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
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