Jus Soli

Trigger Warning: racism, anti-immigration politics, deportation, antisemitism, antiziganism, fascism, The Holocaust, slavery

Last night, Melissa Harris-Perry filled in for Rachel Maddow on the latter’s nightly news program and brought to light a worrying political process happening within the Republican presidential primary. Before Donald Trump’s entry into the race, the immigration policies that dominated were variations on a light-handed approach designed to avoid alienating the increasingly nativist Republican base or the growing Latin@ share of the electorate.

His bombastic arrival stuck out so much because of its overt hostility towards Latin@ immigration, and his campaign has maintained its sizable lead by calling most recently to dismantle jus soli – the “right of the soil”, or in plain English that location of birth can create citizenship. Harris-Perry noted that the various Republican competitors looking to unseat Trump as frontrunner have decided to jump on board, at least becoming willing to consider dismantling the birthright citizenship system central to not only US law but also this country’s image of itself.

jus soli
This would make the US only the second mainland American country to not have total jus soli. In the above map the darkest blue countries have absolute jus soli, light blue with restrictions, and pale blue previously had and have since abolished. From here.

The inevitable question that dismantling jus soli as a legal principle leads to is this – what are we doing instead? The legal world by and large contrasts jus soli with jus sanguinis, the “right by blood”. There are fewer world maps of countries proudly proclaiming they maintain citizenship and related legal rights as a matter of bloodlines, and for obvious reasons. It’s generally a remaining legal practice from earlier, imperialistic, undemocratic eras.

Throughout Europe, jus sanguinis largely became practice as a way of retaining the citizenship of members of the same ethnic group, scattered across conquered holdings away from their nation’s core population. To the extent that jus sanguinis has a democratic history, it’s one tarnished in the long view of history. It echoes a kind of classical Athenian democracy, reserved for a minority of unenslaved men with the right pedigrees.

That notion of citizenship was the norm for most of democracy’s history in Europe, first under Greek and Roman governments that all steadily descended into a toxic mix of corruption and imperial ambitions. Those ideas about democracy later resurfaced with that particular legal quirk in the Renaissance and Age of Enlightenment. The many ethnically German thinkers who saw the slow rise of a more modern nation-state out of feudal localism are often forgotten, but their ideas on citizenship left their mark on the Europe that emerged from the medieval era. While Immanuel Kant (although himself quite racist) viewed race as something historically gained and otherwise subjective and environmentally-influenced, later German philosophers like Johann Gottlieb Fichte and Georg Wilhelm Friedrich Hegel developed the idea of a sort of objective ethnicity without complexity or question.

The path from those opinions to the (then) perpetual statelessness of Jewish and Rromani people was long and complex. But the idea that ethnicity is something objective, with no context, complexity, or ways of operating across otherwise distinct groups helped create the policy of total exclusion of those groups. It helped create a system for legally classifying them. It ultimately bears some responsibility for the violence against them that made possible.

Historically, jus soli also has its own skeletons of course. It’s popularity in the Americas is inseparable from its use under settler colonialism. That history, however, is complicated. The rights of the soil were systemically denied to large populations within the United States, namely to settlers of color, slaves, and indigenous peoples. That said, at many times jus soli was a legal concept used to press against those actions and to insure marginalized communities’ right to live as they wished within the country.

While the origins of birthright citizenship in the United States are complex, its current centrality to our legal system is a byproduct of Reconstruction. The Fourteenth Amendment’s citizenship clause expands already present ideas about natural citizenship often tied into location of birth and declared that literally everyone “born or naturalized in the United States” is a citizen the same as everyone else. At the time, that was a radical statement of equality between former slaves and former slavemasters, but it has since evolved as a legal value that defines a central preoccupation in US law – our shared equality (at least in theory) before it.

Rooted in the national abolition of slavery, our brand of absolute jus soli has been a defining legal tool to expand denied rights to a wide array of disenfranchised groups. In short, the proud history of what it means to be a citizen of the United States articulated time and again by this country’s first president of color and the multiracial and otherwise diverse coalition that was key to electing him is impossible to fully separate from birthright citizenship. When we talk about the country we are becoming, we have to acknowledge the ways in which the expansive and unhindered practice of jus soli in the US has key in us going just this far. That is part of the context we have to understand the rising contempt for birthright citizenship as being at least in part within, a call for a metaphorical destruction of that new concept of what this country could be.

The featured image of this article is from a July protest against deportation policies that would separate birthright citizens from their parents, from here.

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One thought on “Jus Soli

  1. […] My own personal version of this was the insistence that not only do most countries not have “birthright citizenship” but that, according to Trump, Mexico is one of them. In a word, that’s wrong. […]

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