Abstract
This article addresses the question of how the increasing revival of interest in citizenship as a basis for rights in constitutional thought will affect aliens-people who lack citizenship by formal definition. Specifically, the article considers the question whether aliens will necessarily suffer in the wake of the recent citizenship turn in constitutional law and theory. Although there is a good case to be made that aliens will be disadvantaged, some constitutional commentary from the 1970's provocatively suggests that the position of aliens would not necessarily be undermined if we were to recast our conception of constitutional rights in the language and structures of citizenship. This article contends that the prospect of citizenship for aliens, however paradoxical, is not impossible. This is because citizenship is, in our law and conventional understandings,a divided construct. The status of citizenship and the rights we associate with citizenship are not always coextensive. We conventionally talk about "second-class citizens ": these are people who enjoy status citizenship but who nevertheless are denied the enjoyment of citizenship rights or "equal citizenship. "Aliens may, conversely, be said to enjoy certain incidents of "equal citizenship" in our society by virtue of their possession of an important range of fundamental rights, notwithstanding their lack of status citizenship.
But while "alien citizenship" is not an entirely incoherent notion within the terms of conventional constitutional thought, this article argues that the citizenship that noncitizens can aspire to remains limited in scope. This is because the constitutional ideal of equal citizenship is committed not only to universal rights (thereby including aliens) but also to an ethic of national solidarity and to a practice of bounded national membership. It is by virtue of these nationalist commitments that aliens-so long as they remain aliens-can aspire to partial citizenship at best.