Property and citizenship are intrinsically linked through arbitrary legal definitions that base ability to own and control under the notion of citizenship. This is easily broken and bent by powers that seek to surveil and seize properties from those they deem as not deserving. Instead the alternative calls for an abolition of the notion of Citizenship

As every first-year law student quickly learns, property rights are a bundle of sticks. An absolute landowner has a full bundle—to use, sell, and possess as she sees fit. That buddle can be split out, with a renter getting some of the rights—to reside on and utilize the land—while the owner retains the remaining rights.

We might not intuitively think of citizenship as property, but nationality is defined by its bundle of rights. There are of course the fundamental rights we most associate with citizenship. The right to full political participation, free movement within the country, equal legal status, freedom to pursue employment, and freedom from the threat of expulsion leap to mind. However, the distinctions between citizens and non-citizens run deeper. In the American context, the state can more easily surveil non-citizens or deny them access to Medicaid or government employment.

The modern result is that each country bundles up its citizenship rights. Citizens get all of them and non-citizens get none. Even more so than property, the privileges of citizenship tend to be monopolized rather than equitably shared under a ‘free market’-type theory. Only 3 percent of the world’s population manage to acquire a new citizenship during their lifetime. “Everyone else is largely ‘trapped’ by the lottery of their birth…from cradle to grave.”

Professor Joseph Carens described this as “the modern equivalent of feudal class privilege.” The late feudal system offered myriad different bundles of privileges, freedom from taxation, reduced legal punishments, eligibility for high offices, manorial rights, and more were dividing out largely on the basis of birth. A precious few, usually the wealthy and educated, managed to move into the nobility by marriage or through noblesse de robe, where holders of certain official positions would grant nobility over time. When the state needed to raise funds, venal offices (usually judgeships) could be outright bought to offer a pathway into the nobility. 

“To be born a citizen of a rich state in Europe or North America is like being born into the nobility,” according to Carens, “contemporary social arrangements not only grant great advantages on the basis of birth but also entrench those advantages by legally restricting mobility, making it extremely difficult for those born into a socially disadvantaged position to overcome that disadvantage, no matter how talented they are or how hard they work.”

Whether original citizenship is granted through jus soli (though birth within a territory) or jus sanguinis (through decent), the result is nearly the same—citizenship is near uniformly passed from parents to children. The lottery of birth acts as a golden cage for nearly everyone. Like the feudal system, there are small exceptions. Some few can ‘earn’ naturalization in the vein of the noblesse de robe and the ultra-wealthy can outright buy ‘golden visas’ that swiftly turn into a new passport, even during the ongoing pandemic.

To Carens, “It is the linkage between freedom of movement and equality of opportunity that the analogy with feudalism cuts most deeply.” The bundle of citizenship rights places you on a spectrum of modern nobility and peasantry. The threshold rights of where you can go, who you can interact with, and what opportunities are available to you are defined nearly exclusively by birth and wealth.

In August 1789, during the first months of the French Revolution, the National Assembly passed a run of ordinances that dismantled the whole feudal structure (pictured in the etching above). Over a handful of hours on August 4th alone, nobles lost their feudal dues, prerogatives, tax-exemptions, and legal advantages. Veneal offices ended. Article I went straight to the point: “The National Assembly hereby completely abolishes the feudal system entirely.”

“What is most striking [about the August Declarations and their aftermath] is the extent to which nobles accepted all this.” It took months and years to fully iron out the details of the new system. But the change was essential; outside of France, the nobility waxed into irrelevance where it was not abolished. While, Carens proceeds from his feudal analogy to argue that open borders are a moral imperative, the remainder of this essay instead investigates the intertwined but distinct question of citizenship. After all, citizenship is the noble rank itself. What would a modern assembly throwing off the ancient régime of citizenship look like?

The Failure of Proxy

Nearly every modern state determines citizenship largely on the basis of the decent-based jus sanguinis or territoriality-based jus soli. Alternatives have been floated, ranging from jus nexi (citizenship based on social connections) and jus temporis (citizenship based on time in the country) to jus situs (citizenship based on physical location). It should be noted that not all proponents of these alternatives would pass the full bundle of citizenship, but instead a permanent-residency-like right to remain.

Regardless of which bit of Latin we choose to follow jus, the issue remains the same. We are looking for a proxy that can capture when somebody is owed the full bundle of citizenship rights. The sheer scope of citizenships rights undermines the project from the outset.

It is absurd to assume that a single test determines who all at once now deserves to vote, remain in the country, seek out work and opportunity, have equal access to government programs and hiring, have full legal protections, be considered part of the national community, be subjected to the draft, et cetera.

Jus sanguinis and jus soli write off the whole complexity by using the proxy of birth. Those born to the ‘right’ parents or in the ‘right’ place get the full suite. Is the Dreamer who has lived in the United States for virtually their whole life less deserving of the right to remain in the United States than the child of jet setter parents whose full American experience is contained in JFK and LaGuardia airports?

Similarly, jus nexi and jus temporis proxy in social connections for who deserves the bundle. Assuming we can satisfactorily measure social connections, this would resolve our Dreamer-jet setter dilemma but we are presented by two separate issues. First, at what point does one’s social ties justify the simultaneous access to the full suite of rights? The right to remain, to vote, and to seek out work may all arguably be ‘earned’ at different dates. Secondly, the real question of are social ties really the metric we want to use for who has a voice in our government, access to government aid, or equal protection in our legal systems? The naturalization process presents these same issues.

Professor Ochoa Espejo raises the idea of using physical presence in a community to imply a right to stay there. She explains how “an individual who is not an official part of the local collectivity lacks a right to participate in the cooperation schema and is forced to free ride [because] a noncitizen needs rights sufficient to be part of the collective schema and a right to stay in the vicinity long enough to discharge the place-specific duties she may have acquired there.” This offers a solution to the issue of borders, but as Professor Ochoa Espejo indicates, it does not offer the answer to when the full suite of citizenship rights are owed to non-citizens.

Simply put, we need to stop trying to find one answer to dozens of questions of rights.

Abolishing Citizenship

The solution for our hypothetical Assembly is straightforward, “Article I: The National Assembly hereby completely abolishes citizenship entirely.”

This solution is not as radical as it first seems. Our Assembly suggests that we simply (1) break apart the bundle of citizenship rights and (2) determine for each of those rights who they should belong to. In short, an individualized approach to citizenship.

This solves the issue of finding the magic moment that the full suite of citizenship rights is vested. The question instead becomes how do we want to decide who has the right to remain and work in the country (or, indeed, if that right is automatically vested). What should we consider before extending the right to vote or hold office?

These questions certainly do not have simple answers. Many of them will require us to rethink the relationship between civil and human rights to answer. The point is we should be at least trying to answer these questions instead of relying on the omnibus catchall of “citizenship” to flatten the complexity of modern societies.

Looking beyond citizenship is not novel, courts regularly do so explicitly or implicitly. For instance, Friedrich Nottebohm was a German citizen who had spent the vast majority of his adult life in Guatemala running banks and coffee plantations, though he never acquired Guatemalan citizenship. When the Second World War began, Nottebohm visited Lichtenstein and, essentially, bought Lichtenstein citizenship and renounced his German citizenship. Despite this precaution, shortly after his return to Guatemala, Guatemala and the United States interned him as a German citizen and seized his property.

Following the war, the International Court of Justice addressed whether Lichtenstein could claim Nottebohm as a citizen and sue for his property. While on paper he was a Lichtenstein citizen, the Court looked for a “real and effective nationality, that which accords with the facts,” based on factors like: habitual residence, the center of interests, family ties, participation in public life, attachment shown, and inculcation of the culture in one’s children. The Nottebohm case is remarkable because the Court outright rejected one nation’s claim of citizenship because the claim was so out of accordance with what citizenship was supposedly a proxy for (there, national belonging).

None of this is to say that the Nottebohm factors are a particularly good model, but, rather, simply to show the desirability of directly addressing the questions that citizenship is acting as a proxy for.