Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges, but that is not the Constitution we have.
Last week President Obama gave a speech to newly naturalized citizens at the National Archives. His remarks show why immigration, long rightly praised as an essential part of our heritage, has become a source of ever greater controversy. The President failed to acknowledge that it is the principles of limited government and individual rights that make United States a welcoming place for immigrants because they assure that newcomers cannot tip the political balance to make life worse for those already here.
Instead, the President celebrated the raw power of democracy to make “progress,” change that can come at the expense of long time residents.The President did suggest that one of the “binding forces” for America is “loyalty” to “the documents” that surrounded the new citizens at the Archives. But he never identified these documents by name, quoted any language from them, or explained why they have an enduring claim on our loyalty. In particular, President Obama cited almost none of the liberties protected by the Constitution and nothing of the structure of federalism and separation of powers that protects those liberties.
It is hard to believe this was mere oversight. His administration has notably failed to defend both the structure and rights that are actually in the Constitution. For instance, the enumerated powers constitute a fundamental tenet of the Constitution, but the Affordable Care Act was an unprecedented expansion of the Commerce Clause to permit the federal government to order citizens to buy goods and services. Religious liberty is an essential right, but President Obama’s administration argued this liberty did not protect the freedom of religious organizations even to fire their own ministers—a position unanimously rejected by the Supreme Court. On the issue of immigration itself, the President has skirted the separation of powers by unilaterally giving work permits to people whom the law says are here illegally.
Significantly, in fact, his speech dwells on only two rights: the right to criticize the government and the right to vote. These are quintessentially the rights of political action. For President Obama, these are the rights that help us make continual progress, that these documents have “inspired” as he puts it. Under the President’s view, what is central to America is not a set of rights beyond ordinary politics, but the power of ordinary politics at the federal level to transform the nation even without a constitutional amendment. It is a classic formulation of Progressivism—a creed that does not see the Constitution as the anchor for a fixed set of liberties protected through its system of checks and balances.
While the President’s speech was meant to make new immigrants feel immediately at home, the political dynamic that he extolled explains why many Americans fear immigration. If the Progressive agenda can erode the original meaning of the Constitution, immigration creates political risk for the current citizens. If new voters can help elect administrations that will trample on property rights and expand federal power to transfer resources, some current Americans will be made worse off. If these new voters become part of a coalition of racial and ethnic minorities to demand preferential treatment, many Americans will worry for their own children’s future.
The dissolution of restraints on government naturally creates polarization over immigration because it allows people to view newcomers as potential voters who may impose exactions on others rather than as citizens in a commercial republic who will promote the general welfare through their individual pursuit of happiness. While many complain about the attitude of Republican presidential candidates toward immigrants, it is President Obama and Progressivism more generally that have created a far less welcoming climate.