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Social Compact, American Style

By: Michael Anton
July 28, 2018

nd the “debate” rages on. Mostly in nitpicky and unproductive directions. But a new attack by Robert Tracinski raises the grave and misunderstood question of the social compact, and so provides an opportunity to reorient ourselves around a true understanding of first principle.

But first, to Tracinski’s lesser points. He accuses me of “doctor[ing’]” a quote on the debate on the 14th Amendment without explaining why [I] previously failed to note the change in the quote or to explain it.”

In fact, I did note the change. That’s what brackets mean.  If you see these two little symbols in a quote—[ ]—it means that the words, letters, or punctuation marks within them do not appear in the quote exactly as written.  I thought that everyone who knows how to read English knew this elementary rule of punctuation.  Apparently not.

As for not “explain[ing]” the purpose of the change, the charge is laughable.  I explained at great length the meaning of the change.  Indeed, most of the criticism of my response has been along the lines of “TL;DR.”  So it’s rich now to be accused of not explaining.

Tracinski references a “series of other quotes” that I cited but he does not analyze any of them.  Instead, he simply accuses me of forcing on them an “idiosyncratic interpretation.”  He does not explain what is “idiosyncratic” about demonstrating, through quotations, that plain words which all say the same thing also mean the same thing.  We should not be surprised that he does not do so because it would be hard to do.

To demonstrate that I am wrong one would have to show either that all the quotes I cited either do not mean what they plainly mean, or else show that they were superseded by some later, different understanding.  Tracinski does not even attempt either of these tasks.  Nor do any of the rest of my critics, as far as I have been able to find.

I’d prefer to keep the repetition from my prior essay to a minimum, but it’s worth partially repeating a point I made in my earlier response, in order to draw out the force and implication more fully.

The Civil Rights Act of 1866 was enacted on April 9th, 1866—seven weeks before the Senate debate under dispute (May 30th, 1866).  It passed over President Johnson’s veto, which means that two-thirds in both houses voted in favor of the law.  The purpose of that law was to clarify who is, and who is not, a citizen of the United States.  The law’s very first clause reads: “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens” [emphasis added].

In other words, the whole Congress was overwhelmingly on the record, not two months before the debate under dispute, in saying that birthright citizenship does not apply to foreigners.  Many of the same lawmakers who got that Act through Congress were instrumental in shepherding through the 14th Amendment.  There is no evidence at all that they changed their minds in the interim.  To the contrary, they used the same language in the Amendment debate that they had used in the Civil Rights Act debate.  Some of them even cited the Act to explain the meaning of the amendment!

Neither Tracinski nor anyone else can explain why this is not decisive.  They simply brush by as if the issue had never been raised.

Instead, Tracinski goes off in a new direction, saying that the 14th Amendment “intended to recognize citizenship for children of Chinese immigrants and gypsies.”  He does not cite any quotes for this assertion nor does he point to any original sources.  I assume he is referring to the same Senate debate I cited, specifically the speeches of Senator Edgar Cowan of Pennsylvania and Senator John Conness of California (to be found in the Congressional Globe, 39th Congress, 1st Session, pp. 2890-2892).

Senator Cowan asks, under the proposed amendment, “Is the child of a Chinese immigrant in California a citizen?  Is the child of a Gypsy born in Pennsylvania a citizen?”  The text and tenor of the rest of Senator Cowan’s remarks make clear that he wishes the answer to be “no.”

Senator Conness then speaks up for the specific experience of California.  He says that he believes that the Amendment would make citizens of the children of lawful Chinese immigrants, or legal permanent residents, in California.  He goes on to explain that he does not regard this as a problem.  I quote him at some length so that the pro-birthright crowd can get a better grasp of whose arguments they are relying upon:

this portion of our population, namely, the children of Mongolian parentage, born in California, is very small indeed, and never promises to be large…The habits of those people, and their religion, appear to demand that they all return to their own country at some time or other, either alive or dead…Another feature connected with them is, that they do not bring their females to our country but in very limited numbers, and rarely ever in connection with families; so that their progeny in California is very small indeed…Indeed, it is only in exceptional cases that they have children in our State…. The Chinese are regarded, also, not with favor as an addition to the population in a social point of view; not that there is any intercourse between the two classes of persons there, but they are not regarded as pleasant neighbors; their habits are not of a character that make them at all an inviting class to have near you, and the people so generally regard them.

In sum, one Senator asks if states may exclude certain classes of persons on racial and cultural grounds.  A second replies that, in the case relevant to his own state, such a step would be unnecessary because the numbers in question are so small, very few of them have children, and many return home.  Say what you will about these arguments, they are not a ringing endorsement of birthright citizenship or of the benefits of immigration.

But this is a sideshow anyway.  All this proves is that the 14th Amendment admits of no race-based criteria for citizenship.  We already knew that; it has never been under dispute.

The entire question is whether the 14th Amendment requires, and was intended to require, the granting of birthright citizenship to the children of non-citizens: illegal immigrants, birth tourists, temporary visa holders, and the like.  Here Tracinski admirably shows his cards:

Objecting, as [Anton] does, that the writers of the Fourteenth Amendment never explicitly endorsed citizenship for children of illegal immigrants is also irrelevant.

Tracinski seems not to realize that this subsidiary argument completely undercuts his main one. It’s true that illegal immigration was not the focus of the 1866 debate, though this hardly makes the issue “irrelevant.”  It’s certainly not “irrelevant” now! Though if Tracinski wants to affirm that he thinks it is, I for one would love to see one of our “conservatives” go on the record with what I’ve long suspected they really believe.

But precisely if and insofar as illegal immigration was “irrelevant” in 1866, then how can Tracinski—or anyone—maintain that the framers of the 14th Amendment intended to grant birthright citizenship to the children of non-citizens?  Clearly, if the issue was “irrelevant” to them, then they could not have so intended.  As, in fact, I noted in my prior piece: the framers of the 14th Amendment barely discuss the issue because they all agreed: illegal immigrants are not citizens, therefore no discussion was required.

If the framers of the 14th Amendment didn’t specifically intend to include the children of illegal immigrants and other non-citizens, how and why is it that all subsequent generations of Americans are bound to act as if they had?  Why is this non-Constitutional non-provision, written down nowhere, intended by no one, supposed to bind us forever?  Is this what “conservative” Constitutional interpretation and jurisprudence have come to?  If so, how is it any different than liberal jurisprudence?

A real Constitutionalist/originalist/conservative would say: in the absence of clear intent or clear language to grant birthright citizenship to foreigners, we must focus on the actual words in the Constitution itself and those spoken in the ratification debate.  The framers of the Amendment clearly tell us that “subject to the jurisdiction thereof” means “not subject to any foreign power,” “not owing allegiance to anybody else.”

Social Contract Theory

After making a few more accusations of racism, Tracinski then turns to political philosophy, specifically to social contract theory.  From here his argument progresses from merely weak to deeply confused.

Tracinski begins this new line of attack by slyly equating consent through the social contract with polling.  He cites my assertion that a plurality, but not a majority, of Americans support ending the practice of granting birthright citizenship to the children of illegal immigrants as an admission that “birthright citizenship is supported by a majority of voters.”  That’s not necessarily so.  Just because one view doesn’t command a majority, that doesn’t mean that everyone else holds the opposite view.  It depends, in part, on how the question is asked, including how many possible answers pollsters allow.  Also, the country has never debated this issue at all (one point of my prior piece).  Were it to do so, the polling would change one way or the other.  I think support for ending the practice would rise, and I think my opponents know this, which is why they want to shout down the debate.

Also—and this is decisive—polling is not consent.  Even if Tracinski were correct that a majority today supports birthright citizenship as it is currently practiced, that would say absolutely nothing about its legality, constitutionality or wisdom.  We have laws and institutions to decide these questions. America is not a pollocracy.

Tracinski then makes the extraordinary claim that social compact theory—at least the way I described it—“is inconsistent with the history and ideological origins of America.”  That would be a surprise to the American founders.  Perhaps it would be better to say “Robert Tracinski’s mistaken account of the social compact is inconsistent with the history and ideological origins of America.”

The errors in Tracinski’s account begin at the beginning.  He asserts that the social compact “is a mental construct or analogy created by political philosophers.”  That’s not how the American founders saw it.

But before we even get to that, that’s not even how the political philosophers saw it!  While it’s true that the idea of the social compact was first formally explicated in political philosophy—by Hobbes, who calls it variously a “contract,” a “pact” and a “covenant”—Hobbes himself insists that it is real.  But—fairly or unfairly—Hobbes has been in bad odor for a few centuries.  Besides, Tracinski appeals not to Hobbes but to Locke, so let’s take a look at what Locke has to say on the subject:

And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation to every one of that society to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact if he be left free and under no other ties than he was in before in the state of Nature.  [Second Treatise VIII §97; emphasis added].

And:

Whosoever, therefore, out of a state of Nature unite into a community, must be understood to give up all the power necessary to the ends for which they unite into society to the majority of the community, unless they expressly agreed in any number greater than the majority. And this is done by barely agreeing to unite into one political society, which is all the compact that is, or needs be, between the individuals that enter into or make up a commonwealth. And thus, that which begins and actually constitutes any political society is nothing but the consent of any number of freemen capable of majority, to unite and incorporate into such a society. And this is that, and that only, which did or could give beginning to any lawful government in the world.  [Ibid, §99; emphasis added.]

That’s pretty clear, no?  Even if it weren’t, the American founders were not and did not see themselves as mere playthings of philosophers.  They saw themselves as forming an actual compact.  As, indeed, they were.

Here is James Madison:

[I]t is proper to keep in mind, that all power in just & free Govts. is derived from Compact, that where the parties to the Compact are competent to make it, and where the Compact creates a Govt, and arms it not only with a moral power but the physical means of executing it it is immaterial by what name it is called. Its real character is to be decided by the Compact itself: by the nature & extent of the powers it specifies, and the obligations imposed on the parties to it. [“Essay on Sovereignty”; emphasis added.]

The urge to dismiss this as “just one quote” will be strong.  I, naturally, do not intend to let Tracinski off that easily.  So here are a few more quotes for him to glide past as if they don’t exist.

Perhaps the single clearest formulation of this assertion appears in the preamble to the founding-era Massachusetts state constitution:

The body politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. [Emphasis added.]

Congress’s 1774 Declaration and Resolves appeal to “the immutable laws of nature, the principles of the English constitution, and the several charters or compacts”, i.e., existing compacts that established colonial governments [emphasis added].

In the debate on the ratification of the United States Constitution, Virginia and North Carolina justify their support for the document by asserting that “there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity” [emphasis added].

The founding-era Constitutions of both Connecticut and Kentucky use identical language: “all men, when they form a social compact, are equal” [emphasis added].

If all this were not enough, we have the granddaddy of ’em all, the Declaration of Independence itself:

to secure these rights [Life, Liberty and the pursuit of Happiness, among others], Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The precise words “social compact” are not there but the action and concept described are identical.

It is one thing to say of a very old nation like England with an evolved, unwritten constitution that its social compact is implicit.  It’s absurd to say the same about a country whose founding happened in a short span of time, every aspect and argument exhaustively recorded.

We don’t even have to look all the way back to 1776 to get the point.  There are nations far older than the United States that have much younger constitutions.  We have clear records of them invoking the social compact to form new governments—for instance, post-war governments in Europe and Japan, or France with the Fifth Republic.

Tracinski then makes the common but sophistic objection that since there is no “actual contract[,] [n]obody is literally asked whether they agree to it.”  No.  First, as noted, there is an actual contract.  If he needs a piece of paper as proof, there is the Declaration.  Second, all the initial members of the contract explicitly agreed to it.  Third, and decisive to this objection, all subsequent members implicitly agree, in two ways.  Contrary to Tracinski’s assertion that “nor are [the contract members] given the possibility of opting out,” they absolutely do have that option: they can emigrate.  This the founders considered to be a fundamental natural right, precisely to meet the objection here raised.  Jefferson sums up this view: there is a “right, which nature has given to all men, of departing from the country in which chance, not choice has placed them” (A Summary View of the Rights of British America).  The Bills of Rights in the founding-era Pennsylvania and Vermont state constitutions explicitly affirm the same: “all men have a natural inherent right to emigrate.”

This natural right to emigrate flows logically and inexorably from the founders’ absolute rejection of the common law doctrine of perpetual subjectship (there is no “citizenship” in the common law) that can never be renounced.  Indeed, the very act of founding the United States was inseparable from the act of renouncing allegiance to the British crown.  Which points to the other way out of a social compact: the natural right of revolution, also explicitly affirmed in the Declaration.

Happily, recourse to that drastic step is rarely necessary.  In ordinary circumstances, in ordinary times, the natural right to emigrate will do.  On reaching maturity, a person consents to the social compact by remaining in the country.

A Rousseauian Constitution?

From here, Tracinski ascends into obfuscatory hot air.  He tries to say that my version of the social compact is not Locke’s or the founders’ but Rousseau’s.  He finds my assertion that one cannot join a compact without the consent of its members (e.g., via illegal immigration) to be redolent of Rousseau’s “general will.”  His point (as far as I can make it out) is that Locke was for individual rights and so could not possibly have meant that all parties to the contract had to grant their consent; that being an inherently “collectivist” idea, it requires coercion.  Hence I am following Rousseau’s notorious formulation that under the social compact, man will be “forced to be free.”  Tracinski has Rousseau wrong, but since this is a side issue, I relegate that discussion to a note.*

The important point here is that Tracinski is wrong to say that my account of the social compact is closer to Rousseau’s than to Locke’s and the founders’.

Locke expressly affirms that consent to become a member of the community must be from “every individual”:

For, when any number of Men have, by the consent of every individual, made a Community, they have thereby made that Community one Body, with a Power to Act as one Body, which is only by the will and determination of the majority. For that which acts any Community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one Body, one Community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority.  [Second Treatise, VIII §96, emphasis added.]

One does not need recourse to a philosopher, however, to understand the point.  A compact that can be joined by anyone, regardless of the wishes of its current members, is an oxymoron, a self-contradiction, an impossibility.  It is not a compact.  Founding-era statesman and lawyer James Wilson put it this way:

In the social compact, each individual engages with the whole collectively, and the whole collectively engage with each individual. These engagements are obligatory, because they are mutual. The individuals who are not parties to them, are not members of the society.  [Lectures on Law, I 636; emphasis added.]

The author of the Constitution itself, Gouverneur Morris, put it best.  Speaking to the Constitutional Convention of 1787, he said: “every society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted.”

One can be forgiven for wondering whether “conservatives” like Tracinski want to deny us—you, me, all of us—that right.  It would be nice to get some clarity on this issue.  All I ever hear from a certain cast of “conservatives” are “reasons” why this or that measure to restrict immigration is invalid, illegitimate, “racist,” nativist and so on.  I never hear them speak up for any practical limits.  Do they acknowledge any?  How about this: Russia supposedly poses more of a threat today than it did during the height of the Cold War.  So can we at least stop the practice of granting birthright citizenship to the children of Russian women who fly to Miami specifically to game our silly system?  How about that, “conservatives”?

One thing this debate has made crystal clear: our “conservatives” insist that birthright citizenship for non-citizens is absolutely required—morally, logically, Constitutionally, and by “conservative” principle.  Any claim to the contrary is racist and evil.  For the conservative movement in 2018, this is the hill to die on.  Well, that and getting rid of Trump.

“Conservative” politics are a mess because “conservatives’” understanding of philosophy is a mess.  Garbage in, garbage out, as the old techie saying goes.  We have raised a generation of ignoramuses and anointed them—or allowed them to anoint themselves—“intellectuals” fit to tell us what we can and cannot think.

I have nothing against taking guidance from above and freely admit that I do it often.  But it matters to what and to whom one looks up.  My contention is that our best possible source of guidance is the American founders, their philosophic teachers and historical inspirations, and American statesmen who faithfully followed their principles.  All too often—indeed, well-nigh universally at this point—our “conservatives” insist and perhaps even believe that they follow the founders when manifestly they do not.

There is, really, nothing “conservative” about them any more (if there ever was).  The only things they want to conserve are their dogmas and their status.  Here we find the core self-interest at the heart of the issue.  What—whose—ends do illegal immigrants serve?  They provide votes for Democrats, cheap labor for oligarchs, campaign contributions (via said oligarchs) for RINOs, and objects of preening sanctimony for conservative intellectuals.  For the latter conserve their status in no small part by calling “racist” those of us who want to conserve the actual America—its territory, people, communities, industries, history, culture, traditions, and so on.  The smug satisfaction—the deep enjoyment—they palpably derive from such fratricidal calumny is just an added bonus.

But fratricide presupposes kinship, the notion that we’re still connected by something.  If we are, I no longer know what it is.

* * *

*The core difference between Rousseau’s state of nature and that of Hobbes and Locke is not “collectivism” vs. “individualism,” Randian oversimplifications that have no place in this discussion.  It is that, for the latter, the state of nature is (mostly) bad whereas for the former it was unqualifiedly good. 

For the early moderns, man’s complete freedom in the state of nature is not without its good points, but that freedom is (to say the least) precarious.  Man is much better off voluntarily surrendering a portion of his freedom to secure the far larger remainder.  Rousseau claims to look back further than Hobbes’ “war of all against all” (De Cive, I 13).

The philosophers, who have examined the foundations of society, have, every one of them, perceived the necessity of tracing it back to a state of nature, but not one of them has ever arrived there.  [Second Discourse, Introduction.]

For Hobbes and Locke, the state of nature is a danger to be avoided, one that can return at any time.  For Rousseau, it is, if not a paradise, at least peaceful and the only time/place in which man has been perfectly natural and free.  But it is also, he insists, gone forever.  The purpose of Rousseau’s social contract—of his whole political philosophy—is to legitimize man’s loss of natural freedom after and within the irreversible, lamentable advent of civil society.  This is what he means by “forc[ing] men to be free.”  For Rousseau, once civil society is established, man has only two alternatives: submission to a tyrant or self-legislation of just and equitable laws.  Only the latter—complete submission to the general will—restores some semblance (but not all) of man’s lost freedom from the state of nature.

It’s clear from Rousseau’s placement of cited phrase and surrounding context (Social Contract I 7) that forced submission to the general will would take place (if it were to take place) only after the establishment of the social contract.  In other words, contra the implication Tracinski wishes to impart, the rebelling man has already consented.  Men are not forced to consent to the contract itself; but they cannot thereafter withdraw that consent without contradicting the general will, without contradicting their own participation in the establishment of the contract and ensuing legislation.  This argument is, in a way, not wholly different from Hobbes’ notion that a covenant once contracted is inviolable.

If this all sounds silly to you, you’re not alone.  It is, at the very least, contrary to the view of the American founders.  On that, if on nothing else, Tracinski and I agree.