Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause

28 Pages Posted: 14 Apr 2021 Last revised: 15 Apr 2021

Date Written: March 17, 2021

Abstract

INTRODUCTION:
I start with a definition. A “nativist” element of a legal system is one which preserves some benefit for, all or some of, the nation’s citizens or its indigenous inhabitants, as opposed to granting that benefit neutrally to citizens and immigrants alike.

Not so long ago the essential morality of such a distinction was considered so obvious that no defense was thought to be necessary. Indeed, in many traditional societies there is no distinction between the indigenous inhabitants (that is, the people) and the nation. Any attempt by a government to treat newcomers equally in all respects would have been akin to incomprehensible.

Today, in the West, there is a growing view that all such distinctions are actual or tantamount to invidious racial, ethnic, or religious discrimination. Still such distinctions have long-standing bona fides — even in Western societies. For example, under the United States Constitution (1787), all elected federal officials in the national government must be held by citizens. Members of the diet’s lower chamber must be 25 years old, be an inhabitant of the state in which they are elected, and have held citizenship for at least 7 years. Similarly, members of the upper chamber must be 30 years old, be an inhabitant of the state in which they are elected, and have held citizenship for at least 9 years. Like holding a congressional seat, eligibility to hold the presidency and vice presidency requires that the candidate meets an age requirement (at least 35 years old) and a residency requirement (at least 14 years in the United States). However, unlike holding a congressional seat, eligibility to hold the presidency and vice presidency is limited to natives, or more properly, using the language of the United States Constitution, to “natural born citizen[s]” — a person who is born in the United States and a citizen since birth.

This essay asks two related questions: Is a society justified in distinguishing citizens and immigrants? Is a society justified in distinguishing citizens from birth from those who become citizens subsequently through naturalization?

CONCLUSION:
The efforts of the modern commentators to explain the Natural Born Citizen Clause as one rooted in bigotry and prejudice directed at naturalized citizens is the product of an intellectual milieu of large, powerful countries, where there is no memory of bombs falling on the nation’s core territory or any existential fear of conquest by foreign powers. The concern of these authors is merely the fair distribution of society’s benefits and opportunities, between citizens and immigrants. The “other,” to the extent he exists at all, is just a person who has not yet become or who has not yet been allowed to become an American.

Modern theories of separation of powers and constitutional design have little or nothing to do with the Framers’ and Founders’ world of revolutions and imperial wars—where oceans and frontiers pose dangers—as you yourself pose dangers to others—where others may burn down your capital as you may burn down theirs. The Natural Born Citizen Clause was the limited policy response of a People who believed that beyond one’s national frontier was a dangerous world. That the clause’s purpose is no longer widely understood indicates that much has changed since 1787.

Suggested Citation

Hilts, Lament, Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause (March 17, 2021). Available at SSRN: https://ssrn.com/abstract=3806442 or http://dx.doi.org/10.2139/ssrn.3806442

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