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American Studies, “the border,” and jus soli:
Reading the Fourteenth Amendment through the Irish citizenship referendum
Introduction: American Studies, “the border,” and jus soli
In 1916, armed insurrectionists revolted against the chief ally of the United States. The rebels
surrendered quickly, but were punished severely: fifteen were executed, and 3500 faced
imprisonment. Curiously, the British government spared one of the rebel leaders, propelling him
to take a central role in an ongoing and ultimately successful campaign to subvert British rule.
Even more curiously, nearly fifty years later, in 1964, President Lyndon B. Johnson welcomed
this aging insurrectionist—who had only abandoned his belief in the use of force against the
British a few years before—to the White House on a state visit. Johnson’s greeting to Eamon de
Valera, by then the President of the Republic of Ireland, immediately suggests why he alone of
the rebels was spared: “‘This is the country of your birth, Mr President . . . this will always be
your home.’”1 Although de Valera, the American-born son of an Irish mother and a Spanish
father, lived in the United States for fewer than three years, both the British courts, and Johnson
after them, understood de Valera to be an American citizen—despite his expatriation, despite his
participation in armed political struggle, and despite his ascent to the leadership of a foreign
government.
Until 2004, the notion that the country of one’s birth determines one’s citizenship had as
powerful a hold in Ireland as it does in the United States, where it is protected by the Fourteenth
Amendment.2 Encoded in the 1922 Constitution of the Irish Free State, and later in the Irish
Nationality and Citizenship Acts of 1935 and 1956, jus soli was, as Gerard Hogan argues, “the
consistent and defining leitmotif of Irish citizenship law since 1922.”3 Nonetheless, jus soli has
recently been removed by referendum from the Irish constitution. Just as the founding of an
independent Ireland was intertwined, through de Valera’s personal history, with American law
and history, so too was this monumental change in the legal borders of the newly prosperous
Ireland of the “Celtic Tiger.” In the debates leading up to this referendum, both the American
legal example, and the historical experience of legal and illegal Irish immigrants in the United
States, figured prominently. This interconnection was mutual, as the revocation of jus soli in
Ireland points to major international changes in migration, citizenship, and borders that affect the
United States, as well as other immigrant nations. In this paper, we discuss both the importance
of American practice for the normative discussions surrounding the removal of jus soli as an
automatic qualification for citizenship in Ireland, and the importance of the Irish debates as an
example for the historical and normative investigation of the foundations of citizenship in the
United States.
Our purpose in examining these issues is twofold. First, it is to address what we see as a
failure, despite the emergence of migration and “the border” as a major subject of American
Studies scholarship, fully to answer recent calls to internationalism within the discipline.4 In
particular, we would like to challenge the prevailing tendency to see the American border as an
isolated and exceptional case. It is our contention that American Studies must understand “the
border” not as a unique dividing line between the United States and the rest of the world, but as
one border within a mutually constitutive global complex of international frontiers. Alongside
American Studies’ traditional focus on “the border,” we contend that it is also necessary to ask
such questions as: How does the American border inform global debates about borders other than
the American border? How does an understanding of those other national boundaries help us to
understand the borders of the United States? What might be the implications of such an enlarged
understanding? Like other aspects of American politics, culture, and society, “the border” takes
on a different aspect when viewed from outside the double frame of American scholarship and
the United States itself.
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Our second aim is to suggest that an enlarged scope of inquiry into “the border” is
desirable not only from a methodological perspective, but in the interest of what the former UN
High Commissioner for Human Rights, Mary Robinson, has called “ethical globalization”: the
harnessing of the powers of globalisation for good—in this case, the influence of the American
example on other countries’ legal and political norms, and on the global flow of people and
capital. Towards these ends, we will focus on a part of the American legal border that has drawn
little notice from American Studies, but which is of significant international import: the doctrine
of jus soli. What we will argue is that the recent elimination of jus soli from the Irish
Constitution, and its steady repeal in other nations, requires a newly invigorated analysis by
Americanists of the doctrine’s place in American history, politics, and culture.
Migration, citizenship, and borders under globalisation: proscription without exclusion
One of the most significant recent turns in the debate surrounding globalisation has been a
heightened understanding of the importance of human migration.5 Globalization entails the
annual migration of millions of people whose movements may be partly attributable to American
actions, but most of whom will never set foot in the United States. This recognition has been
followed, albeit slowly, by an emerging awareness of the need to take migration into account
when discussing globalisation’s ethical and policy dimensions. With an eye towards addressing
this issue, both Robinson and the Nobel Prize-winning economist, Joseph Stiglitz, have noted that
migrants in the current era of globalisation are exposed to anomalously high levels of regulation
vis-à-vis both the present flow of goods and capital. Robinson, in particular, has followed this
observation with the call for a “new language” about migration, both to counteract resistance to
immigration and to combat the xenophobia that migrants face upon crossing national borders.
Political theorists are also increasingly recognizing the problems that migration poses for
traditional political theory. Most political theory has focused on the sovereign nation-state and
the role of citizenship within it. Too many political theorists have followed John Rawls in
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simplifying the theory of justice by considering the “well-ordered society” as “a complete and
closed social system.”6 Others, including communitarians like Michael Walzer, have affirmed
this state-centred emphasis for the consideration of actual states or communities and have
approved of restrictive immigration policies.7 Recently, however, a number of philosophers and
political theorists have begun to consider the international implications of our theories of justice,
including the implications for immigration. A number of theorists have concluded that this
national focus and the restrictive immigration policies it purports to justify cannot be defended
and have advocated open or much less restrictive immigration policies.8
As these developments in political theory make clear, the problem of global borders is
more than just a problem of physical frontiers or access to territory—it is also a problem of legal
and social boundaries and access to citizenship. Migration and citizenship are, of course,
interrelated: many citizenship issues, such as the regulation of naturalization and expatriation,
stem directly from migration, and the overall experiences of immigrants are shaped by the
citizenship regimes, as well as by the immigration laws, of their host countries. Moreover,
historical changes in the legal construction of citizenship have frequently arisen in the wake of
increased immigration or the immigration of “new” populations whose religion, race, or ethnicity
differ from those of the native-born. In the American context, this process has been skilfully
analysed by historians such as Mae M. Ngai, who argues that naturalization laws, as well as
outright proscription, have served as a bar to entry to the United States: “The system of quotas
based on national origin was the first major pillar of the Immigration Act of 1924. The second
was the exclusion of persons ineligible to citizenship.”9 And, as Ngai argues, restrictions on
naturalization did not just limit immigrant entry or political participation: they also curtailed the
economic activities open to immigrants, as states such as California and Washington passed—and
the courts upheld—laws “proscribing agricultural land ownership by aliens ineligible to
citizenship.”10
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The wealth of scholarship on this subject convincingly shows that restrictive
naturalization laws in the United States worked to bolster restrictive immigration policies in the
1920s and in other periods. Thus, if we were to limit our study to the history of the United States,
we might reasonably conclude that there is a dependent relationship between immigration
restriction and citizenship proscription, and that the hidden purpose of the latter is always to
bolster the former. But if we adopt a broader perspective, we may see that the relationship
between the two is not fixed, either in theory or in practice. In theory, it is possible for states to
place onerous restrictions on immigration, yet freely to grant citizenship to the small numbers of
migrants who are permitted to enter. It is also possible for states to accept and even to encourage
immigration, even while severely limiting access to citizenship for immigrants and their children.
One could certainly describe a number of European borders in terms of this second scenario:
“Fortress Europe” does not simply physically exclude foreigners, and there are millions of nonEU nationals living and working in Europe. Many of these immigrants are legally resident—and
many were encouraged to immigrate by their host countries. In Ireland, the government has
deliberately promoted immigration over the past five years, steadily increasing the number of
work permits issued to non-EU nationals from 5,750 in 1999 to 40,504 in 2002.11 While this
might seem small from an American perspective, it must be set against the nation’s small
population—approximately 4 million—and its long history of emigration and population
decline.12
While immigration has actually been encouraged in recent decades by Ireland and certain
other European states, however, in many cases this encouragement has not been accompanied by
the liberalization of citizenship laws.13 Quite the contrary: at the same time that immigration has
increased EU-wide, access to citizenship has been tightened in a number of states, including
Malta, Sweden, and the United Kingdom. To a certain extent, this can be explained by the arrival
of “unwanted” immigrants, but it cannot be said that all, or even the majority, of the immigrants
in Europe came uninvited. In Ireland, non-nationals on work permits exceeded seekers of asylum
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by approximately 4 to 1 in 2002. Based on statistics available for 2004, it is likely that the ratio
will soon be closer to 10 to 1.14 Yet the very same government that expanded the recruitment of
foreign workers also successfully argued in the Supreme Court in 2003 that it could
constitutionally deport the non-citizen parents of a citizen child;15 and subsequently initiated the
citizenship referendum proscribing the constitutional provision of citizenship to the children of
non-citizens (including legal residents).16 This referendum was passed with a nearly 80%
majority.17 As a consequence, there is no longer a single nation in Europe that grants unrestricted
birthright citizenship to people born within its borders.
The Irish citizenship referendum: from jus soli to jus sanguinis
Before the 2004 referendum, Article 2 of the Irish Constitution, enacted by referendum in
accordance with the Good Friday Agreement in 1998 with a vote of more than 94%,18 determined
the citizenship of all children born in Ireland. Based on a straightforward provision of jus soli,
Article 2 states in terms very similar to the Fourteenth Amendment that
It is the entitlement and birthright of every person born in the island of Ireland, which
includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of
all persons otherwise qualified in accordance with law to be citizens of Ireland.19
The referendum proposed by the government in 2004, in contrast, trumped the authority of
Article 2 via the insertion of an amendment to Article 9 that explicitly distinguishes between the
children of citizens and the children of non-citizens. It reads:
Notwithstanding any other provision of this Constitution, a person born in the island of
Ireland, which includes its islands and seas, who does not have, at the time of his or her
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birth, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not
entitled to Irish citizenship or nationality, unless otherwise provided for by law.
While the passage of the referendum did nothing to alter Irish immigration law, then, it
immediately and radically transformed the legal boundaries surrounding citizenship.
The exact long-term implications of the referendum are difficult to gauge, but two
significant changes may be noted. First, the amendment to Article 9 removes the provision of
citizenship to the Irish-born children of non-nationals from its protected place within the
Constitution to the more uncertain sphere of legislation. Henceforth, sitting elected officials will
determine not only the terms under which immigrants can become naturalized citizens—a process
over which the Justice Minister has discretionary power—but also the conditions under which the
children of foreigners are eligible for birthright citizenship.20 During previous periods when
birthright citizenship was determined by legislation rather than Constitutional principle, the
designation of citizenship as a legislative matter had no practical effect, as politicians never
challenged jus soli. But the 2004 referendum was accompanied by proposed legislation limiting
access to birthright citizenship for the children of non-nationals, restricting access to those
children whose parents had resided legally in the state for three of the four years previous to the
birth. The government also specified that time spent on student visas or in the asylum process
would not count as residence, even retroactively. Thus, the proposed legislation virtually
guarantees that there will be a class of children, born in Ireland to legal residents, who have
access to citizenship solely through the naturalization process. Moreover, the removal of
citizenship to the legislative realm also presents the possibility that future governments might
propose more onerous barriers to birthright citizenship for those without a heredity connection to
the nation.
Second, the amendment to Article 9 represents a fundamental philosophical shift in Irish
law from the principle of citizenship based on birth within the territory, to citizenship based on
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blood descent from the citizenry.21 Prior to the amendment, Irish law did employ jus sanguinis
as a device for recognising the citizenship of persons born beyond its borders: due to its emigrant
history, Ireland (unlike the United States) grants citizenship to the foreign-born grandchildren of
citizens, and under certain circumstances even to subsequent generations.22 However, until 2004
Irish law had never used parentage as a basis for the civic exclusion of persons born inside its
own borders. The passage of the referendum marks a sharp break from both this tradition and the
universalism it entails. By imposing a barrier to citizenship that must be crossed only by persons
who are not the descendants of citizens, as Oran Doyle argues, the new Article 9 gives
Constitutional sanction to the granting of legal privilege on the basis of pedigree.23 By tying the
future citizenry more firmly to the citizenry at the time of the referendum, moreover, the
amendment also works to limit temporal and ethnic change in the composition of “the Irish
Nation.”
There are important parallels, then, between the Irish citizenship referendum and
historical efforts to restrict immigration and proscribe citizenship in the United States. Like the
fixing of national immigration quotas in the 1920s to the 1910 and 1890 censuses in the United
States (and accompanying bars to naturalization for excluded nationalities), the referendum can
be seen to work towards “freezing” the nation in time by curtailing the access of “new” ethnic
and racial groups.24 As Brook Thomas suggests, this impulse is more than merely xenophobic,
but also represents a central limitation of classical republicanism: the tendency to define “the
sovereign people . . . as those who founded the republic, a definition making it impossible to
redefine ‘the people’ in light of changing circumstances.”25 In Ireland, where independence is
much more recent than in the United States and lineal descent from the founders of the Republic
is still the source of great political and social capital, this “republican limitation” is felt even more
acutely. Indeed, the politician most associated with the referendum, Minister for Justice,
Equality, and Law Reform Michael McDowell, announces on his web page that he is the
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“Grandson of Eoin MacNeill, co-founder Gaelic League and founder of the Irish Volunteers, who
served as Minister for Finance and Education in the First and Second Dáils.”26
Striking as this parallel is, however, it is equally important to emphasize a key difference
between the contemporary attempt to exclude outsiders from Ireland and its counterpart in
American border history. It is the use in Ireland of citizenship proscription in the absence of
overt border closures to accomplish civic exclusion. As is indicated above, the Irish government
did not propose reducing overall immigration, or even remotely suggest limitations on
immigration based on race or national origin.27 Nor did it propose more than minimal steps
towards tightening Ireland’s borders, even though a number of commentators suggested that even
a small change in this direction—the enforcement of airline regulations barring the travel of
heavily pregnant women, for example—would cut entry numbers. Rather, the government
insisted throughout the referendum campaign that it was not opposed to immigration, insisting
that immigration had “enriched” Ireland’s economy and culture.28 And even within the
government, the strongest impulse towards both policies—looser immigration and tighter
citizenship—came from one party within the ruling coalition, the minority Progressive
Democrats, whose two leading figures are Mary Harney, head of the department that issued the
work permits that brought in the majority of Ireland’s foreign workforce29; and Michael
McDowell, who was the architect not only of the citizenship referendum, but other legislation that
specifically differentiated between the rights and obligations of citizens and non-nationals.30
The government’s official position was explicitly to distinguish between immigration and
citizenship, and to insist that referendum’s purpose was not to keep out immigrants, but to reform
citizenship law. Its argument was that Article 2’s exclusive intended remit had been to provide
constitutional entitlement to Irish citizenship for the children of those caught in quite another
border dispute—the partition of Ireland—and that its passage had created an unintended
Constitutional “loophole” regarding citizenship. Although it is difficult to accept this argument at
face value, the government’s expressed concerns about citizenship may not have been entirely
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disingenuous. A number of the arguments presented in favour of the referendum did derive in
part from republican theories of citizenship, most prominently notions of duty and fear of
corruption. Progressive Democrat TD Fiona O’Malley, for example, drew upon Article 9 of the
Constitution, which requires “Fidelity to the nation and loyalty to the State,” to bolster the
argument that non-nationals needed to “prove” their connection to the nation by a term of
residence before their children could “earn” the right to citizenship.31 Similarly, the Taoiseach
argued that Article 2—and Ireland’s status at the time as Europe’s only nation fully to recognise
jus soli—encouraged fraud among non-EU nationals who might have Irish citizen babies not so
that they could immigrate to Ireland, but so that they could obtain residence in other EU states.32
Particularly after the European Court of Justice offered a preliminary opinion establishing the
right to residence in Great Britain of Man Levette Chen,33 a Chinese national who travelled to
Belfast specifically to have an Irish-born child, the government seized on this possibility as an
affront to the duties of citizenship (and to Ireland’s EU neighbours).34
Nonetheless, it would be naïve to think that immigration—and negative feelings towards
immigrants within the electorate—did not play a role in the politics of the referendum. The
government proposed the referendum at a time when polls showed significant gains for
opposition parties, including Sinn Féin (who subsequently opposed the referendum). Although
the government denied it, it was widely reported that it had received polling data showing that
immigration was a lightning-rod issue for voter discontent.35 Furthermore, the government
scheduled the referendum for the same day as European and local elections, leading opposition
parties such as Labour to charge that the government was “facilitating anyone who wanted to play
the race card in these elections.” Even some members of Fine Gael, which ultimately supported
the referendum, criticized its timing on the same grounds.36 Nonetheless, Fine Gael’s Dublin
candidate for the EU parliament, Gay Mitchell, openly admitted that hostility towards immigrants
within the electorate had motivated his party’s decision not to campaign against the referendum,
but instead to give it passive support.37 Noting a high degree of anger among voters, and that
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voters tended to blame all their misfortunes on immigrants, he somewhat paradoxically argued
that the making of public arguments against the referendum was more likely to fan the flames of
racism than the quiet passage of an amendment restricting immigrants’ rights to citizenship.38
Whether this strategy will have the effect Mitchell intended—and whether the electorate saw the
referendum as a vote on citizenship, rather than immigration—is difficult to gauge. Evidence
from the election suggests otherwise. According to an exit poll taken by RTÉ, 36% of those who
voted in favor of the referendum did so because the “country [is] being exploited by immigrants,”
27% because there are “too many immigrants,” and only 14% because “children should not be
automatically Irish citizens.”39
Moreover, if the language the government employed in calling for the referendum
appealed to enduring notions of republican citizenship, it also explicitly linked the presence of
immigrants to two of Ireland’s most pressing contemporary political issues: the crisis in the
healthcare system and widespread political corruption. In making its initial case for the need for
a referendum, the government alleged that foreign women presenting late in pregnancy in order to
have citizen children had overwhelmed the Dublin maternity hospitals, provoking their Masters to
demand the change. Although this charge was subsequently discredited,40 it served to divert
attention from the government’s extremely unpopular pursuit of maternity and emergency
closures within regional hospitals,41 which erupted into a political crisis in 2002 when a
premature baby died after her mother was refused admittance to Monaghan General Hospital.42
Furthermore, the government’s association of migrants with health risks facilitated the spread of a
medicalized language of immigrant danger that Alan Kraut has described in the American context
as the “double helix of health and fear.”43 Indeed, this link was seized upon by the “Stormfront
White Nationalist Community,” whose website recounted the “minutes of a meeting between
Michael McDowell and two of the masters [in which] ‘Dr Geary said the high rate of infectious
diseases among these groups has huge cost implications for the maternity hospitals [and that] it
was surprising that there had not been a major catastrophe within the maternity services as
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yet.’”44 Seen in this context, claims by the Health Minister Micheál Martin and the Progressive
Democrats that citizenship proscription would prevent infant and maternal mortalities took on a
clear political aspect.45 The government’s frequent appeals to “citizenship tourism,”
“exploitation,” and “abuse,” moreover, also served to divert attention away from the highly
publicized corruption enquiries into the activities of several members of the ruling Fianna Fail
party. By employing a language that fused “fraud” and “foreigner” in the public discourse, the
government attempted to divert anger and attention away from corruption among its own ranks,
and towards immigrant “others.”
Immigration as insourcing: differential citizenship and the dual workforce
Cynical as the government’s appeal to anti-immigrant sentiment may have been, it did not
amount to restrictionism per se. The government’s insistence on the benefits of some forms of
migration, and its refusal to curtail the issuance of work permits, both suggest that it did
genuinely believe that immigration would have tangible benefits beyond the election. While it is
tempting to dismiss the government’s seemingly incommensurable position as either ironic or
hypocritical—as many commentators did—it is more useful to examine what they might have
hoped to gain from lowering legal barriers to entry while simultaneously raising legal obstacles to
citizenship.
To answer this question, it is first necessary to examine what kind of immigration was
facilitated by the government’s immigration policy on the eve of the referendum. Here it is
instructive to compare Irish immigration to its American counterpart. First, it is dominated by
temporary immigration. Unlike in the United States, the vast majority of Ireland’s immigrant
workers are work permit holders and students, who may work 20 hours per week (“full-time
during the university holidays”) and who comprise a significant workforce in their own right,
particularly in Dublin.46 Second, Irish immigration is dominated by contract labour: unlike Green
Cards, Irish work permits are issued to employers, rather than directly to immigrants, and do not
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permit workers to change jobs without securing a new work permit first.47 There is no legal
framework for permanent economic immigration to Ireland, and no equivalent to the “visa
lottery.”48 Prospective immigrants thus have three choices: get a temporary work permit and
hope that it will be renewed; marry an Irish or EEA national; or claim asylum. Until they have
successfully completed the lengthy and highly uncertain legal process required to achieve
recognition as refugees, however, seekers of asylum are banned from paid employment or thirdlevel education.49 In effect, the status of the vast majority of Ireland’s immigrant workforce is
more akin to that of migrant agricultural labourers—or, more optimistically, to the holders of TN1 (Free Trade) visas—than it is to permanent resident aliens in the United States.
The different legal framework surrounding immigration in Ireland requires us to reassess
not only the relationship between citizenship proscription and immigration restriction, then, but
also the economic dimensions of that relationship. In the American context, citizenship
proscription and immigration restriction have both primarily been conceived and analysed in
protectionist terms—as a means of preventing competition from immigrants by keeping them out
and by limiting their access to economic resources and activities. Yet protectionism is only one
potential economic goal of citizenship proscription. As an adjunct to increased migration—rather
than a barrier to it—citizenship proscription has another possible motive (and result): increased
competition for jobs and wages. Additionally, in combination with increased migration,
citizenship proscription has the capacity not just to increase competition, but also to distort it by
undermining the regulatory framework and institutions that are designed to ensure its fairness.
The joint rise of the temporary work permits system in Ireland in conjunction with citizenship
proscription has the potential, thus, to facilitate the emergence of two workforces: one comprised
of workers who enjoy the full economic benefits of citizenship, and one comprised of “insourced”
immigrants who have only minimal recourse even to basic employment protections such as the
right to change jobs.
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This might seem like a tendentious reading of the current circumstances. Yet, it is lent
plausibility on several fronts. The first is that the rights of non-citizens are not equal to those of
citizens. Although, as sociologist Yasemin Nohoglu Soysal argues, “[i]nternational conventions
and charters . . . oblige nation-states not to make distinctions on the grounds of nationality in
granting civil, social, and political rights,”50 the Irish Constitution (like many other national
constitutions) does restrict certain rights and protections to citizens.51 This is particularly evident
in the case of political rights—although foreign nationals residing in Ireland can vote and run for
office at the local level, they cannot vote in national elections or referenda. There is also
evidence that non-nationals are less likely to feel represented by or to join political parties,
particularly mainstream parties.52 This places non-citizens at an economic disadvantage in terms
of representation at pay negotiations, access to redress for discrimination or wrongful dismissal,
and in a range of other regards.53
Second, the outcome suggested above is not contradicted by the stated ideology of
prominent members of the government. Michael McDowell, in particular, has been unapologetic
in embracing the economic benefits of an extreme form of competition, and even inequality itself.
In an interview with the Irish Catholic during the referendum, he said that “A dynamic liberal
economy like ours . . . demands flexibility and inequality in some respects to function.”54
Third, an increased reliance on migrant labour accords with some of the government’s
central policy directives: checking inflation (which gained Ireland the censure of the EU in the
late 1990s), and maintaining low levels of taxation. The tremendous growth of the Irish economy
in the past decade has also seen a correspondingly rapid rise in wages. Although this rise has
provided the government with just cause for satisfaction, it also caused it concern by raising the
twin spectres of inflation and protracted, expensive demands for further pay increases. Migrant
labour addresses both of these issues: the recruitment of 5,000 Filipino nurses, for example,
averted a near-catastrophic labour shortage that threatened to cripple the health service. It did so,
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more importantly, while limiting expansionary or inflationary alternatives such as further
increases in outlay for the pay, training, and recruitment of Irish or EU nurses.
Fourth, although it eagerly argued for the economic benefits of citizenship proscription
on the basis that it would discourage asylum seekers—“people from Nigeria [and] Moldovia
[sic],” as the Taoiseach put it55—from coming to Ireland and tying up resources—the government
refused to comment on how the referendum would affect non-national workers. As Martin
insisted, “this isn’t about migrant workers.”56 Nonetheless, the amendment clearly affects
immigrant workers: the children of work permit holders will not be citizens by birth unless their
parents meet eligibility requirements, and the children of non-national students will be completely
ineligible for birthright citizenship. The referendum may also have broader effects on the
recruitment and length of stay of immigrant workers. According to the Irish Times, the General
Secretary of the Irish Nurses Organisation (INO), Liam Doran, “said evidence was mounting that
Filipino nurses had become disenchanted with Ireland and were now leaving for better paid jobs
in countries such as the US, Australia, and the Middle East. He said that while there were some
4,200 Filipino nurses working in the Republic, some 800 had already left.”57 Wages and working
conditions were likely the most important causes of this exodus. But the government’s initial
resistance to providing visas to nurses’ spouses also played a part, and it is possible that the
referendum will have a similar effect.
This refusal to assess how the referendum would affect immigrant workers suggests a
very different purpose than that suggested by the government’s appeals to “loyalty”: the urge to
make the temporary workforce more temporary by severing one of emotional and legal ties—the
birth of a citizen child—that might make temporary workers feel a “connection” to Ireland. Once
again, this explanation may seem tendentious. Nonetheless, its plausibility is bolstered by
comments and actions that suggest that certain members of the ruling coalition see immigrant
workers—even those recruited by the government—as permanently foreign. When pressed on
the referendum’s impact on the children of Filipino nurses, for example, Fianna Fáil candidate for
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the European Parliament Jim McDaid declared that, “they are Filipino citizens, protected by
Filipino law.”58 Moreover, the Department of Justice has treated the families of legal migrant
workers with suspicion, making it difficult for the parents of foreign doctors to secure even
temporary visitor visas.59
If there is a primary economic lesson from American history that does apply here, we
would suggest that it is not the lesson of protectionism offered by the broad history of
immigration restriction. Rather, it is the evidence offered by African American and Native
American history that shows how differential citizenship provision can contribute to economic
inequality not just by barring certain groups from desirable occupations, but also by coercing
them into undesirable occupations and working conditions. As is well known, efforts to undercut
the Fourteenth and Fifteenth Amendments in the post-Reconstruction South stemmed not from
racism alone, but from white planters’ desire to maintain economic hegemony. 60 By keeping
them from the ballot box, and just as importantly from the courts, Southern white elites kept
African Americans (and, to a lesser degree, poor whites) from challenging laws that bound them
to the land and kept them in agricultural work. Similarly, as Daniel Vickers’ fascinating study of
the 17th and18th-century whaling industry shows, English Nantucketers used the privileges of
citizenship—judiciary and legislative—to coerce of Native Americans, in the midst of a labour
shortage, into dangerous, hard work that Englishmen did not want to do themselves but that was
necessary to their economic survival.61 In both cases—and in the case of immigration policies
like the Bracero programme that sanctioned the use of temporary workers ineligible for
permanent residence or citizenship—citizenship proscription served not to prevent “aliens” from
working, but to create and maintain a dual and subjugated workforce.
Of course, there are essential differences between these examples and the current
situation in Ireland. Foreign workers do not come to Ireland by force. They do so because they
are poor, and their poverty guarantees that they will keep coming to Ireland even if they know
that they may be sent back to their home countries at any time; even if they lack access to the
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privileges of citizenship; even if citizenship proscription places them at a distinct economic
disadvantage; and even if there is the very real possibility that their Irish-born children will face
the same hurdles. This does not mean that this is a desirable outcome. Even in partial form, the
scenario posed by immigrant “insourcing” raises one of the central ethical questions surrounding
globalization: whether or not it is acceptable for wealthy nations to impose policies and
conditions upon the citizens of poor countries that it would not normally impose upon their own
people.62 Immigration may not solve the problem of global inequality. But if, as citizens of
nations that have benefited from globalization, we are to rely on immigrant labour, we must make
sure that that labour is not coerced. One of the ways that we can do that is to give immigrants full
access to the protections of citizenship—not only in the United States, but also within the borders
of the nations in which our economy is intertwined.
Jus solis: a ‘dead zone’ in American studies
Without doubt, the past decades have seen the emergence of a newly energized inquiry into the
legal and political boundaries surrounding American citizenship. In the disciplines of history and
literature, a large and insightful body of scholarship has emerged that reveals, in sharp relief, the
limits placed on the full civic participation of African Americans, Native Americans, women, and
both naturalised and “unnaturalisable” immigrants.63 This is paralleled in the social sciences,
most notably in the work of Rogers M. Smith.64 Smith’s insistence on the historical centrality of
ideologies other than liberalism or republicanism provides a new avenue for understanding how
politics and the law have mutually reinforced civic exclusion: “American political actors have
always promoted civic ideologies that blend liberal, democratic republican, and inegalitarian
ascriptive elements,” he writes, “in various combinations designed to be politically popular.”65
For all that it reveals, however, the current literature is not impervious to criticism. As
Thomas suggests, one of the strengths of recent American studies scholarship on law and
citizenship is also its greatest weakness: its emphasis on “the law’s power to repress,” at the
17
expense of its capacity to “generate possibilities.”66 This disproportionate emphasis is evident in
the case of jus soli, which Smith characterised in Civil Ideals as an “ascriptive anomaly in
America’s titularly consensual laws of membership” that, like other “inegalitarian ascriptive
principles,” assigns “people to places in hereditary hierarchical orders.” 67 Smith’s condemnation
of territorial birthright citizenship in Civic Ideals follows upon his earlier argument, outlined in
his collaborative work with Peter Schuck, that the Fourteenth Amendment should correctly be
interpreted as only protecting the birthright citizenship of those persons whose parents met the
criterion of mutual consent between the individual and the state—and not the children of illegal
aliens.68 Emphasising the purported absence of immigration restriction before the 1870s, Smith
and Schuck argued that the drafters of the Fourteenth Amendment could not have envisioned a
world in which people obtained citizenship due to their parents’ illegal entry into the United
States, or they would have placed limitations on citizenship obtained in this way.
Smith and Schuck’s argument for citizenship by consent—one might call it jus
consensus—has provoked a robust critical response from legal scholars, most notably Gerald L.
Neuman.69 Neuman convincingly undermines Smith and Schuck’s position on historical and
policy grounds. He shows that, before Reconstruction, the United States did not have “open
borders”: state and federal law restricted the immigration of paupers, the physically infirm,
convicts, and, after 1808, illegally imported slaves. Nonetheless, the framers of the Fourteenth
Amendment did not seek to exclude from citizenship anyone who descended from these “illegal”
entrants. Furthermore, Neuman argues, the adoption of Smith and Schuck’s interpretation—and
the resulting denial of citizenship to the children of undocumented aliens—would entail great
costs. These “include the blighting of the children’s lives and the harm to U.S. society and values
that would result from the creation of a hereditary undocumented caste;” and the possible
emergence of a calculated “two-track immigration regime, under which some immigrants would
be admitted as lawful permanent residents on a naturalization track and others would be induced
to reside unlawfully and threatened with a sufficient risk of deportation to render them docile and
18
to avoid the applicability of the amended citizenship clause.” “In a global environment of
overpopulation and Third World underdevelopment,” Neuman concludes, such developments
“could transform the United States into precisely the sort of society that the Fourteenth
Amendment sought to prevent.”70
Without recounting Neuman’s prescient argument in full, we would like to make a few
additional observations. The first is that Smith’s emphasis on the feudal and ascriptive origins of
jus soli overlooks its revolutionary adaptation within American law: while British law in the
eighteenth century recognised both jus soli and jus sanguinis for the children and grandchildren of
subjects, in the United States jus soli was immediately stripped of this tie to heredity in favour of
a strict territorial requirement. The main purpose of this, as Supreme Court Chief Justice William
Howard Taft later suggested, was to prevent the descendants of loyalist absconders from claiming
American citizenship:
It was natural that [Congress] should wish to restrict the English provision [of jus
sanguinis] because at the time that this phrase was adopted there were doubtless
many foreign-born children of persons who were citizens of the seceding colonies
with respect to whose fathers there was a natural doubt whether they intended to
claim or enjoy American citizenship or indeed were entitled to it. The last provision
of the Act of 1790 manifested this disposition to exclude from the operation of the
Act those who were citizens or subjects in the States during the Revolution and had
been proscribed by their legislatures. It is not too much to say, therefore, that
Congress at that time attached more importance to actual residence in the United
States as indicating . . . a basis for citizenship than it did to descent from those who
had been born citizens of the colonies or of the states before the Constitution.71
19
There are certainly repressive aspects at work here, as the Act deliberately excluded those singled
out for proscription by the revolutionary authorities—just as Sections 2 and 3 of the Fourteenth
Amendment prohibited from officeholding, and excluded from the calculation of “the basis of
representation,” citizens who had “engaged in insurrection or rebellion.” Nonetheless, the
repression entailed within this construction of jus soli is of a revolutionary, rather than a feudal
sort, and aims to diminish hereditary privileges even as it recognises rights of birth.
Our second objection to Smith’s reading of jus soli is that, although it appeals to the
history of international jurisprudence, it fails properly to recognise how citizenship is regulated in
national contexts outside of the United States. As a radical utopian possibility, the consensus
ideal Smith proposes in Civic Ideals is certainly appealing. Nonetheless, the primary citizenship
laws of all nations are based not on consent, but birth: on jus soli, jus sanguinis, or a combination
of the two. The only exception is the Vatican. With this in mind, it is necessary to revisit the
question of what is constituted by an “ascriptive inegalitarian principle,” and to ask whether jus
soli is ascriptive and egalitarian, or merely ascriptive. As the authors of the 1790 Act realised, all
birthright entitlements do not have the same implications vis-à-vis equality. What makes
ascription inegalitarian is not that entitlements are granted at birth, but that they are granted
unequally: in other words, when the circumstances of birth are used to distinguish between those
who possess rights, and those who do not. Moreover, some forms of ascriptive distinction are
more pernicious than others: distinctions based on pedigree, for example, are arguably more
harmful than distinctions based on the accidental circumstances of birth (e.g., time or place). A
policy providing that, “all children born after 2004 have the right to free health care” would
discriminate against persons born before that date, but it would be less pernicious than a policy
limiting health care to persons whose parents are literate, or who are members of a particular
racial group.
It might be objected that jus soli is inegalitarian insofar as it excludes and treats
differently those born outside a particular national jurisdiction. But this problem extends well
20
beyond the question of how citizenship is regulated to the question of citizenship per se. As
anyone who has tried to get a Vatican passport can verify, the conversion to a consensual model
of citizenship would not solve the problem of exclusion—only the abolition of national
citizenship would do that. And jus soli does not necessarily have to be limited to persons born
within a state’s borders. Indeed, as the Irish example demonstrates, this is not just a theoretical
possibility: Article 2 grants birthright territorial nationality not just to every person born in the
Republic, but to “every person born in the island of Ireland.” As this wording suggests, this
entitlement is based on a utopian notion of the Irish Nation that, until superseded by Article 9,
derived not from heredity but territory—a notion that the referendum also challenges. It might
also be objected that jus soli contributes to the inferior and repressive treatment of naturalized
citizens, such as the constitutional limitation of Presidential election to native-born citizens. But
this repression does not necessarily derive from jus soli, but from the strength or weakness of the
laws governing the rights of naturalized citizens—the Fourteenth Amendment itself requires the
equal treatment of “natural” and “naturalized” citizens.72 As a corollary, it should be noted that
other jus soli nations do not prohibit the foreign-born from holding high office, as de Valera’s
career shows. Nor is de Valera’s story exceptional: a number of states that recognize jus soli
have had foreign-born heads of state, including the first Prime Minister of Canada, Sir John A.
MacDonald. That Italian-born Sonia Gandhi did not accept the position of Prime Minister is a
reflection of the political limitations faced by naturalized citizens in India, but she was not
prohibited from doing so by law.73
Smith’s characterization of jus soli as an ascriptive, inegalitarian principle must be reevaluated both from the practicalities of what is feasible, given the constitutional history of the
countries under discussion and the abstract normative principles we use to evaluate practical
policy. Even if a consensual model of citizenship would have the best effects, we may have to
settle for a solution that is second best: in this case a constitutionally protected right to full
citizenship based on something other than blood or lineage. The removal of unrestricted jus soli
21
as a determination of citizenship, and the introduction of some principle of jus sanguinis, in
reality removes rights and benefits from an identifiable group of people who are very likely to be
the children of those in the worst off position in society and removes from their non-citizen
families one of their best chances of bettering their own condition and eventually becoming full
citizens. A reduction in rights for the poorest and most legally and economically disadvantaged
people in society cannot possibly be advantageous for them.
As troubling as Smith’s disproportionate emphasis on jus soli’s power to repress is the
generalised absence, within American Studies if not within legal studies, of comparable
assessments of its potentially egalitarian or liberating aspects. Within the primary constituent
disciplines of American Studies, very few scholars aside from Thomas have followed Neuman’s
lead.74 It is perhaps too much to ask American Studies to take on a cheerleading role for jus soli.
Yet, it is to be expected that, within the hundreds of articles and books written each year on
virtually every conceivable aspect of immigrant history and life, at least some would specifically
analyse how the provision of territorial birthright citizenship has affected the economic, social,
political, and cultural life of the native-born children of immigrants and their parents; how jus soli
has affected relations between immigrant families and their longer-established counterparts; how
its establishment has influenced other areas of immigration law, such as the prioritisation of
family unification; or how the provision of jus soli in the United States has affected the legal and
political construction of immigration and citizenship in other countries. Yet, there is a notable
paucity of works in American Studies of this sort, which can be summarised by two examples:
first, the vastness of the scholarship on the Fourteenth Amendment that relates to Plessy v.
Ferguson versus the virtually nonexistent literature on US v. Wong Kim Ark (1898, 169 U.S.
649), described by Neuman as “a pillar of American citizenship law”;75 and second, the lack even
of a keyword entry for jus soli within the pre-eminent index of scholarly literature in American
Studies, ABC-Clio’s America History and Life.
22
Finally, it could also be charged that the general absence of jus soli from American
Studies scholarship has contributed to misunderstandings about what it actually entails. The
noted historian Linda Kerber, for example, recently offered an analysis of Nguyen vs. INS
(2001). In this case, the Supreme Court decided that the adult, resident alien, foreign-born son
(Tuan Anh Nguyen) of a US citizen father (Joseph Boulais) and a Vietnamese mother could be
deported for a felony sexual assault conviction.76 As Kerber notes, if Nguyen’s mother had been
American, or his parents had been married, his citizenship would have been “automatically”
conferred at birth—but as his father failed to meet the requirements for declaring Nguyen’s
American citizenship before the age of majority, he never became an American citizen.77 Kerber
argues that the Court’s decision undermined the Fourteenth Amendment’s birthright citizenship
clause, because it refused to overturn provisions that require American men with foreign-born
children to meet a higher burden of proof than women must to obtain American citizenship for
their children. She concludes, “the deep-rooted belief that women are likely to be tricksters, and
that men should be able to pick and choose for which of their children they will be responsible,
still infects the integrity of American law.”78
Kerber is right that this differential standard of proof is “problematic.” Nonetheless,
although Nguyen does seem to “deny . . . equal protection of the laws” insofar as it sanctions the
differential treatment of men and women who are the parents of foreign-born children, it does not
necessarily infringe upon the Fourteenth Amendment’s provisions for the acquisition of
citizenship. This is because the Fourteenth Amendment does not actually protect the “rights of
citizenship to the foreign-born descendants of native-born citizens”—or any other forms of
citizenship based on heredity.79 That is a matter for legislation, which has protected it, but only in
limited circumstances, since 1790, and which may yet grant citizenship equally to the children of
expatriate fathers.80 In part, this confusion stems from Kerber’s use of the term “birthright
citizenship,” which does not distinguish between jus soli and jus sanguinis, but assumes that all
forms of birthright citizenship are equal, equally protected, and equally desirable. This is
23
problematic, because Nguyen is clearly a case about jus sanguinis, and as such presents different
analytical questions than jus soli. Moreover, these two categories of “birthright citizenship” are
radically different, and to defend one or the other is to support radically different principles.
Indeed, while there might be legitimate arguments on behalf of jus sanguinis for the children of
emigrants, it also could be argued that it is a good thing, from the perspective of equality, that the
Fourteenth Amendment does not recognise hereditary privilege in the granting of citizenship. On
this point, we must again concur with Neuman that “U.S. citizenship isn’t racial,” and suggest
that this point is not incidental, but fundamental to understanding the case.
Conclusion: why jus soli matters
Why, then, should American Studies reinvigorate the study and defence of jus soli? The first
answer is that the need for an ethical response to globalization demands it. If we are even slightly
convinced by arguments against the overweening global power of American corporations, or by
Stiglitz’s trenchant critique of the International Monetary Fund and other American-influenced
public bodies,81 then we must take an interest not just in migrations across the American border,
but in global migrations across non-American borders—particularly the borders of nations like
Ireland with a high degree of economic and political interdependence with the United States. In
so doing, we must be sure to understand how citizenship, like immigration policy, creates borders
between the global haves and the global have-nots. Just as the trade policies and farm subsidies
of the European Union are relevant for an understanding of the ethical dimensions of U.S. trade
policy, so the citizenship regulations of European Union states are relevant for the ethical
consideration of U.S. citizenship regulation. This means stepping “outside the frame” of
American Studies, which treats jus soli as an invisible, inevitable right, and recognising that it is
neither inevitable nor without tangible implications. If nothing else, more comprehensive
research on jus soli’s historical role in American life will provide comparative data to
international scholars and advocates working within less equitable citizenship frameworks. As
24
Jurgen Habermas argues, arguments for liberalizing immigration and citizenship regimes
worldwide can increasingly be made in a developing global public sphere.82
The Irish citizenship referendum suggests that what happens in American scholarship
does have an impact on what happens in the rest of the world. Many of the referendum’s most
vociferous critics came from the academic legal community. In large part, their arguments
pertained to universal or to specifically Irish concerns: the danger of hastily changing the Irish
Constitution, the undesirability of affording privilege to pedigree, and the risk of undermining the
Northern Ireland peace process.83 Yet, perhaps surprisingly, many of the referendum’s legal
critics specifically appealed to American law and legal thought, including Aisling Reidy, Director
of the Irish Council for Civil Liberties, and Cathryn Costello, Senior Research Fellow in Public
and EC Law at Worcester College, Oxford, who explicitly drew upon both US v Wong Kim Ark
and upon Neuman’s writings in her critique of the referendum.84 Indeed, at a time when the
United States government has ceased, in the minds of many international commentators, to be a
leader on matters of global justice, American jurisprudence provided not just examples but
inspiration to the referendum’s critics. Citing Ronald Dworkin’s phrase that constitutions are
documents “of principle” and thus should constitute the highest aspirations of the state, barrister
and law lecturer Neville Cox made this passionate plea for the rejection of the referendum: “I
would wish that like Eleanor Roosevelt as she worked to create a Human Rights language for the
world we would be able to say ‘Save us from ourselves and show us a vision of a world made
new.’”85
In contrast to the passionate criticism of Ireland’s academic lawyers, however, scholars in
the humanities and social sciences contributed little by way of organised resistance to the
referendum.86 This relative silence cannot be attributed to a generalised lack of political
engagement on the part of Irish academics: its historians, for example, have taken a leading role
in legal and political campaigns for heritage preservation. Rather, it seems that scholars in the
humanities and social sciences did not see the referendum as “their battle.” One of the likely
25
reasons for this is that scholars in the humanities and social sciences lacked a body of scholarship
on jus soli comparable to that available to legal scholars. It is also attributable to the fact that
academic law has taken internationalism seriously for longer than have American Studies or its
constituent disciplines. One of the goals of internationalising American Studies should be to
work towards an international scholarly environment in which American Studies scholarship is as
accessible—and as inspiring—as American legal thought.
The second reason that we should reconsider jus soli is that it is not unassailable in the
United States. Over the past ten years, every Congress—including the current one—has seen the
introduction of amendments proposing citizenship proscription for the children of some
immigrants.87 Although these measures have been unsuccessful so far, in the age of the USA
Patriot Act there are no guarantees that even as entrenched a principle as jus soli will persist.
Similarly vulnerable is the notion of permanence in immigration that, with certain exceptions,
underpins the history of the American border. Ireland’s massive turn to temporary migrant labour
has an American parallel in the Bush Administration’s proposal for the large-scale issuing of
limited-term visas, which comes on the heels of a number of temporary visa programmes for
skilled workers in the past decades. Taken in the context of guest worker programmes in other
parts of Europe and the Middle East, what this suggests is that the long era of permanent
migration—and the long-term benefits to migrants that guarantees of permanence can provide—
may be coming to an end. Revocations of jus soli only hasten this change, and exacerbate its
effects. Smith notwithstanding, such revocations are not made for the sake of a more egalitarian,
consensual alternative. Rather, as can be seen from what has happened in Ireland, Australia,
Britain, France, Malta, Sweden, and other democratic countries, revocations of jus soli no longer
take place, as they did following the French Revolution, in the context of movements against
feudal privilege. Rather, they take place within the context of inegalitarian campaigns to
discourage permanence, to diminish rights, and to institute “caste division.”88
26
1
Wesley Boyd, “An Irishman’s Diary,” Irish Times May 22, 2004, 19.
2
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.”
3
Gerard Hogan, “Citizenship and the Constitution: 1922 to Date,” at conference on The
Citizenship Referendum: Implications for the Constitution and Human Rights, Trinity College
Dublin, 22 May 2004, 6. Article 3 of the 1922 Constitution states: “Every person, without
distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State at the time of the
coming into operation of this Constitution, who was born in Ireland or either of whose parents
was born in Ireland or who has been ordinarily resident in the area of the jurisdiction of the Irish
Free State and shall within the limits of the jurisdiction of the Irish Free State enjoy the privileges
and be subject to the obligations of such citizenship.” The text is available at
http://www.ucc.ie/celt/online/E900003-004/. The Irish Nationality and Citizenship Act of 1956
(http://www.irishstatutebook.ie/ZZA26Y1956.html), Section 6 (1), states: “Every person born in
Ireland is an Irish citizen from birth.” See also Irish Nationality and Citizenship Act of 1935,
http://www.irishstatutebook.ie/1935_13.html.
4
See, e.g., “2004 American Studies Association International Initiative,”
http://www.georgetown.edu/crossroads/AmericanStudiesAssn/annualmeeting/ii.htm; Thomas
Bender, “The LaPietra Report: A Report to the Profession,”
http://www.oah.org/activities/lapietra/final.html, 2000.
5
See, e.g., Timothy J. Hatton and Jeffrey G. Williamson, The Age of Mass Migration: Causes
and Economic Impact (New York: Oxford University Press, 1998); Kevin O’Rourke and Jeffrey
G. Williamson, Globalization and History: The Evolution of a Nineteenth-Century Atlantic
Economy (Cambridge, Mass.: MIT Press, 1999). On the need for political theorists to reconsider
migration, see Seyla Benhabib, ‘Citizens, Residents, and Aliens in a Changing World: Political
Membership in the Global Era’, Social Research, Vol. 66, No. 3, Fall 1999; Brian Barry and
27
Robert E. Goodin, eds., Free Movement, (University Park, PA: University of Pennsylvania Press,
1992).
6
John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 41.
7
See Michael Walzer, Spheres of Justice, (New York: Basic Books, 1983).
8
See, e.g., Benhabib; Joseph H. Carens, ‘Migration and morality: a liberal egalitarian
perspective’ and other contributors to Barry and Goodin.
9
See Mae M. Ngai, “The Architecture of Race in American Immigration Law: A Reexamination
of the Immigration Act of 1924,” Journal of American History vol. 86, no. 1 (1999), para. 36.
Emphasis added.
10
Ngai, “Architecture of Race,” para. 46. See also Gary Gerstle, “Liberty, Coercion, and the
Making of Americans,” Journal of American History (September 1997), pp. 524-558.
11
See Martin Ruhs, “Emerging Trends and Patterns in the Immigration and Employment of Non-
EU Nationals in Ireland: What the Data Reveal” (Working Paper No. 6, The Policy Institute,
Trinity College Dublin), http://www.policyinstitute.tcd.ie/working_papers/PIWP06%20%20Martin_Ruhs.pdf, 15.
12
Ruhs notes that the 1970s were the only decade of positive net-migration into Ireland before the
1990s; and that between 1861 and 1961, the Irish population declined from 4.4 million to 2.8
million. Ruhs, “Emerging Trends and Patterns in the Immigration and Employment of Non-EU
Nationals in Ireland,” 9.
13
The most significant example of an expansion of citizenship rights is the German citizenship
reform of May 7, 1999, which added a limited principle of jus soli to the previously dominant
principle of jus sanguinis, and also reduced the residency requirements for naturalization. It
specified, “children born to foreign parents who have resided in the country for eight years
acquire the German citizenship without forfeiting other passes they hold. When they reach the
age of 23, they must decide for one pass or another.” Benhabib, 718.
28
14
In 2002, Ireland had 11, 634 applications for asylum. See European Council on Refugees and
Exiles, “Asylum in the European Union: 2002-2003,”
http://www.ecre.org/statistics/stats%20for%20Thess%20summit.pdf, 2. According to the Irish
Refugee Council, Ireland had 2,118 applications for asylum in the first six months of 2004. IRC,
“Asylum-Seeker and Refugee Statistics in Ireland from January to June 2004,”
http://www.irishrefugeecouncil.ie/stats.html. See also Angelique Chrisafis, “Country’s emigrant
past lies forgotten as Irish accused of racism,” The Guardian 21 June 2004, 3.
15
[L & O]
16
The 27th Amendment of the Constitution Bill 2004, viewable at the government website,
Referendum Ireland, http://www.referendum.ie/general/details.asp?general_information_id=19.
17
The breakdown of voting was as follows: Yes: 79.17 %; No: 20.83 %. Turnout was 59.95%, an
increase on previous local elections. See Referendum Ireland, http://www.referendum.ie/home/.
For commentary on the result, see “Fianna Fail suffers worst election results since 1920s,” Irish
Times 14 June 2004, 1; Seán Donnelly, “The best local election turnout in nearly 20 years,” Irish
Times 14 June 2004; “Citizenship referendum 2004,” Irish Times 14 June 2004, Election
supplement 7. Notably, although the change will affect Northern Ireland as well as the Republic,
only voters in the Republic were eligible to cast ballots.
18
Referendum on British-Irish Agreement (Nineteenth Amendment of the Constitution Bill,
1998), 22 May 1998, viewable at Referendum Ireland,
http://www.referendum.ie/archive/display.asp?ballotid=11.
19
Constitution of Ireland—Bunreacht na hÉireann,
http://www.taoiseach.gov.ie/upload/static/256.pdf.
20
See Irish Nationality and Citizenship Act, 1956, Section 15,
http://www.referendum.ie/archive/display.asp?ballotid=11.
21
Gerard Hogan, “Citizenship and the Constitution: 1922 to Date,” 6.
29
22
In order to be eligible for citizenship beyond descent from an Irish grandparent, an applicant’s
parent must have taken up Irish citizenship before the applicant’s birth: “The Irish citizenship of
successive generations may be maintained in this way by each generation ensuring their
registration in the Foreign Births Register before the birth of the next generation.” Oasis
Information on Public Services, “Irish Citizenship Through Birth or Descent,”
http://www.oasis.gov.ie/moving_country/migration_and_citizenship/irish_citizenship_through_bi
rth_or_descent.html#id3109961.
23
As Doyle argues, this is elsewhere proscribed: the Supreme Court’s decision in An Blascaod
Mór Teoranta v. Commissioners of Public Works prohibits discrimination on the basis of
pedigree (Doyle 115-116).
24
See Ngai, “Architecture of Race,” para. 17.
25
Brook Thomas, “China Men, United States v. Wong Kim Ark, and the Question of
Citizenship,” American Quarterly 50, no. 4 (1998), 705 [689-717].
26
See http://www.progressivedemocrats.ie/our_people/member/6/.
27
In practice, however, there appear to be national discrepancies in rates of renewal of work
permits.
28
See Brian Lenihan, T.D., “Citizen change common sense,” Irish Times 28/05/2004, 18. See
also “Speech by Minister Mary Coughlan T.D.,” 23 May 2004,
http://www.fiannafail.ie/new/site/policy_page.php4?topic=189&id=3097&nav=Keynote%20Spee
ches.
29
The Department of Enterprise, Trade and Employment.
30
McDowell proposed legislation making it a criminal offence for non-nationals—but not
citizens—to not report illegal immigrants to the Garda Síochána.
31
“YES Citizenship Matters;” Fiona O’Malley, TD, The Last Word, 3 June 2004. See also Paul
Cullen, “Citizenship loophole is damaging credibility of entire asylum system,” Irish Times, 3
30
June 2003, 18; Constantin T. Gurdgiev, “Yes: Rejecting the referendum would be a betrayal of
those who truly belong in Ireland through effort and achievement,” Irish Times, 8 June 2004, 16.
32
Bertie Ahern, interview with Matt Cooper, The Last Word, 2 June 04.
33
See “Citizenship Tourists,” The Economist 3 June 2004; Denis Staunton, “Chinese mother and
Irish baby ‘entitled to live in EU,’” Irish Times 19 May 2004, 9.
34
See “McDowell reiterates need for referendum,” RTÉ news, 18 May 2004,
http://www.rte.ie/news/2004/0518/citizenship.html; Mark Hennessy, “McDowell insists his
action heads off ‘threat,” Irish Times 19 May 2004, 9; Carole Coulter, “European finding bolsters
case for referendum made by Government,” Irish Times 19 May 2004, 9.
35
See also Sean MacCarthaigh, “Government provides the sticks to beat itself,” Sunday Business
Post 25 April 2004.
36
“Citizenship Referendum June 11th: Facts? No! Figures? No! Reasons? No! Vote NO!,” Labour
Party campaign leaflet, n.d. [May 2004]; Cllr. Leo Varadkar (FG), letter to the editor, Irish Times,
25 May 2004, 19; this charge was also leveled by Benedicta Attoh, Independent candidate for
Louth County Council, on The Last Word, Today FM, 3 June 2004.
37
What this meant, in practice, was that Fine Gael’s campaign literature avoided specific mention
of the referendum. This did not prevent Mitchell and others from publicly voicing their support
for the referendum on the radio and in other media. Gay Mitchell, TD, “20 Questions on the
European Union,” campaign pamphlet, 2004. Gay Mitchell, in debate with Ivana Bacik (Lab),
Mary Lou McDonald (SF), Eoin Ryan (FF), Last Word, Today FM, 8 June 2004.
38
Gay Mitchell, Last Word, 8 June 2004.
39
RTÉ Six One News, 12 June 2004.
40
Dr Michael Geary, interview on Morning Ireland, RTÉ Radio 1, 11 March 2004; Senator Mary
Henry, The Last Word, Today FM, 31 May 2004; Dr. Austin O Carroll; Dr. Jerry Cowley, TD
Dáil Éireann; Senator Mary Henry, Seanad Éireann, et al., “We wish to register our opposition to
31
the upcoming referendum on citizenship” (open letter), published in “Doctors launch no vote
campaign,” Campaign against the Racist Referendum press release, 31 May 2004,
http://www.activelink.ie/ce/donwl/drs-pressrelease.doc; Kitty Holland, “Doctor to raise role of
three Masters,” Irish Times 2 June 2004, 5; Dr Muiris Houston, “Role of Masters to be discussed
next month,” Irish Times 3 June 2004, 3.
41
Dr Joanna McMinn, quoted in press release by National Womens’ Council of Ireland, 1 June
2004. A leaflet distributed by the Campaign Against the Racist Referendum, “‘Cherish All of the
Children Equally’,” campaign leaflet, n.d. [2004] argued: “Years of government cutbacks and
closures are the real cause of the crisis in the health service. The government want to create a
smokescreen to hide its failures. This is why they are pushing through a referendum to attack the
rights of Irish children.”
42
See Private Notice Questions of Roisin Shortall TD (Lab); Seymour Crawford TD (FG); John
Gormley TD (Green); Dan Neville TD (FG); Paudge Connolly (Ind); all in Dáil Debates, Vol.
559, 12 December 2002, 725-726.
43
In a letter to Micheál Martin on Feb. 23, Geary apparently cited an “alarming” rise in cases of
women from sub-Saharan Africa with HIV; according to the Irish Times, he wrote that, “While
we, as healthcare workers, will take the appropriate cautions to avoid transmission of HIV, it is
obvious to all that I would not like to be in the position to have a member of my staff needing to
change their career because of contracting HIV through an occupational incident.” Arthur
Beesley, “‘Alarming’ rise in HIV cases in maternity care,” Irish Times May 28, 2004, 9. Alan M.
Kraut, Silent Travelers: Germs, Genes and the “Immigrant Menace” (Baltimore, Md.: Johns
Hopkins University Press, 1994). See also Paul Cullen, “Rise in HIV among non-nationals
highlighted,” Irish Times May 29, 2004, 5.
44
See http://www.stormfront.org/archive/t-129217Report_backs_up_maternity_crisis.html.
32
45
Martin claimed in a radio interview that he supported the referendum because, in its absence,
an immigrant child would die. The Last Word, Today FM, 31 May 04. Progressive Democrat
campaign literature included an anonymous quotation from “The Master of one of Dublin’s
leading hospitals,” asserting that, “‘we have been fortunate that there have not been any maternal
mortalities as a result of this but there have been some near misses.’” Progressive Democrats,
“YES Citizenship Matters,” n.d. [2004].
46
Education Ireland, http://www.educationireland.ie/htm/how_to_apply/work_ireland.html.
[Justice for numbers.]
47
See Oasis: Information on Public Services,
http://www.oasis.gov.ie/employment/working_in_ireland/work_permits.html#id3113705 and
http://www.oasis.gov.ie/employment/working_in_ireland/work_visas_authorise.html.
48
On the differences between American and Irish immigration policy see the trenchant comments
of former congressman Bruce Morrison (D-CT), author of a programme that secured 48,000
Green Cards for Irish nationals in 1991: “During recent Irish media interviews, the hosts could
not stop saying that my legislation had helped 48,000 Irish undocumented to get ‘work permits’
in the US. The number is right, but it was permanent resident ‘Green Cards’ they got, not
temporary permits. . . . Canada and the US make plenty of mistakes, but they have the basics
right. Successful inclusion of immigrants requires permanent admissions and guaranteed
citizenship for children born there. European use of ethnicity to define membership in the
community is a recipe for segregation of newcomers and ongoing ethnic strife.” Morrison, “No:
There is nothing to justify citizenship panic,” Irish Times 8 June 2004, 16. See also See Carol
Coulter, “Government has failed to examine why immigrants are coming here,” Irish Times 17
June 2004, 16.
49
Success rates of asylum applications in Ireland are low, averaging below 11% before appeal for
each year from 1998 to 2001. See “Total first instance recognition rates in individual EU
33
countries, 1992-2001,” in European Council on Refugees and Exiles, “Asylum in the European
Union,” 7. For information on and a critique of the policy banning work and higher education for
asylum seekers, see Irish Refugee Council, “Asylum-Seeker and Refugee Statistics in Ireland
from January to June 2004,” http://www.irishrefugeecouncil.ie/stats.html; and Irish Refugee
Council, The right to work = the right to dignity: Policy on the Right to Work for Asylum
Seekers, http://www.irishrefugeecouncil.ie/policy01/righttoworkdignity.doc.
50
Yasemin Nuhoglu Soysal, “Toward a Postnational Model of Membership [in Europe] [sic],” in
Kate Nash, ed., Readings in Contemporary Political Sociology (Oxford: Blackwell, 2000), 270
[264-279].
51
See William Binchy, “Citizenship and the International Remit of Constitutional Protection,” in
The Citizenship Referendum: Implications for the Constitution and Human Rights (Dublin: The
Law School, Trinity College Dublin, 2004), 53-65.
52
This is suggested by the party affiliation of the non-citizens who contested local elections in
2004: 6 Independents, 11 Green Party, and 2 Labour. Kitty Holland, “Non-national candidates
blaze new trail,” Irish Times 2 June 04, 9. It should be noted that least one non-citizen candidate,
Independent Rotimi Adebari, secured a local council position. Deaglán de Bréadún, “Nigerian
elected to Portlaoise council,” Irish Times 14 June 2004, election supplement 3.
53
“Poles unfair dismissal case settled in Killarney,” Irish Times 25 June 2004, 4.
54
Patsy McGarry, “McDowell says inequality an incentive in the economy,” Irish Times 28 May
2004, 1.
55
Bertie Ahern, interview with Matt Cooper, The Last Word, 2 June 04.
56
Martin, Last Word, 31 May 04.
57
Theresa Judge, “Shortage of nurses set to exceed 2,000,” Irish Times 29 June 2004, Health
Supplement 1.
58
Jim McDaid, on Questions and Answers, RTÉ, 24 May 2004.
34
59
Carl O’Brien, “Doctor’s parents refused entry visas,” Irish Times 23 June 2004, 2.
60
See Du Bois; Foner; Smith.
61
White merchants encouraged Native indebtedness, both through the provision of necessary
supplies and the ready sale of alcohol. Forced by court orders to pay debts through their labour,
Native Americans became indentured as whalemen to white merchants and even passed on their
debts to their heirs after death. As Vickers suggests, unequal access to the privileges of
citizenship—most importantly, the legislative process and the courts—underpinned this coercion.
Native indenture was institutionalised by legislation in 1718 and 1725. Daniel Vickers, “The
First Whalemen of Nantucket,” in Peter C. Mancall and James H. Merrell, eds., American
Encounters: Natives and Newcomers from European Contact to Indian Removal (New York and
London: Routledge, 2000): 262-282.
62
Stiglitz, Globalization and its discontents.
63
See, e.g., Gary Gerstle, American Crucible: Race and Nation in the Twentieth Century
(Princeton, N.J.: Princeton University Press, 2002).
64
Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven
and London: Yale University Press, 1997).
65
Smith, Civic Ideals, 6.
66
Thomas, “China Men,,” 690, 694.
67
Smith, Civic Ideals, fn. 4, 507 and 3.
68
Peter Schuck and Rogers M. Smith, Citizenship without Consent: Illegal Aliens in the
American Polity (New Haven and London: Yale University Press, 1985).
69
Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders and Fundamental Law
(Princeton, N.J.: Princeton University Press, 1996), esp. chap. 9. [Also Joseph Carens, “Who
Belongs? Theoretical and Legal Questions about Birthright Citizenship in the United States,”
University of Toronto Law Journal (1987), 413; Gerald Neuman, “Back to Dred Scott?,” San
35
Diego Law Review (1987), 485; David Martin, “Membership and Consent: Abstract or
Organic?,” Yale Journal of International Law (1987), 278, 283; David Schwartz, “The Amorality
of Consent,” California Law Review (1986), 2143.]
70
Neuman, Strangers to the Constitution, 186-7.
71
Weedin v. Chin Bow (274 U.S. 657), 1927.
72
Recent proposals by Senator Orrin Hatch (R-UT) and Congressman Barney Frank (D-MA) to
grant Presidential eligibility for naturalized citizens do not attempt to change the Fourteenth
Amendment. S.J. Res. 15, 108th Cong. (2003); H.J. Res. 47, 107th Cong. (2001).
73
Randeep Ramesh, “Architect of Reform to be India’s first Sikh PM,” Guardian May 20, 2004,
16; Rahul Bedi, “Singh expected to become first Sikh PM,” Irish Times May 19, 2004, 1; Rahul
Bedi, “Shrewd Gandhi walks away but gains politically,” Irish Times May 19, 2004, 14.
74
Thomas, “China Men,” note 41.
75
Other than Thomas.
76
Linda K. Kerber, “The Asymmetries of Citizenship,” Common-place 2, no. 4 (July 2002).
77
Also, not really automatic—still necessary to produce paperwork, etc.
78
Kerber, “Asymmetries of Citizenship,” 1.
79
See, Johnson v. Sullivan, No. 1889, Circuit Court of Appeals, First Circuit, 8 F.2d 988; 1925
U.S. App. LEXIS 3423, November 16, 1925.
80
See H.R. 88, 108th Cong. (2003). See also Johnson v. Sullivan.
81
See, e.g., Naomi Klein, No Logo; Joseph Stiglitz, Globalization and its Discontents
82
Jurgen Habermas, “Citizenship and National Identity”, Between Facts and Norms, (Cambridge,
MA: MIT Press, 1996), 514-515.
83
Aisling Reidy, “The Need for a Referendum Considered,” conference paper delivered at The
Citizenship Referendum.
36
84
Reidy, “Need for a Referendum”; Cathryn Costello, “Accidents of Place and Parentage:
Birthright Citizenship and Border Crossings,” conference paper at The Citizenship Referendum.
85
Neville Cox, “The Language of Constitutional Debate,” in The Citizenship Referendum; 91,
100.
86
Except Piaras?
87
H.J. Res. 42, 108th Cong. (2003); H.J. Res. 44, 108th Cong. (2003); H.J. Res. 59, 107th Cong.
(2001); H.J. Res. 10, 106th Cong. (1999); H.J. Res. 4, 105th Cong. (1997); H.J. Res. 60, 105th
Cong. (1997); H.J. Res. 56, 104th Cong. (1995); H.J. Res. 64, 104th Cong. (1995); H.J. Res. 88,
104th Cong. (1995); H.J. Res. 190, 104th Cong. (1995); H.J. Res. 117, 103rd Cong., (1993); H.J.
Res. 129, 103rd Cong. (1993); H.J. Res. 396, 103rd Cont., (1993).
88
Neuman, Strangers to the Constitution, 184.
37