The Citizenship Shibboleth: Is the American Dream Everyone Else’s Nightmare?

The American Dream is a trope with global reach. Although the “city upon a hill” may have lost some of its luster in recent years, the idea that America is a country where citizens can rise above “the fortuitous circumstances of birth or position” largely continues to resonate. Professor Ayelet Shachar’s 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. 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.