Right-wing Dog Whistles, Nativism, and Picayune Case Law

I was surprised to read in Jeffrey Polet’s review of my book, The United States in Crisis: Citizenship, Immigration, and the Nation State, that what I had written supposedly emitted “right-wing dog whistles” that signal “racial and cultural overtones.” As far as I am aware, Polet seems to be the only one who hears such whistles that are above the audio range of human beings. There is nothing racist in my book that strikes an “unnerving racial angle.” Its arguments about immigration are derived principally from the Declaration of Independence and Abraham Lincoln. As a paleocon, this grates Polet! 

Polet shows no real evidence of a deep understanding of the principles of the American founding. He says, for example, “I think [Erler’s] interpretation of the dispositive role of the Declaration is simply wrong as an historical matter, and unhelpful as an interpretive one.” On the one hand, this is to be expected from a disciple of Russell Kirk. Yet his willingness to join the lazy “racism” chorus, and his refusal to recognize what Kirk himself surely understood—namely, the danger of vast numbers of unassimilated immigrants—seem less paleocon than left-libertarian. In any event, he gives no argument as to why my argument about the Declaration is “wrong as an historical matter” beyond advising the reader to consult “the expensive [sic] literature on the debate.”

The one criticism he does deign to indulge shows his lack of understanding of the founding: “Erler’s insistence that the principles of the Declaration are universal is set off against his own arguments against universalizing.” But here the argument of the Declaration is perfectly Aristotelian. We must remember that Jefferson said that the principles of the Declaration were derived from the “elementary books of public right, such as Aristotle, Cicero, Locke, Sidney, etc.” Aristotle argued that man, by nature, is a political being, possessing a universal human nature. But he also insisted that human nature must be developed or perfected in the polis, that is, human virtue must be actualized in particular poleis

Universal human nature could only be perfected, virtue could only develop, in particular regimes. This was the same theory followed by the Declaration: “all men are created equal” is a “self-evident truth” of Nature and Nature’s God. That is the truth of universal human nature; but for that human nature to develop—for individuals to acquire the habits and manners of republican citizens—there must be a “separate and equal” nation. There is no doubt that the Declaration rests on an Aristotelian foundation; if there is any contradiction, it is in politics and human nature. This means that political life will always be tragic and therefore incapable of perfection. The founders were not utopians; they were animated by Aristotelian prudence.

Polet also seems to argue that it is doubtful that the Constitution rests on the foundations of the Declaration, although he doesn’t say what the doubt is. I say that the father of the Constitution emphatically says it does. Polet, as a dedicated paleocon, seems to think that “abstract philosophic debate” cannot inform political or constitutional issues and that the common law would serve us better than natural right as foundational principles.

In Federalist 39, Madison demands that “the fundamental principles of the Revolution” dictate that any form of government be “strictly republican.” If the proposed constitution is judged by the people to lack that quality, he argues, they should reject it. “The fundamental principles of the Revolution” was understood by everyone to mean the principles of the Declaration of Independence; this was confirmed in the central number of the Federalist where the right of revolution was justified by “the great principle of self-preservation; [and] the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.” Thus, there can be no doubt that in Madison’s view the principles of natural right informed both the Declaration and the Constitution. Consent of the governed became the basis for the “just powers” of government, and the social compact, derived from the sovereignty of the people, became the organizing principle of government and society. (I explore the relation of the Declaration and Constitution more extensively in Property and the Pursuit of Happiness.) 

Under English common law, all Americans born before 1776 owed “perpetual allegiance” to the British Crown. All persons born within the King’s protection owed a “debt of gratitude” that could never be canceled or thrown off without the king’s permission. When the Declaration announced that the American people were “Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved,” they were aware that the dissolution of their allegiance was forbidden by the common law and advanced without the permission of the king. The British Crown fought a war to punish them for their effrontery. It wasn’t until the Treaty of Paris in 1783 that the Crown grudgingly acknowledged that the “debt of gratitude” had been canceled.

Blackstone, in his Commentaries on the Laws of England, the authoritative work of the day, never used the word “citizen,” always “subject.” In Britain, there were no citizens, only subjects by the accident of birth. Under the Declaration, no one became a citizen except by consent and free choice. In America there were citizens—republican citizens who were expected to participate in government. This was a far cry from being a subject in Britain. Blackstone said that the common law of “subject” was a holdover from Britain’s feudal past. America rejected that feudal relic of the common law in its entirety. It was the Declaration that transformed subjects into citizens.

Polet’s most egregious error is significant and stems from careless reading (I am being charitable). There is no “racial angle” to my account of immigration. If there is a racial angle, it is on the part of the administrative state. Polet falsely alleges that I display a “nativist impulse” and “proves” it by citing this quote: “America, Erler argues, should be ‘repopulated from its native stock’ in part because those who come here ‘do not make good republican citizens.’” In the first place, these words are not mine, but the words of Thomas Jefferson from Notes on the States of Virginia. Jefferson did argue that in the best of all possible worlds, a republic should repopulate itself from native stock, where children would acquire republican habits, virtues, and manners from early years. But, Jefferson himself admitted that the country was too large, resources too great, and the population too small for that. Immigration, he conceded, will be necessary; but immigrants from free countries should be preferred because they will bring with them the habits and manners of free people. Nevertheless, the number of immigrants needed would demand acceptance of those from despotic countries. Here, he said, only “useful artificers” should be allowed. We can learn something from them. But they should be few. In point of fact, I criticized Jefferson for underestimating America’s power of assimilating immigrants! (Polet obviously missed these passages.) 

I used an extensive quotation from an 1857 speech by Abraham Lincoln to a group of immigrants in which he told them that their connection to one another and to fellow Americans was through the Declaration of Independence that unites all Americans regardless of ethic origins. The Declaration, Lincoln said, “is the electric cord that links the hearts of patriotic and liberty-loving men together.” This, according to Lincoln, was the greatest vehicle for assimilating newcomers to America; Lincoln understood the power of the Declaration to assimilate newcomers better than its principal author, Thomas Jefferson!

My concern, contrary to Polet’s allegations, is not that I want to restrict immigration, but that I want to continue policies of assimilation that the administrative state has destroyed. Assimilation worked for generations of Americans who (regardless of race or ethnicity) became patriotic, liberty-loving, productive members of society. The Immigration Act of 1965 was a deliberate attempt to change the ethnic composition of American society. This was not inherently objectionable. But the administrative state used the act to implement a plan to stop assimilation. The old idea of the “melting pot” was deemed to be racist, ethnocentric, to say nothing of genocidal. Bilingual education, affirmative action for newly arrived immigrants, strategic electoral decisions based on demographic shifts caused by immigration (that are massively prevalent today) betray an alarming ideological shift. Today’s ruling elites, both in and out of government, repeat the false mantra that diversity is our strength. Diversity, of course, is the solvent of society—certainly of the nation state. Assimilation to the principles, habits, manners, and virtues of free citizens of a free nation state is the preservation of society. Is this the “right-wing dog whistle” that only Polet can hear?

In the part of the book that Polet characterizes as indulging “picayune details of case law,” I argue that the framers of the citizenship clause of the 14th Amendment never intended to base American citizenship on the English common law. It is an argument that I won’t repeat now in any detail. Suffice it to say that no supporter of the citizenship clause ever mentioned the common law, Blackstone, or Coke, in the debates. Rather, Senator Jacob Howard, who introduced the clause in the Senate, said the Joint Committee on Reconstruction relied on “natural law and national law” in proposing the first sentence of section 1: “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.” Everyone who heard Senator Howard understood the reference to “natural law” as the Declaration of Independence. The debates prove this without any possibility of doubt. The reference to “national law” refers to the Civil Rights Act of 1866 which was passed over the veto of President Andrew Johnson a few months earlier. The debates confirm this. The debates over the Civil Rights Act also confirm that the common law was not a factor in that important piece of legislation.

Justice Horace Gray in Wong Kim Ark (1898), however, ruled for a 6-2 majority that the 14th Amendment adopted the common law of citizenship. Oddly enough, however, he said it was only necessary to consult the plain language of the amendment, arguing that any reference to the congressional debates would be misleading! Even stranger is the fact that the plain language of the amendment contains language unknown to the common law, e.g., “subject to the jurisdiction.” In another curiosity, Justice Gray did not mention that he was also author of the majority opinion in Elk v. Wilkins (1883) in which he upheld the social compact basis for American citizenship, a basis that is utterly incompatible with the common law. How and why he changed his mind between 1883 and 1898 is an interesting question. I explore all these issues in the book under review and advocate the reversal of the holding in Wong Kim Ark.

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