Earned Citizenship : Property Lessons for Immigration Reform

This Article identifies a fundamental tension between the competing visions of “a nation of laws” and that of “a nation of immigrants.” It then proposes a way out of this stalemate by setting out a new framework that emphasizes the importance of rootedness as a basis for legal title. The idea of “taking root” as a basis for earning entitlement has been familiar to the common-law tradition for centuries. It was brilliantly captured in Oliver Wendell Holmes’ resounding words: “a thing which you have enjoyed and used as your own for a long time, whether property or opinion, takes root in your being, however you came by it.” Placing rootedness at center stage also fits with the growing recognition in law (from modern contract and property theory, to family and private international law) that changes in relationships and expectations over time can often necessitate shifts in legal status. The emphasis on rootedness animates a new legal principle, jus nexi, which is defended here as an auxiliary path for inclusion in the polity that could operate alongside the established principles of citizenship acquisition: by birth on the territory (jus soli) or birth to a citizen parent (jus sanguinis). The jus nexi principle offers a remedy to some of the most glaring inequalities of the current situation, wherein those who are ineligible for a nation’s citizenship according to traditional principles - despite sharing in its society and economy - remain shut outside the recognized circle of political members and are denied the basic security and opportunity associated with full, legal membership. The turn to rootedness is significant for another reason, too: it holds the key to overcoming the nation-of-laws versus nation-of-immigrants standoff that has repeatedly frustrated attempts at comprehensive immigration reform in the United States and other leading destination countries around the world