Will Wilkinson presents what can be described fairly as a non-xenophobic argument for the repeal of the fourteenth Amendment. He paints a reasonably attractive vision of an economically unified Canada, America, and Mexico, where workers could move about freely, but who would have access to social services and other goodies based on their citizenship. In such a world, he concludes, it would be very important for other political reasons that citizenship be tied to more than mere perinatal location, and so birthright citizenship would need to be replaced by something else, and he suggests that the various laws employed by various European nations might be good alternatives. After all, giving someone special rights just because they were born somewhere is the height of moral luck, and hardly cosmopolitan. Thus, we should work to repeal the 14th Amendment, on liberal cosmopolitan grounds.
What follows is a long way of saying that I think his proposal is seriously deluded.
Wilkinson is surely right that there is no necessary connection between ways of determining citizenship and xenophobia; opposing an amendment does not entail opposing the values enshrined by the amendment. We can imagine lots of ways to protect freedom of religion, for example, without enshrining in a constitutional amendment. I can imagine poll taxes and literacy tests that were not tools of discrimination. Yet the mere fact that we can imagine an alternative arrangement that provides the same protections does not all by itself provide grounds for removing the supports which uphold our current arrangement.
That is, I do not revere a symbolic attachment to equality; I value that which makes our current arrangement, imperfect as it is, possible. What we’d need is a reason to think both that repealing the fourteenth Amendment would lead to the happy consequences that Wilkinson desires and that it should be the first, rather than the last, step in achieving his cosmopolitan continent. As near as I can tell there’s no argument given for the latter (it seems that most of the EU laws he cites are made in an attempt to preserve nationalism amid economic unity) and plenty of reasons to think that removing the fourteenth Amendment would lead to all-too-imaginable cruelty. It might not be an unholy disaster, but I put the likelihood of first garnering the xenophobic support necessary to repeal the fourteenth Amendment and then coolly adopting a fair system about as high as I’d put a drunk driving my car safely, and I am not in the habit of passing my keys out at the local bar.
Moreover, even on what I understand of Wilkinson’s own grounds, the American system of birthright citizenship seems to be more amenable to his cosmopolitan fantasies. It’s worth noting that the German arrangement he cites is a step forward from jus sanguinis, towards one that someday… might ignore the origin of one’s Blut entirely? It’s a strange version of cosmopolitanism that would enshrine national origin of one’s parents as important to one’s status. What Wilkinson calls “liberal nationalism” does draw a distinction between inside borders and outside borders, and maybe one day that will go away, too, but I fail to see how adding more arbitrary distinctions based on those very borders furthers his cosmopolitan cause.
The current opposition to birthright citizenship is, as Wilkinson recognizes, grounded in what it always has been: a fear that those people’s kids will be just as American as my kids. I am not much given to patriotic sentiment, but this is a case where I am convinced that the U.S. (and Canada, and Mexico, but why spoil a good patriotic sentiment?) has this one right. I like birthright citizenship. You’re born under our jurisdiction? You’re ours. Go make something awesome.