Edward J. Erler: The United States in Crisis: Citizenship, Immigration, and the Nation State. Claremont: The Claremont Institute, 2020.
Amidst the farrago of blather that has been uttered and scribbled on the topic of immigration in the United States, at last we have an astringent, clear, Constitutionally sound analysis. Professor Erler strikes one as a man who suffers fools ungladly, choosing only the most important fools to target—most notably the Supreme Court justices who scrambled the issue almost beyond recognition, nearly a century and a quarter back.
“This volume presents a defense of the sovereign nation-state and its essential component, citizenship.” The nation-state has been under attack by ‘internationalists’ for a long time, blamed for war, economic depression, and social prejudices of every description. Erler exposes the underlying animosity: “the nation-state is the only form of political organization that can sustain constitutional government and the rule of law. No empire has ever been a constitutional democracy or republic, nor will constitutional government exist in global government.” In the eyes of internationalists, that is precisely the problem with it. Whether ‘idealists’ who seek the end of human conflict or ‘realists’ in corporate boardrooms hankering for worldwide oligarchy, internationalists find in the nation-state an annoyingly retrograde political phenomenon, one that persists in giving scope to politics as the classical writers understood it: ruling and being ruled, rule by consent of the governed. It would be so much better, internationalists feel, if only we all submitted to rule to people like themselves, experts in ‘scientific administration’ or, as Erler puts it “the rule of scientific experts.”
The ‘scientists’ have been experimenting on us for some time. The United States no longer has the democratic republic established by the American Founders, beginning in 1776 and culminating in their inheritors—the Americans who won the Civil War prior to framing and enacting the Thirteenth, Fourteenth, and Fifteenth Amendments. That regime rested on the sovereignty of the American people, although it unjustly excluded slaves from that category. James Madison identified it as the distinctively American form of republicanism—’republicanism’ having become a somewhat squishy term, since Machiavelli, who defined it as any regime other than a monarchy ruled by a ‘prince.’ We now have, at best, a ‘mixed-regime’ republic, with the original popular sovereignty counterweighed by what amounts to an oligarchy consisting of unelected bureaucrats who are nearly impossible to remove from office. Not to put too fine a point on the matter, Erler writes, “the Washington political establishment and the ruling elites…have transformed the regime into an oligarchy.” Oligarchs restrict citizenship to themselves. The fascinating move that American oligarchs have made has been to disguise their long march to oligarchy as an expansion of citizenship. It is this strategy of feinting and brilliant insinuation that has made their movement so effective.
“My intention” he writes, “is to revive the debate about American citizenship so that, even at this late date, it can be restored to its original basis as articulated by the Founders who knew better than today’s progressive liberals the crucial relationship of citizenship to the sovereign nation, constitutionalism, and the equal protection of equal rights, which we designate as the rule of law.”
All political regimes answer the question, ‘Who rules?’ Rulers may rule as masters over slaves (tyranny), parents over children (kingship), or as citizens among fellow citizens (republicanism). Whatever the regime might be, it will distinguish between those under its rule and those who are not—foreigners. If the regime is republican in the American-Madisonian sense of a self-governing, sovereign people who elect representatives to govern them, their protection of such citizens from foreigners who may not share the same regime principles requires clear territorial borders, defensible against invasion by foreigners. On this point, however, both progressives and libertarians demur. “Libertarian and progressive liberalism seem to agree on open borders, meaning the nation is defenseless to defend its borders and therefore not sovereign.” Both libertarians and progressives are apolitical or indeed anti-political, albeit in different ways. Libertarians dislike politics because it political activity may interfere with capitalistic acts among consenting adults; progressives dislike politics because it interferes with administrative ‘management’ of populations they suppose incapable of governing themselves wisely and efficiently. The 1892 Supreme Court thought differently. In the majority opinion deciding Nishimura Ekiu v. U.S., the Court observed that “It is an accepted maxim of international sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominion, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”
Protection of borders as a means of securing the self-preservation of citizens? All wrong, ‘progressives’ contend. Borders themselves are objectionable; they themselves cause conflicts. “Progressive liberalism no longer views self-preservation as a rational goal of the nation-state; rather, self-preservation just by subordinate to openness and diversity,” said by ‘progressives’ to be the only true harbingers of peace among nations. As then-Vice President John Kerry intoned, Americans must “prepare [themselves] for a borderless world.” “A world without borders,” Erler replies, “will be the ‘universal and homogeneous state,’ the European Union (EU) on a world scale,” a state ruled “by unelected bureaucrats or administrative experts, much like the European Union is run today.” Political liberty, citizenship, has proven itself “a dangerous delusion now dispelled by science,” to be replaced by “welfare” defined and provided by the oligarchs who will rule us for our own good, as defined by themselves. This sounds like parental or ‘kingly’ rule, a sort of infantilization of the human race, but Erler inclines to expect it to be tyrannical, ruling for the good of the rulers. “This universal tyranny will be no different—no less severe, no less degrading—than the tyrannies of the past. In fact, this universal tyranny will bring a new kind of terror and violence to its rule; it will be more efficient and pervasive because it will be backed by all the innovations of science and justified by the advancement of the human estate, the professed goal of modern science from its very beginning,” as seen in the writings of Francis Bacon.
That is, the ‘diversity’ of the many peoples of the world will be given lip service, but the worldwide regime will be homogeneous, with no meaningful degree of federalism, separation of powers, or any of the other institutional safeguards Americans once esteemed. Erler does not explain why such homogeneity of rulership must be tyrannical, but he likely has in mind a lesson learned from his eminent teacher, Harry V. Jaffa, who learned it from Aristotle. The social foundation of the polis, Aristotle observes, is the family. The family begins with heterogeneity, not homogeneity, with male and female. The married man and woman do much more than produce children; they govern children after producing them. In ruling the household, the parents rule one another, reciprocally, as husband and wife, while ruling the children by command, as father and mother. Because families cannot themselves supply all their own needs, they form associations with other families, eventually forming poleis or ‘city-states.’ The best practicable regime for a polis is the ‘mixed regime,’ a decidedly heterogeneous form of government whereby the two main social classes, the many who are poor and the few who are rich, establish a balanced way of ruling, preferably with the help of a moderate ‘middling class,’ which serves as arbiter between the two social extremes. It is therefore logical for today’s proponents of the universal and homogeneous state not only to eschew heterogeneity when it comes to actual ruling but also to deny the heterogeneous origins of politics by denying that ‘male’ and ‘female’ are real categories at all. What the neo-Marxist Herbert Marcuse lauded as ‘polymorphous perversity’ will yield not some sort of communitarianism but fake diversity ruled by real masters. (1)
If citizens of republics are reduced to clients under a worldwide oligarchy, the consent of the governed will go. As Montesquieu argued, “The best guarantee of a peaceful and free world would not be a global state, but a system of nation-states made up of liberal democracies,” since such regimes “rarely (if ever) go to war with one another.” This does not commit us to the over-optimistic project of President George G. W. Bush, who dreamed of “ending tyranny in our world” (as he put it). It rather partakes of a realism more realistic than either ‘idealism’ or ‘realism’ as they have been defined by progressive liberalism—the political realism that wants to know, first and foremost, what kind of regime we are aiming at, and then considers how it might be achieved without foolishly huge expenditures of blood and treasure. Bush “did not seem to realize that it would require a universal tyranny to end tyranny in the world” because “the desire to rule will remain a permanent feature of the human soul,” unless some set of clever, scientifically adept bureaucrats figures out a way to expunge it from us, effectively dehumanizing us. Unfortunately, as Erler remarks, “the human capacity for self-deception is almost unlimited.”
Consistent with his preference to resist such wishful thinking, Erler doubts that a reversal of the ‘globalist’/administrative state project will be effected, although he does not call it impossible. In America today, “the political atmosphere of the 1850s has been recreated. Reason has been driven from the public square, and hysteria has replaced discourse.” He remarks that “all of Lincoln’s great speeches of the 1850s…were dialectical and rhetorical masterpieces but political failures. The greatest logic is impotent when the audience is unwilling to listen to reason,” indeed preferring in some circles to excoriate reason as an instrument of oppression—one that gets in the way of imposing the form of oppression they have in mind. Erler firmly identifies the chatter about ‘racism’ as racist, “purely and simply a demand of racial superiority, not a demand of equal justice under the law.” To ‘defund the police,’ as the new racists demand, will open the space for such new political parties as Black Lives Matter and Antifa to “become the de facto police forces, enforcing the various rules and regulations against racism and white privilege.” “Like police forces in every other Third World country, political crimes (violations of political correctness), not crimes against persons and property, will be their focus.”
This strays rather far from the principles of the Declaration of Independence, doesn’t it? “The Declaration of Independence announces that the United States has become a separate and equal nation dedicated to promoting the safety and happiness of the people.” The American people wanted political independence from the British Empire because that empire was tyrannizing over them by, among other things, sending unelected administrators to American soil with the purpose of “eating out our substance” with various forms of taxation. And as for the happiness of the people, that and that alone can provide “the ground of friendship that is the basis of citizenship,” which can only be found “in particular nations that are separate and sovereign”—self-governing on the basis of shared principles and shared habits of mind and heart.
“For many years, progressive liberalism has asked us to believe something incredible: that the most important and admirable aspect of the American character is defined only by its openness and unlimited acceptance of diversity.” But ‘diversity’ without any rational definition which says what the limits of diversity are really amounts to a rhetorical tool of dividing and conquering. “No one can be a ‘citizen of the world.’ The phrase itself is a simple contradiction. To be a citizen is to belong to a particular regime, and a particular regime cannot be a universal regime.” [2] Far from strengthening America, ‘diversity’ promotes “division and contention,” “racial and ethnic division and something resembling the tribalism that prevents most of the world from making constitutional government a success.” Diversity “means that we have less in common, and the more we encourage diversity, the less we honor the common good,” the more we ‘open’ ourselves to the dissolution of America and the consequent strengthening of the project to found “the universal homogeneous state, which will use diversity to dispense with the common good and constitutional democracy” for the benefit of the oligarchs. One might add that the agitators against ‘racism’ and the various ‘phobias’—homo, trans, Islamo—and all others “that make up the universe of political correctness” are likely to find themselves duped and coopted by the rather better-armed and better-organized elites that they imagine they are heroically resisting.
How, then, does the United States Constitution define citizenship? Initially, it didn’t: although the Constitution stipulates that only a “natural born Citizen, or a Citizen at that time of the Adoption of this Constitution,” may serve as president, “no definition of natural-born citizen was included in the text of the [original] Constitution.” Such a definition was included only in 1868, with the Fourteenth Amendment. Before that, “as a practical matter, state citizenship determined federal citizenship with respect to eligibility to constitutional offices. Anyone who was deemed to be a citizen of one of the ratifying states was considered to be a citizen of the United States.” Since citizens cannot exist prior to the existence of the civitas, since citizenship itself isn’t natural, no one could have been a citizen of the United States before 1776, when the American people declared their independence from the British regime. “Questions of citizenship will always provoke regime questions—what are the principles and character of the regime and constitution?—because citizens, as Aristotle rightly argues, are relative to the regime.” This means that the first natural-born citizen of the United States to serve as president was Martin Van Buren, who didn’t arrive in the White House until 1837. What, then, made the previous presidents Constitutionally licit? The answer is that this was simple necessity; “the founders of the laws are a law unto themselves,” always and everywhere. Less dramatically, one might say that founders ought to obey the laws of nature and of nature’s God, but in framing conventional laws, constitutional laws, they can at best obey those laws only insofar as they are practically ‘obeyable.’ And so George Washington was bound to exercise his executive powers according to the provisions of the Constitution, but neither he nor any other American could have met the requirement of “natural born Citizen” and also fulfill the requirement of being thirty-five years of age or older in the 1780s indeed until 1809. This still leaves a gap of nearly thirty years between Madison and Van Buren, but the American people cheerfully elected more mature candidates in that period, notwithstanding Constitutional stricture, respecting the prerogatives of the founding generation, to say nothing of the advisements of common sense.
In the words of the Fourteenth Amendment, “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.” Some thirty years later, the Supreme Court misinterpreted the phrase “subject to the jurisdiction” in terms of English common law. But in fact “the phrase ‘subject to the jurisdiction’ is completely alien to the common law” and “the author of the citizenship clause did not mention the common law when he introduced it in the Senate” in 1866. Indeed, “no principal supporter of the citizenship clause, nor anyone who spoke in its favor, ever mentioned the common law, or Blackstone, or Sir Edward Coke, the author of the opinion in the Calvin’s Case (1608) which was the first case to codify British subjectship.” British subjectship isn’t American subjectship because the British regime isn’t the same as the American regime. The British regime of 1608 was a monarchy; one person was sovereign, not few, and surely not many. There were no citizens under the monarchy, only subjects, because (as Blackstone explains) allegiance to the king is said to be natural, a “debt of gratitude” to the king for his protection of his subjects. That is, British subjectship is an condition of feudal fealty, no feature of popular sovereignty in a republican regime.
The author of the 1898 majority opinion in United States v. Wong Kim Ark, Justice Horace Gray, imported a common law criterion into American constitutional law. This “provoked a vigorous dissent by Chief Justice Melville Fuller,” joined by the great Justice John Harlan. Fuller argued that “whatever in the common law that was incompatible with the principles of the Declaration was null and void from the beginning.” After all, what did the Declaration declare if not the independence of the American people from the British regime? By further declaring that the consent of the government undergirds the just powers of government, the Declaration replaces “passive subjectship” with “the active participation of citizens in their own government.” As James Wilson (who signed both the Declaration and the Constitution) wrote, “under the Constitution of the United States there are citizens, but no subjects,” and therefore American citizenship has never depended upon common law.
Justice Gray was following the claim of the distinguished if somewhat dodgy commentator, James Kent, who claimed that while “the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subject, for we are equally bound by allegiance and subjection to the government and law of the land.” But this is hardly so, inasmuch as in the American republic the people are sovereigns, not their government. Kent effectively smuggled a European notion into American law, via the Supreme Court. To this day, even though the British regime is now a republic, not a real monarchy, the government is sovereign. Not so under the U. S. Constitution, rightly understood. Erler aptly quotes James Madison, who counted among “the fundamental principles of the Revolution” the intention “to rest all our political experiments on the capacity of mankind for self-government.”
Given the importance of consent, the state governments determined that “no one who was unwilling or unable to fulfill his obligations as a citizen would be acceptable as a citizen.” Such persons included those who had taken up arms against the British and those who declared allegiance to the newly constituted regime within a reasonable time, typically between 1776 and 1783, when American independence was recognized by the British themselves, two years after the ratification of the Articles of Confederation. In that first American national constitution, the Framers set down that “The Citizens of each State shall be entitled to all privileges and Immunities of Citizens in the several States.” This clause raised the worry that free black citizens might resettle in slave states, then demand full privileges and immunities. “this was probably the real reason that ‘citizen’ and ‘citizenship’ could not be defined in the Constitution until the slavery issue was resolved,” an event that could not have happened “without a strong national government” along the lines of the 1787 Constitution, not the Articles. As affirmed in the 1844 case, Lynch v. Clarke, the 1787 Constitution made citizenship a matter to be determined by the United States Congress, not the states, although it also (and unjustifiably) claimed that the Declaration of Independence was based on the English common law—oddly conflating common law with the law of nations, which the Declaration did indeed appeal to.
It is of course true that the Framers imported many features of the English common law into the new regime. Treason, cases in equity, bills of attainder, the writ of habeas corpus, trial by jury, bail—all these were retained. But the Founders understood them not simply as common law principles but as natural rights, or rights derived from natural rights, not historical or conventional rights only. Kent himself acknowledged this.
The principle of consent differs from common law not only in eschewing feudal fealty and government sovereignty but in establishing the right of expatriation, denied by the common law principle of perpetual allegiance. In the United States, allegiance to the republic is consensual, as in the Flag Pledge, as “the right of expatriation was always implicit in compact theory,” given that theory’s affirmation of choice as “impl[ying] reason and natural right,” not the divine right of kings over subjects. As James Wilson wrote in his Lectures on Law, “every man being born free, a native citizen, when he arrives at the age of discretion, [he] may examine whether it be convenient for him to join in the society for which he was destined by his birth. If, on examination, he finds, that it will be more advantageous to him to remove into another country, he has a right to go.” As Erler remarks, this is right out of John Locke’s Essay on Civil Government. Locke holds that a child remains under his father’s authority until “he comes to the age of discretion; and then he is a freeman, at liberty what government he will put himself under, what body politick he will unite himself to.” “Natural-born citizen” therefore means “anyone born in the United States after the date of the Declaration of Independence” who does not renounce citizenship upon attaining his majority—with the aforementioned, necessary exception of those members of the founding generation born under British rule who consented to the American people’s independence under the laws of Nature and of Nature’s God. “The common law of perpetual allegiance and birthright subjectship was replaced by voluntary consent as the basis of republican citizenship.” One might say that the right of expatriation is the equivalent of the natural right of a people to alter or throw off their government.
Getting down to the case in question, United States v. Wong Kim Ark, Erler recurs to Coke’s opinion in Calvin’s Case. “Ligeance is a true and faithful obedience of the subject due to his sovereign,” Coke maintained—a condition inherent in subjecthood itself. “For, immediately upon their birth they are under the king’s protection.” This differs from the language of the Fourteenth Amendment, which refers to citizens as persons subject not to a monarch but to the jurisdiction of the United States, where the government is subject to the people, not the other way around. As Erler puts it, “the framers of the Citizenship Clause intentionally avoided using the word ‘allegiance’ in the clause because they wanted to dispel any idea that citizenship derived from the common law.” The Civil Rights Act of 1866, enacted a year before the Fourteenth Amendment, defined citizens as “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Therefore “not everyone born within the geographical limits of the United States was deemed a citizen by birth” because “not everyone born within the geographical limits of the United States was ‘subject to the jurisdiction’ of the United States.” For example, the child of a foreign diplomat born here did not become an American citizen. Far more important, framers of the Fourteenth Amendment, who followed the same principles as those who wrote the Civil Rights Act, intended “to complete the Founding by implementing the principles that the framers were compelled to postpone” by means of the several compromises with the slaveholders who came to deny that slaves had the natural right to liberty. “From this point of view, the Civil War must be understood as the last battle of the Revolutionary War,” or perhaps more precisely as Revolutionary War II, “since only the Reconstruction Amendments bring the Constitution into full compliance with” the fundamental principles of the American revolution or regime change. Among other things, the Fourteenth Amendment overturned “the infamous Dred Scott decision, which had held that no Black of African descent, slave or free, could ever by a citizen of the United States.” On the contrary, they are “natural-born citizens” as much as their white former masters.
Wong Kim Ark was born on American soil, the child of parents who were Chinese subjects but domiciled in the United States. There being no treaty between the United States and the sovereign emperor of China which would permit Chinese subjects to become U. S. citizens, the question became, did their son nonetheless become a citizen by virtue of his birth on American soil? In 1890 he traveled to China, returning to America and readmitted “as a native-born citizen,” but four years later he did the same thing and was “refused readmission on the grounds that he was not a citizen of the United States.” The Supreme Court took the case in an attempt to eliminate such arbitrary decisions by the government.
Writing for the majority, Justice Gray claimed that the Fourteenth Amendment “must be interpreted in the light of the common law, the principle and history of which were familiarly known to the framers of the Constitution.” Familiarly known, to be sure, but adopted in wholesale? As Erler has already shown, hardly so: “Justice Gray’s attempt to import the Civil Rights Act and the Fourteenth Amendment into the common law is a fantastic sleight of hand,” as “both were a reflection of the Founding principles that had rejected common-law standards,” except insofar as they were consistent with natural rights. Oddly, earlier in his career Justice Gray did adhere to the compact interpretation of the Constitution. “How Justice Gray came to believe that Americans wanted common-law citizenship is still a mystery.” One may, however, speculate. It is true that Woodrow Wilson, who rejected natural-rights constitutionalism, favored the English common law, comporting as it did with his historicist and statist principles, principles that were developing into full-blown Progressivism by the time Justice Gray wrote his opinion. It may be that Gray was going with the prevailing ideological flow. But there is no evidence of this, and so it remains conjecture, only.
Erler himself skips over the Progressives, quite sensibly turning to the next major events in the immigration controversy, namely, the three laws that comprised the centerpiece of President Lyndon Johnson’s ‘Great Society’ legislation: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration Act of 1965. The latter “has had a dramatic impact on the demographic transformation of American society and…American politics.” “This may have been the unspoken imperative of the administrative state,” which has at least partially established not only an oligarchic regime in the United States but also the practice of governmental sovereignty.
Beginning with the Civil Rights Act, although the language of the Act guaranteed equality of opportunity, only, it was soon transformed by federal administrators into an instrument enforcing preferential treatment of hitherto disadvantaged racial minorities under the principle of equality of results. “Equality of result, it was argued, was the only real proof that equality of opportunity was not in fact a sham or a mere illusion.” Although President Kennedy had rejected the quota system which aims at enforcing equality of results, the bureaucrats charged with enforcing the law he had championed, and which President Johnson signed, had other ideas. “Whatever may have been the intentions of the framers, the Civil Rights Act was transmogrified, under the close supervision of the administrative state, into a measure that required racial classifications to achieve compensatory justice for racial class injuries—quite in opposition to the natural-rights principle whereby rights inhere in individuals by nature and in groups organized by their consent under governments constituted by themselves. Racial rights and privileges treat rights of groups that did not organize themselves by consent—whites, blacks, other ‘peoples of color—as if they had. “This happened despite repeated assurances from members of Congress that the Civil Rights Act could never be construed to require hiring or promotion or firing on the basis of race or color.” The Voting Rights Act of 1965 “suffered a similar fate” under the direction not only of the administrative state but of the courts; “what was intended as a bill to end racial discrimination in voting” quickly became “one that required racial discrimination in voting to reach racially proportional results.”
The subsequent Immigration Act seemed different, as it abolished an existing quota system. But it replaced it with another, this time favoring immigrants from “the areas of the world that had been excluded in the past.” “After 1965, the majority of immigrants would come from the Third World, particularly from Latin and South America and Asia.” Why? “The welfare bureaucracy—with its allies in the civil rights community—was eager to perpetuate the dependence of new immigrants, whether legal or illegal,” upon itself. Previous immigrants had been admitted as potential citizens expected to participate in the American workforce, not as prospective clients of the administrative state. That now changed. “The administrative state has a life of its own. It seeks to extend the reach of its influence and magnify its power, and it does so largely out of sight of the public. Its weapons are administrative regulations an policies of indirection, all backed by the cooperation of a compliant court system.” With regard to the latter, Erler cites the 1982 case, Plyler v. Doe, which held that the Fourteenth Amendment’s equal protection clause meant that a state may not deny public education to the children of illegal aliens. “Only in the world of postmodern citizenship—hurtling toward the homogeneous world state—was such a spectacle possible: illegal aliens demanding a law that would challenge the sovereignty of the United States.” “The right to determine citizenship and to defend borders is inherent in the idea of sovereignty. Surrender these fundamental attributes and it is a simple fact that no nation can remain sovereign.”
And it is more than a matter of sovereignty alone. The United States Constitution constitutes not the American people, who existed long before its ratification, but the formal or institutional capstone of the American regime. That regime depends not only upon its ruling institutions but upon the character of its rulers, the American people, and upon their way of life. As Thomas Jefferson wrote in his Notes on the State of Virginia, refugees from despotic governments “will not become good republican citizens—or at least not easily and not quickly,” through no fault of their own but because under such regimes they will not have developed the habits of mind and heart that conduce to self-governing citizenship. To say that all men are created equal under the laws of Nature and of Nature’s God is not to say that all ways of life, all regimes, are equally good; if they were, why would anyone flee their own country, under its regime, for another? Freed from the fetters of despotism, immigrants from badly ruled countries are likely to revel in what Jefferson called “unbounded licentiousness” instead of the rational liberty a republican regime requires for its prosperity and indeed its survival. Although Erler thinks that “Jefferson underestimated the capacity of the United states to assimilate a wide variety of peoples,” he joins with him in opposing mass immigration from “those countries whose people would have the greatest difficulty assimilating.” And he rejects the claims of ‘diversity’ advocates in and out of the administrative state who have worked to convince immigrants that it is wrong for them to assimilate.” “Multiculturalism dissolves and dissipates a nation’s strength. A nation-state must have a common good, something that all citizens share and look up to, something that transcends their immediate interests, something that is patriotic.” At one time, in America, that was the principle of equal natural rights. Those rare governments aimed at securing such rights have every right to defend themselves by regulating the flow of immigrants who seek entry.
Advocates of open borders will reply that United States v. Wong Kim Ark and Plyer v. Doe may or may not have been rightly decided on the basis of law, but they were good decisions notwithstanding because they were compassionate decisions. Why, they will ask, should Wong Kim Ark not have been allowed to reunite with his parents, after having lived in the United States all his life? And why should the innocent children of admittedly illegal aliens not be afforded an education by a country wealthy enough to afford such liberality? Should not the secular equivalent of the universal ‘new law of love,’ enunciated in the New Testament, not override the particularistic ‘old law’ of Israel? Erler concludes with a crucial point: compassion isolated from reason is not morally dispositive. “Immigration driven by compassion is misplaced. compassion is sometimes necessary in extraordinary situations, but as a general policy, it only exhibits weakness to the world…. The few remaining constitutional democracies cannot allow their immigration policies to be driven by compassion; if they allow their borders to be erased in the pursuit of that goal, they too will dissolve into dysfunction,” becoming exactly the kind of ‘failed states’ that immigrants are attempting to escape. Compassion is a passion, however generous. Like all passions, it is moral only if bounded by rational limits or, as it were, clear and well-defended borders.
Notes
- See Harry V. Jaffa: “Chastity as a Political Principle: An Interpretation of Shakespeare’s Measure for Measure.” In John Alvis and Thomas G. West, eds.: Shakespeare as Political Thinker (Durham: Carolina Academic Press, 1981), p.197).
- Alternatively, one might say that the regime of a worldwide government would be a particular regime—the only one left in the world—but the chances of its being a republic would be miniscule, given the oligarchic character of the administrative state and the ever-increasing technical means it has at its disposal to issue and execute commands. The so-called Peoples Republic of China already demonstrates how this can be made to work.
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