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R. Bauböck
Not the only one tainted
As Dumbrava points out, modern ius sanguinis was seen as a democratic
and revolutionary principle in contrast with ius soli that had its origins in the
feudal idea that any person (or animal) born on the territory was subject to
the ruler of the land. Deriving citizenship from citizen descent rather than
territorial birth made it possible to imagine a self-governing people reproducing itself. Dumbrava is of course right that seeing the nation as a community of shared descent across generations made it also easier to justify the
exclusion of foreigners as well as the inclusion of co-nationals across the
border. Yet this is not a sufficient reason for abandoning ius sanguinis.
First, an ethnonationalist disposition can be overcome while maintaining
ius sanguinis if this principle is supplemented with ius soli and residence-
based naturalisation. The latter has created an ethnically highly diverse citizenry in continental European immigration countries even in the absence of
the additional inclusionary effects of ius soli. The reason for this ethnically
inclusive effect of ius sanguinis is simple: If first generation immigrants
have access to citizenship and take it up, then ius soli and ius sanguinis does
not make much difference: the children of immigrants will be citizens under
either rule.
Secondly, a pure ius soli regime is also tainted and not only because of
the feudal origins of the principle. Territorial nationalism can be just as nasty
as ethnonationalism and may be fanned by thinking of ius soli as the right of
the ‘sons of the soil’. Even the case of Romania that Dumbrava lists among
the problematic ones is ambiguous in this regard. If Romania awards citizenship to the descendants of those born in its lost territories, is this an
instance of ius soli or ius sanguinis and an illustration of ethnic or of territorial nationalism? The answer is probably: both. Ius soli and ius sanguinis are
therefore not alternatives, but can be combined in benign ways that neutralise the potentially illiberal effects of either principle, as well as malign ways
that enhance their nationalist potential for ethnic exclusion and territorial
expansion.
Thirdly, pure ius soli also has vicious exclusionary effects for migrants. In
most American states, the immigrant generation 1.5 – those who have entered
the country as minor children – cannot acquire citizenship before the age of
majority. President Obama’s Dream Act is an attempt to mitigate some of the
worst consequences for the children of irregular immigrants. Even more problematic is the common distinction between nationals and citizens in many Latin
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