That legal scholar Ayelet Shachar could write in 2009 of birthright citizenship as a legal apparatus so enshrined as to seem a fact of nature and yet today leading candidates for the presidential nomination of one of our two major parties can pledge its repeal is but one of countless signs that the political times they are a changin’. While the Donald Trumps and Scott Walkers aim to do away with birthright citizenship so as to more tightly restrict membership in the American polity, Shachar intended to provoke a new consideration of the arbitrary criteria we use to bestow a status that carries such immense value as citizenship. She argued for seeing citizenship as a sort of inherited property, the ownership of which confers great privilege on those born in certain countries while those born in certain others may risk their lives in the trunks of cars or the holds of ships for a shot at sharing what for others is a lucky fact of life. Shachar’s The Birthright Lottery: Citizenship and Global Inequality—excerpted below—asks why we accept the hereditary passage of citizenship when such generational transfer has become so discredited in so many other realms.
It was none other than Alexis de Tocqueville who, in Democracy in America, famously warned about the social and political dangers of inherited property becoming the basis of enduring privilege. A similar cautionary tale is worth telling about birthright citizenship in an unequal world like our own. In confronting the complexity of the current system of citizenship transfer, I aim to offer a new way of thinking about political membership by drawing a conceptual analogy between birthright citizenship and inherited property. This perspective creates a space in which to explore membership entitlement in the broader context of today’s urgent debates about global justice and the distribution of opportunity.
For those granted a head start simply because they were born into a flourishing political community, it may be difficult to appreciate the extent to which others are disadvantaged due to the lottery of birthright. But the global statistics are revealing. Children born in the poorest nations are five times more likely to die before the age of five. Those who survive their early years will, in all likelihood, lack access to basic subsistence services such as clean water and shelter, and are ten times more likely to be malnourished than children in wealthier countries. Many will not enjoy access to even basic education, and those out of school are more likely to be girls than boys. The odds that they will either witness, or themselves suffer, human rights abuses are also significantly increased. What is more, these disparities that attach to birthright citizenship are not a matter of individual desert or fault; rather, they represent systemic and structural patterns. In such a world, citizenship laws assigning political membership by birthright play a crucial role in the distribution of basic social conditions and life opportunities on a global scale.
My intention is not to belabor the familiar argument that such extreme inequality of actual life chances is morally and ethically troubling. Rather, the point here is more subtle: by focusing on the often neglected angle of membership transfer, I wish to call attention to the crucial role played by existing legal regimes for allocating entitlement to political membership (according to birthright) in restricting access to well off polities and sustaining the privilege of inherited entitlement. I further wish to destabilize the notion that such reliance is “natural” and, in this sense, apolitical. This latter notion serves to legitimize (and make invisible) the significant intergenerational transfers of wealth and power, as well as security and opportunity, which are currently maintained under the seal of the birthright regime of membership allocation. By highlighting the analogy to inherited property regimes, it becomes possible to call attention to the manifold ways in which reliance on birth in the assignment of citizenship regularizes, naturalizes, and legitimizes distinctions not only between jurisdictions, but also between vastly unequal bequests. Framed in this way, we can begin to acknowledge the massive estate-preserving implications of inherited citizenship regimes as they exist today. Drawing upon the rich body of democratic theory and property jurisprudence, this book sets out to expose—and challenge—the moral problem of unburdened intergenerational transmission of citizenship.
It seems unlikely that circumstances of birth would serve today as the core determinants of entitlement to full and equal membership in the citizenry body, given the extent to which it has been rejected in so many other domains of public life. And yet, reliance upon the accident of birth is inscribed in the laws of all modern states and applied everywhere. In fact, the vast majority of the global population has no way to acquire membership except by circumstances of birth. To the extent that citizenship is a valuable resource, it is currently secured on the basis of a morally arbitrary set of criteria. Birthright membership principles that sanction such distribution deserve the same critical analysis appropriate to any other social institution that stands in the way of the equal realization of opportunities. Such analysis is, however, conspicuous for its absence. The almost casual acceptance of ascription as a basis for assigning political membership is so prevalent that we tend to simply take it for granted. Even those who propose to tighten the circle of membership do not contest the basic principle of hereditary entitlement; instead, they quibble about the scope of its application. What remains unchallenged, and remarkably so, is the entrenched assumption that reliance on birth is somehow an unquestionable component of assigning political membership. This (misguided) assumption is, in part, to blame for the scant attention that has been paid to the puzzle of birthright citizenship even by progressive scholars interested in “rethinking” the political community.
This is a serious omission: the bulk of the world’s population acquires citizenship on the basis of transmission at birth based on parentage or territorial location at time of birth. The harsh facts on the ground are such that most people alive today, especially the huddled masses yearning to breathe free, remain largely “trapped” by the lottery of their birth. This acknowledgment motivates the uneasy task of envisioning viable and realistic possibilities for reforming the existent birthright-allocation system. These possibilities involve enlarging our scope of analysis beyond the standard accounts of political membership as a repository of legal status, rights, and collective identity. Although each of these aspects remains a vital part of citizenship’s domain, together they do not capture the full range of its purpose. Instead of dwelling on these familiar categories, my interest lies in expanding our understanding of citizenship by adding a thus-far missing aspect: thinking about birthright access to citizenship as a distributor, or denier, of security and opportunity on a global scale. To unearth the more complex and multidimensional functions of birthright citizenship, we need to take a hard look at the entrenched legal connection between birth and political membership.
A hypothetical illustration sets the stage for our inquiry. Imagine a world in which there are no significant political and wealth variations among bounded membership units. There are no resource scarcities of any kind, and there are also no conflicts based on social factors such as class, ethnicity, or nationality. In such a world, nothing is to be gained by tampering with the existing membership structures. In this imaginary and fully stable world system, there is no motivation for change or migration. Each political entity offers a safe and welcoming space in which people live, love, work, and eventually pass away. Assuming there are no natural or human-made disasters, children and grandchildren may well pursue the same membership path as their progenitors. More important still, the specific collective in which a child belongs does not matter; roughly equal opportunities attach to citizenship entitlement in whatever political community she happens to have been born.
When we relax these assumptions in order to fit them more closely to the reality of our own world, with its omnipresent struggles and conflicts—a world where political instability, human mobility, and material inequality continue to persist—things begin to look quite different. In our world, membership in a particular state (with its specific level of wealth, degree of stability, and human rights record) has a significant impact on our identity, security, well-being, and on the range of opportunities realistically available to us. When analyzed in this broader context, full membership in an affluent society emerges as a complex form of property inheritance: a valuable entitlement that is transmitted, by law, to a restricted group of recipients under conditions that perpetuate the transfer of this precious entitlement to “their body,” specifically, their heirs. This inheritance carries with it an immensely valuable bundle of rights, benefits, and opportunities.
Although they have a pernicious effect on distributing life prospects and human security, birthright entitlements still dominate our laws when it comes to the allocation of political membership to a given state. In fact, material wealth and political membership (which are for many the two most important distributable goods) are the only meaningful resources whose intergenerational transfer is still largely governed by principles of heredity. Whereas the normative foundations of these principles have been thoroughly discussed in terms of the intergenerational transmission of property, they have seldom been considered in terms of citizenship. This omission is as surprising as it is disturbing: academics and policymakers pay a great deal of attention to questions of citizenship, immigration, the claims of minority groups, concerns about civic integration, and how to make political membership meaningful in a world of overlapping and competing affiliations. These vibrant debates engage primarily with the trilogy of status, rights, and identity. What remains conspicuously absent from these discussions, however, is a serious analysis of the global-distributive implications of the entrenched norm and legal practice of designating membership on account of pedigree or birthplace, and its accompanying protections and benefits. When it comes to any other legal entitlement generated and distributed by the state, reliance on birth status has been deeply discredited. To date, however, birthright citizenship laws have largely escaped similar scrutiny. It is my conviction that it is time to redress this imbalance: we must start to critically examine the connection between birth, the demos definition, and the unequal distribution of voice and opportunity on a global scale.
Although there have been many significant efforts to problematize citizenship and to counteract problems of global inequality and deficits of democratic legitimacy, the typical strategy has been to focus almost exclusively on the situation of nonmembers, pressing hard to expand their rights and to open up the regimes that make it possible for newcomers to join the circle of members. Undoubtedly, these are important objectives, which have become ever more urgent in recent times. The years following 9/11 have seen governments throughout the world expand and deepen their regulatory control over territorial access and membership admission as part of a larger strategy to regain control over borders. Yet, as an analytical matter, to frame the question of political membership in this way is to omit something important. It is not enough to focus only on the situation of those who do not belong; the basis for entitlement of those who “naturally” belong must also be examined. How is full membership acquired in the absence of migration? On what basis is the coveted entitlement to citizenship conferred upon some, while denied to others? Who benefits and who loses out when birthright principles are entrenched in citizenship laws?