Birthright, bloodright, and belonging: a comparative constitutional analysis of citizenship in the United States and Uganda —the case for judicial clarification of the status of Banyarwanda born in Uganda

Abstract

Citizenship has been understood throughout the Western political- philosophical tradition as the fundamental relationship between the individual and the political community. Aristotle conceived of citizenship as participation in the political life of the polis — the capacity to rule and be ruled in turn. For Aristotle, the citizen was defined by participation in deliberative and judicial office; citizenship wasnot merely a status but an activity, a form of practical engagement in collective self- government.4 John Locke, writing within the social-contract tradition, framed citizenship as the product of consent — whether express or tacit — by which individuals enter civil society and thereby acquire both the obligations and the entitlements of membership: the duty to obey the law, and the right to participate, directly or through representation, in the exercise of legislative power.5 Jean-Jacques Rousseau offered a more demanding, participatory vision. In The Social Contract, Rousseau argued that citizenship requires the active engagement of the individual in the formation of the general will: the citizen is not merely a subject of law but a co-author of the laws to which he is subject. This conception of citizenship as active political co-authorship has profoundly shaped modern constitutional democracy's self-understanding, particularly the notion that a constitution is an act by which “the people” constitute themselves as apolitical community.6 Hannah Arendt, writing in the aftermath of the Second World War and out of her own experience of statelessness, provided the most consequential articulation of citizenship's stakes for the twentieth century and beyond. She observed that persons deprived of citizenship are deprived, in substance, of the “right to have rights”— for it is only within an organised political community that legal rights of any kind can be effectively claimed and enforced. Arendt's insight, developed fromthecatastrophic experience of stateless and denationalised persons in interwar Europe, is that citizenship is not one right among many but the precondition for the enjoyment of any right at all. Without it, the individual stands exposed to the arbitrary power of the state, unprotected by the ordinary guarantees of law