Constitutional patriotism, migration and the post-national dilemma

Abstract

This article addresses the challenges of justifying restrictions on migration given a rejection of nationalism as a defensible mode of political integration. Specifically, it focuses on constitutional patriotism, which is proposed as a means of making robust democratic practice possible in diverse contexts. Given that constitutional patriotism represents a commitment to universal principles as a source of attachment rather than the binding sentiment of nationalism, can we continue to rely on nationally defined and controlled migration practices? This article argues that, appropriately understood, constitutional patriotism implies a commitment to much freer movement of individuals across political boundaries than theorists have previously acknowledged. Applying such an approach, however, provokes some challenges to the sustainability of shared rule informed by principles rather than identity. This seeming paradox may mean that constitutional patriotism is more difficult to implement, and highlights practical challenges surrounding the liberalisation of border controls that are pertinent to theorists concerned with post-national citizenship more broadly conceived.

Keywords::

• borders
• migration
• identity
• citizenship

Acknowledgements

I am grateful to Luis Cabrera, Christopher Finlay, Jan-Werner Muller, Richard North, Anna Stilz and the anonymous reviewers of this journal for their helpful comments on previous drafts.

Notes

^1. The article has broad relevance for all post-national theorists seeking to move away from the use of pre-existing group identity as a criterion for inclusion. It also, however, offers an oppositional viewpoint to other liberal accounts that favour more extensive restrictions on migration. For example, liberal nationalism (a prominent recent strain of liberalism) holds that the binding sentiment of nationalism is fundamentally important in the provision of solidarity needed for liberal democratic institutions to emerge, and therefore that restrictions on migration are acceptable (Miller 1995, 2000). This article questions the extent to which those restrictions are defensible from a liberal perspective, and so additionally speaks to the validity of these distinct, though nonetheless liberal, approaches.

^2. The term ‘reflexivity’ is commonly employed by constitutional patriotism theorists to refer to the specific relationship that citizens may have to particular identities and historical contexts, both their own and those of perceived others. Being reflexive involves developing the critical distance from our own culture and values that is needed to develop understanding of other cultures and values. It is then ‘…in this anthropologically reflexive context, (that) the world is a site of contested loyalties and interpretations’ (Turner 2002, p. 148).

^3. Müller's use of coercion is to justify the existence of particular communities, rather than those communities' legitimate control of their borders, and so I do not specifically tackle concerns surrounding coercion as a justification for migration control. However, such arguments have been the subject of recent critique and debate (Abizadeh 2008, 2010, Miller 2010).

^4. It may be argued that a commitment to non-discrimination across borders is representative of a more extensive cosmopolitan theory of justice. While it is true that such a commitment would be a feature of such a cosmopolitan approach, I am hesitant to refer to constitutional patriotism as ‘cosmopolitan’ given that it does not compromise the existence of boundaries between particular communities and also because I have not considered the implications of the commitment to universalistic non-discrimination for other obligations such as distributive justice, which are beyond the scope of this article.

^5. The principles entail, first and most importantly, the recognition of equal basic liberty for all and, second, that any inequalities are to the advantage of the worst off in society and are attached to positions open to all (Rawls 1971, p. 53). Carens finds restrictions on migration to contravene both of these principles (Carens 1987, p. 258).

^6. In some cases, the accounts referenced incorporate some restrictions on migration. For example, for Seglow, the obligation of rich states to admit those from poorer countries is a non-ideal state of affairs, and those obligations may be lessened in cases where distributive justice is achieved (Seglow 2005, p. 329). For Dummett, there are concerns surrounding the destruction of minority cultures by mass migration flows; however, importantly, this refers to extreme cases such as Chinese migration to Tibet with the specific aim of overwhelming the minority, rather than typical rhetorical surrounding mass migration to countries such as the UK (Dummett 2004, pp. 119–120).

^7. I do not consider concerns that freer movement may bring about a ‘brain drain’ in poorer sending countries. While this problem is prominent in the migration literature, it is beyond the scope of this article to address it. For discussion of the brain drain problem, see Kapur and McHale (2006).

^8. Hampshire (2011) provides a detailed account of citizenship testing, specifically focusing on its necessity in building stable liberal states where core political values are shared.

^9. Many theorists have offered accounts that seek to balance the liberal characteristics of a particular polity with the tolerance of illiberal practices by individuals within that polity (Kymlicka 1995, chap. 8, Barry 2001, Joppke 2004, Quong 2004, Cohen 2007, Van Den Anker 2007). It would be impossible to offer similar sustained treatment within this article and so rather than offering an account of liberal tolerance, I focus only on whether this problem offers constitutional patriotism theorists a reason to place restrictions on migration.

^10. For full details on the development of the EU free movement regime, see Article 45 and part 2 of the Treaty on the Functioning of the European Union (EU 2010). For details of the Schengen agreement (removing border controls between the majority of EU member states), see Europa (2009).