Journal of International Migration and Integration

, Volume 13, Issue 2, pp 147–163

Patriots in the Making? Migrants, Citizens, and Demos Building in the European Union

Authors

Article

DOI: 10.1007/s12134-011-0210-8

Cite this article as:
Fernández, C. Int. Migration & Integration (2012) 13: 147. doi:10.1007/s12134-011-0210-8
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Abstract

Almost 20 years ago, Jürgen Habermas launched the idea of constitutional patriotism as a proposed solution to the tension between citizenship and national identity in the European Union. Since then, constitutional patriotism has remained a key concept in debates on European Union (EU) citizenship and democracy. This article, as so many before it, scrutinizes the meaning and viability of the concept. Unlike most others, however, it focuses less on the content of the concept and more on the subjects to which it is assumed/supposed to apply. I argue, firstly, that constitutional patriotism is not a viable or even desirable ideal for the European demos in its totality. The potential patriots of the EU are not the large majority of European Union citizens who live in their home country but migrants from other member states and nonmember states who are foreigners in their host countries. Secondly and accordingly, I argue that advancing constitutional patriotism means improving the status of foreign nationals in general and third-country nationals in particular. Connecting the acquisition of EU citizenship to domicile as opposed to member state nationality is one venue for such improvement. I discuss what this could imply and defend it as a means of building a truly European demos.

Keywords

Constitutional patriotismEuropean unionPostnational citizenshipMigrantsDemos building

Almost 20 years ago, the German philosopher Jürgen Habermas published a much discussed article with the title “Citizenship and National Identity: Some Reflections on the Future of Europe” (1995).1 In the article, Habermas describes the emergence of a new Europe that is marked by the post-1989 reunification and nation-building projects in East and Central Europe, by the growing influx of non-European migrants and by the struggles for European integration. In these processes, a strong tension between the civic bond of citizenship and sentiments of national identity is shown; the former becoming increasingly open, inclusive, and liberal, the latter increasingly divisive, excluding, and chauvinistic. As reunification, nation building, immigration, and European integration roll on, the tension grows. The purpose of Habermas’ article, quite simply, is to sketch a solution that will reduce the tension. In the Europe to come, Habermas asserts, the relation between citizenship and national identity, between rights, duties, and belonging, has to be conceived and constructed differently. It should build on something more inclusive and universal than notions of a common history, culture, and ethnicity, and on something more animated and engaged than a thin formalistic layer of rights. Rather, it should build on identification with a constitution that expresses the shared democratic values and norms of the polity—the particular loyalty and pride that Habermas calls “constitutional patriotism”.

Constitutional patriotism was proposed as a solution to a general and seemingly omnipresent tension between citizenship and national identity. More specifically, it turned out to be a timely and influential contribution to the debate on European Union (EU) democracy following in the wake of the Treaty of Maastricht (1991) and the German Constitutional Court’s reservation to its democratizing ambitions.2 In the ensuing debate on the treaty, constitutional patriotism was and continues to be the subject of endless discussions on how to make Europeans feel a stronger sense of unity with each other and with the EU, in spite of linguistic, ethnic, and cultural differences. Maybe an identity derived from constitutional pride and loyalty can unite a divided Union, stimulate citizen participation and engagement, and thereby make the Union more legitimate in the eyes of the people. Maybe it can point to a middle way between those who claim that democracy on a European level is impossible because of the alleged lack of a European demos and those who argue that it can be accomplished through institutional reform and more supranationalism. Constitutional patriotism, according to its defenders, can be understood as a solution to both, because it refutes the notion of forced tradeoffs between supranational and national democracy, between civic bonds and deeply felt identities. It suggests that citizenship and identity can be reconciled, albeit in a new way, so that European democracy will be entrenched not only in carefully designed institutions, but in the mind and spirit of the people.

Habermas’ idea of constitutional patriotism—which has been developed in several later publications—has been widely praised for its theoretical originality and sophistication, and criticized for its unrealistic pretentions and vagueness. I have no intention to rehearse these accounts here, because I agree with both. Rather, my ambition is a more constructive and concrete one, the aim of which is to bring Habermas’ lofty ideal of constitutional patriotism “down to earth”. Yes, it is idealistic and far-flung, but not without promise. Yes, it is vague and abstract, but not without concrete implications. What I want to find out is what this ideal actually may offer to the development of a European demos. More precisely, the aim can be formulated as two questions:
  • Who are the potential constitutional patriots of the EU?

  • And how might their “cause” be advanced in the EU?

I will argue that constitutional patriotism is not a viable or even desirable ideal for the European demos in its totality. The potential patriots of the EU are not the large majority of European Union citizens who live in their home country, but migrants from other member states and nonmember states who are foreigners in their host countries. Citizenship of the EU offers a lot to foreign country nationals, whereas it offers significantly less to “home country nationals”. It reduces the burdens of living abroad and facilitates integration in a way that makes foreign country nationals more prone to recognize the benefits of European integration and EU citizenship. The potential constitutional patriots of the EU, I will argue, are not the usual patriots, the devoted defenders of the majority. The patriots are those on the margins of the member states, the migrants.

How, then, does one create a demos of potential constitutional patriots out of a body of migrants? I will propose a change in the rules of acquisition so that citizenship of the EU can be derived from the principle of domicile as opposed to member state nationality. Such a change is not a “whole sale solution”, far from it, but it is a step in the right direction. It would make the European demos-to-be more autonomous from national demoi and thereby more inclusive in the postnational and post-ethnic meaning of the word. It would also create a more uniform and unambiguous route to EU citizenship, which in turn would facilitate further development of the bond between the Union and its designated patriots.

The argument advances in three steps. The first section focuses on the concept of constitutional patriotism and its relation to the question of a European demos. I describe the meaning of the concept and discuss its potential and limitations in the EU. In the second section, I seek to show more concretely what the proper sphere of application is and who it engages. I describe the division between first-, second-, and third-country nationals, and discuss the implications for EU citizenship and constitutional patriotism. In the third and final section, the principle of domicile is introduced and defended as a means to a more inclusive citizenship and as a means to advance constitutional patriotism in the EU.

Defining Constitutional Patriotism

A patriot, according to the dictionary, is a “person who loves his or her country, especially one who is ready to support its freedoms and rights and to defend it against enemies and detractors”. Patriotism is “the quality of being patriotic” (OED). Constitutional patriotism, by inference, is a form of patriotism which is driven and motivated by devotion to the constitution of a country. The combination is something of a paradox because it seems unlikely that such an abstract and impersonal object of allegiance (the constitution) would arouse emotions strong enough for people to sacrifice their lives on the battlefields (patriotism). It is more plausible to assume that people are patriotic about a common destiny, religious beliefs, or a shared way of life. The paradox increases when the concept is applied to an even more abstract and impersonal entity like the EU, which lacks a constitution altogether. Some clarifications are necessary.

Concept

The concept of constitutional patriotism has to be understood metaphorically, not literally. It is a mindset rather than a precise concept. The concept of constitutional patriotism was first formulated as a contribution to the Historian’s debate in Germany as an answer to the question: In what sense may a German feel like or even be proud of being German? Habermas argued that due to Germany’s problematic past and the ethnic, exclusionary undertones of German nationhood, a German identity could only be legitimized if it was derived from constitutional principles (Pensky, 2001, p. xii–xiii; Habermas 1989). Germans can be patriots through their loyalty to the constitution and the political principles it embodies, but not in other ways (Habermas 1995, p. 264). For Habermas, the transition from an ethnic to a civic and democratic conception of the nation represents—or should represent—what Germany has learnt from its experiences of Nazism and the Second World War. In later works, he has applied more or less the same thesis to the EU (see Habermas 1995; 2001) and just as constitutional patriotism offers a way out of Germany’s dark history, he claims that it offers an opportunity for political integration—as opposed to mere economic integration—in a Europe that is divided by nations and ethnic groups. Particularly important for this scenario is the emergence of a common public culture which is equally accessible to all citizens, not just to adherents of the dominant majority culture(s). This is especially relevant in the case of the EU, which so apparently is constituted by a collection of minorities (as stated by the German Constitutional Court). What Habermas says of Germany is therefore equally valid in the EU:

The majority culture, supposing itself to be identical with the national culture as such, has to free itself from its historical identification with a general political culture, if all citizens are to be able to identify on equal terms with the political culture of their own country. To the degree that this decoupling of political culture from majority culture succeeds, the solidarity of citizens is shifted onto the more abstract foundation of a ‘constitutional patriotism’ (Habermas 2001, p. 74; cf. Habermas 1997, p. 263).

It deserves to be emphasized that, for Habermas, the constitution of a political community is much more than just a fixed legal structure. It is the embodiment of a common ethos that defines the founding ideas and spirit of the community. To be a constitutional patriot is to be devoted to a set of principles that assures all citizens the status of equal and free co-authors of a shared democratic order. Constitutional patriotism, then, is both a result of and a precondition for European democracy (Habermas 1997, p. 262).

Habermas’ constitutional patriotism is strongly connected to the theory of deliberative or discursive democracy for which he has become so famous. The development of a postnational attitude or relation toward the state and the EU is a step toward a European public sphere where political dialog and public opinion are transnational. The communicative processes of deliberative democracy create (new) civic political cultures that surpass the ethnic cultures upon which most European nation-states rest, whereby ethnic loyalties are replaced by constitutional loyalties (Habermas 1995, pp. 262–264; 2001, pp. 73–74). The resulting postnational attitude or outlook resides both at the level of the state and of the EU because they enable one another. Again, the German experience serves as an example. Membership in the EU gradually changed German identity from one based on ethnic homogeneity to one more accommodating of diversity. The engagement with Europe transformed not only Germany’s relation to the (former) strangers of German national identity, but its very self-conception. In that sense, the mutual dependence between state and EU is central to Habermas’ conception of what constitutional patriotism is and what it can accomplish (Habermas 1995, p. 264).

Potential and Limitations

The attraction of constitutional patriotism as a way of conceptualizing the European demos lies in its entrenchment in political principles that are distinctively public, and therefore also transparent and inclusive. It points out an egalitarian purpose for European integration and demos building that stands in marked contrast to the unequal impact and rewards of market integration, and to the divisive forces of national and ethnic pluralism. In fact, the drive of Habermas’ application of constitutional patriotism to the EU’s quest for a demos is motivated by the need to counterbalance market-led integration with non-economic forces. Thus conceived, it offers a direction of further or alternative integration which is based on politico-ethical principles, rather than market functionalism or national chauvinism.

The main problem with Habermas’ conception, however, is that he overstates the potential of the idea. The Habermasian conception of constitutional patriotism is strongly linked to more general ideals about deliberative democracy where public discourse and dialog play a crucial role. The theory stipulates criteria for democratic decision making that involve transparency and access to information, rational deliberation, the free formation of opinions, the comparison and elaboration of arguments, and the opportunity for all voices to be heard (see Habermas 1996). These criteria are vital to his conception of democracy and to the democratic process’ ability to create new political identities that are post-ethnic and postnational. As citizens take part in and are affected by the multitude of communicative processes involved in democratic decision making, they come to identify themselves in terms of those processes and the (constitutional) principles governing them. This is a demanding ideal for democracy in any kind of setting because it expects a lot of the communicative structures of society and the communicative skills of citizens. As an ideal, it may be conceived as relevant and desirable in a consolidated national democracy. But in the EU, it seems to lack the most fundamental preconditions that make it worth pursuing to begin with. There is very little indication that the communicative structures needed to sustain a European public sphere are materializing. The party systems, the media, the labor unions, the associations of civil society, and so on tend to be divided by national borders and not the least linguistic barriers. Habermas even concedes so himself, although he does not moderate the ideal:

There can be no European federal state worthy of the name of a democratic Europe unless a Europe-wide, integrated public sphere develops in the ambit of a common political culture: a civil society with interest associations; non-governmental organizations; citizens’ movements, etc.; and naturally a party system appropriate to a European arena (Habermas 1997, pp. 263–264).

My contention, therefore, is that we have to expect significantly less from constitutional patriotism than the demos building wonders that Habermas has in mind, at least in a foreseeable future (see Bellamy 2000; Müller 2008). The EU simply does not meet the conditions of the evolving postnational political space that his conception requires. The question is, what should we expect?

The guiding idea of constitutional patriotism is its distinct form of universalism. It is on the one hand a universalism that focuses on the equal inclusion of all subjects/citizens regardless of ethnicity, religion, origin, and so on. A society which is universal in this sense presupposes laws, institutions, and a political culture that are equally valid to all, not just to the majority or the elite (Habermas 2001). “Equally valid”, in this passage, means something more than objective and neutral; it means equally relevant and accessible. On the other hand, and as a consequence, this universalism is not the typical Enlightenment—Kantian—cosmopolitanism which supposedly stretches across humanity and makes everybody thinly attached and detached in more or less the same way. It is a universalism “of solidarity” that stretches out to the unjustly excluded, marginalized, and unrecognized; a universalism from the margins to the center as opposed to from the center to the margins. The central concern is not to change the world or the people, but to change the center so that the previously excluded can be included—the “inclusion of the Other” (cf. Habermas 1998). In my understanding of constitutional patriotism—which is less ambitious than Habermas’—the emergence of a European demos does not require the substitution of cultural national identities for secular constitutional loyalities. What it implies is the development of a European demos sufficiently separated and autonomous from the member states to include those who have traditionally been excluded and continue to be excluded from national demoi. This is the defining challenge and ethos of constitutional patriotism. In other words, constitutional patriotism as a membership and form of belonging should focus on those most in need of it. I would go as far as saying that it is those who need it the most that are most likely to become constitutional patriots.

To say something more about the potential of constitutional patriotism, we need to know more about the designated patriots. Where do we find them and who are they? It is to this question that I now turn.

Finding Constitutional Patriots

Citizenship is the “thickest” form of membership in a political community. It is composed of external requirements—rules of acquisition—that function as a boundary of exclusion and inclusion. It is also composed of a mix of internal conditions—rights and duties as well as less tangible values and norms—that regulate relations between citizens and between citizens and political authorities. The external requirements configure the demos by determining the terms of inclusion while the internal conditions configure the demos by vesting the citizenry with certain resources and (expected) qualities. Thus conceived, citizenship is the means by which a demos is demarcated and shaped over the time.

In the EU, citizenship is one of the several democratizing innovations introduced by the Treaty of Maastricht. It was launched as a way of bringing the people closer to the union by making the citizens-to-be more involved and influential. The treaty contained a short list of rights (Article 8) that bestowed on every union citizen the freedom of movement (8.a), the right to vote and run for office in local and European Parliament elections in the country of residence (8.b), the right to diplomatic protection outside the Union by member states other than the country of nationality (8.c), and the right to petition the European Parliament and appeal to its Ombudsman (8.d). Long before the Treaty of Maastricht, however, there was a policy toward citizens in the European Community (EC) which revolved and still revolves around the freedom of movement and associated civil and social rights (Meehan 1993; d’Oliveira 1995; O’Leary 1996; Wiener 1998; Downes 2001). The policy and rhetoric of citizenship in the EC/EU has also included elements of culture, symbolism, and similar attempts to evoke sentiments of a common belonging among Europeans (Adonnino 1985; CEC 1993; CEC 1997; Reflection Group 1995; Weiler 1999a; Shore 2000; Fernández 2003). In the following, I will discuss how the idea and institution of union citizenship has worked to create a body of citizens and noncitizens, and their respective “potential” for developing “constitutional patriotic qualities”.

Citizens and Noncitizens

Union citizenship is acquired on the basis of nationality, as stated in the opening lines of Article 8 in the Treaty of Maastricht. It cannot be acquired through birth or naturalization, but only as the automatic result of member state nationality, the terms of which are determined by each member state.3 In 2008, the number of people holding union citizenship was approximately 477 million. These can be divided into two categories, first- and second-country nationals. First-country nationals are people who live in the country of their nationality, i.e., Swedes living in Sweden, French living in France, and so on. The size of this group was estimated to roughly 466 million people in 2008 (Eurostat 2009). To this overwhelming majority of citizens, the direct impact of union citizenship is modest. The most visible effects are the right to appeal and petition EU institutions and the Ombudsman, although this is a right enjoyed by any resident in any of the member states. Other rights include the right to vote and stand as candidate in European Parliament elections, although this right actually preceded the inception of union citizenship by more than a decade (1979). From the viewpoint of first-country nationals, union citizenship is quite marginal and indirect. It is marginal in as much at it constitutes a small complement to the much more influential national citizenship. First-country nationals are rarely reminded of its existence apart from when they—a minority of the citizenry—every 5 years vote to the European Parliament or when they travel in the EU. It is indirect in as much as it is mediated through the political and administrative systems of the member states, while the EU remains fairly distant to most Europeans in their political lives (Bellamy 2008). Ulrich Preuss’ captures this indirectness well:

Since most Community law is implemented by the administrative agencies of the member states rather than by distinct Union agencies, the Union citizen who exercises his or her ‘European’ rights is mostly confronted with agencies of (national) member states. The European character of the rights conferred by the Community is rarely visible. Individuals who live in their native country will be confronted with their national government agencies, and whether they enforce national or Community law will hardly be a matter of interest to them (Preuss 1998, pp. 145–146).

To second-country nationals, on the other hand, the effects of union citizenship are more visible and significant. Second-country nationals are people living in another member state than the country of their nationality, i.e., Swedes living in France, French living in Sweden, and so on. Since the early 1990s, this group has been steadily growing and amounted to an estimated 11 million in 2008 (Eurostat 2009). From the 1970s and onwards, second-country nationals have been a prioritized target group of citizen policies. As one of the original four freedoms, European integration turns on the free movement of people (workers)—as well as of capital, goods and service—and it has been the explicit ambition of the EC/EU to facilitate movement and alleviate the burdens of living and working abroad by reducing the inequalities between first- and second-country nationals. This was particularly evident in the ‘special rights’ that were introduced in the late 1970s to make second-country nationals “privileged foreigners” in the EC, but it has been a general trend in the process of integration and continues to be so (Wiener 1998: 90f; O’Leary 1996, pp. 236–237).

To second-country nationals, union citizenship is important because of the rights it directly confers on them qua union citizens—most notably the right to vote and run for office. Above all, however, union citizenship is important because it entitles them to resources, benefits, and goods that were previously reserved for natives. It grants them access to national welfare systems if and when this is imperative for their ability to move and reside freely throughout the Union. Such social benefits may include the right to publically financed child care, juridical council, and study grants.4 As the EU Court’s interpretation of who a free mover is and what he/she is entitled to has become increasingly wide and generous, second-country nationals have come to stand out as the primary beneficiaries of union citizenship (Warleigh 2001; Weiler 1999b). The burdens of foreign residence have become significantly easier to bear and the reliance on EU institutions and fellow union citizens stronger. From this perspective, the feeling and experience of being a union citizen emerges not among the large majority of first-country nationals who live their lives in predominantly national contexts and through predominantly national institutions, but among the much smaller group of the union citizenry who live in a foreign member state and therefore stand in a closer relation to the EU and benefit more directly from its legislation (Preuss 1998, pp. 146–147; Kostakopoulou 2007, p. 642).

The population of the EU contains also noncitizens, people who are permanent residents in one of the member states but not nationals. This group of the population is normally referred to as third-country nationals. In 2008, they were estimated to almost 20 million people and make up the majority of foreign citizens in most member states (Eurostat 2009). Third-country nationals constitute a very heterogeneous group, socially as well as legally. To some, the connection through nationality to a country outside the Union is a heartfelt identity and an insurance of a future return. To others, it is merely an inherited nationality that means little to whom and with what they identify. Due to the differences in national legislation, there are strong variations in rights and status from one member state to another. Some countries grant third-country residents the right to vote in local and regional elections, whereas others do not. Some countries have liberal terms for naturalization (5 years and good behavior), whereas a growing number of countries are considerably stricter. As a group, however, they are less privileged than second-country nationals because of their exclusion from union citizenship.

As opposed to second-country nationals, third-country nationals have normally been considered as exclusively national responsibilities and have therefore been largely invisible in EU legislation (Kostakopoulou 2002, p. 445; Maas 2008). The Treaty of Rome explicitly states that the freedom of movement applies only to citizens of the member states and not to others (Articles 52 and 59). In the 1980s, the situation of third-country nationals slowly made its way up to the political agenda, with both the Parliament and the Commission proposing that the rights to free movement and establishment of member state nationals be extended to third-country nationals. But such initiatives have been consistently opposed by the member states. After Maastricht, the situation of third-country nationals has gradually improved. Cooperation in immigration and refugee policy has been facilitated through the establishment of a third pillar, justice and home affairs, and through this pillar’s gradual communitization5 after the Treaty of Amsterdam (1999). The Charter of Fundamental Rights established in Nice (2000) and incorporated into the Treaty of Lisbon (2009) implies a stronger pressure on member states to meet the needs and demands of third-country nationals. As a result of these and other developments, it has become easier for third-country nationals to reunite with family members scattered across and outside the EU, and to move throughout the Union (Iglesias Sánchez 2009, pp. 798–799; de Waele 2010, pp. 331–333). Furthermore, the protection against discrimination on the basis ethnicity, religion, and nationality has become stronger in EU law, albeit not always in practice (Benedí Lahuerta 2009).

Nonetheless, third-country nationals remain excluded from union citizenship. Developments after Maastricht have brought about improvements, but they have also confirmed the difference in status between second- and third-country nationals. As opposed to second-country nationals, third-country nationals have no right to work, education, or health care outside their country of residence and they tend to be conceived as a burden for the welfare systems of the member states. The general, implicit norm is that they should be kept within the boundaries of the host society so as to avoid creating tensions in the relations between member states (Maas 2008; García 1997; Hedemann-Robinson 1996, pp. 325–326; Martinello 1997). This goes especially for women who on average do not work and pay taxes to the same extent as men, and therefore constitute a greater burden (Shore 2000, p. 82; Lutz 1997, pp. 104–106; Kofman 1995, pp. 131–133).

Instead of admitting third-country nationals to become union citizens, the Union has developed a parallel membership, a denizenship, which does not include any political rights and only limited access to the civil and social rights granted to second-country nationals. Third-country nationals are thus legally excluded from membership in the European demos of union citizens. But they are also socially excluded in as much as the public recognition that citizenship bestows—the recognition of being one among equals—is withheld.

Citizens and Patriots

Returning to our main concern, what kind of demos does union citizenship create? In most respects, it is a fairly disengaged and unaware demos. To the large majority of union citizens who are first-country nationals, the political activities of the Union are seldom very visible or important. The European demos that has emerged through the institutionalization of union citizenship is not really postnational in the Habermasian sense discussed above. Nor is it national, however. It emerges in the environments where second-country nationals become engaged with national welfare and administrative systems in the city of residence. The most visible effect of union citizenship, then, is not as a new level of political community above the national, but rather as small “pockets” of semipostnational and localized communities within member states. To cite Preuss once again:

Union citizenship is not so much a relation of the individual vis-à-vis Community institutions, but rather a particular sociolegal status vis-à-vis national member states, which have to learn how to cope with the fact that persons who are physically and socially their citizens are acquiring a kind of legal citizenship by means of European citizenship without being their nationals (Preuss 1998, pp. 146–147).

Union citizenship is enacted and practiced in local settings through mainly national institutions, but it draws on rights and provisions that are conferred by the Union, directly and indirectly. It is, to use Thomas Faist’s phrase, a “nested membership” connected to multiple and partly interrelated sites of power (Faist 2001; see also Meehan 1993; Wiener 1998). It is often envisaged as an additional, thinner level of membership neatly adjusted above the national, or as one of many concentric circles of membership from the local to the global (see Falk 2000), but this is misleading. A better way to conceive of it, I believe, is as a complement that fills the gaps between national citizenships and applies to the people that do not fit into them. Union citizenship is strong where community law prevails and where the Court has supremacy. It is most beneficial to citizens who live abroad, second-country nationals, and has significantly less to offer those who do not (Bellamy 2008, p. 598).

It is to these semi-postnational demoi that the Habermasian ideal of constitutional patriotism has its most viable application. To hope for constitutional patriotic bonds between the EU and its entire citizenry, most of which seldom encounter the Union in any direct way, is misguided. Applied to second-country nationals, however, constitutional patriotism becomes a much more tangible ideal. Second-country nationals are generally more vulnerable than natives because of their status as partial outsiders in terms of rights, security, language, culture, social networks, and so on. Union citizenship has served them well and they are often reminded of it in their daily lives. Hence, identification with the EU as an inclusive, egalitarian, and democratic polity is potentially stronger among them than among first-country nationals.

The problem of union citizenship is that it excludes third-country nationals, a large group of people who are very similar to second-country nationals except for not being nationals of any member state. Because union citizenship implies freedom of movement and ensuing rights and provisions, and because union citizenship is derived from member state nationality, member states can adjust their own terms of naturalization to protect their welfare systems from third-country nationals. Indeed, the connection between union citizenship, nationality, and the freedom of movement gives protective member states a mutual interest in keeping naturalization rates among third-country nationals as low as possible. While member states can do very little to hinder the free movement of member state nationals, they can effectively constrain the movement of third-country nationals. As Faist points out:

The ability of member states to regulate admission to state citizenship stands in stark contrast to their growing inability to define who is a ‘worker’ and thus able to cross borders freely and engage in economic activities. Access to Member State citizenship is an instrument wielded by the now semi-sovereign states to fend off continued encroachment of EU case law on access to their labor markets. Member States try to offset their sovereignty losses concerning the free movement of labor by protecting their exclusive right to naturalization (Faist 2001, p. 48; see also Benhabib 2002, pp. 713–714; Bhaba 1999, pp. 5–6; Maas 2008, pp. 591–593).

Third-country nationals work and pay taxes just like citizens. They are as governed by local, national, and European authorities as other groups of the population in their host countries, yet they have no formally granted right to political influence. Because they are foreigners in their country of residence, they are particularly dependent on complementary, non-national authorities such as those of the EU. Just like second-country nationals. As it stands, however, union citizenship puts third-country nationals in an opposing position vis-à-vis citizens and member states. If we believe that the EU is something more than the sum of its member states and if we believe that union citizenship should amount to something more than an aggregate of national demoi, the current state of affairs is strongly objectionable. More specifically, if we believe that the acquisition of union citizenship and sentiments of constitutional patriotism have to be grounded on need and inclusiveness, as argued above, the exclusion of third-country nationals is a contradiction in terms (cf. Føllesdal 1998; Kostakopoulou 2007, p. 646).

It follows from my argument that second- and third-country nationals, not just the former, should be regarded as the potential constitutional patriots of the EU. The advancement of constitutional patriotism should focus on them, not on the large mass of first-country nationals that the Union has rather unsuccessfully sought to win over in the past.

Advancing Constitutional Patriotism

There is no easy solution to the demos problem of the EU. This is the first, but not the last, conclusion a theory of constitutional patriotism and union citizenship has to make. A constructive approach needs to depart from sober recognition of this assertion. Since my expectations of constitutional patriotism are lower than those of Habermas, my suggestions for future improvements are less ambitious. Focusing on only one aspect of citizenship, the terms of acquisition, I will discuss how union citizenship can be made more inclusive and in what sense it may serve to advance constitutional patriotism among foreign nationals.

The Principle of Domicile

The terms of acquisition are an often neglected aspect of citizenship. Modern theories tend to focus much more on the content of citizenship than on the membership boundaries and the mechanism of inclusion that it unavoidably constitutes (Bader 2000, p. 1; Brubaker 1992, pp. 21–23; Walzer 1983, p. 31), although a significant shift of attention toward such questions has taken place over the last decade. The boundaries and mechanisms of acquisition are important. Obviously, they are important to anyone who wants to be included and become a citizen. But they are also important to the community itself because they are an expression of what the community aspires to be—tolerant, cohesive, pluralist, or something else. The ideas and values upon which acquisition is based form part of a public ethos, which defines the community to both its members and its outsiders.

In order for union citizenship to become more inclusive, it has to become more autonomous from national citizenships. At present, it is a derivation of nationality since one has to be a national of a member state before one can become a union citizen. This means that third-country nationals are excluded, as discussed above, and it means that there are as many ways to become a union citizen as there are member states (27), some more accessible and liberal, others significantly less so. Viewed from an outside perspective, this is a strange order which should be reversed. National citizenship represents a deeper commitment because it means membership in a political community that demands much more of its members—in extreme cases, the duty to bear arms and go to war. Union citizenship, on the other hand, is less demanding. It entails fewer rights, virtually no duties and it is not as pervasive because it regulates fewer areas of social and political life. For this reason, union citizenship should come “before” national citizenship. It is also desirable that union citizenship be separated from nationality if a stronger sense of European demos is to evolve, one that unites migrants, as it were, in their common experience as national foreigners and union citizens. The conscious-raising effects of an autonomous citizenship must be considered as a minimum requirement for sentiments of constitutional patriotism.

One way of making union citizenship more inclusive and autonomous is to change the rules of acquisition. Instead of having it based on nationality it could be based on domicile, “jus domicilium”, which would imply the inclusion of anyone who is a legal and permanent resident in one of the member states.6 The definition of the concept of domicile varies somewhat from state-to-state. The EU Court uses a wide definition that takes several things into consideration: family ties, economic conditions, duration of the stay, and the person’s intentions. Central to all of these is the place of residence. In both national and international law, domicile has become an increasingly common basis for individual rights (see Soysal 1994; Linklater 1998, p. 186, 192; Lokrantz Bernitz 2004, p. 294). It is a legal adaptation to the fact that people migrate and settle in new places without giving up the ties and connections to the country of origin. Conferring rights on the basis of domicile is a way to establish a membership for the growing category of people who live “between” two national communities. It offers partial inclusion to migrants who cannot or will not become naturalized citizens. The principle of domicile does not collide with national citizenship and it is a legal recognition of the social fact that political membership can be less pervasive and permanent than national citizenship is. Applied to the EU, the principle of domicile implies a harmonization of the acquisition rules and a relocation of ultimate responsibility from the member states to the Union. Thereby, the unequal access to union citizenship between member states would disappear together with its exclusion of third-country nationals (Garot 1998).

The principle of domicile has been criticized as insufficiently ambitious by some, overly ambitious by others. It is insufficiently ambitious, the argument goes, because it accepts large differences between national citizenships and thereby freezes the development toward a more coherent (federal) EU. By constructing union citizenship as a separate matter that does not imply very much for national citizenships in terms of harmonization, further substantial progress is seriously impeded (see Bauböck 1997, pp. 14–16). I have few reasons to object to this apart from adding that chances for substantial progress are dim anyway, and that given the condition of union citizenship a transition to the principle of domicile would be a significant step ahead.

In the contrasting argument, the implementation of citizenship acquisition through domicile is too difficult. Instead, the Union should pursue a policy which confers the same rights to third-country nationals as to second-country nationals without granting them union citizenship (O’Keefe cited in Lokrantz Bernitz 2004, p. 495). This is more or less the path chosen by the Union. As realistic and pragmatic as it may be—and it is certainly better than nothing at all—this line of reasoning misses several important points. First of all, holding union citizenship implies more than the actual rights it contains. It means recognition and membership in a political community of citizens who (should) think of themselves as demos. Secondly, the promotion of special rights for third-country nationals is the kind of soft law policy that leads to uneven and uncertain advancements, which in the end tend to create new discrepancies and inequalities between countries. As such, it is less efficient than acquisition through domicile. Thirdly, acquisition through domicile may be difficult to implement, but not because it is a particularly complicated principle. It is less a question of what is juridically feasible, since a concept of domicile already exists on the level of the Union, and more a question of what the member states want and are willing to accept (Lokrantz Bernitz 2004, p. 497; Garot 1998, p. 248).

Foreigners as Patriots

The connection foreigner–patriot is counter-intuitive, perhaps even provocative, because patriotism is so strongly associated with national identity and pride. Even when applied to the EU, we tend to think of patriotism as stemming from the constitutive parts of the Union, the nations, rather than from the Union itself. From that perspective, the notion of European patriotism resembles a pan-national ideology or movement that emerges from the historical origins, cultural traits and/or moral values that Europeans are believed to have in common (cf. Todorov 2005, ch. 7). My contention, however, is that we should think of European constitutional patriotism the other way around; as an affiliation and identity that has to be invented and built from “scratch” on a foundation that is beyond the nation state. The reasons for this are both empirical and normative.

Empirically, the repositories of national culture, identity, and values are more likely to stand in the way of European patriotism than to nurture it, more likely to divide than to unite (Lehning 2001, p. 276; cf. Smith 1997; Pocock 1997; Miller 2000; Bellamy 2008). Whatever commonality might be extracted from European pan-nationalism is bound to be a much thinner and more ambiguous connection than what is warranted by constitutional patriotism. Precisely because most people of the Union live their lives within and through predominantly national communities, the distinctly European patriots are more likely to be found among foreign nationals than among first-country nationals. If there is any kind of community that is European in the postnational sense—both legally and socially—it is the community of migrants who are foreigners in their country of residence. Foreign nationals are more dependent on and susceptible to EU legislation and policy than first-country nationals. Consequently, they are more likely to benefit from it and feel protected by it. If European patriotism, just like other forms of patriotism, derives from need, foreign country nationals will be more prone than others to develop patriotic sentiments.

Normatively, the connection between foreign nationals and patriotism can be justified with reference to the universalistic solidarity inherent in Habermas’ idea. It is modeled on the inclusion of the Other—second and, above all, third-country nationals—not on the tighter integration of the already included. The prefix “constitutional” implies that it is a particular form of patriotism, which is supposed to be “cleansed” from ethnic, religious, and nationalistic undertones. It is an ideology which can appeal to its public only by virtue of the secular and universal principles of the law, equally relevant to and recognizing of all, as it were. Such an ideology offers too little to the particularistic national demoi, but it offers a lot to a European demos of foreign nationals. The incorporation in the Acquis Communautaire7 of rights and freedoms associated with domicile and union citizenship—provisions that first-country nationals can take for granted—is nothing trivial to foreign nationals. It is the kind of legislation that may arouse stronger sentiments of belonging and gratitude. Admittedly and at best, it “wins over” only a small portion of the European citizenry to constitutional patriotism. The rest, I think, will not be won over for a long time to come.

Footnotes
1

The article, “Citizenship and national identity: Some Reflections on the Future of Europe”, first appeared in Praxis International 1992.

 
2

The court held that the EU cannot be a democracy because it lacks demos. The EU consists of a number of minorities, national demoi, each with their own culture, identity and conception of the public interest. Therefore, decision making in the name of a fictitious majority cannot be legitimate (see Grimm 1997 for a defense of the ruling and Weiler 1997 for a critique).

 
3

See Micheletti v. Delegación del Gobierno en Cantabria (369/90); Closa 1995, p. 510; Guild 1996, pp. 44–45.

 
4

See for example Martínez Sala vs. Freistaat Bayern (85/96); legal process against H. O. Bickel and U. Franz (274/96); Rudy Grzelczyk vs. Centre publique d’aide sociale d’Ottignies-Louvain-la-Neuve (184/99).

 
5

In the idiom of the EU, “communitization” means the transfer of a policy area from the intergovernmental method of decision-making to the community method. It thus implies a relative shift in power from the member states and the Council to the Commission, the Parliament and the Court (community law), whereby (binding) decisions are easier to reach.

 
6

Several scholars have proposed this since the Treaty of Maastricht. See among others Delanty 1997, 2000; Garot 1998; Føllesdal 1998; Staples 1999; Lokrantz Bernitz 2004; Kostakopoulou 2007.

 
7

In the idiom of the EU, the ‘Acquis Communautaire’ denotes the accumulated legislation, legal acts and court decisions which constitute the body of European Union law.

 

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