Citizenship and Property

Suggestive as it is, I am not always certain that I understand Shachar's descriptive and normative account of citizenship's relationship to property. As she characterizes it, the core of her argument is that citizenship is like inherited property: The book seeks to develop “the analogy between birthright citizenship and inherited property in the context of a world of severe inequalities of wealth and opportunity” (p. 15). Yet, as she develops her case, it is sometimes unclear whether she is arguing that citizenship is similar to property, or also that citizenship is itself a form of property, and/or further, that citizenship is an institution that works in the service of dominant property allocations. I think the answer is that she regards it as all of the above; each claim figures as part of the discussion.

That being the case, I wonder if there might not be tensions between and among these framings. How is it different for citizenship to be akin to property versus to be property versus to reinforce existing property holdings? It might make a difference, especially in relation to Shachar's vigorous critique in Chapter 2 of the commodification of citizenship. This is her normative argument against regarding citizenship as an appropriate object of sale and purchase, which, in part, reads like a brief against treating citizenship as private property. In this setting, property is an analogy that citizenship must avoid. At other junctures, however, she approvingly invokes property theory, which emphasizes “stewardship and mutual responsibility,” and property as “a web of social and political relations wherein people depend upon others” (pp. 30–31). So conceived, the author appears to commend the analogy with property law and urge its extension.

On the whole, however, Shachar appears to disapprove of the property–citizenship analogy, and so it is worth asking what, exactly, she regards as wrong with it. Is the problem that citizenship is a good which, by its nature, ought to be distributed according to principles different from those governing distributions of property? On this approach, Shachar can be read as echoing Michael Walzer's notion that distinct distributive mechanisms are appropriate for distinct kinds of goods, with citizenship recognized as a public good whose transfer should be organized according to public-regarding principles different from those governing private property transfers. The argument here would be that “certain things, or relationships [must be] categorically excluded from the market,” because they are “identity-defining for their individual holders or the larger collectivity” (p. 57). Or, alternatively, is the problem that both property ownership and citizenship are scarce resources inappropriately concentrated in the hands of a fortunate few? On this account, both such concentrations entail injustice that requires redress. Moreover, assignment of citizenship by birth institutionalizes and perpetuates global differentials in the arenas of wealth and power, and is indefensible on that basis.

Again, Shachar appears to be developing both kinds of critiques. They are not necessarily inconsistent in normative terms, but I would note that the first (the need for distinct distributive mechanisms for distinct kinds of goods) depends on a descriptive account of citizenship's unlikeness to property, while the second (citizenship produces inequality) underlines their similarity. The point is that the role that property plays in the book is less straightforward than Shachar herself maintains when she describes her project as the development of a citizenship/inherited property analogy.

Saving Citizenship?

One of the most innovative and distinctive features of Shachar's book is her remedial proposal that a global tax be imposed “on the birthright recipients of hereditary citizenship in affluent polities” (p. 15). Certainly there is much to discuss about what she terms this “birthright privilege levy.” I am interested here, though in raising conceptual questions about the adequacy of fit between her diagnostics and this proposed remedy. Since the problem she identifies lies with the ways that citizenship is transmitted, one might ask why she does not press to reorganize citizenship's transmission to remove predominantly hereditary assignments, rather than provide what can seem like an end-run around the issue by leaving the citizenship system as is and compensatorily providing reparations for the outcomes.

Shachar appears to have two answers to this question, which are related but may be in tension. First, the mode of citizenship transmission matters precisely and only because assignment of citizenship is so fundamentally linked to access to material and capacity resources—to wealth and opportunities and voice. Rather than tinker with the delivery mechanism, she seems to argue, it makes sense to go straight to the source and address inequalities in opportunities and wealth worldwide by “taxing the birthright recipients of hereditary citizenship in affluent polities,” thereby supporting “the creation of a ‘world-wide saftey net’” (pp. 15–16). This mechanism serves to directly redress “the uncurtailed concentration of wealth and power in certain bodies politick.”

Yet one can also see Shachar's proposed remedy not as a more direct response to the problem she diagnoses but as a more attenuated one. After all, she is not proposing a wholesale reorganization of wealth and opportunity distributions on a global scale, but a second-order tax system that is contingent on, and derivative of, the global system for allocating membership. She assumes that “affluent political communities [will] continue to bestow membership according to birthright” (p. 15), and seeks a mechanism for mitigating the effects of these bestowals. But why not go after the bestowal itself? Here is where her second, and more fundamental, answer to the question about fit becomes relevant. Shachar wants to preserve citizenship as an institution. She emphasizes “the importance of citizenship's enabling capacities,” and “the collective good of membership in a jointly governed polity” (p. 70). From this perspective, the birthright levy solution allows her to try to both have and eat her cake—to maintain citizenship as an institution while at the same time ameliorating the global structural inequalities that are associated with it.

It is this desire to save citizenship and its transmission mechanisms more or less intact while upending conventional, nation-state–confined understandings of moral obligation that I find unconvincing. I have a sense that Shachar is doing calisthenics in an effort to make her claim palatable to many liberal nationalists while still propounding a cosmopolitan critique. I understand the impulse, but in the end, the book is peculiarly divided in its simultaneously utopian and accommodationist-pragmatic prescriptions. I personally would have wanted her to stick with the power of the critique and not try to appease the pragmatists. That might mean that Shachar could not try to prescriptively operationalize the argument via specific institutional proposals for a birthright citizenship levy (as in Chapter 3), but the specific proposals she offers, while intriguing, are pretty off the map politically in any event. I am left with the sense that she does not follow through on the full implications of her core idea. To fully “denaturalize” citizenship birthright allocations, as she intends, she must also do more to denaturalize the allocated good itself. The book, in fact, romanticizes citizenship in familiar ways (see, e.g., the discussion of citizenship as properly inalienable because it represents freedom, security, and dignity). And the book accepts—at times even embraces—citizenship's boundedness and exclusionary character (e.g., p. 164). Ultimately, The Birthright Lottery serves not just as a devastating critique of, but also as a surprising paean to, citizenship as we know it.

Jus Nexi, Jus Soli, and the American Debate

Shachar is right to insist that since jus soli and jus sanguinis rules both transmit citizenship at birth based on birth circumstances, they share a crucial feature—“reliance on birthright transfer of entitlement” (p. 7; original emphasis). Her treatment of the two transmission regimes as ethically coextensive represents an important corrective to the account found in the dominant debates, which have tended to starkly counterpose territorial birth citizenship to descent-based citizenship. Peter Schuck and Rogers Smith's critique of jus soli, in Citizenship Without Consent: Illegal Aliens in the American Polity, was one sustained version of this bifurcating approach.Footnote ¹ This is the core tack as well of the resurgent movement to deny territorial birthright citizenship to children born in the United States of unauthorized immigrant parents; advocates for denial have no difficulties with descent-based birth citizenship.Footnote ² Meanwhile, other commentators have made the inverse argument, critiquing bloodline citizenship in relation to the allegedly more liberal territorial birth assignments.Footnote ³

Thus, Shachar's insistence that both forms of citizenship assignment must be recognized as raising parallel normative concerns is bracing and essential. Still, I am not content to concede that the distinction between these two forms of birthright citizenship assignment—descent based and territorial—is inconsequential, nor that Shachar's jus nexi model is a adequate corrective. Like the author, I have long been attracted to an antiformalist, relationship-based approach to membership, and I think the approach is nicely elaborated in her jus nexi concept. But I have both analytical and political concerns with a wholesale argument against ascriptions of citizenship at birth.

First, the jus nexi principle depends, in significant and crucial respects, upon an ethical privileging of being in a state's territory ex ante. Although Shachar characterizes her rejection of jus soli as a rejection of “territorial lineage rules” (p. 165), and contends that “a blind reliance” on territorial location for citizenship assignment is normatively arbitrary, the alternative she posits, of membership based on “real and effective links,” is usually going to be contingent on people's shared residence, or shared presence, in a common territorial space. I hasten to say that this is not strictly or necessarily true. Shachar makes clear that the jus nexis approach makes room for recognizing cross-territorial ties, and that sometimes “affected interests” transcend territory. But as a practical matter, the sorts of social attachments she would recognize as sufficient to ground membership via jus nexi are most often those that are developed via coresidence in a physical place at some scale. That place might not be a national place—it might be a local place or a transnational border region place—but it is placeness in some sense that provides the medium in which the ties that count develop.

In this regard, Shachar's critique of jus soli is not so much about the arbitrariness of territorial location as a basis for formally recognized ties as it is about the arbitrariness of choosing natality as the moment for making the citizenship decision. Location does matter centrally for her; real and effective links with the community are more often than not (though not exclusively) established via coterritorial residence, constructed and elaborated over (postnatal) time.

And yet, here a critical question presents itself. How do people acquire the opportunity to reside in a place together to create those relationships? These opportunities are shaped not merely by individually random circumstances of birth and family but also by political rules—rules governing cross-territorial movement. Such rules often prevent individuals from accessing a given territory and control which territories people can coreside in—thereby permitting or precluding the forging of the very bonds that undergird a jus nexi approach. Shachar has maintained her focus in this book on citizenship attribution rules and has sidelined questions about the rules of migration—indeed, she specifically accepts continued restrictions on movement by coercive force of law. Yet a normative argument on behalf of jus nexi must take into account that millions are prevented from developing co-nexus (if the word can be used this way) with certain others because of the operation of physically and administratively fortified borders.

These qualifications aside, I find the jus nexi idea highly attractive in principle. And yet, I must conclude my comments by reference to the political reality that I inhabit. I write in the United States of America at a moment when jus soli is under fierce attack. This is not, as noted earlier, an attack on ascriptive attributions of citizenship across the board; descent-based citizenship is not in the crosshairs. The target is territorial birthright citizenship; the current conflagration is directed against attribution of citizenship to the mostly Latino children whose parents are undocumented or unauthorized immigrants in the territory.

The fact that this is so poses a dilemma that those who engage in critical theory—and those who straddle the divide between theory and public advocacy—often painfully face. Birthright citizenship is morally arbitrary in some respects, yet the argument against it takes on a different valence given the historical experience of the United States. I find myself compelled by the often truly transformative anticaste function that the Fourteenth Amendment's Citizenship Clause has served. Attribution of citizenship based on birth in the territory has functioned for a century and a half to incorporate social outsiders—from former slaves and free blacks to children born of Asian nationals during various Asian exclusion erasFootnote ⁴ and, more recently, to children born in this country of many Latin American noncitizen immigrants.

In this setting, I am an unreconstructed birthright citizenship champion. This is not to elide the distortions and manipulations to which constitutional territorial birthright citizenship rules have been put. For example, children born in Puerto Rico are not accorded birthright citizenship as a constitutional (but only a statutory) matter because they are not deemed to have been born “in the United States,” per the language of the Amendment. Nor is it to reify citizenship itself, since citizenship status alone can sometimes count for less than we imagine. It is, rather, to evoke a larger set of questions about how we can manage to tack between our discussions of a political institution in principle and our recognition of its historical meanings and situatedness in any given case. It is also to highlight the agonizing difficulties we face in shifting between global consciousness and polity consciousness when we develop political and legal theory. Jus soli is just one more form of entrenched wealth and power transmission, as Shachar powerfully shows, but it is also meaningfully liberatory in some settings. The question for theorists, I think, is how to survive and exploit the afflictions of this ambivalence.