A Theory of Citizenship

Brad Patty

3 year ago

September 12, 2019

There is considerable debate in America about what citizenship should mean practically. Is ‘citizenship’ just another word for ‘nationality’? Should citizens and non-citizens receive equal access to government services?  Should it matter if non-citizens are here legally or not? Should the census even consider whether people living here are citizens at all? In another debate, should citizens be allowed to possess dangerous weapons that might enable individuals or groups to do serious damage, or should such weapons be kept in the possession of officers of the state who can be kept under closer control by the government?

What is missing in all of these discussions is a clear theory of citizenship. What role does the citizen play in a legitimate government? How does the government relate to the citizen, as opposed to non-citizens? Should the government control citizens, or should the citizens control government? Once we have a clear idea of what the citizen’s proper role in legitimate governance is, the answers to these questions should all emerge.

I propose that the citizen is an officer of the state.  More, if the American Declaration of Independence is morally correct, citizenship is the office in which the sovereign power resides. The sovereign power is originally all the power, some of which is delegated to the formal government. Even after delegation, however, the sovereign retains the power to determine when the rest of the government may exercise the powers delegated to it by the sovereign.

For normal day-to-day governance, this comes up most obviously in the role of the jury. Juries can only consist of citizens. The formal state has to come before this jury and present a case for why the government should be allowed to use delegated power against someone. Not only is this true before punishment can be applied, as at a criminal trial, it is also true of grand juries. Even to bring a charge against someone, the state has to ask for the sovereign’s consent. Only the sovereign can declare the person guilty of the charge, unless the accused should waive their right to such a trial.

More exceptionally, the citizens can set aside a law via their participation on juries, both in an individual case they determine to be unjust, or in general if they decide the law itself is unjust. Citizens who believe an accused is being railroaded can vote to find that person not guilty, regardless of whatever evidence the prosecution brings. If a bad law has somehow made it onto the books, jury after jury can refuse to convict anyone for having broken it. This is one important safeguard against the formal government becoming corrupt, or passing corrupt laws. If juries will not enforce a corrupt law, that law becomes effectively null and void. Citizens thus defend each other’s liberties against their own government if it becomes necessary to do so.

It has been argued that any law that juries will not enforce should be considered invalid by a legitimate government. In the United Kingdom, Law Lord Patrick Devlin wrote a lengthy work called The Enforcement of Morals that argued that laws juries would not enforce were invalid. This was because (he argued) the morals of the nation can only be practically grounded in what the people themselves believe to be right or wrong, at least once the state ceased to recognize an official religious view of morality as correct and mandatory. If the people reliably refuse to consider an illegal behavior to be immoral, and thus refuse to apply the laws against that behavior, the laws are out of order with the only moral standard available. Immoral laws are wrong, so laws that violate this sort of morality are wrong. Pragmatically, too, it is a waste of time and resources to arrest and prosecute people when juries will refuse to convict them.

The UK is a little different in that it has subjects rather than citizens, and theorizes sovereignty to exist in the Queen or King. Still, one can see how the argument would apply a fortiori in the American context. As the citizens are collectively the sovereign here, the sovereign decision about morality can serve as a final standard for the legitimacy of moral laws.

The citizen is the officer the Declaration of Independence is thinking of when they speak of the “Right of the People to alter or to abolish” any government that becomes destructive to the defense of their rights. The citizens, and only the citizens, have the right to make that awesome decision. No foreign power may dissolve the United States Constitution, and no elected nor appointed executive officer, nor a Congressperson, nor a judge nor Justice of any kind. The citizens alone have that sovereign right. They may delegate it to a constitutional convention, called by their other delegates in the legislatures. They may instead take up arms and do it themselves, as Washington and his generation abolished British rule. But whether they do it the one way or the other, no one may do it against their will nor without their consent.

If this theory of citizenship is correct, a number of our debates become easier. It may well be that officers of the state entrusted with dangerous weapons should usually be kept under close controls by the formal government; but it cannot be the case for the citizenry. The government is not meant to control the citizenry, but the citizenry is meant to control the government. The problem of making sure that individuals or small groups do not pose an unacceptable danger has to be resolved within the context of making sure that the citizenry remains too potent for the government to dominate.

Likewise this theory of citizenship reinforces the importance of citizenship. It matters who the citizens are, so of course they should be counted as such in a census. They must be known in any case in order to form juries, which can only be composed of citizens and which are necessary for the ordinary process of legitimate governance. Citizens also are the only ones who ought to have voting rights, and making sure to provide safeguards to ensure that only citizens can vote is necessary to ensuring that the sovereign power is neither diluted nor stolen.

Citizenship proves to be fundamental to legitimate government. A government that becomes hostile to its citizens or their rights cannot be a legitimate government at all.

About the Author

Brad Patty

Dr. Patty advised US Army units in Iraq on tribal affairs and information operations over more than a decade. His work has received formal commendations from the 30th Heavy Brigade, the 2nd Brigade, 1st Armored Division, the 3rd Infantry Division and the 1st Cavalry Division. He is the author, most recently, of Free Americans: Essays Towards a Rebirth of Liberty. Dr. Patty holds his PhD in Philosophy from the University of Georgia, as well as a Master's in history from Armstrong in Savannah.