Abolishing citizenship: resolving the irreconcilability between 'soil' and 'blood' political membership and anti-racist democracy

• Author: Steven Sacco
• Position: Practicing immigration lawyer since 2014
• Pages: 693-754

ABOLISHING CITIZENSHIP: RESOLVING THE

IRRECONCILABILITY BETWEEN “SOIL” AND

“BLOOD” POLITICAL MEMBERSHIP AND

ANTI-RACIST DEMOCRACY

STEVEN SACCO*

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 694

II. CITIZENSHIP AS RACISM AND ANTI-DEMOCRACY ............... 698

A. Citizenship as Race. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 698

1. Race Becomes Citizenship. . . . . . . . . . . . . . . . . . . . 700

2. Citizenship Becomes Race. . . . . . . . . . . . . . . . . . . . 711

3. Citizenship Racializes Citizens. . . . . . . . . . . . . . . . . 714

B. Citizenship as Anti-Democracy.................... 718

1. Citizenship Is Anti-Egalitarian. . . . . . . . . . . . . . . . . 718

a. Citizenship Is a Caste System ............... 718

b. Citizenship Is Anti-Feminist, Anti-Queer and

Anti-Worker . . . . . . . . . . . . . . . . . . . . . . . . . . . 721

2. Citizenship Is Anti-Libertarian. . . . . . . . . . . . . . . . . 725

3. Citizenship Is Doublethink.................... 727

III. ABOLISHING CITIZENSHIP .............................. 731

A. Jus Locus Political Membership . . . . . . . . . . . . . . . . . . . 733

* 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 restric-

tions. All opinions expressed herein are my own. I wish to thank my friend Sara Gozalo for her valuable

and thoughtful feedback on this piece. Many thanks to Prashasti Bhatnagar and the other student editors

of the Georgetown Immigration Law Journal for their fantastic editing work. I also must thank my best

friend and wife Elizabeth Reiner Platt for her review and suggested edits without which this Article would

be less clear and compelling. Finally, every word of the work is dedicated to anyone who has ever been

denied the rights of citizenship in the land they call home, in name or in practice, and those who resist this

exclusion, that they and the rest of us might live in a freer world. © 2022, Steven Sacco.

693

B. Replacing Citizenship ........................... 741

1. Implementing Jus Locus Law . . . . . . . . . . . . . . . . . . 741

2. Jus Locus Is Anti-Racist . . . . . . . . . . . . . . . . . . . . . . 745

3. Jus Locus Is Democratic . . . . . . . . . . . . . . . . . . . . . . 746

C. Post-Citizenship Reparations . . . . . . . . . . . . . . . . . . . . . 748

IV. CONCLUSION ...................................... 751

I. INTRODUCTION

Real 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.

1

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,

2

no borders,

3

the abolition of deporta-

tion,

4

or the end of citizenship as we know it

5

are too easily dismissed by their

opponents with the question: “How would that work?”

6

The inquiry is really

a claim disguised as a question; it asserts that if a political idea cannot be

1. See, e.g., Jason DeParle, The Open Borders Trap, N.Y. TIMES (Mar. 5, 2020), https://perma.cc/

45M9-8TWP (“[I]t’s impossible to let them all in. Hence, the need to set limits and enforce them

humanely.”); Bill Keller, What Do Abolitionists Really Want?, MARSHALL PROJECT (June 13, 2019),

https://perma.cc/4R3T-MG73 (quoting critics of prison and police abolition: “there is always going to be

some role for prisons”); Gabriella Paiella, How Would Prison Abolition Actually Work?, GQ (June 11,

2020), https://perma.cc/KUR3-RRHT (“Prison abolition is an idea, when first encountered, that can feel

incredibly radical and infeasible.”).

2. See, e.g., Roger Nett, The Civil Right We Are Not Ready For: The Right of Free Movement of

People on the Face of the Earth, 81 ETHICS 212, 212–27 (1971); Jesús Huerta de Soto, A Libertarian

Theory of Free Immigration, 13 J. LIBERTARIAN STUD. 187 (1998); Kevin R. Johnson, Open Borders?, 51

UCLA L. REV. 193 (2003); TERESA HAYTER, OPEN BORDERS: THE CASE AGAINST IMMIGRATION

CONTROLS (2d ed. 2004); Antonia Darder, Radicalizing the Immigrant Debate in the United States: A

Call for Open Borders and Global Human Rights, 29 NEW POL. SCI. 3 (2007); JOSEPH CARENS, THE

ETHICS OF IMMIGRATION (2013); BRYAN KAPLAN & ZACH WEINERSMITH, OPEN BORDERS: THE SCIENCE

AND ETHICS OF IMMIGRATION (2019); Beth Caldwell, Reflections on the Right to Move Freely Across

Borders, 50 SW. L. REV. 359 (2021).

3. See, e.g., Bridget Anderson, Nandita Sharma & Cynthia Wright, Editorial: Why No Borders?, 26

REFUGE 5, 5–11 (2009); NATASHA KING, NO BORDERS: THE POLITICS OF IMMIGRATION CONTROL AND

RESISTANCE (2016); HARSHA WALIA, UNDOING BORDER IMPERIALISM (2013) [hereinafter UNDOING

BORDER IMPERIALISM]; Daniel Bier, Open Borders or No Borders?, FOUND. FOR ECON. EDUC. (Oct. 15,

2015), https://perma.cc/U3T5-7EWW; HARSHA WALIA, BORDER & RULE: GLOBAL MIGRATION,

CAPITALISM, AND THE RISE OF RACIST NATIONALISM 213 (2021) [hereinafter BORDER & RULE].

4. See, e.g., Tina Vasquez, Abolish ICE: Beyond a Slogan, REWIRE NEWS GRP. (Oct. 10, 2018, 7:00

AM), https://perma.cc/37TQ-SGCQ; Natascha Elena Uhlmann, ABOLISH ICE: A PASSIONATE PLEA FOR A

MORE HUMANE IMMIGRATION SYSTEM (2021).

5. See, e.g., JACQUELINE STEVENS, STATES WITHOUT NATIONS (2009); NANDITA SHARMA, HOME

RULE: NATIONAL SOVEREIGNTY AND THE SEPARATION OF NATIVES AND MIGRANTS (2020).

6. See, e.g., MICHAEL BLAKE, JUSTICE, MIGRATION, AND MERCY 17–47 (2020) (arguing that open

borders will not work); Daniel Molina, Rubio Question’s Biden’s Deportation Freeze, FLORIDIAN PRESS

(Jan. 25, 2021), https://perma.cc/TRT6-SRKH (quoting Florida Senator Rick Scott saying “open borders

. . . won’t work”); Stu Bykofsky, The Pope Gets Us Wrong on Immigration, PHILA. INQUIRER (Sept. 28,

2015), https://perma.cc/2QHQ-UKZU (“As a politician who heads a state . . . the pope knows open

borders won’t work.”); Richard Epstein, Immigration Without Open Borders, RICHOCHET (Feb. 9, 2022),

https://perma.cc/UE7H-69BR (“There are many permutations that work, but open border isn’t one of

them”).

694 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:693

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.”

7

It is “an instrument and object of clo-

sure”

8

that makes political membership an exclusive club and limits rights

and liberties to its members.

9

I consider here all immigration rules and regu-

lations as part of that law, including border enforcement, and even non-immi-

gration laws that distinguish between citizen and noncitizen such as voting or

public benefits laws.

10

Together these legal constructs constitute the rules for

inclusion in and exclusion from political membership.

11

Citizenship and im-

migration laws police this membership and guard its exclusivity.

12

These

laws are enforced through “legal violence”

13

of borders, prison camps, sur-

veillance, 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.

14

The former is referred to as “jus sanguinis,” or “right of blood,” citizenship

15

and the latter as “jus soli,” or “right of soil,” citizenship.

16

Together they are

sometimes called “birthright citizenship,” or simply “soil and blood,”

17

or

“blood and soil.”

18

The invocation of the same words and phrase used to

spread genocidal ideology in Nazi Germany is neither an accident nor

7. YASEMIN NUHOG

˘LU SOYSAL, LIMITS OF CITIZENSHIP: MIGRANTS AND POSTNATIONAL

MEMBERSHIP IN EUROPE 120 (1994).

8. ROGERS BRUBAKER, CITIZENSHIP AND NATIONHOOD IN FRANCE AND GERMANY 23 (1992).

9. AYELET SHACHAR, THE BIRTHRIGHT LOTTERY: CITIZENSHIP AND GLOBAL INEQUALITY 14 (2009).

10. SHARMA, supra note 5, at 202.

11. MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA

5 (2004).

12. SOYSAL, supra note 7, at 120.

13. See Cecilia Menjı

´var & Leisy J. Abrego, Legal Violence: Immigration Law and the Lives of

Central American Immigrants, 117 AM. J. SOCIO. 1380, 1380 (2012).

14. See, e.g., Yasmeen Serhan & Uri Friedman, America Isn’t the ‘Only Country’ with Birthright

Citizenship, ATLANTIC (Oct. 31, 2018), https://perma.cc/5NKH-H6J5.

15. DIMITRY KOCHENOV, CITIZENSHIP 61 (2019).

16. Polly Price, Jus Soli and Statelessness: A Comparative Perspective from the Americas, in

CITIZENSHIP IN QUESTION: EVIDENTIARY BIRTHRIGHT AND STATELESSNESS 27 (Benjamin N. Lawrence &

Jaqueline Stevens eds., 2017) [hereinafter CITIZENSHIP IN QUESTION].

17. See, e.g., Mae M. Ngai, Birthright Citizenship and the Alien Citizen, 75 FORDHAM L. REV. 2521,

2527 (2007); Peter Wade, Race, Ethnicity, and Nation: Perspectives from Kinship and Genetics, in RACE,

ETHNICITY, AND NATION: PERSPECTIVES FROM KINSHIP AND GENETICS 1,11–12 (Peter Wade ed., 2007).

18. See, e.g., Riva Kastoryano, Citizenship and Belonging: Beyond Blood and Soil, in THE

POSTNATIONAL SELF: BELONGING AND IDENTITY 120, 120–36 (Ulf Hedetoft & Mette Hjort eds., 2002);

David S. Law, Alternatives to Liberal Constitutional Democracy, 77 MD. L. REV. 223, 228 (2017);

Shachar, supra note 9, at 127.

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