[Introductory sidebar]: E Pluribus Unum:
On July 4, 1992, in a celebration of the five-hundredth anniversary of Columbus's first landing in the Caribbean, a procession of Tall Ships graced New York Harbor. A newspaper account suggested that the Tall Ships "evoked a sense of America's immigrant experience, of commerce and the dangers of life at sea, of skills and ideas in a new land." Surely there is something to this narrative of rugged individualism and capitalism.

However, as New York mayor David Dinkins noted in his speech at the Governor's Island reviewing stand, the sea trade brought slaves as well as explorers and immigrants. So, too, the Tall Ships do not tell the stories of American Indians massacred and enslaved by the Europeans, or of Mexicans who became Americans upon the annexation of their homeland. Accounts of the ordeals suffered by Asian immigrants at San Francisco's Angel Island in the mid-twentieth century are overshadowed by the mythologizing of New York's Ellis Island.

The celebration also seemed to represent a collapsing of time, a placing of formative events in an equally distant past. Columbus' discovery occurs alongside the colonization of the eastern seaboard, the Revolutionary War, and the great migrations of the nineteenth and twentieth centuries.

The Tall Ships celebration was one manifestation of the story that the United States tells about its origins, its people, and its authority and legitimacy - in short, its "stateness." A state will invariably have a "creation myth" about its founding and founders, more often reflecting the country's current self-conception than reporting historical truth.

In the United States, this recurring national narrative - of an E Pluribus Unum melting-pot imagery coexisting with affirmations of cultural pluralism - contrasts sharply with the less-tolerant, more-exclusionary American self-image that arose as the nation confronted challenges at home and abroad around the turn of the twentieth century. Imperialist adventures as well as Indian policies and race-based immigration restrictions of that time were justified on narrow conceptions of constitutional law regarding the source, scope, and nature of American national sovereignty.

Those federal policies raised fundamental questions for constitutional law. Did the Constitution authorize the ruling of distant territories not thought fit for statehood? Did Congress possess power to exclude and remove "friendly" aliens? What was the source of federal authority to regulate Indian tribes? What constitutional rights could each of the regulated groups assert against the predatory actions of the United States government?

To a remarkable degree, the Supreme Court's answers to these questions more than a century ago continue to dominate constitutional understandings of sovereignty and membership today. Our national narrative has undergone significant change, but our constitutional law has remained largely locked in nineteenth-century conceptions of statehood.

Rather unconsciously, most U.S. constitutional law scholarship "assumes the state." Analysis about limits on the exercise of national power begins with an already-constituted state, exercising authority over an already-constituted body of citizens. Exactly who "We the People" are, and by what right the United States exerts sovereignty over this bountiful land, are rarely examined.
In Semblances of Sovereignty, I take up some of these unexplored questions about sovereignty and the Constitution, labeling this nascent field of inquiry "sovereignty studies." By "sovereignty," I mean the supreme legal authority in a national state. I use the term "national state," to mean a political organization exercising sovereignty over a bounded territory.
- Alex Aleinikoff

Semblances of Sovereignty: An Excerpt
The following excerpt was adapted from the final chapter of Semblances of Sovereignty: The Constitution, the State, and American Citizenship, by T. Alexander Aleinikoff, to be published in May 2002 by Harvard University Press.

For more than a century, American constitutional law has pursued intertwined themes of congressional plenary power and the meaning of national membership. The plenary power doctrines were initially propounded by the Supreme Court as the nation faced "the other" overseas, at U.S. borders, and on Indian reservations. At that time, membership was not figured as citizenship. Citizenship neither guaranteed women the right to vote nor offered effective protection to African-Americans in the enjoyment of civil or political rights. Grants of citizenship to Puerto Ricans and Indians did not guarantee them full constitutional protection. And until the end of the first quarter of the twentieth century, immigrants were enfranchised in a number of states. Membership at the time was largely seen in ethno-racial terms, as the plenary power doctrines aided the United States' self-conception as a nation-state.

Over time, the incorporation of whites from northern and western, and then eastern and southern, Europe moved America beyond Anglo-Saxonism (the Irish, Italians, and Jews became white). Race became more a matter of skin color and less of national origin. Post-World War II attempts to breach the race line fixed on the overarching and high-minded concept of citizenship. The Warren Court and a Second Reconstruction Congress took dramatic steps against the second-class citizenship of blacks; efforts on behalf of women followed. U.S. immigration law was overhauled: the National Origin Quota system was repealed and racial bars to naturalization were finally removed.

The American citizen-state of the late twentieth century could tolerate, even celebrate, a soft cultural pluralism. Indeed, social and political movements for multiculturalism and indigenous rights gained traction in the political branches. To the extent these programs and policies fell in areas dominated by the plenary power doctrines, the Supreme Court left Congress unchecked. Legal claims asserting broad inherent tribal sovereignty or constitutional limits on the federal immigration power received increasingly stern answers from the Court. A constitutional strategy crafted to end the second-class citizenship of groups discriminated against based on immutable characteristics could not easily come to grips with other sorts of membership issues. It had a difficult time making sense of the claims of Puerto Ricans and Indian tribes to greater autonomy, and discrimination based on alienage seemed to be a wholly acceptable ground for distinguishing members from nonmembers. In the context of concerns about an overall decline in national state sovereignty due to globalization, the power of supranational legal institutions, and large migration flows, the plenary power doctrines take on added strength as important redoubts of congressional authority to preserve the national state.
I have argued in preceding chapters against these prevailing norms and understandings of sovereignty and membership. The question before us is how to refashion doctrine and scholarship to bring the sovereignty cases out of the backwaters of constitutional law. In this concluding chapter, I reiterate my call for abandonment of the plenary power doctrines. I do not contend that the nation-state is about to, or should, depart from the world stage; to my mind, postnationalism is a long way away. However, both sovereignty and membership need to be reconceptualized in less rigid terms if we are to establish a political regime that overcomes historical subordination and justly rules over the territory and inhabitants of the United States. An America open to such flexibility will bespeak a (typically American) resilience and optimism appropriate for the new century ahead.

Abandoning Plenary Power
The plenary power cases remain monuments to nineteenth-century conceptions of nation and membership. It is a vision wholly out of step with modern constitutional law and the reality of our world today. The cases continue to support results that degrade the best of our constitutionalism. On what grounds, today, can it be asserted that courts should apply no constitutional scrutiny to the procedures that Congress establishes for the selection and entrance of immigrants? How can the Constitution have nothing to say when Congress unilaterally abrogates rights guaranteed in a treaty that solemnly promises not to abrogate those rights without tribal consent? On what plausible basis can it be claimed that the Constitution applies in full measure to Puerto Ricans living in New York but in half measure to Puerto Ricans living in San Juan?

The plenary power cases should be abandoned and modern norms of due process, equal protection, individual rights, and limits on congressional power should generally apply in the sovereignty cases as they do in other areas of constitutional law. In the area of immigration regulation, this would mean that the courts (and Congress) would see immigrant admissions policies in the same way they view regulations of commerce: Congress would be understood to have plenary power in the sense of possessing full authority to regulate such matters, but any exercise of power would be judged by generally applicable external constitutional limits such as the First Amendment protections and due process.

An underlying conception of citizens-as-full-members appears to support the current constitutional norms, but a competing conception of membership - one that includes, at least, permanent resident aliens - may be truer to the Constitution and to the social reality of immigrant lives in the United States. The term I have used to describe the status of permanent resident aliens is "denizenship," which is increasingly in vogue in scholarship considering the status of resident aliens in Europe. The broadest claims for the rights of immigrants are grounded on international human rights, but this would be a long leap for U.S. constitutionalism. My claim is more limited: it is that a requirement of fair treatment follows from the conceptualization of permanent resident immigrants as already being members.

The plenary power cases have made a mockery of the Constitution in Indian law. The sovereignty of the tribes hangs by a thread, secured only by the good graces of Congress. The Court's vision of sovereignty largely restricts tribes to regulating the conduct of their members. It is not a sovereignty that can resist federal power to alter reservations or fundamental governance structures. Nor does it recognize general tribal authority over non-tribe members who reside on reservations. The current Court's narrow reading has much to do with its concerns expressed elsewhere in constitutional law. For the Court, tribal authority epitomizes the problem of race-consciousness: a racially defined group exercising governmental authority on behalf of its members at the expense of members of other racial groups. Tribal power is rendered even more suspect in the Court's eyes because resident nonmembers - who are U.S. citizens - are not able to participate in reservation governance.

The plenary power doctrines should be curbed in Indian law. The plenary power cases stand on dubious constitutional reasoning and a repugnant ideology of white supremacy. Enhancing tribal sovereignty would be about far more than "reparations" for past wrongs. It would be a recognition that the nationhood of tribes ought to be fostered - because indigenous peoples have a right to preserve and construct their cultures and because they contribute to an American multiculturalism that benefits all the residents of the United States.

To restore a proper respect for Indian sovereignty, the federal government ought to reintroduce a relationship based on negotiated agreements, not unilateral statutes. However, this can be successful only if the Court abandons its view that Congress is free to abrogate treaties and only if the Court affirms the binding status of provisions that bar changes in treaties without the consent of both parties. Constitutional law must grasp that "our federalism" embraces relationships between and among three sovereignties, not two.

The territories cases present similar opportunities for reining in the plenary power doctrine. The Insular Cases were poor constitutional law when written, and their broadest readings no longer persuade the Court. As has been suggested for the Indian cases, the Court ought to hold that "mutual consent" provisions in territorial covenants are enforceable. This would disavow the current position of the executive branch that Congress has the power to unilaterally alter the governing structures in Puerto Rico, Guam, or the Virgin Islands.

Today's world is full of arrangements and accommodations that make it clear that nation-states do not, need not, and should not cling to nineteenth-century conceptions of sovereignty. International human rights norms, humanitarian interventions, autonomy in the West Bank, the political status of Catalan, devolution in Scotland, federalism in Canada, the evolution of the European Union, and the political settlement for Bosnia all show that sovereignty is a relative, not an absolute, concept - layered and shared and complicated. The United States can experiment with political arrangements that recognize forms of autonomy for political communities (other than states) without undermining its sovereignty on the world stage. Thus, in the Puerto Rican status debates, we should be quite skeptical of claims that the Constitution prohibits, for instance, a more robust form of commonwealth.
Different policies might also be adopted regarding the inclusion of newcomers in the territories and on Indian reservations and for immigrants. The first group has always been treated in a manner similar to new residents in states: the establishment of residence entitles one to full rights. This should remain the rule no matter what form the status of Puerto Rico takes (other than the unlikely choice of independence). It is significant that Puerto Rico has never asserted an ethnic basis for membership - even as it has promoted Spanish language and a set of cultural traditions. Moreover, there is little risk of a kind of massive immigration of citizens from the mainland that would radically alter the Puerto Rican population. This is not the case for Indian reservations. Indeed, on a number of reservations, the number of nonmembers exceeds the number of tribal members. Here, immediate inclusion would seriously affect any sort of self-determination for the tribe - a result that runs counter to long-standing federal policy. Thus, other methods of inclusion might be considered.

Inclusion of immigrants presents a third model. Aliens have no claim to automatic citizenship upon arrival (as do Americans in the territories), but neither will their residence and participation risk self-determination of full members (as might be the case for extending rights to non-tribe members on reservations). Although immigrants have frequently settled in neighborhoods with other immigrants and co-ethnics, they have never sought nor supported the establishment of autonomous governance structures.
Across all these areas, stronger notions of democracy ought to take hold. Residents of the territories have no effective voice in the federal government that exercises plenary power over them. Today settled immigrants are disenfranchised, although they are full members of the social and economic life of their communities. Measures might also be taken by Indian tribes to permit some form of representation for nonmembers living on reservations. Once we can see beyond citizenship-as-membership, a number of routes become available for affirming the principle that people have a right to participate in the governing of those institutions that govern them.

Objections
Some proposals sketched above could lead toward a "disuniting of America" (to use Arthur Schlesinger's phrase). To be sure, history substantiates the possibility that the presence of competing nationalisms within a single state can have tragic consequences. The term "Balkanization" has a real-world referent. The American Civil War, it could be argued, provides another painful example. But surely we misuse history if we think it argues that recognizing an added measure of political authority for Indian tribes or the territories, or applying constitutional limits to federal regulations of immigration, risks cracking the foundation of the Republic. The claim that abandoning plenary power doctrines strikes a blow to the exercise and practice of U.S. sovereignty simply cannot be taken seriously.

Moreover, several considerations should help allay concerns about granting greater autonomy to subnational groups (such as Indian tribes or commonwealth governments). Although not frequently acknowledged, these groups themselves are widely diverse. Puerto Ricans may be largely united in their support of the Spanish language, but they are deeply divided along classical U.S. political lines. The island has a dynamic and open political system where competing parties have regularly gained and lost the governorship and other top political posts. Indian tribes are far from monolithic. Members frequently disagree on political and cultural issues, such as the wisdom of various forms of economic development (including gaming).

Furthermore, autonomy in governance can be accompanied by the guarantee of fundamental individual rights. The Puerto Rican Constitution incorporates the Bill of Rights, and tribes are bound by the Indian Civil Rights Act, which applied most of the guarantees of the Bill of Rights to tribal governmental action. These could be implicit or explicit terms of any agreement reached between the federal government and a subnational community.

Perhaps the "disuniting claim" is more about narrative than rights. That is, the claim might be that what links Americans is a commitment to a common story, a shared understanding of a shared past. Competing narratives, however, have been present from the start; and Americans have generally (later) regretted attempts to compel conformity. The shift from the Anglo-Saxonism of the late twentieth century to cultural pluralism in the twentieth century can only have been the product of a new narrative challenging an established understanding. Moreover, U.S. constitutionalism is firmly committed to freedoms of conscience and religion that virtually guarantee a range of deeply held - and sometimes mutually exclusive - beliefs. This diversity, reflected in where people worship, whom they marry, how they raise their children, what holidays they celebrate and what foods they eat, has not been seen as destructive of a common American narrative; indeed, it is an important part of that narrative.

I fear that what in fact lies beneath concerns about American balkanization is what has forever been, as Toni Morrison put it, "the ghost in the machine" of American history: race. Simply put, most Puerto Ricans and Indians, as well as the vast majority of today's immigrants, are nonwhite. Their presence and political power do not threaten U.S. sovereignty; they threaten European-American dominance. The invocation of citizenship purports to establish a level playing field and to eliminate the use of categories that have oppressed in the past. But it can also provide cover for policies and constitutional judgments that, ultimately, preserve the power of white European-Americans.

In earlier times, race was the boundary of exclusion: heathens of color - Indians, new immigrants, indigenous peoples of the territories - had to be subjected to white rule for their own good. Because they were not yet ready to participate fully in western institutions or governance, it was necessary to remove them or "civilize" them. The post-World War II civil rights era promised inclusion through a different sort of racial exclusion: the category had to be overcome and made invisible in order to eradicate its harmful uses. The rhetoric of citizenship moved that project forward. However, inclusion-through-colorblindness was no less a strategy for the "whitening" of America. As nonwhite groups began to assert claims to color-conscious, multicultural rights, citizenship was mobilized as the great leveler - cutting down "special rights" that were seen as being based on categories that had been used to exclude in the earlier period.

The Supreme Court's decision in Rice v. Cayetano is emblematic of the approach. The case involved the constitutionality of voting rules for the selection of trustees of the Office of Hawaiian Affairs (OHA), an agency established by the Hawaiian state constitution for the betterment of conditions of descendants of aboriginal peoples. By statute, the class of persons eligible to vote for the nine-member OHA board of trustees was restricted to those having ancestry predating the 1778 arrival of Captain Cook in Hawaii. The statute was challenged by Rice, who was not in the class eligible to vote. Hawaii defended the voting eligibility rule as being closely related to purposes of the agency. It cited Indian law and other decisions by the Court that had permitted restriction of the franchise in special-purpose district elections. It also noted that the voting rule had been approved by a majority of the Hawaiian people. Nevertheless, the Supreme Court held that the eligibility rule was a racial classification that abridged the right to vote on account of race in violation of the Fifteenth Amendment. Rather than crediting the benign purpose of the statute, the majority found that it rested "on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters."

The term "citizen" appears repeatedly in the majority opinion. For the Court, citizenship does double work: it wields a sword against political rights based on ancestry and it provides a common currency for a multicultural society. Citizenship not only trumps ethnic identification, it supplants it. The majority describes Rice as "a citizen of Hawaii and thus himself a Hawaiian in a well-accepted sense of the term." The move here is linguistic alchemy, changing an indigenous people and a multicultural society to colorlessness.

Rice demonstrates the Court's mobilization of the concept of citizenship to solidify the link between "the people" and the "nation-state." This asserted relationship - let me call it the "Congruency Thesis" - is rendered most explicit in Justice Hugo Black's declamation for the Court in Afroyim v. Rusk that "citizenship in this Nation is part of a cooperative affair. Its citizenry is the country and the country is its citizenry." In this conception, citizenship is the meeting ground of sovereignty and democracy: sovereignty is located in the citizenry (the demos) that selects those who will captain the ship of state. The Congruency Thesis provides a tight fit: all citizens, but only citizens, possess sovereignty, they possess it equally, and they are entitled to equal rights within the sovereign state they constitute. The Congruency Thesis thus sets its face against special rights for some citizens (like the Native Hawaiians in Rice) and supports federal power to discriminate against immigrants (like the permanent resident aliens in Cabell v. Chavez-Salido).

As an initial matter, it is hard to make sense of this on the rhetorical level. Surely "the country" is more than the "citizenry" of the United States. Currently, more than 10 percent of the United States population (some 28 million persons) is foreign-born, the population of California is 25 percent foreign-born, and the population of New York City is 40 percent foreign-born. These persons help constitute "the country" in any reasonable understanding of that term, and they are surely part of the "community of the governed." More importantly, the Congruency Thesis is a dubious reading of our Constitution (which generally includes immigrants under its umbrella of protection), and neither the extension of rights nor novel political arrangements at the local level pose a risk to the robustness of national U.S. sovereignty.

One might reject the Congruency Thesis and still believe that citizenship is a respectable principle for uniting a diverse nation, providing a kind of "social glue," as Frederick Schauer has written of it, far more benign than race, ethnicity, or religion. I do not disagree, provided we have the proper conception of citizenship in view. That conception figures citizenship as an ongoing intergenerational narrative, with an invented past and a commitment to a better future. This is a "thick" conception of citizenship - thicker than the notion that what unites us is our attachment to a set of abstract liberal values that hover above and outside our disparate groups and associations. Citizenship is both more than a commonly held set of rights and less than a common culture. It is an important joint venture, on a defined piece of territory, to which people contribute from their particular circumstances (of faith, gender, occupation, race, region, and ethnicity).

I describe this perspective as "decentering" citizenship, contrasting it with the Court's model of citizenship as a package of rights shared by persons in the innermost ring of a set of concentric circles of membership. Under the Court's model, privileging citizens over immigrants (who occupy outer rings) appears wholly natural. But a decentered perspective is oblique to the question of extending rights to noncitizens, and it does not condemn subnational self-determination as a violation of the equal citizenship of those in a favored center ring. Less emphasis on citizenship as rights-bearing status may actually do more to help construct a community of citizens. Consider again Rice v. Cayetano. Which was more inclusionary and more supportive of community building and healing: the state policy (which had been approved by a majority of the state population and whose purpose was to make amends for historical wrongs) or the Court's ruling in the name of citizenship that struck the state policy down?

Conclusion: The American Narrative
The international regime of nation-states is not about to collapse. National sovereignty may be somewhat less secure these days, but it is still the strongest game in town. It is important that it be so. As Eric Hobsbawm has written, the state remains "the main mechanism for social transfers, that is to say for collecting an appropriate fraction of the economy's total income . . . and redistributing it among the population according to some criterion of public interest, common welfare and social needs." It is also "the best unit we have . . . from the point of view of democratic politics, for which supranational, transnational, and global authorities provide little or no real space."

Support for democratic institutions and redistributive policies requires a commitment of a state's population to something other than individual self-interest or the interest of one's group. Citizenship can play a central role, providing dedication to, and membership in, a national project. Such dedication does not come easily. It requires a faith in the project that may require, at times, huge personal sacrifice. The role of citizenship, then, is not to identify a set of rights-holders who benefit from policies promoting justice and equality; rather, it is to establish a commitment to that political organization most efficacious in carrying out such policies in today's world. Citizenship does not guarantee a common culture for Americans, it provides the common calling of being American.

In an essay written at the beginning of the twentieth century, later reprinted in War and The Intellectuals: Essays, 1915-1919 (1964), Randolph S. Bourne described a "transnational America" - one very much in the making and to which new immigrants groups would contribute. For Bourne, Anglo-Saxonism was not the American culture, it was merely the culture of the first immigrants. His transnationalism staked out a position between assimilation and essentialism. It was dynamic, future-oriented, and optimistic:

"As long as we thought of Americanism in terms of the 'melting-pot,' our American cultural tradition lay in the past. It was something to which the new Americans were to be moulded. In the light of our changing ideal of Americanism, we must perpetrate the paradox that our American cultural tradition lies in the future. It will be what we all together make out of this incomparable opportunity of attacking the future with a new key."

Bourne's description of America as being in flux is surely no less apt today. Some fear or dread this uncertainty, but I think Bourne's optimistic reading gets it about right. And two considerations provide both sail and anchor. First, new groups, as much as the old, want the project to succeed, for them and their children. Second, the idea is not one of a new set of Americans imposing a new concept of America; rather, it is one in which newcomers join those here in advancing a tradition. In moving that tradition forward, our constitutional law needs to shed the dead weight of the nineteenth-century plenary power cases. Nuanced and flexible understandings of sovereignty and membership are appropriate tools for attacking the future in a new key.

Adapted from Semblances of Sovereignty: The Constitution, the State, and American Citizenship by T. Alexander Aleinikoff, to be published in May 2002 by Harvard University Press. Copyright © 2002 by T. Alexander Aleinikoff. Used by permission. All rights reserved.

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