Few societal aversions seem as automatic as those directed against dual nationality. The very idea of dual nationality seems antithetical to the traditional conception of the state and its relationship to individuals, a conception dominated by notions of indivisible allegiance, which leave little room for multiple attachments. In the common understanding, dual nationality has been associated with shadowy fifth columns and reviled as an intolerable sort of political polygamy. Even as the threat of subversion dissipates in the post Cold War world, dual nationality remains the object of lingering but prevalent distaste.
That distaste today has little more than reflex to support it, but the issue of dual nationality is again generating controversy. In the United States, this controversy has been prompted most notably by recent changes in Mexican naturalization law, which will encourage a dramatic and geographically concentrated increase in the population of dual nationals in the United States. To assess the issues at stake in this controversy, we must begin by exploring the historical source of anxieties about dual nationality and their relevance in a changed international context. In fact, these origins are far more prosaic than the specter of spies and saboteurs would suggest.
Today, the prospect of serious international frictions arising from dual nationality seems significantly diminished. To imagine now even hypothetical situations in which dual nationality poses a threat to the national interest is increasingly difficult. On the contrary, full acceptance of dual nationality may reap actual benefits, at least from an American perspective. Such acceptance would facilitate the political and cultural assimilation of immigrants unwilling either for economic or sentimental reasons to forsake their countries of origin. It could also advance the global cause of democracy, as those who become steeped in our constitutional values are able to apply them in other polities.
As the change in Mexican law causes US policy-makers to address the issue for the first time in decades, we can only hope that entrenched but misdirected instincts do not fuel legislative attempts to limit the incidence of dual nationality. Restrictionists may respond to the sudden creation of a Mexican-American dual national population that may number in the millions, with calls for enforcement of the renunciation oath required of all naturalization applicants. Those calls should be resisted. In any event, attempts to enforce the oath would likely fail as other countries become increasingly reluctant to abandon their citizenseven those who naturalize elsewhere.
At the same time, the impending debate poses an opportunity to reexamine old anxieties, to address such concerns as may persist (regarding, for instance, service in the federal government), and ultimately to embrace the status. Perhaps the time has come as well for a new designation to reflect the shedding of old baggage, so that those who have more than one status are characterized not as "dual" but rather as co-nationals.
Sources of Dual Nationality
There are four significant sources of Americans holding dual nationality. Historically the largest number has resulted from the interplay of different birthright nationality laws under which citizenship at birth can be ascribed both by location (the rule of jus soli) and by parentage (jus sanguinis), so that the child born in one nation to a parent holding citizenship in another nation will hold both nationalities at birth. The United States applies a strict rule of jus soli, under which all children born in the territorial United States (save those of diplomats) are extended citizenship at birth. Most countries, however, have adopted descent by the rule of jus sanguinis. Thus, for example, the child borne of French citizens in the United States will be a birthright dual French-American citizen.
Second, dual nationality has more recently also resulted from the marriage of persons with different nationality. Whereas in the past a woman marrying a foreigner would as a general rule automatically lose her original citizenship and assume that of her husband (true under US law until 1932), both husbands and wives are now entitled to retain their original citizenship and in many cases to also acquire that of their spouse. The children of these unions will often be entitledthrough jus sanguinis rulesto the nationalities of both parents (and in some cases can be born with three nationalities, where two parents of different nationality have a child in another country applying jus soli).
Third, a native-born American citizen will become a dual national if he or she naturalizes in another country. Traditionally, naturalization elsewhere resulted in expatriation; that is, the forfeiture of U.S. citizenship. (Indeed, those born with dual nationality could lose their citizenship for the mere act of voting in their state of alternate nationality.) Beginning with its 1967 decision in Afroyim v. Rusk, however, the Supreme Court has increasingly limited the circumstances in which native-born citizens can be deprived of their nationality. Today, an individual will almost never lose his or her American citizenship without specifically intending that result. A citizen who naturalizes elsewhere is presumed to retain American citizenship, not to abandon it.
Finally, dual nationality in the U.S. context also arises where a foreign national naturalizes here but retains his or her original nationality. This fourth category was long a source of dual nationalsnot where a naturalizing American sought to retain his or her original nationality but rather where his or her country of origin refused to recognize the transfer of allegiances, under the so-called "perpetual allegiance" approach to nationality. ("Once a subject, always a subject.") To take the most notable example, Great Britain did not until 1868 recognize the capacity of its subjects to shed British nationality upon naturalization in the United States. Today, the right of expatriation is almost universally recognized, but many who naturalize in the United States seek to maintain their original nationality as a matter of choice. Naturalizing citizens are required to renounce their original nationality, but this requirement has never been enforced.
No national or international statistical surveys of the incidence of dual nationality have been conducted to date, but the trend across these four categories clearly has been upward. As national borders become increasingly porous, the number of individuals who are either born with or become eligible for more than one nationality will steadily increase. The progeny of recent immigrants will be born with American citizenship but will also be eligible for that of their parents (and indeed grandparents, as is true, for instance, under British, Greek, Irish, and Italian law). Interstate marriage continues to rise, and so grows as a source of dual nationality. Many of the estimated four to five million Americans who now permanently reside outside the United States hold or will acquire citizenship in their country of residence at the same time as they remain American citizens.
The last of these four categoriesthat is, of aliens who naturalize as Americans while retaining citizenship in their country of originwill generate the most visible and concentrated, and hence controversial, population of dual nationals. As with the others, this category has increased as a consequence of high immigration levels complemented by record levels of subsequent naturalization. (More individuals naturalized in 1997 alone than in the entire decade of the 1970s.) At the same time, this source of dual nationals is also being magnified by changes in the laws of other countries. With the late nineteenth-century abandonment of perpetual allegiance, most nations automatically canceled the citizenship of persons naturalizing abroad. The renunciation oath then was self-enforcing, and the number of dual nationals from this category was limited to those from the few countries that tolerated their acquisition of US citizenship.
In recent years, however, several states have
amended their nationality laws to allow individuals to retain their citizenship
even when they naturalize in another country. Thus, applicants from such major
"sending" states as the Dominican Republic, El Salvador, Ireland,
and Italy will not necessarily lose their original citizenship upon naturalization
in the United States. Given the minimal costs of maintaining both nationalities
(those who would be required to undertake military service in their country
of origin presenting the only significant exception) and the non-enforcement
of the renunciation oath, many are presumably holding on to first citizenships
for sentimental and other reasons.
Most dramatic will be the consequences of a change in Mexican law allowing for the retention or re-acquisition of Mexican nationality. In the past, Mexicans who naturalized in the United States lost their Mexican nationality. Beginning in March 1998, they will be able to retain Mexican nationality, and those who lost it through prior naturalization will be able to regain it. This change presents the prospect, almost overnight, of a population of dual nationals both large (as many as five million will be eligible) and geographically concentrated (largely in the Southwest, especially southern California and Texas).
Despite an at least creeping increase in the incidence of dual nationals, the issue has not received significant attention from US policy-makers in recent decades. At the same time, dual nationality has quietly come to secure almost complete toleration under US law. On the one hand, the Afroyim line of United States Supreme Court cases has protected the citizenship of Americans who naturalized in other countries. On the other, no move has emerged to enforce the renunciation oath, though many naturalization applicants elect to retain their original nationality.
The changes in Mexican law will almost certainly thrust the issue of dual nationality back into controversy. Imminent reconsideration of the subjectespecially one so vulnerable (as is true of most immigration-related issues) to inflammatory political exploitation and subject to long-standing popular suspicionwarrants an examination of the roots of its traditional disfavor as well as the reasons for its more recent toleration. On this historical foundation, a modern approach to the issue can be formulated.
An Old-World Threat to International Stability
One might expect a historical examination of dual nationality to reveal sensational tales of disloyalty and deceit, divided allegiances, and torn psyches. In fact, the roots of its disfavor were far more prosaic. Dual nationality has seldom presented a direct threat to national securityin the sense that its incidence has not, for instance, increased vulnerability to spying and sabotage. It has, however, posed an indirect threat of almost the same proportion. By blurring otherwise distinct lines between national populations, dual nationals invited the human equivalent of turf contests among states in an era in which states could treat their own nationals as they pleased but were constrained in their treatment of others by international law. A hostile world, one in which the tinderbox could ignite with even a small spark, could not tolerate the instability posed by dual nationals.
Indeed, at certain times during the nineteenth century, the problem of dual nationality came to dominate some bilateral relationships. The War of 1812 was sparked by the impressment of would-be former British nationals whose naturalization Great Britain refused to recognize. This refusal made these naturalized Americans subject to the dual claims of conflicting sovereigns. Even after Britain desisted from this practice, the problem persisted when naturalized Americans returned on visits to home countries throughout Europe, especially when an individual had not satisfied military service requirements in his country of origin.
Thus, for instance, a naturalized immigrant from Europe might find himself conscripted upon return to his homeland. Pursuing its obligation to exercise the diplomatic protection of its citizens, the US government would intercede with the other state of nationality, asserting that naturalization in the United States should absolve the individual of his obligations to his country of birth. In response, the other state would assert its right to define the terms of nationality (and the loss thereof) as well as the duties extracted from its own nationals. The refusal of other states to recognize U.S. naturalization proved a serious irritant to relations with every major European state at various points throughout the nineteenth century. At times the issue even inflamed the public imagination, as when Britain put several naturalized Irish-Americans on trial for treason as British citizens.
In some cases, foreign states had more justifiable cause to resist US entreaties. These cases generally involved naturalized Americans who had permanently returned to their land of birth but who nonetheless continued to assert US nationality against the claims of their countries of origin. Such cases could also pose a genuine threat to US interests when the government was obliged to expend diplomatic capital on behalf of an individual who might in fact not count in any effective way as an American. In his 1974 annual message to Congress, President Ulysses S. Grant decried the phenomenon of persons claiming the benefit of citizenship, while living in a foreign country, contributing in no manner to the performance of the duties of a citizen of the United States, and without intention at any time to return and undertake those duties, to use the claims to citizenship of the United States simply as a shield from the performance of the obligations of a citizen elsewhere.
Similar laments relating to tenuous claims of diplomatic protection were expressed by senior U.S. policy-makers for decades thereafter.
Some of these difficulties were resolved by domestic expatriation laws. A 1907 act provided for the loss of U.S. citizenship upon three years residence in the country of origin. In other instances, bilateral agreements resolved competing state claims to military service requirements and the transfer of nationality (most notably the so-called Bancroft treaties of the 1860s and 1870s, with German and Scandinavian states). But success in addressing the problem on a universal basis proved more elusive; most states were unwilling to cede sovereign capacity to make rules respecting nationality. As a result, the United States faced continuing frictions over this subject in its relations with such states as Italy and France well into the twentieth century.
Though statements of disapproval have historically been framed in terms of loyalty and allegiance (as when someone owing no real loyalty to the United States sought its protection), they have rarely focussed on direct threats that dual nationals potentially posed to national security. Since at least 1940, dual nationals faced with the problem of warring sovereigns have been afforded a choice between them. The choice may often be a difficult one, but its availability makes an inescapable commission of treason against one or the other sovereign unlikely. Dual Japanese-American citizens, for example, automatically forfeited their US citizenship upon enlistment in Japanese forces, and thus faced no criminal charges under US law for that service. Nor did these dual citizens raise a particular threat to the American war effort by virtue of their (former) US citizenshipany more so than Japanese resident aliens who were similarly allowed to return home to serve their exclusive master. Finally, there appear no notable cases of dual nationals who worked as spies. Indeed, it is the spies and other saboteurs that one would most expect to avoid the status, with its obvious and open implication of possibly divided allegiance in war or war-like situations.
Dual nationals thus presented a serious threat to the national interest only in an indirect way (stemming from increased risks of bilateral tensions) rather than as a direct source of subversion. But however indirect the concrete drawbacks, dual nationality was still draped in a heavy mantle of moral condemnation. As George Bancroft observed in 1849, states should "as soon tolerate a man with two wives as a man with two countries; as soon bear with polygamy as that state of double allegiance which common sense so repudiates that it has not even coined a word to express it." Writing in 1915, Theodore Roosevelt labeled the "theory" of dual nationality "a self-evident absurdity"; others criticized it as "unphilosophical."
Indeed, though dual nationality was at the heart of many international controversies for more than a century (from roughly the middle of the nineteenth century through the middle of the twentieth), not a single commentator appears to have spoken in support of its acceptance or even its toleration. This view has persisted into more recent decades. The last major scholarly study of dual nationality (a 1961 book by Israeli scholar Nissim Bar-Yaacov) concluded that the status "is undesirable and should be abolished"; a 1974 decision of the German constitutional court characterized it as "an evil that should be avoided or eliminated in the interest of states as well as the interests of affected citizens."
Interrogating Entrenched Conceptions
These characterizations echo today, and many refuse to accept the status of dual nationality as a legitimate one. The issue seems chronically tied to the marriage metaphor; columnist Georgie Anne Geyer, for example, has asserted that dual citizenship dilutes patriotic commitments and "mak[es] citizenship akin to bigamy." Analyst John Fonte recently testified before Congress that dual nationality is "philosophically inconsistent with our liberal democracy"; and the prospect of a large Mexican-American dual national population has prompted a number of unfavorable editorial responses in the South and Southwest.
Nonetheless, dual nationality has come as a practical matter to be almost completely tolerated under U.S. law. Those born with dual nationality are not required to elect one or the other. Native-born Americans do not lose their U.S. citizenship upon the acquisition of additional nationality. Although required to take the renunciation oath, naturalizing citizens face no sanction for the retention of their original nationalities.
This toleration can be explained piecemeal. Birthright dual nationals have never been forced to choose between nationalities (at least when the individual has not been politically active in the other polity)perhaps on the presumption that many birthright dual nationals (the children of immigrants) will hold the status as a technical matter only. (Indeed, many may not even be aware that they have another nationality.) The Supreme Court has severely restricted the federal governments power to deprive individuals of their citizenship on the basis of ties to other states. The renunciation oath has never been enforced, because, in part, other countries for much of the modern era have refused to recognize expatriation, so enforced renunciation would have greatly diminished the numbers eligible to naturalize.
Toleration of dual nationality can also be explainedand justifiedin functional terms. If dual nationality once presented a threat to international stability, it no longer does today. The protection of persons is no longer so dependent on the particular state of the affected national, since it is covered by the umbrella of international human rights, under which the international community protects individuals irrespective of nationality. The intersection of diplomatic protection and dual nationality was far more uncomfortable in a world where states could treat their own nationals as they pleased.
Now that nation states owe certain obligations ergo omnes respecting the treatment of individualsthat is, they have an obligation to all other states to respect the human rights of all persons, regardless of their nationalitydual nationality no longer adds much risk of inter-state conflict. If, for instance, Germany mistreats a German citizen, that mistreatment will be sufficient cause for diplomatic protest by other states. Resulting international difficulties may be more pronounced if that person is a dual national, at least vis-à-vis the country of alternate nationality, but that will be more a matter of politics than of law. Diplomatic protection is itself now hardly the stuff of State of the Union addresses. Whatever diplomatic complications do arise are unlikely to push states to the brink, assuming such a brink continues to exist at all.
As the prospect of armed conflict diminishes (especially among democratic states), so too does any indirect risk presented by dual nationals. This change in the international context should also answer any objections that evoke the specter of security risks. To the extent that dual nationals ever posed such a direct riskexamples of which are not prominent in the historical recordit is surely slight today. Even where real conflict is involved, it is not clear that dual nationals should present significant concern. Who is to say, for instance, that dual Iraqi-American nationals would have sided, or did side, with Saddam Hussein during the Persian Gulf War and since?
Nor can dual nationals be indicted as presenting the lower-order loyalty problem of potentially playing the Trojan horse on the American political scene in the service of their other state of nationality. The extent to which U.S. citizens are motivated to act in the interests of their country of origin need not depend on a continuing formal attachment to that state. Americans have long voted their ethnic affiliation, even where they have not maintained their original nationality. As Peter Schuck argues, such motivations are not antithetical to national interests; on the contrary, they actually define the national interest, which is after all nothing more than an "aggregation of preferences."
In this respect, maintaining an attachment to ones country of origin seems increasingly less distinguishable from the sorts of institutional attachments maintained by most citizens. A dual Mexican-American citizen who advocates policies that benefit Mexico is little different from a Catholic who advocates policies endorsed by the Church or a member of Amnesty International who writes his congressman at the organizations behest. Non-state affiliations are an accepted part of our pluralist system. Why memberships in other polities are so fundamentally different in todays international dynamic as to render them a continuing concern is no longer clear.
The traditional bases for combating dual nationality have thus dissipated. The lingering distaste for the status is one that no longer enjoys substantial justification. Toleration of the status should not be reversed, as either a matter of law or one of practice. Indeed, strong arguments may be advanced to move beyond mere toleration toward full acceptance, even encouragement, of dual nationality. These arguments break down into two categories: recognition of the continuing societal harms of the existing approach, even if tolerant in historical perspective, and the possibility that embracing dual nationality may actually in itself advance the national interest.
The harm of the existing approach comes in the form of deterred naturalizations. Some individuals refuse to secure US citizenship because of dual nationality rules, even though they are otherwise eligible for it. Some are so deterred because their home country will automatically expatriate them upon naturalization here, with possible concrete economic as well as sentimental consequences. Under old rules, for instance, a Mexican who acquired U.S. citizenship lost his or her Mexican citizenship, along with the right to own certain types of real property. Historically low Mexican naturalization rates can at least in part be ascribed to this legal consequence. Although the United States can do little to reform the laws of other countries on this score, many states (including Mexico) are amending nationality laws to allow for the retention of citizenship elsewhere.
Available anecdotal evidence suggests that the renunciation oath itself deters some eligible aliens from naturalizing. As Peter Schuck notes, the oath is hardly clear in what it requires of applicants; on its face, however, it appears to demand the severing of all ties to ones country of origin. (In flagrantly archaic phrasing, an applicant must "absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom the applicant has heretofore been a subject or citizen.") Not all eligible aliens understand that the oath is not enforced, and the U.S. government does nothing to publicize that absence of enforcement. Misconceptions apparently abound as to the manner in which the oath is administered. One study of the issue by Harvards Michael Jones-Correa recounts the belief of some Colombians in New York City that naturalizing aliens were required to spit and stomp on the Colombian flag as part of the naturalization ceremony. Finally, others may refuse to take such an oath on principle (some people still take oaths seriously, after all), even equipped with the knowledge of its lack of practical effect.
Deterred naturalizations, in turn, harm society in at least two respects. First, they deprive individuals of the rights that come with citizenshipan increasingly substantial quantum as the law moves to disadvantage individuals on the basis of alienage, especially with respect to public benefits. Obviously, society sometimes deprives individuals of certain rights (one could not justify the naturalization of war criminals, for instance, by way of vindicating their rights), but liberalism requires that rights only be deprived where justified by some other good. Insofar as dual nationality no longer poses a threat to the national interest, the deprivation here seems unfounded.
But deterred naturalizations also pose a harm from the self-interested perspective of the community. Aliens who reside permanently in our midst are far less likely fully to assimilate as long as they remain aliens. This situation is true almost by definition with respect to political assimilation, because aliens (with a few exceptions, notable as such) lack the franchise. This barrier to full participation in the political process is no small matter, because political identity is so fundamental to the American identity (indeed, for some political theorists the American identity goes no further). The political exclusion of aliens inevitably retards their assimilation as a general matter. To the extent that even moderate numbers of aliens refuse to naturalize on account of the renunciation oath, the rest of us suffer a culturally separated and politically disempowered concentration of fellow residents in our midst. Fully accepting dual nationality would thus help facilitate the cultural and political incorporation of new immigrants who would otherwise fail to naturalize.
These arguments suggest why dual nationality should be tolerated, if not actively encouraged, in the national interest. With the political incorporation of those who retain their original citizenship, dual nationality may present affirmative benefits as a function of dual nationality itself. The dual national who becomes politically assimilated in the United States will presumably come to internalize our constitutional values. If that person remains politically active in his or her country of origin, he or she will also presumably apply those values there. As this occurs, dual nationality may become a vehicle for advancing the cause of global democracy.
This kind of democratic influence already seems to have contributed to the democratic evolution of the Dominican Republic. In recent elections there, the Dominican community in New York played a significant role in electing a democratic progressive candidate as president (himself a product of a childhood on the upper West Side). That role may now be institutionalized, not only by the acceptance of dual nationality under Dominican law but also by the proposed allocation of two seats in the Dominican parliament for Dominican New Yorkers. Similar possibilities would be presented with respect to any nationand there are now manywith a significant number of emigrants in the United States. Indeed, virtually every country in the realm of second-tier states in Central America, the Caribbean, Eastern Europe, and South and East Asia enjoys a substantial population of its nationals (or former nationals) in the United States.
This potential to advance the spread of democratic values is a direct product of the dual nationals distinctive status. When the naturalizing American cuts his or her ties to the home country, he or she loses the potential (at least in the average case) to influence its political development. Given the choice then between a naturalization applicant who intends to sever those ties and one who will retain them, we now may have cause to prefer the latter. Dual nationality becomes not just a neutral status, but a beneficial one.
In light of the cost of existing rules that discourage dual nationality (resulting in suppressed levels of naturalization) and the possible gains that may be won from embracing it (advancing the spread of democratic values), the challenge to those who would curtail its rising incidence must be to articulate even hypothetical situations in which dual nationality would pose an actual threat to the national interest. In the overwhelming majority of cases, that challenge has not, and cannot, be met.
Even with respect to the prospect of several
million dual Mexican-American citizens concentrated in the American Southwestmuch
less the more geographically diffuse examples involving other nationalitiesany
looming dangers are difficult to detect. Restrictionist Dan Stein ventures to
ask, "If Mexico sought in the future to re-occupy parts of the southern
U.S., whose side would these dual nationals be on?" But even he has to
follow his own query with a tepid, "maybe this danger is not realistic,
but it should be considered." Once one acknowledges that dual nationality
cannot be opposed on political influence grounds (as explained above, the assertion
of ethnic political interests has nothing to do with the formal attachment of
citizenship), no compelling reasons remain to justify stigmatizing the status.
Thus dual nationality should be facilitated rather than discouraged. As a policy matter, that conclusion demands the elimination of the renunciation oath. The oath adds little, from societys perspective, to the value of a would-be citizen. To the extent that it deters some from naturalizing, the oath retards the assimilation of new immigrants. To the extent that it encourages others to abandon their original citizenship, we lose the possible gains of having individuals export our democratic values and practices.
Others, including T. Alexander Aleinikoff and Peter Schuck, have suggested replacing the renunciation oath with one of "primary" or "core" loyalty to the United States, which would allow for the retention of prior nationality at the same time that a priority of loyalty is established. In my view, no real substantive need exists for a loyalty oath of any kind relative to other states, because such notions of loyalty are now themselves largely outdated. Moreover, to the extent that other nations have followed suit (the same proposal has already been made in Canada), a new oath of primary loyalty would soon assume the falsely symbolic status that long ago infected the renunciation oath.
Once dual nationality is accepted as a legitimate status, it should not remain subject to special regulatory measures, with the relatively insignificant exception of service in foreign-policy posts in the federal government. Aleinikoff has suggested that such issues as voting rights might be the subject of bilateral accords on dual nationality. When necessary, such accords are not objectionable. But today, in contrast with the past, when issues such as the military service obligations of dual nationals prompted numerous bilateral undertakings, the new phenomenon of co-nationality does not appear to have generated problems requiring diplomatic resolution. If the Dominican Republic wants to allow (or deny) Dominican dual nationals in the United States the right to vote in Dominican elections, that is for the Dominican Republic alone to decide. We would surely chafe at the intervention of other nations with respect to whether our citizens resident in those countries could vote in U.S. elections. The possibility of foreign nationals lining up in large numbers at foreign consulates in the United States to vote in foreign elections would present an odd spectacle, but a benign one.
Peter Schuck has proposed that dual nationals not be permitted to hold high public office in another nation, presumably at risk of expatriation. But what better way to export our constitutional values than at the top? Permitting foreign office-holding would be acceptable even from a traditional national-interests perspective, insofar as U.S. influence over another countrys policies would likely be enhanced by the presence of U.S. citizens among the latters policy-making ranks. The retention of U.S. citizenship does not even pose concrete dangers in the extreme situation in which a U.S. citizen leads another nation in war against America, for he or she gains no advantage by virtue of retained citizenship itself. Indeed, such a person would be merely a fool, because only an American citizen can be found guilty of treason.
One might more persuasively object to dual nationals assuming high office in the United States government. Here the possibility of divided loyalties could pose serious difficulties, even in an era in which national interests are less easily demarcated. It would not, for instance, likely serve U.S. interests to include a dual Mexican-American citizen on the U.S. delegation in trade negotiations with Mexico; the confines of some international dealings may still comprehend zero-sum elements. Indeed, the Mexican governments pending revision of its own nationality laws, while permitting dual nationality as a general matter, would bar dual nationals from assuming certain elective, judicial, and military offices.
In the American context, the imposition of such blanket ineligibilities on dual nationals would seem unnecessary. The service of dual nationals in the vast majority of public sector positions would not present even abstract risks to the polity. Rather, the problem of divided loyalties would be better addressed within a standard conflict-of-interest framework. When a public official is faced with an issue that directly implicates his own finances, that official is typically required to recuse himself from the matter. Broad or significant financial interests might disqualify one from some jobs altogether. One would not, for instance, find a large stockholder of a meatpacking company at the head of the Department of Agriculture (at least so one would hope).
Similarly, one could require dual nationals in appointive public office to recuse themselves from matters directly implicating the interests of their country of alternate citizenship. They would be disqualified altogether from positions in which the breadth and frequency of such recusals would prevent the discharge of full responsibility. Under this approach, a dual Mexican-American could not serve as Assistant Secretary of State for Latin American Affairs but could hold most other federal offices, including elsewhere in the Department of State. This practice would hardly be unprecedented. The use of non-nationals as diplomatic personnel has a long pedigree; the diplomatic corps of imperial Russia, for instance, was composed mostly of Germans. That the additional citizenship would compromise the dual nationals suitability, even at high levelsin such departments as Health and Human Services or Educationmuch less as teachers or police officers in state or local employ, seems far-fetched.
The political discretion of the electorate would likely limit the number of dual nationals with a prospect of securing federal elective office. But dual nationals should not be excluded from federal office as a categoric matter, as least not under federal law. If the voters of Washington Heights believe that a dual Dominican-American citizen would best represent them in Congress (as well they might), then it is not clear why that preference should be denied. Of course, the leadership would be unlikely to appoint the dual citizen to the Select Committee on Intelligence (as would probably be the case with most congressmen from New Yorks Upper West Side); but the status would not seem in any way to compromise most duties of the federal legislator. In the United States, the president must be native-born, which makes the prospect of a dual national in the highest office even more implausible than political realities would already dictate.
These policy approaches are sketched in broad outline, but any gaps can be more closely addressed as the growing incidence of dual nationality demands. From our standpoint today one thing seems clear: Calls for stricter enforcement of the renunciation oath should be rejected. In any event, it would be difficult today to enforce effective restrictions on dual nationality. Enforcement of the renunciation oath could be readily circumvented in two ways. First, in what might be called the new perpetual allegiance, home countries might refuse to abandon citizens who naturalize in the United States; that is, they would not allow expatriation. Unlike the old perpetual allegiance, the new perpetual allegiance would be to the benefit of the citizen, not the sovereign, but it would force the United States either to refuse to naturalize any individual from that country (an unlikely possibility), or to accept the fact of dual nationality.
Second, a naturalization applicant could cancel his or her original nationality for purposes of naturalization, but then reacquire it thereafter. Under the Afroyim line of cases, depriving an individual of U.S. citizenship in such circumstances would likely be found unconstitutional. The rule of Afroyim, of course, has set the precedent for the full acceptance of dual nationality when the second, non-U.S. citizenship is by naturalization. (It remains unclear whyas a policy matterdual nationality in those instances should be less threatening than when the U.S. citizenship is by naturalization.) Indeed, one might argue that those who move to another country and participate in its polity might pose more of a threat, to the extent that they are more likely to lose touch with their American rootsand values.)
Perhaps the strongest practical argument against eliminating the renunciation oath is a political one: Merely broaching the possibility would provoke a firestorm of opposition that would ultimately work to the detriment of dual nationals in particular and of aliens in general. Politics does loom over all immigration issues, as shown by the 1996 experience with immigration reform legislation. But one may still wonder if such a firestorm would develop on the dual nationality issue, despite a large Mexican-American dual national population. The issue would presumably mobilize many of the more powerful ethnic groups (the Irish and Jewish American communities most prominently among them) to defend the status and to promote a popular understanding of it as no special threat.
Perhaps that understanding can also be facilitated by adopting "co-national"" as a label for those who hold more than one citizenship. Where one confronts entrenched negative conceptions, changing labels may present an important step toward securing acceptance. Dual nationality suffers from long-tanding disfavor, dictated once, but no longer, by the realities of the old international system. Co-nationality, by contrast, may become a defining feature of a new global dynamic.
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