An American Birthright? –

Politics involves the authoritative ordering of different elements, including space and populations. Every political community must organize its space in some way, drawing borders, and deciding who to include as members of the political community. The desire for a world without borders that is inclusive of all populations is not simply a utopian dream. It is in many ways apolitical.

The globalized technocratic dream goes by many names—Davos Neo-liberalism, the universal homogeneous state—but the various elements of the dream remain the same: unencumbered citizens emancipated from limiting social relations, the free flow of capital and labor, the erasure of borders, and untethered possibilities of identity that simultaneously contract and expand, rendering them both tenuous and largely meaningless. Throw into the mix the standard feature of any corrupt regime—that the ruling class governs in its own interest rather than with an eye toward the harmonizing of disparate interests—and you have the ingredients in place to foment discontent.

The nation-state with its monopoly on the legitimate use of violence has organized political life in the modern world, but it seems worth asking if that era is coming to an end. The pincer effect of globalization and hyper individualism has resulted in a loss of allegiance to the nation-state that is reflected in declining levels of patriotic feeling. The loss of patriotic feeling is especially pronounced among political liberals—those most likely to subscribe to a cosmopolitan vision—and among the young. The inability of the federal government to maintain itself both geographically and demographically testifies to an unwillingness to uphold the legitimacy of the nation-state itself. 

I take this to be the background that animates Edward Erler’s The United States in Crisis: Citizenship, Immigration, and the Nation State. Erler predicates his argument on the idea that “the nation-state is the only form of political organization that can sustain government and the rule of law.” Arguing against the emergence of the “universal homogeneous state,” Erler asserts that Donald Trump’s presidency fundamentally sought to restore the integrity of the nation-state against such universalizers, particularly as regards citizenship and immigration. In Erler’s view, both of these need further restrictions, and the bulk of the book reviews case law concerning immigration and citizenship. Instead of viewing Trump as an assault against Constitutionalism, Erler argues, we should understand him to be making a last-ditch effort to preserve it against the globalizing technocrats who want to open the borders and allow for birthplace citizenship. This, along with amnesty, would benefit the Democrats whose administrative state operates on client politics.

Since the title The Revolt of the Elites was already taken, Erler wasn’t able to use it, but in some ways, it captures a central dynamic of Erler’s book. American politics, he thinks, are deeply divided between a globalized technocratic elite and the rest of America. The first group wants open borders, and a diminution of the concept of citizenship, while many in the second group are on the losing end of such policies. The practical differences are undergirded by different understandings of what America itself is and what its foundational principles are. The former group operates with congealed power that turns citizens into subjects, and the latter upholds traditional ideas of democratic citizenship. Despite the lack of theoretical sophistication of either group, Erler argues that the differences may best be understood in terms of competing understandings of the principles articulated in the Declaration of Independence.

For those with an interest in some of the picayune details of case law, the book provides a sensible overview.

This difference, in turn, drives our domestic politics, themselves determined by the division between those who embrace the nation-state with its notions of citizenship, and those who reject it. Erler displays a tremendous amount of respect for President Trump in the process, making the implausible claim that Trump understood the true purpose of the nation-state and correctly saw that the “essential features of democracy have never been found in any form of global government.” I think that latter statement may be true, but I suspect that Trump himself gave that very little thought. The odds that Trump ever read Kojève are vanishingly small.

That doesn’t mean, however, that we can’t regard Trump as a political actor who had some good instincts, most notably, in Erler’s judgment, in the ways Trump tried to preserve America both demographically and geographically. For those with an interest in some of the picayune details of case law, the book provides a sensible overview. For others, however, their appreciation of Erler’s argument will hinge on how they regard his understanding of the American nation in general, and American constitutionalism in particular. On this score he has very little original to say, nor does he say it particularly well as the book is clumsily and repetitively written.

Erler’s reading of the American regime repeats the well-worn Straussian arguments concerning the central role of the Declaration of Independence in forming America as a “propositional nation” that enframes Constitutional interpretation. “There is no doubt,” he writes, “that the Founders believe that the principles of the Declaration of Independence serve as the foundation upon which the authority of the Constitution rested.” Well, there actually is doubt.

Why does Erler pay so much attention to this abstract philosophical debate? He is ultimately targeting the work of scholars such as Jim Stoner (though Erler does not mention him by name) who have carefully demonstrated the role of the common law in shaping American constitutionalism. Erler’s reading of case law has one aim in mind: to convince scholars that “there is no such thing as common law citizenship” and that America “finds its legitimacy in the consent of the governed” that itself is clearly “the language of the Declaration of Independence, not that of the common law.” This in turn, supports a “debt of gratitude” approach whereby citizens become subjects who owe allegiance to the Crown. The Declaration “is a clear and authoritative rejection of the common law” by which subjects are turned into citizens, for citizens are made and not born.

What practical difference does this make? According to Erler, if we allow the common law to direct our understanding concerning citizen rights, it would extend them to anyone born on American soil, and this is precisely what Erler objects to. Citizenship, he argues, results not from accident or chance but from rational choice, by which he means that it requires free and reasoned consent from both parties, the individual, and the nation. Birthplace citizenship bypasses the consent of both parties. The common law undergirds birthplace citizenship in the same way the Declaration does free consent. “[C]onsent must be reciprocal. No one can be made a citizen against his will (as is the case with birthplace citizenship) nor can anyone become a citizen without the consent of those who already constitute the body politic.” 

One need not be attuned to “right-wing dog whistles” to hear the racial and cultural overtones of his argument.

Furthermore, since the common law prohibits repatriation, any common law understanding of the Constitution would handcuff the federal government in its efforts to move illegal immigrants off its soil. Erler sees it as crucially important to exclude birthplace citizenship so that we can stymie the efforts of political leaders who seek “to change the racial and ethnic mix of the population of the United States” with the aim of “consolidating the administrative state by adding to its list of client groups.” He repeatedly worries that generous immigration policies would lead to great Hispanic and Asian representation, and reiterates his conviction that diversity is a “solvent” on America’s exceptionalism and its sovereignty. His criticism of the 1965 Immigration Act focuses on the fact that many of the new “immigrants would come from Latin and South America and Asia,” such that by 2043 “non-Hispanic whites are projected to be a minority in the United States.” This, in Erler’s eyes, is part of a destructive political strategy. He asks, ruefully, “can it plausibly be argued that this was part of the unspoken and unacknowledged imperative of the administrative state?” 

One need not be attuned to “right-wing dog whistles” to hear the racial and cultural overtones of his argument. Recent immigrants “have a hard time adapting to American customs, habits and laws and show less willingness to doing so.” They are “resistant to integration” and the so-called “racist legacy” of the melting pot. New immigrants having been relieved of their obligation to assimilate will, with the cooperation of the administrative state, turn the tables so that “the ‘white Western majority’” will be forced to assimilate to the multicultural America that will insist on “racial and ethnic reparations and, almost certainly, mandatory instruction in Critical Race Theory.” This will be the outcome of recent immigrants being allowed “to insinuate themselves into the fabric of American society.”

Even without the unnerving racial angle, these are, of course, contestable policy questions. At the theoretical level, we might ask whether Erler’s stringent and restrictive immigration policies require his reading of the Constitution as located within the Declaration’s silver frame. Conversely, one wonders whether rejecting that interpretation commits one to open borders or even a more generous immigration and naturalization policy. I’m unpersuaded by Erler’s argument: while his interpretation requires an inflexible immigration policy, the common law interpretation would allow for a more prudent and pliable policy, and I would think a more just one. 

I am sympathetic to Erler’s main claim that any political community has a right to decide what it will be demographically and geographically, but I’d like to think that the demands of practical reason would spare us from some of the abstractions with which Erler operates. There are compelling reasons for the US to expand its immigration policy and offer an easier path to citizenship. And, to be fair, the actual process of becoming a citizen is not nearly as ideological as Erler seems to suppose; it is much more nearly in accordance with his own articulated principles. His intense focus on the children of illegal immigrants who are born on this soil leaves him with an unbalanced picture of immigration as a whole. Whether deportation is the best policy is a matter of prudence, as much as it is a debate about the common law.

Additionally, I think his interpretation of the dispositive role of the Declaration is simply wrong as an historical matter, and unhelpful as an interpretive one. The reader might be advised to review the expensive literature on the debate, but I’ll note for the record that Erler makes no mention of serious scholarship on the other side. Erler’s insistence that the principles of the Declaration are universal is set off against his own arguments against universalizing. 

Erler presents a suggestive defense of the Trump presidency and also a helpful though controversial interpretive gloss on immigration case law. It is also a tendentious one, apparently driven by a nativist impulse. America, Erler argues, should be “repopulated from its native stock” in part because those who come here “do not make good republican citizens.” A policy based on compassion for the stranger “only exhibits weakness to the world.” The right of expatriation he defends also logically entails the right of deportation. His argument may commit America to an unusually restrictive and perhaps even cruel immigration policy, and my guess is that most readers will react to the book not based on its scholarship but on its implications. 

Immigration policy must involve conversations about underlying principles, but can’t be reduced to academic arguments about the common law and natural right. Practical considerations include attention to collapsing birthrates, the maintenance of the workforce, humanitarian concerns, cultural unity, party politics, and so forth. American immigration policy has always balanced principle with prudence. Clearly, America has legitimate authority to regulate its borders as it sees fit; whether that requires the restrictions Erler advises is more a matter of prudence than principle.