Our Feudal Immigration Policy

Why should an accident of birth determine who benefits from citizenship?

Until its reform in 2000, German immigration law was based on a principle that many Canadians might find objectionable, even disturbing: blood. To be a German citizen, you had to be born to German parents. Thousands of “guest workers” who had lived in Germany from birth, some even second and third generation, were permanently excluded from ever becoming full members of the community. At the same time, the children born to German citizens living abroad would automatically be entitled to citizenship, as were their descendants, even if none of them ever lived there. Exceptions have since been made, but the principle remains: children of German stock are admitted to German citizenship automatically, as of right. Everyone else can wait in line.

But then, a German might find Canadian immigration law no less odd. There is no bloodline requirement for Canadian citizenship: it is enough, rather, to have been born on Canadian soil. Your parents might have been changing flights for all the law cares. Neither you nor your parents may live here a minute beyond that. No matter: you’re in, automatically, in perpetuity. On the other hand, those foolish enough to be born elsewhere, though they might have arrived in this country as newborns, have no guarantee of citizenship, no matter how long they live here.

We like to think of ours as a more inclusive society, as a civic rather than an ethnic nation. If a paternity test for inclusion were suggested, we would rightly recoil. Yet is a territorial criterion really so different? In both cases, citizenship, with all of its blessings, is awarded by accident of birth. The children upon whom citizenship is conferred in this way have done nothing to earn this privileged status. They have simply won the lottery—the birthright lottery.

Is this system morally defensible? No, argues Ayelet Shachar, professor of law at the University of Toronto. Citizenship is one of the few remaining areas of modern life, she points out in The Birthright Lottery: Citizenship and Global Inequality, in which rights and status are still dictated by inherited privilege, a practice more usually identified with feudal times. Although life chances in practice differ greatly at birth, there is consensus that every member of society is at least entitled to equal treatment in the sight of the law. In a society dedicated to the equal moral worth of every individual, that is a bedrock obligation of the state: on this we are agreed.

Except, that is, when it comes to deciding who should be a member of that society. To be sure, we allow a small number of others to join us, but only as and when we choose, based on their fitness for membership as we see it. Yet the tests we administer to them are not ones that we will ever have to pass ourselves. For the vast majority of us, the only quality we are expected to show is the good judgement to have been born here, on which slim basis we feel wholly entitled to exclude others.

Such a system would be morally arbitrary in any circumstance. But when we look at the enormous discrepancies in incomes, human rights and quality of life in different countries around the world, it becomes even harder to justify. The child born in a country like Canada may hope for the sort of secure and prosperous existence that would be unattainable—in fact, unimaginable—across most of the globe, where the great majority of the world’s poorest remain imprisoned in their countries of birth. Yet so universal is birthright citizenship as a legal norm—and so comfortably does it sit with our own interests—that this extraordinary and unjust system of allotting life chances passes unquestioned.

If it did nothing else but open our eyes to this anomaly, this book would make a signal contribution to the immigration debate. Unfortunately, Shachar has a wider agenda.

If, as she argues, citizenship is a form of inherited property, a bundle of rights passed down from one generation to another in much the same manner as the entailed estates of old, then surely the same analysis that leads us to tax inherited wealth should lead us to tax the inherited privilege of citizenship. Accordingly, she proposes the establishment of a “birthright privilege levy,” a tax assessed on the fortunate few born into developed-country citizenship, the proceeds to be redistributed to those we exclude: the numberless wretched of the earth.

Put like that, Shachar has a point. The principle is well established and widely shared that inheritance should be taxed, both to establish some rough parity in “starting points” in life and in deference to the idea that wealth should be earned, through effort and ingenuity, not simply acquired. In a society that is interested in justice, it is a matter of law, not charity, that such endowments should be redistributed, at least in part. Why, Shachar asks, should the same rule not apply to the particular property to which we are (most of us) heir, our unearned Canadian citizenship?

Ah, but is citizenship property? Can it be so defined? This is no small matter. It is crucial to Shachar’s argument. Her point is not that we have a moral obligation to the world’s poor, but a legal one; it is not that we should send more aid out of the goodness of our hearts, but quite literally in payment of the tax owing on our inheritance—on our property. So quite apart from the practical concerns raised by such a far-reaching proposal, it is worth knowing whether it can be sustained even in its underlying rationale.

In most definitions of the word, property is concerned with ownership of scarce resources. We do not grant title to the air; rather, it is where one person’s consumption of a thing leaves less for everyone else that property rights come into play. Where these are not assigned, where it is unclear who owns what, there is little incentive for anyone to use resources efficiently, a phenomenon known as the tragedy of the commons. Since society has an interest in the efficient use of scarce resources, we assign and enforce title to them, granting their owners exclusive right to a particular property, together with the returns from its use. Exclusive, as in the owner has the right to exclude others.

The analogy between citizenship and property is a popular one in immigration debates. I have a right to exclude people from my house, it is often claimed; why should I not be able to exclude people from my country? But the analogy fails, for one simple reason: because citizenship, as such, is not a scarce resource. There is only so much land, which is why we assign property rights to it. But citizenship is more like the air: one person’s “consumption” of it does not diminish another’s. I have the same rights today as one of 30 million-odd citizens of Canada—to enter and leave, vote in its elections and so on—as I would have had when we were three million.

To be sure, citizenship may carry with it the expectation of certain benefits: “free” health care, for example, which might be thought to be in scarce supply. But these are not, in themselves, part of the definition of citizenship, which is concerned with membership in a community—who is included, who is not—not how the members of that community choose to organize themselves. If citizenship is scarce, it is only because states have decreed it should be so, not because of any inherent limitation. So the foundation of Shachar’s argument for a citizenship tax, that citizenship is property, collapses. It may be inherited like property, but there the resemblance ends.

That’s if you use the definition of property found in most dictionaries, law books or economics texts. But Shachar rejects this “narrow” (i.e., commonplace) understanding. Following C.B. Macpherson, she describes it as rooted in “a particular conception of social life, according to which all interper- sonal interactions are characterized as ‘trades,’ and thus everything may in principle be subject to market transaction.” It is a world in which “social atomism and unrestricted commodification rule, and where self-interest is the core motivation for human action.”

Notice the absolutes: all, everything, unrestricted. But this is grotesque. Nothing in the traditional notion of property demands that we accept such an absurd caricature. Nor are we obliged to view the right to property as unconditional: it can be attenuated by other social objectives, as centuries of common law has recognized. We are only obliged to think about it coherently.

By contrast, the “broader” concept of property Shachar prefers views it as “part of a web of social and political relations.” Where the traditional concept of property “privileges” the right of the “possessive individual” to “exclude others from the use and benefit” of ownership, the broader definition includes the right of others “not to be excluded” from it. In other words, while property, as traditionally understood, conveys a right to something that others may not take away from you, in this broader understanding it also includes the right of others to take it from you.

We have been here before: Shachar’s view of property is rooted in the same soil as notions of “positive freedoms” and “rights” to social benefits, and is vulnerable to the same critique. A right, in political terms, is a guarantee against interference from the state. It cannot also mean a claim for benefits from the state, since these require depriving others of their rights, notably to the enjoyment of property. To speak of positive freedom is to bend the word freedom into its opposite, or at any rate to borrow on its credit, using its good name to enlist the listener’s sympathy for quite different ideas. As Isaiah Berlin reminded us, these other ideas may be as important as freedom; they may even be more important than freedom; but they are not the same thing as freedom.

If property is defined in this unorthodox way, not as scarce resources that belong to individuals but as “broad trusteeship” over resources that belong to everyone, as “co-owners and partners in a shared political community,” then citizenship is indeed a form of property, and inherited citizenship is inherited property. But if property is defined more conventionally, then it is hard to see citizenship in such terms.

Moreover, if you accept Shachar’s non-exclusive definition of property, it weakens the case for taxing it: if a thing were equally available to all, we should have no need to take it from one to give to others. Again, the point is not that the people of the richer nations should not feel a moral duty to devote a part of their incomes to aiding the world’s poor—only that the case for entrenching this in law has not been made. But it is a case that does not need making.

What is objectionable about inherited citizenship does not depend on it being defined as property, nor is taxation the only remedy for the unfairness of the birthright lottery and the arbitrary inequities to which it gives rise. Rather, it is open to us to correct the injustice at its source: to eliminate birthplace, as much as bloodline, as criteria of eligibility; to give everyone, no matter where they were born, an equal shot at citizenship.

This does not mean abolishing countries, or borders, or the idea that nation-states may sovereignly decide who to admit among their number. Shachar is not a one-worlder, and neither am I. Rather, it is to say that, in making such choices, they should not discriminate between people on the basis of such arbitrary factors as place of birth.

Nations, if they wish to be just, should define themselves as social contracts, open to anyone willing to abide by their conditions. As Joseph Carens, Shachar’s University of Toronto colleague, has argued, it is not wrong for states to set terms for membership in the polity. I have some sympathy, for instance, with Shachar’s proposed replacement for birthright privilege as the test of citizenship: a “genuine connection” principle, requiring some demonstrated commitment to the country through ongoing residence. (At least, this seems a reason- able way to determine who retains citizenship status once it is lawfully acquired.) What’s wrong is to exclude a particular class of people from consideration at the outset—to prevent outsiders, although they assent to every word of the social contract, from being allowed to sign it.

Now don’t be alarmed. Nothing says we have to throw open the doors overnight. There are legitimate “lifeboat” exceptions (a lifeboat’s existing passengers are not obliged to take more on board if to do so would swamp the lifeboat) and practical constraints, in an age of macro-terrorism, on the numbers that could be processed through security checks each year. But there would be no long-run preference for those born here, nor any automatic bar on others joining them from abroad. The tendency would be toward equality of access, and the onus would be on those who wished to put limitations on this rule, not on those who sought to take advantage of it.

Certainly there is no reason to limit the overall numbers of Canadian citizens. Every immigrant to Canada, as it has been said, brings two hands and a mouth: they are both workers and consumers, the supply to their own demand. The ills commonly ascribed to overpopulation are in fact the result of bad policy—most often a failure to price scarce resources properly. Get the prices right, as the economists say, and the most densely populated regions can be among the most liveable—indeed, higher density is widely prescribed as the secret to healthier cities.

This is obviously a very large argument, quite beyond the space available here. Suffice it to say that Shachar and I are agreed on the injustice of birthright citizenship, even if we disagree on the remedy. Shachar’s solution is to send money to the poor of other lands. Mine is to let them in. I think my solution is preferable for a couple of reasons. One, redistributing income is a lot different from redistributing opportunities. We can give money to the world’s poor, but they’ll still be stuck in the same hellholes that made them poor in the first place, whereas opening the doors liberates them to participate in the same system of laws, etc., that made us rich.

Two, if the redistribution Shachar envisages is not to be considered as aid, but as a legally binding obligation, the implication is precisely the sort of one-worldism she professes to abjure. You’d need some sort of supranational body with enforcement powers, which to be legitimate would require supranational elections (“no taxation without representation”). Good luck with that.

Be warned. Shachar’s prose style may best be described as feminist-brutalist. Words such as reify, discourses, privileges (as a verb) and reconceptualizing crop up frequently, often in the same sentence. The going is leaden, pretentious and mind-numbingly repetitive: the author never states a point once that she does not intend to beat into you dozens of times.

Still, Shachar makes an effective and impassioned case that we cannot avert our eyes from the injustice of current immigration law and the unearned privilege it confers upon the native-born majority. It is not sufficient justification that it pleases us.