Legal realists will find much here to admire, but those who hope the law can be something more than applied pragmatism, not so much.
We often call ours “a nation of immigrants.” It is a peculiar and paradoxical phrase. A “nation,” as generally understood, is a tribal, ethnic, or historical group. In the era of the American Revolution, a nation, a people, a tribe, and a race were often interchangeable terms. Nation, as the word is usually used by scholars, often retains some of that heritage. Hence a noted academic like Ernest Gellner could write in his book Nations and Nationalism (1983) that “nationalism uses the pre-existing, historically inherited proliferation of cultures or cultural wealth.”
Nationalism presupposes some sort of historical unity. Meanwhile, immigrants are people who come from somewhere else to settle.
So “nation of immigrants” suggests right off the bat that America is a peculiar sort of nation, perhaps even an exceptional one. Indeed American nationalism, unlike most other nationalisms, has been primarily political rather than cultural. Citizenship, not heritage, makes one an American. Hence, the day someone becomes an American citizen, he is American in the essential sense of the term. By contrast, if it is possible to become Chinese, French, or Egyptian, it is nonetheless very difficult. A tribal, ethnic, or racial nationalism is incompatible with mass assimilation.
Continued immigration, perhaps with periodic slowdowns to allow for more thorough absorption of new arrivals, probably has been a good thing from this perspective. A society without much immigration would tend toward the more usual (and usually retrograde) ethnic nationalism. A fairly high level of immigration, therefore, helps to keep politics central to our national identity. The common political conversation becomes the one thing that binds us together. If high immigration might be a necessary precondition for the persistence of political nationalism, though, it is probably not a sufficient condition.
Why did the newly formed United States welcome immigrants? The answer, in part, is that it was tradition already. The colonies were settler societies that, as a rule, continued to welcome new migrants throughout the colonial period, and not just from the British isles. By the time of the American Revolution, 40 percent of Pennsylvania’s population was of German extraction. These immigrants became Americans. As Thomas Paine, himself a recent arrival, wrote in Common Sense in 1776: “all Europeans meeting in America, or any other quarter of the globe, are COUNTRYMEN.” Paine was idealizing. Assimilating all Europeans to a common identity was not so simple; but it did, in time, happen.
Although we have had some serious bumps in the road, and have at times committed gross injustice toward immigrants, it is nonetheless true that America has been exceptional in this regard. We believe Emma Lazarus’s words and try to act accordingly. That we fail sometimes is not surprising. Xenophobia is instinctive in man. Love of our own, and dislike or distrust of outsiders, is natural. Welcoming large numbers of newcomers is rare; assimilating them is difficult. Past performance is no guarantee of future results.
Can the United States remain a nation of immigrants in the 21st century? To answer that question, we need to consider what made it possible for it to be a nation of immigrants, and consider whether those conditions remain. In history, mass migration has generally involved some superior force, as in the case of the Scots who came to dominate Northern Ireland. Open borders, though, can have the same effect if there is not at the same time mass assimilation.
Is America’s very essence at risk? As I see it, we face two key challenges to our status as a nation of immigrants: The rise of the mega-state threatens to transform the nature of American nationhood, even as the rise of a post-national ideal threatens to undermine the understandings that have made assimilation a duty and an obligation.
To understand the question of immigration and what to do about it, it is key to consider the place of immigrants in the American regime as a whole.
From the start, as I said, America did not constitute a nation in the usual sense. Similarly, we lacked a state in the usual, modern sense. We had no single, universal sovereign with the authority to make law in “all cases whatsoever,” to use the phrase British Parliament included in the Declaratory Act of 1766. Indeed, the American Revolution was a rejection of exactly such a sovereign.
In 1820, Secretary of State, John Quincy Adams, gave a fine account of the American attitude toward immigration, at least the attitude prevailing in his time. Responding to an inquiry from Europe about migration here, Adams expanded on the subject, highlighting three themes:
- The United States is a different kind of nation;
- Immigrants should come here to work, expecting no favors from the government; and
- Their children should become American.
Adams believed that immigrants can be a blessing. He noted “the additional strength and wealth, which accrues to the nation, by the accession of a mass of healthy, industrious, and frugal laborers.” Even so, he added, “the government of the United States has never adopted any measure to encourage or invite emigrants from any part of Europe. It has never held out any incitements to induce the subjects of any other sovereign to abandon their own country, to become inhabitants of this.”
Why, if the U.S. government did nothing actively to recruit immigrants, did so many people choose to come? For the opportunities America provided. As Secretary Adams put it:
We understand perfectly, that of the multitude of foreigners who yearly flock to our shores, to take up here their abode, none come from affection or regard to a land to which they are total strangers. . . . We know that they come with views, not to our benefit, but to their own—not to promote our welfare, but to better their own condition.
And then, what made the United States a place that, far above others, offered such prospects? Its treatment of men as equals. It was a society that afforded no special privileges to any individual or group. The Civil War would tackle, or begin to tackle, the great exception to that rule. Adams (not incidentally a great champion of the abolition of slavery) addressed the “one principle which pervades all the institutions of this country, and which must always operate as an obstacle to the granting of favors to new comers.”
This is, he went on,
a land, not of privileges, but of equal rights. Privileges are granted by European sovereigns to particular classes of individuals, for purposes of general policy; but the general impression here is that privileges granted to one denomination of people, can very seldom be discriminated from erosions of the rights of others.
President Coolidge, speaking at the dedication of a Jewish community center a little over a century later, would say much the same thing:
Our country has done much for the Jews who have come here to accept its citizenship and assume their share of its responsibilities in the world. But I think the greatest thing it has done for them has been to receive them and treat them precisely as it has received and treated all others who have come to it. If our experiment in free institutions has proved anything, it is that the greatest privilege that can be conferred upon people in the mass is to free them from the demoralizing influence of privilege enjoyed by the few.
In America, unlike in Europe, Jews were free to be Jews (or not to be Jews, for that matter). Similarly, they were free to pursue any occupation they chose, and the responsibility for success or failure was on the individual’s shoulders. That’s an idealized picture, to be sure. Prejudice got in the way often enough. But it was closer to being the case here than it had been in any other nation in history, and perhaps was coming as close to that ideal as is possible so long as human nature remains what it is.
The “libertarian” charter of the early republic, to use Gordon Wood’s word for the classical liberal regime that prevailed in that day, provided opportunities but also placed a burden on individuals. Quincy Adams had admonished that immigrants “are not to expect favors from the governments. They are to expect, if they choose to become citizens, equal rights with those of the natives of the country.”
In other words, they come because they can work for themselves. No feudal lord or master would tell them what to do, nor would he, to use Jefferson’s phrase, “take from the mouth of labor the bread it has earned.” In sum, said Adams, “They come to a life of independence,” but also “to a life of labor—and, if they cannot accommodate themselves to the character, moral, political, and physical, of this country, with all its compensating balances of good and evil. . . . [they may] return to the land of their nativity and their fathers.”
Adams believed that it was the duty of those who wish to become citizens to become part of the American community in an even more robust sense—or at least to ensure that their children would:
To one thing they must make up their minds, or, they will be disappointed in every expectation of happiness as Americans. They must cast off the European skin, never to resume it. They must look forward to their posterity, rather than backward to their ancestors; they must be sure that whatever their own feelings may be, those of their children will cling to the prejudices of this country, and will partake of that proud spirit, not unmingled with disdain, which you have observed is remarkable in the general character of this people.
It was the duty of all immigrants to renounce any foreign allegiance. In the words of the Naturalization Act of 1790, each new citizen must pledge to “support the constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever.” Note the peculiar language. Allegiance is not to the “nation” or to a prince or king. It is to the Constitution, to the fundamental law of the United States.
By logical implication, to support the Constitution is to support the principles upon which that document is based. Truly to be American, truly to “support the constitution of the United States,” one had to agree with one’s countrymen about the greatness of America. When they “cast off their European skin,” they would be obliged, even, to “cling to the prejudices of this country.” That meant “partake[ing] of that proud spirit” of American patriotism. What was that prejudice? It was a belief in the superiority of a nation built upon the principles of 1776, or as Adams put it:
That feeling of superiority over other nations which you have noticed, and which has been so offensive to other strangers, who have visited these shores, arises from the consciousness of every individual that, as a member of society, no man in the country is above him; and, exulting in this sentiment, he looks down upon those nations where the mass of the people feel themselves the inferiors of privileged classes, and where men are high or low, according to the accidents of their birth.
More famous words along these lines come from the senatorial candidate Abraham Lincoln, who told the people of Illinois much the same thing about American nationalism. “Perhaps half our people,” Lincoln said,
have come from Europe themselves, or [their] ancestors have come hither and settled here, finding themselves our equals in all things. . . . When they look through that old Declaration of Independence they find that those old men say that “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, (loud and long continued applause) and so they are.
Truly to be an American is to be part of a regime built upon the principles of 1776. It was those principles that justified breaking away from the mother country, and that justified creating a new constitution for the Union by ratification, “deriving its just powers from the consent of the governed.” Those principles might be universal, but they were also peculiarly American, and fundamental to the United States in a way that they were not to any other nation. Lincoln knew as well as anyone that there were real problems in America. He also knew that there was nothing wrong with America that could not be fixed by applying what was right with America.
Immigration and the Mega-State
So it goes back in our history, this felt relationship between a government that treated people as equal individuals and a government that did not dispense special privileges. The U.S. government did so few things, in fact, that it mostly left people to themselves. Part of the reason immigrants were able to come in such numbers is that such a policy was congruent with the generally limited reach of federal power. To be sure, Adams, a National Republican and a Whig, supported what became known as the American System; but that was a far cry from what we have today. There is a rather large difference between building roads and canals, and regulating, for example, the conditions of employment for each and every business in the country.
As the 19th century came to a close, the American republic was a peculiar republic: very large and yet with a limited government. The statesmen of the era understood that building and expanding a centralized government over such a vast, diverse territory would imperil the maintenance of a republic of free and equal citizens.
Madison noted in a Federalist 45, “The powers delegated by the proposed Constitution to the federal government are few and defined.” That was intentional. The extended republic cured the problem of faction by only allowing general legislation regarding those areas in which there was universal agreement. In contrast, passing uniform laws covering a proliferating number of particular matters, and imposing them over such an expanse, would be arbitrary—what would be fitting in one place would be improper in another. Should the powers of the federal government increase, said Madison (in his Report of 1800), the rule of law would have to decrease. It would lead to a government of executive discretion.
Progressives, as they looked back on that limited-government model, would see it as uncharitable. But it was seen by Madison, Adams and others as a way of securing equality before the law and among citizens. And up through the dawn of the 20th century, that was basically the model being followed, particularly at the national level. Even at the end of the Progressive Era, when the United States closed the door on mass immigration for 40 years, our state was rather small. At the same time, patriotism was high. Today, our federal government is massive, influencing our daily lives in ways that few imagined or expected a century ago. With this “New American State,” to use Stephen Skowronek’s term for it, comes, inevitably, a new relation between government and citizen.
The more things the central government does, the more necessary executive discretion becomes. Such a government becomes not a government of laws but a government of the best judgment of the employees of the executive branch. Such has been the direction of change since the Progressive Era, and it has transformed the relationship between citizen and state. Once government is based upon such discretion, lobbying the central authorities becomes increasingly important. This means that Americans organize themselves by what Madison would have called factions—be they business groups, workers’ groups of various sorts, ethnic groups, regional geographic groups, groups pursuing a certain activity or ideological commitment (the Right-to-Lifers, the environmentalists).
Growing the administrative state, by the way, was anathema to figures like Benjamin Franklin. Shortly after the American Revolution, Franklin conveyed his qualms in an essay, not coincidentally on immigration, that affirmed a passage in the constitution of the Commonwealth of Pennsylvania. The independent state’s new constitution abjured the proliferation of governmental posts that would earn the occupants taxpayer-funded salaries. The effects of this expansion, quoted Franklin, “are Dependance and Servility, unbecoming Freemen, in the Possessors and Expectants; [and] Faction, Contention, Corruption, and Disorder among the People.” In other words, immigrants would be mistaken if they came to America and asked the government to take care of them, as their betters were supposed to do in Europe. The Pennsylvanians’ reasoning was impeccable. Whether one asks a hereditary Lord or an elected governor for a job, the relationship between official power and the individual is the same, one of patron and client. The more offices, the more clients there will be.
The more offices modern politicians have to dispense, the more factions will be generated around them, as men (and women today) organize themselves into groups seeking those offices. Such a government must, by its very nature, relate to individuals in the way of New York’s Tammany Hall or Richard J. Daley’s Chicago political machine.
In light of this New American State, the immigrant experience changes fundamentally. As ethnic groups arrive, the pattern will be “Welcome to the U.S., here’s your official lobbying group.” To be sure, ethnic organizations are not new. Jews, for example, organized charitable groups to help their fellow Jews and lobbied to combat discrimination—such as the quotas limiting the number of Jews admitted to elite schools. Jews, by the same token, had groups dedicated to teaching recent arrivals how to be good Americans.
Today we have groups like La Raza, which do not encourage assimilation and which lobby the government to ensure their constituencies get their share of goodies from the government. They lobby to ensure that colleges admit, and large businesses hire, a certain percentage of people from a particular group. They lobby the government not to secure fair opportunities for minority businesses to compete for government contracts, but to guarantee a certain percentage of those contracts.
It is also true that the more Latinos assimilate, the less important a group like La Raza becomes. Hence the leadership has little interest in assimilation. The rise of the mega-state makes it much more likely that new Americans will learn to think of themselves as parts of client groups rather than as equal individual citizens.
Multiculturalism as an ideology would grow naturally in the soil prepared by this New American State. By the late 1980s, a member of an academic committee at the University of Pennsylvania noted her “deep regard for the individual and my desire to protect the freedoms of all members of society.” [emphasis in original] She was verbally smacked down by an administrator for using the word “individual.” This was, she was told, a “a RED FLAG phrase today, which is considered by many to be RACIST. Arguments that champion the individual over the group ultimately privilege the ‘individuals’ who belong to the largest or dominant group.” It is not healthy that that ideology prevails on our campuses, where many new arrivals will learn, if anything, to be highly suspicious of citizenship in the classic American sense.
A Post-American World
At the same time that we have transformed American government, we have created an elite that rejects classic American patriotism. Recall Quincy Adams’ argument that immigrants who wish to stay must shed their foreign identities and become, or make sure their children become, fully American. Adams did not think the United States perfect—far from it. Still, newcomers must align themselves with the principles of the American regime. He steadfastly hoped that the country itself would come to embrace those principles more fully—by eliminating slavery in the South just as his home state had done shortly after 1776.
Today’s Progressives increasingly see themselves as part of a trans-national movement, working toward a cosmopolitan, post-national world. By transcending the nation-state, they hope, they can render war a thing of the past. If we are all part of one, big human family, and if we all work together for common, global prosperity and health, we will not choose to fight. That change of attitude not only makes assimilation a challenge—it means we hear influential voices wondering whether assimilation is at all worthwhile.
Students in America’s elite institutions today learn that the nation has fundamental defects, and that we need wisdom from other cultures. Recall Michelle Obama, a product of Princeton University, saying that America is “downright mean,” and saying that she was never proud to be an American until her husband was a successful candidate in the presidential primaries. As Dana Milbank, a graduate of Yale University, argued in a recent column on immigration:
This is not merely about a fresh labor supply but about the fresh blood needed to cure what ails us. To benefit from such a transfusion, we not only need to welcome more immigrants but also to adopt pieces of their culture lacking in our own — just as we have done with other (mostly European) cultures for centuries.
Note the biological, almost racial metaphor. We need new blood, literally; there’s something wrong with ours. His concern—and he is typical of the punditocracy—is not with bringing American practice closer to American principles or with assimilating millions of new immigrants. His concern is to change over to the newcomers’ standards and thereby create a new, different, and better America. It is a move away from the principles of 1776 in the direction of “progress.”
Nowadays many Americans are embarrassed to be patriotic. To be sure, this isn’t true across the board, and Americans are more likely to be patriotic than others. But the percentage is declining. The New York Times reports that 78 percent “of the older generation consider their American identity to be extremely important. That drops to 70 percent for baby boomers (50 to 68 years), 60 percent of Generation X’ers (34 to 49 years), and only 45 percent of young adults define themselves this way.”
The cofounder of Facebook, Eduardo Saverin, an immigrant to America who attended Harvard, renounced his U.S. citizenship before the company went public in order to save a fortune in taxes. Many were outraged. But where would Mr. Saverin have learned to love America and that he might owe it something?
To be sure, assimilation still happens, even if it is more difficult than it was in the age of proud Americanism that Quincy Adams described. Statistics show that immigrants are learning English and becoming citizens. But then it is time to ask: to what are immigrants assimilating? As a study from the Hudson Institute notes, immigrants, “even those who earn U.S. citizenship — have far less attachment to their new home than native-born Americans. Among the findings are that native-born citizens are more likely to view the U.S. as ‘better’ than other countries, more likely to see English as central to the American experience, and more likely to see the U.S. Constitution as a higher legal authority than international law.”
It is perhaps all the more remarkable that a significant proportion of immigrants, 44 percent, said they think the United States is “better” than other nations. But if a majority disagrees, what kind of Americans will they become? Why is Dana Milbank so certain that the changes they bring will be improvements? It might be that immigrants come here to work, in the classic fashion of immigrants. But what about their children? Are we assimilating them into the classic American values of thrift, hard work, and cooperation in civil society? Are we teaching them that America is a special nation, worthy of special respect? Absent such a belief, is it possible to assimilate large numbers of people?
Even in the colonial era, and later the Founding era, immigration was a perennial concern. People worried about the changes brought from afar. In the 1750s, Benjamin Franklin believed too many Germans were moving to Pennsylvania. In time, he feared, their foreign traditions would undermine English liberty. Perhaps he regarded the new federal Constitution as an improvement in that regard. It would make assimilation more necessary by subverting potential lines of ethnic patronage. In the 1780s, Thomas Jefferson expressed a similar concern. “They will bring with them the principles of the governments they leave, imbibed in their early youth.” Immigrants bring foreign ideas, customs, and manners with them.
If one thinks, as Jefferson and the rest of the Founders did, that American government is good, and that American principles are good, then it makes sense to ponder whether mass migration into America might, in time, ruin America. This preoccupation is all the more reasonable given that our elites begin to embrace a post-national ideal.
Looking forward to newcomers’ overwhelming the votes of the dominant faction of people born and raised here, which seems to be Milbank’s goal, has a political-science version: Ruy Teixeira’s popular “Emerging Democratic Majority” thesis. Political consultants of a certain stripe go in for this, believing that as America becomes a “majority minority” nation, whatever that paradoxical formulation means, it will wreck the Republican Party. Hence they have little interest in reducing illegal immigration. They regard it as bigoted to distinguish between citizens and non-citizens, or even between legal and illegal residents in the distribution of charity.
That is, or can be, defended as a principled position; but it also happens to be politically convenient, and such politics seldom end well. Progressives assume they will remain in charge, and they believe that past “progress” is locked in by the cunning of history. But their confidence seems misplaced. Earlier this year in an election in Minnesota, Phyllis Kahn, a member of the Progressive establishment, lost to Muhamud Noor, who was pushed over the top by Somali immigrant voters. If that is a sign of things to come, Progressives may come to regret the Teixeira strategy.
Blood and Soil
Modern immigration policy is also shaped by our understanding—I would argue, our misunderstanding—of the Fourteenth Amendment. It states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” For over a century, since the majority opinion in United States v. Wong Kim Ark (1898), that language has been understood to mean that anyone born on U.S. soil, except for the children of diplomats, is a U.S. citizen.
Especially in an age of regular and easy travel, it makes little sense to say that anyone whose mother happens to be passing through the United States when he is born is an American citizen. The phrase “subject to the jurisdiction thereof” might be interpreted as subject to the full jurisdiction thereof. (That is the case that Justices Fuller and Harlan made in their dissent in 1898.) And if we have a living constitution, it’s reasonable to reinterpret the Court’s majority decision. (Recall it is the same Court that gave us Plessy v. Ferguson; indeed there might be a connection: to make soil, or location at birth, fundamental to citizenship is no less arbitrary than making race segregation in railroads a government mandate.)
So long as anyone born on U.S. soil is a citizen, it will make it harder for “we the people” to decide whom we wish to join us as fellow citizens. Creating new citizens based upon mutual consent between a new, would-be citizen and current citizens is better—it would be an extension of the principles of 1776. Personally, I hope that we are generous in making fellow citizens, but we ought in principle to have a say in the matter. The Court has never decided whether people here illegally are “subject to the jurisdiction” of the United States. Drawing that line might be a good start.
Let me close with a few words about immigration from the United States’ neighbors to the south. Americans of Mexican descent are rapidly becoming the largest single group in the United States. “Between 1990 and 2000 the number of people who reported Mexican ancestry nearly doubled in size.”
Is Mexican immigration different? There are several ways it might be.
First, because Mexico and the United States share a border, having a bi-national family across that divide is not only commonplace, but something that was impossible for the previous large immigrant groups (Germans, for example).
Secondly, this increase has taken place rapidly, without the long, slow accumulation that allowed German, Irish and other such newcomers to assimilate.
Thirdly, it takes place in an age that permits the dual citizenship that was anathema to earlier generations of Americans, in an age when we have a fundamentally different state than we did before, and it concerns new arrivals from a polity with a historical claim on the American West.
On a recent visit to California, the President of Mexico, quite reasonably, expressed his concern about how Mexicans are treated in the United States. And he called California “the other Mexico.” Given Mexico’s historical claim to the area, if there is a sufficiently high percentage of Californians who view themselves as ethnic Mexicans, or perhaps even if they are assimilated into an “Hispanic” identity, there could arise a foreign policy question akin to that of German nationals in the Sudetenland in the 1930s or Russians in Ukraine today. It sounds farfetched, to be sure; and if we assimilate these immigrants to think of themselves primarily as Americans, this scenario will go by the wayside. But are we doing that?
America has been a powerful assimilator and may continue to be so. These worries, as I say, may be overdrawn. Perhaps the underlying culture of assimilation is too firmly entrenched to be subverted and will somehow be accommodated to our new national realities. Then, too, perhaps intermarriage will make a mockery of today’s ethnic/racial classifications. Perhaps, and God forbid, there will arrive some tragic historical event that brings our trans-nationals back home in their aspirations.
But on the other hand, perhaps we have a very serious problem on our hands—one we can only solve if we realize how serious it is.
 Dinesh D’Souza, Illiberal Education (The Free Press, 1991), pp. 9-10.