Liberalism and Birthright Citizenship

My argument that ending birthright citizenship could, over the medium-to-long term, help facilitate the sensible integration of North American labor markets has not gone over well with my friends on the left. Part of it, I’m afraid, is just knee-jerk opposition to policies their political enemies favor. Of course, the fact that bad people with bad motives support a policy does not mean it is therefore bad policy. There is often a large gap between the intended and actual effects of policy. I believe the international evidence supports the idea that ending pure jus soli softens opposition to immigration. Even if nativists and xenophobes shift to another argument with undiminished energy, the evidence suggests that worries about the fairness and distributive consequences of birthright citizenship harbored by more moderate voters would weaken, shifting the position of the median voter toward greater openness to immigration. Some progs seem committed to the argument that only racist xenophobes have any worries about the fairness or distributive consequences of birthright citizenship, but I think that’s pretty clearly false.

I should say, my argument was intended to suggest to border-sealers that they wouldn’t get what they wanted by ending birthright citizenship. No doubt it is too rhetorically tricky to demoralize the most passionate proponents of an idea while simultaneously communicating that it’s a good idea for other reasons, but that’s what I was going for.

I think a good deal of resistance to even entertaining the idea of ending pure jus soli flows from the fact that birthright citizenship is codified in the 14th Amendment to the Constitution, and the 14th Amendment was an enormous step toward guaranteeing the equal freedom of former slaves. The citizenship clause of the 14th Amendment is therefore not simply a now-outdated policy put in place to help guarantee that freed slaves receive the same privileges and legal protections as do other citizens. It has become a sort of jurisprudential monument to the value American culture sets on the ideal of equal freedom. To remove the citizenship clause from the Constitution would thus amount to an act of symbolic violence against hard-won American ideals of equality. The usually unstated implication is that such a development would indicate a collapse of political will to defend equal freedom generally, and that other gains in equality might therefore unravel. Though I understand why this kind of argument moves people, I find it no more compelling when liberals argue this way than when conservatives argue that, say, gay marriage is (a) a symbolic assault against a sacred institution and (b) a practical threat to the integrity of family, which is the foundation of civilization.

Last, I think there is a pretty deep tension in liberal ideology between solidaristic nationalism and universalist cosmopolitanism, but it usually goes unnoticed due to the paucity of liberal cosmopolitans. Because national politics is based on nationalist assumption, liberal cosmopolitans have basically no chance against liberal nationalists in practical politics. And of course this affects the incentives of political commentators who wish to remain relevant to practical politics. Nationalist arguments help the party more than cosmopolitan arguments do, so nationalist arguments are rewarded by the party and its satellite organs. So we get a lot of liberal nationalism and very little cosmopolitanism.

Now, if you’re a solidaristic nationalist, as most notable liberals are, the ideal of liberal equality suggests something like equality of opportunity for full insider status for people who are already inside the nation’s borders. To be treated as an equal means to be treated as one of us — as a full-fledged member of the tribe. That is, when you’re inside the fence. Birthright citizenship approximates equality of access to insider status for people inside the fence. In contrast, to be offered access to markets inside the fence but with little chance of ever becoming a fully-vested insider or member is to codify a fundamental inequality of status. Second-class citizens!!!

The totally stupefying thing to liberal cosmopolitans about the worry about second-class citizens or partial insiders is that liberal nationalists find this worry so compelling even when it is abundantly clear that excluding outsiders from both labor markets and citizenship opportunities does rather more to reinforce inequality and perpetuate the miseries of poverty than does excluding them from citizenship opportunities only. Of course, the stupefaction goes both ways. When I argue for ending birthright citizenship as part of a larger strategy to increase openness to partial insiders, I think it’s hard for liberal nationalists to grok this as a project motivated by an ideal of liberal equality.

  • Weiwen Ng

    As a progressives, I agree. However, progressives would require a reasonable earned path to permanent residency and citizenship (i.e. probably less restrictive than what’s available today). In other words, people born in the US who study here and who pay taxes should have a reasonable shot at earning the right to stay regardless of their skill level.

    Progressives would probably also require unconditional eligibility for public supports for low-income children regardless of citizenship status. In other words, ensuring that our children don’t starve or go without healthcare or education is a universal responsibility.

    The fact is that changing citizenship by jus soli alone requires a Constitutional amendment – it’s not a mere legal change. I do agree that sole jus soli is outdated given increased international mobility. If conservatives were willing to debate with progressives on these issues, instead of just shrieking about closing the border, I think progressives would be willing to make a deal. If libertarians were willing to consider extending social supports to low income children, given that many children of refugees and many other immigrants to the US are low income, then again, progressives would be willing to make a deal.

  • yintercept

    The problem the world faces is large numbers of displaced and nationless people. A unilateral policy of birthright citizenship does not solve the problem. Our current policy seems to enable displacement.

    An amendment made in connection with an effort to reduce international displacement would be welcome.

  • Freddie_deBoer

    So you support a legal change that would unmistakeably lead to the forceful deportation of infant children, under the theory that doing so will (one fine day) lead to the greater liberty of future poor brown children. It’s a strange game you play, this long game. But you play it all the time. Your central gamble, that supporting the edifices that leave people impoverished now will support the growth that (one fine day) will remove poverty from the earth, is the same sort of thing. It’s a beautiful future you dream of, Will, and I mean that sincerely. I just feel for the people who live now and don’t get to enjoy it. I can’t make that trade, in conscience.

    No, I prefer to walk away from Omelas; the contemporary nation-state is an illegitimate structure, built quite recently for (quite explicit) purpose of supporting the imperialist project and its attendant resource hoarding. Birthright citizenship is a terribly partial way to remove the wall of borders, but continuing it is closer, in the most practical terms, than ending it.

  • Murali

    How is doing away with birthright citizenship or having a guest worker program omelas? The whole point is that they do far more for the worst off than the status quo.

  • Priv8teer

    “Of course, the fact that bad people with bad motives support a policy does not mean it is therefore bad policy.”

    Oh, if only progressives understood this…

  • Jeff Woodhead

    So on what basis would you propose citizenship be granted? You can’t propose something and then not suggest replacing it with anything. And because of the large immigrant population here, granting citizenship only to children of current citizens would only serve to divide immigrants from the greater population further.

    My point is that a) ending birthright citizenship is a solution in need of a problem and b) there aren’t any readily available better opportunities. If you’re concerned about the difficulty of becoming an “insider,” doesn’t that just mean we should make naturalization easier?

  • Brian Patrick Moore

    Instead of focusing on excluding people from citizenship, why not just on excluding people from the allegedly expensive benefits they would be receiving?I don’t think anti-immigration people are worried about a limited number of American citizenship licenses, but rather (right or wrong) the limited resources to provide services to new people, citizens or not. Why not just make illegals citizens and a) get them to pay taxes for non-excludable things like police/fire and b) deny them access to a list of expensive federal programs?Whether the argument that illegal immigrants over-consume public resources is correct or not is a different debate, but if we’re willing to make a compromise, it seems to me like that compromise might be not only more palatable, but more effective as well. It seems like ending BC would just end up reducing the positive effects of immigration as well.(reading Weiwen above, I’d have no problem with social supports to low income kids being something not removed, compared to all the other things you could withhold, it would be a drop in the fiscal bucket)

  • lelnet

    Here’s the thing.

    If you are going to strip us of the citizenship we acquired at birth, what standard do you propose for reacquiring it? And what are you going to do with those who don’t meet the standard?

    Deport them? To WHERE?

    I’m not a progressive, and until the word “liberal” is reclaimed from the leftists who’ve stolen it, I won’t be called that either. I have some abstract concern for the well-being of poor people in other countries, and a less abstract concern for the well-being of poor people in the United States.

    But my concern about citizenship is not abstract. I was born in the United States. I have lived in the United States all my life. I carry a United States passport when travelling. I work in the United States, pay taxes in the United States, have voted in every national and state election (and all but 3 of the strictly-local ones) since my 18th birthday, and am still registered with the Selective Service so that if the Chuck Rangel gets his way I could be forcibly removed from my home and family and sent overseas to die for the United States.

    I am a citizen of the United States. And even if you manage to repeal the 14th Amendment, you will face armed resistance in your attempt to strip me of that citizenship.

    And if you somehow manage to overcome that armed resistance without killing me in the process, to what country do you propose to deport me? I’m sure that, if I wanted to change citizenship voluntarily, I could persuade one of a number of destination countries to accept me as an immigrant, but that process would require substantial time, and its outcome would be at their discretion, not yours or even mine. Those of our current citizens without such substantial professional achievements might not be able to find _any_ other home. Where, then would you send them?

    • Brian Patrick Moore

      While I agree with you that we shouldn’t end BC, I think if it were ended, it wouldn’t revoke citizenship retroactively to those who have already gotten it via that method, nor do I think Will would want it to.

      • lelnet

        I am not telepathic and thus can’t speak for what Will would want. He’s getting into bed with people who absolutely _do_ want that, however, and have said so.

        One of the few restraining influences on American politics that remains in force these days is the fact that we do not empower 50%+1 of the population to define their opponents as “noncitizens” and disenfranchise them. The question of which people who aren’t already citizens can become citizens is still in the hands of the political class (and look what a great job they’ve done with it!), but they are not empowered to strip it from the rest of us.

        If we repeal the 14th Amendment, we give them that power. I predict, at most, one meaningful national election after that, and human beings being loaded into cattle cars within 5 years.

        • Brian Patrick Moore

          Well, regardless of what Will thinks, what I’m saying is I don’t think there’s any legal way to strip citizenship from anyone (even those granted BC in the past) without say, a treason trial. Which, from what I can tell, is what you think too:

          they are not empowered to strip it from the rest of us.

          And to amend the constitution, we need more than 51% — if I remember my high school civics correctly, it’s 75% of states? Repealing the 14th amendment, no matter how unlikely I think that is, would definitely not strip citizenship from those already granted it, no matter the method.

          • lelnet

            Amending the Constitution is, and should remain, hard. But if the loonies get their way and it happens (or they appoint a Supreme Court willing to pretend those words don’t mean what they say…which is a lot easier than actually changing them), defining citizenship will be left entirely to the whim of Congress.

            At which point, 50%+1 gain the power to do whatever they feel like to the remainder, and the remainder’s only options become submission or violence.

          • Brian Patrick Moore

            Defining the citizenship of people who aren’t yet citizens has always, for better or worse, been entirely “at the whim of Congress” to the extent that they can change immigration quotas.But no one ever has been able to strip citizenship from people who already have it without immense legal hurdles. I mean, we actually execute citizens, but we don’t take their citizenship away. Repealing the 14th amendment isn’t going to change that.

            I’m kind of confused why you think that “stripping citizenship” is the method a 51% majority bent on oppressing the other 49% would take. Why wouldn’t they just do all the things that we, you know, do now to totally undisputed citizens right now? Why strip their citizenship if we can imprison them on drug charges, or break into their houses and shoot them at 3am? Why not levy huge taxes on them? Why not just discriminate against them in the multitude of other ways that our government already does?

            If a majority of 51% assholes enacting laws that hurt everyone else is a problem, “ending birthright citizenship” is the least of your worries.

        • Will Wilkinson

          I’m arguing for a policy along the lines of most of the developed world’s. No one would have their citizenship stripped. Children born in the U.S. to people who have legally resided in the country for, say, five years are automatically granted citizenship. Children born in the U.S. to undocumented residents may become citizens at the age of, say, fourteen. Ideally, I would like to see this as part of a change in policy that makes it possible for MANY more foreigners to legally reside in the U.S. It’s possible that such a scheme would create as many or more new citizens as the current scheme, but I think it would seem more orderly and fair.

          • andrekenji


            1-) Most of the developed world has several problems dealing with it´s immigrant population, with ghettos and segregation. Australia has a modified version of jus soli, Canada is also jus soli.

            2-) Most of the developed world has bigger bureaucracies to deal with that too. Ask an European about how many Id cards they are supposed to carry. I´m from the Developing world, but i´m supposed to carry six or seven of them.

  • Deoxy

    As a libertarian with conservative values (I think getting the government to enforce them for me is easily the greater evil, for many reasons), I would like to respond to this:

    “If conservatives were willing to debate with progressives on these issues, instead of just shrieking about closing the border, I think progressives would be willing to make a deal.”

    The reason conservatives do this is because they have compromised not once, but TWICE on the border, giving the “progressives” what they want, but gotten nothing of what was promised in return. If I offer you a new car for $50 grand, keep your $50 grand, then offer to sell you the car you just gave me that $50 grand for for a mere (additional) $50 grand, you might get a little angry, eh? After you gave me ANOTHER $50 grand, and I did it to you again, perhaps you would want your car without paying again? Perhaps you wouldn’t exactly trust me anymore?

    Whether you agree that is what happened or not, that is certainly how many conservatives feel about it (quite reasonably, as best I can tell). As such, no, they really don’t want to listen anymore.

    • Deoxy

      One more thing:

      One reason many conservatives are willing to rethink Birth Citizenship is not necessarily the kid in question, it’s the parents. Get in illegally, then have a kid, voila! Deportation-proof, yay!

      Deal with that problem, and you’d have fewer people willing to reconsider BC.

      • lelnet

        Do as was done with my grandmother. Give the kid a US birth certificate, send them all home, and when the kid is old enough to cross the border under his/her own power, welcome them.

        (And yes, I mean my actual grandmother…this is not a pipe dream, it was policy in the old days. And it could be policy again. Without repealing the 14th Amendment or misinterpreting it into nonexistence.)

      • Jeff Woodhead

        That problem doesn’t exist. Children can only sponsor their parents for legal residency if the child is over 21 and the parents have never been in America illegally. Illegal immigrants will have to wait until their kid is 31 before they can become deportation-proof. There is a rarely-used provision that allows families of 10-year-olds to stay if they can prove hardship, but that’s capped at 4000 visas and even that cap hasn’t been reached in recent years.

        • B-Rob

          Agreed. Just try to get them nailed down on how many people use their children as their sponsor so they can stay in the country. Also, they want to act as if women come across the border pregnant just to give birth. Utter nonsense. What is ACTUALLY happening is that in year two of her illegal existence, some hotel maid has a baby. That is very different than the picture the anti-14th Amendment folks want to portray.

  • JF

    “I believe the international evidence supports the idea that ending pure jus soli softens opposition to immigration.”

    Well, let’s hear it. What’s the evidence?

  • kindness

    Will….what have you been smoking? Did you bring enough to share with the rest of us?

    Seriously, here we have a united opposition party that has only one interest. That interest is to hurt and beat Democratic proposals, ideas, bills and legislators. You think tossing part of an Amendment to them would make them stop?!?

    What have you been smoking? Pull your head out of your arse and start talking real.

  • MichaelDrew

    Will is a cosmopolitan, so it is a diversion to take him up on what policy he is currently advocating. Ultimately, he would eliminate citizenship in nation-states (if not nation-states themselves), certainly this one, or make it universal, which are one and the same. I might add, the near-term (ie this century) likelihood of which is approximately equal to what he here proposes.

  • Native Lawyer

    Wong Kim Ark notwithstanding, the fact remains that the Supreme Court held (Elk v. Wilkins) that even under the 14th Amendment, Native Americans born in the US did not thereby acquire citizenship; they did not in fact acquire birthright citizenship until 1924 and passage of the Snyder Act. It thus seems there is some historical basis for arguing that the 14th Amendment does not guarantee citizenship based on birthplace alone.

    • lelnet

      Under the text of the Constitution, recognized native tribes are independent sovereignties, not part of the United States, regardless of the fact that they reside within the borders of the United States. This (and the relatively trivial situation of children born to diplomats) is the function of the “jurisdiction” clause.

      • Native Lawyer

        The text of the Constitution mentions Indians twice, in the “Indian commerce clause” section and the Indians-not-taxed provision. It does not refer at all to tribal sovereignty. Regardless of what the jurisdiction clause’s purported function, its inclusion shows that some have understood that 14th Amendment citizenship is not based on birthplace alone.

  • pithlord

    Will, if you are serious about this, I’d like to see somthing on the obvious problems with amending the constitution as part of a deal on a specific policy. I just don’t see how it gets transactionally accomplished. This is not a problem other OECD countries have.

  • B-Rob

    Doing away with birthright citizenship is an incredibly dumb idea. Let’s start with the obvious:

    1) This is proposed as a “solution” to a problem that no one has yet convinced me actually exists. For instance, how many children are actually used to ensure their illegal parent(s) stay in the US and avoid deportation? What kind of problem are we actually talking about, numbers-wise?

    2) If the mother is illegal and the father is legal, then the child is legal, and vice versa. But what becomes the “rational basis” for treating the 6 pound 3 ounce son of a hardworking but illegal father, born at 3:06 pm, worse than the seed of a convicted seriel killer, born the same hour in the bed next to the illegal’s kid? And as those two kids grow up together, the distinction in treatment grows even more absurd.

    3) If I am an illegal mother, I sure as hell am not going to identify another illegal as the father. I am going to name anyone, whether they are the actual father or not. Hell, I may just name the doctor who delivered the kid. Because you have given me a strong incentive to lie when I did not have one before. Are we then going to create an apparatus to police the paternity of every baby born to an illegal woman?

    4) How would this work, in practice? How and when are they supposed to prove they are legal and, thus, their child is a citizen? Does every mother birthing a baby have to prove their citizenship in the delivery room? Or do some people (ya know . . . the White ones) get a pass? If Consuela has to prove she is legal to pass citizenship on to her child, shouldn’t Becky Ann and Shaneequa have to do the same?

    5) If an illegal father from Mexico and an illegal mother from Russia have a kid together, the child is . . . stateless? By some estimates there are about 12 to 20 million illegals in the US right now . . . no one knows how many. Does it really make sense to have a generation of kids born in US hospitals, raised in US cities and suburbs, but left with no citizenship? Exactly how does that aid integration and assimilation,as opposed to increase isolation and bitterness?

    Like I said — all this to address a “problem” that no one has yet quantified. Indeed, I am willing to state there IS NO PROBLEM. Because saying “the children of illegals fill our schools” is meaningless; the children of illegals also fill our army, our restaurants, and our police forces, too.

    It is no surprise to me that this is being raised as a solution only on the right and in an election year. Why weren’t they touting this idea in 2004, when they held the House, the Senate, and the White House, too? By all measures, the illegal immigration problem was much worse then than it is now. No, sir, this is senseless, bitter pandering to the basest element of the increasingly nutty right wing. No more, no less . . . .

  • Newsreader

    Suppose you remove birthright citizenship. And then suppose legislation is passed making legal immigration easier as you suggest. Then suppose 30 years pass and politics changes and a new clamp down on immigration passes Congress. And all of a sudden legal immigration is severely constrained. At that point would you advocate going back to jus soli?