by Edward J. Erler
The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration Act of 1965 formed the core of the Great Society. Together, they became what some have called the “Second Reconstruction.” Professor Gabriel Chin noted that “[i]n a remarkable fifteen-month span between July 1964 and October 1965 . . . these laws unquestionably marked a turning point in American history and dramatically changed American society.”
“Of the three,” he speculated, the Immigration Act, “may be the least celebrated and the most consequential.” Chin is right: the 1965 law has worked almost without notice; but it has had a dramatic impact on the demographic transformation of American society and, consequently, a radical transformation of American politics.
For many years, this demographic and political transformation was viewed as an “unintended consequence” of the act that no one could have foreseen. But scholars have slowly come to the realization that this may have been the “unspoken” imperative of the administrative state. If so, as long-time chronicler of the American political scene Theodore White lamented some years ago, “the Immigration Act of 1965 changed the future of America. . . . The new act of 1965 was noble, revolutionary—and probably the most thoughtless of the many acts of the Great Society.”
In his remarks at the signing of the Immigration Act on October 3, 1965, President Lyndon Johnson said the bill, “repair[s] a very deep and painful flaw in the fabric of American justice. It corrects a cruel and enduring wrong in the conduct of the American Nation.” The root of that injustice, the president explained, was “the national origins quota system,” a system that “denied entrance . . . from southern or eastern Europe or from one of the developing continents.”
America, Johnson continued, “flourished because it was fed from so many sources—because it was nourished by so many cultures and traditions and peoples.” While the president did not use the same words, his meaning was the same as the mantra we hear every day from progressive politicians: “diversity is our strength.”
With the 1965 Immigration Act, our national origins quota system was abolished; the emphasis in the future would be on the areas of the world that had been excluded in the past. After that year, the majority of immigrants would come from the Third World, particularly from Latin and South America and Asia. The demographic impact would be dramatic. As of 2012, non-Hispanic whites made up 63 percent of the population; however, in two of the largest states (California and Texas), they were minorities. By 2043, non-Hispanic whites are projected to be a minority in the United States as well. Can it be plausibly argued that this was part of the unspoken and unacknowledged imperative of the administrative state?
Johnson insisted that,
[t]his bill that we will sign today is not a revolutionary bill. It does not affect the lives of millions. It will not reshape the structure of our daily lives, or really add importantly to either our wealth or our power. Yet it is still one of the most important acts of this Congress and of the administration.
It is almost shocking to hear this language from a president who always described his own achievements in grandiose terms. How can we understand the way he underplays the importance of the legislation, even as he touts it as “one of the most important acts . . . of the administration?” We know, in hindsight, that the “bill” did turn out to be “revolutionary.” It did “affect the lives of millions,” and we suspect that the president was aware of its future impact. One perceptive commentator, Roger Daniels, noted that it
changed the whole course of American immigration history, although it did so along lines that were already apparent for the few who had eyes to see. In addition, it facilitated a great increase in the volume of immigration . . . The most striking effect of the new law has been further to increase the share of immigration slots going to Asia and Latin America.
The stated purpose of the Immigration Act, as we have seen, was to “correct a cruel and enduring wrong” in American immigration policies. The unstated purpose of the Act, however, was to change the racial and ethnic mix of the population of the United States—not only as compensation for past racial injustice, but also as a way of consolidating the administrative state by adding to its list of client groups.
Driven by immense pressures of despotism and economic deprivation in their native countries, large numbers of immigrants came to the United States from Third World countries, both legally and illegally. These immigrants have a more difficult time adapting to American customs, habits, and laws and show less willingness to do so. This means that they are more likely to need the services of the administrative state, which is only too willing to specify the terms and conditions for their adjustment to American society.
In fact, by promoting multiculturalism, the administrative state has encouraged immigrants to resist integration into society. Rather than seeking new immigrants’ integration within a common American culture, the administrators—and, eventually, the immigrants themselves—demanded that America should change to accommodate those with different cultures. The old goal of the “melting pot” became mocked as a racist legacy in the new universe of multiculturalism. Indeed, demands that immigrants adapt to American habits and manners were derided as “cultural genocide,” a product of America’s overweening arrogance fueled by the anachronistic notion of American exceptionalism.
The welfare bureaucracy and its allies in the “civil rights community” were eager to perpetuate the dependence of new immigrants, whether legal or illegal. Bilingual education, affirmative action, and other forms of welfare dependency came to the forefront. Hugh Davis Graham remarked that, “[t]he eligibility of 80 percent of immigrants to America for affirmative action programs made a mockery of the historical rationale that minority preferences compensated for past discrimination in America.” Furthermore, Graham notes,
[t]he proliferation since the 1970s of bilingual/bicultural education programs in American schools has further segregated and isolated Mexican (and Hispanic) children from the American mainstream and weakened the acquisition of English literacy and competence in school subjects leading to higher education and advancement in America’s high-tech economy.
Most scholars deny, of course, that there was any concerted effort on the part of the administrative state to co-opt newcomers. The policies were piecemeal and the consequences seemingly unintended. But 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 and policies of indirection, all backed by the cooperation of a compliant court system. The Immigration Act played an important role. As one administrator explained,
without fully realizing it we have left the time when the nonwhite, non-Western part of our population could be expected to assimilate to the dominant majority. In the future, the white Western majority will have to do some assimilation of its own.
The non-Western part of the American population has already been relieved of its obligation to assimilate; the “white Western majority,” however, will soon acquire assimilation responsibilities of its own. These responsibilities will be presented as matters of simple justice—there will be racial and ethnic reparations and, almost certainly, mandatory instruction in critical race theory.
Americans in Waiting
In 1982, the Supreme Court handed down its decision in Plyler v. Doe, a case involving illegal alien children. In a five–four majority, the Court held that, under the 14th Amendment’s equal protection clause, the state of Texas may not deny to illegal alien children the same free public education that it provides to United States citizens or legally admitted aliens. To reach this conclusion, Justice Brennan indulged considerable judicial legerdemain in an attempt to abolish the distinction between legal and illegal aliens. He admitted that, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance, Brennan noted, that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to remain in the country, or even the chance to become a citizen. Considering the discretionary federal power to grant relief from deportation, a state cannot realistically determine that any particular undocumented child will in fact ever be deported until after deportation proceedings have been completed. It would, of course, be difficult for the state to justify a denial of education to a child enjoying what Brennan describes as “an inchoate federal permission to remain.”
Thus, according to Justice Brennan’s irrefragable logic, once an illegal alien child is brought to the United States and is able to avoid deportation—either by federal discretion, inefficiency, or unwillingness to enforce the law—that child is now entitled to a constitutional guarantee of free public education under the equal protection clause, and his family can insinuate themselves into the fabric of American society and enjoy “an inchoate federal permission to remain.” This “federal permission,” of course, may have its uncertainties depending upon the ebb and flow of immigration politics, but there will be many immigration advocacy organizations and legal groups who will represent their interests. Illegal aliens in this category are now known as “Americans in waiting,” a designation that began with Plyler’s amorphous and constitutionally suspect “inchoate permission to remain.” The decision was not protested with any particular vigor by establishment Republicans or Democrats of any stripe because it fit the tacit agreement the two parties had on the continued tolerance and even encouragement of illegal immigration.
We remember that President Reagan in 1986 spoke of illegal immigrants, “who must hide in the shadows without access to many of the benefits of a free and open society.” However much the metaphor of “hiding in the shadows” has been used to describe the plight of illegal aliens, it has never been as accurate as the advocates for illegal aliens would have us believe.
The “Americans in waiting” have always been “hiding” in plain sight. In 2006, for example, protest marches calculated to bring pressure on Congress to pass a comprehensive immigration reform brought millions of illegal aliens and their supporters out into the public square; they demanded amnesty and the whole panoply of rights usually reserved to citizens and legal residents. “Americans in waiting,” it seemed, would wait no more. The demonstrations were designed to be a kind of public recognition that illegal aliens are crucial to the American economy and should be allowed to enter the mainstream of society. They do the necessary work that Americans are unwilling to do, like hard physical labor for low wages and no benefits. Legalizing illegal aliens would, therefore, be a just recognition of the important role they have assumed in the American economy.
The demonstrations were undoubtedly a grave miscalculation. They served only to harden public opinion against comprehensive reform, especially reform involving amnesty and a path to citizenship that President Bush had promised. Bush was forced to retreat from his early promise that amnesty for illegal aliens would be the first step on the path to citizenship.
Unlike President Bush, however, the demonstrators were clear. They wanted amnesty and did not see the necessity of denying the obvious: amnesty was a recognition of their status as “citizens in waiting.” What is more fundamental to a sovereign nation than the determination of who can become citizens and who shall remain aliens? Only in the world of postmodern citizenship could illegal immigrants boldly and boisterously take to the streets to demand a law that would challenge the sovereignty of the United States.
This, of course, was a distinction that was effectively collapsed in the Plyler decision. 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. It is for this reason that the first priority of those who advocate for a universal homogeneous state is to attack the idea of exclusive citizenship and the idea of borders.
Immigration under Reagan and Bush
President George W. Bush was, in some sense, an advocate for a “borderless world.” He often stated that “family values don’t stop at the Rio Grande.” There are, then, certain “universal values” that transcend a nation’s sovereignty. In these statements, Bush’s “compassionate conservatism” was on full display; he often said that we should be more compassionate to our less fortunate neighbors to the south. Bush was merely repeating the rhetoric used by President Ronald Reagan when he signed Immigration Reform and Control Act in 1986. In that signing statement, Reagan remarked:
We have consistently supported a legalization program which is both generous to the alien and fair to the countless thousands of people throughout the world who seek legally to come to America. The legalization provisions in the act will go far to improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society. Very soon many of these men and women will be able to step into the sunlight and, ultimately, if they choose, they may become Americans.
Two other provisions of that 1986 Act provided for increased border security and strict sanctions against employers who knowingly hired illegal aliens. Although the bill had bipartisan support, only the hopelessly naive believed that the border control provisions and employer sanctions were serious; neither Republicans nor Democrats were sincere in their efforts to curtail illegal immigration. In fact, the passage of the act occasioned a surge of illegal border crossers hoping to take advantage of further amnesties, no doubt anticipating that amnesties would become a regular feature of American immigration policy.
Reagan emphasized that the Immigration Reform and Control Act was not a deterrent to those who sought to enter legally. In fact, it was a “generous” and “fair” invitation to immigrants “who seek legally to come to America.” It was also an invitation to those already in the country illegally to step out of the “shadows” and “into the sunlight”; they would receive amnesty for their violations of America’s sovereignty and “ultimately, if they choose,” become American citizens.
Thus, the president offered a generous invitation to immigrants from all over the world to come to the United States legally. And, for those who had already come illegally, he offered forgiveness for their trespasses. Reagan undoubtedly calculated that, because it was the nation’s decision to give amnesty to illegal border crossers, there was no threat or challenge to United States sovereignty. He often intoned that this amnesty was a “one-time-only” deal. However, he must have known, as many observers at the time did, that a one-time amnesty is not easily contained. It is difficult to argue that an exception to principle sets no precedent, especially when the same set of circumstances will undoubtedly be present sometime in the future. Why shouldn’t similarly situated illegal immigrants in the future be accorded the same generosity and forgiveness? And, as every thoughtful policymaker knew, there would soon be new demands for amnesty, and these demands would be followed by charges from immigration advocates. Only a lack of generosity and humanity, one could argue, stood behind refusals to create new amnesties. In fact, both demands and charges followed in quick order, and continue to the present day.
Christopher Caldwell recently summed up Reagan’s approach to immigration in unflattering terms:
Reagan was tasked by voters with undoing those post-1960s changes deemed unsustainable. Mass immigration was one of them, and it stands perhaps as his emblematic failure. Reagan flung open the gates to immigration while stirringly proclaiming a determination to slam them shut. Almost all of Reaganism was like that.
The Reagan Administration did not take an active role in the passage of the 1986 Immigration Reform and Control Act, especially its enforcement mechanisms. The president’s enthusiasm for amnesty was genuine, but amnesty was supposed to be balanced, or “paid for” in political terms, by strict border enforcement measures. Public opinion evidenced strong opposition to illegal immigration in the years leading up to 1986, and Reagan had made an electoral promise to control the borders. But as Hugh Davis Graham pointed out, Reagan was always wary of alienating business interests.
Reagan, of course, promised to represent the public interest by restricting illegal immigration, but he allowed his commitment to business and manufacturing interests to outweigh his commitment to the public. The public, after all, has no lobby—except elections, which presidents and Congress find increasingly easy to ignore. David Jacobson points out something obvious, but nonetheless striking. “On the face of it,” he asserted, “the physically most powerful country in the world should be able to seal its borders against illegal entry.”
Thus, legislation that involved vital issues of national sovereignty was decided exclusively on the basis of interest brokering—with scarcely a nod in the direction of the national interest, or a concern for the impact that amnesty might have on the status of American citizenship. Interest brokering and negotiating is, of course, intrinsic to democratic politics. But issues of sovereignty and citizenship involve national interests of general applicability and the common good; these issues are least amenable to such politics. They are the issues which most require presidential leadership, and it was here where President Reagan retreated from his national responsibility. The openness and compassion he expressed in his Immigration Reform and Control Act signing statement was later to become the hallmark of the George W. Bush Administration’s immigration policy.
But any clear-thinking observer can see that compassion is not a sound basis for either foreign policy or immigration policy. Compassion is more likely to lead to contempt than to gratitude in both policy areas. The failure of the 1986 amnesty should be a clear reminder of the useful Machiavellian adage that, in the realpolitik world of foreign affairs, it is better to be feared than loved. Fear is more likely to engender respect; love or compassion is more likely to be regarded as a contemptible sign of weakness. Delays in implementing new amnesties have been treated with contempt by immigration activists and proffered as evidence that the American people are “heartless”—the word Jeb Bush, President Bush’s older brother, used to describe the American people because they would not support more amnesties for illegal aliens when he was a primary candidate for the Republican nomination in 2016.
In immigration activist quarters, amnesty—and subsequently “citizenship”—is considered a right that attaches to “universal personhood.” Jacobson notes that,
[t]ransnational migration is steadily eroding the traditional basis of nation-state membership, namely citizenship. As rights have come to be predicated on residency, not citizen status, the distinction between ‘citizen’ and ‘alien’ has eroded. The devaluation of citizenship has contributed to the increasing importance of international human rights codes, with its premise of universal ‘personhood.’
However noble and inspiring the sentiments on the Statue of Liberty might seem, they are not part of the Constitution. The Constitution commands that the interests of American citizens take precedence over any demands emanating from the “world community.” The advocates of the universal homogeneous state, however, no longer believe that national security or preservation of the nation-state is a rational goal; rather, national security must be subordinate to other, more pressing goals more compatible with political correctness, such as openness and diversity. These goals have supplanted national security as the nation’s priority, even if it means that the nation must run some risk. Open borders serve to demonstrate this commitment to openness and diversity.
Character, Citizenship, and Immigration
Thomas Jefferson understood the vital element of character in citizenship and the relation of citizenship to the regime. He proposed this “experiment” in the Notes on the State of Virginia:
Suppose 20 millions of republican Americans thrown all of a sudden into France, what would be the condition of that kingdom? If it would be more turbulent, less happy, less strong, we may believe that the addition of half a million of foreigners to our present numbers would produce similar effect here.
Indeed, 20 million Americans thrown suddenly into a monarchy would undermine the regime. Bristling at the idea of unquestioned obedience and enforced obsequiousness, Americans possessing the virtues of republicanism and habituated to self-government would make them ill-suited to be citizens of a monarchy. The addition of this cohort would introduce an element of anarchy into the French monarchy that would undoubtedly force it to become a tyranny in order to survive.
“[W]e may believe,” Jefferson posits, “that the addition of half a million of foreigners to our present numbers would produce a similar effect here.” Jefferson does not specify who the foreigners might be, but he had earlier speculated that most of those seeking refuge in America would be those fleeing absolute monarchies or other forms of despotic governments. As might be expected, refugees from democratic or republican regimes would be rare. One might think that those fleeing absolute monarchy and other despotic regimes would relish their new-found freedoms and easily fall into the habits and manners of free citizens, but Jefferson is adamant that these refugees will not become good republican citizens—or at least not easily and not quickly. Their emigration should therefore not be encouraged. In the first place, he wrote,
[t]hey will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another. It would be a miracle were they to stop precisely at the point of temperate liberty.
Refugees from despotism do not make good republican citizens because they cannot easily shake these habits of deference and assume the habits of independence. Those who grow up in despotic regimes are habituated to bowing and flattery in the presence of social class superiors. This becomes habitual and not easily discarded. If they do throw off the habits and manners accumulated under despotism, it is more likely in exchange for “unbounded licentiousness” without regard to civility, with a contempt inspired by class hatred rather than rational and moderate liberty. This kind of contempt is characteristic of anarchy rather than republicanism.
The exercise of rational liberty—the genuine pursuit of happiness—is acquired only over the course of many years of being habituated to republican virtue. Education to republican virtue begins almost at birth; it is not easily acquired, even for those who live their entire lives in republican regimes.
To expect the newly arrived easily to exchange the chains of despotism for the robes of republican virtue is unrealistic, if not wholly utopian. It is better, Jefferson muses, to populate republican America from its native stock. But he knows that is unrealistic; the country is too large, its resources too vast and its population too small. But Jefferson was clear that immigrants must be chosen carefully, preferring those who were emigrating from free regimes. He wanted to admit only those who can contribute something valuable to America’s interests and comport themselves according to the principles of republican government. There would be no open borders in Jefferson’s vision. First choice would go to those who already possess the habits and manners of freedom; next would be “useful artificers.” “Spare no expense in obtaining them,” Jefferson declaimed. “They will teach us something we do not know.”
Throughout American history, the assimilation of immigrants has proceeded apace. I think Jefferson underestimated the capacity of the United States to assimilate a wide variety of peoples. According to Abraham Lincoln, it was Jefferson’s own handiwork—the Declaration of Independence—that made assimilation such a powerful force in America. Speaking of the American Revolution in July 1858, Lincoln said:
We find a race of men living in that day whom we claim as our fathers and grandfathers; they were iron men . . . We hold this annual [fourth of July] celebration to remind ourselves of all the good done in this process of time of how it was done and who did it, and how we are historically connected with it; and we go from these meetings in better humor with ourselves—we feel more attached the one to the other, and more firmly bound to the country we inhabit . . . We have besides these men—descended by blood from our ancestors—among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe—German, Irish, French and Scandinavian—men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that ‘We hold these truths to be self-evident that all men are created equal,’ and then they feel that moral sentiment taught in that day evidences their relation to those men, that is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the men who wrote that Declaration and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together.
All immigrants can trace their lineage to the blood of the founders through “the electric cord” of the Declaration. Self-government, dedication to freedom, and the measured pursuit of happiness all flow from that dedication. Dedication to those republican morals, habits, and manners—the “father of all moral principle”—replaces descent by blood as the title to citizenship and the motive force for assimilation. But, as the authority of those principles has declined in the United States, so has the nation’s capacity to assimilate immigrants. Today, the Declaration is denounced as a document of “white supremacy” by ignorant ideologues; Abraham Lincoln, who restored its principles against the sustained attack of the slaveocracy, is denounced as a “racist.”
In retrospect, it is easy to see what a mistake the Immigration Act of 1965 was. It put an emphasis on immigration from Third World countries, whose people would have the greatest difficulty assimilating. They were welcomed by administrative state bureaucrats who convinced these new immigrants both that it was wrong for Americans to expect them to assimilate, and wrong for them to aspire toward assimilation.
The country was on its way to multiculturalism without any political or moral principles to serve as an authoritative guide. Assimilation, not multiculturalism, is the strength of a nation; multiculturalism dissolves and dissipates a nation’s strength. A nation-state must have a shared, patriotic conception of the common good that transcends its immediate interests. As Lincoln’s speech indicated, that was the Declaration—the principle that “all men are created equal.” That “the electric cord” binds all citizens, regardless of race, color, ethnicity, or national origins.
Once the nation has cut itself loose from that “sheet anchor” of republicanism, it will no longer have any principles to guide it. If in our current hysteria we condemn our founding principles as irredeemably racist, we will no longer guide ourselves by the central principle of natural right, that “all men are created equal.” Without the natural right principles of the founding, the nation has no future but dissolution and anarchy.
An Immigration Policy Based on Founding Principles
During his time in the White House, President Trump offered proposals to reform immigration policies to emphasize the interests of American citizens. Trump believed the United States should, to use Jefferson’s terms, prefer immigrants who are “useful artificers,” bringing useful skills and contributing to the economic life of the country. This would be a repudiation of the legacy of the 1965 Immigration Act, what many have called the “diversity lottery.” As the former president mentioned several times, this is the most destructive immigration policy imaginable.
Of course, diversity as it is understood today has no intrinsic value. Immigration policies should serve the interests of the nation-state; they should not be acts of charity to the world. The integrity of the nation-state is intimately tied to the integrity of constitutional government and the fulfillment of its purposes—that is, the safety and happiness of the people. Securing these purposes includes the protection of rights and liberties and privileges and immunities that are integral parts of the pursuit of happiness.
Those invited to become members of the body politic should have something to offer to the common good. They should not only possess the capacity to adopt the habits and manners of republican citizens, but they should have the wherewithal to be independent citizens who will not become prey to the minions of the administrative state. Full acceptance of American principles as specified in the Declaration and the Constitution are a minimum requirement for becoming a member of the American polity.
A useful occupation that contributes to the American economy should be another minimum requirement. Unskilled or low skilled labor only creates an underclass that shuts out Americans from entry level jobs that provide the acquisition of necessary work-discipline and skills for economic advancement.
Immigration driven by compassion is misplaced. American immigration policy must seek skilled workers who can make an immediate contribution and who are needed to fill gaps created by a dynamic economy. Compassion is sometimes necessary in extraordinary situations, but as a general policy, it only exhibits weakness to the world. No one has a right to emigrate to the United States.
The nation-state is the last refuge of freedom and constitutional government. Maintaining both requires not only wise but difficult choices. The world is rapidly lapsing into chaos, where only a few stable constitutional governments hold out prospects for survival. These governments cannot be the last refuge for those fleeing violence, terror, poverty, and the host of other ills that afflict the world. If these governments insist on doing so—and if they insist on erasing effective borders in the pursuit of that goal—they, too, will dissolve into dysfunction.
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Edward Erler is a senior fellow of the Claremont Institute and author of Property and the Pursuit of Happiness: John Locke, the Declaration and James Madison (Roman & Littlefield, July 2019) and The United States in Crisis: Citizenship, Immigration and the Nation-State
Photo “Citizenship Paperwork” by Grand Canyon National Park. CC BY 2.0.
