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Friday, June 6, 2014

Consenting Citizens

A year or so ago I was reading a bibliography at the back of one of the many citizenship books I have read and found one with a title that I found most intriguing -  Citizenship Without Consent by Peter H. Schuck and Rogers Smith.  It's been on my to-read list because it touches on something that I've been thinking about ever since the American Diaspora Tax War kicked off in 2012: if membership in the political community of a democratic nation-state is strictly voluntary, then at what point does an individual give his or her consent and agree to all the duties and responsibilities of that citizenship?

Just think back to your childhood.  At what point did you understand that you were a citizen with both rights and responsibilities either to the place where you lived or to that distant land whose passport your parents applied for on your behalf?  And was there a moment where you with full awareness of the meaning of that membership, accepted that you were part of a community by birth that made you one with the "We"?

I find it interesting that many of us actively encourage our children to question institutions and groups that we grew up with, or that we see others belonging to from birth, (religion, for example) and yet I don't see those parents asking their children to actively question their birthright citizenship.
On the contrary, in homelands that espouse certain democratic principles, the issue of choice isn't raised within the family, at school or by any other institution that I am aware of.  It's simply taken for granted.  And where the issue of choice is more evident (children born abroad) I have seen American, French and other parents going to some trouble to be sure that their children have homeland passports and accept without question their attachment to those communities.

And lastly, we should all be aware that existing citizenship laws combined with international migration in a global world is creating large numbers of "accidental" citizens.  Is there is a developed democratic nation-state with liberal citizenship transmission laws out there today that actually knows just how many citizens (or those with a claim to citizenship) it has in the world?  I doubt it.

The "accidentals" are individuals who may have never lived in that country but who can come forward at any time to claim their place in another country based on blood or birthplace.  This can work in the other direction as well with a state saying to an individual that it recognizes him as having citizenship in that state and as such has responsibilities to it.

And that begs the question of what recourse an individual has if he or she feels that a citizenship claim by a state is not legitimate because he never gave his express consent to being included in that particular political community.   Can the lack of informed explicit consent on the part of an individual be a reasonable basis for denying a citizenship claim by a state?  And who would decide that?  A tricky question that hinges on so many things like sovereignty and the right of every nation-state to determine who is a member and who isn't; and also how one defines "consent."

So I was delighted to find a copy of Schuck and Smith's book sitting up there on the bookshelf of a friend in Montreal.  She kindly loaned it to me and I read it on the flight back to Paris.  The book was written to address the question of citizenship for the children of undocumented persons in the United States but it also (as I hoped) provides a nice summary of the different theories about citizenship and consent.  It is not a new problem by any means and it touches on some fundamental ideas about liberty, informed choice, and the ability of the individual to make that choice meaningful by having access to alternatives.

Ascription:  Before people were citizens, they were subjects. An individual was born into and grew up under the protection of a sovereign.  This relationship was conceived of as something very similar to a family relationship.  Just as it was unnatural (not to mention ungracious) for a child to disavow his relationship with his parents, so too was it contrary to natural law for an individual to cast off his subjecthood and replace his allegiance to one sovereign with another.

To some extent, vestiges of that old idea are still prevalent today.  Looking at the reactions of a people to news that someone is renouncing his citizenship, there is a visceral reaction to it.  The most often cited reason for the censure is this sense that the renunciant is reneging on some sort of primordial debt.  Just replace "king" with "the people" as the guardians of that debt and it sounds like an argument for perpetual allegiance. It may be perfectly legal to expatriate under international law but it remains morally suspect. A child born and raised in France, for example, is seen as owing something to France and therefore it not normal that he be allowed to simply sever that relationship unilaterally.

Assent:  But we are no longer subjects, right?  Revolutions, We the People, the Rights of Man, those Declarations of Independence and all that jazz.  Today we are voluntary members of a political community.  In fact our governments are deemed legitimate only if they have the consent of the governed and, in theory, we can get rid of a government we don't like or we can leave.   That is exactly what the ancestors of many of us did.  They severed their "natural" attachment to a sovereign and explicitly consented to a new kind of government and a different kind of political community.

So what is the nature of this "consent" if one is a birthright citizen (a citizen by jus sanguinas or jus soli)?  Unlike naturalized citizens, consent of birthright citizens is almost always assumed.  A young American living in the United States or abroad  is not asked at age 18 if he or she wishes to be an American citizen or not.  Assent is assumed and I have never heard of any American citizen by birth being asked the question and offered an alternative.

Schuck and Smith argue that this is by design.  As much as modern democratic nation-states tout the voluntary nature of their political communities, these governments and their people fear giving individuals (especially young people) a choice in the matter.  They want a system of quasi-automatic "opt-in" that retains the principle of ascription (people as "subjects" with little choice) but maintains the illusion that there is actual consent in there somewhere (without which there would be no foundation for the legitimacy of the political system).

Is that a realistic fear?  Maybe.  A thought experiment:  assuming that there was some sort of process for explicitly consenting to citizenship and the state was in some sort of crisis (like an unpopular war or the Great Recession, for example)  wouldn't one one way to register dissatisfaction with the social contract would be to say,  "No, I don't want to be part of this community.  As long as the government is doing X or requires that I do Y, then no, I don't take the deal."  Imagine thousands (maybe even tens of thousands) of young people doing that and, oh my, what a crisis that would be.

Citizenship Without Consent was written to address what the authors see as the shortcomings of the Fourteenth amendment (unconditional jus soli).  They believe that the U.S. should be more restrictive and not confer US citizenship automatically on children born in the US to undocumented residents.  An interesting argument but frankly, it makes me very uneasy that democratic nation-states allow birthright citizenship (with or without explicit consent) at all.  As a category, the "natural born" citizenry feels an awful lot like a hereditary aristocracy and I rest unconvinced that it is possible to square that with Égalité.

What I did like, however, was their rather ingenious (I thought) solution on how to make consent to citizenship meaningful and choice accessible to everyone.

They propose that every American be given an opportunity at age 18 to accept or decline American citizenship, no further questions asked and no explanations required.  Those who declined to become citizens would nevertheless have the right to remain in the United States as permanent resident aliens.  Those who choose to expatriate later, after having lived elsewhere perhaps and acquired another nationality, would also have this right to return to the United States and live there as non-citizen residents.

I find that solution to be both rational and elegant.  It neatly solves the problem of implicit/explicit consent (and I strongly feel that every democracy should base citizenship on explicit consent) while offering humane alternatives.  It would make real choice possible because while there would be consequences to choosing either way,  declining would not lead to a catastrophe like exile.  It would also ensure that those who gave up their citizenship for another would still have a right to return to the United States as visitors or residents.  The cherry on the cake is that it would tidily solve the problem of "accidental" citizens.  Those who don't show up and say, "Yes, I want to be a citizen" could not be claimed against their will even if they were born in the U.S. or if their parents filed a Consular Report of Birth Abroad and obtained a US passport for them.

Locke said it best: “It is plain then, by the practice of governments themselves, as well as by the law of right reason, that a child is born a subject of no country or government. He is under his father’s tuition and authority, till he comes to age of discretion, then he is a freeman, at liberty what government he will put himself under, what body politic he will unite himself to….”

To those who might take exception to this scheme and who prefer tacit consent and restrictions on expatriation, Schuck and Smith point out, "limitations on expatriation...are disturbing for they imply that the nation does not believe that a government that is genuinely "by the people" can avoid perishing without imposing such nonconsensual and illiberal restrictions."

Imply?  Oh, let's just be brutally honest here.  Of course citizens are deeply afraid of what would happen if individuals could just unilaterally opt-out of a nation-state whenever they felt like it. People on the Left are convinced that this would kill the social welfare state.  People on the Right believe that the social fabric of the nation itself would rip apart if people were allowed to walk away from the land their ancestors built with blood, sweat and toil.  They are united in thinking that giving people that kind of freedom is a terrible idea.

In every citizen (myself included sometimes and I should know better) there is a very conservative and thoroughly undemocratic part of us that finds enormous appeal in the idea of ascriptive citizenship and perpetual allegiance. We don't really want our children to choose - we just want them to be French or American or whatever we are - and we don't want our fellow citizens to pack up and leave us with the mess we've made of things.

But do we not live in this wonderful modern world where we are free to question and seek the Good however we might define that?  No one seriously expects adults these days to be bound by the personal philosophies and attachments of their forefathers. Nor are they required to be members of the church into which they were baptized as infants or marry the person their parents chose for them or vote for the same political party or hold the same values as their parents.

Is it really such a stretch to say that every individual should also have the freedom to choose the country, culture and political system that most closely conforms with his personal preferences and is willing to welcome him?  And that no one should be punished or permanently exiled for choosing not to be a member of a political community?

How about a little bravery on our part?  Let's extend the explicit informed consent we require of naturalized citizens to birthright citizens, and let's remove all impediments (however convoluted and indirect) to expatriation.


A broken man on a Halifax pier said...

The funny thing is that from the American point of view the War of 1812 was *precisely* about defending citizenship-by-assent.

kermitzii said...

Well written, but you know I renounced and it was not a problem for me but for some there are major hurdles. I had no problems having dual Canadian-US citizenship until FATCA, FBAR and US invasion of financial privacy came along in 2012. The source problem is citizenship based taxation by USA, which you don't mention. As far as citizenship, the US should loosen things up but much of the current policy was decided by the Supreme court. Kermit

KHS said...

After FATCA, many really regard voted for Obama. We should repeal this crazy law.

Tim said...

Interesting post Victoria. At some point John Richardson is going to post a video of an interview he did with Andrew Grossman after his Montreal info session a few months back(that I attended). Andrew Grossman is a former US State Dept official now a nationality lawyer and also a US Swiss Dual citizen who lives in London. Andrew was originally from Plattsburgh NY just across the border from Montreal and only has a US passport "card" so he can only enter the US by flying to Montreal on his Swiss passport than crossing the US land border to Plattsburgh(rather interesting way of saving money).

Anyways one of the more enlightening things Andrew Grossman pointed is that prior to the Civil War era their was NO way to renounce US citizenship and in fact the US had a very similar system to that of the UK regarding perpetual alliegance. There WAS always some domestic opposition to perpetual alliegance by the likes of Thomas Jefferson and others however, notably the right of expatriation is one granted by Congress not the US constitution.

Tim said...


One other thing I have been studying recently is what I consider the re-awakening of majoritarianism. I think majoritarianism and CBT are very much connected.

Tim said...

There seems to be a rather interesting battle brewing in Massachusetts over non compete agreements that has some parallels with CBT. First and foremost ALL EU Countries, ALL Canadian Provinces, and 49 of 50 US States ALLOW non compete agreements for employee employer relationships. The 50th US State that doesn't allow non competes happens to be the largest US State though and that is California.

Right now a big fight is brewing as to whether Massachusetts should join California and only California in banning non competes.