744 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 understood to undermine the liberal state, might that argue for rejecting a norm that would otherwise be rights advancing and for abandoning efforts to establish a right of access to citizenship? This question poses a formidable challenge to liberalism. After decades of bracketing the boundaries of membership in the state,353 liberal theorists are only beginning to engage these issues. Some are now framing citizenship as a right, but are doing so only at the highest level of generality. Because they are still working from the premise that presence will result in social solidarities, the right appears to be largely an extension of earlier understandings. To the extent that that premise no longer holds, however, liberal theorists will have to confront the difficulty of territorial governance that no longer coincides with community boundaries. In the wake of that decoupling, the international right to self-determination supplies a possible liberal counter-value to a putative right to citizenship.354 Unconstrained capacity to draw the boundaries of membership echoes in the logic of self-determination. The connection between self-determination and international norms respecting citizenship practices has yet to be fully explored, perhaps because the emergence of the right to self-determination was historically integrated with the end of colonialism and the self-determination of subordinated groups. Norms defining access to citizenship, by contrast, largely target powerful states. There might thus be a dissonance if self-determination values were invoked to the benefit of developed states. And yet the logic of self-determination seems no less applicable to, say, Germany than to former colonial possessions. International norms mandating access to citizenship in Germany compromise Germany’s capacity to define its people as they might collectively prefer, at least insofar as the German state remains the institutional agent of the “German” people. But other values may weigh more heavily. Unlike immigration control—the elimination of which would not only dilute communal solidarity but also potentially undermine public order and governmental functions355—the prospective threat posed by citizenship access is incremental, long term, and compounded by other forces. The risk to the state is at this point difficult to isolate and resistant to empirical testing. For liberal theorists, that may tip the normative balance in favor of access to citizenship, the rights-advancing consequences of which are immediate and individual. Self-governance and equality norms may also be considered incommensurable, even if their validation undermines the coherence of liberal governance. It is also possible, however, that some liberal theorists will begin to draw back from an international law of citizenship, at least to the extent that mandated citizenship is seen as undermining the state. Such a stance would surely be strongly contested and could draw substantial fire.356 353 Walzer was alone in confronting issues posed by immigration and citizenship. By contrast, John Rawls avoided questions relating to immigration and citizenship by assuming a society into which everyone was born. See JOHN RAWLS, POLITICAL LIBERALISM 12 (1993). 354 See Goldston, supra note 119, at 338; see also Christopher Heath Wellman, Immigration and Freedom of Association, 119 ETHICS 109 (2008). 355 See, e.g., BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 95 (1980) (“the only reason for restricting immigration is to protect the ongoing process of liberal conversation itself ”). 356 Such was the case when two respected academics made the liberal constitutional case against birthright citizenship in the United States. See ROGERS SMITH & PETER SCHUCK, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY (1985). For critical responses, see, for example, Gerald L. Neuman, Back to Dred Scott, 24 SAN DIEGO L. REV. 485 (1987), Joseph Carens, Who Belongs? Theoretical and Legal Questions About Birthright Citizenship in the United States, 37 U. TORONTO L.J. 413 (1987), and David A. Martin, Membership and Consent: Abstract or Organic?, 11 YALE J. INT’L L. 278 (1985). This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms