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Illegal Immigration is Not a Crime... they say

by Tony M.

In my diocesan newspaper, 2 local priests take on the immigration issue, with an attempt to teach about it from "Catholic principles." And "not to take sides on policy questions such as how or even whether to make a path to citizenship for the undocumented," either. So they say.

What's notable about this particular foray into supposedly Catholic teaching is that it is the first time I have EVER seen an explicit attempt to justify the media-drenching meme "it isn't a crime," and thus to defuse the theory that we have to "punish them."

What would be even better would be for the authors to get the argument right, to teach Catholic principles correctly and without an admixture of grievous error. For, alas, even though a lot in the article is true in some sense, it is presented in service to an erroneous basic stance.

The underlying premise to get to the conclusion "it isn't a crime" is this: according to

centuries of Anglo-American legal tradition, which labeled as “crimes” only actions that are malum in se, i.e., intrinsically wrong, like stealing. Immigrating illegally is by its nature a “civil offense,” not a crime, and so in accord with natural law, the penalties must be proportionate to a civil offense, not to a crime.

It is important to understand that Frs. Planty and McGraw are not just switching terminology as if it were just a semantic issue, they are presenting a claim that the different terms are based on different realities: "crimes" are evil in an important way that "civil offenses" are not, and this justifies both the different terms AND different results. Crimes are things that cause evils even if you don't have an explicit human law about it, civil offenses are things that are evil because you made a rule.

First, it appears that they may have mis-identified criminal law and civil law issues. (1) The distinction between the two is not necessarily based on whether the act is “malum in se” versus “malum prohibitum.” (2) An offence that is malum in se is not necessarily intrinsically evil. And (3) criminal law may encompass acts that are evil acts based on natural law but are not intrincically evil acts.

(1) The distinction between “malum in se” versus “malum prohibitum” has to do with the difference of whence the evil arises from not obeying, whether the evil that comes from disobeying the law is an evil because the law was made, or would be present whether the law was made or not. The former is a “wrong because it has been prohibited,” whereas the malum in se is wrong under the natural law even when there is no human rule spoken against it. Driving on the wrong side of the road is bad because we have made a law to drive on the right side, not in its own right. However, the criminal versus civil distinction runs along different lines . The Catholic Encyclopedia reports that “Libel differs essentially from slander, in that it may be the subject of both criminal and civil litigation, whereas slander is not a criminal offence,” even though slander and libel are both malum in se, both are constitute a wrong even when there is no human law against them. In fact, there are different traditions about how to sort out criminal and civil matters, and within those traditions not all law systems are perfectly orderly, no one country or tradition is a completely perfect example showing that all criminal matters are about malum in se while civil matters are about malum prohibitum. It is not very wise to even attempt to work on the basis that the so-called "Anglo-American" traditional distinction of criminal versus civil law matches up with a specific distinction in under Catholic teaching, as if it is going to constitute a definitive representation of Catholic divisions.

(2) A good moral act must be good in all 3 of the fonts of morality: the object of the act (which must be in itself good or neutral), the intention or goal, and the circumstances. Evil acts take their evil from any of 3 types of disorder – whether in the object, the end goal or intention, or the circumstances – but intrinsically wrong acts are acts wrong from their object. Thus going to church on Sunday is good of its own nature (or object), but doing so in order to meet with your adulterous partner makes the going to church a bad act morally - it is a morally wrong but not an intrinsically evil act.

(3) It is sufficient for some crimes that the act be morally wrong in the concrete, even if it is wrong due to bad intentions or disordered circumstances. Fraud is wrong due to the evil intention for which the act is chosen, without the evil intention the act is a different crime.

The authors might have noted that under some descriptions of the criminal / civil distinction, criminal law pertains to relations between the actor and the state, whereas civil offences pertain to relations between individuals directly (as Catholic Answers suggests: here ). See also this comment from the Catholic Encyclopedia on Canon Law: “Public law would, therefore, directly intend the welfare of society as such, and indirectly that of its members; while private law would look primarily to the wellbeing of the individual and secondarily to that of the community.”

But that's all not critical. We can set aside as unimportant whether immigration law is “criminal” or “civil” in this context, what is important for their thesis is the position that the evil from disobeying immigration law in an evil from the prohibition itself, a malum prohibitum.

However we look at it, though, the authors don’t support the theory that the evil attendant on disobedience to immigration law is a malum prohibitum, and in fact the theory is highly debatable (that is, it is debatable even while remaining totally within Church teaching). What the authors do instead of proving the thesis is they dance around the point throwing whatever darts that they have at hand, arguing about the (valid) issue of legal positivism that opposes natural law, and the (also valid) distinction between real laws and laws that are apparent laws but fail to be real laws because they are unjust.

The authors state as a principle that “People have the right to migrate to support themselves and their families.“ This is true, but is also an incomplete principle. Migration implies both a terminus a quo and a terminus ad quem – the place to which as well as the place from which. While it is possible to think about emigration in the abstract, as just “leaving the country,” it is impossible to actually migrate from a specific place without passing through actual places and arriving at a specific new place. Thus the new place you land in cannot be excluded from the complete statement of principle: People have the right to migrate to support themselves and their families, but not so as to damage the good of the host people. For example, nobody would have the right to migrate and then set up a new house and farm in the village common where the whole village has always pastured their animals, merely because “nobody owned the village common.”

Stating the full principle is important because immigration law prevents a general evil to the body politic. St. Thomas says in his treatise on law that customs help support virtue, and a people have a right to retain their customs. Pope Benedict XVI in Caritas in Veritate points out a modern danger to cultures:

[C]ompared with Paul VI's day…cultures were relatively well defined and had greater opportunity to defend themselves against attempts to merge them into one. Today the possibilities of interaction between cultures have increased significantly…Let it not be forgotten that the increased commercialization of cultural exchange today leads to a twofold danger…In this way one loses sight of the profound significance of the culture of different nations, of the traditions of the various peoples, by which the individual defines himself in relation to life's fundamental questions.

It cannot be denied that unlimited immigration can have the damaging effect Benedict was talking about – causing indiscriminate reduction (or even eradication) of existing cultural norms, including those good and noble customs which are essential to the subsistent society – and so taking a measured and regulated approach to receiving new strangers is a matter that belongs to the common good as a whole and thus pertains to the relationship between the individual immigrant and the whole state. Thus laws can regulate immigration to help a society retain its internal customary structures and keep intact its wholesome moral norms. A society overwhelmed by foreign-born persons will have trouble maintaining its customs intact (and the virtues they support). This can be seen in examples of such things as France’s riots in 2005 and 2013, largely due to the effects of persons displaced from their home cultures and not well integrated into the host country. Unregulated immigration (falling hard on some locales instead of being spread out) causes sometimes severe social disruptions: schools that do not have the funding to match needs, and the resulting damage non-English-speaking children do to the rest of the class in making progress in education, disruption of hospital funding when immigrants use emergency rooms for doctor's offices, etc. Not to mention drugs, mules, and gangs. Or illegal job practices, tax cheats, and slavery. In each of the last 12 years the US has allowed 1 million or more legal aliens, close to the same number each year as the highest number ever (since we started counting), 1.2 million in 1907 (and we have received many more illegally). But in addition to noting the annual number of new immigrants, it necessary to see the aggregate number of new people as a percentage of the population: in 2011 the foreign-born population was 13.5% of the total (over 40 million persons), which is the same percentage as when immigration was at its peak in 1907. Thus annual numbers become even more important when viewed over the lens of a several-year period.

Excess immigration levels can harm a country in its common good regardless of any specific attribute of various immigrants (whether skilled, educated, hard working, or not): They carry a different culture, a culture that doesn't integrate morals in the same way. Immigrants put stress on a society no matter how hard working they are. A violation of laws regulating numbers and other aspects will tend to disturb the norms which constitute its culture and support its virtues. If excess numbers immigrate, the harm that is done to the common good is harm whether or not the country has made a law restricting immigration. Thus the evil done by ignoring suitable immigration limits is not an evil due to the prohibitive law, i.e. not a malum prohibitum.

Another significant error from the authors is in saying

“The penalty of deporting the offender from the country is simply disproportionate, as a general matter, to the offense of illegally entering or remaining in the country.”

This is appears to assume (incorrectly, as indicated above) that the evil of disobeying the law is a malum prohibitum. It also treats the repatriation as a punishment. It is a well established principle of justice and punishment that the offender who wrongly takes something satisfying his own will in violation of the norm is not left in possession of his ill-gotten good. If a son murders his father to inherit property, he is not granted the property as his inheritance. If a person steals $5,000, the $5,000 is first taken away and given back to the victim, and then he is punished further for upsetting public order. An immigrant’s repatriation to his home simply removes from the illegal immigrant the good which he has wrongfully grasped. The punishment properly due to his offense is something over and above that removal. It is impossible for repatriation to be "too harsh" a punishment for illegal immigration in general, as it isn't even punishment properly speaking.

St. Thomas taught, and Pope John Paul II’s Evangelium Vitae restated, the fundamental concept of punishment: the offender by bad will has disturbed the public good by satisfying his own will contrary to law, and the just retribution imposes upon him an evil equal in degree, i.e. equal to the evil of his will in concretely choosing something that satisfies himself contrary to the law, choosing his good in opposition to the common good. Thus the ideal punishment takes into account both a general matter (that of the good which the law supports or the evil which the law defends the public from) and an individual consideration (how fully his will conforms to the malice of the act chosen). Therefore, the range of punishments for the offense allow for the full range of cases, including the situation in which the offender’s act is fully deliberate, where his will is wholly conformed to the disordered violation of the law, and so for the offence considered in the abstract, the “due punishment” for such an offence is the punishment appropriate if the offender’s act is completely deliberate, wholly consented. In a case of theft, returning the lost good to the owner is a necessary prerequisite but distinct from the punishment as such which redresses the evil will in the offender, and this penal imposition is due regardless of whether the good the criminal has wrongly grasped has been returned to the owner, or whether he destroyed it and it cannot be returned. But as long as he retains his grasp of the stolen good, his will perpetuates the offense itself and extends the debt of punishment due. (If, in a given case, the offender is in a reduced state of culpability due to special conditions such as reduced consent, a reduced penalty is justified, but the norm is to be stated with regard to the general consideration, the evil from which the law defends us or the good toward which the law is directed.)

“Sin incurs a debt of punishment through disturbing an order. But the effect remains so long as the cause remains.” (St. Thomas, Summa Theologica, Prima Secundae, q. 87, A3). Thus, if an offender takes upon himself to ignore immigration law and become an immigrant without legal permission, as a general matter the normative dealing with him cannot be less onerous than taking away of the very thing in which the offender indulged his own will rather than follow the law. The due punishment presumes removing the object taken as a prerequisite. Leaving him in the country both fails to address the ongoing harm to the common good – the effect of his presence tending to contribute to the potential damage to culture noted above from Caritas in Veritate – and ignores redress of the disorder in his will in being willing to ignore the law about this and basically say “my personal determination is more weighty than the legislator’s determination for the common good.” Admittedly, in many individual cases illegal immigrants will have reduced culpability from a number of causes and will justify less severe punishments. But since "less severe punishment" regards the imposition of penal remedies, not the pre-requisite restoration of the status quo ante for the good in question, there can be no assumption that repatriation is excessive even in cases where reduced culpability exists.

I treat as a separate case the presence of children of illegal immigrant parents, especially those who have grown up from infancy here and know only English and only American ways. While legally their status should not be that of "illegal immigrant," nor should it simply be accounted "full citizen" or even "fully legal resident" merely because automatic repatriation would be an unconscionable injustice to them. However, repatriation of their parents is clearly just, and if the parents want to be not separated from the children they can legitimately ask for their children to be "repatriated" with them. (If parents can legitimately emigrate taking their children with them, they can return taking their children with them.)

I do NOT treat as a separate case (from the general) the plight of separation for adult members of a family, where one (or more) are being repatriated to their old home. Presumably, the ones who are not being repatriated are (a) either here illegally as well, and they can just get off their duffs and go home with their spouses / siblings and solve the separation themselves, or they are here legally and thus THEY CHOSE to be separated from their family of their own will. In neither case is the separation properly due to our enforcement of the law, it is due to their own actions or inaction.

As the above considerations show, even when you start out with the Church’s entirely sound and valid moral principles, applying them to given political considerations is difficult and fraught with the possibility of error. The Church’s own magisterial role usually rests above the fray of applying the general moral norms to specific cases in politics because her authority does not always extend to prudential political judgment of the specific cases. Therefore, it is of critical importance for priests who are engaged in teaching on both the general moral norms and the specific application thereof to make it absolutely clear which parts of their teaching belongs to the magisterial Teaching Church as such and which parts pertain to their own analysis and judgment. Frs. McGraw and Planty would have vastly improved their article by carefully delineating their own conclusions from the general moral principles and explicitly stating that their own conclusions are not Church teaching. For example, although the Church teaching may embrace the general distinction between malum in se and malum prohibitum, so far as I have found she provides in no defining document that an offence against immigration law is malum prohibitum. As reasonable as this conclusion may have appeared to the authors, if is not official teaching it should not be presented that way. Presenting it in an article to the general public that speaks fairly strongly about Church teaching and “principles” can easily mislead people into thinking that the specific conclusion offered is official Church teaching. And this often causes Catholics to look with disfavor on "Church teaching" in general when the authors just get it wrong, like here.

Comments (17)

At Mass Sep 8, 2013 the vocations director for the diocese gave a speal and a call for prayer for the immigration reform policy of the decades-old-warmed-over-marxism of the USCCB, claiming it was based on "gospel values".

But the second reading presented a clear understanding of what our immigration policy should be: St. Paul deported the slave back to the slave master.

Very thoughtful and thorough reflections, Tony. Thanks for putting this together. It is very wise.

In the case of children brought here, I don't think the fact they speak English as a native language or that they are more comfortable with our culture than their parents are should sway the immigration reforms. Most of the world doesn't find that to be a convincing argument. Our view, which these writers are riffing on, is actually a minority view in the world today, let alone through the scope of history.

For what it's worth, I do have sympathy for those children. One of my cousins came here from Mexico that way. However unlike most such kids she was married and had started a family. It's amazing the extent to which the feds will go to block those illegal immigrants who have gained actual bonds of affection and loyalty to the US while caving into those who are mere migrant workers going from one job to the next.

But then this is the same CBP agency that can find a few illegals working the BP oil slick site in Louisiana, but couldn't find the massive day laborer gatherings in their backyard in Northern Virginia.

Thanks for your hard work on this post, Tony.

One question does occur to me--How does the distinction between malum in se and malum prohibitum relate to the matter of how many people do something? To take a trivial example: Suppose that we're talking about people swimming in a particular swimming hole in a public forest. If one person goes there occasionally and swims, it remains a largely untouched place, the oeuvre is maintained, people can enjoy hiking past the picturesque swimming hole, and so forth. If on the other hand it is overrun and crowded with people swimming there, making noise, etc., the atmosphere that the public entity (the county, for example) wants to maintain will be interrupted or even destroyed. So does it _become_ malum in se when too many people do it, because the harm done, the "evil," occurs only in the cumulative effect? But that doesn't seem correct. It seems like a concept like "malum in se" has to apply to the individual act--in this case, swimming in the swimming hole.

Tony,

Wow. This is a tour de force of analytic rigor and reasoned argument. I have noticed with increasing distress the "meme" on the left that illegal immigration shouldn't be considered "illegal" because it is only a civil crime and therefore we need to use terms like "undocumented" immigrant when referring to the illegals and the crime they have committed.

I particularly liked your discussion of malum in se and malum prohibitum and I liked your discussion of the proportionality the 'punishment' of repatriation for as you say, "repatriation to his home simply removes from the illegal immigrant the good which he has wrongfully grasped."

I also like how you kept the focus on culture -- even with an influx of high-skilled, family-focused Asians into America we should and can be rightfully concerned about cultural cohesion (separate and apart from the issues plaguing low-skilled, socially disfunctional Central American immigration). No one freaks out over the fact that Japan wants to remain Japanese -- why can't Americans protect their unique cultural patrimony?

Keep up the good work!

Lydia, you raise a good point. If I have the right take on it, I think that the central consideration is this: whence comes the harm from disobeying immigration law? The authors contend that there wouldn't be any if there were no law about the matter. I think Benedict's comments disprove that.

You are quite right that there are actions which, considered alone and in the abstract, do not cause a measurable or discernible harm. Perhaps we should keep in mind the sorites aspect here. If you happen to burn one car battery in your leaf and brush pile on the back 5 acres, nobody in the rest of the county is going to see a loss of air quality. But put up factory that does the equivalent to 40 batteries a day, 350 days a year, and it's not so true anymore that nobody else is going to suffer damage. It is my belief that the way to describe this situation is that the harm exists when one person does it, but that the degree of harm to the common good doesn't justify the public making restrictions about it when only one person does it. However, when the degree of harm increases to the level of widespread ills, then of course there is a basis for a public law about the matter. Multiply the action many times over, and the number of people affected by the entirety of the accumulated behavior is a matter affecting the public order, and justifies public laws restricting the behavior on the individuals who make up the atoms of the "accumulated behavior". Thus these laws are about the relationship of the individual to the whole state because of behaviors that are repeated by many throughout the state. The critical issue is the accumulation of the tiny difficulties or losses by many separate actions.

We tend to think of some goods as perishable and others as permanent. A ham sandwich versus a car, for example. When I lend my van to a neighbor so he can get a large dresser home from the store, I don't think of the van as being "used up" like I expect when I hand him a ham sandwich. I treat it as getting back the same thing as I lent him, intact. But cumulatively

, lending a car many times DOES constitute an aggregation of many little bits of erosion of the car's overall good, as car rental companies know perfectly well. They can measure the amount they need to charge specifically for wear and tear, depreciation, etc. The diminution of good is PRESENT, it is just small enough in any single instance that we can easily overlook it unless it is our job to notice it.

When one single immigrant come in sharing virtually nothing of our language or culture, that is a stressor to the local community that must deal with him. I saw this up front when my family helped out with a refugee family from Liberia - in this case political asylum immigrants. It took a LOT of time, effort, and resources of willing hands and hearts to get them rolling and somewhat functional, and even then the immigrant family continued to be a stress on the community. For one thing, the fact that for quite some time this family was GIVEN every single thing they had meant that some of the kids got a skewed, warped sense of entitlement about things. For another, the immigrant family needed a number of waivers and exceptions to ordinary rules (like school attendance, just for example), all things that basically meant we had to make accommodations to our culture in order to make room for the fact that they could not fit into our society smoothly. I assume (from the fact that they were granted political asylum), that all of these accommodations were WORTH it. But that doesn't mean we didn't have to modify our system to adjust to those needs. Those modifications are, as such, stresses on the system, ways in which our culture was being ever so slightly bent.

So, the clarifying distinction is this: while it may be true that one may focus on laws (prohibitions) that specify a moral wrong, that is, something that is morally wrong even if there is no human law stated about it, there are other evils than those which are morally wrong acts. The public order considers also evils of the physical order, in addition to acts morally evil in themselves - prohibiting pollution, etc - so it is sufficient for law that it regard some sort of bad, an evil, but does not have to refer to malice or an act morally wrong without regard to a physical evil. It is sufficient if the harm is a real harm even though it is not intended as harm by any person's will. Putting raw chemicals into the river causes real harm in the individual case which is measurably harmful in the aggregate case if many people do the same act - the latter proves the former still contains an evil of the physical order (an evil regardless of how upright the individual man who does it). The law regards a damage to the common good that is measurable (and therefore is appropriate matter for public law) in the aggregate, DUE TO the miniscule damage present in each individual instance.

Now possibly the authors meant to distinguish between laws that prohibit acts because they are morally wrong apart from causing harm to others, and other acts which are deemed and announced as offenses because they cause harm to others, but that's hardly like the difference between crimes and civil offenses, or between felonies and misdemeanors. In any case, the answer to the question "whence comes the harm from disobeying immigration law" is clear: it comes from the action itself, not from the prohibition.

Excess immigration levels can harm a country

Heck, it can harm a city or a neighborhood.

Remember when those things used to matter to the church? Now so many people prefer to talk about 'community' in some broad mish-mash sense.

More than that...

Do these bishops - do any defenders of illegal immigration - ever spell out the duties of said immigrant? Do they owe anything to the people whose neighborhood they joined?

Are they supposed to speak the language? Adopt their new culture?

Is there anything they can do that would make their host country be justified in kicking them out? I recall that various crimes (like DUIs) were being regarded as 'not a reason to keep an illegal immigration from becoming a citizen'. Is that reasonable?

I can't help wondering what these bishops would say about the incident in a southwestern public school where the administrators of a public school tried to ban a boy from having an American flag on the back of his bicycle, which he rode to school, because the Mexican boys in the school were offended by it. I gather the principal was afraid they would start a fight. Is that, maybe, an indication of a harmful attitude among immigrants? Would the priests/bishops support deporting illegal immigrants who believe that the flag of their host country, displayed in that country, is an offensive symbol?

These are instances that could be multiplied a thousand times over, without half breaking a sweat. One of the troublesome aspects of immigration since 1980 or so is the apparent disbelief of the immigrants that it is their duty to assimilate to their host country's culture in all the important ways (food is not one of them). I would suspect fairly strongly that part of the reason, part of the psychological background to why it isn't happening smoothly now is PRECISELY our lack of enforcement of the immigration law. There are other reasons too, no doubt - the way illegal drugs have damaged our culture and that of many Latin American communities being one - but the way we look at immigration is a big part.

I have said it before, but I'll repeat: I don't think we should give simple amnesty to the illegals here. But given that we don't have the resources to kick them all out, I am willing to see some pathway to resolve their presence. That pathway should include a direct admission that they came here illegally, and a payment of (a) all proper taxes on all employment, and (b) payment of fines that generally (cumulatively) makes a big dent in the costs of illegals being here.

But given that we don't have the resources to kick them all out, I am willing to see some pathway to resolve their presence.

I don't think it's a problem of resources, but willingness. It's not as if we need to simply deport each and every person illegally present in this country - we could probably make a sizable dent just by denying all manner of government assistance, save for assistance in moving back to their country of origin. But the fight to do THAT would be incredible at this point.

But that's what I want talked about - that duty. No one wants to talk about it, ever. What is the duty of the single mother accepting benefits from the state? What is the duty of the person on welfare? What is the duty of the business accepting a US grant?

I have said it before, but I'll repeat: I don't think we should give simple amnesty to the illegals here. But given that we don't have the resources to kick them all out, I am willing to see some pathway to resolve their presence.

The feds don't need to spend a lot of money to deport a significant percentage of them. Operation Wetback is a great example of how handful of federal agents can put a massive dent into the problem. About 1,000 federal agents and support personnel deported over one million Mexicans in 1955. Imagine what would happen today if that were to be done again but with 10,000 federal agents and two Army divisions to lock down the border during the operation. By 2016 we'd have most of them either deported or self-deported. During Operation Wetback, the majority were not caught but self-deported because they had a choice. Either they could self-deport with whatever they had or be arrested by the Border Patrol and get sent back with just the shirts on their back.

Mike, I am OK with the idea of a massive operation to send people back. I am just a little wary of asking for another large bureaucratic "action" - from an Obama administration - that has the potential to be as problematic as incarcerating Japanese - American citizens in WWII. While I don't see that we owe an overly developed set of so-called civil rights to non-citizens, it's the identifying which ones we do and don't owe such rights that has me concerned. I have also seen up front how degenerate INS has been, so I have not very strong confidence in their ability to function in a massive new project.

There are a lot of things the feds can do to facilitate this reasonably. They could start by prosecuting all state officials, including legislatures, that grant state benefits like drivers licenses that make it harder to sort this stuff out. They could then move onto sanctuary cities by simultaneously ending all federal aid programs and aggressively confiscating all police gear acquired under federal transfer programs like DoD 1033.

Another thing that should be done is there should be detailed cataloging of illegal immigrants arrested with all of their biometric details recorded. After the third attempt to enter the US, they should be issued a lifetime banishment from the US with any subsequent intentional entrance upon US soil without authorization for any reason being classified as a class B felony and as a class A felony if the individual was facilitating the illegal immigration of anyone else.

Now that's got teeth in it. Don't all states have to require "proof of legal presence" in order to issue a license?

Apparently the fact that hospitals are required to take undocumented persons for emergency room and emergency labor and delivery services (and some of these costs are then covered by Medicaid in some fashion), means that women come here from other places in order to have their babies, because they know the babies will then be illegal citizens. I would put a stop to that: change the definitions so that the child born here of an illegal alien, maybe born within X years of initial presence here, is NOT a citizen without further hurdles to meet. We are shooting ourselves in the foot by attracting indigent pregnant aliens.

From what I've read, the 14th amendment's claim "and subject to the jurisdiction thereof" meant in pre-20th century (or pre-mid 20th century) legal parlance that one must have a natural subjection to the authority of the United States Government (and having obligations to the same) in addition to being born on US soil. An illegal is not naturally subject to the authority of the United States Government. They are by natural only subject to it only when on US soil whereas a US citizen has certain innate obligations and rights that transcend the territory of the United States.

I would personally prefer granting the children no such rights of citizenship under any circumstance by right of birth and living here. Few countries outside of the Western hemisphere do that. The majority of Europe, Africa, the Middle East and Asia certainly do not. In fact, some of the more developed countries that do practice Jus Soli only honor it when one of the parents is a citizen of that country.


Don't all states have to require "proof of legal presence" in order to issue a license?

No. In fact, California is about to start intentionally issuing them to illegals. This is why I said that entire legislatures might have to be criminally prosecuted. There is no states right to pass a law undermining a constitutional federal law. This isn't medical marijuana which only a federal judge couldn't see is constitutionally outside of the jurisdiction of the feds (the feds have literally almost no regulatory power within a state's borders). This is a matter related to naturalization which is a mandate of Congress only.

From what I've read, the 14th amendment's claim "and subject to the jurisdiction thereof" meant in pre-20th century (or pre-mid 20th century) legal parlance that one must have a natural subjection to the authority of the United States Government (and having obligations to the same) in addition to being born on US soil. An illegal is not naturally subject to the authority of the United States Government. They are by natural only subject to it only when on US soil whereas a US citizen has certain innate obligations and rights that transcend the territory of the United States.

Mike, I am not sure I understand. I see that an illegal alien who immigrates and is present here is, in some sense, not subject to the jurisdiction of the US, but his mere presence here puts him under its jurisdiction here in another sense (is subject to all sorts of federal laws even though he is not here legally). But a child who is born here to an illegal immigrant is subject to the jurisdiction of the US in the second sense without having arrived here through his doing something illegal, and it is problematic to say that he isn't subject to US jurisdiction in the exact same sense that it is valid to say an illegal alien isn't subject.

I would say that a traveller, while remaining subject to his home jurisdiction in many matters, comes under the jurisdiction of his actual location in other matters, so we cannot speak of jurisdiction as a wholly on-or-off status. And the illegal alien's child born here, though having a potentially diminished condition with respect to jurisdiction of the US, is NOT subject to jurisdiction of the illegal parent's home country in the same sense that the parent is, so it is plausible or even likely that the child's status subject to jurisdiction of the US is different from that of his parent.

In any case, I have strong suspicions that the whole of naturalization concepts and practices and laws and precedents are violations of subsidiarity in a really fundamental sense. My sense is that because the state / federal system is one of shared sovereignty, it should be impossible for a person to be a citizen of the US without also being a citizen of one of the states (or territories, I suppose), and that the proper order is that citizenship in a state flows upwards into citizenship in the US, not the reverse. One of the effects of a proper application of this more rooted approach would be that states would actually CARE about which state you are a citizen of. For example, it would be wrong for one state to perform or allow a marriage ceremony for citizens of another state without the consent of the state of citizenship. (It is utterly disgusting that we have a situation where 2 people cannot get married in a state because the state forbids it, can go to another state that allows it, and then return home to be treated as married in the home state. For example, some states allow marriage of cousins - not West Virginia, oddly - while others do not. It is very disorderly for 2 cousins who are citizens of a non-allowing state like WV to go to Las Vegas to get married and then return home to be considered as married when WV doesn't allow it, and while they were never citizens of any state that allowed it. - which all goes back to my original point that a traveler is under the jurisdiction of his home in some respects and under the jurisdiction of his actual location in other respects - it should be impossible for the visited state to extend its jurisdiction to the traveler so far as marriage without the home state's permission.)

I don't know the history of naturalization theory and practice well enough, but I sense that it changed dramatically for the worse after the Civil War and the 14th Amendment. Anybody out there have a good summary of it?

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