IMPRIMIS: October 2016 -- A publication of Hillsdale CollegeEdward J. Erler
Co-author, The Founders on Citizenship and Immigration
EDWARD J. ERLER is professor emeritus of political science at California State University, San Bernardino. He earned his B.A. from San Jose State University and his M.A. and Ph.D. in government from the Claremont Graduate School. He has published numerous articles on constitutional topics in journals such as Interpretation, the Notre Dame Journal of Law, and the Harvard Journal of Law and Public Policy. He was a member of the California Advisory Commission on Civil Rights from 1988-2006 and served on the California Constitutional Revision Commission in 1996. He is the author of The American Polity and co‑author of The Founders on Citizenship and Immigration. This fall he is a visiting distinguished professor of politics at Hillsdale College.
The following is adapted from a lecture delivered at Hillsdale College on October 12, 2016, sponsored by the Van Andel Graduate School of Statesmanship and Pi Sigma Alpha.
Nothing has provoked the ire of America's bipartisan political class as much as Donald Trump's recent proposal that the U.S. should suspend the acceptance of refugees from Syria and other terrorist-supporting nations until we find a way of perfecting the screening process to ensure that we are not admitting terrorists or terror sympathizers. On its face this proposal was not unreasonable. Most of these refugees do not have adequate documentation, intelligence agencies do not have sufficient information to determine whether or not they have terrorist connections or intend to engage in terrorism, and the heads of our security agencies have warned that active terrorists will inevitably slip through security screening cracks. Nor is it as if there was no reasonable alternative. Wouldn't it have been better, as Trump and others have suggested, to address the refugee crisis by setting up security zones in Syria or other Middle Eastern countries where refugees could find safety and where Muslim nations might feel obligated to help finance their care? In addition to making sense from a national security perspective, this would also have been a more humane solution, since it would not have uprooted the refugees from their homelands and injected them into an alien way of life.
Why are our political leaders, despite these facts, willing to expose the nation to such potential danger? -- a danger that is surely greater than we now imagine. One only has to observe the results of the refugee crisis in Europe to see what is in store for the American homeland. Yet the Obama administration, following Chancellor Angela Merkel's government in Germany, is adamant that the number of Syrian refugees -- and Muslim refugees generally -- must increase substantially. Former Secretary of State Hillary Clinton, who recently named Merkel as her favorite world leader, has frequently indicated that acceptance of refugees is an important reaffirmation of America's commitment to diversity. It is a reaffirmation of "who we are as Americans," she has said, as if the American character is defined by its unlimited openness to diversity. To show the bipartisan nature of this commitment, Republican Speaker of the House Paul Ryan has used the same phrase to explain his approval of the refugee program. In both cases, the clear implication is that America's commitment to diversity outweighs considerations of national security. Indeed, in what can only be called a self-willed delusion, proponents of the refugee program seem to believe that their commitment to diversity makes us stronger and more secure as a nation, and that any opposition to the program is racist, xenophobic, and most particularly Islamophobic.
Consider what this means. Germans have been warned that it is their duty to accommodate themselves to newly arrived refugees and not to place politically incorrect demands upon them -- that is, not to demand that the refugees adapt to German ways. Some have advised German women in particular that if they don't wish to be harassed by male refugees, they should cover their heads and be accompanied outside of the home by a male. Will this be a part of America's politically correct future?
Merkel, like Obama, bases her immigration policy on a globalist view of the world. Secretary of State John Kerry propounded this view in a recent commencement address, warning Americans that we must prepare ourselves for a "borderless world". But a world without borders is a world without citizens, and a world without citizens is a world without the rights and privileges that attach exclusively to citizenship. Rights and liberties exist only in separate and independent nations; they are the exclusive preserve of the nation-state. Constitutional government only succeeds in the nation-state, where the just powers of government are derived from the consent of the governed. By contrast, to see the globalist principle in practice, look at the European Union. The EU is not a constitutional government; it is an administrative state ruled by unelected bureaucrats. It attempts to do away with both borders and citizens, and it replaces rights and liberty with welfare and regulation as the objects of its administrative rule. Constitutional government -- to say nothing of liberal democracy -- will not be a part of the politically correct, borderless world into which so many of our political leaders wish to usher us.
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How did we reach such an impasse? The answer is simple, but no less astounding for its simplicity. It has been frequently observed by competent thinkers that Americans have abandoned the morality engendered by what the Declaration of Independence called the "Laws of Nature and of Nature's God". The Declaration confidently proclaimed as its first principle the "self-evident" truth that "all men are created equal" and "endowed by their Creator with certain unalienable Rights," among them "Life, Liberty and the pursuit of Happiness." As part of a created (and therefore intelligible) universe, rights cannot be something private or subjective; they are part of an objective order. The idea that every right has a corresponding duty or obligation was essential to the social compact understanding of the American founding. Thus whatever was destructive of the public good or public happiness, however much it might have contributed to an individual's private pleasures or imagined pleasures, was not a part of the "pursuit of happiness" and could be proscribed by society. Liberty was understood to be rational liberty, and the pursuit of happiness was understood to be the rational pursuit of happiness -- that is to say, not only a natural right but a moral obligation as well.
Over the past century and more, this morality grounded in the American founding has been successfully eroded by Progressivism. This erosion is manifested today in the morality of value-free relativism. According to this new morality, all value judgments are equal. Reason cannot prove that one value is superior to or more beneficial than another, because values are not capable of rational analysis; they are merely idiosyncratic preferences. In this value-free universe, the only value that is "objectively" of higher rank is tolerance. Equal toleration of all values -- what is called today a commitment to diversity -- is the only "reasonable" position. And note that it is always called a commitment to diversity. It is a commitment because it cannot be rational in any strict sense -- it exists in a value-free world from which reason has been expelled. The only support it can garner under such circumstances is the simple fact that it is preferred.
With respect to the commitment to diversity, the tolerance of those who are willing to tolerate you does not earn you much credit -- it doesn't require much of a commitment or sacrifice. If, however, you are willing to tolerate those who are pledged to kill you and destroy your way of life, tolerance represents a genuine commitment. Only such a deadly commitment confirms that tolerance is the highest value in a universe of otherwise equal values. Only such a deadly commitment signals a nation's single-minded devotion to tolerance as the highest value by its willingness to sacrifice its sovereignty as proof of its commitment.
The common-sense citizen is forgiven for thinking this train of thought insane. But what other explanation could there be for the insistence of so many of our political leaders on risking the nation's security -- in light of what we see in Europe, one might even say their willingness to commit national suicide -- by admitting refugees without regard to their hostility to our way of life and their wish to destroy us as a nation?
Note that these leaders show no such enthusiasm for admitting Christian refugees from Middle Eastern violence, or even Yazidis, who have suffered horribly from the ravages of Islamic terror. These refugees, of course, represent no danger to America. Only by admitting those who do represent a danger can we display to the world "who we are as a people" -- a people willing to sacrifice ourselves to vouchsafe our commitment to tolerance.
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A rational concern for our liberties as well as for national security weighs in against such reckless policies. Security experts warn that we don't have enough homeland security agents to monitor suspected terrorists who are already in our country. If we increase the number of refugees from terrorist-supporting nations, greater security can only be provided by closer cooperation between the various security agencies and closer monitoring of the private lives of all Americans. The consequent loss of liberty will be extensive and will impact all areas of American life. This, we are told, will become the "new reality" or the "new normal", and Americans will have to develop a "new mind-set" to deal with it. Europeans are well on their way to accepting terrorism as a daily part of their lives -- surely Americans, we are told, can adapt as well. But Europeans are used to sacrificing liberties to the administrative state represented by the EU. Will Americans acquiesce so easily?
The administrative state has not yet extinguished America's love of liberty, although it surely has made significant inroads over the years as Americans have become inured to being bullied by bureaucrats of all stripes. The constant monitoring of citizens in the name of detecting terrorism will, if allowed, turn the nation into a security state where liberties will be easily and casually sacrificed to the constant threat of terrorism. Sacrificing liberty will be the price Americans pay to accommodate refugees -- in other words, it is the sacrifice we must make on the altar of political correctness.
Remarkably, many politicians and pundits have argued that the First Amendment's guarantee of free exercise of religion prohibits Congress and the president from banning the emigration of people to the U.S. based on religion. Thus they characterized the proposal to suspend the entry of Syrian refugees and others from terrorist-supporting nations as a violation of the Constitution. But we must surely wonder how those who are not American citizens or legal resident aliens -- indeed, even those who have never been present in the country -- can assert rights under the Constitution. By the terms of the Constitution, free exercise of religion is one of the privileges and immunities attached to citizenship; it can hardly be said to be possessed by all those who seek refuge in, or wish to emigrate to, the United States. As a sovereign nation, it is beyond dispute that the U.S. has plenary power to determine the conditions for immigration. Except in a borderless world, it can hardly be claimed that free exercise of religion is a right possessed by all persons inhabiting the globe or even those who are potentially asylum seekers.
One condition for claiming refugee status in the Refugee Act of 1980 is religious persecution. This necessarily means that any applicant for religious asylum would have to submit to questioning about his religious beliefs and (presumably) the sincerity of those beliefs. Also, it is not beyond reason that a sovereign nation would be allowed to inquire whether the religious beliefs of an asylum seeker are compatible with the American constitutional order. Should asylum be extended to the adherents of religions that do not recognize the free exercise rights of other religions? Should those religions whose adherents refuse to pledge or give evidence that they would support free exercise be ineligible for asylum? Religion -- and inquiry into religious belief -- has always been part of the asylum law, and there is nothing in the Constitution that bars such inquiry on national security grounds. Indeed, a quick glance at Article I of the Constitution reveals that Congress has plenary power to "establish a uniform Rule of Naturalization." This has always been understood -- by a necessary rule of inference -- to mean that Congress also has plenary power to regulate immigration. Congress has wide latitude to choose the "necessary and proper" means to accomplish this end as long as it doesn’t violate some specific prohibition of the Constitution.
To sum up, only in the perfervid imaginations of the politically correct -- those who reject the idea of borders -- could the Syrian refugee controversy be confused with a constitutional controversy.
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Our lax policies toward illegal immigration and the virtual open-borders policy of the Obama administration represent an attempt to move toward a borderless world as well as to aggrandize the power of the administrative state. It is now widely recognized that the Immigration Act of 1965 was intentionally designed to alter the racial and ethnic mix of the population of America. It has been an overwhelming success; demographers predict that by 2040 whites of European descent will no longer be a majority, having been displaced by people of Asian, African, Latin American, and Hispanic descent. For the most part -- with the notable exception of Asians -- these groups have supplied a significant clientele for the administrative state as it seeks to extend its reach and magnify its power. As such, it has redounded to the benefit of the Democratic Party -- the party that favors the growth and extension of administrative state power. But make no mistake: illegal immigration has always had bipartisan support. Despite the fact that illegal immigration cuts against them politically, Republicans have always favored the cheap and exploitable labor of illegal aliens.
The Democrats, of course, have gotten the best of this bargain. After three generations, Latinos vote Democratic by more than a two-thirds majority. The Republicans cannot hope to compete for the Latino vote without becoming something very close to the Democratic Party, differing only at the margins. This is something that the Republican establishment would like to do, but it finds little support among rank-and-file Republicans. If the Republicans lose the 2016 election -- if a party realignment fails -- the party as currently constituted will, in all likelihood, no longer be competitive in future national elections.
Perhaps more importantly, America's open-borders policy has allowed terrorists and criminals of all stripes to enter the country at will. In addition to Islamic terror groups, MS-13 -- a vicious Latin American gang involved in murder for hire, drug trafficking, human smuggling, slavery, and all other manner of crime -- operates openly in the U.S. Even when illegal-alien criminals are deported, they easily return to commit further crimes. Surprisingly, this issue of illegal-alien crime has become an important issue in a presidential election for the first time this year. These criminals are aided and abetted by sanctuary cities—cities that refuse to cooperate with federal authorities in detaining illegal-alien criminals. This policy is the most baffling policy that can be imagined, as it results in criminals being deliberately released into the public where they continue to prey on innocent citizens. It is designed to show (what else?) our tolerance.
Securing our nation's borders with a wall and by any other means necessary is favored by a majority of Americans, but the idea is considered vulgar and unacceptable by the progressive forces of History, forces which are clearing the obstacles to a borderless world. For these forces, the march of History is inevitable and any appeal to citizens and to the nation-state is anachronistic. It is not inevitable that these forces will have their way. But because of the demographic and political changes brought on by the open-borders regime, time grows short for the American people to reassert their sovereignty -- that is, to stop the self-sacrifice which the political elites of both parties have determined is necessary to satisfy the gods of political correctness -- those gods who are the guardians of the diversity which defines "who we are as a people".