Consensual Citizenship

The customary division of national laws of citizenship into the "principles" of jus soli (place of birth) or jus sanguinis (line of descent) denotes the objective criteria most often used to determine one's citizenship. But the conceptions of political membership that have vied for supremacy in Anglo- American law implicate a different, more fundamental dichotomy—one between the rival principles of ascription and consent. These principles reflect quite distinct understandings of the origins, nature, and obligations of political communities, and each promotes certain values that Anglo-American legislators and judges have embraced at different times and often simultaneously. At least since the 18th century, Anglo-American law has embodied compromise doctrines that combine certain features drawn from each conception in the hope of producing pragmatic satisfaction, if not theoretical coherence. As we shall see, however, the two principles are not so easily blended.

In its purest form, the principle of ascription holds that one's political membership is entirely and irrevocably determined by some objective circumstance—in this case, birth within a particular sovereign's allegiance or jurisdiction. According to this conception, human preferences do not affect political membership; only the natural, immutable circumstances of one's birth are considered relevant. The principle...

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