A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part I: Embracing Legal Immigrants

With immigration – both legal and illegal – being the subject of debate these days, I thought I would blog a few posts on the issue generally and on the Fourteenth Amendment’s Citizenship Clause in particular.  To sum up my positions, I strongly favor legal immigration, I believe the original meaning of the Constitution requires birthright citizenship for the children of illegal aliens born in the United States, but I believe that a reasonably strong nonoriginalist argument can be made against such birthright citizenship for illegal immigrant children.

To begin, I favor legal immigration. The United States is a country of immigrants and it has been greatly enriched by such immigrants. The nation should allow large number of immigrants to enter its borders. Sadly, the welfare state probably makes it necessary to allow fewer immigrants in, but still large numbers should be admitted.

Not only do I favor immigrants based on public policy reasons, I also sympathize with them. I think of myself as coming from a family of immigrants, with three quarters of my grandparents being immigrants. And my wife, and her family, are also immigrants.

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The Dual Virtues of American Citizenship: Jealousy and Commitment

Taking the Oath of Citizenship at a Naturalization ceremony

A naturalization address given last week by Professor Kevin Hardwick in Beaverdam, Virginia at Scotchtown, the governor’s residence of Patrick Henry during the War for Independence.

In the late 1790s, during the presidency of John Adams, Americans conducted a bitter public debate over the meaning of patriotism.  The dominant political party at the time, the Federalists, confronted an emerging opposition, headed by Thomas Jefferson.   The opposition, the Democratic-Republican party, sharply criticized the Federalists, and condemned both their policies and their motives.

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Welcoming More Syrian Refugees Is Good for America

The Obama administration has made the right decision to raise the cap on the number of refugees so as to take in more Syrians seeking to escape the genocidal conflict in their country. It is not only an appropriate humanitarian action, but it will be good for the United States in the long run, just as our reception of Cuban refugees brought us an enormously successful, entrepreneurial group of Americans.

Immigration policy is a tricky matter to get right for classical liberals, particularly today. While some libertarians support open borders, that policy would be unwise.  If tens of millions of people arrived who were unschooled in our democratic traditions and relatively uneducated, they might undermine the very conditions for liberty that make our nation so attractive to immigrants. They would surely cause a huge backlash.  And unfortunately today, our welfare state can encourage immigration by those would not be productive citizens. A classical liberal constitution would permit us to entertain a more open immigration policy.

But these concerns do not at all undermine the case for taking in more Syrians. Even if we took in a few hundred thousand Syrians, they will not change our political culture. Indeed, given the relatively small numbers, they are likely to change the culture less than did immigration from Latin America or previous waves of immigration. Moreover, these immigrants have reasons to come that are not economic: there is no reason to think they are here to seek welfare benefits. And like Cuban refugees, the Syrian refuges are by no means largely without human capital. Middle-class people with substantial skills have had every reason to flee.

While the Obama administration can lift the cap, Congress will need to provide more money to get these refugees settled.

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Inescapable Logic on Immigration

USA America Citizenship Application with glasses

There is no greater sign of what a good and generous people Americans are than our troubles over immigration.

Were Americans a downright mean people, we would have no compunction about shipping illegal immigrants back to their countries of origin en masse. Yet that is politically unacceptable. Why? Because most of us would find it morally unacceptable, particularly for people who have been here for long time and have begun to put down roots.

Kicking out someone who has just crossed the border without our permission is another matter altogether. But plenty of Americans object even to that. If these are poor people, arriving in our prosperous country to improve their lot in life, as most of our ancestors did, who are we to object?

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A Classical Liberal Constitution Welcomes Immigrants

Immigration of the right kind is a great benefit to a nation run under principles of liberty. If the immigrants obey our laws and work productively, they will add to the nation’s wealth.  If they assimilate to the nation’s creed of liberty under law, they strengthen its power throughout the world, because their  former compatriots take heed of their success and that example may encourage more liberty in their home nations. And not only do the citizens of the welcoming nation benefit, so also do immigrants. The value of their human capital rises as soon as they set foot in a nation of free markets and the rule of law.

The way to encourage citizens to embrace immigration from abroad is to have a constitution that limits welfare programs and precludes ethnic discrimination. Without such commitments, citizens may rationally worry that poor and even work-shy immigrants may come and eventually vote themselves higher levels of benefits, even at the expense of long-time citizens and their descendants. Without guarantees against discrimination, citizens may also worry that ethnic groups who still feel solidarity based on previous ties, will try to organize government benefits on the basis of ethnicity, impeding assimilation.

And now I can reveal that once there was a nation that had a constitution with the pre-commitments needed to facilitate a sound immigration policy. It was the United States after it had ratified the 14th Amendment. 

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Demand a Politics of Innovation

2016 is shaping up as an election in which one of our parties will emphasize the need for growth and the other will call for greater economic equality. These concepts are often seen in substantial tension with one another. In my view, however, if the government encourages innovation we can have both growth and greater equality in the relatively short run.

As I wrote in yesterday’s Washington Times for the celebration of Liberty Month:

In this age of accelerating technology, there is no more important policy than to encourage innovation. Innovation is the primary source of economic growth. New innovative businesses, like Google and Uber, transform our lives for the better. And innovation builds on innovation, compounding growth from generation to generation. As the Nobel Prize winning economist Bob Lucas once said: “Once one thinks about exponential growth, it is hard to think about anything else.”

Innovation in the modern era also tends to make us more equal. Innovation creates a stream of new ideas that are rapidly enjoyed by the great mass of people. Material goods are scarce, because individuals can by and large not enjoy the same material simultaneously. But ideas can be enjoyed by all. To be sure, some innovations are patented, but these patents expire. And, as better innovations come along, the old patents rapidly become less valuable. That is one reason that smart phones have so rapidly become available to people of modest means. Thus, the greater the supply of innovations, the great the common pool from which almost everyone can benefit quite rapidly.

We thus need to ask all Presidential candidates what they will do to promote innovation.

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Deferred Action for Federal Government Accountability


DAPA—short for the clunky “Deferred Action for Parental Accountability,” or maybe “Parents of Americans” (I’ve seen both titles)—is the Obama administration’s 2014 policy seeking to defer the deportations of roughly 4 million aliens who are the parents of citizen children or permanent residents. About half the states, led by Texas, filed suit to block the program. In February, U.S. District Judge Andrew S. Hanen issued a preliminary (and nation-wide) injunction against the implementation of the program. Yesterday (April 7), Judge Hanen refused to lift the injunction and, on the occasion, expressed his annoyance with the government’s “misconduct.” 

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The Anti-Democratic Party?

Apparently, Loretta Lynch, President Obama’s nominee to be Attorney General, holds that “I believe that the right and the obligation to work is one that’s shared by everyone in this country regardless of how they came here.” If people here illegally have a “right” to work does that not necessarily imply that we the people do not have the right to make immigration policy?  The “duty” to work is also interesting, but that’s a discussion for another day.

The President’s Disregard for Constitutive Norms

Respect for our constitutive system can be as important as positive constitutional law.  Positive constitutional law is written and, if a plaintiff has standing, is likely to be enforced by the judiciary.  Our constitutive system, by contrast, is either unwritten or at least unenforced by the judiciary.  Order in this system is maintained by the statesmanship of the political branches.

Peter Schuck, a supporter of the President and proponent of immigration reform, has ably articulated the problems of the President’s executive order on deportations as a matter of positive law.  But whatever its positive legality, the President’s decision to defer the deportation of millions of undocumented immigrants does not respect our constitutive system.

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Defining America Down

It was inevitable that some supporter of President Obama’s would come along and compare his executive action on immigration to the most famous executive order of them all, President Lincoln’s Emancipation Proclamation. Yale law professor Bruce Ackerman has done the honors, and his comparison is, not to put too fine a point on it, weak.

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