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.

I do oppose illegal immigration, for a variety of reasons. One reason is that I do not believe the country can tolerate open borders. Another is that the country should be able to determine both the number and types of immigrants it wants to admit. Illegal immigration undermines these controls.

It is an interesting question which immigrants the United States should take. One possibility is to determine who are the best immigrants and to allow them in. Perhaps we should take a disproportionate number from countries with liberal democratic cultures and with skills that the nation needs. Or perhaps we should take them from a cross-section of the countries of the world based on a kind of equality principle.

But I don’t believe that the current arrangement can be justified, where a very significant number of immigrants (both legal and illegal) from Mexico live in the United States. There is no good reason, either based on equality or benefit to the United States, to admit such a large percentage from one country (or from countries in Latin America).

Having stated my political views on immigration, I will turn in future posts to the related but distinct question of birthright citizenship.

Reader Discussion

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on September 29, 2015 at 13:14:02 pm

Everybody favors "legal immigration." The question is how much. You say you favor a "large" amount of legal immigration. I think your wish has already been granted, and, indeed, has been granted for many, many years now. It would be nice if you would acknowledge that.

Since you concede that immigration should be limited, is it morally permissible to give primary consideration to the interests of the existing citizenry and their descendants in determining how many immigrants to admit? Or should people taking that view be dismissed as the equivalent of the Klan?

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on September 29, 2015 at 15:03:55 pm

"Or perhaps we should take them from a cross section of the countries of the world based on a kind of equality principle."

I suspect that this will sound unduly harsh, but, so what?

The equality principle stops at our nations borders and is applicable only, or ought to be applicable, to our own citizenry.

This is not to say that we ought to discriminate on some superficial attribute - but rather that we ought to be more discriminating in the choice of who we ALLOW to become members of our polity AND with due consideration of the effects of a "large" amount of immigration on the economic opportunities and political cohesiveness of our current citizenry.

On equality, here is someone to cosider:

"In the first place, we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person’s becoming in every facet an American, and nothing but an American…There can be no divided allegiance here. Any man who says he is an American, but something else also, isn’t an American at all. We have room for but one flag, the American flag… We have room for but one language here, and that is the English language…and we have room for but one sole loyalty and that is a loyalty to the American people."

Theodore Roosevelt, circa 1907

My take on "good faith" means "legally" BTW.

I also do not see how one here illegally can be said to be under or "subject to the jurisdiction thereof" - but I am sure you will cover that in your later posts.

Also, why are illegals not deemed to be, as the British used to do, *denizens* - not citizens but not aliens?
Interesting what your take would be on that.

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on September 29, 2015 at 16:31:25 pm

Large in terms of what? In terms of total number of immigrants, its true we take in the most. But we are also a very large country. In terms of % of the population, we are ranked 22nd behind Switzerland, Iceland, Spain, Ireland, New Zealand, Canada, Germany among others. I think the interests of the current citizens do have to be taken into account, but it is hard to say that current citizens are harmed by immigration. They do compete for jobs, but they also buy things which increases employment. I think it is best to allow almost everyone in (that isn't a criminal/terrorist/has a communicable disease etc.), but make sure they do not have access to the welfare system while they are here (the get what today is the equivalent of an indefinite visa not a green card). They need to do a lot more before they can become a citizen and vote/get welfare.

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Devin Watkins
on September 29, 2015 at 16:48:46 pm

Thanks for regurgitating open borders talking points we've all heard repeatedly for years. Your idea that we should take everyone who isn't a criminal is a good indication of the careful thought you've given to this issue.

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on September 29, 2015 at 16:53:34 pm

Incidentally, Pew just came out with a study showing that we've taken in about 60 million immigrants since the 1965 revision of our immigration laws. That is about a third of what the country's population was in the early 60s. Also, 14% of our population is now foreign born.

Saying that the US ranks "22"in immigration is meaningless without telling us what the study measured. Also, did the study take illegal immigration into account?

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on September 29, 2015 at 20:14:44 pm

Yes, but using percentages of population is rather misleading - it is the sheer numbers of immigrants that is at issue as well as the nature of those immigrants AND the prospect of almost unlimited (time-wise) assistance provided to them.

Rappaport posits the equality principle as a basis for continued acceptance of immigrants. I agree - let us treat those nations citizens *equally* as well as the host nation treats potential immigrants to their nation - witness Mexico, etc. One grows tired of the utter hypocrisy of the Mexican government in this regard and its vile claims of American xenophobia when in fact the Mexican oligarchy has, and is continuing to use the US as a "pressure relief"valve for a failed nation state. One wonders what would the Mexican (or Middle Eastern) governments do if they could not *offload* their people onto American shores?

I feel empathy for these poor folks - but it is not sufficient cause to tear down our own borders and accept the castoffs of failed governments (especially those who come here without the sanction and consent of the American people. I would have said "sanction" of the US Government - but we all know how pointless that would be.

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Image of gabe
on September 30, 2015 at 16:36:57 pm

Same play. Different actors. Scene one: Benjamin Franklin writing to Peter Collinson. The date: May 9, 1753.

I am perfectly of your mind, that measures of great Temper are necessary with the Germans: and am not without Apprehensions, that thro’ their indiscretion or Ours, or both, great disorders and inconveniences may one day arise among us; Those who come hither are generally of the most ignorant Stupid Sort of their own Nation, and as Ignorance is often attended with Credulity when Knavery would mislead it, and with Suspicion when Honesty would set it right; and as few of the English understand the German Language, and so cannot address them either from the Press or Pulpit, ’tis almost impossible to remove any prejudices they once entertain. Their own Clergy have very little influence over the people; who seem to take an uncommon pleasure in abusing and discharging the Minister on every trivial occasion. Not being used to Liberty, they know not how to make a modest use of it; and as Kolben says of the young Hottentots, that they are not esteemed men till they have shewn their manhood by beating their mothers, so these seem to think themselves not free, till they can feel their liberty in abusing and insulting their Teachers. Thus they are under no restraint of Ecclesiastical Government; They behave, however, submissively enough at present to the Civil Government which I wish they may continue to do: For I remember when they modestly declined intermeddling in our Elections, but now they come in droves, and carry all before them, except in one or two Counties; Few of their children in the Country learn English; they import many Books from Germany; and of the six printing houses in the Province, two are entirely German, two half German half English, and but two entirely English; They have one German News-paper, and one half German. Advertisements intended to be general are now printed in Dutch and English; the Signs in our Streets have inscriptions in both languages, and in some places only German: They begin of late to make all their Bonds and other legal Writings in their own Language, which (though I think it ought not to be) are allowed good in our Courts, where the German Business so encreases that there is continual need of Interpreters; and I suppose in a few years they will be also necessary in the Assembly, to tell one half of our Legislators what the other half say; In short unless the stream of their importation could be turned from this to other colonies, as you very judiciously propose, they will soon so out number us, that all the advantages we have will not in My Opinion be able to preserve our language, and even our Government will become precarious. ... Yet I am not for refusing entirely to admit them into our Colonies: all that seems to be necessary is, to distribute them more equally, mix them with the English, establish English Schools where they are now too thick settled, and take some care to prevent the practice lately fallen into by some of the Ship Owners, of sweeping the German Goals to make up the number of their Passengers. I say I am not against the Admission of Germans in general, for they have their Virtues, their industry and frugality is exemplary; They are excellent husbandmen and contribute greatly to the improvement of a Country.

I pray God long to preserve to Great Britain the English Laws, Manners, Liberties and Religion notwithstanding the complaints so frequent in Your public papers, of the prevailing corruption and degeneracy of your People; I know you have a great deal of Virtue still subsisting among you, and I hope the Constitution is not so near a dissolution, as some seem to apprehend; I do not think you are generally become such Slaves to your Vices, as to draw down that Justice Milton speaks of when he says that

—— sometimes Nations will descend so low
From reason, which is virtue, that no Wrong,
But Justice, and some fatal curse annex’d
Deprives them of their outward liberty,
Their inward lost.
Parad: lost.

A knowledgeable writer once told me that at one time the Framers considered writing the Constitution in German instead of English. Interesting if true.

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Scott Amorian

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