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.