There is a big, unspoken taboo topic that as far as I can see almost never gets mentioned in the immigration debate: by what right do we possess this land? This is the big lurking issue that can and should totally reframe the terms of the debate. How so?
The whole question of immigration turns on a problematic distinction between “us” versus “them,” where the “us” are those who are citizens and the “them” are those who are not. No one seems to want to acknowledge that the distinction of “us” citizens versus “them” noncitizens is exceedingly problematic. It is problematic for all sorts of reasons. The very notion of a citizen, of course, assumes that there is a national entity (a state) that can make one a legitimate citizen. And the notion of a legitimate state, for its part, rests on the notion that the political entity granting citizenship has legitimate sovereignty over its land or territory. The state decides the rules within its territorial boundaries including who are citizens and who are not. The close relationship between the state and land has been understood since the beginning of natural rights theory which posited a kind of one to one correspondence between the rights individuals have in their land and the territory that a state oversees. In other words, there is no state without land, and states by definition have sovereignty over a territory. The close relationship between the United States and its land is simply taken for granted in the debate over immigration as a kind of background assumption. But what is anything but clear is Americans’ original right to the land they occupy.
Americans’ Right To Land
Hang with me here for a moment. I know I am bringing up an issue that is an already settled fact on the ground. The United States has existed as a legal entity since 1789 when the Constitution was ratified. The individual states themselves existed since July 1776 when independence was declared from Great Britain. Before that, the colonies were under various kinds of charters. To question whether the United States has sovereignty over its territory opens up a theoretical can of worms that has been settled by history, right?
Not so fast. The problem with the current debate about immigration is the way in which we take for granted the reified categories of “us” and “them,” and “citizen” versus “noncitizen.” These distinctions are exceedingly problematic and tenuous. The “we” versus “them” rests on a fundamental assumption that “we” have a right to be here and “they” don’t. But if we examine the history of this question that moral distinction falls completely apart even if it is currently a settled fact. Here’s why:
The dirty little secret in the founding of the United States, and the American States before that, is that the Americans didn’t have clearly defined rights to the lands they occupied. The settlement of North American lands was part of a primarily British conquest of America that was justified by various colonial theories about rights, property and land. Protestant Britain, following after Catholic Spain, leveraged various European colonial, Christian and natural rights justifications for taking the American lands. For the most part, the American founders’ ignored or downplayed the question of what gave Americans the right to their land. We can understand why this was the case. By the time they declared independence from Great Britain, the colonies were already well populated on the East Coast of North American. In defending their American rights, they looked up at their British oppressors and didn’t look at the oppression they were exercising on native nor slave populations. Still founders, such as Thomas Jefferson, John Adams and James Wilson, did occasionally ponder the question of their rights to North American lands in the period leading up to the Revolution. <1>
The Founders Ponder Our Rights to Land
Jefferson, for example, in his first political essay, A Summary View, drew on one stream of natural rights theory which argued that the European settlers had a right to American lands based on conquest; winner take all. James Wilson, who was uncomfortable with such a view, put forward the European and Lockean theory that land that was uncultivated could be taken by anyone. Since God had intended land to be worked, no people could keep land which they didn’t cultivate. The assumption that natives did not cultivate the land was a mistaken one but it helped justify the American position. John Adams expressed some discomfort with such justifications and acknowledged in his pre-Revolution essays the view that natives had their rights to the land. He thus expressed doubts about any legitimate European claim to the lands.<2>
It should not be surprising that the American founders ignored and suppressed the question of their right to the land in the Declaration of Independence, the very document justifying their right for independence as a free state. Still, this was a glaring omission when all theorists of the state at the time would have said that the question of a state’s relationship to its territory was a critical issue in the legitimacy of the state. The Declaration was after all their justification to become independent united states. Eventually, the Supreme Court under justice John Marshall would take up this issue of land in a landmark 1823 decision in Johnson v. M’Intosh. The court adopted the European “doctrine of discovery,” a colonial view which gave the European sovereigns who “discovered” North America rights to the land, a position that had been put forward earlier by Spanish Catholic and British Protestant explorers going back to the time of Columbus.
The European Christian Conquest of the Americas
Historians of the period indicate that the British Protestant conquest of North America was itself modeled on the earlier Spanish conquest of what is now Latin America and South America. The Spanish Catholic and British Protestant competition was both a colonial expansion and a religious post-Reformation competition. The Spanish conquest, which came first, and which some aptly describe as a “Holocaust”, was justified by the Catholic Church through a series of papal bulls issued by the Pope. The brutal details of both conquests have been amply documented by historians. <3>
I am sorry to remind Americans of this dirty little secret that “we” never really had an original right to the land. But it is a fact that should at least be part of the discussion whenever we attempt to deal with the immigration problem, which is framed as a distinction between those who are legally here and those who are not. Of course, if “we” had no right to the land in the first place, the “we” versus “them” is exceedingly problematic. Even if “we” were all descended from the first Europeans to occupy the land, which a majority of us are not, and even if each of us acquired citizenship legally, the very basis of that citizenship is granted by an entity that really had questionable rights to grant citizenship on its territory.
The Problematic “We” Versus “Them”
To problematize the “we” versus “them” distinction further, the “them” in many cases are “nonlegal aliens” from Mexico, Latin or South America who in many cases are blood descendants of Spanish and native Americans. One could actually argue that they are a more authentic “we” then “we” are, since they at least have more native blood than the majority of us, European, white descendants. To argue about the immigration issue as if it is a matter of legality and rights, therefore, is deeply paradoxical, if not immoral. To be sure, we could get off into a highly theoretical debate over the question of whether the native populations that the Europeans met on this continent had themselves stolen the land from others before them. One could as I have in fact argued indeed it is “theft” and “conquest” all the way back in human time. But even if that perspective is true, it hardly justifies the moral claim that somehow because “we” are here last, we have rights to the land. Such a moral argument is nothing more than a claim that power makes right.
Still, my point is to remind us that we have no rights to this land that ultimately are more legitimate than anyone else’s. The distinction of “us” citizens versus “them” noncitizens is a fiction reinforced by power, law and the myths we tell about ourselves and our origins. What this means if we seriously weigh its implications is morally profound and disturbing. It awakens us to the arbitrariness of history that puts us and our children on this side of the line and others and their children on the other side of the line. That moral and historical insight should temper our attitudes and by extension our practices in how we move forward in differentiating those who are legal from those who are not. <4> How that insight should shape the immigration debate is of course open to interpretation. But it at least should be considered, as we try to draw lines between “us” and “them.”
1. On Jefferson, Wilson, and Adams’s on the American right to the land and the European colonial and natural rights views from which they derives, see my Beyond Liberty Alone: A Progressive Vision of Freedom and Capitalism in America, Chapter 7. On the failure of the Declaration to deal squarely with the issue of Americans rights to land, see my Liberty in America’s Founding Moment, 38-47. For the question of whether natives cultivated the land, see Stuart Banner, How the Indians Lost Their Land (Harvard).
2. For a discussion of this Supreme Court Case, see Lindsay Robertson, Conquest By law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford).
3. As examples, see, Banner, How the Indians; Robert Williams, The American Indian in Western Legal Thought (Oxford); David Stannard, American Holocaust: The Conquest of the New World (Oxford).
4. For a longer discussion of this theme, see my Beyond Liberty Alone, Chapter 7.