Friday, December 12, 2014

Immigration History: The Constitutional Question

Previous: A National Policy

In this post we finally directly face the constitutional question that has been haunting this entire series. Prior to the Civil War, most constitutional discussion about immigration authority involved the commerce clause. However, and quite likely as a result of distaste with the "people as commerce" implications of such an argument in light of the slavery question, that line of thinking was largely abandoned in the second round of immigration cases.

In 1875 the Supreme Court again considered to what extent states could restrict immigration. After the Passenger Cases resulted in the invalidation of the state taxes on immigration, New York modified its laws. Instead of a tax on immigrants, New York adopted a $300.00 per-passenger bond on ship captains for the purpose of indemnifying the city for any expense the immigrants might cause during their first four years in the country. However, instead of paying the bond, the captain also had the alternative of paying a $1.50 per-passenger fee. If neither was paid, a $500 per-pauper penalty was imposed on the captain.

The Court reviewed this statute in Henderson v. Mayor of City of New York, 92 U.S. 259 (1875) and held that it was an unconstitutional because regulation of commerce and international relations were exclusive matters for the federal government. The Court explained:
A regulation which imposes onerous, perhaps impossible, conditions on those engaged in active commerce with foreign nations, must of necessity be national in its character. It is more than this, for it may properly be called international. It belongs to that class of laws which concern the exterior relation of this whole nation with other nations and governments. If our government should make the restrictions of these burdens on commerce the subject of a treaty, there could be no doubt that such a treaty would fall within the power conferred on the President and the Senate by the Constitution. It is in fact, in an eminent degree, a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected, whether the rule be established by treaty or by legislation. 
It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases. 
It is apparent, therefore, that if there be a class of laws which may be valid when passed by the states until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class.
 * * *
We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.
This decision was released six months after Congress adopted its first national restrictions on immigration. However, Henderson is not the case pointed to for the federal immigration authority. For that, we need to fast forward another fourteen years. This time, instead of a challenge to state policies (which only indirectly involved federal powers), the Court was squarely face with the question: are federal immigration restrictions permitted under the Constitution.

The answer was yes, but the reasoning is one that ought to bother both originalists and textualists.

As you will remember from the last post, Congress passed the first of the Chinese Exclusion Acts in 1882. In 1889, a challenge to these restrictions was decided by the Supreme Court in The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889).

In 1884 Congress had established a system of giving licenses to certain Chinese laborers who were in the country which would grant them permission to return should they visit China. However, in 1888 Congress revoked that return privilege, resulting in the exclusion of all those who had departed the country with the expectation of an ability to return. Chae Chan Ping was one such laborer. After working in the United States for a number of years, he obtained the certificate permitting his return entry and departed for China. However, since the law was changed in his absence, he was denied reentry upon his return to the United States. He brought suit on two grounds: that the Congressional act violated a treaty with China and that it was an unconstitutional exercise of federal power. He lost on both grounds.

First the Court examined the law in light of the 1868 treaty with China which guaranteed free migration between the two countries (an 1880 modification permitted some restrictions, but not absolute prohibition) and held that treaties have no force without implementing legislation and do not bind the legislature:
The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control.
In short, the courts are not the proper mechanism for holding Congress to a treaty and Congress can follow or not follow a treaty as it sees fit.

The Court next turned to the constitutional question, holding that since immigration was a national issue, of course power to regulate it belonged to the national government:
That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. 
* * * 
The power of the government to exclude foreigners from the country whenever in its judgment the public interests require such exclusion has been asserted in repeated instances, and never denied by the executive or legislative departments.
* * * 
The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone.
I said earlier that this analysis should be troubling to originalists and textulists. Here's why. The Constitution was intentionally written, and the federal government was intentionally structured, to not exercise all powers inherent to sovereignty. This is a primary feature, not a accidental byproduct. The national legislature does not have all powers "incident of sovereignty," but only those explicitly delegated (plus those "necessary and proper" to exercise the powers explicitly delegated). The Constitution itself states this, and were that not clear enough the Tenth Amendment states it again.

The Chae Chan Ping case involved none of this analysis. The Court did not categorize immigration restrictions under the delegated power to regulate naturalization, nor did it place them under the delegated power to regulate commerce. In fact, it tied the restrictions to no specific delegated power whatsoever. Instead, it skipped that entire analysis and simply said that as a sovereign nation, of course the legislature could adopt such an act. Yet if the federal government can act in any "incident of sovereignty," the entire separation of powers doctrine is obsolete.

And that is how the Supreme Court solved immigration's constitutional problem.

Next: The Chinese Exclusion Acts (link will be provided upon publication)


Mary Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Missouri Law Review 4 (Fall 1996) 743-824.

Wednesday, December 10, 2014

Immigration History: A National Policy

Previous: Immigration and the Nomination of Abraham Lincoln

Up to this point, we have been able to move quite rapidly through American history, in large part because there was no national policy. All that changed in 1875, when Congress made it illegal for criminals or prostitutes to enter the country. This marks the first true restriction on immigration adopted by the Federal Government, but it was shortly followed by more. In 1882 a fifty cent tax was imposed in all immigrants and Congress prohibited entry by any "convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." Also in 1882, Congress pass the first of a series of Chinese Exclusion Acts, which eventually resulted in a virtual total bar on Chinese immigration. A Bureau of Immigration was established within the Department of Treasury in 1894 (previously the Commission of Immigration had operated under the Department of State per the 1864 Act to encourage Immigration). Anarchists were prohibited in 1903 (32 Stat. 1213) and the Bureau of Immigration was moved to the Department of Labor that same year. Illiterates were barred in 1917 (over President Wilson's veto).

In 1921 quotas were adopted, which was the first time an across the board numerical limit was adopted. This act attempted to preserve the then-current racial balance in the nation by limiting immigration from any country to 3% of that country's population in the United States as recorded in the 1910 Census.

Since these were an emergency measure, they were quickly replaced by the 1924 Immigration Act, which marks the first comprehensive application-based immigration system. Since it is so foundational we'll return to it in detail at a later date. In the meantime, there is still that nagging unresolved constitutional question.

Next: The Constitutional Question (link will be provided upon publication)


Austin T. Fragomen & Steven C. Bell, Immigration Primer (1985).

Michael C. LeMay & Elliott Robert Barkan (ed.), U.S. Immigration and Naturalization Laws and Issues: A Documentary History (1999).

University of Washington-Bothell, U.S. Immigration Legislation Online.

Monday, December 8, 2014

Immigration History: Immigration and the Nomination of Abraham Lincoln

Previous: State Based Policies

Just because there were no federal immigration laws before the Civil War does not mean that immigration issues did not influence politics.

One such instance is the nomination of Abraham Lincoln for President at the Republican convention in 1860. This convention saw stiff competition for the nomination among William Seward, Salmon Chase, Edward Bates, and Abraham Lincoln. When the convention started, Lincoln was thought to be in last place. However, Lincoln managed to obtain the nomination by angling for second preference of the delegates and letting the other three knock each other out.

Edward Bates, had previously been affiliated with the Know Nothing Party, a political movement formed in the 1850s in response to the high levels of immigration. Anti-immigrant and anti-Catholic, this party had seen some success but ultimately split over the question of slavery.

Bates' affiliation with the Know Nothings hurt him at the convention. A German-American delegation refused to support him, which threatened to actively oppose him among all German-Americans were he given the nomination.

This problem with Bates (among others), combined with failure of each of the other candidates to achieve majority support left everyone looking for an alternative. That was exactly who Lincoln had positioned himself to be--the ideal second choice for delegates who could not nominate their man yet would not support any of the other two.

So while the immigration issue was far from critical, and likely not even determination, it was a factor that played into the stalled candidacy of Edward Bates and the nomination of Abraham Lincoln.

Which just goes to show that here in the United States we don't even need an immigration policy to have political consequences for immigration politics.

Next: A National Policy


Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (2005).

Friday, December 5, 2014

Immigration History: State Based Policies

Previous: Naturalization and Deportation

As we saw, the new Congress exercised its authority to establish naturalization rules promptly after adoption of the Constitution. However, no such rules or restrictions were implemented on immigration. There were some reporting requirements implemented in the Alien and Sedition Acts, and self-reporting requirements for aliens in the Naturalization Act of 1802. These were strengthened when, in 1819, Congress passed an act that further required all ships to turn over lists of foreign passengers, which would then be passed on to the Secretary of State. Yet the federal government would not adopt restrictions or limitations on immigration until 1875.

Instead of federal rules, immigration during this era was left to the states:
[F]or the first century of the United States’ existence, many states enacted laws regulating and controlling immigration into their own borders. Various states passed laws aimed at preventing a variety of populations from entering the borders of their states, including individuals with criminal records, people reliant on public assistance, slaves, and free blacks.
Texas, for example, had a Bureau of Immigration outlined in its 1869 Constitution "which shall have supervision and control of all matters connected with immigration".

One such state law, adopted by New York in 1824, required all ship captains entering the City of New York to record a list of all passengers and furthermore made the ships captains give a security to the city for any expenses the city might have as a result of the passengers for their first two years in the city. If the mayor thought any non-citizen passenger would become a public charge, that passenger could be refused entry and ordered returned to his prior place of settlement. The statute was "intended to prevent the state's being burdened with an influx of foreigners and to prevent their becoming paupers, and who would be chargeable as such."

In 1829 the ship Emily arrived in New York with a hundred passengers but the captain never made the required report. When the city sought to collect the statutory penalty for this violation from a consignee of the ship, the defendant raised a constitutional argument. The statute, the defendant claimed, was a regulation of interstate commerce, which the Constitution gave exclusively to the federal government. Consequently, the state law was unconstitutional.

The Supreme Court disagreed and affirmed the constitutionality of the statute. In New York v. Miln, 36 U.S. 102 (1837), the Court decided that the statute was not an exercise of commerce power, but instead was an exercise of police power. Unlike commerce power, police power was not delegated to the Federal Government under the Constitution, but instead remained with the states. The Court concluded that while the federal commerce power extended to goods, persons "are not the subject of commerce, and not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate commerce and the prohibition to the states from imposing a duty on imported goods."

The Court also found no problem with New York's motivation for the statute:
Now in relation to the section in the act immediately before us, that is obviously passed with a view to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is perhaps more than any other city in the Union exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavored to do so by passing, amongst other things, the section of the law in question. We should upon principle, say that it had a right to do so.
The concurrence by Justice Thompson sheds even more light on the question of the proper placement of the power to regulate immigration:
Can anything fall more directly within the police power and internal regulation of a state than that which concerns the care and management of paupers or convicts or any other class or description of persons that may be thrown into the country and likely to endanger its safety, or become chargeably for their maintenance? It is not intended by this remark to cast any reproach upon foreigners who may arrive in this country. But if all power to guard against these mischiefs is taken away, the safety and welfare of the community may be very much endangered. 
A resolution of the old Congress, passed on 16f September 1788, has an important bearing on this subject; 13 vol. Journals of Congress 142. It is as follows: 
"Resolved that it be and it is hereby recommended to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States." 
Although this resolution is confined to a certain description of persons, the principle involved in it must embrace every description which may be thought to endanger the safety and security of the country. But the more important bearing which this resolution has upon the question now before the Court relates to the source of the power which is to interpose this protection. It was passed, after the adoption of the Constitution by the convention, which was on 17 September 1787. It was moved by Mr. Baldwin and seconded by Mr. Williamson, both distinguished members of the convention which formed the Constitution, and is a strong contemporaneous expression, not only of their opinion but that of Congress, that this was a power resting with the states, and not only not relinquished by the states, or embraced in any powers granted to the general government, but still remains exclusively in the states.
* * *
Whether therefore the law of New York, so far as it is drawn in question in this case, be considered as relating purely to the police and internal government of the state, and as part of the system of poor laws in the City of New York, and in this view belonging exclusively to the legislation of the state, or whether the subject matter of the law be considered as belonging concurrently to the state and to Congress, but never having been exercised by the latter, no constitutional objection can be made to it. Although the law, as set out in the record appears to have been recently passed, 11 February, 1824, yet a similar law has been in force in that state for nearly forty years, 1 Rev.Laws 1801, 556, and from the references at the argument to the legislation of other states, especially those bordering on the Atlantic, similar laws exist in those states. To pronounce all such laws unconstitutional would be productive of the most serious and alarming consequences, and ought not to be done unless demanded by the most clear and unquestioned construction of the Constitution.
Justice Baldwin also concurred, finding that since there was no delegated power for the Federal Government to regulate immigration, the state power could not infringe on a federal power. Only Justice Joseph Story dissented on the grounds that the New York law was a regulation of interstate and international commerce, which was an exclusive power of the Federal Government.

Only twelve years later the Miln case would be curtailed. In Passenger Cases, 48 U.S. 283 (1849), and in language reminiscent of Justice Roberts' opinion on the Affordable Care Act,  the Court examined whether New York and Massachusetts statutes requiring payment by ship's captains for passengers was an impermissible "tax" or a permitted health regulation. Ultimately the Court classified it as a tax, distinguished it from the law in Miln, and declared it an unconstitutional state interference with commerce. However, Miln and state prohibitions on the immigration of paupers would live on in relative obscurity until formally declared dead in Edwards v. California, 314 U.S. 160 (1941).

In the meantime, the Federal Government did begin to adopt its own immigration regulations.

Next: Immigration and the Nomination of Abraham Lincoln

Wednesday, December 3, 2014

Immigration History: Naturalization and Deportation

Previous: The Constitution

Exercising its authority to enact a uniform law of naturalization, Congress passed a naturalization law in 1790 which allowed any white alien over twenty-one to petition for citizenship after two years of residence provided that they had "good moral character." The residency requirement was lengthened to five years in 1795.

Then, in 1798, Congress passed and President John Adams signed the Alien and Sedition Acts. Most known for their attempt to suppress criticism of the government, these acts also had naturalization and immigration implications. Motivated in part by the fear of a war with France, and the increased levels of immigration from France after the French Revolution, these acts increased the residency requirement for citizenship from five to fourteen years. They also permitted the President to order the removal of any alien that the President determined was "dangerous to the peace and safety of the United States" and required all ship commanders, upon arrival at any United States port, to report any aliens on their ships. Finally, in the event of a war, the President was authorized to proclaim that all non-citizen male aliens who were subjects of the hostile government could be "apprehended, restrained, secured and removed, as alien enemies." This last provision remains in effect today at 50 U.S. Code § 21 and was used during World War II against Japanese, German, and Italian nationals.

These laws were immediately unpopular and only loosely enforced and I was unable to find whether any deportations actually took place during this era. Ultimately, many of the more objectionable portions expired.

In 1802, Congress again revised the naturalization requirements, this time moving the residency requirement back down to five years. It also required all aliens who sought citizenship to report  to the clerk of their respective District Court at the time of their migration, who in turn kept a record of all aliens migrating to the jurisdiction. Although many of the details and other requirements have been tinkered with, this five year residency requirement remains in place today at 8 U.S. Code § 1427.

However, during this entire era, there were no federal restrictions on who could enter the country. Instead, such restrictions were left to the states.

Next: State Based Policies

Monday, December 1, 2014

Immigration History: The Constitution

Previous: Before the Constitution

As explained previously, the lack of a national naturalization policy in the Articles of Confederation was one of the motivations for adopting the Constitution. The Constitution fixed this deficiency in Article 1 Section 8 by granting Congress the power "[t]o establish an uniform Rule of Naturalization."

However, there was no corresponding grant of power to Congress to establish or otherwise restrict immigration. The closest the Constitution comes is in Article 1 Section 9, where it provides:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
This clause is widely interpreted to be a reference to prohibiting the slave trade, nothing more. And in fact, relying on this clause, Congress passed and President Jefferson signed legislation prohibiting the slave trade in 1808.

During the ratification debates opponents of the Constitution attempted to argue that this clause could be used to "prevent voluntary and beneficial emigrations from Europe to America." James Madison in Federalist No. 42, after affirming that it was directed at the slave trade, dismissed, among others, the immigration argument: "I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government."

Now, the Constitution only granted the new national government limited legislative powers. It specifically states in Article 1 Section 1 that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (emphasis added). This is in contrast to the opening of Articles 2 and 3, which grant "[t]he executive Power" and  "[t]he judicial Power" to the President and the courts, respectively. Unlike the other two, the legislative grant of power is limited, not plenary. And were there any confusion about this, the Tenth Amendment was added: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

So here's the problem. Under the Constitution, Congress has limited legislative powers, and those powers do not explicitly include the power to regulate immigration (remember, immigration is distinct from naturalization). So to the extent that immigration restrictions are classified as legislative, there is a significant problem.

There are a few ways around this. If immigration restrictions are somehow "necessary and proper for carrying into Execution" the naturalization power, it could be included there. Or if immigration is considered part of commerce, it could be regulated through the commerce clause. And there always is the slave trade clause. However, none of that is clear from the founding era or founding debates. Consequently, under a strict textualist approach, an argument remains that Congress has no Constitutional authority to legislate an immigration policy.

Hold that thought, for we shall return to it. It will take the judicial branch nearly a hundred years to sort it out.

Next: Naturalization and Deportation

Thursday, November 27, 2014

Happy Thanksgiving

In her book Team of Rivals: The Political Genius of Abraham Lincoln, Doris Kearns Goodwin tells the story of Abraham Lincoln's Thanksgiving proclamation of 1863.
Fred Seward recounted the events of one morning in October 1863 when his father [Secretary of State William Seward] called on Lincoln. "They say, Mr. President, that we are stealing away the rights of the States. So I have come to-day to advise you, that there is another State right I think we ought to steal." Raising his head from his pile of papers, Lincoln asked, "Well, Governor, what do you want to steal now?" Seward replied, "The right to name Thanksgiving Day!" He explained that at present, Thanksgiving was celebrated on different days at the discretion of each state's governor. Why not make it a national holiday? Lincoln immediately responded that he supposed a president "had as good a right to thank God as a Governor."

The proclamation itself is below:

Washington, D.C. 
October 3, 1863 
By the President of the United States of America. 
A Proclamation. 
The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consiousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union. 
In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed. 
Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the Unites States the Eighty-eighth. 
By the President: Abraham Lincoln 
William H. Seward,
Secretary of State

Happy Thanksgiving! 

Tuesday, November 25, 2014

Immigration History: Before the Constitution

Previous: Preface

As any good political historian, I must begin where our country began: the Declaration of Independence. Reviewing that document, we find that one of the charges lodged against the King was that he interfered with immigration to the colonies. Specifically, Jefferson wrote:
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
Before going into the background of this complaint I must emphasize very strongly that naturalization and immigration are not the same thing. I have lost count of how many times I hear the two confused. The rest of this post, not to mention the rest of this series, will make no sense unless we establish here at the onset that naturalization and immigration are distinct.

So what is the difference? Think of it as a two-step process. Immigration is the act of moving to a new country with the intent of remaining there permanently. It is a question of presence. Naturalization is the process of becoming a citizen of that new country, and sometimes citizenship was necessary to own property. It is a question of political participation. Normally, naturalization has a residency requirement, such as five years. Which means that to become a naturalized citizen, a person must have immigrated five years prior to submitting the application. However, not every immigrant because a naturalized citizen, and there is no requirement to do so. If they so choose, they could remain an un-naturalized alien indefinitely.

Alright, with that out of the way we can return to the Declaration. We see both principles at play in Jefferson's complaint: interference with naturalization and failure to encourage immigration (migration). While I could find no evidence of British restrictions on immigration from the colonial era, there was ongoing tension between Parliament and the colonies over the question of naturalization of foreigners. Remember, as British colonies, "foreigners" were immigrants from places other than Britain.

Initially naturalization rules were set by each colony. For example, here are overviews of the naturalization (traditionally a grant of citizenship by Parliament or legislature) and denization (a quazi-citizenship traditionally granted by the King or governor) laws for colonial Virginia and New York. These laws, however, only granted citizenship for the granting colony, not for Britain. In 1740 the British Parliament, tired of the irregularity in the colonies passed its own rules for naturalization which overrode any colonial rules to the contrary.  This act had a seven-year residency requirement, and applied uniformly across the colonies. Other tinkering with naturalization laws followed thereafter.

The colonies, however, could and did encourage or limit immigration. Massachusetts, for example, in 1700 adopted a rule that each new ship had to report all passengers, and shortly thereafter implemented prohibitions on the migration of "poor, infirm, or vicious people." (Carpenter, 296). In contrast, many of the southern colonies sought to attract immigrants by offering land-grants, and South Carolina went so far as to refuse to enforce any pre-migration debts of immigrants. (Id.) Virginia, South Carolina, North Carolina, and Georgia also instituted prohibitions on debt collection for a period after migration to give new immigrants a chance to establish themselves. (Risch, 2-3).

Overall it appears that the colonies believed that immigration was good and sought to encourage it--particularly the immigration of the right types of people. Sometimes they would even offer naturalization as an inducement to immigration (Risch, 9), which could explain the hostility toward Parliament's setting of a uniform naturalization policy. Yet as British subjects, the colonies were still under the British naturalization laws.

All this changed with independence. With independence, the new nation could no longer rely on the foundation of British naturalization law. However, the Articles of Confederation never mentions immigration, and citizenship appears only in Article IV:
The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.
Instead of a uniform rule, each state continued to the colonial way of setting its own naturalization requirements. In Federalist No. 42, James Madison stated that this state-based approach "has long been remarked as a fault in our system" due to the differences between states as to who is a citizen and confusion as to how citizenship can transfer between states. The lack of a uniform rule for naturalization became one of the motivations for drafting a new Constitution. However, there was no similar discussion regarding lack of a uniform rule of immigration, nor does it appear that the state-based immigration structure significantly changed after the Revolution.

Next: The Constitution


A. H. Carpenter, "Naturalization in England and the American Colonies," The American Historical Review, Vol. 9, No. 2 (Jan., 1904), pp. 288-303.

Erna Risch, "Encouragement of Immigration: As Revealed in Colonial Legislation," The Virginia Magazine of History and Biography, Vol. 45, No. 1 (Jan., 1937), pp. 1-10.

Monday, November 24, 2014

Immigration History: Preface

President Obama's immigration announcement last week has divided constitutional scholars and political commentators. I've already written about my own indecision over the matter.

However, as much as it may look like an executive power grab, and as self serving as the Department of Justice's supporting memo may be, I have yet to see a persuasive response that seriously addresses the President's historical and legal arguments. Instead, what I have seen are very general statements about the apparently obvious "unconstitutionality" of the President's actions with no discussion about the dubious "constitutionality," strictly speaking, of the immigration structure as a whole. I've also seen statements attempting to distinguish this President's laxness in enforcing the deportation laws from prior Presidents, such as Reagan and Bush, doing the same things. Yet saying that this time it's different doesn't necessarily make it so, especially if the only difference is one of scale and not principle.

In short, instead of hearing sound criticisms of the President, I am hearing inadvertent declarations of ignorance about immigration law from the conservatives. This will never do if we want to be taken seriously.

So in light of this deficiency, I'm planning to take the next few weeks (or months) to introduce our readers to the history of American immigration law, its suspect origin, its inconsistent application, and its overall mess. Highlights will likely include:

  • Whether there is any authority in Article I of the Constitution for the legislature to create an immigration policy;
  • How for a time states had the ability to set their own immigration policies;
  • How an anti-immigrant stance by one of his rivals led to President Lincoln's nomination;
  • When strict enforcement of immigration laws resulted in returning a boat full of Jewish refugees to Adolf Hitler;
  • The times that presidents allowed large numbers of immigrants to enter without legal status in response to Communist takeovers of their home countries;
  • The time a chain of churches offered sanctuary to refugees who had no legal status, and through passive action successfully turned away immigration authorities; and
  • The hurdles and waiting lists that immigrants currently face.

I still do not know whether the President's action is constitutionally permitted, but what I can say after the last several days is that each article attempting to persuade me that it is, or is not, has pushed me toward the opposite conclusion. So part of this series is my own attempt to learn more about the history of our immigration system. I do not fully know where this series will go, nor how long it will take to complete. But I hope that you will join me for the journey. In the meantime, check out our prior immigration posts, especially the one laying out some groundwork for the immigration debate.

Next: Before the Constitution

Friday, November 21, 2014


Last night President Obama announced new changes to the United States' deportation policy:
So we’re going to offer the following deal: If you’ve been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law.
The political-minded portion of the world now seems divided over whether this is the best or worst news of the week. But I have to admit that I'm quite conflicted about the whole thing.

We've written about immigration a number of time, and have generally supported actions such as the President's from a policy perspective. This sort of change is long overdue, and the principles being implemented are far from foreign to our legal system. In both civil and criminal litigation, doctrines such as latches or statute of limitations require that cases are not allowed outside of a certain timeframe. Even more significant, the doctrine of adverse possession permits squatters to acquire title to property after a certain time. The bases of all these principles is that unused rights, after a certain time, can no longer be asserted. It is a principle of both justice (particularly the mercy side of justice) and efficiency: after a certain time people should feel safe from prosecution and ceaseless dredging up of all past wrongs would bogs down the legal system. That these principles do not appear in our immigration policy makes the policy a bit of an anomaly in light of the rest of our legal system. Applying these principles to our immigration system, ideally while also taking steps to streamline the legal status process (which the President's order does not do), would curtail the current process of first making lawbreakers and then punishing them.

Yet then there is the other hand. Under our constitutional model, legislative power is given to the Legislature while administrative power is given to the Executive. Here, the Legislature has acted to create the mess, and has repeatedly declined to act to fix it. The principles of rule of law and separation of powers means that there is a correct agent to make this sort of change, and it's not the President. The principle of representative democracy means that the laws reflect the will of the people, and the lack of a political will to fix the immigration system somehow means that it's what we want. In fact, for the past six years President Obama himself has repeatedly said that he does not have the legal authority to make the changes that he announced last night.

But then, Obama's announcement is less one of executive action than it is one of executive inaction. It's a statement that certain provisions of the law will not be enforced because they are deemed too harsh. It's an overreach of power that results in a less intrusive government. Examined from a rights/freedom perspective, I am hard pressed to find a credible argument that my rights are somehow harmed by my neighbor's mere existence or presence. That starting point is a slippery slope which quickly leads to all sorts of unpleasantness, not to mention that "refusing to pass" laws to "encourage" the migration of foreigners were among the complaints issued against the King in the Declaration of Independence.

And then back to the balance of power , the reason President Obama can get away with such action is because the legislature is deemed--and rightly so on this issue--inadequate. This, as with our entire administrative law mess, is less a case of power seizure by the President and more one of power abdication by the Legislature. Legislators will now exercise their vocal cords in praising or condemning the action, just as they praised or condemned the thought of the action prior to its announcement, and praised or condemned the prior legislative fixes proposed. However, far be it from them to actually hold a vote; which would interfere with their complaints that their colleagues won't hold a vote. Politically, this poses a challenge to the new Republican majority: will they step up to the challenge with prudence and competence or simply disintegrate into the same political infighting that gave the President this opportunity to act as savior?

So there it is. Approving of the President's action feels like the humane thing to do yet involves the danger of letting ends justify means. Opposing the action protects rule of law yet implicitly involves supporting legislative dysfunction. Oh for real leadership.

Tuesday, November 4, 2014

Prayer for Election Day

Lord Jesus, we ask Thee to guide the people of this nation as they exercise their dearly bought privilege of franchise. May it neither be ignored unthinkingly nor undertaken lightly. As citizens all over this land go to the ballot boxes, give to them a sense of high privilege and joyous responsibility.

Help those who are about to be elected to public office to come to understand the real source of their mandate – a mandate given by no party machine, received at no polling booth, but given by God; a mandate to govern wisely and well; a mandate to represent God and truth at the heart of the nation; a mandate to do good in the name of Him under whom this Republic was established.

We ask Thee to lead America in the paths where Thou wouldst have her walk, to do the tasks which Thou hast laid before her. So we may together seek happiness for all our citizens in the name of Him who created us all equal in his sight, and therefore brothers. Amen

--Peter Marshall, Chaplin of the United States Senate, 1947-1949

Thursday, October 23, 2014

DiLorenzo's Fake Lincoln

Some weeks back I was in an online discussion about good Lincoln biographies. The book that received the most mentions was The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, by Thomas DiLorenzo. Some brief internet searching revealed that the book is quite controversial and has been charged with gross distortion of history. Nevertheless, I was morbidly curious enough to read it myself.

DiLorenzo's stated goal is to get past the "myths" of Lincoln that he believes is all too common and reveal the truth about the man. (p. 1-2) Yet despite his claims, DiLorenzo actually fails to uncover anything particularly novel about our sixteenth president. Instead, he does the opposite, and in so doing becomes the very type of historian he decries. He presents an abridged history, selectively using events, quotes, and supporting scholars to further his thesis driven work. In fact, DiLorenzo identifies nothing about Lincoln's views of  race, southern succession, national unity, or methods of emancipation that is not addressed with greater care and context in Doris Kearns Goodwin's much superior Team of Rivals. In comparison, The Real Lincoln reminds me of a rushed college paper where all facts must be squeezed into the neatly predetermined premise and no argument should be examined too closely.

The thesis is quite simple. Too simple. Abraham Lincoln began the Civil War to further the centralized "American System," which he identifies as the combination of a protective tariff, internal improvements (subsidies, particularly for railroads), and a national bank. Addressing the issue of slavery was merely a means to that end. In fact, DiLorenzo goes so far as to conclude that subsidizing railroads "seems more and more like the sole reason the Republican Party was created in the first place." (p. 222-23)

DiLorenzo's historical errors have been addressed elsewhere and elsewhere. They could, and did, fill an entire book. Even a sympathetic reviewer concluded: "The Real Lincoln is a travesty of historical method and documentation. Exasperating, maddening, and deeply disappointing." These reviewers have quite adequately pointed out the worst errors concerning Lincoln. I want to focus on the errors concerning Lincoln's world.

First of all, DiLorenzo repeatedly accuses Lincoln of subverting or ignoring the Constitution. Yet his constitutional reasoning makes me wonder if  he has ever carefully read the document or if he simply uses the term "unconstitutional" for anything he doesn't like.For example, DiLorenzo faults Lincoln for:
ignor[ing] the economic logic of the commerce clause of the U.S. Constitution, which--in order to guarantee free interstate commerce--made it illegal for one state to impose a tariff on goods imported from another state. If free trade among states is a good idea--and it is--it is just as good an idea with regard to international trade. This was the thinking of the framers of the idea as well. Jefferson and Washington, for example, were staunch advocates of free international commerce as well as interstate commerce. (p. 69-70)
Yet he fails to mention that tariffs on international commerce are explicitly permitted by the Constitution (Article 1, section 1, clause 1) and one of the first major acts passed by the new Congress was the Tariff Act of 1789, which was signed into law by President Washington.

Likewise, DiLorenzo labels the whole "American System" (tariffs, banking, and subsidies) "mercantilist" (p. 56) and favorably references the "constitutional arguments" made against such a system by "Jefferson, Madison, Monroe, Jackson, Tyler and others." (p. 234). Yet he never informs his readers that John Marshal, himself a member of the founding generation and delegate to the Virginia ratification convention, wrote a unanimous opinion for the Supreme Court finding that chartering a national bank was a proper exercise of the power to regulate interstate commerce. Instead, DiLorenzo leaves the reader with the distinct impression that both tariffs and the bank are obvious unconstitutional overreaches of federal power.

Much ink is also shed over Lincoln's suspension of habeas corpus, but despite that ink the reader would not know that the Constitution says: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Article 1, section 9, clause 2.) Nor is the reader told that despite this same phrase's appearance in the Confederate Constitution, Jefferson Davis also suspended habeas corpus and other civil liberties. Failure to even engage the constitution text does not make for a strong constitutional argument. For those truly interested in a serious discussion of the habeas corpus suspension, as well as other constitutional questions from the era, see Mark Neely's Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War.

DiLorenzo's Constitutional double standard is further on show in his discussion of internal improvement subsidies. Somehow, after railing against the corruption that invariably accompanies internal improvement subsidies (not to mention his skepticism of their constitutionality),  DiLorenzo faults Lincoln for not adopting a method of compensated emancipation. Apart from the fact that Lincoln and the Republicans had initially pursued that avenue with no cooperation from the states, such a measure would be subject to the exact same criticisms that DiLorenzo had for other subsidy systems. Yet for DiLorenzo, no stick seems too poor to beat Lincoln. By this point, he looks less like lady justice blindly weighing the facts and more like a blindfolded child wildly waving a stick at a piñata.

Apart from his stilted view of the Constitution, DiLorenzo also repeatedly demonstrates that he has little knowledge of pre-Lincoln American history. In an odd twist, the author who claims to be giving a closer look than anyone else to one of our most famous Presidents has failed to look closely at anyone else. DiLorenzo paints the American founding as a libertarian happy place marred only by the existence of Alexander Hamilton and his ilk.  In his portrayal, all the founding fathers (except Hamilton) believed in right of succession/revolt against oppression (except for slaves), in freedom and liberty (except for slaves), in free markets (with slave labor), and in strong restrictions on the use of state authority (except for runaway slaves). Lurking in the shadows were Alexander Hamilton, Daniel Webster, and Henry Clay, held at bay by Thomas Jefferson, James Madison, Andrew Jackson, and John Calhoun. Lincoln finally accomplished what Hamilton etc. could only dream about, the destruction of the federalist system.

That the loose confederation model of voluntary enforcement did not work under the Articles of Confederation is apparently an irrelevant detail. As is Jefferson's complete absence from the Constitutional Convention. As is the passage of tariffs and chartering of national bank by the very first Congress. As is the early passage of the Alien and Sedition Acts (DiLorenzo calls their "quick[]" abandonment a demonstration of how the foundation generation "jealously protected rights," (p. 131) but does does not bother to enlighten us what their initial adoption a mere 11 years after the Constitution was ratified means). Lincoln is even blamed for the ill treatment of Native Americans that took place in the wars after his death (and some during his administration), while Andrew Jackson is somehow lionized for his proper view of government with no mention made of his awful Indian policies.

Lincoln is routinely weighed against those who DiLorenzo believes are the truly great presidents, Jefferson, Madison, and Jackson, and found wanting. But it takes little more than a basic knowledge of these other presidents to realize that DiLorenzo's standard is one of convenience, not history. Madison's co-authorship of the Federalist Papers with Hamilton is hardly mentioned. Lincoln is chastised for his eagerness for war, but Madison's War of 1812 (pushed for by Calhoun) is also not mentioned. And there is not even attempt to reconcile Jefferson's Louisiana Purchase with DiLorenzo's version of Jefferson as a strict adherent to limited spending and executive power.

But the oddest historical oversight is DiLorenzo's treatment of Andrew Jackson. DiLorenzo holds up Jackson as one of the strongest supports of states rights, including the right of states to nullify federal laws and secede from the Union. Apparently, he has either never heard of or didn't think it worthwhile to mention the Nullification Crisis in 1832--the incident where Jackson was on the verge of ordering federal troops into South Carolina to enforce federal laws. Madison likewise stated during this time that South Carolina was in the wrong. In the lead up to the Civil War, Lincoln looked to Jackson for guidance on how to respond to rogue states. Jon Meacham addresses this in detail in American Lion: Andrew Jackson in the White House. Yet ignoring all this, DiLorenzo tells his readers that "Thomas Jefferson was perhaps the most articulate defender of states' rights, followed by Andrew Jackson..."(p. 261) Yet for all DiLorenzo's rhetoric, I'd put $5.01 on Lincoln in any debate between him and DiLorenzo over a proper understanding of Jackson's legacy.

Towards the end of the book, we get a fascinating glimpse of DiLorenzo's dizzying intellect, which I will quote in its entirety to avoid any accusations of tampering. He speculates that had Lincoln allowed the southern states to peacefully leave,
[a]fter a number of years, the same reasons that led the colonists to form a Union in the first place would likely have become more appealing to both sections, and the Union would probably have been reunited. 
After that, knowing that secession was a real threat, the federal government would have stuck closer to its constitutional bearings. The mere threat of peaceful secession would have had that effect on it. Its imperialistic tendencies and the large tax increases necessary to finance such adventures would have been checked. We may never have had a Spanish-American War. We may also have never had a president like Woodrow Wilson, who was so eager to involve Americans in a foreign war. Economist Han-Hermann Hoppe argues in a recent book that if America had not intervened in World War I, the European monarchies would have eventually worked out a peace agreement that was not so punishing on Germany, and that may have even precluded the rise of the Nazi Party, which itself was partly a reaction to the Versailles treaty of World War I. (p. 272-73)
Yes, DiLorenzo traces the Holocaust back to Abraham Lincoln. But why stop with Lincoln? This sort of reasoning can trace infinitely back to any person. Which only demonstrates how malleable and faulty this sort of historical analysis is.

DiLorenzo opened his book claiming that "much of what has been written about Lincoln is a myth." (p. 1) Whether true or not of others, DiLorenzo ensures that it is a self-fulfilling prophecy for his own work, not only for Lincoln but also for the Constitution, the founding generation, and Andrew Jackson. His premise is simply too neat and tidy to be considered a serious history.

Tuesday, October 21, 2014

Swamping My Reading List

Some time back I decided that I wanted to read a biography of each of the Presidents (I got little further than making a list). In making my list, though, I discovered that while there are many many biographies written about some Presidents (and very few about others), identifying a good biography can be a challenge. How does one know which are good and which are not before reading them? Individual reviews are helpful to a point, but are often fawning and don't give an overview of the entire field or compare one against another.

Yesterday I found what I was looking for. Blogger Stephen Floyd has taken on the momentous task of reading and reviewing not just one, but all of the major biographies of the Presidents. He started with Washington in 2012 and has gotten all the way to Hayes. Each book gets its own review and he also does a single comparison of all the books. The comprehensive reviews are one of my favorite features. And as a private pilot, he also intersperses some of his reviews with areal photographs of the locations.

His blog confirmed several books that were already on my Presidential to-read list, gave me replacements for others, and identified many more that I was unaware of. I trust it will be my first stop in considering the quality of any future biographies that catch my eye.

I encourage you to check out his blog and think that you won't be disappointed. (Intimidated, maybe, but not disappointed.)

And let me know, what were the best or worst Presidential biographies that you've read?

Monday, October 6, 2014

Locke and Marx's dilemna

In our Cold War and post Cold War world, capitalism and communism, freedom and tyranny, and democracy and Marxism are viewed as clashing opposites.

Yet in 1922, Roscoe Pound observed that Karl Marx, the father of modern socialism and communism, and John Locke, one of the fathers of modern democracy, actually viewed property the same way. For background, Pound was the Dean of Harvard Law School from 1916 to 1936 and is one of the most cited legal scholars of the 20th century. Writing about theories of property, Pound makes the following observation:
This controversy as to the respective claims of him who creates by labor and him who furnishes the materials goes back to the Roman jurists of the classical period. The Proculians awarded the thing made to the maker because as such it had not existed previously. The Sabinians awarded it to the owner of the materials because without materials the new thing could not have been made. In the maturity of Roman law a compromise was made, and various compromises have obtained ever since. In modern times, however, the claim of him who creates has been urged by a long line of writers beginning with Locke and culminating in the socialists.
This passage led me back to both Marx and Locke, to see if Pound's accusation was true.

Locke, in establishing a construct for the foundation of property, focuses on labor. "Nor is it so strange, as perhaps before consideration it may appear, that the property of labour should be able to over-balance the community of land: for it is labour indeed that puts the difference of value on every thing." And again: "Thus labour, in the beginning, gave a right of property, wherever any one was pleased to employ it upon what was common, which remained a long while the far greater part, and is yet more than mankind makes use of." For Locke, it is the act (labor) of taking things out of common ownership, whether it be picking apples or tilling land, that creates the right to that thing taken or improved. "As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in: whatever is beyond this, is more than his share, and belongs to others."

Turning next to Marx, we find that once again Pound's observation is correct. Marx casts history as a conflict between the bourgeoisie and the proletariat. The former were the embodiment of capital, the latter of labor. His complaint was that laborers were unable to own property because the means of production were entirely controlled by the capitalists--capital and not labor determined ownership.

The result was the creation of "the modern working class, developed—a class of labourers, who live only so long as they find work, and who find work only so long as their labour increases capital. These labourers, who must sell themselves piece-meal, are a commodity, like every other article of commerce, and are consequently exposed to all the vicissitudes of competition, to all the fluctuations of the market." Accordingly, he concluded, "The distinguishing feature of Communism is not the abolition of property generally, but the abolition of bourgeois property." He challenges the idea that property ownership is based in the supplying of capital, and instead seeks to recreate a society that places it with labor.

So what changed between Locke and Marx? They both have the same foundational interpretation of perpetuity ownership, yet one sought social stability and the other for social revolution. Let me suggest that it is in their assumptions. Or, more accurately, it lies in the assumptions of the world in which they wrote and its changing purpose of law.

To illustrate this, we return to Pound. Pound postulated that the law at various times has been viewed with different purposes. During the Middle Ages, it existed to keep society stable--to keep people in their social places. This view was challenged in the age of exploration and colorization. New continents and new resources meant that conservation and perpetuation were no longer primary goals. Instead, "Men did not so much desire that others perform for them the duties owing in some relation, as that others keep hands off while they achieved what they might for themselves in a world that continually afforded new opportunities to the active and the daring. [...] Accordingly, the end of law comes to be conceived as a making possible of the maximum of individual free self-assertion."

I found it fascinating that in this view, libertarianism is a by-product of the temporary western experience a vast and sudden change in geography. Ideas of limits and place and scale and proportionality were subordinated to the self-made man. And the world was such that the self-made man was an actual opportunity for many.

But--and there is a huge catch--what happens when the limit is found to the new limitless world? How does a society determine property ownership when there is no unowned continent or resource pile from which to extract property? As Pound describes, the law then turned back toward a more Medieval idea of conservation and equity:
When this last stage in the development of the idea of law as existing to promote or permit the maximum of free individual self-assertion had been reached, the juristic possibilities of the conception had been exhausted. There were no more continents to discover. Natural resources had been discovered and exploited and the need was for conservation of what remained available.
Once the common stock is all divided, under Lock's mode, all that is left is reshuffling. Those whose ancestors did not labor, or who lost the fruits of their labor, have no starting ownership and have difficulty obtaining it. A model that started out with ownership based on labor results in one based only on inherited property. This is exactly the social shortcoming Marx identified, referring to it as the bourgeoisie control of the "means of production". Marx's critique largely boils down to the observation that the opportunities assumed by Lock no longer existed and an attempt to restore them. However, Marx failed to realize that he was merely calling for a turning back of the Lockean clock, not a new construct of property ownership.

Enter Adam Smith, writing almost exactly between Locke and Marx. Like Locke and Marx, Smith also based original property ownership in labor: "Labour was the first price, the original purchase money that was paid for all things. It was not by gold or by silver, but by labour, that all the wealth of the world was originally purchased." Yet he recognized that a time would come when there was no more common stock to pull property from, and labor would become subordinate:
As soon as the land of any country has all become private property, the landlords, like all other men, love to reap where they never sowed, and demand a rent even for its natural produce. The wood of the forest, the grass of the field, and all the natural fruits of the earth, which, when land was in common, cost the labourer only the trouble of gathering them, come, even to him, to have an additional price fixed upon them. He must then pay for the licence to gather them, and must give up to the landlord a portion of what his labour either collects or produces. This portion, or, what comes to the same thing, the price of this portion, constitutes the rent of land, and in the price of the greater part of commodities, makes a third component part. [...] As soon as land becomes private property, the landlord demands a share of almost all the produce which the labourer can either raise or collect from it. His rent makes the first deduction from the produce of the labour which is employed upon land.
Smith recognizes, but is also somewhat critical of, this effect of landlords imposing "rent" on what was previously the act of the laborer to create ownership. Yet he recognizes the the price of value of a thing is not based on labor alone, but also on the "rent" payed to the owner of the means of production (his third component is "profit.") In language that sounds like an early echo of Marx's clash of bourgeoisie and proletariat, Smith observes that the non-landowning laborer is at a distinct disadvantage in this new balance of economic power.
What are the common wages of labour, depends everywhere upon the contract usually made between those two parties, whose interests are by no means the same. The workmen desire to get as much, the masters to give as little, as possible. The former are disposed to combine in order to raise, the latter in order to lower, the wages of labour. It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms. The masters, being fewer in number, can combine much more easily: and the law, besides, authorises, or at least does not prohibit, their combinations, while it prohibits those of the workmen. We have no acts of parliament against combining to lower the price of work, but many against combining to raise it. In all such disputes, the masters can hold out much longer. A landlord, a farmer, a master manufacturer, or merchant, though they did not employ a single workman, could generally live a year or two upon the stocks, which they have already acquired. Many workmen could not subsist a week, few could subsist a month, and scarce any a year, without employment. In the long run, the workman may be as necessary to his master as his master is to him; but the necessity is not so immediate.
Smith concludes that for a society to be continually improving, it must seek to improve "circumstances of the lower ranks of the people". "No society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable. It is but equity, besides, that they who feed, clothe, and lodge the whole body of the people, should have such a share of the produce of their own labour as to be themselves tolerably well fed, clothed, and lodged." Accordingly, for Smith, good treatment of the working class is both a requirement and a reflection of a society that is increasing its collective wealth. And failure to treat the laborers well is a reflection of a stagnant or declining economy. 

In short, sixty years after Locke, Smith saw the potential shortcomings of a purely Lockean perspective, and sought to warn against it. Seventy years after Smith, however, Marx observed in practice what Smith had warned against in theory: that an inequitable treatment of the workers would lead to decline. Marx took that one step further and added revolution.

Marx embraced the revolution, believing it would solve the imbalance. Yet he still suffered from Locke's optimism and belief that labor alone was a sufficient bases for an ongoing theory of property. He failed to see what Smith (and, according to Pound, the Roman jurists) had previously realized: that the disappearance of a common stock of land and resources necessitated modification of the model of property ownership--one that balanced labor and capital. Marx was still operating in the self-made man world. He failed to identify the root cause of the working class problem, and as a result, when his theories were implemented they created wealth imbalances greater and quicker than what he reacted against. His self-made men were tyrants.

Wednesday, October 1, 2014

Maze Runner Review

Thomas and friends
What do you do when you don't know what to do?

Last night I went to see Maze Runner. The overarching plot, quite far fetched, can mostly be ignored. But the basic plot allows the viewer to wrestle with the questions of uncertainty and risk.

In the beginning of the film, we find ourselves introduced to the “Glade” and its inhabitants through the eyes of the new guy, Thomas. Thomas joins the “Gladers” by default because no one knows what is really going on. All they know is that they have no memories prior to their arrival there and that bad stuff happens all around them.

Thomas, quickly learns that they have been living in fear and uncertainty but if they just keep their heads down, they are pretty safe. But safety isn’t Thomas’ highest priority. He wants more. He is willing to take risks to find answers and pursue freedom.

To me the haunting question the movie asks is, “What do you do when you don't know what to do?”

I know I tend to be like the “Gladers” who want to just stay put. They are the ones who want to hunker down and not take any risks - to do what seems safe rather than to boldly make decisions and changes that might go horribly wrong but also might lead to change good change.
Hong Kong Protesters 
But then I think of the people of Hong Kong. They would be safer at home, quietly doing what millions of Chinese do every day and just quietly allow the Communist Party leaders stack the deck and run the country pretending to have elections. But they want freedom. Thousands are standing up, like Thomas, and taking to the streets. They know there is a good chance that they will be hit with tear gas (or worse). But they are willing to take that risk. Freedom is worth it. Some risks are worth taking.

You can check out more reviews here!

Post by Jeremiah Lorrig

Tuesday, September 30, 2014

My Very Own Greek Myth

temple of hephaestus in athens
Greek Temple in Athens (Photo by Jeremiah)
So, today was a long day. Long days inspire me to want to mope around, watch TV, or sleep. But today was not only long, but it also included me sitting down and reading Romeo and Juliet (gotta love the classics…). So what happens when Jeremiah has a long day and reads Romeo and Juliet? He starts writing revisionist history.

Here is what I have so far:

In the days of ancient Greece, the Persians were planning to invade Greece (it had become a national pastime). So, they marshalled their forces, mounted their fiercest Rinos and Hippos and rode off to war. Then they hit the coast and remembered that there was a sea between them and the Greeks (you would think that they would remember this fact, after all, they invaded Greece all the time). So at that point they mounted their fiercest Rinos and Hippos and loaded them on some near by ships and rowed off to war.

This invasion, of course, was expected by the wise Greek philosophers in Athens. So they called the people together and told them that they should prepare for war. Now the people of Athens didn’t really like fighting; they prefered to sculpt and trade. So they decided to ask the brutish Spartans to help them in the upcoming war.

They wrote a letter that said,

“Dear Fierce Spartans,

battle of thermopylae
Spartan (Photo by Jeremiah)
Hope you are doing well. How did your pillaging go last week? We heard that you did great. By the way, we heard that you might be bored on Tuesday. Would you like to come over and beat up on some Persians? We are having the Corinthians over too, but you know they can be a little slow in battle. Pottery really is more of their thing.

Anyway, having you here would really liven things up.

Your friends,
Fighting until the end,


P.S. BYOS (Bring your own shield)”

Then they realized that Ben Franklin hadn’t opened the post offices yet. That meant they needed a messenger. But no one volunteered. This may have been due to the fact that last summer a volunteer agreed to carry the message of victory from the battle of Marathon back to Athens. The problem was that no one thought to give him a horse (or even a hang glider!), so he literally ran himself to death. There was a series of long eulogies and every prophet worth his salt predicted that his run would go down in history as a tricky torture method that would lure people in and then slowly kill them. Little did they know that this would become a lucrative business because silly American’s would even pay to be victims of this Greek torture.

The bottom line was that no one wanted to run the all the way to Sparta. They offered a prize to any messenger and even promised that the runner’s family would be well taken care of. But somehow this didn’t help.

But the eagle flew overhead and everyone knew that the dogs of war had been loosed and the Persians weren’t going to sit around fiddling while Athenian ears burned because Egypt thought about them behind their back. So, the third most noble family in Athens offered whoever was to be the messenger a noble horse named Peg to ride while on this errand. Of course, the second most noble family couldn’t be outdone, so they offered a parasail (this turned out to be completely worthless, so they revised their offer to be a hang glider).  

The first most noble family was more than happy to let everyone else do all the work and pay for everything, so they didn’t offer anything at all.

That being settled, they found a youth named Peg who was willing to go. (Apparently Peg was a popular name for youths and horses in Athens.) What they didn’t know, however, was that this particular youth was wanted for pick pocketing in Corinth. He didn’t tell them because he needed the reward, but he wasn’t sure what to do (all roads lead through Corinth! ... well, all roads from Athens to Sparta lead through Corinth). Anyway, he decided not to tell anyone and that he would come up with something…

Once he was out of town, he started thinking hard. He had seen the philosophers on the Areopagus and they seemed to think that ideas came by the stroking of the beard. But he didn’t have a beard. The Priest’s in the Temple of Athena seemed to think inspiration came from owls. But he didn’t have an owl. So he was left to ponder his owlless, beardless, sad life.

But suddenly he had an idea. “Wisdom is a bearded owl!” But his excitement quickly faded, because that didn’t help him. What he needed was a beard, that way he could go through the city without being recognized. Wait! Maybe he was on to something!

“I shall use the wings of an owl to fly over the city!” he proclaimed. “I have a hang glider and a horse. I will attached the wings to the horse, and glide over the city and speed my journey to Sparta.”

He swiftly put his plan to action. It wasn’t easy, but he was a sharp boy. He did have to borrow some clothes lines for ropes and the contents of the clothes lines for extra cloth to make it work for a horse, but in the end it worked like a charm.

The people of Corinth saw him riding high in the sky and asked what it was that the gods had sent over their city. Peg, being honest (except for the pick pocketing), wanted to clear things up. So over the wind he tried to explain that he and the horse were not divine. He said with conviction, “We are just a couple of Pegs and the people of Athens have entrusted us to carry a message to Sparta.”

But to the people of Corinth it looked like a horse with wings. And the only words that they heard in the explanation were “Pegs” and “us.” To this day, the legend of a winged horse named “Pegasus” is told to children in Greece and American’s in Liberal Arts Colleges.

The rest, my dear reader, of course is history that you are very aware of. But now, you know the origin of the Pegasus. I hope you will continue to tell the tale, and bring smiles to the faces of people in your life.

Post by Jeremiah Lorrig 
Related Posts Plugin for WordPress, Blogger...