Jean Monnet Center at NYU School of Law


Author: Ayelet Shachar

Title: Children of a Lesser State: Sustaining Global Inequality through Citizenship Laws


This paper critically assesses the connection between birth and political membership. It argues that the time is ripe for reconsidering the justifications for allotting citizenship according to birthright principles. Such attribution has too long served as a veil - shielding questions about the distribution of power, wealth, and opportunity from the realm of demos definition. The discussion proceeds in three main steps. First, I elucidate the basic principles of birthright citizenship attribution: jus soli and jus sanguinis, drawing on a set of examples taken from recent American, Canadian, German, and Israeli case law and legislation. Second, I explore the prevailing assumption that "civic" and "ethnic" nations follow fundamentally distinct rules and principles in allocating membership to their citizens. Third, I identify prevalent defenses of the jus soli and jus sanguinis principles, including arguments premised on democratic self-governance, administrative convenience, and respect for constitutive relationships and distinct cultural identities. These approaches fail to address the detrimental effects that current membership rules impose on the life chances of children (across national borderlines) "because of birthright" - involuntary circumstances that none of us control. Ultimately, extant theories of law and morality fail to provide justifiable grounds for upholding apportionment criteria of membership that currently limit the opportunities open to the vast majority of the world's population simply on the basis of considerations as arbitrary as ancestry or birthplace. In light of this critique, the concluding section of this paper offers an alternative understanding of the persistence of birthright citizenship principles. It reconceptualizes membership status in affluent political communities as a complex form of property right that perpetuates not only privilege but also access to a disproportionate accumulation of wealth and opportunity, while at the time insulating these important distributive decisions (through reliance on birthright) from considerations of justice and equality.

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