Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
There is much to agree with in Richard Samuelson’s essay. My disagreement arises from three main sources. First, Samuelson undervalues how important relatively freer immigration is for maintaining American values and institutions. Second, his view of the country’s past assimilation of immigrants is too rosy. Third, his pessimism concerning the assimilation of current immigrants is largely unfounded.
It is important to understand how restricted America’s current immigration laws are compared to the 19th and early 20th centuries. From 1790 to 1875, there were virtually no federal restrictions on immigration. Likewise state restrictions were mild, seldom enforced, and largely removed by a series of court cases in the first half of the 19th century. Beginning in 1875, Congress began to restrict immigration at the behest of Progressives, labor unions, eugenicists, and nationalists. By 1929, almost all immigration from outside the Western hemisphere was illegal.
While America’s immigration laws are currently more open than they were in 1929, and the explicitly racial exclusions have been removed, only a small fraction of immigrants who want to come here can do so legally.
These immigration restrictions stray far from America’s Founding ideologies of free-market capitalism, limited government, and individual liberty. America’s core Founding principle is the Enlightenment theory of natural rights. According to that theory, each individual has rights to life, liberty, and private property that are inherent, not the gift of any government. Freedom of movement is indispensable to the full use of these rights. To restrict an immigrant’s ability to move to the Untied States infringes not only upon his natural rights but also upon the natural rights of Americans who want to hire that immigrant, sell him goods and services, or otherwise interact with him. Government-created immigration restrictions on the movement of peaceful and healthy people thus presumptively violate the natural right to free movement.
Our English common-law heritage also has a strong presumption against limiting wealth-creating, mutually voluntary exchanges. Immigration restrictions are just such a limitation. Under our common-law heritage, losses in income caused through economic competition do not justify compensation. Similarly, if an immigrant worker competes with a native-born American worker, the latter cannot sue the former for damages. Extending this logic to immigration restrictions creates a strong presumption in our common-law heritage against restricting immigration.
Free markets require minimal governmental control over the means of production: land, capital, entrepreneurship, and labor. Immigrants are both entrepreneurs and laborers, so their movement should be as legally unimpeded as possible to be consistent with the free-market standard. The phrase laissez-faire is used to describe the free-market system. Yet laissez-faire was once frequently paired with the phrase laissez-passer—“let them pass”—an admonition against migration barriers within nations that distorted capitalism by impeding the movement of people toward economic opportunities. As laissez-faire also applied to international trade, so laissez-passer should also apply to international immigration. Laissez passer is a neglected but vital component of free markets.
An ideology of free markets and individual liberty creates a strong presumption in favor of freer immigration. Since natural rights existed prior to government and do not derive from citizenship, the burden falls upon those who oppose freer immigration to show why it should be restricted, just as in other circumstances the government bears the burden of justifying the abridgement of citizens’ rights to life, liberty, and private property. Such reasons could be based on legitimate national security, health, and criminal concerns but they cannot be based on economic or cultural protectionism. Supporting the current system of immigration restrictions or an even more restrictive set of laws is well outside the ideological boundaries established during our Founding.
Quotes from the Founding Fathers give insight to their wisdom but tell us very little about the actual experience of immigrant assimilation into the civic and cultural life of the United States. Samuelson provides little information on whether other Americans accepted those immigrants and their descendants as Americans—a vital component of assimilation. America’s early history of immigrant assimilation was not exemplary.
Samuelson wonderfully highlights the negative reception many Jews received in the United States but he ignores the exclusion faced by Catholic immigrants. Our nation has a long history of anti-Catholicism. Before the American Revolution, Guy Fawkes Day was celebrated in America and known as Pope Day—a holiday when an effigy of the Pope was burned in some American cities. The Quebec Act of 1774, passed by the British Parliament, removed many prohibitions on the practice of Catholicism in that province to the consternation of some of America’s Founding Fathers, like Alexander Hamilton and John Jay. George Washington was the exception when he ordered the Continental Army to celebrate St. Patrick’s Day in an effort to make the Catholics in his army feel more welcome. Many Americans considered Catholicism an alien religion, one fundamentally at odds with the values of a free society.
Catholics predominated among immigrants to the United States beginning in the mid-1800s. Anti-immigrant and anti-Catholic riots, spurred on by the large Nativist and Know-Nothing movements of the time, rocked the country from the 1830s through the 1850s. One of the most infamous riots was “Bloody Monday,” in St. Louis in 1855, when nearly 100 Catholics, many of whom were immigrants, were murdered and their section of town was burned. Convents and churches were burned in Boston while Philadelphia was rocked by violence. John Hughes, the most prominent Irish American at the time and the Archbishop of the Diocese of New York, warned that “if a single Catholic church is burned in New York, the city will become a second Moscow,” in reference to Napoleon’s destruction of that city. The second largest mass lynching in American history was of 11 Italian immigrants in New Orleans in 1891. President Benjamin Harrison publicly apologized to the Italian government for the New Orleans carnage in his message to Congress in 1892.
Despite all of that violence, the descendants of those immigrants assimilated and Americans gradually accepted Catholicism as part of the religious fabric of the United States. There is currently no tension between being a Catholic and an American, although there was for much of our history. Into that 19th century maelstrom of violence and anti-Catholic bigotry, millions of Catholic immigrants came, their descendants assimilated, and they thrived. The modern process of cultural assimilation looks heavenly compared to the maelstrom of the 19th century.
The process of assimilation is a two-way street. On the one hand, immigrants and their descendants gradually take up most of the customs, mores, and values held by long-settled Americans. On the other hand, native-born Americans also accept the immigrants, their children, and some of their particular customs, religions, and habits as part of the fabric of America. Immigrant groups from pre-colonial times until today have left their marks on American culture. Virtually every major cultural activity from religious practices, cuisine, and holidays to the style of political oratory and the English language, have adapted and grown as a result of contact from each of America’s immigrant groups.
Is it really true that the current rate of assimilation is slowing down or reversing? Intermarriage between ethnic groups, immigrants, and their descendants is so widespread in the United States that it can be difficult to measure assimilation. Against what benchmark can we judge the assimilative success of a child of a Mexican mother and an American father whose ancestors arrived at Plymouth Rock?
Many studies that attempt to track assimilation are flawed and underestimate current assimilation because they rely on the self-identification of the respondents. For instance, a third-generation American of Mexican descent who does not think of himself as Mexican or “Hispanic” will not register as Mexican or “Hispanic” in the survey. Those who do not so self-identify are more likely to be assimilated than those who do identify as one or the other. Excluding them from a study biases its results against assimilation. Intermarriage adds another complicating factor. Measuring assimilation of the descendants of immigrants directly reveals the correct pace of assimilation—and it is rapid.
According to Jacob Vigdor, the preeminent expert on immigrant civic and cultural assimilation, today’s rate of assimilation on all measurable characteristics is similar to the rate of assimilation for immigrants who arrived in the early 20th century. There is no indication that these rates of assimilation are slowing, even as a majority of immigrants are now coming from Asia. According to research published in the academic journal Perspective on Politics, Americans who describe themselves with a prefix like “Hispanic” are no more or less patriotic than Americans who do not. Remarkably, after adjusting for age and education, U.S.-born Americans who describe themselves as “Hispanic” were more patriotic on average.
Ideological and political assimilation is of most concern for the maintenance of the civic values Samuelson prizes. First off, the self-professed ideological differences are small between immigrants to the United States and those who trace their antecedents four generations back or more. Immigrants are about four percentage points more liberal and three points less conservative than fourth-generation or greater Americans, according to the General Social Survey. Those differences shrink in the second generation and are virtually absent in the third.
Related to the political and ideological opinions of immigrants and their descendants is how much the American political landscape has changed. Labor historian, economist, and immigration restrictionist Vernon M. Briggs, Jr. observes that the New Deal and the Great Society programs became law during periods when American immigration was heavily restricted. Briggs further concludes that those immigration restrictions made possible the New Deal and Great Society programs—which he claims would have been politically impossible with a large foreign-born population as potential beneficiaries.
Ethnic rent-seeking plays an important role in Samuelson’s critique of modern assimilation, but he ignores the historical prevalence of that admittedly nasty phenomenon in the United States. Today’s ethnic lobbies like La Raza, the League of United Latin American Citizens, and the Hebrew Immigrant Aid Society are not very different from ethnic lobbies of ages past. Present-day immigration restrictionists are fond of blaming these lobbies and business interests for halting crackdowns on unlawful immigrants or opposing the passage of new immigration restrictions. After President Taft vetoed an immigration-restriction bill in 1913, the head of the Immigration Restriction League said, “to hell with Jews, Jesuits, and steamships” as a condemnation of the three lobbies opposing restriction at the time. How little things have changed.
During the first congressional elections in 1788, Germans in Pennsylvania demanded representation in proportion to their weight in the population, and they got it, as Federalists and Anti-Federalists nominated an appropriate number of German candidates. German Americans reemerged frequently, as a voting bloc, throughout American history to counter anti-Catholic laws, anti-immigrant movements, and other legislative efforts that were targeted at them. With approximately two and a half million members, the National German-American Alliance actively opposed the assimilation of Germans.
Irish immigrants took over the Democratic Party in many major cities, but that did not stop them from forming religious lobbies like the Knights of Columbus that frequently advocated for Irish, Italian, or Mexican American interests. The Knights of Columbus was much more than a lobby. It was a charity, mutual aid, and fraternal organization, too, but spent much time lobbying for what can only be described as a multicultural holiday: Columbus Day. From its first celebration by Italian immigrants in New York in 1866 to today, Columbus Day has been a point of ethnic pride for many Italian Americans. Ironically, American conservatives who are most opposed to multiculturalism defend Columbus Day against a modern multicultural lobby that believes it should be abolished.
Numerous Jewish lobbies formed in response to the revival of anti-Semitism in the United States and Europe in the late 19th and early 20th centuries. Their goal was to protect America’s traditional open borders policy so the United States could continue to be a sanctuary for Jews fleeing Europe—a policy reversed in the 1920s, with disastrous consequences for those Jews attempting to flee Nazi Germany.
The types of individuals who can be American have expanded dramatically over time. Catholics, Jews, black Americans, Asian Americans, and others were regarded as unassimilable or un-American for large swaths of our past. Whereas early Americans saw no contradiction between describing themselves as both Protestant and American, modern Americans see no contradiction, either, in describing themselves as Catholic, Asian, or Latino.
It is a testament to the universal appeal of the values of the American Founding, expanded over time, that so many individuals of so many different origins can describe themselves as American plus an identifier that is ethnic, religious, or cultural. The specific identifier used may seem very important today but will lose meaning to future generations as the inexorable friction of assimilation, intermarriage, cultural change, and the constant addition of new identifiers supplants the older ones in importance. Such is the pattern of assimilation in the United States— yesterday, today, and by all indications, tomorrow.