By Brandon Vines
Charles Monnet, Assemblée Nationale Abandon de Tous les Privileges, Etching (1790). Available from the Library of Congress.
As every first-year law student quickly learns, property rights are a bundle of sticks. An absolute landowner has a full bundle—to use, sell, and possess as she sees fit. That buddle can be split out, with a renter getting some of the rights—to reside on and utilize the land—while the owner retains the remaining rights.
We might not intuitively think of citizenship as property, but nationality is defined by its bundle of rights. There are of course the fundamental rights we most associate with citizenship. The right to full political participation, free movement within the country, equal legal status, freedom to pursue employment, and freedom from the threat of expulsion leap to mind. However, the distinctions between citizens and non-citizens run deeper. In the American context, the state can more easily surveil non-citizens or deny them access to Medicaid or government employment.
The modern result is that each country bundles up its citizenship rights. Citizens get all of them and non-citizens get none. Even more so than property, the privileges of citizenship tend to be monopolized rather than equitably shared under a ‘free market’-type theory. Only 3 percent of the world’s population manage to acquire a new citizenship during their lifetime. “Everyone else is largely ‘trapped’ by the lottery of their birth…from cradle to grave.”[1]
Professor Joseph Carens described this as “the modern equivalent of feudal class privilege.” The late feudal system offered myriad different bundles of privileges, freedom from taxation, reduced legal punishments, eligibility for high offices, manorial rights, and more were dividing out largely on the basis of birth. A precious few, usually the wealthy and educated, managed to move into the nobility by marriage or through noblesse de robe, where holders of certain official positions would grant nobility over time. When the state needed to raise funds, venal offices (usually judgeships) could be outright bought to offer a pathway into the nobility.
“To be born a citizen of a rich state in Europe or North America is like being born into the nobility,” according to Carens, “contemporary social arrangements not only grant great advantages on the basis of birth but also entrench those advantages by legally restricting mobility, making it extremely difficult for those born into a socially disadvantaged position to overcome that disadvantage, no matter how talented they are or how hard they work.”[2]
Whether original citizenship is granted through jus soli (though birth within a territory) or jus sanguinis (through decent), the result is nearly the same—citizenship is near uniformly passed from parents to children. The lottery of birth acts as a golden cage for nearly everyone. Like the feudal system, there are small exceptions. Some few can ‘earn’ naturalization in the vein of the noblesse de robe and the ultra-wealthy can outright buy ‘golden visas’ that swiftly turn into a new passport, even during the ongoing pandemic.[3]
To Carens, “It is the linkage between freedom of movement and equality of opportunity that the analogy with feudalism cuts most deeply.”[4] The bundle of citizenship rights places you on a spectrum of modern nobility and peasantry. The threshold rights of where you can go, who you can interact with, and what opportunities are available to you are defined nearly exclusively by birth and wealth.
In August 1789, during the first months of the French Revolution, the National Assembly passed a run of ordinances that dismantled the whole feudal structure (pictured in the etching above). Over a handful of hours on August 4th alone, nobles lost their feudal dues, prerogatives, tax-exemptions, and legal advantages. Veneal offices ended. Article I went straight to the point: “The National Assembly hereby completely abolishes the feudal system entirely.”[5]
“What is most striking [about the August Declarations and their aftermath] is the extent to which nobles accepted all this.”[6] It took months and years to fully iron out the details of the new system. But the change was essential; outside of France, the nobility waxed into irrelevance where it was not abolished.[7] While, Carens proceeds from his feudal analogy to argue that open borders are a moral imperative, the remainder of this essay instead investigates the intertwined but distinct question of citizenship. After all, citizenship is the noble rank itself. What would a modern assembly throwing off the ancient régime of citizenship look like?
The Failure of Proxy
Nearly every modern state determines citizenship largely on the basis of the decent-based jus sanguinis or territoriality-based jus soli. Alternatives have been floated, ranging from jus nexi (citizenship based on social connections) and jus temporis (citizenship based on time in the country) to jus situs (citizenship based on physical location). It should be noted that not all proponents of these alternatives would pass the full bundle of citizenship, but instead a permanent-residency-like right to remain.
Regardless of which bit of Latin we choose to follow jus, the issue remains the same. We are looking for a proxy that can capture when somebody is owed the full bundle of citizenship rights. The sheer scope of citizenships rights undermines the project from the outset.
It is absurd to assume that a single test determines who all at once now deserves to vote, remain in the country, seek out work and opportunity, have equal access to government programs and hiring, have full legal protections, be considered part of the national community, be subjected to the draft, et cetera.
Jus sanguinis and jus soli write off the whole complexity by using the proxy of birth. Those born to the ‘right’ parents or in the ‘right’ place get the full suite. Is the Dreamer who has lived in the United States for virtually their whole life less deserving of the right to remain in the United States than the child of jet setter parents whose full American experience is contained in JFK and LaGuardia airports?
Similarly, jus nexi and jus temporis proxy in social connections for who deserves the bundle. Assuming we can satisfactorily measure social connections, this would resolve our Dreamer-jet setter dilemma but we are presented by two separate issues. First, at what point does one’s social ties justify the simultaneous access to the full suite of rights? The right to remain, to vote, and to seek out work may all arguably be ‘earned’ at different dates. Secondly, the real question of are social ties really the metric we want to use for who has a voice in our government, access to government aid, or equal protection in our legal systems? The naturalization process presents these same issues.
Professor Ochoa Espejo raises the idea of using physical presence in a community to imply a right to stay there. She explains how “an individual who is not an official part of the local collectivity lacks a right to participate in the cooperation schema and is forced to free ride [because] a noncitizen needs rights sufficient to be part of the collective schema and a right to stay in the vicinity long enough to discharge the place-specific duties she may have acquired there.”[8] This offers a solution to the issue of borders, but as Professor Ochoa Espejo indicates, it does not offer the answer to when the full suite of citizenship rights are owed to non-citizens.
Simply put, we need to stop trying to find one answer to dozens of questions of rights.
Abolishing Citizenship
The solution for our hypothetical Assembly is straightforward, “Article I: The National Assembly hereby completely abolishes citizenship entirely.”
This solution is not as radical as it first seems. Our Assembly suggests that we simply (1) break apart the bundle of citizenship rights and (2) determine for each of those rights who they should belong to. In short, an individualized approach to citizenship.
This solves the issue of finding the magic moment that the full suite of citizenship rights is vested. The question instead becomes how do we want to decide who has the right to remain and work in the country (or, indeed, if that right is automatically vested). What should we consider before extending the right to vote or hold office?
These questions certainly do not have simple answers. Many of them will require us to rethink the relationship between civil and human rights to answer. The point is we should be at least trying to answer these questions instead of relying on the omnibus catchall of “citizenship” to flatten the complexity of modern societies.
Looking beyond citizenship is not novel, courts regularly do so explicitly or implicitly. For instance, Friedrich Nottebohm was a German citizen who had spent the vast majority of his adult life in Guatemala running banks and coffee plantations, though he never acquired Guatemalan citizenship. When the Second World War began, Nottebohm visited Lichtenstein and, essentially, bought Lichtenstein citizenship and renounced his German citizenship. Despite this precaution, shortly after his return to Guatemala, Guatemala and the United States interned him as a German citizen and seized his property.
Following the war, the International Court of Justice addressed whether Lichtenstein could claim Nottebohm as a citizen and sue for his property. While on paper he was a Lichtenstein citizen, the Court looked for a “real and effective nationality, that which accords with the facts,” based on factors like: habitual residence, the center of interests, family ties, participation in public life, attachment shown, and inculcation of the culture in one’s children.[9] The Nottebohm case is remarkable because the Court outright rejected one nation’s claim of citizenship because the claim was so out of accordance with what citizenship was supposedly a proxy for (there, national belonging).
None of this is to say that the Nottebohm factors are a particularly good model, but, rather, simply to show the desirability of directly addressing the questions that citizenship is acting as a proxy for.
Unbundling Citizenship in Practice
But what does an individualized approach to citizenship rights look like? The key advantage to such a system is that there is no answer. It depends on both the right and community in question. As an example, consider the right to vote.
One of the most fundamental rights is the right to vote. More than 20 million non-citizens reside in the United States, they go to school, work, pay taxes, and care deeply about and are powerfully affected by government policies.[10] Is ‘losing’ the lottery of birth or a failure to navigate the decade-long maze of naturalization reason enough to deny a community member a voice? In fact, there is precedent for answering “no, let them speak.”
For example, 40 counties currently extend suffrage to non-citizens.[11] San Francisco has recognized non-citizens with children have an identical, if not greater, interest in school board elections. In 2016, San Francisco voters extended suffrage in those elections to non-citizen residents.[12] Historically speaking, San Francisco is not an American outlier. Some 40 states have at one point or another permitted non-citizen voting—including in national elections.[13] Of course, during these times voting was often limited to white, male landowners, and non-citizen voting was reduced as a tool to keep power concentrated in the hands of established elites.
The proxy of citizenship fails to offer a satisfactory answer to who should vote as the Dreamer-jet setter dilemma reveals. But what do we replace it with? The most direct answer would be a simple jus temporis, time-based standard. Another answer would be community ties, a jus nexi principle. Professor Ayelet Shachar “jus nexi demands that we focus on the “actual relationships the individual has developed with a society: a family, friends, a job, association membership, professional acquaintances, opportunities.”[14] A third option could be open the franchise to everybody physically present in the community.
These are not the only options nor are they exclusive. One functional test may combine elements of jus temporis and jus nexi. Such a test would begin with a bright-line jus temporis rule (e.g. “you may vote if you have primarily resided in the country for a total, but not necessarily continuous, period of eight years). This starting line could be softened with jus nexi principles. Time could be ‘credited’ for people with community ties like membership in a community or professional group, who undertake domestic labor, find employment, pursue of education or the arts, or offer long-term community service. The right to vote could also be divided into ‘tiers.’ Allowing local voting before national voting may be desirable for some communities. Similarly, elections for certain officers may make sense for swifter suffrage like the San Francisco school board law.
Such a system need not be overly complex. The vast majority of people would obviously qualify by the time they reach voting age. Employers, schools, and other organizations could automatically report relevant data to the government agency. The jus nexi elements could be as simple as checking a box.
As the above discussion of voting demonstrates, many citizenship rights can raise difficult moral and political questions. Fundamental questions of inclusion, identity, human dignity, and duty are raised. Abolishing citizenship does not offer a simple answer to these questions, but it does demand society try to answer them in the first place.
Modern Pressures and Counter-Arguments
Should our hypothetical Assembly abolish citizenship, we are quickly faced with some immediate complexities. In some of the remaining space, I would like to raise just two.
Culturalization. Internationally, we have seen the growing process of culture (or, what a government defines as culture) ingraining itself in citizenship. France has begun denying citizenship to people who do not integrate, particularly with regard to laïcité (“secularity”) and the Netherlands requires a measure of Dutch language and cultural knowledge before even issuing a permanent residency.[15] Angela Merkel’s said Multikulti, the ideal that different cultures could live side-by-side within German, “has failed and failed utterly.”[16] On his last day of the Trump Presidency, Mike Pompeo denounced multiculturalism as “not who America is.”[17] India has pushed a two-prong effort to strip Indian Muslims of citizenship while extending citizenship to Pakistani and Bangladeshi Hindus.[18] As nationalism rises, citizenship is increasingly defined by nativist, colonial conceptions of culture, what Liav Orgad has referred to as “Illiberal Liberalism.”[19]
By stripping away citizenship, are we removing a vital shield from majoritarian pressures and demands for unyielding integration? Arguably citizenship is doing too little to halt demands for culturalization, particularly when certain groups can be identified for exclusion from citizenship’s aegis. Regardless, the threat is real that demands for integration would hound even long-established minority groups. Whether or not citizenship remains on the table, a reaffirmed and redoubled commitment to the principle of equal treatment is the best protection from Illiberal Liberalism.
Closed Borders. Without citizenship, mutual rights and obligations would likely begin accruing as soon as a person enters a national territory or even before (e.g. a person whose whole family has already immigrated). States committed to the current distribution of resources and power would be incentivized to shut down their borders as much as possible. The abolition of citizenship would, then, need to be paired with a decolonial or, at least, non-nationalistic mindset.
The critique of the Desert Island Model offered by Professor Ochoa Espejo provides some insight. The model is built on “a set of assumptions about territorial rights, borders, and people, and how each of those relate.”[20] In short, it imagines states like desert islands, where a clearly defined people can declare ownership over a specific area of land, and determine who has access to it resources. “Despite its prominence in both politics and theory, the Desert Island Model abstracts too much from reality—generating significant, concrete political problems [m]ost crucially, the model cannot answer questions about migration.”[21] The Desert Island Model “succeed[s] at reducing the muddy, uneven, material aspect of politics and economics to the flat, smooth, homogeneous territories pictured on political maps.”[22]
The current model of citizenship assumes the Desert Island model is tenable. People and identity transcend the lines drawn in the sand by states. Globalization, mass migration, transnational crises like global warming, international obligations, supra-national organizations like the EU, and the secondary reality of the internet seriously challenge the assumptions made by the Desert Island Model.
Regardless of whether citizenship is abolished, the failure of borders to adequately address the growing complexities of the modern world is a looming, critical issue. Abolishing citizenship does not offer a clean answer to the practice or theoretical problem of borders, except to suggest that they should not exist in the modern, interconnected world. My colleagues Anita Yandle and Cletus Alengah brilliantly discuss what open or abolished borders would look like any why they are necessary.
As Professor Carens, explained “Most people just assume that, with a few qualification, it is morally acceptable for states to adopt immigration policies that favour the interests of the members of their own political community.”[23] Abolishing citizenship means society cannot simply hide behind these assumptions, behind the Desert Island Model. Abolishing citizenship simply means society has to address the question of borders head on, including the foundational questions Carens raises in his article about what gives society the right to using border guards and their guns against migrants.
Conclusion
Citizenship and belonging are fundamental and emotive issues. This essay has explored the idea of abolishing citizenship itself, but stops short of advocating for that. While such a radical argument might well be warranted, it deserves more than 3,500 words. Instead, by starting the discussion around abolition, this essay simply aimed to raise two more fundamental questions.
Why do we need the state to tell us who is and who is not a member of our society? And why should that decision determine what rights a person has?
The ability to name two cabinet-level positions or one leader of the women’s rights movement in the 1800s, as presented by the 2020 citizenship test, is not a particularly meaningful indicator of who is and is not a member of American society. (It more likely would predict who would attend a law school). Much less is the mere happenstance of birth. I would posit that belonging is not a scrap of paper, but rather belonging is the remarkable tenacity of undocumented people, the founding of a mosque, unionizing an assembly line, the shoveling of snow from driveways, and bringing casserole to funerals. If that is how we conceive of belonging, then we owe each other a more complex answer to the distribution of rights than citizenship can offer.
Notes
[1] Ayelet Shachar, Citizenship in The Oxford Handbook of Comparative Constitutional Law 1005 (Michel Rosenfeld & András Sajó eds., 2012).
[2] Joseph Carens, The Ethics of Immigration 226 (2013).
[3] See, e.g., Kate Springer, Passports for Purchase: How the Elite Get Through a Pandemic, CNN (August 7, 2020), https://www.cnn.com/travel/article/buying-multiple-passports-pandemic/index.html.
[4] Joseph Carens, The Ethics of Immigration 226 (2013).
[5] Colum. U., Hist. Dep’t, Decrees of 4 August, 1789, https://www.columbia.edu/~iw6/docs/aout1789.html (last visited March 28, 2021) (reprinting another source).
[6] William Doyle, The French Revolution and the Abolition of Nobility in Cultures of Power in Europe During the Long Eighteenth Century 295 (Hamish Scott & Brendan Simms eds., 2007).
[7] For part of this narrative, see Richard Evans, The Pursuit of Power: Europe 1815–1914 at 278–292 (2016).
[8] Paulina Ochoa Espejo, On Borders: Territories, Legitimacy, and the Rights of Place 236 (2020).
[9] Nottebohm Case (Liechtenstein v. Guatemala), 4 ICJ 1 (1955).
[10] According to the 2019 census, 6.7% (or, ~22 million) of the population are non-citizens. Kaiser Family Foundation, Population Distribution by Citizenship Status, https://www.kff.org/other/state-indicator/distribution-by-citizenship-status/ (last visited April 2, 2021) (using federal census data).
[11] Ronald Hayduk, Democracy for All: Restoring Immigrant Voting Rights in the United States 6 (2006).
[12] San Fransico Dep’t of Elections, Non-Citizen Registration and Voting, https://sfelections.sfgov.org/non-citizen-registration-and-voting (last visited April 2, 2021).
[13] Ronald Hayduk, Democracy for All: Restoring Immigrant Voting Rights in the United States 6 (2006).
[14] Ayelet Shachar, Earned Citizenship: Property Lessons for Immigration Reform, 23 Yale J. L. & Humans. 110, 137 (2011) (quoting Aleinikoff, Aliens, Due Process and ‘Community Ties’: A Response to Martin, 44 U. Pitt. L. Rev. 237, 244 (1983)).
[15] Ayelet Shachar, Citizenship in The Oxford Handbook of Comparative Constitutional Law 1014–15 (Michel Rosenfeld & András Sajó eds., 2012).
[16] Merkel Says German Multicultural Society has Failed, BBC (Oct. 17, 2010), https://www.bbc.com/news/world-europe-11559451.
[17] Jennifer Hansler et al., Pompeo Attacks Multiculturalism, Saying it is ‘Not Who America is’, CNN (January 19, 2021), https://www.cnn.com/2021/01/19/politics/pompeo-multiculturalism-tweet/index.html.
[18] Niraja Gopal Jayal, Faith-based Citizenship, India F. (November 2019)
[19] Liav Orgad, Illiberal Liberalism Cultural Restrictions on Migration and Access to Citizenship in Europe, 53 Am. J. Comp. L. 58 (2010)
[20] Paulina Ochoa Espejo, On Borders: Territories, Legitimacy, and the Rights of Place 29 (2020).
[21] Paulina Ochoa Espejo, On Borders: Territories, Legitimacy, and the Rights of Place 30 (2020).
[22] Paulina Ochoa Espejo, On Borders: Territories, Legitimacy, and the Rights of Place 31 (2020).
[23] Joseph Carens, “Politics, Principles, and Open Borders,” Abolition 13/13 (March 30, 2021), https://blogs.law.columbia.edu/abolition1313/joseph-carens-politics-principles-and-open-borders/.
