The Birthright Lottery: Citizenship and Global Inequality.

• Author: Marr, Emily
• Position: Book review

THE BIRTHRIGHT LOTTERY: CITIZENSHIP AND GLOBAL INEQUALITY. By Ayelet Shachar. Cambridge and London: Harvard University Press. 2009. Pp. xiii, 273. $39.95.

INTRODUCTION

The American Dream is a trope with global reach. (1) Although the "city upon a hill" (2) may have lost some of its luster in recent years, (3) the idea that America is a country where citizens can rise above "the fortuitous circumstances of birth or position" (4) largely continues to resonate. (5) Professor Ayelet Shachar's (6) provocative new book, however, suggests otherwise.

In The Birthright Lottery, Shachar condemns birthright citizenship laws as a feudal anachronism analogous to an inherited-property regime. For her, birthright citizenship in a prosperous nation confers a morally arbitrary windfall that determines life opportunities (pp. 4-7). Shachar further argues that in a world of material inequalities, the winners of the "birthright lottery" live large at the losers' expense (pp. 10-11, 22, 70, 98), often with deadly results (pp. 12, 105).

Shachar's arguments, if embraced, profoundly undermine both the feasibility and the desirability of the American Dream. (7) If birthright citizenship is akin to entailed property, it is impossible to meaningfully exercise the agency embodied in the American Dream. And if birthright citizenship really is a zero-sum game, anybody living the American Dream is necessarily responsible for somebody else's nightmare.

Shachar offers two remedies. First, she proposes a redistribution of opportunity on a global scale through a "birthright privilege levy" on prosperous nations (p. 96). Second, she advocates the rejection of the birthright citizenship regime in favor of a "jus nexi" approach where citizenship is based on a "genuine connection" to a sovereign (p. 164).

This Notice commends Shachar's contribution to the well-trod citizenship debate, but argues that both her indictment of birthright citizenship and her proposed solutions ultimately fall short. Part I situates The Birthright Lottery in the context of the literature and celebrates its contributions. Part II challenges Shachar's citizenship-as-entailed-property analogy, which she presents as the foundation for her analysis (p. 3). Part III considers Shachar's two proposals for citizenship reform. A consideration of The Birthright Lottery in the context of the American Dream concludes.

1. SHACHAR'S CONTRIBUTIONS TO THE CITIZENSHIP DEBATE

   Shachar describes her book as a "comprehensive and iconoclastic" critique of worldwide birthright citizenship laws (p. xi). This grandiose characterization is fitting: her multidisciplinary analysis covers enormous intellectual territory (8) with impressive originality.

   This is no small accomplishment. Citizenship is one of the most hackneyed topics in both the academic and political arenas, and Shachar manages to make contributions in both realms. In the academic context, she engages three bodies of literature: "[C]itizenship studies in contemporary political and legal scholarship, global inequality debates, and sociological accounts of the demise of borders in the context of post-national theorizing" (p. 13). Although her work is informed by these writings, she transcends each of the genres by "juxtaposing these different lines of inquiry" and "highlight[ing] the paucity of attention paid to birthright membership" (p. 14). shapes the polity from the inside-out, and not just the outside-in. This is significant because the status of 97 percent of the world's population--those who keep their citizenship assigned at birth--is typically ignored in citizenship debates (p. 11).

   By thoroughly examining who belongs in a polity and why, The Birthright Lottery earns Shachar's "iconoclastic" label (p. xxi). As she explains, the current citizenship debate obscures "the presumed naturalness of birth-based membership" (p. 26). The perceived naturalness of birthright citizenship is at least partly responsible for exclusionary anti-immigrant rhetoric: citizens routinely invoke their status with a striking sense of moral superiority. In this context, even the simple reminder that there is "nothing apolitical or neutral about these birthright regimes" is powerful (p. 10). Shachar's book exposes the reality that birthright citizens enjoy the spoils of the birthright lottery only because of morally arbitrary legal constructs. In doing so, she makes possible a new kind of conversation about citizenship. Given the centrality of citizenship--in terms of both global politics and individual identity--this alone makes the book worth reading.

2. CITIZENSHIP AS INHERITED PROPERTY

   Shachar's citizenship-as-inherited-property analogy permeates the entire book. For her, the analogy "creates a space in which to explore membership entitlement in the broader context of today's urgent debates about global justice and the distribution of opportunity." (9) This Part argues that while the analogy is rhetorically powerful, it is ultimately unpersuasive.

   1. The Analogy

      Shachar employs her citizenship-as-inherited-property analogy to identify "surprising commonalities in both form and function between ... antiquated approaches to property transmission and present-day birthright principles that regulate access to bounded membership" (p. 23). The antiquated approach to property that Shachar condemns is the "long discredited institution of the fee tail" (p. 38). Its function, she explains, was to create a "legal means of restricting future succession of property to the descendants of a designated person" (p. 38). Shachar argues that birthright citizenship similarly takes the form of an intergenerational wealth transfer (pp. 24-27) that is itself a valuable form of property (pp. 33-38). For Shachar, the function of birthright citizenship is to "advantag[e] those who have access to the inherited privilege of membership, while disadvantaging those who do not" (p. 10). Once the commonalities between entailed property and birthright citizenship are revealed, Shachar concludes, the analogy should be self-evident (p. 10).

      Shachar grounds the similarities between entailed property and birthright citizenship in a historical exploration of the early common-law mechanisms of entailed estates (pp. 38-43). She notes that while "the legal institution of entail ... migrated to North America with the English colonists.... [i]t should come as no surprise that this aristocratic method for preserving land in the sole dominion of certain families.., sparked the ire of American revolutionary reformers" (p. 39). Americans ultimately rejected (10) this "feudal encrustation[]" (p. 39), she explains, for three primary reasons (pp. 39-41). First, it created an aristocratic class in perpetuity by "guarantee[ing]...