It is with profound regret that we inform those who are most strongly opposed to helping immigrants in any way that the time will come when this era is regarded in the same way we regard the eras when women and black people were not allowed to vote. Time has a way of turning such issues into quaint although passionate history.
Horrific as it has been to some, this country has elected a black President. Twice. Horrific as it might be to some, this country could be electing a woman as President.
Someday, this increasingly diverse nation will elect someone to the presidency who was not born in this country and not born as an American citizen. And one of those, perhaps someone targeted by this generation’s loudest political voices speaking against the evils of immigration, will become that President.
A few years ago, your friendly observer bought a book called America’s Unwritten Constitution to read while the Senate bored its way through a filibuster. The author, Akhil Reed Amar, is a law and political science professor at Yale and sometimes is a visiting professor at Harvard, Pepperdine, and Columbia Universities. The book blurb says he is “often cited by the Supreme Court and is a frequent expert witness in Congressional hearings.”
This probably is not a book that will be enjoyed by those who think the solution to all of our nation’s problems is to just read the U. S. Constitution and do what it says because Amar, among other things, looks not only at what it says, but also what the system of laws DOES that have evolved out of what it does NOT say but leaves open to developments in the years after the document was written. It’s a big book but it’s about a big subject. It emphasizes that our Constitution is a far more complicated document than those seeking simple answers in it are often willing to acknowledge.
But anyone thinking of getting into politics, as well as those now involved, should read it. Here’s a warning, though: It’s a thinkers’ book. And not everybody in our political system today wants to think.
His last chapter carries the subtitle, “America’s Unfinished Constitution.”
“What should our future Constitution contain?” he asks. “If political and legal power in America today is in certain respects unfairly distributed, could the individuals and institutions currently benefiting from this unfair status quo ever be induced to support justice-seeking reforms? Is it truly realistic to think that the future will overcome the iniquities of the present?”
He cautions against changes that would “radically reverse the trajectory of our constitutional story thus far, whereas others would fulfill the existing Constitution’s spirit.” What is that spirit?
From the founding to the present, America’s written Constitution has traced a clear and remarkable trajectory, visible at every moment of enactment and amendment along the way. With the ill-fated exception of Prohibition, none of its amendments has aimed to diminish liberty or reduce equality. On the contrary, most amendments have expanded freedom and egalitarianism.
He suggests efforts to make flag-burning a crime or to “restrict the equality rights of same-sex couples” should be viewed skeptically. But, he says, an amendment allowing certain immigrant Americans to seek the presidency “should be viewed more favorably, precisely because it would be a far better fitting next chapter to our unfolding constitutional saga.”
There is no doubt Americans could amend the constitution to criminalize flag-burning, “and thus repudiate the basic constitutional principle that sovereign, self-governing citizens have a robust right to mock basic symbols of government authority.” Yes, American could amend the constitution to ban gay marriages, “and thereby constrict the scope of the grand idea that government should not demean a person because of his or her birth-status—because she was born out of wedlock or he was born black or she was born female or he was born gay.”
Amar testified at a Senate committee hearing in 2004 on a proposed constitutional amendment letting “long-standing naturalized citizens to run for President.” Amar is the son of an immigrant and married to an immigrant. He writes,
“Although the proposed amendment would surely change the existing rules, it would do so in a pro-immigrant direction—just as the Founders themselves changed older English rules in pro-immigrant ways. Indeed, I went a step further: Given that the reasons the eighteenth-century Founders themselves barred certain naturalized citizens from running for president no longer apply in the twenty-first century, modern Americans would best vindicate the spirit of the Constitution by formally amending it. I pointed out that the Founders’ Constitution was, by the standards of the day, hugely pro-immigrant.”
That might be news to some of today’s advocates of solving the nation’s problems by just reading the Constitution. Amar points out that the writers of the Constitution had a background that included the English Act of Settlement that prohibited any naturalized citizen of England from serving in the Parliament or on the Privy Council, or in many other government positions. But our Constitution “repudiated this tradition across the board.” Reading the Founders’ Constitution shows no bars to immigrants serving in either house of Congress, in the cabinet, or anywhere in the federal judiciary. In fact, seven of the 39 men who signed the Constitution were born in another country. Eight of the first 81 members of Congress were immigrants. Three of the first ten Supreme Court Justices were foreign-born. Two thirds of the first six Secretaries of the Treasury and one of the first three Secretaries of War were immigrants.
Apart from Amar’s compilation, we might observe that none of the 39 men who signed the document began their lives as American citizens. And this nation did not, in fact, have a President who was born in the United States until Martin Van Buren (1837-1841). The first seven had been born British citizens.
Amar argues that the Founders did exclude immigrants from the Presidency “because some at the time feared that a scheming foreign earl or duke might cross the Atlantic with a huge retinue of loyalists and a boatload of European gold, and then try to bully or bribe his way into the presidency…In a young America…when a fledgling New World democracy was struggling to establish itself alongside an Old World dominated by monarchy and aristocracy, this ban on future foreign-born presidents made far more sense than it does in the twenty-first century.”
Thus, he argues, making more people eligible for the presidency vindicates the Founders’ immigration principles. “by treating naturalized citizens as the full equals of natural-born citizens, and by allowing a person of obvious merit to overcome a legal impediment created merely because he or she was born in the wrong place at the wrong time or to the wrong parents, the proposed amendment would widen and deepen the grand principle of birth equality at the heart of the Fourteenth Amendment. By making a new class of Americans eligible to be president, the proposed amendment would also echo and extend the spirit of the Fifteenth and Nineteenth Amendments, which entitled blacks and women not merely to vote on equal terms on Election Day but also to be voted for on equal terms and to vote and veto equally in matters of governance.’
He concludes, “I continue to believe today, that what the suffragist movement did for women, America should now do for naturalized citizens. This country should be more than a land where everyone can grow up to be—governor.”
The sponsor of the proposed Amendment was Orrin Hatch, a conservative Republican from Utah. Although the Amendment has not been sent to the states for ratification, Amar thinks its time is coming because the political parties “will find it politically advantageous to compete for the allegiance of immigrants and their allies, just as there were many past moments when both parties found it in their interest to demonstrate their liberality toward women and blacks.”
We are living in a hinge-point era of our nation’s history. Just reading the Constitution is not enough as we see the face of America changing. Understanding the Constitution is critical in these times of demands that we “diminish liberty and reduce equality.”
(America’s Unwritten Constitution: The Precedents and Principles We Live By; New York, Basic Books, 2012.)