The Valley Between Theory and Practice

This is a work of normative political theory, and Shachar spends most of the book critiquing birthright citizenship and explicating the desirability of the concept of jus nexi. In a brief passage at the end, however, she provides “two concrete examples of the principle at work” (p. 182). She argues that the examples show how the genuine-connection principle can solve problems of both overinclusion and underinclusion. These are two cases where jus nexi yields favorable outcomes, but as ideal as these scenarios may appear, theorists and advocates alike must always be mindful that in practice, acting on principles can also have unintended consequences that do not yield happy endings.

A critical analytical gap between jus nexi in theory and practice produces two significant problems, both emanating from the strong assumption Shachar makes with respect to the existence of and motives for universal international commitment to norms of fairness and equality (p. 70; emphasis added):

Advocating any policy on the assumption that a commitment to universal norms will supersede demands of national sovereignty must at the very least recognize the high bar of cooperation required. While other universal normative claims such as human rights have achieved wide acceptance internationally, their embrace has been neither complete nor without controversy.Footnote ¹ The difficulty of achieving cooperation and coordination in the international system is widely understood.Footnote ² Never has it been easy or simple to achieve a “baseline commitment” across nation-states and, in particular, among “beneficiaries of bounded membership.” Instead, those in power and with relative advantage rarely willingly give it up.Footnote ³

What would it take to accept the baseline commitment? Shachar addresses this critical question in passing, indicating only that polities governed by birthright citizenship are “duty-bound” as a function of sustaining their “public inheritance.” This argument, however, cannot withstand the likelihood that said “beneficiaries” will calculate that they are better-off under the status quo than working toward “creative measures for mitigating the opportunity inequities.” Shachar may see the amelioration of global inequalities by modifying birthright citizenship and increasing political inclusion as a positive-sum game. But for international actors whose vantage point for strategic action is zero-sum, sustaining advantage does not necessarily induce duty to reduce inequality. To the contrary, and absent an international enforcer of that responsibility, national sovereignty demands will take precedence.

There is a second problem emanating from the gap between theory and practice. To the extent that inequities exist between nation-states, as well as within particular polities, codifying inclusion through jus soli can help to ameliorate inequality within that country. Without birthright citizenship, children of undocumented immigrants born in the United States in the post-1965 Immigration Act period would likely have much less political power and social mobility. Under birthright citizenship, they can by definition exercise the franchise, apply for student loans and scholarships, work, travel freely to and from the United States, and sponsor immigrant family members. While the opportunities may not be equal across groups, with systematic disadvantage for children of immigrants and racial and ethnic minorities, birthright citizenship provides a toehold for political and social mobility.

In contrast, eliminating birthright citizenship fully in favor of jus nexi, where individuals would have to demonstrate their “genuine connection” to the United States to gain membership, would initiative a layer of state control and subjectivity that could further exacerbate group-based inequalities. One only need consider the failure of the U.S. Senate to pass the DREAM Act in the last Congress to see how, in practice, jus nexi principles meet with staunch opposition. Eliminating the stigma of noncitizen by birth would make a difference in framing the assessment of genuine-connection membership, but to the extent that spots in a bounded-membership polity are limited, out-group antipathies and in-group favoritism powerfully influence the evaluation of forged social connections and, therefore, systematically bias the process of inclusion by jus nexi.

The Social Psychology and History of Exclusion

The problems of exclusion and inequality between members of a polity are, according to more than a half century of systematic social psychological investigation, endemic to the human condition. People across the world and in societies and political systems of many varieties are susceptible to social organization by category. Equally as important, individuals are likely to assign normative judgments—good and bad stereotypes—to accompany those groupings.Footnote ⁴ The social psychological concept of minimal group identity pioneered by social identity theory (SIT) has demonstrated the remarkable ability of people to quickly adopt in-group favoritism and out-group antipathy.Footnote ⁵ Stereotypes are powerful because they are used in public narratives to justify and uphold group-based inequalities.Footnote ⁶ It is not whether prejudice exists but, instead, what individuals do with group categorizations and how societies can organize to manage antipathies and encourage tolerance.

Laws governing citizenship are nothing short of formulas for who is allowed to belong. Indeed, Shachar acknowledges that inclusion is “profoundly political and public of realms: defining who belongs in the demos, or the collective body of the citizenry” (p. 164). In the United States, times of heavy immigration have usually been characterized by the creation of exclusionary practices and strong nativist sentiment in the public. The variation in immigration attitudes has been described as a function of partisanship, ideology, and personality.Footnote ⁷ Individual-level characteristics certainly are important, but structural features, including one's position in the racial hierarchy of the United States, play a critical companion role in the formation of opinion because of the connection between immigration and naturalization policy and conceptions of citizenship and belonging. Designations of some as deserving and eligible for entry, while labeling others as unworthy and unwanted, have long historical precedent and are closely intertwined with how the racial hierarchy has been defined in the United States.Footnote ⁸

Since its inception, the American state has classified people by race for political purposes. Indeed, the United States Constitution and the first federal law on immigration policy defined citizenship and political personhood in exclusionary categorical terms. The Founders' decision to preserve the practice of slavery set the stage for subsequent federal policy that would grant citizenship based on racial group status. At the time of the Founding, the most significant racial division was between white and black. Counted as three-fifths of the white population for legislative apportionment in Article I, Section 2, of the U.S. Constitution, African slaves were described as “other persons.” Political personhood and citizenship rights were unthinkable for a human population of slaves owned by whites. Deemed inferior, blacks existed for centuries at the bottom of the racial hierarchy in the United States, not free, not citizens, and not meaningfully enfranchised for a hundred years after the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. These racialized formations solidified the role of group categorization and the racial hierarchy as a powerful stratifier and constant of social structure. The experiences of African Americans in particular demonstrate how citizenship and full membership in the United States has historically been conditioned on a racial prerequisite.

From the Chinese Exclusion Act of 1882 to the Immigration Act of 1924—which was enacted to limit migration from Southern and Eastern Europe—restrictions on immigration have consistently been based in arguments about the distinctiveness and unsuitability of racialized populations for American citizenship. The now-infamous U.S. Immigration Commission, commonly known as the Dillingham Commission, was influenced both by the “science” of the international eugenics movement and by nativist public sentiment. In 1911, it produced a 41-volume report that, among other things, enumerated a hierarchy of the races. By the mid-twentieth century, federal actions such as “Operation Wetback,” which undertook the forcible removal of Mexican nationals and Mexican-Americans during the mid-1950s, took a cue from this official report of Congress, and in turn helped to set the stage for new contemporary labels and negative stereotypes for Latinos in the United States.

In contemporary politics, the racial hierarchy structures how new immigrants grouped by race and ethnicity are viewed by Americans. Members of groups who are ranked further down in the hierarchy have incomplete membership, their political experience mediated by de facto and de jure discrimination as a function of their racial categorization.Footnote ⁹ Given the close interconnection of citizenship and race in the United States, the race of an immigrant cues conceptions of desirable members, systematically advantaging those newcomers who are perceived to be placed higher on the racial hierarchy and disadvantaging those in a lower position. In the contemporary period, Latinos have stronger and more numerous negative stereotypes and so are perceived as less worthy of American citizenship. Alternatively, groups perceived to rank above Latinos on the racial hierarchy, such as Asian Americans, are bound to stereotypes that, while still negative, are nevertheless relatively positive compared to tropes for Latinos.Footnote ¹⁰

Who is considered a part of the in-group is not simply a matter of being born in the United States or becoming a naturalized citizen. Instead, race acts as a primary political and social cleavage in normative conceptions of American citizenship. Racial categories have been used not only to create distinctions among groups of individuals to support the exclusion of some newcomers but also to justify unequal treatment and citizenship rights for those deemed inferior.

The assignment to racial and ethnic groups with ascriptively defined characteristics is associated with social and material privilege because the categorization excludes and systematically disadvantages those classified as something other than white. Immigration policies at all levels of the U.S. government have worked to maintain both racial hierarchy and unequal treatment by race and ethnicity. At the same time, shaping the racial contours of the nation through immigration makes policies important determinants in the social construction of group identity.Footnote ¹¹ Policies at the federal level have operated in conjunction with state and local practices to shape the context within which immigrants experience and participate in politics.

The implications for Americans classified as nonwhite are significant. The long-standing practice of racializing immigrants has led to the confluence of nonwhite racial categorization and out-group status within conceptions of American citizenship. Immigrants are by definition members of the out-group, their outsider status based in racial categorization in a position lower on the racial hierarchy than whites. While immigrants continue to be framed as racial others and outsiders, there is variation in desirability of newcomers that is based in proximity to whites.Footnote ¹²

The history of exclusionary immigration policy based in racial and ethnic groupings thus provides a strong basis for rejecting the strict imposition of Shachar's jus nexi. Demonstrating a “genuine connection” would be an insurmountable standard to reach for groups discriminated against and stigmatized as out-groups. Even legal citizenship as a function of birth in the United States has not meant fully equal citizenship for many groups of Americans. While citizens by birth, women were excluded from voting until the Constitution was amended. Being a citizen of the United States was not enough to prevent the federal government from forcibly removing and imprisoning Japanese Americans in internment camps during World War II. Native-born Americans of Mexican descent were summarily rounded up and “repatriated” to Mexico during Operation Wetback.

The Civil Rights movement and progressive politics during this period helped spawn the 1965 Immigration Act that explicitly rejected the racial and ethnic preference system of previous federal legislation based in national origin quotas. Instead, the law, which still governs U.S. immigration policy today, privileges family reunification and high-skill immigrants. For the 40 years prior, when the 1924 National Origins Act reduced immigration to the United States to a trickle, exclusion was fought around southern and Eastern European groups. But as a result of the 1965 act, the demographic landscape of the nation has changed dramatically, both raising the stakes for inclusion and challenging the capacity of pluralism in U.S. democracy to represent all Americans. Within the context of both long-standing antipathy toward racialized out-groups and new migration streams today, a “softer” variant of jus nexi, where birthright citizenship is preserved and the genuine-connection principle is applied to craft immigration and naturalization policies, would yield more desirable outcomes.

While I have criticized Shachar's proposal for a birthright citizenship levy as politically unrealistic, as well as pushed back against the recommendation that jus soli be modified, one must cheer on Shachar for taking a stand to privilege equality in the global context. Just as they followed leaders of the U.S. Civil Rights movement and the political elites who supported universal principles of fairness and equality, Americans have a capacity to heed the call for a normative commitment to the alleviation of inequality. Someone needs to make a case for ameliorating the vast differences in opportunity and wealth across the globe, and Shachar is an important voice from whom we all can learn.