Illiberal liberalism cultural restrictions on migration and access to citizenship in Europe

American Journal of Comparative Law

Volumn 58, Issue 1, 2010, Pages 53-105

  Orgad, Liav ^a,b  

^a INTERDISCIPLINARY CENTER   (Israel)

^b HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79957491552     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/ajcl.2009.0004     Document Type: Article

References (185)

1. See Benjamin Franklin, America as a Land of Opportunity, in DAVID B. DAVIS & STEVEN MINTZ, THE BOISTEROUS SEA OF LIBERTY: A DOCUMENTARY HISTORY OF AMERICA FROM DISCOVERY THROUGH THE CIVIL WAR 119 (2000).
2. See, e.g., ROGER DANIELS, COMING TO AMERICA: A HISTORY OF IMMIGRATION AND ETHNICITY IN AMERICAN LIFE (2002)
3. JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (2d ed. 1988).
4. See, e.g., Qian Zhenchao & Daniel T. Lichter, Social Boundaries and Marital Assimilation: Interpreting Trends in Racial and Ethnic Intermarriage, 72 AM. SOC. REV. 68 (2007).
5. See, e.g., ALEJANDRO PORTES & RUBEN G. RUMBAUT, LEGACIES: THE STORY OF THE IMMIGRANT SECOND GENERATION (2001).
6. See SAMUEL HUNTINGTON, WHO ARE WE? THE CHALLENGES TO AMERICA'S NATIONAL IDENTITY (2004).
7. See, e.g., PATRICK J. BUCHANAN, STATE OF EMERGENCY: THE THIRD WORLD INVASION AND CONQUEST OF AMERICA (2006)
8. PETER BRIMELOW, ALIEN NATION: COMMON SENSE ABOUT AMERICA'S IMMIGRATION DISASTER (1996).
9. See MARK KRIKORIAN, THE NEW CASE AGAINST IMMIGRATION: BOTH LEGAL AND ILLEGAL 51, 56-59 (2008).
10. See Strengthening American Citizenship Act of 2007, Bill #S.1393, available at http://thomas.loc.gov/cgi-bin/query/z7c110:S.2721:.
11. See CHRISTIAN JOPPKE, SELECTING BY ORIGIN: ETHNIC MIGRATION IN THE LIBERAL STATE (2005).
12. See TRENDS IN TOTAL MIGRANT STOCK: THE 2005 REVISION 1 (2005). In Western Europe, the number of international migrants increased from 6, 995, 054 in 1960 (5.2% of the population) to 22, 075, 278 in 2005 (11.9%). In Europe as a whole, the number of international migrants raised from 14, 244, 764 in 1960 (3.4% of the population) to 64, 115, 850 in 2005 (8.8%). See
13. World Migrant Stock: The 2005 Revision Population Database, United Nations, available at http://esa.un.org/migration/index.asp?panel=1.
14. Intra-regional movements constitute 47% of foreign-born migrants in Europe; the rest arrive from Africa (27%), Asia (14%), America (10%), and other regions (2%). When excluding intra-regional migration, international migrants mostly arrive from illiberal societies. The leading sources are Algeria and Morocco in France; Turkey in Germany; Morocco, Turkey, and Suriname in the Netherlands; South Africa, India, and Pakistan in the United Kingdom; Iraq, Somalia, and Turkey in Denmark. See Peter Stalker, Migration Trends and Migration Policy in Europe, 40(5) INT'L MIGRATION 151, 174 (2003).
15. The literature on this issue is vast. See, e.g., CHRISTOPHER CALDWELL, REFLECTIONS ON THE REVOLUTION IN EUROPE: IMMIGRATION, ISLAM, and THE WEST (2009)
16. AYAAN H. ALI, INFIDEL (2008)
17. WALTER LAQUEUR, THE LAST DAYS OF EUROPE: EPITAPH FOR AN OLD CONTINENT (2007)
18. Francis Fukuyama, Identity, Immigration and Liberal Democracy, 17(2) J. DEM. 5 (2006)
19. TONY BLANKLEY, THE WEST'S LAST CHANCE: WILL WE WIN THE CLASH OF CIVILIZATION (2005)
20. BAT YE'OR, EURABIA: THE EURO-ARAB AXIS (2005)
21. ROGER SCRUTON, THE WEST AND THE REST: GLOBALIZATION AND THE TERRORIST THREAT (2003).
22. In 2005, family migration constituted 70% of the total migration to the United States, 62% to New Zealand, 61% to France, 60% to Canada, 58% to Italy, 57% to Australia and Sweden, 47% to Switzerland, 46% to the Netherlands, 45% to Germany, and 35% to the United Kingdom. When excluding refugees and asylum seekers, family migration constitutes about 80 to 90% of total migration. See WORLD MIGRATION 2008: MANAGING LABOUR MOBILITY IN THE EVOLVING GLOBAL ECONOMY 157 (2008).
23. See The Family in the EU25 Seen through Figures, 59 EUROSTAT (2006) ("Nearly one divorce for every two marriages in the EU25... two thirds of the households in the EU25 are without children.").
24. The Total Fertility Rate (TFR) is the number of children that a woman bears over her lifetime. The TFR needed for demographic stability - the Replacement Fertility - is 2.1 children per woman. The TFR in the United States is 2.01, and the average European level is 1.6. While France has a relatively stable TFR of 1.98, Germany has a TFR of 1.39, the United Kingdom of 1.6, the Netherlands of 1.72, and Denmark of 1.85. See Low Fertility and Population Ageing: Causes, Consequences, and Policy Options, RAND CORP. EURO. 55-58 (2004)
25. Giampaolo Lanzieri, Population in Europe 2007: First Results, 81 EUROSTAT 1, 6 (2008).
26. See Konstantinos Giannakouris, Ageing Characterises the Demographic Perspectives of the European Societies, 72 EUROSTAT (2008).
27. See Luke Harding et al., Low Birthrate: How Parenthood Lost its Charm, THE GUARDIAN, May 3, 2006, at 23
28. Gaby Hinsliff & Lorna Martin, How the Baby Shortage Threatens Our Future, THE OBSERVER, Feb. 19, 2006, at 8
29. James Graff, We Need More Babies!, THE TIME, Nov. 21, 2004, available at http://www.time.com/time/magazine/article/0,9171,785317,00.html.
30. See PEGGY LEVITT, THE TRANSNATIONAL VILLAGERS (2001) (arguing that living transnationally becomes the rule rather than the exception). In a way, some immigrant groups are more than "societies within societies." They hold their country of origin's nationality, language and identity, and share ethnic and religious back grounds. Some scholars argue that they create a "sub-state nationalism." See
31. HELEN CATT, SUB-STATE NATIONALISM: A COMPARATIVE ANALYSIS OF INSTITUTIONAL DESIGN (2002).
32. See RANDALL HANSEN & PATRICK WEIL, DUAL NATIONALITY, SOCIAL RIGHTS AND FEDERAL CITIZENSHIP IN THE U.S. AND EUROPE: THE REINVENTION OP CITIZENSHIP
33. SCRUTON, supra note 12, at 152-55. The defeat of the Treaty establishing a Constitution for Europe by a referendum held in France and in the Netherlands signals that at least these states are not willing to give up their national identity so fast See. e.g., Bruno Jérôme & Nicolas G. Vaillant, The French Rejection of the European Constitution: An Empirical Analysis, 21(4) EURO. J. POL. ECON. 1085 (2005)
34. MARCEL RUBBERS, Regarding the Dutch 'Nee' to the European Constitution, 9(1) EURO UNION POL. 59 (2008).
35. See, e.g., TOVE H. MALLOY, NATIONAL MINORITY RIGHTS IN EUROPE (2005)
36. MI NORITY GOVERNANCE IN EUROPE (Kinga Gál ed., 2002).
37. See BRUCE BAWER, WHILE EUROPE SLEPT: HOW RADICAL ISLAM IS DESTROYING THE WEST FROM WITHIN 16-27 (2006).
38. See stories and statistics in the Guardian's special section of "Forced Marriages," available at http://www.guardian.co.uk/world/ forced-marriage
39. Damien McElroy, Saudi Woman Killed for Chatting on Facebook, DAILY TELEGRAPH Apr 1 2008, 16
40. One in 10 'Backs Honour Killings,' BBN NEWS, Sept. 4, 2006 available at http://news.bbc.co.Uk/2/hi/uk-news/5311244.stm.
41. See, e.g., Edwige Rude-Antoine, Forced Marriages in Council of Europe Member States, Council of Europe (2005)
42. Dealing with Cases of Forced Marriage Home Office (2007).
43. See The Great Divide: How Westerners and Muslims View Each Other, the Pew Global Attitudes Project (2006) (describing how Muslims and Westerners see each other, and their different perceptions on terrorism, religion and democracy);
44. JOHN L. ESPOSITO & DALIA MOOAHED, WHO SPEAKS FOB ISLAM? WHAT A BILLION MUSLIMS REALLY THINK 87-91, 105-22 (2008) (revealing findings of a Gallup study on Muslims' beliefs and customs); Islamic Extremism: Common Concern for Muslim and Western Publics, Pew Global Attitudes Survey (2005) (describing how Muslims and Westerners see Western values differently).
45. See CHRISTINE SCHIRRMACHER, "MUSLIMS IN GERMANY" A STUDY BY THE FEDERAL MINISTRY OF THE INTERIOR 8 (2008).
46. See IAN BURUMA, MURDER IN AMSTERDAM: LIBERAL EUROPE, ISLAM, AND THE LIMITS OF TOLERANCE 94-95 (2006).
47. See MELANIE PHILLIPS, LONDONISTAN 82-83, 97 (2006)
48. Alan Travis & Madeleine Bunting, British Muslims Want Islamic Law and Prayers at Work, THE GUARDIAN, Nov. 30, 2004, at 1
49. British Muslim Poll: Key Points, BBC NEWS, Jan. 29, 2007, available at http://news.bbc.co.Uk/2/hi/6309983.stm.
50. Statistics are not consistent due to different definitions, variables, and sources. In general, non-native population - people who are not citizens of the country in which they reside - constitutes 25 million, about 5.5% of the total EU population. The largest non-native population lives in Luxembourg (38.6%), Austria (9.4%), Germany (8.9%), Spain (6.6%), France (5.6%), and the United Kingdom (4.7%). See Non-national Populations in the EU Member States, 8 EUROSTAT (2006).
51. Among the cities that have a sizeable Muslim population are Marseille and Rotterdam (25%), Malmö (20%), Brussels and Birmingham (15%). See An Uncertain Road: Muslims and the Future of Europe 4, the Pew Research Center (2005). Demographic forecasts predict that Muslims will become the majority in some of these cities, and one fifth of the entire EU population, in 2050. See Timothy M. Savage, Europe and Islam: Crescent Waxing, Cultures Clashing, 27(3) WASH. Q. 25, 26-28 (2004).
52. It is doubtful, e.g., whether the practice of arranged marriages is rooted in religion or culture; it is especially doubtful if it is a Muslim practice. Arranged marriages exist also in Asian cultures, and among some sects of ultra-Orthodox Jews See Bhikhu Parekh, Minority Practices and Principles of Toleration, 30(1) INT'L MIORA TION REV. 251, 267-68 (1996).
53. Moral Panic is defined as "the intensity of feeling expressed by a large number of people about a specific group of people who appear to threaten the social order at a given time." See STANLEY COHEN, FOLK DEVILS and MORAL PANICS (2002) (defining five steges of its process: concern, hostility, consensus, disproportionality, and
54. See, e.g., MARK STEYN, AMERICA ALONE: THE END OF THE WORLD AS WE KNOW IT xiii (2006); BURUMA, supra note 27, at 25 (in referring to Dutch voices expressed against Muslims, Buruma notes that "the fruits of the European Enlightenment must we defended, with force if necessary. It is time for Muslims to be enlightened too the solution to the Muslim problem is a Muslim Voltaire, a Muslim Nietzsche - that is to say, people like 'us, the heretics'."). See also supra note 12 and accompanying text.
55. See PERCEPTIONS OF DISCRIMINATION AND ISLAMOPHOBIA: VOICES PROM MEM BERS OF MUSLIM COMMUNITIES IN THE EUROPEAN UNION (2006).
56. See Elisabeth Ivarsflaten, What Unites Right-Wing Populists in Western Europe? Re-Examining Grievance Mobilization Models in Seven Successful Cases 41(3) COMPARATIVE POLITICAL STUDIES 3 (2008).
57. See OLIVER ROY, GLOBALIZED ISLAM: THE SEARCH FOR A NEW UMMAH (2004).
58. See Joseph Raz, Multiculturalism: A Liberal Perspective, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 155, 170-71 (1994) (multicultural society "tends to encourage conservative elements in cultural groups which, resisting all chance in their culture which is equated with its dilution to the point of extinction.").
59. See Karoly Lorant, The Demographic Challenge in Europe 16 (2005), available at http://www.europarl.europa.eu/inddem/docs/papers/ The%20demographic%20challenge%20in%20Europe.pdf.
60. See Patrick Weil, Access to Citizenship: A Comparative of Twenty-Five Nationality Laws, in CITIZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES 17, 21, 28-31 (Alexander Aleinikoff & Douglas Klusmeyer eds., 2001).
61. See, e.g., Philip Muus, International Migration and the European Union, Trends and Consequences, 9 EUROPEAN JOURNAL OF CRIMINAL POLICY & RESEARCH 31 (2001).
62. See Randall Hansen, The Free Economy and the Jacobin State, or How Europe Can Cope with the Coming Immigration Wave, in DEBATING IMMIGRATION 223 (Carol M. Swain ed., 2007).
63. See Europe Needs 56 Million Immigrant Workers by 2050, WOHKPEKMIT. COM, Jan. 14, 2008, available at http://www.workpermit.com/news/2008-01-14/europe/eu- needs-56-million-migrants-2050.htm.
64. Britain and the Netherlands are examples. See British Emigration Reaches a High, BBC NEWS, NOV. 4, 2004, available at http://news.bbc.co.Uk/2/hi/uk-news/ 3982217.stm
65. Joanne Selm, The Netherlands: Death of a Filmmaker Shakes a Nation, MIGRATION POLICY INSTITUTE (2005).
66. See Une Marocaine en Burqa se Voit Refuser la Nationalité Française, LE MONDE, July 11, 2008, at 9
67. Katrin Bennhold, A Muslim Woman too Orthodox for France, INT'L HERALD TRIBUNE, July 18, 2008, at 4
68. Katrin Bennhold, A Veil Closes France's Door to Citizenship, N.Y. TIMES, July 19, 2008, at A1 (pointing out an interesting fact that Silmi had repeatedly accepted treatment by a male gynecologist).
69. Children born in France are entitled to citizenship. Their noncitizen parents are entitled to citizenship only after fulfilling certain preconditions, among them is the above "assimilation other than linguistic" requirement. See Giovanna Campani & Olivia Salimbeni, Marriage Migration in France, Country Study, in MARRIAGE AS IMMIGRATION GATE: THE SITUATION OF FEMALE MARRIAGE MIGRANTS FROM THIRD COUNTRIES IN THE EU MEMBER STATES (2004) thereinafter MARRIAGE AS IMMIGRATION GATE],
70. France has become home to a large community of Algerian and Moroccan immigrants. In 2005, 8.1% of its population were immigrants, most of them foreigners (non-French citizens). See Marcus Engler, France, Country Profile, MIGRATION FOCUS (2007) ("In French statistics, immigrants (immigrés) and foreigners (étrangers) are recorded separately. Immigrants are defined as people who were born abroad as for- eign citizens, and they continue to be recorded as such even if they acquire French citizenship... foreigners are defined as people who do not have French citizenship.").
71. See Yvonne Y. Haddad & Michael J. Balz, The October Riots in France: A Failed Immigration Policy or the Empire Strikes Back?, 44(2) INT'L MIGRATION 28 (2006).
72. The Reception and Integration Contract is available at http://www.anaem.fr/IMG/pdfContrat-2008.pdf.
73. See Décret no 2006-1791 du 23 décembre 2006; article 5 of LOI no 2006-911 du 24 juillet 2006 relative à l'immigration et à l'intégration, available at http://www.legifrance.gouv.fr/affichTexte.do? cidTexte=JORFTEXT000000266495&dateTexte.
74. See Alexandre Devillard, France, in COMPARATIVE STUDY OF THE LAWS IN THE 27 EU MEMBER STATES FOR LEGAL IMMIGRATION 237-49 (2008) [hereinafter COMPARATIVE STUDY OF THE 27 EU MEMBER STATES].
75. The film is available at http://www.anaem.fr/contrat-d-accueil-et-d- integration-47/living-together-in-france-759.html.
76. Before receiving citizenship, the immigrant must also pass a citizenship test. The test includes 100 multiple-choice questions about French geography, history, family life, Constitutional principles, nationalism, and the EU. See http://www.testfrance.com/.
77. See Virginie Guiraudon, Integration Contracts for Immigrants: Common Trends and Differences in the European Experience, REAL INSTITUTO ELCANO (2008).
78. See Charles Hawley, Muslim Profiling: A German State Quizes Muslim Immigrants on Jews, Gays and Swim Lessons, SPIEGEL ONLINE, Jan. 31, 2006.
79. See The Über-Citizen and German Kulturkampf - s. 10 German Naturalisation Law: A Front? 3-4, Islamic Human Rights Commission (2007). Following criticism, the Muslims-only application had changed to any applicant "whose loyalty to the German Basic Law is doubted." Id. For a comprehensive analysis of the questionnaire, see Rainer Grell, Dichtung und Wahrheit: Die Geschichte des "Muslim-Tests" in Baden-Württemberg, 30 Fragen, die die Welt erregten (2006) (on file with the author).
80. See Objections to Citizenship Test Continue to Mount, DEUTSCHE WELLE, July 10, 2008, available at http://www.dw-world.de/dw/article/0.3473415,00.html
81. New German Citizenship Questions Flunk Cultural Sensitivity Test, DEUTSCHE WELLE, July 8, 2008, available at http://www.dw-world.de/dw/article/0. 3469730,00.html
82. Germany to Introduce Controversial New Citizenship Test, SPIEGEL ONLINE, June 11, 2009, available at http://www.spiegel.de/intemational/germany/0,1518, 559021,00.html.
83. The course is divided into 600 hours of language courses, and additional 30 hours of orientation courses. At the end, the immigrant has to pass a proficiency test. See sections 10(1X6), 10(3) and 10(4) of the Nationality Act, available at http://www.bmi.bund.de/.
84. For the development of German immigration laws, See Key Hailbronner, Citizenship and Nationhood in Germany, in IMMIGRATION AND THE POLITICS OF CITIZENSHIP IN EUROPE AND NORTH AMERICA 67 (William R. Brubaker ed., 1989)
85. Norbert Cyrus & Dita Vogel, Germany, in CURRENT IMMIGRATION DEBATES IN EUROPE: A PUBLICATION OF THE EUROPEAN MIGRATION DIALOGUE (Jan Niessen, Yongmi Schibel & Cressida Thompson eds., 2005) [hereinafter CURRENT IMMIGRATION DEBATES IN EUROPE]
86. Mária Gulicová-Grethe, Marriage Migration and the Significance of this Migration, Issue in Germany. Country Study, in MARRIAGE AS IMMIGRATION GATE, supra note 53
87. Rolf Gutmann, Germany, in COMPARATIVE STUDY OF THE 27 EU MEMBER STATES, supra note 58, at 251-63.
88. See Rogers Brubaker, Immigration, Citizenship, and the Nation-State in France and Germany, in THE CITIZENSHIP DEBATES 131 (Gershon Shafir ed., 1998).
89. See Veysel Özcan, Germany, Country Profile, Focus MIGRATION 4 (2007).
90. See IMMIGRATION LAW AND POLICY 41-47, 80-86 (2006).
91. Leitkultur as a political philosophy erupted in Germany during recent years. It means dominant or leading culture. See RICHARD BERNSTEIN, A Continent Watching Anxiously Over the Melting Pot, N.Y. TIMES, Dec. 14, 2004, at 4
92. Charles Hawley, What's a German? The Search for Identity Continues, SPIEGEL ONLINE, May 9, 2006, available at http://www.spiegel.de/international/0, 1518,415207,00.html.
93. See NICOLAS KUMANOFF, What is Leitkultur? In a Raging Debate, Leitkultur is the Operative Term, THE ATLANTIC TIMES, Dec. 2004, available at http.V/www.atlantic-times.com/archive-detail.php?recordID=69.
94. SEE Ray Furlong, Germans Argue over Integration, BBC NEWS, NOV. 30, 2004, available at http://news.bbc.co.Uk/2/hi/4056109.stm (emphasis added).
95. See Evelyn Ersanilli, Netherlands, Country Profile, Focus MIORATION 1-2 (2007) ("Allochtonen are officially defined as persons who were born outside the Netherlands or who have at least one parent who was born outside the Netherlands... western allochtonen are people from Europe (excluding Turkey), North America, Oceania, Indonesia and Japan; non-Western allochtonen are defined as people from Turkey, Africa, Latin American and the rest of Asia."). In 2006, 19.3% of the population was allochtonen - 8.8% Westerners and 10.5% non-Westerns. Id.
96. See Christian Joppke, The Retreat of Multiculturalism in the Liberal State: Theory and Policy, 55(2) BRIT. J. Soc. 237, 247-49 (2004). A prominent work is Paul Scheffer's article, Het Multiculturele Drama (the Multicultural Drama), available at http://www.nrc.nl/W2/Lab/MuIticultureel/scheffer.html. Scheffer warns that an alienated foreign population undermines the social cohesion of Dutch society and calls for a new policy based on shared language, history, and norms.
97. See Leonard F.M. Besselink, Integration and Immigration: The Vicissitudes of Dutch 'Inburgering, LIBERTY & SECURITY (2008).
98. For Dutch immigration policies, See Vera Marinelli, The Netherlands, in CURRENT IMMIGRATION DEBATES IN EUROPE, supra note 73
99. Ivo Magnée & Eke Gerritsma, The Netherlands, EU AND US APPROACHES TO THE MANAGEMENT OF IMMIGRATION (Jan Niessen et al. eds., 2003)
100. Tessel de Lange, Netherlands, in COMPARATIVE STUDY OF THE 27 EU MEMBER STATES, supra note 58, at 355-68
101. Maria Gulicovâ-Grethe, Marriage Migration in the Netherlands, Country Study, in MARRIAGE AS IMMIGRATION GATE, supra note 53.
102. These courses are costly - €350 per course and an extra €64 for the education pack - and the applicant has to bear the cost. See The Civic Integration Examination Abroad, Immigratie- en Naturalisatiedienst (2006); Residence in the Netherlands, Immigratie- en Naturalisatiedienst (2008); Leonard F.M. Besselink, Unequal Citizenship: Integration Measures and Equality, in THE NEXUS BETWEEN IMMIGRATION, INTEGRATION AND CITIZENSHIP IN THE EU 14 (Sergio Carrera ed., 2006).
103. The film starts with statements such as "it's too cold here," "my goodness, they really are white," "Dutch people really have very little patience," "people suffer from culture shock here," and the like. Details about the film, Coming to the Netherlands (Naar Nederland), are available at http://www.naarnederland.nl/.
104. See Christian Joppke, Comparative Citizenship: A Restrictive Turn in Europe?, 2(1) L. & ETHICS HUM. RTS. 1 (2008).
105. See JOAN W. SCOTT, THE POLITICS OF THE VEIL 103 (2007).
106. Baden-Wurttemberg has recently decided that illiterates are not eligible to become citizens. The Land's administrative court ruled that an illiterate Turkish man who has lived in Germany for twenty years is not eligible to become German. See Court Denies Illiterate Turkish Man German Citizenship, DEUTSCHE WELLE, Feb. 27, 2009, available at http://www.dw-world.de/dw/article/0.4060882, 00.html.
107. See LJN BD7189, Rechtbank 's-Gravenhage, zittingsplaats Amsterdam, AWB 07/18932, available at http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken= true&searchtype=kenmerken&vrye-tekst=BD7189.
108. The policy is still in force in spite of the court decision; an appeal is pending. Por legal criticism of the policy, See The Netherlands: Discrimination in the Name of Integration Migrants' Rights under the Integration Abroad Act, Human Rights Watch (2008); Note of the Meijers Committee on the Draft Integration Act, in THE NEXUS BETWEEN IMMIGRATION, INTEGRATION AND CITIZENSHIP, supra note 85, at 42-49.
109. See Dutch: Mass Immigration our Biggest Mistake Ever, NIS NEWS, Mar. 27, 2008, available at http://www.nisnews.nl/public/270308-1.htm.
110. See John Vinocur, From the Left, a Call to End the Current Dutch Notion of Tolerance, INT'L HERALD TRIBUNE, NOV. 29, 2008, available at http://www.nytimes.com/2008/12/29/world/europe/29iht-politicus.3.18978881.html.
111. Foreign-born means people who were born outside the United Kingdom, whether non-British or British citizens. See Randall Hansen, United Kingdom, Country Profile, Focus MIGRATION 1, 3 (2007)
112. Richard Kerbaj, Muslim Population 'Rising 10 Times Faster than Rest of Society,' THE TIMES, Jan. 30, 2009, available at http://www.timesonline.co.uk/ tol/news/uk/article5621482.ece.
113. See Christian Joppke, Limits of Integration Policy: Britain and Her Muslims, 35(3) J. ETHNIC & MIGRATION STUD. 453 (2009).
114. See David Goodhart, Too Diverse?, 95 PROSPECT, Jan. 22, 2004.
115. See Christian Joppke, Immigration and the Identity of Citizenship: The Paradox of Univercity, 12(6) CITIZENSHIP STUD. 533, 538 (2008).
116. PHILLIPS, supra note 28, at 4-18, 77-100. 118. See BRITISHNESS: TOWARDS A PROGRESSIVE CITIZENSHIP (Nick Johnson ed., 2007).
117. See Sarah Lyall, Britain Looks for Its Essence, And Finds Mostly Punch Lines, N.Y. TIMES, Jan. 26, 2008, at 1.
118. Trevor Phillips, Britishness and Integration, in BRITISHNESS, supra note 118, at 42-44 ("Both we and the Americans believe very strongly in freedom. However... th[e] way that Americans express the idea of freedom is very different from the way we think of it").
119. See LIFE IN THE UNITED KINGDOM TEST: CITIZENSHIP STUDY GUIDE (2007).
120. Details on the Life in the UK Test are available at http://www. lifeintheuktest.gov.uk/.
121. See Katrin Mahnkopf & Mária Gulicová-Grethe, Is Marriage Migration an Immigration Gate? The Situation in the United Kingdom, in MARRIAGE AS IMMIGRATION GATE, supra note 53
122. Bernard Ryan, United Kingdom, in COMPARATIVE STUDY OF THE 27 EU MEMBER STATES, supra note 58. at 453-64.
123. http://www.opsi.gov.uk/ACTS/acts2002/ukpga-20020041-en15.
124. See Silvia Adamo, Northern Exposure: The New Danish Model of Citizenship Test, 10(1) INT'L J. MULTICULTURAL SOC'YS. 10 (2008) ("Of these questions, thirty-five are taken from two hundred in a bank of questions which is open and available on the website of the Ministry of Integration. The remaining five questions are not known beforehand, but revolve around current events in, for example, Danish politics and elections.").
125. Questions sample and study materials are available at http://www.nyidanmark.dk/en-us/citizenship/danish-nationality/citizenship-test. htm.
126. See http://www.nyidanmark.dk/en-us/citizenship/danish-nationality/ conditions-to-be-satisfied.htm.
127. Information is available at http://www.nyidanmark.dk/en-us/citizenship/ danish-nationality/conditions-to-be-satisfied.htm.
128. Id. art. 9(1)(i). For criticism on the twenty-four-year age requirement, see Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his Visit to Denmark 8, 22 CommDH(2004)12, Council of Europe (2004).
129. Id. art. 9(7). An exemption exists when the Danish citizen has been living in Denmark for twenty-eight years. Attachments to Denmark is assessed by several factors, such as family ties with Danish citizens, completion of studies in Denmark, having a job in Denmark, mastering language proficiency, and having children in Denmark. See MARRIAGE AS IMMIGRATION GATE: THE SITUATION OF FEMALE MARRIAGE MIGRANTS FROM THIRD COUNTRIES TO THE EU MEMBER STATES 25-26 (2003).
130. Similar integration agreements exist in other EU states. See INTEGRATION AGREEMENTS AND VOLUNTARY MEASURES: COMPULSION OR VOLUNTARY NATURE - COMPARISON OF COMPULSORY INTEGRATION COURSES, PROGRAMMES AND AGREEMENTS AND VOLUNTARY INTEGRATION PROGRAMMES AND MEASURES IN AUSTRIA, FRANCE, GERMANY, THE NETHERLANDS AND SWITZERLAND (2005).
131. See Danish Centre-Right Wins Election, BBC NEWS, NOV. 14, 2007, available at http://news.bbc.co.Uk/2/hi/europe/7091941.stm.
132. See Katrina Feilberg, Gedske M. B. Messel & Brian Stout, Fighting for the Flag: Danish Identity and National Symbolism, HUMANITY IN ACTION 106, 108 (2006).
133. See Anna Mazur & Kristian B. Arentsen, Exclusively Danish: Attempting to Dissolve the Illusion of a Static Danish Identity for the Future of Immigration, HUMANITY IN ACTION 102 (2002).
134. See Lindsey Rubin, Love's Refugees: The Effects of Stringent Danish Immigration Policies on Danes and their Non-Danish Spouses, 20 CONN. J. INT'L L. 319, 322 (2005).
135. See Anders under, The European Court of Justice - The EU Legislator Who Awakened Ogier the Dane?, EURO-MED. DK, July 31, 2008, available at http://euro-med.dk/?p=1322.
136. See at http://beta.kimcm.dk/index.php/2008/08. Denmark is a Member State of the EU, yet has made a special reservation under title IV of the Treaty establishing the European Community. Denmark is not obligated to abide by legislation offered under this title.
137. Driven by fears of terror attacks and social unrest, these arguments have been made by right-wing parties in Europe. See SHADOWS OVER EUROPE: THE DEVELOPMENT AND IMPACT OF THE EXTREME RIGHT IN WESTERN EUROPE (Martin Schain, Aristide Zolberg & Patrick Hossay eds., 2002).
138. See Stephen Macedo, The Moral Dilemma of U.S. Immigration Policy: Open Borders Versus Social Justice, in DEBATING IMMIGRATION 63 (Carol M. Swain ed., 2007).
139. See John S. Mill, Representative Government, in UTILITARIANISM, ON LIBERTY, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT Ch. 16 (Geraint Williams ed., 1993) ("Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist.").
140. See also Christian Joppke, Do Obligatory Civic Integration Courses for Immigrants in Western Europe further Integration?, Focus MIGRATION 8 (2007).
141. See CHAIM GANS, THE LIMITS OF NATIONALISM 7 (2003).
142. See Make English Second Official Language, DUTCHNEWS. NL, Aug. 8, 2008
143. Europe's Wealth Consists Essentially in its Variety of Languages, GOETHE-INSTITUT, May 2006 (finding that fifty-one percent of EU citizens speak English).
144. For the Dutch case, See Evelyn Ersanilli & Ruud Koopmans, Rewarding Integration? Citizenship Regulations and Socio-Cultural Integration of Immigrants in the Netherlands, France and Germany, J. ETHNIC & MIGRATION STUD, (forthcoming, 2010). For the Danish case, See
145. Kristina Touzenis, Denmark, in COMPARATIVE STUDY OF THE 27 EU MEMBER STATES, supra note 58, at 193-204.
146. See Dieter Grimm, Integration by Constitution, 3(2) INT'L J. CON. L. 193, 196 (2005) CA regulation forcing constitutional integration upon its citizens would be truly vain... other factors, such as nationhood, religion, history, culture, or a common enemy, have more reliable integrative effects.").
147. See Martha Minow, Tolerance in the Age of Terror, 16 S. CAL. INTERDIS. L.J. 453, 492 (2007).
148. See ARISTOTLE, POLITICS, book III (Benjamin Jowett trans., 1943). Political decision-making is also a central virtue of citizenship in Rousseau's Social Contract. See JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT, book 111(15) (G.D.H. Cole trans 2008).
149. See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 31 64 (1983)
150. David Miller, Immigration: the Case for Limits, in CONTEMPORARY DEBATES IN APPLIED ETHICS 193 (Andrew Cohen & Christopher H. Wellman eds., 2005).
151. See Joseph Carens, Aliens and Citizens: The Case for Open Borders, 49 REV. OF POL. 229, 241 (1987).
152. See CHRISTIAN JOPPKE, VEIL: MIRROR OF IDENTITY 118 (2009).
153. See John Rawls, Justice as Fairness in the Liberal Polity, in THE CITIZENSHIP DEBATES, supra note 75, at 53; Macedo, supra note 166.
154. See Gerald L. Neuman, Justifying U.S. Naturalization Policies, 35 VA. J. INT'L L. 237, 261 (1994).
155. For American law, see United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). For British law, see
156. R (A1 Skeini) v. Secretary of State for Defence, EWCA Civ 1609 (2005). For Canadian law, see
157. R. v. Hape, SCC 26 (2007). For a comprehensive theoretical and legal discussion, see
158. GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS and FUNDAMENTAL LAW (1996).
159. See Liav Orgad, Love and War: Family Migration in time of National Emergencies, 23(1) GEO. IMMIG. L.J. 85, 116-19 (2008).
160. It should be noted that there is no constitutional review in the Netherlands and Denmark, that constitutional judicial review applies only before the promulgation of Parliamentary acts in France, and that courts cannot invalidate Parliamentary acts in England but only declare them incompatible with the Human Rights Act of 1998. The only country discussed in which the court has the power to declare an act as unconstitutional is Germany. See HANS V.D. BRANDHOF & MARTEN BURKENS, CONSTITUTION LAW OF 15 EU MEMBER STATES (Lucas Prakke & Constantijn Kortmann eds., 2005).
161. See Liav Orgad, 'Cultural Defence' of Nations: Cultural Citizenship in France, Germany and the Netherlands, 15(6) EURO. L.J. (2009).
162. See Liechtenstein v. Guatemala 1955 I.C.J. 4.
163. See, e.g., Abdulaziz v. U.K., (1985) 7.E.H.R.R. 471
164. Gul v. Switzerland, (1996) 22 E.H.R.R.
165. Ahmut v. The Netherlands, (1997) E.H.R.R.
166. See Rüdiger Wolfrum & Volker Roben, Gutachten zur Vereinbarkeit des Gesprächsleitfaden für die Einbürgerungsbehörden des Landes Baden-Württemberg mit Völkerrecht (2006), avialable at http://www.mpil.de/shared/data/pdf/gutacht-gespraechsleitfaden-einbuergerung. pdf.
167. See LEWIS CARROLL, ALICE IN WONDERLAND (Ralph Steadman ed., 2006).
168. See STEPHEN MACEDO, DIVERSITY AND DISTRUST: CIVIC EDUCATION IN MUL- TICULTURAL DEMOCRACY 21 (2000).
169. The question whether liberal states should be neutral regarding concepts of ways of life is controversial. For a different view, See RONALD DWORKIN, A MATTER OF PRINCIPLE (1985).
170. See John Rawls, The Idea of Public Reason Revisited, in THE LAWS OF PEOPLES 129-75 (1999).
171. See JOHN RAWLS, POLITICAL LIBERALISM 147-48, 164-68 (1995).
172. See JOHN RAWLS, A THEORY OF JUSTICE 115 (1971).
173. See WILL KYMLICKA, POLITICS IN THE VERNACULAR: NATIONALISM, MULTICUL-TURALISM AND CITIZENSHIP 51-54, 155-74 (2001).
174. See WILL KYMLICKA, MULTICULTURALISM CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 114 (1995).
175. See Avishai Margalit & Moshe Halbertal, Liberalism and the Right to Culture, 61 Soc. RES. 491 (1994).
176. See Avishai Margalit & Joseph Raz, National Self-Determination, 87(9) J. PHIL. 439, 443-47 (1990).
177. See George P. Fletcher, Constitutional Identity, 14 CARDOZO L. REV. 737 (1993).
178. See EDWARD J. EBERLE, DIGNITY AND LIBERTY: CONSTITUTIONAL VISIONS IN GERMANY AND THE UNITED STATES 41-45 (2001).
179. See DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 1-32 (1994).
180. See Frank I. Michelman, Morality, Identity and "Constitutional Patriotism," 76 DENVER L. REV. 1009, 1015 (1998) (constitutional essentialism "is not meant for application on an act-by-act or law-by-law basis. It is rather meant for application to the system of lawmaking.").
181. See Jürgen Habermas, The Postnational Constellation and the Future of Democracy, in THE POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS 58-112 (Max Pensky ed., 2001).
182. See JAN-WERNER MÜLLER, CONSTITUTIONAL PATRIOTISM 58-60 (2007).
183. See David Martin, Membership and Consent: Abstract or Organic, 11 YALE J. INT'L L. 278 (1985).
184. See Jeremy Waldron, Special Ties and Natural Duties, 22(1) PHIL. & PUB. AFF. 3, 5-11 (1993).
185. See Pauline Kleingeld, Kantian Patriotism, 29(4) PHIL. & PUB. AFF. 313 (2000).