Contents Civis Duplex Sum : Two Layers of Citizenship in a Dialogue of Equality Part I The Development of United States Citizenship

Transcription

1 Contents 1 Civis Duplex Sum: Two Layers of Citizenship in a Dialogue of Equality From Subject to Citizen Duplex Citizenship Justification of the Cases Selected Road Map Note for the Reader Appendix 1: Terminology Federal, Horizontal Versus Vertical, State Versus State Appendix 2: Types of Equality Uniform Equality Non-discrimination Cross-Border Equality Portability References Part I The Development of United States Citizenship 2 Subjecthood in England and the British Empire Introduction Calvin s Case The Glorious Revolution Subjecthood in the North American Dominions Immigration and Naturalization in England The Constitutional Position of the Colonies Naturalization in the Colonies Conclusion: The Declaration of Independence as the Point of Departure of the American Constitution from the British Constitution References vii

2 viii Contents 3 From Revolution to Constitution to Civil War: US Citizenship in Its Youth Introduction Independence: The Watershed Moment Subjecthood and Citizenship: Revolutionary Doctrine The Postwar Years: Tying Up Loose Ends The Further Articulation of Citizenship: Immigration and Naturalization Citizenship Under the Articles of Confederation and the Constitution The Naturalization Act of The Naturalization Acts of 1795, 1798, and Conclusion: Immigration and Naturalization References Horizontal Conflict in United States Citizenship Before the Civil War Introduction Slavery and the Constitution: Three Provisions The Apportionment Clause The Slave-Trade Clause The Fugitive Slave Clause Equality and the Constitution: Four Forms Excursion: Federal Citizenship and Allegiance Equality at the Point of Collision with Slavery Horizontal Norms Regarding Slavery: Comity and the Full Faith and Credit Clause Vertical Norms Regarding Slavery: The Northwest Ordinance and the Fugitive Slave Clause The Schism Widens Between the States: Prigg v. Pennsylvania Slavery and Territorial Expansion: Dred Scott v. Sandford Conclusion: The Failure of Horizontal United States Citizenship References A New, Vertical Beginning for United States Citizenship Introduction The Fourteenth and Fifteenth Amendments The Formal Introduction of a Vertical United States Citizenship and Human Rights Standard The Long Road to Substantive Equality Based on US Citizenship The Tilden-Hayes Compromise: The Political Abrogation of the Reconstruction Amendments

3 Contents ix The Slaughterhouse Cases and Plessy v. Ferguson: The Judicial Abrogation of the Reconstruction Amendments Wong Kim Ark: The Cinching of Birthright US Citizenship The Only Way is Up: Toward the Full Development of Civil Rights Edwards v. California and Mitchell v. United States Brown v. Board of Education: Effectively Instituting a Uniform Equality Legislating Uniform Electoral Equality and Cross-Border Equality A revival of the Privileges or Immunities Clause? Conclusion: United States Citizenship as a Vertical Norm References Part II The Development of European Union Citizenship 6 European Integration as a Project of the Member States Introduction The Postwar European Idea, Leading up to the European Coal and Steel Community The Hague Line The Westminster Line The First Community: The ECSC The European Economic Community: The Early Years Leading up to the Emergence of the Citizen From the Worker to the Citizen: Political Developments European Citizenship via Freedom of Movement: Racial Criteria? Freedom of Movement: Forms of Equality References The De Facto Community Citizen Emerges The European Court of Justice Confirms An Incipient Form of Citizenship The Big Bang of the Community Legal Order: Van Gend & Loos and Costa v. ENEL The First Community Citizen: Unger Excursion: British Citizenship, Allegiance, and the Community British Citizenship, Commonwealth Citizenship, and Decolonization British Citizenship avant la lettre, Toward Membership in the Community

4 x Contents 7.3 Levin: Further Defining the Worker Reverse Discrimination : Morson and Jhanjan Bringing Cross-Border Equality Back Home References The Maastricht Treaty Introduces European Union Citizenship De Jure Moving Toward Formal Citizenship Gravier and the Constitutional Struggle to Establish a Vertical Citizenship Through Equality The Treaty of Maastricht, the Foundation of the European Union and the Formal Introduction of Union Citizenship The Spanish Contribution to Union Citizenship Rights of Movement and Residence in Union Citizenship: The First Decade Konstantinidis Martínez Sala Bickel and Franz Grzelczyk Baumbast and R: A Layer Cake of Cross-Border Equality Garcia Avello and the Portability of Rights References The Union Legislature Elaborates on Union Citizenship; the Court Responds Directive 2004/38: The Consolidation in the Secondary Legislation of the Rights of Residence Based on Union Citizenship The Substance of the Directive The Legislative Process Behind the Directive: The Addition of Non-traditional Partnerships Interlude from the Court: Zhu and Chen Second-Class Union Citizenship? Formally Second-Class Union Citizens: Citizens of Accession States Substantively Second-Class Union Citizens: Sedentary Union Citizens Carpenter Eind Metock et al Reverberations in the Member States on the Use of Mobility by Second-Class Union Citizens Chakroun

5 Contents xi 9.4 Rottmann and Ruiz Zambrano: Union Citizenship Gains an Additional Vertical Dimension and Starts to Breach the Purely Internal Situation Background: Micheletti and Kaur Rottmann Ruiz Zambrano Shirley McCarthy Dereci, Iida, O and S and L, Alokpa References O & B and S & G: The Court Clarifies the Relationship of Freedom of Movement to Union Citizenship Attempting to Escape Reverse Discrimination O&B: The Court Rules on Returning Union Citizens Genuine Residence and Intent The Passporting of Family Life S&G: The Court Rules on Residentially Sedentary Union Citizens Article 45 TFEU Conclusion: The Shift from the Market Citizen to the Residence Citizen References Conclusions Review Vertical and Horizontal Equalities in the US Vertical and Horizontal Equalities in the European Community European Union Citizenship and the Frontiers of Its Development Conclusions by Theme Inequalities People(s) and Representation Citizenship s Emergence from a Struggle Against Resistance to Equality Mobility and Family The Union s Vertical Citizenship: contra Magnette and Schönberger Epilogue: Two Children Named Ruiz References Cases Cited Index

6