Citizenship, Consent, and the Undocumented Immigrant

Hello everyone,

In the last installment, I discussed consent as it pertains to young migrants entering a new state. Despite the United States’ physical and legal hurdles for immigrants, as well as the bitter anti-immigrant sentiment (which has been amplified by the economic downturn and the ubiquitous manifestations of the War on Terror), immigrants continue to make the treacherous journey, enter the United States, and establish new lives for themselves.  However, children present an interesting dilemma. Previously, I suggested that rationality was superfluous, as children do not possess this faculty until they have reached the elusive “Age of Reason,” and the form of consent of children when choosing to cross an international border is irrelevant. This is because, whether they are mature for their age and aware or very young and naïve, if the motivation to join a new community combined with a right and/or the ability to traverse borders exists, people will naturally do so.

This is one of several reasons why Michael Walzer claims that the practice of exclusion must start by strengthening security and enforcement at the borders because if individuals manage to enter the country, settle, and become productive members of society, the host country has an obligation to accept them. For individuals who enter the United States at a young age, their consent at the time of entry is too laden with real and theoretical complications to hold them accountable, but their decision to explicitly consent to the laws, rituals, and customs – to epitomize and become United States citizens – is pivotal.

No other form of consent possesses the same real and symbolic magnitude as express consent, best defined as voluntary, intentional, and unambiguous communication (in either the verbal or written word, or by gesture) to a particular agreement. However, it is hardly a novel observation that immigrants – not native-born, “tried-and-true” Americans – affirm this formal declaration to uphold the rights and responsibilities of citizenship. Due to birthright citizenship, granted by the Fourteenth Amendment, “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” (The United States Constitution, Amendment XIV, Section 1). The decision to live in the United States as a native-born citizen is therefore an indication of tacit consent, the silent, implied, liberal alternative to express consent. And, although highly convenient for the millions of Americans born each year, birthright citizenship deprives the United States of a symbolic national gesture.

In contrast, when immigrants naturalize, they are required to swear an oath of citizenship not demanded of any native-born citizens. This expression of consent to government and membership in the civil society affirms the universal goodness and attractiveness of the United States and redresses the U.S.’s legitimacy problem, by reenacting the original spectacle through speech and ceremony around which this polity was formed.

However, political theorist Bonnie Honig suggests naturalization and citizenship swearing-in procedures “inadvertently highlights [the legitimacy problem] by simultaneously calling attention to the fact that most American citizens never consent to the regime” (Honig 95). Rather, this merely “symbolic solution” places the onus on foreigners to validate the laws and values of the regime by modeling good civic behavior, while allowing native-born citizens to disengage from civic life. Furthermore, like wealth, the marginal value of United States citizenship diminishes when one fully enjoys this distinction, but it seems infinitely greater when one does not possess the same rights and privileges. In other words, when native-born citizens need not express consent to government, the value of consent and, consequently citizenship declines, ironically weakening the rights, responsibilities, and community anti-immigrant protesters are so fervent to protect.


Similarly, Honig highlights that when immigrants settle in the United States without permission, they garner the negative persona of the “illegal”: one who willfully and shamelessly breaks the laws, abuses the services, and threatens the rights, entitlements, and livelihood of citizens. Unlike the naturalized citizen, hailed for confirming the universal goodness and choice-worthiness of the United States by consenting to it, the illegal resident neglects this act and is condemned for it. Following this logic, it seems paramount that undocumented immigrants who plan to stay in the United States, temporarily or permanently, should be able to legally express their intention to stay and their willingness to be governed or be subject to this disparaging criticism. Similarly, native-born citizens must also demonstrate this agreement or risk garnering the reputation of “free riders” and contributing to the decline of civic engagement and democracy.


This is a grim accusation against native-born citizens, which has spurred many liberals to hark back to the United State’s voluntarist traditions and suggest that tacit consent is a sufficient indication of one’s commitment to the policy for native born citizens. Yet, for a country also based on civic traditions and democratic ideals, tacit consent cannot replace or excuse an absence of express consent. Moreover, tacit consent presents a myriad of problems for the health and stability of civil society, whether it is composed of citizens or non-citizens. Obedience and loyalty, whether they are expressly willed or not, are interfering with one’s participation. Rather than furthering democracy with greater civic education, community participation, and pluralism, it is maintained through firm leadership and blind political trust. This subdues (if not removes) the people from politics, transforming a robust, self-determining body into a co-opted republic of passive followers.


Thus, it is not surprising that political theorist Michael Walzer deems tacit consenters as nothing more than “resident aliens at home” and demands that there ought to be an opportunity for native born men and women to distinguish themselves from other aliens or immigrants, declaire their intention to become citizens, and exercise their political rights (Walzer 112). As a nation founded on and promulgating the practice of democracy, tacit consent or, in other words, passive citizenship, is not enough.


The government of the United States must recognize that grounding an individual’s commitments on their residence or presence in a country is endemic to democracy and civic engagement. Immigrants have the potential to make a significant impact on the institution of citizenship by swearing their explicit consent to government and, in return receive the same rights, responsibilities, and privileges as native-born citizens. Joseph H. Carens’s argues, “we cannot dismiss the aliens on the ground that they are other, because we are the products of a liberal culture; [however,] if people want to sign the social contract, they should be permitted to do so” (345-6). Denying people this right—and, furthermore, the privilege of even setting foot in a particular country—undermines the legitimacy of the formation of the state because “politic societies all began from a voluntary union, and the mutual agreement of men freely acting in the choice of their governors, and forms of government” (Locke VIII.102).


At this point, I would like to add that libertarians would (not surprisingly) share the same views as Locke concerning unrestricted immigration. As Carens explains, “a Nozickean [that is to say, libertarian] government would have no grounds for preventing [migrants] from entering the country,” because it holds the Lockean Proviso as one of its central tenets (333). Essentially, this justifies the right of migrants to enter a country without state intervention because “so long as they were peaceful and did not steal, trespass on private property, or otherwise violate the rights of other individuals, their entry and their actions would be none of the state’s business” (Carens 333).


However, I believe even the most liberal political theorists would agree that because of the national character, political community, economy, and prestige we seek to protect and the fierce resistance to amnesty (even for some of the most vulnerable migrants to the United States), requiring immigrants to meet certain conditions for membership is justifiable. As Michael Walzer argues, consent is not sufficient to justify membership in a community because one of the premier rights of an organization once it has formed is to dictate the criteria for admissions as “the distinctiveness of cultures and groups depends upon closure and, without it, cannot be conceived as a stable feature of human life. If this distinctiveness is a value, as most people seem to believe, then closure must be permitted somewhere” (Walzer 1983, 39). Nevertheless, if individuals are entering the country with or without permission and the United States is benefiting from the contributions these immigrants make, to withhold legal status and the opportunity for civic engagement is, in Walzer’s strong Lockean, liberal-individualist language, committing “the first of a long train of abuses” (Walzer 62). Moreover, (and I am speaking now again of native-born citizens) because individuals do not always have a choice in how they arrive at a given location and certainly not where they are born, conferring a set of obligations and holding them to such high global promises on this basis is undermines the principle that consent be given voluntarily and unambiguously (Mouffe 2005, 31).


This discussion of immigrants’ expressions of consent only localizes a problem facing all residents of the United States—citizen and non-citizen, and the focus on young undocumented immigrants’ desire to attain citizenship a means by which we can reeducate our own notions of what it means and what is required to be a citizen. In my next post, I would like to propose a solution that will not only alter the lives of the U.S.’s immigrant community, but will revolutionalize and re-educate American citizens’ relation to government.