, the economic and human impact of the pandemic in the United States and perceptions of Donald Trump’s disastrous handling of it as President seem to be undermining his chances of re-election. In fact, it may simply not be possible to identify a simple relationship between the pandemic and global nationalism.
Responses to the pandemic also suggest a new role for technology, such as contact tracing apps, which may impinge upon recognised privacy and data protection rights. Some might suggest we will move towards a situation of semi-compulsion in relation to such apps which will bring citizenship in many countries perhaps closer to China’s ‘social credit’ notion of modelling the perfect citizen, who contributes to civic virtue while potentially trading in certain individual benefits.
Citizens and Constitutions in Uncertain Times
In sum, arenas of struggle in relation to citizenship around the state and the people are not likely to disappear in either the short or the longer term. Recognising and reversing many of the trends noted here seems to be a minimum ask for a post-pandemic citizenship which respects equality and human dignity, as the most plausible core elements of constitutional citizenship. The sorts of steps demanded for the ‘new normal’ would require measures such as regularisations of informal and undocumented residents, in the interests of their welfare and dignity, and not just for economic reasons.
Beyond the notes set down in this essay, my working assumption is that it is rather too early to identify with precision how the dynamics around the pandemic, and recovery from it, may operate to reconstruct the notion of ‘the people’ and the practices of constitutional citizenship as described and analysed in PiQ. It is too soon to speculate on the longer-term future of ideas of citizenship ‘beyond the state’, whether that stems from the mobility of people or the drift towards supranational or global regulation of issues such as human rights. But vigilance is demanded. Directly or indirectly all of points noted above raise constitutional questions, which go to the heart of how states regulate who are the citizens and what rights (and duties) they have and touch upon on the task of identifying of who are ‘the people’ (in a constitutionalist sense), both within and beyond states. The three questions posed at the beginning still remain highly relevant.
The People in Question has a subtitle: Citizens and Constitutions in Uncertain Times. That we live in uncertain times which place particular demands upon the relationship between citizenship and constitutions was true at the time of writing, has been true for a very long time, and will be true in the future, as we analyse the impact of the crisis through which we are all living. I think, therefore, that there can be little doubt that The People in Question is indeed a book for the pandemic and post-pandemic times. I hope that you, the readers, will agree.
