Constitutional Patriotism and the Challenge of Free Movement
Katie Tonkiss, University of Birmingham, UK KET621@bham.ac.uk Paper prepared for the International Studies Association Annual Convention 2010, New Orleans, 17th-20th February
Constitutional Pluralism and Global Movements Panel
Constitutional patriotism, or commitment to shared democratic principles rather than shared national identity, has been proposed as a means of making robust trans-state democracy possible. That is, it is seen as a way of providing the binding force necessary to motivate the sacrifices that are required within a democratic polity, including across national boundaries. Scholars of constitutional patriotism have provided us with valuable insights into the potential for citizenship practice across national boundaries, by building commitment to universal values at the trans-state level while acknowledging difference between particular cultures and traditions at the national level. However few of these scholars have considered the importance of mobility across borders. This paper seeks to fill that gap in the literature by examining the implications of individual free movement for theories of constitutional patriotism. It argues that individual free movement is implicit in constitutional patriotism, and that a truly robust theory would need to address not only the negotiation of difference across shared political institutions, but also the negotiation of difference in local settings between indigenous communities and percei ved outsiders. Political theorists have turned to constitutional patriotism as a means of conceptualising the polity binding force necessary for robust trans-state democratic practice. Constitutional patriotism theories bridge the gap between liberal conceptions of citizenship that emphasise the emergence of a post-national society, and the criticism that these theories lack the binding sentiment that genuine citizenship requires. Yet, few constitutional patriotism theorists have considered the importance or impact of migration across borders. This paper seeks to fill that gap in the literature by examining the importance of individual free movement as an approach to migration, and the implications of this for theories of constitutional patriotism.
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The paper is structured as follows. After briefly summarising some of the ways in which constitutional patriotism has been conceived and offering reasons to think that a strongly liberal conception of constitutional patriotism is the most defensible, I then explain and defend the principle of individual free movement as central to constitutional patriotism. The main contention here is that a commitment to the principles of liberalism and liberal democracy imply a commitment to the individual free movement. The implications of acknowledging this will then be considered, specifically in terms of the cultural impact of migration. Constitutional patriotism theorists tend to focus strongly on political integration and cultural autonomy, however it is posited in this paper that in order to be truly robust, a theory of constitutional patriotism would need to address not only the negotiation of difference that is necessary at the political level, but also the negotiation of difference that is necessary in local settings between indigenous communities and perceived outsiders.
Liberal Constitutional Patriotism
Constitutional patriotism is intended to create a polity with a collective political identity and patriotic sentiment attached to values shared by all, but without the need for nationalist sentiment to create this identity (Habermas , 1995; Lacroix, 2002; 2009; Mü ller, 2007a; 2007b; 2008). In an age of increased political and economic interdependence 1 between nations, it suggests the possibility of improving democratic arrangements at the trans -state level. The central aim of constitutional patriotism is the creation of a constitution to which citizens subscribe. The constitution is not fixed, rathe r through the processes of reflection upon both this universal political sphere and on particular cultural contexts the constitution is adapted through democratic processes (Müller, 2007a). The constitution sets the foundations of the democratic community , and it is asserted that through shared commitment to these liberal principles, citizens of diverse states can enjoy a shared political identity while maintaining cultural autonomy and diversity.
For discussion of nation-state legitimacy issues, see Held (1996, ch.11); Sassen (1996); Archibugi (2004); and Benhabib (2007).
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Within constitutional patriotism there has been divergence on the appropriate boundaries of trans-state communities, pointing to a deeper disagreement about the appropriate thickness of the collective sentiment developed. Some scholars have taken more liberal approaches than others with regards to the applicati on of the ideas of constitutional patriotism. Some theorists argue that the political boundaries of the trans -state community must be firmly set in order to foster an appropriately cohesive and democratic community, and have therefore suggested that the trans-state community would take on many of the features of existing nation-states (Caparoso, 2005; Habermas, 2001; 2008; Maas, 2007; 2008). Others emphasise the liberal aspects of constitutional patriotism and favour a less thick form of identity that is extendable to all those persons that subscribe to such liberal norms (Cronin, 2003; De Grieff, 200 2; Lacroix, 2009; Müller 2007a; 2007b; 2008). Briefly, I will suggest that the liberal stance is more consistent with the emphasis on political equality that is at the root of the constitutional patriotism project.
Constitutional patriotism is founded on the liberal principle of autonomy, expressed as democratic political equality. The idea of democratic political equality is reflected in the separation of ethnos and demos that is central to Habermas initial conception (1995), where demos, the people, exists without any conception of an ethnos , and therefore all citizens and their interests are treated in an impartial manner. The constitution is designed by and to serve the interests of the people, and as such ensures that all individuals are treated fairly and equally. The liberal democratic society is therefore capable of negot iating between different sets of interests in an impartial manner that respects the autonomy of the individual 2, and so is capable of creating just institutions that are able to find the most just outcomes to decisions that affect the entire population. Müller s approach to constitutional patriotism focuses on citizens recognising each other as free and equal and agreeing on the fair terms of living together, and as such has a clear basis in this principle of autonomy, and reflects the existence of a non-ethnically defined demos that is central to constitutional patriotism (Müller, 2008).
This conception of liberal democracy is closely based on Held s metaprinciples of autonomy and impartialist reasoning (see Held, 2004; 2005). On liberalism and autonomy see also Held (1996).
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The centrality of liberal democracy based upon democratic political equality and therefore autonomy means that particularistic conceptions of the constitutional patrioti sm are less robust than the more liberal conceptions. This is because, by emphasising the importance of setting the boundaries of the trans-state community and thus developing the idea of a thicker form of identity, particularistic conceptions take on sim ilar characteristics to nationalism and as such undermine the very foundations of constitutional patriotism that have been set out. The problem for even the most liberal forms of nationalism is the idea that a people is ultimately necessary (Abizadeh, 2 002). The conception of a people rather than the people creates a contradiction against the liberal principle of autonomy. Similarly, the regional nationalism that more particularistic conceptions of constitutional patriotism imply (particularly Habermas, 2001; 2008 3; and Maas, 2007) emphasises the importance of a thicker form of identity with associated similarities in values and beliefs, and a context of meaning for the political community to take shape (De Grieff, 2002; Lacroix, 2009). This emphasis, expressed particularly in the need to set the boundaries of the trans -state community in order to foster such belonging, sits in tension with the principle of autonomy that is foundational to constitutional patriotism. This is because, if the bounda ries of the community must be set, then it is largely impossible to set these boundaries without reference to arbitrary difference. For example, setting the boundaries of the European Union firmly, as Habermas has argued for (Habermas, 2001) would mean the exclusion of Turkey, whether or not Turkey was able to demonstrate the liberal credentials necessary to respect the underlying liberal principles of the European Union. Therefore Turkey s
exclusion would be based on arbitrary facts, and such exclusion t hen brings into question the very foundations of constitutional patriotism. As outlined previously, respect for individual autonomy and tolerance of difference is intrinsic to constitutional patriotism, as opposed to definition of the community based on a rbitrary difference. When thinking about trans-state political communities, therefore, the creation of a community along the lines of this regional nationalism would not be compatible with the foundational principle of autonomy, and therefore a liberal conception that emphasises this principle is the most defensible.
For more specific full critique of the particularistic conception of constitutional patriotism envisaged by Habermas, see Scheuerman, 2008; and Lacroix, 2009.
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The specific area of this commitment to liberalism that this paper seeks to address is the approach to migration that such a commitment entails. The paper will therefore now consider the literature surrounding trans-state migration, and will suggest that through its commitment to liberal democracy, constitutional patriotism also implies a commitment to individual free movement.
Constitutional Patriotism and Individual Free Movement
Individual free movement is an approach to migration, springing from the liberal tradition, which enables the opening of borders to freer migration between nation-states. This
argument, as its title suggests, is based on the moral primacy of the rights of the individual overriding the integrity of political boundaries. These ideas are clearly closely linked to the concepts discussed in relation to liberal democracy those of autonomy and individual
rights. Various theorists have sought to develop the liberal approach to free movement, focusing on the importance of freer migration in terms of the provision of these individual rights (Blake and Risse, 2006; Cabrera, 2004; Carens, 1987; Hayter, 2004; Nett, 1971; Risse, 2008, Seglow, 2006).
Carens (1987) famously argued that commitment to liberalism implies a commitment to individual free movement, both because collective property rights are not justified by liberal thought, and because a global application of the Rawlsian original position (Rawls, 1971 ) would give rise to a right to free movement. These arguments have gone on to inform to a large extent the approaches of many free movement theorists, and it is therefore worth spending some time explaining his approach in more detail. Carens suggests that in the global original position, under the veil of ignorance, individuals would choose individual free movement as a basic principle because it is essential to the ability of the individual to choose and carry out a life plan. According to Carens, in the orig inal position facts about individuals (such as their birthplace) are not known and the most just distribution of social benefits is agreed upon. Free movement would be selected, because in taking the position of the individual wishing to migrate, it can b e assumed that not allowing that individual to migrate would hinder their life plan. Such hindrance would be based on morally arbitrary facts about
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place of birth, and therefore restricting free movement would not be compatible with a liberal conception of justice.
As noted, Carens also makes an argument with regards to the property rights tradition in liberal thought, and suggests that the claims to collective property rights exerted in discourses around the integrity of national boundaries is not a part of the liberal tradition that has determined the shape of liberal democracies. Such anti-immigrant arguments as this is our country , Carens explains, imply collective property rights that are not supported by the liberal tradition of property rights. Rather, the liberal tradition suggests a
commitment only to individual property rights. Therefore, there is no basis for the state to exclude individuals based on citizenship, and there is no basis for citizens to exclude non citizens that could not similarly be used to also exclude fellow citizens for example
individual property rights. These arguments stem from Lockean ideas about ownership and property rights, and such arguments have been used by other theorists of liberal free movement to suggest that closed borders are not theoretically defensible. Risse has
followed the Lockean approach, arguing that the earth s resources are needed by all but are the accomplishment of no one, and that therefore the earth belongs equally to all humanity (Risse, 2008; also Blake and Risse, 2006). Risse s argument is suggesting egalitarian
ownership, where no one is discriminated against on the basis of arbitrary realities, or indeed favoured due to birthplace, and is thus closely related to both Carens theoretical claims and the liberal approach to free movement. Echoing Locke s argument that God gave the world to men in common (Laslett, 2003: 291), Risse demonstrates again the intertwining nature of liberal rights and free movement rights.
This egalitarian ownership argument has received some criticism, from those who question the suitability of basing claims to migrate on the provision of natural resources, as Risse has done. Risse s claims that the US is rich in natural resources in comparative ratio to its population (2006) has come under criticism from Pevnick, who suggests that such an approach cannot fully account for individual motivations for migration, which are rarely based on natural resource considerations. If they were, he contends, then we would expect to see much higher levels of migration to countries such as Iran and Iraq (Pevnick in Pevnick et al, 2008: 242 -243). That is not to say that Risse s claim regarding the fair distribution of
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natural resources is not just, but rather than when discus sing migration such arguments are not as relevant as Risse believes, because individuals would not choose to move to countries for reasons of space or other natural resources. Rather, Pevnick suggests, migrants choose to move to countries such as the US and regions such as the EU because of the social and political goods that are available within these political communities (Pevnick in Pevnick et al, 2008: 242). For Pevnick, the motivations for such movements must be taken into account in order to build a robust approach to migration, and he deems that contrary to the arguments of Risse, states would be entitled to exclude migrants from their territories on the basis that these migrants have not contributed to the creation or development of the social and political goods to which they seek access (Pevnick in Pevnick et al, 2008: 243 -244).
Pevnick s critique of Risse is compelling and gives just reason to questio n the validity of his approach in terms of what is really at stake in migratory patterns access to resources, or
access to social goods. For Pevnick, the latter involves a right to exclude on the part of the receiving community; however there are problems with this claim to exclusion. The problem is that the argument that Pevnick makes against the rights of non-citizens could also be made against citizens themselves. Pevnick s claim that non-citizens have not been involved in the creation of the social goods they seek to access would also be true of citizens in most developed states around the world. It is not the citizens who have created most of these institutions, but rather the ancestors of those citizens. This therefore creates another
problem when we return to the question of morally arbitrary facts and specifically to the idea of citizenship as an inherited right. Inherited citizenship is a considerably complex subject of which there is little space to delve into here 4, however simply to say that the idea of inheritance implies privilege by place of birth, and this seems contradictory to the spirit of liberal neutrality. Therefore Pevnick s claim to the right to exclude based on the creation of social goods by citizens themselves is fairly weak. Pevnick does also identify the role of citizens in sustaining such social goods, however this argument also fails to create a clear distinction between citizens and non -citizens that does not also rest on invoking the morally arbitrary fact of birthplace. Firstly, Pevnick makes an assumption that once migrants
become citizens, they will not contribute to the development of social goods. This seems
Schacar and Hirschl (2007) present an interesting discussion of inherited citizenship centring on its similarity to inherited property rights.
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particularly misplaced given the reliance of many Western states on migrants for economic growth (Casals, 2006: 208) and therefore the sustainability of the advanced social goods that developed states are able to offer. It is also problematic when we consider other groups in society who do not contribute to the development of these social goods. Being an
unemployed citizen does not involved being stripped of citizenship status, and neither does a failure to participate in the democratic processes of the state 5. There seem little grounds, therefore, for excluding non -citizens that again could not equally apply to certain groups of citizens who choose or are forced by circumstance not to contribute to ensuring the sustainability of the social goods to which they have access.
A liberal approach to free movement must take into account the autonomous rights of th e individual whether they are citizens or non-citizens. Carens approach demonstrated this, grounding free movement rights in liberal rights, and Risse s extension of this has served to highlight the equal rights of all individuals regardless of birthplac e. Risse s approach can be criticised in that is does not provide a robust response to the contention that while natural resources may be under global collective ownership, this approach does not take into account the importance of social and political go ods in migratory decisions. However, such criticism does not provide a reason for the exclusion of migrants from such goods . Rather, what has been demonstrated by these approaches is that individual free movement has a strong grounding within liberal thought, and that attempts to modify such approaches in ways that will restrict movement tend to result in tension with the prin ciples of liberalism 6. From this, the contention can therefore be made that constitutional patriotism, intrinsically based in the principles of liberalism as it has been previously suggested, implies in turn a commitment to individual free movement as a realisation of those liberal principles. Individual free movement in the European Union has, despite considerable restrictions in
On the subject of democratic practice, Abizadeh has made the further relevant contention that non-citizens are also subject to state coercion in the form of exclusion. Therefore, for Abizadeh, membership rights decisions must be justified by both citizens and non-citizens (Abizadeh, 2008). While this argument is not contained within the main body because of its lack of direct relevance to claims surrounding liberal free movement rights, it is an important extension that highlights the links between approaches to migration and appropriate democratic practice, and in a similar way to the critique of Pevnick s approach presented, that the creation of just institutions does not simply mean that states are therefore permitted to act as they wish with regards to migration in isolation of global context. 6 For reasons of space only Pevnick s critique has been considered here, however for consideration of wider opposition to free movement, see Seglow (2005).
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terms of the prominence of national government, allowed for the development of access to a considerable range of rights including the right to seek employment or education in another member state, and the right to vote in both European and local elections in a member state other than the one in which main citizenship is held. While the EU is presently still largely defined in te rms of national politics, constitutional patriotism is committed to the creation of political attachment that is truly separated from ideas about nationalit y, ethnicity and even territory. Therefore it is strongly compatible with a commitment to individua l free movement that aids in the delivery of liberal rights and the development of a shared transstate political space such as that found in the European Union and favoured by advocates of both liberal democracy and free migration.
However, constitutional patriotism theorists give limited attention to individual free movement in their theories. Habermas, for example, refers to the need to recognise the many different forms of life coexisting in a multicultural society (Habermas, 1995: 264), but has also supported a quota system of immigration (Habermas, 1994) and Müller directly notes the importance of matching universalism with fair opportunities and nondiscrimination (Müller, 2007a: 88), while also arguing that the current system of states as objects of social organisation is likely to continue (Müller, 2008). There is very little evidence within the literature of any consideration of the centrality of the right to free movement in communities built on constitutional patriotism, or the implications of this. Few theorists actually raise the specific concept of trans-state free movement, or the shift away from traditional understandings of citizenship and identity that this implies. Lacroix has indirectly implied that free movement is a part of constitu tional patriotism, at least internally (Lacroix, 2009), but it is important to note that if we are to apply the argument that liberal regimes must respect individual free movement as a liberal right, then this must also be true at the external boundaries of the community. It would be contradictory to the claims already made within this paper about the nature of liberal democracy and its intrinsic ties to individual free movement if the external boundaries of a trans -state democratic community such as the EU were then to be closed. This is a considerably controversial point in
constitutional patriotism theory, not least for more particularistic constitutional patriotism theorists as outlined earlier in the paper.
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This section of the paper has considered individual free movement in strongly theoretical terms to contend that individual free movement is central to theories of constitutional patriotism. However, there are specific implications of acknowledging the centrality of individual free movement for th ose theories, and these will now be explored through the consideration of individual free movement in non-ideal terms. The distinction between realism and idealism, between what already exists and what ought to exist, is particularly difficult to resolve when considering ethical dilemmas (for discussion, see Carens, 1996). However, it is through this consideration of non -ideal aspects of individual free movement that a fully justifiable and tenable theory of constitutional patriotism can be reached.
Individual Free Movement in a Non-Ideal World
The main area of tension that will be focused on here is culture. Constitutional patriotism theorists rely heavily on the separation of the cultural and the political, with cooperation and negotiation of difference being centred on the political sphere, a nd a strong focus on the autonomy of distinct cultures. As Müller notes, people and culture become relevant only to the extent that they have an impact on politics (Müller, 2008: 60). There is a
contradiction, however, between the need to preserve cu ltural autonomy above all else, and the degree to which a system of trans-state citizenship would involve the integration of cultures in shared geographical spaces. Constitutional patriotism theorists acknowledge that the removal of political differences does not imply an end to cultural identity markers, and indeed the theories include measures to prevent such homogenisation. However, the
deterritorialisation of citizenship that is implied by individual free movement is not considered and it is here that the potential for tensions is grounded. Persistent tensions could be seen to play out between those who view themselves as indigenous to a territory and base their identity on this 7 and those post-national citizens who have migrated through the trans-state space and occupy the same territory, with the same rights and liberties. Communitarian critiques have drawn attention to these issues, most notably in Michael Walzer s work on membership, where he argues that when borders are opened to unrestricted migration, local communities become closed to new populations and put up
The idea of a territorially defined identity is similar to what Kostakopoulou has termed the land ethic (Kostakopoulou, 2001: 154-155).
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new borders. In Walzer s words, to tear down the walls of the state is not
to create a
world without walls, but to create a thousand petty fortresses (Walzer, 2008: 153). The communitarian critique cannot question the moral validity of the concept of free movement; indeed drawing on the moral validity of liberalism and its ties to free migration discussed earlier there is reason to believe that communitarian arguments for closed borders are flawed, because they fail to recognise the existence of basic human rights outside of the social context and fail to recognise the primacy of these rights over morally arbitrary facts about individuals. There is not space to go into these argument s here8, but rather to suggest that despite these flaws in communitarian thinking, it is important to recognise how much communitarian thinking may reflect a non -ideal reality that in the current system of nation states there is a strong tie between identity and citizenship that is not easily broken. As discussed, many proponents of individual free movement highlight the importance of free movement in securing rights associated with liberal individual autonomy, but it is important to recognise that the guarantee of migration does not guarantee the full experience of these rights. In her work on Somali migrants living in the UK, Bloom argues that without c hanges to institutional arrangements it is difficult to see how the rights envisaged by those scholars would be realised. She notes that (f)reedom to move without acc ompanying support and welcome is not the freedom Carens envisages (Bloom, 2009: 240). Similarly, the provision of free movement does not guarantee that the fair treatment of migrants will not be affected by tensions arising from the deterritorialisation of citizenship. While migrating individuals may be recognised in law as equal citizens, this does not take agential factors into account. While there is good reason to support the separati on of citizenship and identity that is implied by both individual free movement and constitutional patriotism, traditional identity markers will not simply disappear as a result of this transition (Spinner -Halev, 2008).
Considering briefly the impact of f ree movement in the European Union, a situation such as this is not that hard to imagine. The prevalence of support for far -right parties in the 2009 European elections demonstrates how easily anti-migrant and anti-integration sentiment can grow (Waterfeld et al, 2009). Individual free movement in the EU is increasingly a
See Walzer (1983; 2008) and Miller (2000,; 2005) for prominent examples of communitarian approaches to citizenship and immigration. For full consideration of some of the main criticisms of communitarian theories, see Morrice (2000) and Seglow (2005).
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political issue and nowhere more so than in the United Kingdom. These strains were particularly evident following the accession of the so-called A8 member states in 2004. Between 2004 and 2008, just over one million citizens from the A8 states migrated to the UK (Pollard et al, 2008). This trend placed particular strain on rural communities where migrant presence had previously been rare (Commission for Rural Equalities, 2007). Indeed , in a study measuring residents perceptions of community cohesion, six of the ten areas to be judged to have the lowest community cohesion were areas that had seen large scale migration from Eastern Europe (Easton, 2008). There have also been economic t ensions in the UK related to the free movement of labour for example widespread strikes among
British energy workers in early 2009 demonstrated a clear tension between those who believe that British nationals should be given priority for jobs, and those who form part of a mobile workforce.
Tensions such as these are also reflected at the external boundaries of the EU. While there is no such individual free movement at the borders, tensions with outsiders are clearly evident, and demonstrate a continue d reliance on traditional forms of identity and citizenship. This is evident in the previously mentioned European elections of 2009, where far right parties standing on anti-immigration platforms made considerable gains, and also in measures such as the vigilante anti-immigrant patrols in Italy (Hooper, 2009) and the occurrence of severe social tensions in the EU s border regions, for example the Greek islands (Smith, 2009). While scholars such as Caparoso (2005) may argue that this type of othering at the external boundaries is desirable for the creation of a more robust European identity, in reality no such strong identity formation has taken place and it seems that t hese examples of tensions with non-EU immigrants are examples rather of traditional tensions between immigrants and nationalist sentiment. Indeed, emp irical research on the EU has found that fears of cultural marginality are at least as important as economic interests in terms of attitudes to migration and integration (Fetzer, 2000; McLaren, 2002). A recent survey of both European and North American citizens found that cultural integration of migrants was as big a concern as their economic contribution for most participants, and again found that British citizens were more likely than other s to take the view that immigration threatens their country (Transatlantic Trends, 2009). Additionally, Meinhof s research demonstrates how strongly identity markers based on othering are linked to
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citizens feelings about European integration.
Meinhof f ound that asking research
participants to discuss the EU resulted in them referencing a strong sense of their own identity against that of other Europeans (Meinhof, 2004).
Should individuals begin to feel a stronger sense of cultural threat from perceived outsiders , they may begin to seek protection of their cultural group rights through appeals to nationalism. Under conditions of free movement, this may be more likely as the more traditional, territorially defined identities clash with new post-national ways of thinking. However, consideration of the non -ideal realities of implementing individual free movement does not mean that the theoretical foundations of liberal free movement should be questioned. Rather, it highlights some of the implications of this argument, and it is now the task to consider what the acknowledgement of individual free movement means for building a more robust theory of constitutional patriotism.
Constitutional patriotism is built upon the idea of building a sense of belonging irrespective of culture, and as such it already presents us with a clear idea of how to build shared sentiment and to negotiate difference across borders. However, as this section has detailed, such political mechanisms are unable to account for the pote ntial cultural implications of the deterritorialisation implicit in individual free movement. Theorists of constitutional
patriotism have been hesitant to include forms of cultural conversation within their theories; however it is precisely these issues that need to be addressed in order to build a tenable theory of liberal constitutional patriotism. Habermas (2008) begins to consider tensions between groups, and his theories have also pointed to the importance of reciprocal recognition (Habermas, 1994; F ossum, 2003). These ideas form part of a debate 9 around the tension between group rights and liberal principles. It is this very debate that has been reflected within this paper, between the primacy of liberal rights to individual autonomy, and complex issues surrounding the existence of groups and their demands to recognition and other group rights. It is clear from the persistent defence of liberal rights within this paper that approaches emphasising group rights are incompatible with liberal constitutional patriotism and the liberal approach to individual free movement that this implies. However,
For a range of different approaches, see Casals (2006); Habermas (1994; 2008); Macedo (2000); Rawls (1996); Taylor (1994).
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it also clear through consideration of the implications of this individual free movement approach to migration that simply ignoring cultural issues is unlikely to lead to a robust form of liberal constitutional patriotism and the creation of shared attachment, as feelings of cultural and economic threat f rom perceived outsiders persist.
While group rights are problematic in considering such a strongly liberal approach to citizenship and democracy, recognition of groups and the development of tolerance also play an important part in securing individual rights to dignity and respect (Casals, 2006 : 224). When we consider constitutional patriotism as involving individual free movement, these issues must take on a much more central role. A robust theory of constitutional pa triotism would need to address not only the negotiation of difference that is necessary across shared political institutions, but also the negotiation of difference that is necessary between those who perceive themselves as indigenous to a territorial area , and those who they perceive as outsiders, in order to secure these rights to dignity and respect, and to negotiate the complex terrain between group belonging and individual rights. It is also important to note, as Casals does, that this type of negotiation of difference can only take place when equality between groups is guaranteed the creation of a level playing field for such negotiation of
difference would be essential. This is particularly pertinent in considering again the format of the European Union. The persistence of national governments in their traditional form means that they continue to favour the majority nationality in their territory, and as such do not recognise the shift away from a territorial basis for national groups. National
governments in the EU often act as they deem appropriate rather than in line with the policy set out by the European Court of Justice, and thus display little motivation for creating strong European citizenship (Conant, 2001). An anti -discrimination clause (Kostakopoulou, 2001) would be complementary to the need for recognition of equality between individuals and groups, in order to negotiate difference on an equal footing.
Conclusion
This paper has argued that individual free movement is implicit within constitutional patriotism, and that a robust theory of constitutional patriotism would, as such, have to be able to account for the challenges that such migration would involve. It has been suggested
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that the splitting of citizenship and territory would result in tensions around the persistence of traditional, territorial identities; and that the negotiation of difference that is prevalent between political institutions is also necessar y in local settings between indigenous communities and perceived outsiders. I have suggested that there remain unresolved problems around the persistence of groups and the rights they have to exist a nd to be recognised, but that any formally recognised group rights conflict with the liberal foundations of constitutional patriotism. Rather, rights to dignity and respect of the individual must be negotiated through consideration of the role of different groups in securing these, and this again points the importance of negotiation of difference in more local cultural settings.
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References
Abizadeh, A. (2002) Does Liberal Democracy Presuppose a Cultural Nation? Arguments . American Political Science Review. 96: 3, pp. 495 -509.
Four
Abizadeh, A. (2008) Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders . Political Theory. 36: 1, pp. 37 -65.
Archibugi, D. (2004) Cosmopolitan Democracy and Its Critics: A Review . European Journal of International Relations . 10: 3, pp. 437-473.
Benhabib, S. (2007) Twilight of Sovereignty or Emergence of Cosmopolitan Norms? Rethinking Citizenship in Volatile Times . Citizenship Studies. 11: 1, pp. 19 -36.
Blake, M, and Risse, M. (2006) Is There a Human Right to Free Movement? I mmigration and Original Ownership of the Earth . John F Kennedy School of Government Faculty Research Working Paper Series, Harvard University.
Bloom, T. (2009) Just Open Borders? Examining Joseph Carens Open Borders Argument in Light of a Case Study of Recent Somali Migrants to the UK . Journal of Global Ethics. 5: 3, pp. 231-243.
Cabrera, L. (2004) Political Theory of Global Justice. Basingstoke: Routledge.
Caparoso, J. (2005) The Possibilities of a European Identity . Brown Journal of World Affairs . 12: 1, pp. 65 -75.
Carens, J. (1987) Aliens and Citizens: The Case for Open Borders . The Review of Politics. 49: 2, pp. 251-273.
Carens, J. (1996)
Realistic and Idealistic Approaches to the Ethics of Migration .
International Migration Review . 30: 1, pp. 156 -170.
16
Casals, N. T. (2006) Group Rights as Human Rights: A Liberal Approach to Multiculturalism . Dordrecht: Springer.
Commission for Rural Equalities (2007) A8 Migrant Workers in Rural Areas . CRC Briefing Paper. http://www.ruralcommunities.gov.uk/publications/migrantworkersinruralareas
(accessed 24/09/09).
Conant, L. (2001) Contested Boundaries: Citizens, States, and Supranational Belonging in the European Union . EUI Working Paper, RSC No. 2001/27, European Forum Series . Florence: European University Institute.
Cronin, C. (2003) Democracy and Collective Identity: In Defence of Constitutional Patriotism . European Journal of Philosophy . 11: 1, pp. 1-28.
De Grieff, P. (2002) Habermas on Nationalism and Cosmopolitanism . Ratio Juris. 15: 4, pp. 418-438.
Easton, M. (2008) Contrasting Views on EU Migration . www.bbc.co.uk/news (accessed 14/11/09).
Fetzer, J. S. (2000) Economic Self-Interest of Cultural Marginality?
Anti-Immigrant
Sentiment and Nativist Political Movements in France, Germany and the USA . Journal of Ethnic and Migration Studies. 26: 1, pp. 5 -23.
Fossum. J. E. (2003) The European Charter: Between Deep Diversity and Constitutional Patriotism? Arena Working Paper 5/03, University of Oslo Centre for European Studies .
www.arena.uio.no/publications (accessed 2/11/09).
Habermas, J. (1994) Struggles for Recognition in the Democratic Constitutional State in Guttman, A. (ed) Multiculturalism: Examining the Politics of Recognition . Princeton University Press. Princeton:
17
Habermas, J. (1995) Citizenship and National Identity: Some Reflections on the Future of Europe in Beiner, R. Theorising Citizenship. Albany: State University of New York Press.
Habermas, J. (2001) Why Europe Needs a Constitution . New Left Review. 11, pp. 5-26.
Habermas, J. (2008) Between Naturalism and Religion. Cambridge: Polity Press.
Hayter, T. (2004) Open Borders: The Case Against Immigration Controls (2 nd edition). London: Pluto Press.
Held, D. (1996) Models of Democracy (2 nd edition). Cambridge: Polity Press.
Held, D. (2004) Global Covenant: The Social Democratic Alternative to the Washington Consensus. Cambridge: Polity Press.
Held, D. (2005) Principles of Cosmopolitan Order in Brock, G., and Brighouse, H. The Political Philosophy of Cosmopolitanism. Cambridge: Cambridge University Press.
Hooper,
J.
(2009)
Opposition
Outcry
as
Italy
Legalises
Vigilante
Patrols .
www.guardian.co.uk (accessed 17/11/09).
Kostakopoulou, D. (2001) Citizenship, Identity and Immigration in the European Union . Manchester: Manchester University Press.
Lacroix, J. (2002) For a European Constitutional Patriotism . Political Studies. 50: 5, pp. 844 958.
Lacroix, J. (2009) Does Europe Need Common Values? Habermas v Habermas . European Journal of Political Theory. 8: pp. 141 -156.
Maas, W. (2007) Creating European Citizens. Plymouth: Rowman and Littlefield.
18
Maas, W. (2008) Migrants, States and EU Citizenship s Unfulfilled Promise . Citizenship Studies. 12: 6, pp. 583 -596.
Macedo, S. (2000) Diversity and Distrust: Civic Education in a Multicultural Democracy. Cambridge: Harvard University Press.
McLaren, L. M. (2002) Public Support for the European Union: Cost/Benefit Analysis or Perceived Cultural Threat? Journal of Politics. 64: 2, pp. 552 -566.
Meinhof, U. H. (2004) Europe Viewed from Below: Agents, Victims and the Threat of the Other in Herrman, R. K., Risse, T., and Brewer, M. B. Becoming European in the EU . Oxford: Rowman and Littlefield.
Miller, D. (2000) Citizenship and National Identity . Cambridge: Polity Press.
Miller, D. (2005) Immigration: The Case for Limits in Cohen, A., a nd Wellman, C. H. (eds) Contemporary Debates in Applied Ethics. Oxford: Blackwell.
Morrice, D. (2000) The Liberal -Communitarian Debate in Contemporary Political Philosophy and its Significance for International Relations . Review of International Studies. 26, pp. 233-251.
Müller, J. W. (2007a) Constitutional Patriotism. Princeton: Princeton University Press.
Müller, J. W (2007b) Is Europe Converging on Constitutional Patriotism? (And If So, Is It Justified?) Critical Review of International Social and Political Philosophy . 10: 3, pp. 377 -397.
Müller, J. W. (2008) A General Theory of Constitutional Patriotism . International Journal of Constitutional Law. 6: 1, pp. 72-95.
Nett, R. (1971) The Civil Right We Are Not Ready For: The Right to Free Movement of People on the Face of the Earth . Ethics. 81: 3, pp. 212 -227.
19
Pevnick, R., Cafaro, P., and Risse, M. (2008) An Exchange: The Morality of Immigration . Ethics and International Affairs. 22: 3, pp. 241 -260.
Pollard, N., Latorre, M, and Sriskandarajah, D. (2008) Floodgates or Turnstiles? Post-EU Enlargement Migration Flows to (and from) the UK. London: Institute for Public Policy Research.
Rawls, J. (1971) A Theory of Justice. Oxford: Clarendon Press.
Rawls, J. (1996) Political Liberalism. New York: Columbia University Press.
Risse, M. (2006) On the Morality of Immigration . Ethics and International Affairs. 22: 1, pp. 25-33.
Sassen, S. (1996) Losing Control? Sovereignty in an Age of Globalisation. Columbia University Press.
New York:
Schacar, A., and Hirscl, R. (2007) Citizenship as Inherited Property . Political Theory. 35: 3, pp. 253-287.
Seglow, J. (2005) The Ethics of Immigration . Political Studies Review. 3, pp. 317 -334.
Seglow, J. (2006) Immigration Justice and Borders: Towards a Global Agreement . Contemporary Politics. 12: 3-4, pp. 233-246.
Scheuerman, W. E. (2008) Review Essay: Global Governance Without Global Government? Habermas on Postnational Democracy . Political Theory. 36: 1, pp. 133 -151.
Smith, H. (2009) Greece struggles to cope as immigrant tensions soar . www.guardian.co.uk (accessed 17/11/09).
20
Spinner-Halev, J. (2008) Democracy, Solidarity and Post-Nationalism . Political Studies. 56, pp. 604-628.
Taylor, C. (1994) The Politics of Recognition in Guttman, A. (ed) Multiculturalism: Examining the Politics of Recognition . Princeton: Princeton University Press.
Transatlantic Trends (2009)
Transatlantic Trends Immigration: Key Findings 2009 .
www.transatlantictrends.org (accessed 15/12/09).
Walzer, M. (1983) Spheres of Justice: A Defence of Pluralism and Equality . Robertson.
Oxford:
Walzer, M. (2008) The Distribution of Membership in Pogge, T., and Moellendorf, D. Global Justice: Seminal Essays (Global Responsibilities Volume 1) . Minnesota: Paragon House.
Waterfeld, B., Samuel, H., and Squires, N. (2009) Eu ropean Elections 2009: Far Right and Fringe Parties Made Gains Across Europe Amid Low Turnout . (accessed 15/08/09). www.telegraph.co.uk
21
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