The worth of citizenship in an unequal world

Theoretical Inquiries in Law

Volumn 8, Issue 2, 2007, Pages

  Shachar, Ayelet ^a,b  

^a STANFORD LAW SCHOOL   (United States)

^b UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547240747     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1154     Document Type: Review

References (70)

1. See GLOBAL COMMISSION ON INTL MIGRATION, Annex II: Migration at a Glance, in MIGRATION IN AN INTERCONNECTED WORLD: NEW DIRECTIONS FOR ACTION (2005), available at http://www.gcim.org/ attachements/GCIM%20Report% 20Annex%20n.pdf.
2. SEYLA BENHABIB, THE RIGHTS OF OTHERS: ALIENS, RESIDENTS AND CITIZENS 1 (2004).
3. SEE, E.G., LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP (2006);
4. PHILLIP COLE, PHILOSOPHIES OF EXCLUSION: LIBERAL POLITICAL THEORY AND IMMIGRATION (2001);
5. MATTHEW J. GIBNEY, THE ETHICS OF POLITICS AND ASYLUM: LIBERAL DEMOCRACY AND THE RESPONSE TO REFUGEES (2004).
6. Some minimal limitations on this discretion are already in place; I assume that they will remain in force. For a concise overview, see Diane F. Orentlicher, Citizenship and National Identity, in INTERNATIONAL LAW AND ETHNIC CONFLICT 296, 296-301 (David Wippman ed., 1998).5 This is not a conclusive list; it merely highlights several possible grounds for allocating membership titles that do not fall into the trap of ascriptive reliance on birthright principles.
7. The account developed here rests on the assumption that the fact that we owe special duties to fellow-citizens does not imply that we owe nothing to those outside our circle of members. For a related line of argument, see Bhikhu Parekh, Cosmopolitanism and Global Citizenship, 29 REV. iNT'L. STUD. 3 (2003).
8. Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. REV. 54, 59 (1997).
9. An exception to this blindness is found in the formative writings of Joseph Garens. E.g., Joseph Garens, Aliens and Citizens: The Case for Open Borders, 49 REV. POL. 251 (1987). Garens, however, focuses his critique on the injustice of restrictive immigration laws rather than targeting birthright citizenship per se.
10. See, e.g., RE-IMAGINING POLITICAL COMMUNITY: STUDIES IN COSMOPOLITAN DEMOCRACY (Daniele Archibugi et al. eds., 1998).
11. See Michael Blake, Distributive Justice, State Coercion, and Autonomy, 30 PHIL. & PUB. AFF. 257, 257 (2002).
12. The civic-ethnic dichotomy is used by many well-known authors on nationalism. See, e.g., ANTHONY SMITH, NATIONAL IDENTITY (1991);
13. see also LIAH GREENFELD, NATIONALISM: FIVE ROADS TO MODERNITY (1992). For a more journalistic account,
14. see MICHAEL IGANTIEFF, BLOOD AND BELONGING: JOURNEYS INTO THE NEW NATIONALISM (1993).
15. They must also acquire basic protections against abuse of power by the state, including the security that their membership will not be unilaterally revoked by the government, no matter how critical they are of their government's actions.
16. The diachronic dimension of citizenship law is elegantly captured by Donald Galloway, The Dilemmas of Canadian Citizenship Law, 13 GEO. IMMIGR. L.J. 201, 201-31(1999).
17. U.S. CONST, amend. XIV, § 1.
18. See Citizenship Act, R.S.C., ch. C-29, § 3(1)(a) (1985) (Can.). Canada here followed the English common-law tradition of jus soli, codifying into legislation (the original 1946 Citizenship Act, and the current 1997 Citizenship Act) the common law principles set out in Calvin's Case, (1608) 77 Eng. Rep. 377 (K.B.) (Eng.).
19. For detailed discussion, see Ayelet Shachar, Children of a Lesser State: Sustaining Global Inequality through Citizenship Laws, in NOMOS: CHILD, FAMILY, AND STATE 345 (Iris Marion Young & Stephen Macedo eds., 2003).
20. This is an absolute rule in Canada or the United States. The United Kingdom, Australia, and most recently, Ireland, have modified their versions of the birthright principle to apply automatically only to children of citizens and permanent residents. Children of undocumented migrants may gain full membership based on a combination of birth and residence criteria established through statutory provisions. See Bernard Ryan, The Celtic Cubs: The Controversy over Birthright Citizenship in Ireland, 6 EUR. J. MIGRATION & L. 173 (2004).
21. Some may object to such expressions of loyalty for reasons of religion or conscience, in which case specific clauses need to be established (as in the case of military exemptions). Any exemptions represent the exception, however, rather than the rule.18 In the rare instances in which citizens specifically declare an intention to give up citizenship, such formal renunciation usually requires approval by the political community before it takes effect. The approval process is handled by the relevant government agencies within the country or by its representatives abroad.
22. This emphasis on the right of exit is highly formalistic. It ignores concerns about societal factors that may make "exit" almost impossible for some, such as family ties, economic needs, linguistic barriers, or cultural know-how, to name but a few examples. For further discussion, see AYELET SHACHAR, MULTICULTURAL JURISDICTIONS: CULTURAL DIFFERENCES AND WOMEN'S RIGHTS 36-44 (2001).
23. SEE THE WORLD BANK, THE WORLD DEVELOPMENT REPORT 2000/2001 : ATTACKING POVERTY 1 (2001).
24. Unless they are subject to persecution in their home country and thus fit the Geneva Convention definition of refugee status. This demands that a host country provide them with a temporary shelter, and provides that they may not be returned home if such a step would place them in real danger -the right of non-refoulement.22 As previously mentioned, the only place where consent theory can apply coherently is in explaining the rules that govern Immigration policy in jus soli axidjus sanguinis countries: where the individual must come forward and express her willingness to accept the host country's political norms, often under oath. The ceremony of naturalization culminates in a mutual consent between the individual and the political community: the state must approve the individual's candidacy and the individual must pledge allegiance to her new home country, its constitution, and governing political principles. No similar act of explicit consent and "re-birth" is ever demanded of individuals who happen to be born into the political community.
25. See supra notes 14-15 and accompanying text.
26. In the United Kingdom, for example, the child must live in the country until the age of ten in order to gain a lifetime entitlement to register as a British citizen. A similar ten-year residence period applies in Australia.
27. For a detailed exploration of this theme, see Benedict Kingsbury, Sovereignty and Inequality, 9 EUR. J. INT'LL. 599, 600 (1998).
28. See BENHABIB, supra note 2, at 141.
29. For an overview of these statistics concerning the global fragmentation of opportunity with reference to democracy and participation, economic justice, health and education, as well as peace and security, see THE WORLD BANK, WORLD DEVELOPMENT REPORT: EQUITY AND DEVELOPMENT 2006 (2006);
30. THE UNITED NATIONS DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORT 2005 (2005);
31. UNICEF, THE STATE OF THE WORLD'S CHILDREN 2006: EXCLUDED AND INVISIBLE (2006);
32. THOMAS W. POGGE, WORLD POVERTY AND HUMAN RIGHTS: COSMOPOLITAN RESPONSIBILITIES AND REFORMS (2002);
33. RAPHAEL KAPLINSKI, GLOBALIZATION, POVERTY, AND INEQUALITY: BETWEEN A ROCK AND A HARD PLACE (2005);
34. JEFFREY D. SACHS, THE END OF POVERTY: ECONOMIC POSSIBILITIES FOR OUR TIME (2005).
35. See Rainer Bauböck, Citizenship and National Identities in the European Union 1 (Harvard Jean Monnet Working Paper Series, Paper No. 4/97, 1997). As Bauböck points out, this Westphalian image of the world cannot account for the political significance of transnational connections and affiliations that many individuals now bear toward their (old and new) home countries, nor can it satisfactorily address the reality of dual nationality.
36. ROGERS BRUBAKER, CITIZENSHIP AND NATIONHOOD IN FRANCE AND GERMANY 31 (1992).
37. Defining the precise perimeters of the "preconditions for a decent life" is a matter in dispute among many an economist and philosopher. Without attempting to resolve this long-standing debate, 1 here follow Martha Nussbaum's definition in MARTHA NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH (2000).
38. Obviously, inequalities within political communities are of significance here too, and are connected (at least in part) to broader questions concerning the relationships between economic globalization and the limits of poverty alleviation within the domestic realm. For a thoughtful reflection on these complex questions, see PRANAB BARDHAN ET AL., GLOBALIZATION AND EGALITARIAN REDISTRIBUTION (2006).
39. For a comprehensive discussion of this analogy, see Ayelet Shachar & Ran Hirschl, Citizenship as Inherited Property, 35 POL. THEORY (forthcoming 2007).
40. On property's connection to freedom of autonomy, see the classic elaborations by IMMANUEL KANT, THE METAPHYSICS OF MORALS (Mary J. Gregor ed., Cambridge Univ. Press 1996) (1797);
41. G.W.F. HEGEL, PHILOSOPHY OF RIGHT (T.M. Knox trans., Oxford Univ. Press 1967) (1820).
42. For contemporary accounts, see Charles A. Reich, The New Property, 73 YALEL.J. 733 (1964);
43. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982);
44. Jeremy Waldron, Property, Justification, and Need, 6 CAN. J.L. & JURISPRUDENCE 185 (1993).
45. See Jeremy Waldron, Property Law, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 5 (Dennis Patterson ed., 1996).
46. Jeremy Waldron, What is Private Property?, 5 O.J.L.S. 318 (1985).
47. See BRUBAKER, supra note 29, at 21.
48. For an optimistic vision of this transformation of citizenship, see Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447 (2000).
49. See Richard Falk, An Emergent Matrix of Citizenship: Complex, Uneven, and Fluid, in GLOBAL CITIZENSHIP: A CRITICAL INTRODUCTION 21 (Nigel Dower & John Williams eds., 2002).
50. Id. at 20.
51. On the conception of citizenship at the EU level, see Rainer Bauböck, Why European Citizenship? Normative Approaches to Supranational Union, 8 THEORETICAL INQUIRIES L. 453 (2007).
52. On the broader debate over whether the state has "lost" or "retained" control over its borders in the age of globalization, see, for example, SASKIA SASSEN, LOSING CONTROL? (1996);
53. Virginie Guiradon & Gallya Lahav, A Reappraisal of the State Sovereignty Debate: The Case of Migration Control, 33 COMP. POL. STUD. 163 (2000).
54. See Consolidated Version of the Treaty Establishing the European Community, art. 17, 2002 O.J. (C 325) 33: "Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship."
55. See Reich, supra note 33. Reich referred to governmental largesse, such as welfare entitlements, jobs, and subsidies. He also used the example of occupational licenses as a form of new property, which creates enhanced earning potential for its holder.
56. See Schneiderman v. United States, 320 U.S. 118, 122 (1943).
57. On the distinction between "private" and "communal" property, see, for example, J.W. Harris, Private and Non-Private Property: What is the Difference?, 111 L.Q. 421 (1995);
58. Michael A. Heller, The Boundaries of Private Property, 108 YALE L.J. 1163 (1999).
59. See Harris, supra note 44.
60. At present, the admission of immigrants in most liberal-democratic countries is based on a combination of need (as in the case of asylum seekers) and choice (for most employment-based immigrants), but it also relies heavily on family ties (in the various preference categories in the U.S., or family sponsorship admission in Canada). Even in self-defined immigrant-nations, the percentage of the foreign-born population has never much exceeded ten to twenty percent of the total population - and these figures refer to the crests of high waves of international migration. We are currently in the midst of such a historical crest. Today's foreign-born population in the United States accounts for 12.3% of the population, and in Canada for 19.3%. Of these "newcomers," most are in fact long-term residents who have already naturalized in their adoptive countries. A recent OECD study found that the percentage of non-citizens (i.e., people who have not naturalized) is lower in each of these countries, estimated at 6.6 percent of the total population in the United States and 5.3 percent in Canada. See OECD, Counting Immigrants and Expatriates in OECD Countries: A New Perspective, in TRENDS IN INTERNATIONAL MIGRATION - ANNUAL REPORT, 2004 EDITION 120 (2004).
61. Importantly, I am not relying here on the historical precedent of treating ownership of real property as a precondition for full membership in the polity. As is well recorded, such reliance has worked to drastically restrict access to citizenship, excluding the vast majority of the population from full inclusion as equals. My focus is different: I am exploring the conceptual and functional analogies between the regimes of protected property and bounded citizenship. On the troubling historical record of exclusion, see, for example, ROGERS SMITH, CIVIC IDEALS (1997);
62. DEREK HEATHER, A BRIEF HISTORY OF CITIZENSHIP (2004) ;
63. IAN F. HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996);
64. CANDICE LEWIS BREDBENNER, A NATIONALITY OF HER OWN: WOMEN, MARRIAGE, AND THE LAW OF CITIZENSHIP (1998).
65. On the deeply gendered aspects of these intergenerational transfers, see, for example, NANCY E. WRIGHT, WOMEN, PROPERTY, AND THE LETTERS OF THE LAW IN EARLY MODERN ENGLAND (2004).
66. This perpetual structure of hereditary transfer also appears to violate the common-law rule against "perpetuities," which has been in effect for centuries, dating back to at least the 1682 decision in the Duke of Norfolk's Case, (1683) 22 Eng. Rep. 931 (Ch.).
67. See also UNIF. STAT. R. AGAINST PERPETUITIES § 1(a), 8B U.L.A. 223 (2001).
68. This proposal is developed in detail in Shachar & Hirschl, supra note 32.
69. For an initial exploration of this idea, see Ayelet Shachar, Birthright Citizenship as Inherited Property: A Critical Inquiry, in IDENTITIES, AFFILIATIONS, AND ALLEGIANCES 257 (Seyla Benhabib & Ian Shapiro eds., 2007).
70. For further elaboration of the deep-seated problems of birthright citizenship as well as possible remedies that address and redress some of these injustices, see AYELET SHACHAR, CITIZENSHIP AS INHERITED PROPERTY: THE NEW WORLD OF BOUNDED COMMUNITIES (forthcoming 2007).