Strengthening Constitutional Self-Government

No Left Turns

"Anchors Away"

Nationally syndicated columnist Mona Charen’s latest column on immigration focusses attention on our argument challenging the popular myth that the Constitution mandates "birthright citizenship." People down on the border know that "birthright citizenship" provides a powerful incentive for illegal sojourns into the United States for purposes of giving birth on U.S. soil. Here’s how Austin Bay, editorial writer for the Houston Chronicle, reported what he calls the "baby predicament" in a May 20, 2006 column:

"At the first indications of impending birth, a pregnant Mexican woman crosses the border in a car. As her labor begins in earnest, her driver drops her off at the hospital. The doctors confront an immediate challenge: A baby is definitely being born. In the typical case, the soon-to-be mother has had no prenatal care. However, she has had a plan — her child will be born in the United States, come political hell in Washington or high water in the Rio Grande."

Talk to any doctor in El Paso, or any border town, for that matter, and you’ll get the same story. There is even a "birth tourism" industry in southern California, as recently reported by the Los Angeles NBC affiliate in a major expose, following an old 2002 Los Angeles Times story about South Koren "birth tourism" trips to the U.S.

All from a misunderstanding of our Constitution’s Citizenship Clause. We’ll keep pressing the point, because our very sovereignty, and the principle of government by consent, is at stake. My testimony on birthright citizenship before the House Immigration Committee in September 2005 is available here.

Discussions - 17 Comments

Good point. Being born in the United States shouldn’t count for all it does. But if all men are born free and entitled to certain inalienable rights, then all men are born american, and it is just a matter of getting here.

When it comes to the immigration issue, I have to ask if all of our immigration laws are rights defying.

Certainly, "birth tourism" is ridiculous and a sham...but in a similar situation as a parent wishing the best for oneself and ones child would I or could I act differently?

In order to reduce immigration from Mexico...we should put pressure on Mexico to adopt more market friendly practices, as well as a recognition of Individual Rights...this would reduce the number of people who come for a better life. Secondly, on our side of the boarder we should reduce government subsidies and other handouts to the poor...this would reduce the number of people who come for a handout. But what we should simultaneously do is lift immigration quotas and gradually phase them out. Why should we do this? Because it is in our best interest and also because otherwise we end up with laws that restrict and work to counter the principle that all men are entitled to inalianable rights. Then we have the respectable Michell Malkin rightly complaining that our lawmakers love lawbreakers...because Ziglar and the INS doen’t want to deport decent people who have found a good life here...of course I am sure that the reasons behind this involve political posturing by Dashle and Kennedy...but this is all the more reason to get rid of quotas...do we really need laws we won’t or don’t want to follow? Do we want to imprison businesses that hire illegals? Do we want to deport Honor students (except for the one who was born here)?

Uh...Mr. Lewis?...I hear Dain’s computer warming up. I’d run for cover if I were you.

Well, Dain is a legal positivist, and from that view point the above post is complete nonsense. If I concede that rights are entitlements to be dolled out by lawmakers...and If I allow that other nations have a right to self-determination, then I wash my hands of the political situation and quality of life in nations around the world, because it isn’t pertinent at all. In fact from a positivist perspective you can’t even ask if our american quotas violate the rights of non-citizens. You can’t ask this because american rights derive from American laws and Mexican or Jordanian or Iraqi rights derive from the respective laws of those nations. But assuming you take a "libertard?" position namely that individual rights apply to all human beings regardless of nationality and that these rights are inalienable, then you can ask by what right the United States says you can or cannot enter. If you can find work and housing...stay out of trouble...if you have the nerve to strike out, when others are content to accept the known evil rather than the courage to ride the river of fortune and boldly proclaim that their rights will never again be trampled on...that they are men and not foder...that the life they have to live is theirs alone and that they intend to live it to the fullest...If they can do all these things they are comming as americans seeking a realization in the only country on earth to ever put foward such a rash but self-evident truth as the fact that all men are created equal, endowed by their creator with certain inalienable rights! It is only because so many of the "rights" we have today are really just entitlements that this idea is laughed at. In keeping with Dain’s positivist outlook I took his comment concerning "Birthright" to mean the New Deal and our entitlements which are in danger from free ridding(non- tax paying) immigrants. And certainly Immigration is always a bigger problem the more government programs are in place...which is why Europe is struggling with racism and civic strife...(All welfare programs always create some free rider effect...the free rider effect is usually not distributed evenly accross racial/ethnic/religious bondaries and tensions arrising from this fact in turn reinforces thinking in terms of belonging to a specific group/tribe...with group/tribe specific interests...)

John, I’m not purely a legal positivist. I do believe that law and nature are linked, but not in some metaphysical way. Laws that violate human nature (e.g., expropriation) will be selected against over time, as would something like limitless immigration. So, it’s not divine principal that guides the law, but rather the kinds of creatures we are and the constraints this places on our societies.

As for immigration law violating the "inalienable rights" of human beings, poppycock! The Declaration of Independency is not a governing document (although I realize some disagree), and "inalienable rights" is an oxymoron (sorry, Tom). Rights are bestowed by the law (any other ’source’ is metaphysical and not empirically demonstrable), and even our own Constitution restricts people’s supposedly ’inalienable’ rights (e.g., qualifications for POTUS). Criminals are routinely deprived of life, liberty and the pursuit of happiness...so necessarily rights are "alienable." It’s a dumb argument, John.

And if we admit that the whole "inalienable rights" formulation is simply a matter of faith, then we must also admit that it certainly impossible to guarantee such rights. Given that, it’s just another recipe for policy disaster...idealism is a dangerous thing, John. It must always be mixed with pragmatism.

That all men are created equal does not give all men an inalienable right to be American citizens or even to take up residence within our borders, any more than it gives them an inalienable right to take up residence in my home. A claim of "inalienable right" that rests on the refusal to recognize the inalienable rights of others is self-contradictory. Natural rights theory supports a right to leave, but it does not also support a right to enter somewhere else, without the consent of those whose land you would enter.

"A claim of "inalienable right" that rests on the refusal to recognize the inalienable rights of others is self-contradictory."

I agree.

"Natural rights theory supports a right to leave, but it does not also support a right to enter somewhere else, without the consent of those whose land you would enter."

This is fair enough. Certainly many people who enter the United States do so by trespassing. But once they get here and find a job one would assume that they(at the very least) have the consent of those landowners for whom they work. Also I would assume that they have the consent of the people from whom they lease, and the consent of those with whom they conduct daily business. Most illegals conduct business by consent (not brute force) if anything they are probably on the loosing side. Illegals living and working on private property do not violate the inalienable rights of others.

I don’t believe that the United States as an entity can "consent" one way or another on immigration, because "consent" would rightly seem to be the province of individuals....consent for a state should be translated in terms of legal or illegal.

"Laws that violate human nature (e.g., expropriation) will be selected against over time, as would something like limitless immigration. So, it’s not divine principal that guides the law, but rather the kinds of creatures we are and the constraints this places on our societies."

Alright, I will agree to this...I will simply formulate my view in your terms.

Limits on immigration necessarily violate human nature. How? Ceteris Paribus human beings have a desire to live the best life possible, given a chance they will move from a worse situation to a better situation. Provided the law does not become Draconian (that is adjust in penalties according to the supply(number of confirmed violations) and provided the United States maintains its position as a clear improvement(over other possibilities)...people will continue to break the law so long as the total number of people looking to enter is above the quota number. If the number of people looking to enter drops bellow our quotas...then like other price ceillings they will exert no influence and thus cease to violate human nature.

Whenever the law violates human nature, a black market emmerges...

Is there a black market in immigration? Yes..we have Coyotes.

John, it violates human nature because it upsets the political and social apple cart (and for some, the economic apple cart as well). There are always losers in any form of immigration. This is why the so-called "nativists" have been upset about immigration throughout our history. And it’s not just blind bigotry...massive shifts in demographics does bring about fundamental (and relatively permanent) cultural and political change (e.g., ethnic politics in eastern cities). If you care about your culture, you are inherently cautious about immigration. Too much immigration, and you rub up hard against human nature (indeed, studies of segregation show that the massive influx of immigrants slows the process of integration).

People like me aren’t asking for an end to immigration, or an end to Hispanic immigration. We just want it to slow down to manageable levels. There is just no way the economy benefits from hundreds of thousands of new day laborers every year. Substituting cheap labor for technological innovation isn’t the way to go.

Well we disagree on the economic benefits...but I am willing to make these tertiary, as you have said before there are cultural/integration reasons for limiting immigration.

I can live with that...but I find it hard to play the culture card...in part because I believe that even playing it...even discussing culture or assimilation plays into the hand those who stir up and profit from ethnic politics.

The beauty (for me) of a libertarian position is that it is relatively blind to culture. My take is that Libertarians don’t believe in (or aren’t worried about it) culture, because they think that culture itself will be selected for over time. Cultures that cannot compete, that cannot offer members a life that they see as fitting for a human being will eventually die out. I will cite the Amish as an example...it doesn’t bother me that they chose to be different...but it may bother the young in that group..who do not want to carry on...Essentially Libertarians are at the same time skeptical of assimilation...because we see people as individuals first and foremost we are more inclined to see an individual as a member of multiple cultures, instead of pegging him into one. When I look at our culture today I don’t see much room for dammage by immigration... In addition to this I believe that quotas on immigration for the sake of assimilation somehow smacks of the same sort of "molding" that is used by supporters of Affirmative action. In my opinion any attempt to control or reach optimal "diversity" by means of classification according to an ethnic group or even culture, diminishes in some way the singularity of the individual.

At every step of the way I want to preach individualism, not necessarily because cultural forces aren’t very powerfull. Cultural forces are powerfull...and because of this you have points you can make on behalf of your perspective. But I want to preach individualism because I want the young Amish boy to know that he is responsible for his life, just as the Ghetto thug is responsible for his. Ultimately the cultural forces may be too strong or the will power may be lacking and the force of inertia and the roots of tradition and familly may be too powerfull. But I want to believe that free will exists, and I have a dream that someday people will shake off the molding of societal expectations and see potentiality when they look in the miror. Not just the potentiality of an amish farmer...or a drug dealer...or whatever potentiality the culture around them presents to them as a way up...but the potentiality of the world itself.

And on the issue of immigration I believe that people who come here either legally or illegally do so with a fresh vision for this potentiality. They have mannaged to conquer the culture around them...the easiest thing would have been to accept the known...to stay put...but they came here seeking a better life.

Immigrants then are the spice of american culture...they remind us that we have free will(even to eschew culture)...and that if we messed up in the past we can make our slate blank and try a different route. The message of hope in the eye of the immigrant is that no one is beyond salvation...no failed life isn’t worth starting over. If anything is possible, in america it is more possible.

As I suspected, John, you are one of those who view the "American experiment" as an attempt to liberate the individual from his cultural moorings. The Founders never intended anything like that; what they were trying to do was to make sure that culture (and the individual) did not become the slave of government. You don’t have to dig very deeply into the thoughts of the Founders to find the assumption of a broad cultural homogeneity...clearly Washington thought the cultural warp and woof where necessary for representative government to work.

Leaving aside the idealism, John, exactly where has a social system succeeded in extracting the individual from his/her cultural system? The Soviets thought to create the "New Socialist Man," but succeeded only in muting primordial solidarities like ethnicity and religion...they all came back with a vengeance. Even in America, made up of millions of diverse, uprooted people from around the globe, we see ethnicity, race, religion, and language as the templates for social organization. John, we ignore these facts at our peril.

If we ignore these facts at our peril, we overemphasize them at a greater peril. One of the strengths of america is found in something that Dr. Kippenburg likes to talk about...namely the market place of religion...people will jump churches...I believe that people will also jump races(I don’t believe in the structuring of the terminology as it is most often used by the likes of liberals to discredit the likes of Colin Powell, Clarence Thomas or the conservative black minority in general.) And people will transcend catagorization when it comes to selecting templates for social organization. This is not to say that the templates you listed are not important to social organization... in a default setting blacks are going to side with blacks and whites with whites...but football players with football players...and the track team with the track team.

Essentially in the United States the individual is not liberated from cultural moorings. But the types of cultural moorings are extremely numerous and need not be constrained by the luck of the draw...but rather by choice. The United States is not about stripping man of culture altogether...but rather of allowing him the opportunity to be detached enough to choose otherwise should he see this as most rational for him. Individual autonomy and free will... should a person choose to stay in the room...he is still free to leave it should he choose otherwise...and the door is not locked. I believe this to be in keeping with the views of John Locke and in accord with John Stuart Mill’s on Liberty. Empirically is the United States such a country?

Yes and no...the question isn’t is the United States such a country...but rather...are you as an individual such a person.

Are you going to believe those who tell you that because you were born a black man you are at a disadvantage?(you probably are(at a disadvantage)) But is it such a disadvantage as cannot be overcome? It is if you get bogged down into focusing on your victimization...if you think of all the hypothetical doors that require keys you must first acquire in a different room...and then reflect that you don’t want to move on to the next room.

In my opinion focus on your main templates of social organization...namely race, religion, ethnicity and language breeds social discontent and acceptance of victimization... Conservatives are victims of the MSM... Religious folks are victims of sluttily dressed women...black people are victims of the oppresive white man and the history of slavery...Jews are victims of the Nazi’s, the Muslims, the socialists, the Henry Fords, and a long history of slavery and subjegation in Europe...(and in the case of the Jew they have formed a rather strong social organization as a result...) Liberals are victims of the radical religious right agenda... the list could go on...but in general the rallying point for these similar groups of people seems to be a focus upon injustice...and a feeling of malign fortune vs. A focus upon self-improvement and individual autonomy.

I am not argueing that you don’t have points to make, I am argueing that in general they aren’t worth making because they are not pragmatic(that is...your points may be true but they are not true in an effective way...they enslave the minds of adherents without liberating them in a positive direction...and because of this they become self-reinforcing...in a downward spiral type of way.)

John, identity is not necessarily rooted in threat, although threat makes identity much more intense (and typically intolerant). That’s why leaders use threat...to bring the underlying indentity to the fore.

I find you "identity shopping" model of our society pretty amusing. Cultures mold people, and while it is possible to shuck your own identity for another, that’s not easy to do. It’s rather like mentally stripping yourself down to the basics and starting over. Most people probably aren’t capable of it.

Our need for identity and group living is hardwired, in all probability. Sure, like any trait some people have more of it than others (there are true hermits, after all), but most of us will "flock together" because that seems the wisest thing for us to do. For instance, John, why are you at Ashland? Why not a much more radical history/political science department? A selection effect, perhaps?

I suspect your life makes my point...we don’t "pick" our lives, we hunt around and eventually negotiate our identity with other people. It’s a strong selection pressure, and it’s not really escapable. More importantly, that negotiation with other people works much better with those who think, look, and act like us...just a fact of life. Sorry if you don’t like it (most liberals don’t like it either, even as they engage in it with a vengeance).

In america more than in any other nation...the opportunity to "pick" one’s life is possible and afforded...what do you call the process of hunting around and negotiating identity...if not a choice?

You deny Inalienable Rights, reject individualism, and apparently don’t believe in a very wide scope for free will...While my "identity shopping" model may be laughable...at the very least it is less polarized than your "magnetic attraction" model...

I think you are right when it comes to selection...but even if we are just pieces of metal attracted and repelled by magnets...perhaps we can choose our mass...perhaps we can use one magnet to get us going in a direction and then switch out to a different one in order to chart the course desired. While rivers generally travel towards the equator men have found ways to frustrate fortune and take the Mississippi up to the Ohio, while gravity has for the greater part of human history frustrated the attempts of those wishing to fly we have devised a space ship to take us to the moon. As we conquer Nature when we do not like her effects so to can we conquer, mitigate, navigate or otherwise harness our own human nature...if such an idea were not possible then the folly of holding people responsible for their actions should soon become apparent...and ultimately my objection to discussions of culture is that it is spoken of as molding people without integrating into the conversation respect for Free Will. The disrespect afforded Free Will or personal autonomy in a discussion on the molding effects of culture, necessarily justifies all sorts of actions: Everyone else is doing it....all this on the premise that "flocking together" is the wisest thing.

We have always had the ability to work collectively to achieve amazing things (like diverting the Mississippi, or building the pyramids), but engineering ourselfs? Nope, don’t think so. We are the same animals we always were.

As for the need to protect individualism on the basis of possible political fallout (i.e., holding people responsible for their own actions), that’s like saying let’s not study race because the consequences of doing so might be very bad. Truth is truth...consequences cannot contain it. Moreover, when people make the argument that "everyone does it," what they are really saying is that no one lives up to community norms OR that my subculture doesn’t agree with your mainstream culture on the meaning of this action. Either way, we will hold that person to account -- some people DO live up to the standard (probably most), or their subculture is deviant, and the greater good requires us to punish this behavior. I see no threat in assuming that people are deeply shaped by culture...it’s simply the truth.

Actually, John, if you think about it, cultural power is a must for communal living. The libertarian distrust of or allergy to authority is irrational (indeed, impossible). Why is it verboten to slaughter dogs for food? Why is having only one spouse a good thing? Why is "ownership" not illegal? Ultimately, culture determines right and wrong (sometimes in an arbitrary way), even for libertarians. Every social game must have rules, even stupid ones, and someone must lay down those rules...the essence of "society" is authoritarian, which is why the Borg said to Capt. Picard "Your primitive social systems are authority-driven." You gotta hand it to those Borg...they have a wonderful grasp of the obvious!

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