Illustration by Conor Haynes-Mannering.

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No Citizenship is No Utopia

Rebutting Clichéd Preliminary Objections against Citizenship Abolitionism

05.05.2022

The word ‘utopia’ has come to denote a near-perfect social order. However, perhaps due to the awful violence unleashed by various 20th Century regimes in pursuit of supposed utopias, the label ‘utopian’ today is often used pejoratively to condemn an ideal as naïve, unfeasible, excessively radical, and potentially dangerous. While some ideals probably deserve such condemnation, the ‘utopian’ label all too often conceals a knee-jerk pro-status quo bias against novel ideals which may be coherent, feasible, and well-formulated solutions to real-life injustices. This reactionary rhetorical strategy sets up the person employing it as a voice of (cynical) moderate reason against the ‘utopian’ position, often while circumventing any substantive engagement with it. Such unreasoned false equivalences drawn between novelty and impracticality serve as a “disguised defence of an unjust status quo”.

Citizenship abolitionism, a moral and political ideal first expounded by Dimitry Kochenov, seems particularly vulnerable to being straw-manned as an extreme ‘utopian’ position through the use of such rhetoric. This may explain why so far (to my knowledge), only Kochenov has been willing to publicly and unambiguously advocate for it in an academic context. The purpose of this piece is to clarify what citizenship abolitionism is, and then to dismiss several common but inaccurate clichés regarding the indispensable nature of citizenship that are at least partly responsible for the ease with which the stance is written-off as utopian. The hope is that this will encourage greater substantive engagement with citizenship abolitionism’s normative arguments and open up space for discussion regarding how the ideal might be implemented.

What is Citizenship Abolitionism?

As citizenship can mean many different things, a prerequisite to understanding what is meant by ‘abolitionism’ is identifying the sense in which ‘citizenship’ is being used. Citizenship abolitionism is primarily motivated by opposition to unjustified legal discrimination on the grounds of citizenship, and thus it is citizenship status – which is in almost all contexts equivalent to nationality – that abolitionists hope to abolish. This is because citizenship status (or the lack thereof) is the primary legal element from which other legal consequences flow; citizenship rights and duties are derived from citizenship status. At international law, the competence to assign nationality is the near sole prerogative of nations (Articles 1-2, Hague Convention 1930), and most pertinent international agreements limiting this prerogative aim to prevent statelessness (e.g. Convention on the Reduction of Statelessness 1961), which further strengthens the citizenship-link between individuals and states across the globe. Citizenship status almost always affords citizens the right to enter ‘their’ state, but it often hinders them from entering others. This is due to the widely accepted right of sovereign states to exercise a near-absolute discretion in determining whether to admit prospective non-citizen entrants.

As the rules that states make for assigning citizenship are often rather silly, and in any case, inconsistent from country to country, citizenship abolitionists take the moral position that citizenship status is ultimately arbitrary and as morally irrelevant as race or sex. Thus, abolitionists view the ubiquitous practice of discrimination against non-citizens (the logical flipside to equality among citizens) as an unjustified departure from the moral principle – today embodied in many other areas of law – that unequal treatment ought not result from morally irrelevant characteristics, i.e. the principle of non-discrimination. This is not simply a case of discrimination in favour of the in-group (citizens) over an out-group (non-citizens), for many jurisdictions’ rules on immigration, residency, and even elections favour non-citizens of certain nationalities over non-citizens of others. Thus, when a non-citizen shows up at a nation’s border, their treatment under national law often depends not on their suitability, linguistic skills, or personal allegiances, but upon the foreign nationality that they happen to have been assigned. Even when national rules do take linguistic ability and the like into account, whether such rules are actually applied against a particular individual again often depends on which nationality they hold. Citizenship abolitionists consider this status quo to amount to an objectionable birth-based caste system, shored-up by immigration controls, and perpetuating geographical inequalities forged under imperialism. Additionally, despite their close association, abolitionists consider citizenship to be a poor vehicle for democracy. This is because a citizen-democracy’s territory often contains a sizable population of resident non-citizens who pay for and live under the laws of an authority that they cannot influence at the ballot box. Further, citizens who choose to live abroad and out of reach of ‘their’ sovereign’s laws and tax system often retain the right to vote. Whether one prefers no taxation without representation, consent of those subject to the laws, or some other maxim, this not-uncommon disconnect between the territorial population and citizenry undoubtably complicates popular justifications for democracy.

Scholars such as Peter Spiro and Joseph Carens have made similar arguments problematising citizenship, and while they have also proposed solutions, none are as neat, radical, and thus liable to accusations of ‘utopianism’ as citizenship abolitionism’s. Kochenov’s Ending the Passport Apartheid; The Alternative to Citizenship is No Citizenship is probably the most concise elucidation of the abolitionist creed. It argues that because the injustice of birth-based legal privilege results directly from differential citizenship status, the proper remedy is citizenship status’ wholesale abolition. But any suggestion that citizenship be abolished immediately raises practical objections: e.g., if a state declared their entire population mere residents, their now ‘denaturalised’ population would face significant obstacles travelling abroad. But this objection misses the point, for it is based upon a disingenuous, literalistic interpretation of Kochenov’s the alternative to citizenship is no citizenship slogan. A more reasonable interpretation of the principle that the slogan encapsulates is the admittedly less catchy: nationality ought not be relevant for any legal purpose. Applying this principle absolutely would solve the legal discrimination problem, and (in democracies) would necessitate reorganising elections on the basis of residence alone, thus solving the democratic problem. Abolitionism is a political ideal with practical limitations: the point is not formal, uncoordinated, and as noted above, potentially inconvenient abolition of the legal status for the sake of it, but the removal of nationality-based discrimination as far as practicable under both national and, if possible, supranational law.

Is Citizenship Abolitionism ‘Utopian’?

As defined above, citizenship abolitionism’s goals are moderate enough to be regarded as an extension of extant trends; the military conscription of citizens has been abolished in many jurisdictions, and tax liability is now determined based on residence in the vast majority of countries. However, these developments are uneven: in the areas of immigration law, voter eligibility, and social rights, the trend is reversed (i.e. there is an ever-closer association between citizenship status and rights). But Whiggish history aside, historical trends have no necessary moral significance. However, before the moral arguments for abolitionism can be convincingly advanced, pejorative accusations of ‘utopianism’ must be pre-emptively rebutted. This task is complicated by widespread complacent assumptions about the necessity of citizenship for maintaining desirable features of the status quo. To this end, I shall demonstrate below that citizenship is not the indispensable foundation of the continued existence of the liberal democratic system that several tired clichés purport it to be: it is not ‘the right to have rights’, not ‘a prerequisite for democracy’, rarely is it meaningfully ‘constitutionally entrenched’, and it is not ‘essential for (border) security’.

“The Right to have Rights”

Traditional sociology on the subject defines citizenship as equal access to equal rights for all of the ‘full members’ of society, often telling rose-tinted narratives about how it achieved legal equality and democratic self-governance by overcoming widespread pre-modern notions of natural (social) inequality accompanied by legal privilege. T.H. Marshall’s influential narrative argues citizenship first brought about equality in civil rights (by which he means inter alia personal liberties, contractual, and property rights), then political rights, and then social rights. This ‘sociological’ definition differs from the legal meaning of citizenship status. While the legal status itself is equal among citizens, whether that status guarantees their equal rights and/or denies non-citizens theirs’ is a matter to be decided by the relevant legal system. A brief overview of the UK’s legal history of citizenship – the country whose history Marshall’s narrative was purportedly founded upon – reveals that citizen/subject status has never been tied to civil rights in the Marshallean sense, while the relevance of citizenship in the exercise of political and social rights has varied enormously over time.

Associating effective rights with full membership also leads to an inevitable but undue nationalistic bias in Marshall’s account. This obfuscates the de facto advances in individual rights gained through regional trends towards affording many traditional citizenship rights to all (legal) residents. Whether this is effected through international and regional human rights law, supranational ‘internal markets’, or unilateral decisions on the national level, such gains in the de facto and de jure equal rights among individuals are by definition premised upon lessening the importance of the pairing of individuals and states through the intermediary of citizenship status. The ‘citizenship is the right to have rights’ cliché is nothing but ahistorical circular reasoning; citizenship is the basis of equal rights only insofar as the law makes it so. The status and – more importantly – which rights come with it and which despite it, are, to repurpose the words of Lord Hoffman, “creature[s] of the law. The law gives… [them] and the law may take… [them] away.”

“A Prerequisite to Democracy”

Although the meaning of democracy is itself contestable, the franchise-citizenship connection throughout much of the world is fairly straightforward: citizens – who are full members of the national community – may vote, while non-citizens may not. But democracy need not be organised on the basis of citizenship. Neither the UK nor New Zealand reserve franchise to citizens alone; in the UK, legally-resident ‘qualifying commonwealth citizens’ have the right to vote (and stand) in elections, while in New Zealand, anyone legally resident for over twelve months may vote (s 74, Electoral Act 1993), though only citizens may stand in elections (s 47(3), Electoral Act 1993). Until recently in both jurisdictions, time spent abroad led to the loss of citizen voting rights; New Zealand still removes the right following an absence of over three years, though it can be reclaimed by simply visiting the country (ss 73 and 80, Electoral Act 1993), while UK law until very recently removed the right following 15 years of non-registration as a resident voter, with re-registration as a resident voter being necessary to restart the clock (ss. 1(3), 1(4), 3(3), and 3(4) Representation of the People Act 1985, as amended by the Representation of the People Act 2000, as amended by s 141 Political Parties, Elections and Referendums Act 2000). However, the UK’s Elections Act 2022 did away with the latter scheme, and British Citizens who live abroad now have voting rights for life.

As stated in part i, many of the oft-stated normative justifications for democracy – such as no taxation without representation or consent of the governed – are more convincingly fulfilled by residence-based than by citizenship-based voter-eligibility laws. While it is true that residency is not the sole criteria for the franchise in the UK or in New Zealand (i.e. citizenship status is relevant), and these jurisdictions’ idiosyncratic voter-eligibility laws result more from the piecemeal transition from Empire to nation-state than any anti-citizenship sentiments, this way of doing things decisively demonstrates that the contemporary trend towards exclusive citizen franchise is merely a political choice; i.e., a residence-based democracy is a feasible alternative.

“Constitutionally Entrenched”

It could reasonably be argued that the US Constitution’s Fourteenth Amendment’s Citizenship Clause – added during an unrepeatable, extraordinary ‘constitutional moment’ – has facilitated at least the formal recognition of the equality before the law of all persons ‘naturally born’ in America (United States v. Wong Kim Ark, 169 U.S. 649 (1898)). Although this paradigm continues to permit the exclusion of non-citizens, contesting the entrenched position of citizenship would be excessively difficult, as constitutional amendments concerning contentious issues are nigh-impossible (see Article V, United States Constitution), as well as dangerous, for politics could steer any amendment process towards weakening or reversing the Amendment’s substance and the progressive caselaw founded upon it. Considering this, Kochenov’s assertion that citizenship has ‘no bright side’ may seem to ring hollow to those learned in the US constitutional tradition. But this argument again adopts the uncharitably literalistic interpretation of the citizenship abolitionist stance that was dismissed in part i; while it may be undesirable to risk initiating a process to repeal-and-replace the Fourteenth Amendment to make it ‘citizenship-neutral’, legislatures remain free to legislate towards fulfilling abolitionism’s primary goal by ensuring that non-citizens are afforded equal legal treatment. In practice, they tend to do the opposite, mandating (or at least encouraging) nationality-based discrimination in areas where the constitution is silent (see e.g., 18 U.S.C. § 611).

In any case, such constitutional objections are less applicable throughout Europe. Under Parliamentary Sovereignty, in its strong UK form and weaker forms elsewhere, basically any law can be changed with sufficient political will. Even in European countries where the legislature is comparatively constitutionally constrained, amendments are usually possible by Parliamentary supermajority or via popular referendum. Thus, even in the rare case where nationality-based discrimination is constitutionally mandated, a reversal by constitutional amendment is feasible. For example, as the German Constitutional Court had previously ruled that non-citizens may not vote (e.g. BVerfGE 83, 37 – Ausländerwahlrecht I), the Grundgesetz was promptly amended once this was required for Maastricht Treaty compliance purposes (Artikel 28 GG, as amended in 1992 to allow resident EU citizens to vote in German local elections). In any case, constitutions are rarely the culprit; most discrimination against non-citizens is the result of ordinary political decisions translated into ordinary law.

“Indispensable for (Border) Security”

This cliché exemplifies two biases that seem to motivate most knee-jerk reactions to citizenship abolitionism. The first is the understandable preference for the status quo when practical alternatives are difficult to imagine, a bias perhaps best encapsulated by the phrase ‘if it aint broke, don’t fix it’. Border security is a legitimate concern, and even the idealistically open-borders Carens concedes that border guards may on occasion have a moral duty to prevent “criminals, subversives, or armed invaders” from freely crossing borders. Practically and by long-standing custom, the main mechanism available to border guards to do this are passports issued by other states. Subsidiary mechanisms such as criminal records databases rely on a degree of interstate cooperation that may not be forthcoming. But the issue here is not really about nationality, but about gathering intelligence on criminal activity. Say for example that an individual turns up at a border with a passport issued by a country with which there exists no reciprocal criminal database sharing agreements. If they were required to provide an official criminal record check or equivalent, a citizenship abolitionist would not lose sleep over this providing that such a requirement was proportionate, necessary, clear in advance, and possible to fulfil without undue burden in the prospective entrant’s ‘home’ state. Again, the target of abolitionism is not the formal status and the passport that comes with it per se, but any morally unjustified discrimination that results therefrom.

If passport-based discrimination at borders only went this far, abolitionists would not be so troubled. The actual status quo can only be explained by bringing a second bias into the analysis: xenophobia. Although many states have laws against racial discrimination – and particularly vitriolic expression of such sentiments is likewise unacceptable in many countries’ political discourse – the inevitably (and often intentionally) racist practice of nationality-based discrimination at borders goes much further than requiring extra documents. This discrimination against non-citizens is seldom uniform; most countries’ immigration policies discriminate against different nationalities to different extents. Unless one thinks that a person from one place is inevitably more dangerous than a person from another (in other words, unless one is xenophobic), such practices are simply unjustified. Even if statistics showed higher rates of criminality among people from a particular country, the abolitionist would point out that modern individualistic conceptions of justice frown upon collective punishment in all other areas, and the use of an individual’s nationality as a proxy for assessing the risk they pose constitutes not only discrimination but collective punishment. A large company declaring a comparable policy motivated by prejudice against a particular nationality would face considerable backlash and (in many jurisdictions) legal consequences. If one wants evidence of racist global hierarchies without having to delve into the often unfalsifiable claims of critical race theory and the like, the global passport apartheid is a good place to start.

Concluding Remarks

It is disingenuous to characterise political and moral ideals as utopian solely on the basis that they cannot be implemented perfectly. While eliminating nationality-based discrimination absolutely is probably infeasible at this stage, reducing it as far as practicable does not necessitate a passport-less utopia. The extent to which nationality-based discrimination can be reduced must be determined by empirical examination, and the extent to which it will be reduced depends upon political will. It is the latter that lags behind the former. Even advancing the debate to the issue of feasibility under current conditions would represent a significant victory for citizenship abolitionists. Abolitionism’s opponents continue to raise endless unfounded objections of the type outlined throughout this piece. This serves as an evasion strategy which allows them to postpone conceding the self-evident truth that lacking citizenship status is a morally irrelevant – and thus morally unjustifiable – ground for discrimination. Until this evasion is overcome, a discussion of the feasible extent to which citizenship abolitionism’s noble ideals can be achieved remains impossible.

 

Autor/in
Joshua Edward Haynes-Mannering

Joshua Edward Haynes-Mannering is an SJD Candidate in Comparative Constitutional Law and an English-language Proofreader at the Legal Department of Central European University in Vienna. His research focuses on domestic legislative sovereignty from a comparative historical perspective in the United Kingdom and People’s Republic of China.

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