Abstract

Excerpted From: Ming Hsu Chen, Colorblind Nationalism and the Limits of Citizenship, 44 Cardozo Law Review 945 (February, 2023) (281 Footnotes) (Full Document)

Citizenship has contradictory impulses: it can foster inclusion, and perpetuate exclusion, of noncitizens. The U.S. Constitution defines rights and privileges broadly for “citizens,” and courts have recognized the word to refer to an enlarging number of racial minorities and vulnerable groups. Noncitizens can be assured national membership and legal equality once they formally naturalize. In Pursuing Citizenship in the Enforcement Era, I find that the acquisition of formal citizenship is necessary for full inclusion in society and that formal status is especially important in times of intensive immigration enforcement when governments view national boundaries as a source of protection against foreign threats--the essence of nationalism. The global pandemic is one of many examples of the U.S. government excluding foreigners for the sake of protecting the health of U.S. citizens, who were given greater liberties to travel and access to health services such as testing and vaccination.

Yet formal citizenship--meaning the possession of official legal status as a U.S. citizen, either through birth or naturalization--is insufficient to ensure membership in a nation. Those on either side of the dividing line of citizenship face challenges with belonging: lawful permanent residents with a pathway to citizenship, naturalized citizens who have traversed the path, and birthright citizens who do not require a path under law and yet still feel they do not belong to their immigrant families. The exclusion falls especially on Asian American, Latinx, and Muslim immigrants, as well as citizens who are racialized as foreigners, regardless of their actual citizenship status. The process of racialization is often disguised as race-neutral--thus, colorblind--despite the racial overtones intertwined with national protection. By virtue of being non-White, these minority groups are limited to partial membership in the United States. Those with partial citizenship lack the substantive components of citizenship, meaning the social, cultural, economic, and political belonging thought to accompany the rights and benefits of formal citizenship. The distinction between formal and substantive citizenship is particularly pertinent for naturalized citizens who may have an array of national origins prior to naturalizing.

The combination of colorblindness and nationalism combine to produce an exclusionary form of citizenship. The first component, the concept of “nationalism,” refers to support for the interests, attitudes, or actions of one's own nation. Classic nationalism refers to a liberal conception of the nation that is sovereign and bounded. It asserts the importance of national borders to protect the nation's interests and to facilitate social closure and self-governance. The term can be used without reference to White supremacy over other ethnic groups. Yet the articulation of liberal national interests can sometimes downgrade the interests of other nations as nationalism seeks to guard against foreign threats to national security, public health, and national identity.

A resurgent form of populist nationalism exhibits an aversion to a non-White minority or multicultural national identity. It pointedly commingles national identity with a dominant racial identity and subordinate racial minority identities, as is the case with White nationalism. For example, President Donald J. Trump built a national identity based on populist White nationalism. At the start of his presidency, President Trump sought to “Make America Great Again” by surrounding himself with restrictionist government officials, sympathizing with White supremacist groups, and enacting policies such as the Muslim travel ban. Once the pandemic hit, President Trump seized on COVID-19 to revive dormant justifications for exclusionary policies against Chinese immigrants, whom he blamed for the “China virus,” and to close the southern border to Central American and Haitian asylum seekers whom he considered racially inferior. His rhetoric suggested that non-White citizens of Chinese, Central American, and Haitian descent did not fit the national identity of the United States.

This Article adopts the classical meaning of nationalism as support for a nation's interests. While its critiques can be extended to the overtly racist and populist version of nationalism premised on racial hierarchy, White nationalism is not the primary concern. Its focus is on pro-national, race-neutral justifications for exclusionary policies that mask racial bias behind pretext and good faith justifications that are nevertheless vulnerable to misuse. In this classic form, liberal nationalism presumes that universal values such as individual liberty, fairness, equality, and self-governance stand at the core of the U.S. national identity. These beliefs animate civil rights statutes and equal protection doctrine; their universality is said to transcend differences of race, gender, and religion. Taken at face value, colorblindness refers to the government's preference for facially neutral policies in a nod to the universal value of equality. The word is used in Martin Luther King's “I Have a Dream” speech and the rallying cries of the civil rights movement.

Notwithstanding the liberal faith, critical race theorists warn that the language of universality can erase enduring racial injustices. Kimberlé Crenshaw points out that the erasure appears in the emergence of colorblindness as a purported means of advancing equality, and in the merger of colorblindness with “post-racialism” following the election of Barack Obama as the first Black U.S. president. But the erasure of racial differences to support colorblind equality has sometimes limited the prospects of using race as a lever of inclusion and has instead repudiated race-based remedies or opposed Critical Race Theory (CRT It can be contorted into a vision of equality that sees the consideration of race as an unnecessary and unproductive part of legal analysis. When used in this way, race neutrality can become pernicious: it preserves White supremacy because “[c]olorblindness does not do away with color, but rather reinforces whiteness as the unmarked norm against which difference is measured” and operates as a “one-way street.” Othering racial minorities limits the prospects for substantive belonging and heightens the exclusionary potential of citizenship.

This Article argues that the reality of “colorblind nationalism” limits formal citizenship as an antidote for inequality. The prior discussion reveals how the two component terms are vulnerable to misuse. Nationalism is common to immigration law, but it can be misused in citizenship law, the laws governing the integration of immigrants already residing in the United States and subject to constitutional and civil rights protections by virtue of their personhood. Given the susceptibility of promoting national identity to populism, colorblind nationalism can fuel the government's use of nationalism as a facially neutral justification for racially exclusionary policies. So doing, colorblind nationalism operates to reify the necessity of border control by employing supposedly race-neutral justifications for harsh immigration policies. The faulty importation of immigration law into citizenship law then bleeds into equality law by mistakenly importing the federal government's broad powers over immigration to justify unequal treatment of racial minorities who are U.S. citizens. This racially disparate treatment transfers the Othering of immigrants onto Asian American, Latinx, and Muslim American citizens who are nevertheless perceived as foreigners--even after they naturalize and even if they are birthright citizens born on U.S. soil. This erroneous treatment is easily missed because its facially neutral tenor can be confused with colorblindness, which itself has strayed from its egalitarian roots. Colorblind nationalism makes inequality hard to defeat in a post-racial era of equality laws.

The innovation of colorblind nationalism is to bring together two scholarly critiques to show the cumulative harm of overreliance on formal citizenship as an antidote to inequality and why existing doctrines will not cure these harms. Immigration scholars, who base formal citizenship on national sovereignty, presume that protecting immigrants requires extending access to formal citizenship through naturalization, adjustment of status, or relief from removal. They must listen to critical race theorists who have pointed out the need to critically examine the institutional bias--intentional, pretextual, and classically liberal justifications vulnerable to misuse--within the federal government's power over its citizens, and to recognize the process of racial formation embedded in citizenship law rather than relying on the myth of colorblindness, race neutrality, and post-racialism.

Racial justice and civil rights scholars presume that racial inequality falls short of constitutional ideals. But they also believe that extending the rights associated with formal citizenship will enhance the substantive belonging of disadvantaged groups; this was the animating belief behind the eradication of slavery, the adoption of the Fourteenth Amendment's Equal Protection and Citizenship Clauses, and the subsequent adoption of civil rights and voting rights legislation to enhance equality for disadvantaged groups. These scholars must listen to critical immigration scholars who recognize the limits of formal citizenship for furthering substantive equality and believe that institutional bias is inherent and inextricable. They favor a more radical reimagining of the structural relationship between citizenship, nation, and equality that decenters the nation in favor of alternate sites of belonging and noninstitutional means for delivering the status and benefits of membership. What the two critiques have in common is that they recognize that promoting formal citizenship does not always help equality; it can hinder it.

This Article is distinctive by going a step further: it suggests that sometimes, seeking more formal citizenship is the problem, rather than the solution. Promoting equality for “racialized foreigners” such as Asian, Latinx, and Muslim Americans, who are perceived as immigrants despite their legal status as citizens, requires reimagining the relationship between race, citizenship, and nation. Existing legal frameworks produce inequality and existing remedies perpetuate those differences.

Part I presents research on the relationship between citizenship and nationalism. It pulls apart the strands of formal and substantive citizenship and shows how they produce inequality. It then connects these theories to colorblindness and CRT. Part II uses case studies to trace the heightening of citizenship insecurity and how expansions of immigration enforcement fueled by a national protection narrative led to a resurgence of racial inequalities. It focuses on official justifications that operate as pretextual denials of racism, as well as classical, liberal, race-neutral constructs such as national security or public health, that produce racially disparate effects even without overt racism. The lingering effects for racialized foreigners problematizes the “benefits” of holding formal citizenship. Part III describes the individual harms and structural obstacles presented by colorblind nationalism given the inability of traditional equality laws to redress inequalities of racialized foreigners. It explains why conventional liberal strategies against racism and inequality will not work: in essence, nationalist conceptions of American borders and national identity place citizenship restrictions under a different set of norms than the usual liberal legal commitments. Part IV draws out the policy implications in lieu of these doctrinal limitations and ongoing racialization. The prescriptions seek to reform the structures that support inequality by seeing race and cultivating membership in other sites of belonging. The Conclusion offers ways to further equality in a new relationship between race, citizenship, and nation.

[. . .]

Immigrants are not the same as citizens under the law. But legal commitments to equality for immigrants who become citizens are at odds with racial hierarchies. Instead of being racialized as forever foreigners, persons who were once outsiders should be permitted to join America's enduring quest for equality and belonging.

Policy solutions emphasizing formal citizenship as the key to unlocking formal equality too easily miss that belonging requires more. The goal is not merely turning noncitizens into citizens, even though naturalization is an important steppingstone to integration. The goal is to build a more equal nation for those who reside in the United States, regardless of prior citizenship status or race. There must be a unified vision of race and citizenship equality to combat colorblind nationalism. This unified vision would reconceptualize national identity, nation-building, and national interests in a way that recognizes the myriad contributions and challenges of immigrants and naturalized citizens. Doctrinally, this would require a reinvigoration of constitutional and other civil rights and a reconfiguration of the balance of federal, state, and local power. Culturally, it would require restoring the American identity as a nation with the potential to include--and be transformed by--newcomers and the cultural diversity they bring into communities.

Even if there are continuities with the broader quest for racial equality, the quest entails distinct challenges for non-White immigrants and naturalized citizens. Because the federal government is the gatekeeper for formal citizenship, courts give the government more leeway to discriminate against permanent residents than they would for discrimination against racial minorities. Whereas institutional racism is unconstitutional in the post-civil rights and post-racial era, nationalism is legally permissible due to cramped definitions of national interest. Government discrimination violates federal civil rights laws, but protection of the American people from economic and public health threats is legally sanctioned. Whereas arbitrary and capricious policymaking violates procedural norms, executive enforcement discretion in national security is legally justified. The legal distinctions are stretched to the breaking point when applied to naturalized citizens who are only considered foreign due to racialized misconceptions about their ability to belong.

Citizenship is necessarily a boundary drawing exercise. But between borders, inclusion should extend to all persons, regardless of race or prior immigration status. Racism and nationalism were embedded in the settlement and founding of the United States. Race and nation continue to vex belonging when immigration fuels the growth of non-White communities consisting of immigrants and naturalized and U.S.-born citizens. Without making conscious efforts to scrutinize colorblindness and nationalism, colorblind nationalism will perpetuate inequality.

Professor and Harry & Lillian Hastings Research Chair, University of California College of Law San Francisco (formerly UC Hastings); Faculty-Director of Center for Race, Immigration, Citizenship, and Equality (RICE