Wednesday, December 07, 2022

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 Abstract

Excerpted From: Steven Sacco, Abolishing Citizenship: Resolving the Irreconcilability Between “Soil” and “Blood” Political Membership and Anti-racist Democracy, 36 Georgetown Immigration Law Journal 693 (Winter, 2022) (618 Footnotes) (Full Document)

StevenSaccoReal democracy requires an end to the law's sanctioning of hierarchy and inequity. But democratic ideas will always face opposition from those with power or without imagination. This is certainly the case with regards to the laws governing the liberty and dignity of people who move between nation states. Arguments for open borders, no borders, the abolition of deportation, or the end of citizenship as we know it are too easily dismissed by their opponents with the question: “How would that work?” The inquiry is really a claim disguised as a question; it asserts that if a political idea cannot be imagined under current law, then it must be neither possible nor legitimate. This question also implies that the status quo does “work.” This Article attempts to confront criticisms of this kind and challenge the thinking and power behind them. Here, I argue the status quo does not “work” because it is anti-democratic and then provide a legal blueprint for how the abolition of citizenship--including borders and deportation--would, and should, work under the law.

Citizenship is “an exclusive status that confers on the individual rights and privileges within national boundaries.” It is “an instrument and object of closure” that makes political membership an exclusive club and limits rights and liberties to its members. I consider here all immigration rules and regulations as part of that law, including border enforcement, and even non-immigration laws that distinguish between citizen and noncitizen such as voting or public benefits laws. Together these legal constructs constitute the rules for inclusion in and exclusion from political membership. Citizenship and immigration laws police this membership and guard its exclusivity. These laws are enforced through “legal violence” of borders, prison camps, surveillance, and deportation. This vast infrastructure of violence is necessary to enforce rules of belonging. Exclusion is inherently violent, or to say it in fewer words, citizenship is violence.

Almost every nation state in the world assigns political membership by one of two criteria: ancestry or birthplace, or some combination of the two. The former is referred to as “jus sanguinis,” or “right of blood,” citizenship and the latter as “jus soli,” or “right of soil,” citizenship. Together they are sometimes called “birthright citizenship,” or simply “soil and blood,” or “blood and soil.” The invocation of the same words and phrase used to spread genocidal ideology in Nazi Germany is neither an accident nor coincidence. Rather, it reflects what all citizenship rules share with even the most barbaric and genocidal of ideologies--identity rooted in racism and territorial exclusivity.

Aside from birth, a relatively tiny minority of people will, through the process of naturalization, become citizens of a nation state where they were not born or do not share ancestry. In many naturalization laws, there is also the principle that extended periods of time of residence, employment, or education within a state merit citizenship, sometimes called “jus temporis” or “jus nexi.” This Article rejects all of these models of political membership.

The use of terminology hereafter requires some explanation. I borrow the term “illegalized” from Harold Bauder to describe anyone assigned fewer rights and liberties than those afforded citizens. This includes someone whose very presence or life in the United States has been illegalized (colloquially called “undocumented”) but also a noncitizen for whom some rights have been illegalized even if their presence or life has not (such as a permanent resident prohibited from voting). I want to remind the reader that citizenship is something done to people, rather than something descriptive of a person. I try to avoid the words “immigrant” or “migrant” or “refugee” because these words normalize citizenship in our minds, and I intend to do the opposite here. For purposes of clarity about the law, I also sometimes refer to illegalized people as noncitizens, to contrast their current legal status with citizens. I refer to “immigration detention,” the daily incarceration of thousands of noncitizens for the offense of being noncitizens, as internment.

It is useful to explain here what I do not argue and why. First, I do not advance capitalist or nationalist reasons for abolishing citizenship, such as, “it's good for business,” or “it's good for America.” These arguments have been made elsewhere in abundance. Nor do I focus on the most violent, barbaric forms of citizenship enforcement as others have, because I regard all citizenship enforcement as oppressive. As the abolitionist scholars Mariame Kaba and Tamara Nopper once put it, “[w]e must accept that the ordinary is fair, for an extreme to be the problem.” Instead, I foreground what are often considered the most ordinary and least atrocious rules--the notion that law should distinguish between foreigner and national at all--so as to highlight the “terror of the mundane and quotidian,” in the words of author Saidiya Hartman. I do not focus on the naming of new rights as much as I do on identifying anti-racist democracy and how abolition and new law might fortify and protect it. I begin by naming the foreigner/national distinction as the root problem because “a problem well put is half-solved.”

Throughout this work, I draw extensively upon the work of Critical Legal Theory, Critical Race Theory (“CRT”), including critical whiteness studies, and abolitionist scholars. I rely particularly on the CRT scholarship that shows how race shapes the law and how law shapes ideas about race. I draw upon the radical democratic ideas of others to interrogate the assumptions that undergird citizenship. I take direction from the anti-racist and CRT literature arguing that real equity requires the deliberate redistribution of power--through abolition and reparations. Finally, I look to prison industrial complex (“PIC”) abolitionist activists and scholars to help think through what it means to advocate for and achieve a world where the abolition of citizenship is realized. I am in debt to these ideas for any insight expressed below into why and how citizenship should be abolished.

The first part of this Article argues that citizenship law is categorically racist and anti-democratic. Using the United States as an example, it explains how racism constructed citizenship law, how citizenship law continues to construct race, and how racist citizenship law harms U.S. citizens of color as well as U.S. noncitizens. The Article then explains that citizenship law is anti-democratic for further reasons, namely, that it is antithetical to equality and liberty, and it authorizes authoritarianism.

The second part of this Article argues that a new law of political membership based on one's physical location or residence (termed “jus locus”) should replace the violent “blood” and “soil” citizenship rules. I consider the law of state political membership within the United States as just one model for how jus locus membership might be applied across nation states. Arguing that reparations are a necessary component of any abolitionist project, I further make the case that a reparations program should accompany a jus locus membership. I suggest a few ways in which a jus locus membership law might be written and explain why it would be anti-racist and democratic. Finally, I conclude by reflecting on how we might build citizenship abolition from the bottom-up.

[. . .]

Citizenship and the rules that regulate and enforce it, are inherently and irredeemably racist and anti-democratic. I have used the history of citizenship law in the United States as an example which epitomizes and illustrates the racist and anti-democratic character of citizenship. The origins and execution of citizenship throughout U.S. history reveal it to be white nationalist social engineering. It was created and designed for an anti-democratic purpose: to enforce a caste system built upon doublethink. This caste system is incompatible with the principles of equal personhood and personal autonomy that are the keystones of a democratic society. By excluding some human beings from political membership, citizenship fails to derive its legitimacy from the will of the people. By requiring the creation of “outsiders,” citizenship is inherently cis-male-supremacist and anti-worker. Citizenship is the law of anti-democracy, and it is neither just nor inevitable.

Furthermore, reconciling citizenship with anti-racist democracy requires the abolition of the former to save the latter. Abolition requires not just the end of injustice, but the building of just institutions. People whom the law makes into 'noncitizens' today are demanding the right to move freely between nation states, live freely in the states to which they move, and enjoy equal treatment under the law where they settle. These are the same rights which nation states, such as the United States, afford their “citizens” when moving and settling within the nation state in which they enjoy citizenship. Political membership based on physical presence within a given jurisdiction, jus locus membership, affords and protects these rights. By way of example, I have suggested how the law in the United States might be changed to abolish the legal distinction between “national” and “foreigner” by replacing it with jus locus membership for all people. I argued further that we need a robust reparations program to compensate former noncitizens--and citizens of color-- for what citizenship has stolen from them, to repair some of the racial and economic inequalities that citizenship produced, and to heal some of the scars citizenship has left upon the world.

Radical change in the law requires extraordinary political will to make that change a reality. That political will requires cultural momentum that only grassroots and mutual aid social movements can build. Such a movement is already underway, of course, and it is led by the people who challenge citizenship every day by violating its arcane rules and borders with their very bodies and everyday choices to live as though they were free to travel. Today's noncitizens are the pioneers of jus locus liberty and the architects of open democracy. This piece was written in the hope that it may provide some support to that movement.

Until such social forces can move the governments of nation states, jus locus must be built from the ground up within states, provinces, and municipalities. This happens through what Ruth Wilson Gilmore termed “non-reformist reforms,” those changes to the law that “unravel rather than widen the net of social control through criminalization.” These are changes that dismantle bad institutions and rules rather than creating new ones that our goals would require us to undo in the future. There are many examples of reforms consistent with jus locus membership, like the New York is Home Act. Six states and the District of Columbia provide free public healthcare to children regardless of their citizenship. City ID cards available to all residents in many cities, regardless of citizen/noncitizen caste, afford equal access to city institutions. Universal suffrage for noncitizens has been implemented in a number of cities in Europe and North America, including the Chicago and New York City school boards. Other municipalities have passed laws creating barriers to immigration law enforcement in their jurisdictions. Such laws, anthropologist Peter Mancina notes, provide a model for how government can operate in a world without citizenship or borders. Abolition, Mariame Kaba writes, is not just a lofty goal, but a “practical organizing strategy,” directing our energy toward non-reformist reforms consistent with jus locus. In doing so, we will create a path toward our ultimate goal.

What community organizer Paula X. Rojas said of police is also true of citizenship and borders: that they are in our heads and hearts. Proponents of jus locus membership must fight centuries of normalization of citizenship's legal and social dogma and indoctrination of the racism and nationalism which undergirds them. These ideas have hardened into a shell around our political and moral imaginations. Breaking through that shell-- normalizing a post-citizenship world--will require as many voices as possible challenging these mythologies and demanding just alternatives. It is critical to remind each other that citizenship laws are neither natural nor inevitable, and that, like race, citizenship is only as real as the violence we inflict to enforce its mythology. Ending citizenship will, as Jaqueline Stevens puts it, “help liberate us from the craziness of repressing the open secret that differences attributed to birth are impossible and ludicrous.” The contradictions are there in the open for us to call out and challenge, if only we are willing to commit to the unpopular alternatives--abolition and reparations. The good news is that jus locus has a long history within political subdivisions of nation states, making the effort to normalize new rules and expand our political and moral imaginations that much simpler. My hope is that this Article facilitates discussion that makes it easier for all of us to do this.

Finally, I hope that others--activists, scholars, survivors, artists--will expand and improve upon the proposals and arguments made here. Because this Article covered broad ground to make its points while staying under book-length, deeper exploration was not always possible. Those who are fluent in the history and law of citizenship and immigration rules in other nation states, and who can show how they too are categorically racist and anti-democratic, should explain and draw upon that knowledge to argue for citizenship abolition in their jurisdictions. Those who can speak to other ways in which citizenship is racist or anti-democratic that I may have altogether failed to address here should do the same. The world will be that much closer to moving past the tyranny of citizenship the more voices are writing and speaking for these democratic ideas.


Practicing immigration lawyer since 2014. Currently, a staff attorney with the Legal Aid Society of New York City, serving in the Immigration Law Unit since 2016, and a Board Member of the Free Migration Project, a Philadelphia-based organization that advocates for the abolition of migration restrictions. All opinions expressed herein are my own.


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