By Robert Tracinski July 26, 2018
Michael Anton has responded to those who criticized him for his disastrous plan to have the president try to end birthright citizenship by executive order. His response is fundamentally non-responsive.
He defends his use of a doctored quote to back his view that the Fourteenth Amendment, which established birthright citizenship, doesn’t actually do so—but without explaining why he previously failed to note the change in the quote or to explain it. He then plows on with a series of other quotes from the same Senate debates over the Fourteenth Amendment intended to show that its framers agreed with his idiosyncratic interpretation.
But he ignores what many of us have been citing back to him: the clear statements in those debates declaring that the amendment was “undoubtedly” intended to recognize citizenship for children of Chinese immigrants and gypsies—the closest analogues, at that time, to the children of Mexican immigrants that Anton wants to exclude.
Objecting, as he does, that the writers of the Fourteenth Amendment never explicitly endorsed citizenship for children of illegal immigrants is also irrelevant. First, at the time the amendment was written, there were hardly any restrictions on immigration. Illegal immigration was not an issue because most immigration was legal.
Second, Anton doesn’t really care about the issue of legality versus illegality. As he explained in his “Flight 93” manifesto , the reason he regards immigration as the “most important” threat to America (and birthright citizenship as “the most urgent constitutional challenge of our time”) is that he regards immigrants from the wrong countries—he’s a little vague about which ones—as people with “no tradition of, taste for, or experience in liberty” who will necessarily make America “less traditionally American.” (This is consistent with the many commenters on my previous article who insist that “non-Europeans” will “destroy our distinctive culture”—a view which finds its only logical expression in the explicitly racial nationalism of the alt-right .)
The only really interesting thing about Anton’s defense is that he ends by declaring the need for “some kind of intellectual realignment” in which people he doesn’t like will be purged from the Right, and perhaps the “conservative” label itself—which is “so tainted with error, imprudence, hubris, sanctimony, and failure that it might be better to let others keep it”—will be abandoned and replaced.
With what? Again, he is maddeningly vague. But that’s what this is all about, isn’t it? That’s the only reason to respond to Anton’s tendentious arguments and the only reason commentators on the Right are at each others’ throats so much, even while our party ostensibly dominates the presidency, both houses of Congress, and the Supreme Court. The central fear of the Trump era is that the political “right” as we know it is cracking apart, and its principles and policies are going to be thrown out in favor of something-we-know-not-what.
That brings me back to the most ominous hint in Anton’s attacks. It’s not about birthright citizenship per se . It’s a small passage, easy to overlook, in which he invokes the “social compact.”
A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact’s scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members. A compact that anyone can join regardless of the wishes of its existing members is not a compact.
As an argument against birthright citizenship, this is a non sequitur . In his later response, Anton repeats this complaint about “a social compact that can be joined contrary to the will of its existing members”—while also admitting that birthright citizenship is supported by a majority of voters, which indicates that birthright citizenship is the will of our society’s existing members.
The real reason he cites the social contract (or compact, if you like) is to subtly emphasize his view of that social contract—a view that has a more collectivist tinge that is inconsistent with the history and ideological origins of America. What’s America’s Social Contract?
First, let’s be clear about what this idea of a social contract is. It is a mental construct or analogy created by political philosophers. We can think of our form of government as if it were a contract voluntarily agreed to by every member of our society, because that helps us make a point or illuminate certain questions.
But there is no actual contract. Nobody is literally asked whether they agree to it, nor are they given the possibility of opting out. As Jacob Levy points out , nobody but naturalized immigrants have ever formally “consented to the terms” of membership in American society, and no one at all can claim that his membership has literally “been consented to by all other citizen-members.” Not yours, not mine, not Anton’s. So to take this “social contract” terminology literally and to evoke it as a reason we have to bow to some particular policy is silly.
More important, different philosophers use different versions of the social contract to make very different arguments, and Anton seems to be drawing from the wrong one.
The version that had the most influence on America’s founders is that used by English philosopher John Locke. Locke started by describing rational, industrious men in a “state of nature,” by which he meant living without a government. They find that their lives and property are not secure. They are subject to being killed, robbed, and enslaved by others, and their only recourse is to private reprisals and vendettas that merely add to the anarchy and lead to a system in which might makes right.
So they choose to band together and create a government, giving it the authority to draw on their united force to protect their rights in a lawful and impartial manner. This is the Lockean version of the social contract.
Now remember that the state of nature, like the social contract, is a mental construct. The point is not whether there ever really were the kind of rational and industrious men that Locke conceives as living in an untamed wilderness with no pre-existing civil society. (The closest real-life example would be the settlement of America, which is why Locke’s ideas had such resonance here.)
The point is to pose a thought experiment where you are asked what you would do if you found yourself in such a condition, and thereby shed light on the proper purpose of government. There’s another purpose to the thought experiment. By conceiving of a state in which individuals existed prior to government, Locke is trying to get the reader to consider the idea that individuals have priority over government, that they come first and government comes second, and therefore that government ought to answer to them.
Notice the limits of Locke’s social contract. It is a contract that applies only to the protection of individual rights. It is not an all-encompassing power that we contract out to the government. It is only the power of defending our rights to life, liberty, and property. That’s why, in Locke’s view, a government that becomes dangerous to the rights of the individual can be removed and replaced.
Locke was writing to justify replacing King James II with William and Mary in the Glorious Revolution of 1689. Less than a century later, the Americans would cite his ideas to justify independence from Britain, on the grounds that “to secure these rights, governments are instituted among men,” so “whenever any form of government becomes destructive of these ends…it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.” That’s how the Lockean version of the social contract got written into our founding documents. There’s Another, More Collective, Social Contract
But there is a more expansive version of the social contract, a version most closely associated with the French philosopher Jean-Jacques Rousseau. In Rousseau’s version, the purpose of the social contract is to bring the people of a nation together to express their “general will”—an attempt to transfer the absolute power of kings to the absolute power of the people as a collective.
Thus, he argued, when the individual is coerced to obey the dictates of this collective, he is not really being coerced. He is being “forced to be free.” Yes, that’s a direct quote . Rousseau describes the collective will as the will of “the moral person which constitutes the state,” as if we are all cells in some social superorganism.
But this is a fiction, just another one of those mental constructs spun by philosophers—and unlike asking “what would you do if you were in a state of nature and contracted with your neighbors to form a government,” asking “what would you do if you were a cell in a collective superorganism” is so opposite to the actual reality of things that it cannot yield any valid conclusions.
This is the version of the “social contract” that you’ve probably encountered most frequently, usually from the Left. It is invoked to explain why some massively intrusive new form of government regulation is not really an assault on liberty because it was imposed under the rules of a democratic system and therefore you somehow implicitly consented to it, even if you know damn well you didn’t. It is a rationalization to explain away coercion.
This is the social contract theory Anton seems to be invoking also, with his talk about your citizenship having to be approved by all other citizens in the compact, as if we all convene in some vast assembly to decide whether the general will approves of a given immigrant’s admission. What he is actually advocating is even more directly Rousseauean: that the chief executive of the nation, acting on what Anton presumes is the general will, would dictate what categories of people, from which acceptable origins, are allowed to become citizens. Individual Liberties Versus Collective Will
What I suspect, and what a lot of other people suspect, is that Anton and other Trump supporters are proceeding from an essentially nationalist concept of the social contract. (This is why I think Kevin Williamson is right that Trump’s true predecessor is FDR .) They hold a view of government in which we are all supposed to implicitly agree to submit to the general will of the nation as a whole—which they presume to speak for, in defiance of all available evidence.
That’s the real issue behind this split within the Right. Remember that social contract theories are not literally true, no matter what their originators might have thought. They are mental constructs that serve to illustrate a particular view of human nature, and the difference between these different social contract theories is really a different view of the individual’s relationship to the state.
If we want America to be the country of the Lockean social contract, we mean that we want it to be a country organized around individual rights and the maximum freedom of the individual. If we want Rousseau’s version of the social contract, we mean that we want a government organized around the subservience of the individual to some imagined “general will” of the nation as a whole. Only one of those views is written into our founding documents and can claim to be the “traditionally American” concept of liberty.
Robert Tracinski is a senior writer for The Federalist. His work can also be found at The Tracinski Letter .
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