Richard Mack: The County Sheriff: America’s Last Hope. Self-published, 2009.

Richard Mack: Are You a David? America’s Last Hope, Volume II. Self-published, 2014.

Frederic Bastiat: The Law. Dean Russell translation. Irvington-on Hudson: The Foundation for Economic Education, 1997 [1850].

 

Given the often overbearing actions of America’s administrative state, citizens seek ways to resist. Mr. Mack, formerly sheriff of Graham County, Arizona, hopes that he has found one in the office of county sheriff. Consonant with his esteem for rugged individualism, he published his books himself. In receiving my copies, I was surprised to find that the distributor had kindly added a copy of Frederic Bastiat’s The Law, and while any free-enterprise-oriented economist would rightly insist that there’s no such thing as a free book, I am grateful that some residue of my payment enabled him to be so generous. I interpreted the gesture as a hint that the Bastiat tract, long a staple among libertarians, provides the theoretical framework for Sheriff Mack’s modest proposals. 

Mack sees that the regime of the American founders and the principles upon it rested has been partly replaced by a new regime, based upon such Marxian principles as “forced equality through governmental redistribution of wealth” and “the removal of religious beliefs and expressions from our public institutions.” What he adds to a defense of American constitutionalism and a critique of the Left is the claim that county sheriffs can legally resist the encroachments of the centralized, administrative state. His argument was first formulated by William Potter Gale, who founded the Posse Comitatus movement in the 1980s; Gale claimed, among other things, that citizen posses are entitled to hang public officials who, in the judgment of the posses, have violated the United States Constitution. [1] Mack offers a more sober agenda.

“The County Sheriff is our nation’s last line of defense, for the preservation and return to fundamental and individual liberty.” He begins with an account of his own rather impressive act of resistance. In his initial work as a police officer in Provo, Utah, he had followed the program of the city department, which demanded strict enforcement of local ordinances, generating revenues from fines, in exchange for more manpower and equipment for the police department. But he soon reversed course.

After reading the United States Constitution, which he had been sworn to uphold, he “gain[ed] a complete disdain for abusive government.” Moving to Arizona in 1988, he was elected Graham County sheriff in 1990, re-elected in 1992 and 1994. In those years Congress and the Clinton administration enacted the Brady Act, named for President Reagan’s aide, James Brady, who was seriously wounded by a would-be assassin wielding a handgun. The Brady Act required a five-day waiting period for purchase of handguns, during which time the chief law enforcement officer in a county or municipality would do a background check on the would-be purchaser. “This law literally forced each sheriff to become a pawn for the Federal Government and to do their bidding to promote gun control within our jurisdictions”—providing no funds for its enforcement. “Here’s the U.S. Congress making an unconstitutional gun control law, requiring a county official to enforce it and pay for it, and then threatening to arrest him if he refuses! What a government!” In 1997, Mack won his case (Mack v. U.S. 856 F Supp. 1372). While denying Mack’s claim that the law violated the Thirteenth Amendment’s prohibition of involuntary servitude (noting that, unlike a slave, Mack could evade compliance by leaving his job), the Court ruled that Mack was being “forced to choose between violating his oath or violating the Act,” which was a violation of the fifth and tenth amendments. The law’s requirement that sheriffs make a “reasonable effort” to enforce the law was too vague, and therefore in violation of the due process clause of the Fifth Amendment. And while the distribution and sale of firearms across state lines undoubtedly can be governed by federal law under the Tenth Amendment commerce clause, the federal government may not regulate interstate commerce in the way the Act did. Laws for that purpose must apply to states generally and not be specifically directed at a particular group—in this case, chief law enforcement officers. And while it was true, as the United States attorneys argued, that the Act didn’t require states to do anything to enforce its provisions, it did require sheriffs to do so, and Mack was within his rights to refuse.

Mack exaggerates when he claims that states are not subject to federal jurisdiction. He quotes Justice Antonin Scalia, who reaffirmed that “the Federal Government may not compel the states to enact or enforce a federal regulatory program,” but that is very far from saying that states are free of federal law. Federal officials are fully empowered to enact and to enforce federal laws within the states; that was one of the principal differences between the United State Constitution and the Articles of Confederation. The states have the right not to help them do so, but not the right to nullify federal law or to interfere with its enforcement. Neither Scalia nor any of the other Supreme Court justices made an argument for nullification. 

Therefore, when James Madison wrote that “We can safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority,” Sheriff Mack should less confident than he is, when he avers, “I am more than certain President Madison and his fellow framers would not mind one iota, if other town and county officials” joined their states in erecting such barriers, or did so unilaterally without their states’ approval. When Madison writes, “The local or municipal authorities form distinct and independent portions of [the people’s] supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them within its own sphere,” he means just that: there are indeed federal and state/local “spheres” of government, but they do not mean that a state or a county may constitutionally bar the federal government from passing legislation that ‘reaches into’ the territories of states and counties—only that federal officials may do so only in accordance with the powers granted by the people to the federal government, powers enumerated in the Constitution. Mack claims that “the original intention of our Founders [was] to maintain the federal ‘sphere’ as small and impotent,” he is talking nonsense, unless he means the Articles of Confederation government, not the United States Constitution—that is, the one Sheriff Mach swore to uphold.

None of this precludes the right to revolution, which the Constitution effectively ‘reserves’ to citizens by guaranteeing the right of the people to bear arms. As Mack exclaims, “Who did Paul Revere call to arms? None other than the citizens volunteers, the militia, who kept their ‘assault rifles’ in their closets just in case they were ever needed in defense of liberty. This is the very reason the Founders established the Second Amendment, so that the people or the ‘militia’ would always possess arms in defense of this nation against tyrannical government!” This right to revolution is indeed the final defense against “cruel or stupid laws,” the enforcement of which “is defined by the blind enforcement of stupid laws…. We are not puppets for the courts or legislatures!”

Mack hopes “to keep this revolution a peaceful one,” however. “There is a man who can stop the abuse, end the tyranny, and restore the Constitution, once again, as the supreme law of the land. Yes, it is you, SHERIFF!” Mack traces the office of sheriff to eleventh-century England, where the “shire reeve” was appointed by the sovereign monarch, defender of the realm. In America, a county sheriff is elected by the sovereign people, and has “the power to call out the ‘militia’ to support his efforts to keep the peace in his county.” The only other officials empowered to do so are state governors and the president of the United States, although Mack is careful not explicitly to name the latter. Since “the Constitution is no longer the compass that guides our country,” sheriffs must step up to interpose what he takes to be their constitutional authority against federal government encroachments. He cites the example of the Nye County, Nevada sheriff who “informed federal agents who came in to confiscate cattle from a local rancher, Wayne Hague, that if they tried to take the cows that he would arrest them. The cattle stayed right where they were.”

More ambitiously, Mack claims that county sheriffs could block the “Gestapo of America”—the agents of the Internal Revenue Service—from collecting income taxes. “The IRS should never have been in existence in the first place” because “there should be no tax on incomes,” as “the 16th amendment, which supposedly authorized congress to do so, was never ratified by the States.” Here he tacitly draws from the argument advanced by William J. Benson and Martin J. Beckman in their 1985 book, The Law That Never Was: The Fraud of the 16th Amendment and Personal Income Tax. Benson and Beckman argue that no state ratification conventions were called, and that the text of the amendment ratified by the state legislatures contained variants in capitalization, spelling, and punctuations. It should be almost needless to say that this argument has been rightly dismissed as trivial when advanced in federal courts. 

In his peroration at the end of The County Sheriff, Mack asks “What would it really hurt if we actually tried this? What damage would it cause if all sheriffs and police literally followed the Constitution and refused to have anything to do with its violation? I only see one result; our officer and protectors and the people get their freedom back.” If, however, as seems likely, what Sheriff Mack intends to do is to reconstitute the Articles of Confederation under cover of constitutionalism, it could do substantial damage to rights local officials chose not to defend, and to the constitutional union that has protected Americans from foreign invasion since 1814.

In the second volume of the work—heroically titled, Are You a David?—Mack elaborates and refines his argument. Distancing himself from the likes of Gale and the white supremacist militias, he assures us that “this book and its author will never advocate violence of any kind.” [1]  He goes so far as to invoke the Reverend Dr. Martin Luther King, who “stated frequently that we have a moral responsibility to obey just laws. However, we likewise have a duty and moral responsibility to disobey unjust laws.” Very true, except that Dr. King’s doctrine of civil disobedience included a willingness to accept unjust punishment for violating unjust laws. This is precisely what Sheriff Mack prefers to avoid.

In so hoping, he again relies on the United States Constitution. He understands the purpose of American government to secure life, liberty, and the pursuit of happiness, very much including property ownership. The purpose of the Constitution is to establish and to preserve a governmental structure that contains parameters to protect individual rights—strict limitations on government as it operates to fulfill its purpose. The purpose of the Bill of Rights is to list certain innate and immutable rights that the government may not infringe. On the latter point, it would be more accurate to say that the Bill of Rights lists certain civil rights that the Framers take to follow from natural rights; for example, by human beings have the right to defend their lives, liberty, and property, and the civil rights to bear arms and to enjoy a speedy and public trial may well be said to follow from that. 

It does not necessarily follow from natural right or from the Constitution that states have the constitutional right to nullify federal regulations whenever a state or group of states deems those regulations unconstitutional. Although Mack deems it “irrefutable” that “prescribed constitutional law enforcement assignments” are limited to treason, counterfeiting, piracies and felonies committed on the high seas, offenses against the Law of Nations, and invasion, he overlooks the constitutional power to lay and collect taxes, duties, imposts, and excises, to regulate interstate commerce, and to guarantee a republican form of government to every state.

This is not to say that Mack has some sensible things to say about constitutionally dubious bureaucratic overreach. He rightly observes that many Americans shy away from resisting encroachments for fear of losing federal grant monies or out of sheer complacency. The practice of the Environmental Protection Agency, which “now issues fines to citizens without due process” and the move toward government-mandated universal healthcare surely number among unconstitutional abuses of power, inasmuch as they obviously exceed the powers enumerated in the Constitution. It would be hard to gainsay the sheriff as he writes that “when the government controls the land, the jobs, the air, all waterways, industries, pensions, health care, education, and the re-distribution of wealth, the conclusion is inescapable; it’s communism!” And he is correct in saying that the school of constitutional interpretation that calls for an “elastic” or “living” Constitution has nothing to do with the thought of the Framers. Finally, he makes good sense in remarking, “the Constitution will never protect you. It will not stop tyranny or corruption or the criminality of government agents. But YOU can! The Constitution can only protect us IF we have someone willing to enforce it!” 

Very well then, what specifically can a county sheriff do? In 2011, Sheriff Mack formed the Constitutional Sheriffs and Peace Officers Association. He devotes a chapter to reprinting its resolution announcing that its members will neither allow nor tolerate a number of government practices, including registration of personal firearms, confiscation of firearms, audits or searches “of a citizen’s personal affairs,” property inspections, detainment or search of citizens, and “arrests with continued incarcerations” without probable cause, due process, and “constitutionally compliant warrants.” The resolution also rejects “domestic utilization of our nation’s military or federal agencies operating under power granted under the laws of war against American citizens,” a stance that may or may not cast a shadow on the constitutionally stipulated Congressional power to provide for calling forth the militia to execute the laws of the Union and to suppress insurrections. As always, such brave pronouncements rest on solid grounds insofar as they amount to a refusal to do the federal government’s work for it, but tend to step outside the limits of constitutional law insofar as they aim at interfering with the enforcement of federal law, when constitutional. As long as the “Constitutional Sheriffs” understand that they are proposing extra-constitutional actions, they will exhibit a realistic sense of what they are doing. The fact that their actions are extra-constitutional is precisely what Sheriff Mack denies.

The gift of Frederic Bastiat’s The Law provides an opportunity to wonder if the underlying theory of the Constitutional Sheriff movement lies neither in the American founding nor in white-supremacy ‘race science’ but in libertarianism. Bastiat’s esteem for law puts him, and his form of libertarianism, at odds with anarcho-capitalism à la Murray Rothbard, with whom constitutional sheriffs could not treat, inasmuch as they depend upon tax revenues from the sovereign people. [2] 

Bastiat asserts that the law and the police power of the modern state have been “perverted,” having become weapons “of every kind of greed.” Although life in its physical, intellectual, and moral dimension is a gift from God, He “has entrusted us with the responsibility of preserving, developing, and perfecting it.” Laws exist because life, liberty, and property need to be secured; that is the right function of law, properly “the collective organization of the individual right [or ‘natural right’] to lawful defense.” “If every person has the right to defend—even by force—his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly.” Such a “collective right” stems from “individual right.” There is no other purpose for a legal code. Conversely, under this definition of law, “the common force…cannot lawfully be used to destroy the person liberty, or property of individuals or groups.” The common force may “do only what the individual forces have a natural and lawful right to do.” 

Bastiat brushes off the question of regimes, of “political form.” Any form is just, so long as the stated criteria are met. Given the instability of the regimes in France between the 1780s and Bastiat’s lifetime, it makes sense for him to downplay the regime question, protesting that “no one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack.” By “argument” he likely means “rightful argument,” as there is seldom any shortage of souls unsatisfied with mere guarantees of life, liberty, and property.

And indeed, “the law has been used to destroy its own objective, “plac[ing] the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others,” “convert[ing] plunder into a right, in order to protect plunder,” “lawful defense into a crime, in order to punish lawful defense”—crimes committed by “stupid greed” and “false philanthropy.” Such misrule often marches behind the flag of ‘progress,’ but “if everyone enjoyed the unrestricted use of his faculties and the free disposition of the fruits of his labor, social progress would be ceaseless, uninterrupted, and unfailing.” 

Unfortunately, too many people “wish to live and prosper at the expense of others”—a “fatal desire [which] has its origin in the very nature of man,” in “that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with least possible pain.” To live and to “satisfy his wants,” someone must work. But better you than me. “Since man is naturally inclined to avoid pain—and since labor is painful in itself—it follows that men will resort to plunder whenever plunder is easier than work.” Plunder stops “when it becomes more painful and more dangerous than labor,” and it is the right function of law to arrange that. Unfortunately, law must itself be made by men, “by one man or one class of men.” Hence “the almost universal perversion of the law.” Hence also the tendency toward democracy; the plundered want “somehow to enter—by peaceful or revolutionary means—into the making of laws,” intending either “to stop lawful plunder” or “to share in it.” 

Legal plunder is the perversion of law and it intensifies the moral perversion that led to it. First, “it erases from everyone’s conscience the distinction between justice and injustice,” imposing upon citizens “the cruel alternative of either losing his moral sense or losing his respect for the law.” And so, “if there exists a law which sanctions slavery or monopoly, oppression or robbery, in any form whatever, it must not even be mentioned.” Second, legal plunder perverts education by causing universities to endow teaching positions intended to promote regulation of industry,” twisting work itself to its purposes. 

All of this “gives an exaggerated importance to political passions and conflicts, and to politics in general.” Universal suffrage, for example, should not be considered “one of those sacred dogmas which it is a crime to examine or doubt,” and probably isn’t worth fighting for. After all, it isn’t really universal—women, minors, criminals, and the insane being excluded. “This controversy over universal suffrage (as well as most other political questions) which agitates, excites, and overthrows nations, would lose nearly all of its importance if the law had always been what it ought to be.” Then, no one would care. Bastiat already has given us the refutation of his own utopianism, however, having admitted that many people are eager to live at the expense of others. And indeed he corrects himself: Under prevailing circumstances, “certainly every class will aspire to grasp the law, and logically so”—even “beggars and vagabonds will then prove to you that they also have an incontestable title to vote.” Ah, but M. Bastiat, not only under prevailing circumstances, but under the circumstance of right law that you esteem there will always be those who want more—as you admit, citing human nature.

And so one does indeed see in the United States of 1850, where a better-than-usual set of laws exists. This notwithstanding, Americans are wracked by two evils which “have always endangered the public peace there”: slavery, “a violation, by law, of liberty,” and tariffs, “a violation, by law, of property.” These are two examples of “legal crime.” Meanwhile, in Europe, socialism arises—legal plunder par excellence, whereby “the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong.” Legal plunder has many ways of proceeding: tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on and so on. “All these plans as a whole—with their common aim of legal plunder—constitute socialism.”

There are three possible ways to deal with plunder: the few plunder the many; everybody plunders everybody; nobody plunders anybody. (Given Aristotle’s observation that the many might also plunder the few, Bastiat’s first category should by ‘somebody plunders somebody,’ but that is a mere refinement.) It should be needless to say that Bastiat prefers the last choice, whereby nobody plunders anybody.

This means that Bastiat advocates what is sometimes called ‘negative liberty.’ “When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all.” The idea of just law “excludes the idea of using law (force) to organize any human activity whatever [presumably other than legislation and law enforcement] whether it be labor, charity, agriculture, commerce, industry, education, art, or religion.” Law may (for example) rightly restrain religious acts injurious life, liberty, and property—prohibiting the sacrifice of virgins to the sun god, let’s say—but it may neither encourage nor restrain religious practices that injure no one. Law must not be used for philanthropic purposes. The democratic-socialist president of France during the short-lived Second Republic, Alphonse de Lamartine, wrote to Bastiat, invoking the slogan of the French revolutionaries: “Your doctrine is only the half of my program. You have stopped at liberty. I go on to fraternity.” “I answered him: ‘The second half of your program will destroy the first.'” Bastiat explains that fraternity must be voluntary, and that fraternity cannot be “legally enforced without liberty being legally destroyed, and thus justice being legally trampled underfoot.” If selfishness or greed is one extreme that ruins liberty, the other is this “false philanthropy”—false because while it may be heartfelt it does not achieve its intended purpose, loving mankind not wisely but too well, thoughtlessly ardent in its enforced transfer from one person to another. “We repudiate forced fraternity, not true fraternity…. We do not repudiate the natural unity of mankind under providence.”

Bastiat admits of degrees of plunder, from the “limited” plunder of protectionism to the “complete” plunder of communism. Plunder “substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives.” Laws that plunder denature human beings by obviating the “need to discuss, to compare, to plan ahead,” making their intelligence, the distinctively human characteristic, “a useless prop.” “They cease to be men.” Public education only reinforces this malign practice by its tendency to indoctrinate, to discourage independent thought. 

What about the third element of the French revolutionary slogan, equality? Bastiat claims (rather implausibly) that iniequality exists only because “old conquests and lootings”—acts of plunder by persons who eventually came to call themselves aristocrats—were legitimized, their economic and social results long since solemnized. Socialists are the new would-be aristocrats. Every socialist writer imagines “that he himself—under the title of organizer, discoverer, legislator, or founder—is this will and hand, this universal motivating force, this creative power whose sublime mission is to mold these scattered materials—persons—into a society,” rather as a gardener shapes trees and shrubs. Bastiat blames this ambition on “classical education.” Study of the classics is “the mother of socialism” because “conventional classical thought everywhere says that behind passive society there is a concealed power called law or legislator…which moves, controls, benefits, and improves mankind.” This same education seduced almost all of the major French thinkers from Bossuet to Fénelon to Montesquieu to Rousseau (“leader of the democrats”) to Raynal, Mably, and Condillac. Bastiat overlooks the possibility that these ‘moderns’ may have gotten the ‘ancients’ wrong, intentionally or by mistake. A founder or legislator as conceived by Machiavelli or Rousseau (for example) may differ from a founder as conceived by Aristotle, Livy, or Polybius. 

Bastiat claims that later writers “did not understand that knowledge appears and grows with the passage of time; and that in proportion to this growth of knowledge, might takes the side of right, and society regains possession of itself.” In point of fact, the moderns above all touted the notion of human progress and therefore supposed that human institutions could be designed to rechannel human nature or even (as in the case of the later moderns) to transform it. The ancients were more modest—very much including Plato, whose ideal politeia is presented with Socrates’ characteristic irony. It is rather Bastiat who shares the optimism of the Enlightenment, replacing egalitarianism and fraternity with liberty as the agent of human perfection.

Bastiat’s negative liberty doesn’t aim at merely prevention of plunder and despotism. “Is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so?” By “organizing the right of the individual to lawful self-defense” and “punishing injustice,” and doing no more than that, law rightly understood will liberate human beings to achieve their nature. But to define liberty as power, to claim that civil societies owe every person an education aimed at ’empowering’ him, will have the opposite effect: “the total inertness of mankind, the omnipotence of the law, and the infallibility of the legislator.” This socialism is anti-social, “regard[ing] mankind as little better than mud”—clay in the hands of a Legislator who sets himself up as a god but is in fact nothing more than a would-be sculptor of dumb idols. And socialists who proclaim themselves to be egalitarians, to be democrats, respect elections only until they are safely in office. “The people are returned to assertiveness, inertness, and unconsciousness; the legislator enters into omnipotence.” 

Attempting to subordinate politics altogether, Bastiat insists that “a science of economics must be developed before a science of politics can be logically formulated.” Economics, not politics, is “the science of determining whether the interests of human beings are harmonious or antagonistic.” After that question has been answered, the science of law must precede political science, inasmuch as “law is the common force organized to act as an obstacle to injustice,” that is, to minimize antagonism, maximize harmony, by restricting itself to matters of public safety, including the protection of property, but surely (he confidently anticipates) not to “regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents, or our pleasures.” This is where the “constitutional sheriff” can be fitted in, the person who represents “the collective force” which “use[s] force for lawful self-defense.” Beyond that, a society will travel “the high road to communism.”

Naively, Bastiat “def[ies] anyone to say how even the thought of revolution, of insurrection, of the slightest uprising could arise against a government whose organized force was confined only to suppressing injustice.” The people never rose against the Court of Appeals, the Justice of the Peace, “in order to get higher wages, free credit, tools of production, favorable tariffs, or government-created jobs.” Quite possibly so, but what has that to do with the tribe of the lion and the eagle? “If government were limited to its proper functions, everyone would soon learn that these matters are not within the jurisdiction of the law itself.” Yes, but tyrannical souls can dream, can’t they? Bastiat remarks, if “these organizers of humanity” claim that “the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good?” Their answer will be, ‘We are the vanguard of historical progress.’ But even if, with Bastiat, one disbelieves such pretensions, Bastiat’s own argument only shows why the political problem is perpetual, not that liberty as he defines it will solve it. “The solution to the problems of human relationships is to be found in liberty.” But what if there is no solution to human problems, absent divine intervention? 

Whether propounded by a citizen like Sheriff Mack or by a thinker like Frederic Bastiat, plans for reducing government to the function of protecting lives and property (broadly understood), minimize the importance of political regimes, and of political activity generally. They incline to reduce politics to sub-political categories (law enforcement, economics) without seriously considering the possibility that Aristotle is right to consider human beings political animals.

 

 

 

Note

1. Gale was a white supremacist, a fact that looms large in any ad hominem argument against his movement. As with all ad hominem arguments, it cannot be used to refute his argument about lynching public officials, an argument which has its own difficulties, as Sheriff Mack evidently sees. Similar charges of racism against Mack and his associates themselves may or may not be true but also stand as irrelevant to the question of whether the arguments they actually make follow the principles of the Declaration of Independence and the Constitution.
2. This point is lost on the Republican Party of Hillsdale County, Michigan, where I live, whose leaders endorse both the slogan, ‘Taxation is theft’ and the notion of constitutional sheriffhood. 

This article was commissioned by Law and Liberty as a response to an essay by Jay Nordlinger entitled “‘We Will burn and Loot and Destroy’: The Weather Underground and Its Legacy.” My response was published on March 23, 2021.

 

Revolution means regime change. Rulers, ruling institutions, the purposes of the country and its way of life: Revolutionaries aim at removing and replacing all of these with, well, themselves. If they reckon that they can do so nonviolently (1980s Central European nations and South Africa, 1950s France, 19th century England) they’ll do it that way. If not, not (America 1776-81, France 1789-93 and periodically thereafter Russia, Italy, Germany, China in the last century). The United States has seen one peaceful and successful revolution inaugurated by Progressives early in the 20th century, consummated in the New Deal and extended ever since. Its peacefulness was no guarantee of its justice, however, any more than the violence of the Founders’ revolution issued in tyranny.

Except for the War for Independence, violent revolutionaries have failed in America, consistently, with the partial exception of the post-Civil War Ku Klux Klan. The Weathermen count among those failures, I am happy to remark. Revolutionary violence is their “legacy” in the sense that they have passed it down to a subsequent generation—and, unexpectedly, to their enemies, as well.

Jay Nordlinger has assembled all manner of explanations folks offer for the two most recent surges of revolutionary violence. Recalling the Weather Underground, these explanations range from circular vaporing about the Zeitgeist (the late 1960s was “an extreme time”) to rationalization sans reason (they were only “young dreamers,” Martin Luther Kings of the pipe bomb), to pop sociology (they got together in groups, you see, and one wild thing led to another). Analyses of our own “extreme time” invoke the well-worn mantra of ‘race, class, and gender’ grievances with respect to the ‘Left,’ and pretty much the same thing on the ‘Right,’ with victims and exploiters reversed and Trump erected as lightning rod in the eye of the storm.

As Nordlinger kindly understates it, revolutionaries of the past half-century have proved “impatient of democratic processes,” unlike their Progressive predecessors. Most obviously, this has happened because while by definition (indeed tautology) all revolutionary violence aims at regime change, this violence aims at changing our  regime, the regime of democratic and commercial republicanism. But why the impatience?

When explaining themselves, contemporary revolutionaries claim that the American regime is neither democratic—controlled by capitalist paymasters, saith the ‘Left,’ or an internationalist ‘deep state,’ saith the ‘Right’—nor genuinely commercial—’free enterprise’ having produced nothing but servitude in the one narrative, or jobs lost to overseas sweatshops, according to the other.

It’s easy to pick out pieces of truth from all these explanations. But they all overlook the obvious. Revolutionary violence in contemporary America results from the nonviolent triumph of Progressivism itself. Whether the revolutionaries appropriate the name for themselves or abominate it as a synonym for “Legion,” they are unintended printouts of the regime Progressivism made.

American Progressivism has had a doctrinal element and a structural one. Doctrinally, Progressivism derives from the moral crisis seen in 18th century Europe. Where does morality come from? For centuries, of course, the answer was “God.” From Machiavelli to the French Encyclopedists, ‘the moderns’ had challenged the teaching of Christianity; whether ‘Enlightened despots’ like Frederick the Great or ‘Enlightened democrats’ like Tom Paine, many of the most prominent politicians and polemicists had ruled out God as the source of moral principles, whether tacitly or explicitly. Many of these men substituted what they called ‘natural right’—often amounting to little more than utility—for divine right.

But nature as the source of morality soon came under attack. If, as the Enlighteners claimed, nature is little more than matter in motion, how do you derive right from that? David Hume, who answered that question by saying you can’t, inclined to explain morality as a set of customs; others (Rousseau, Adam Smith) chose natural sentiments; still others, utilitarianism stripped of natural right. The theory that proved most persuasive to the university professors who educated subsequent generations of preachers, politicians, and writers itself came, sure enough, from a university professor. As is well known among university professors, G.W.F. Hegel argued that moral and political right come from the course of history, which he explained as the rational unfolding of the ‘Absolute Spirit,’ the animating principle of all that exists. According to this doctrine, all that has happened (generally, if not down to the details) happened according to the impersonal and irresistible ‘laws of history.’ There is nothing above and beyond ‘History’—very much with a capital ‘H.’

Marxian socialism and Spencerian capitalism take Hegel and made him empirical. They retain ‘History’ and its supposed iron laws. As has been exhaustively documented by scholars of the history of ideas, the American Progressives who took over U.S. university faculties in the aftermath of the Civil War adopted these doctrines and ‘democratized’ them. No dictatorship of the proletariat for them; no Social-Darwinist struggle for survival, either. They preferred a gradual but determined walk towards egalitarianism, a walk undertaken with the consent of the governed, not a forced march. Leaders of opinion—Woodrow Wilson, FDR, JFK—not leaders of battalions would show us how to ‘get on the right side of History.’

To aid in this, and to consolidate ‘progress,’ they instituted a ruling structure, the equally well-known administrative state, a centralized bureaucracy that would regularize and regulate the new regime. Bureaucratized and state-subsidized universities, staffed by Progressive teachers and administrators, would train both the leaders and the functionaries of the new regime, often interlocking with business corporations—themselves now extensive and often international bureaucracies. Undemocratic? Of course—even aristocratic or oligarchic (‘meritocratic’ to its friends). But, as Tocqueville had seen a century earlier, bureaucracy imposes a “soft despotism” that readily arises out of a democratic-egalitarian civil society.

The revolutionary violence of the past fifty years or so has resulted in what liberty-minded economists like to call the unintended (though far from unforeseeable) consequences of both Progressive doctrine and Progressive institutions. Such violence aims at the destruction of private property and persons—specifically, “members of the ruling class,” as one radical group put it.

With ‘History’ on one’s side, violence is easy to justify. If, according to the doctrine of historical fatalism, human beings have no innate rights, then they are expendable. The Weathermen and their allies made this obvious in both deeds and words. Wherever radicals ‘Left’ and ‘Right’ have seized state power, the butcheries multiply. On the ‘moderate’ side of the continuum, extremists can eliminate their enemies by means of harassment and censorship—’cancellation.’ More subtly, but no less tellingly, Noam Chomsky warns that violence is wrong not because it’s immoral, a violation of human rights, but because it’s tactically inept, “a major gift to the Right”—a mistake, but only a tactical one. Bad publicity. If your enemies are destined for History’s dustbin, they only have rights so long as you are not yet in a position to show them that they don’t. And don’t forget to decry ‘bullying’ in the meantime.

As for the excesses of extremists in practice, one may, understandably, wonder at the folly of the Capitol Hill ‘stormers’ taking selfies (real revolutionaries don’t do things like that) or Antifa-ites rampaging in Portland, one of the most socialist-sympathetic cities in America. Such wondering will cease if you recall Tocqueville’s analysis of the Jacobins. Old Regime France was one of the earliest examples of the centralized modern state, the one in which the monarch no longer claimed the status of first among his aristocratic equals but enforced recognition of his absolute sovereignty, gathered the aristocrats out of the countryside into the palace of Versailles, and replaced them with administrators beholden to himself. As result, no one in France had any practical experience in politics and government. There hadn’t been any real citizens in France for more than a century, even among the aristocrats. When the revolutionaries overthrew their rulers and took over, “impatience with democracy” soon infected the democrats. The guillotine proved so much quicker. Like the Jacobins during the Reign of terror, today’s looters, bombers, and burners can’t even govern themselves. By its top-down, centralized way of ruling, the administrative state weakens the practices of self-government, eventually wiping out the knowledge of how to do it and corrupting the moral capacities needed to do it in a civil and sensible way Like the Marxist ‘consciousness’ it imitates, ‘wokeness’ turns citizens not so much into sleepwalkers as sleep-rampagers, somnambulists of self-righteousness.

The original American Progressives proceeded peacefully, profiting from the contrast between themselves and the violent anarchists and socialists that made the 1890s and early 1900s a time of heightened social violence. They took control of the education system, as recommended by men like Woodrow Wilson and John Dewey. The doctrines and political structures they fostered in that system have gradually weakened the system itself. When the New Leftists of the 1960s retooled themselves as schoolteachers in the 1970s, they followed the Progressives’ tactics, abandoning the notion that ‘democracy is in the streets’ and bringing their own version of democracy into the classroom. The revolutionaries who have learned New-Left doctrines in those classrooms now devour both their own children, in the abortion mills, and their own parents, first in academia, then in every other dimension of American life. In that sense, today’s extremists do carry on the legacy of the violent portion of the Sixties Left.

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

1. 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).
2. 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.