Constitutional law professors gearing up for the new school year are no doubt delighted that something as arcane as the “plenary power doctrine” has gained so much attention in the news lately. The centuries-old English doctrine and the legal underpinning of ideological screening states that the authority of the government over immigration is unquestionably with the executive branch in spite of existing liberty charters, such as the Magna Carta in Great Britain’s case or the Bill of Rights in America’s. No-borders agitators attack extreme vetting of prospective refugees and immigrants as inherently violative of the Constitution, specifically, the First, Fifth, and Fourteenth Amendments—the Constitution trumps the executive branch is the essential claim. But besides ignoring the broad range of ideological grounds for exclusion found in our immigration laws, including anarchism, totalitarianism, communism, and terrorism, these critics are displaying a considerable amount of historical illiteracy.
In an article for the Texas Review of Law & Politics, former attorney with the Immigration Reform Law Institute, Patrick Charles writes that such critics routinely refuse to delve into the Anglo-American heritage of plenary power and ideological exclusion. Since the establishment of the modern English legal system, Charles writes that aliens were always subject to rules which differed from the common law (that is, they lacked the rights granted to common Englishmen). A statute passed in 1557 during the reign of Phillip and Mary proclaimed that, apart from those whom the sovereign “shall license to remain”, “all Frenchemen… shall departe out of this Realme.” Although the statute was based on nationality, its underlying purpose was to exclude Catholics whom had been challenging the legitimacy of the Protestant Crown for years. Later, when these fears were heightened, Parliament explicitly restricted naturalization to those of the Protestant faith or those who “have receaved the Sacrament of the Lordes Supper.” Daniel Defoe, a general supporter of migration into England because it “rais[ed] the landed gentries’ rent profits”, conditioned his enthusiasm only to “Foreign Protestants.” Later, Britain would block immigration of proponents of the French Revolution. In support of that effort, one member of parliament agreed that the “safety of the state was not be sacrificed to hospitality; and whatever was necessary to that safety, was not to be blamed.”
Charles writes that given how fundamental immigration policy is to the very existence of a nation, it was always understood to be determined by the political branches of government, not by a court. For early legal theorists, such as William Blackstone and William Holdsworth, the extent of the debate was whether the power to expel and exclude resided with Parliament or the Crown, not whether the power existed at all. Blackstone, for instance, wrote that foreigners were “liable to be sent home whenever the king sees occasion.” That the question did arise was due to England’s economic ascendance and the resulting pressure from economic migrants, just like America today. But unlike America’s open-borders-pushers today, British politicians and legal commentators then understood that immigration was a privilege, not a right. As Sir Francis Bacon stated, even an alien friend “may be an [e]nemy,” therefore to this “person the [l]aw allotteth … [a] benefit” that is “transitory” at the discretion of the sovereign government.
The liberal argument that ideological exclusions are morally repugnant is indeed a curious one given the source; their conception of society, of course, being entirely based on ideological exclusion. For modern-day liberals, America is like the Soviet Union. In the three generations of that regime, Soviet man had to believe in an idea, the idea of international communism, or you were a non-person. For American liberals, its multicultural globalism. Accept it with full doctrinaire zeal or you become an unperson. Although going against the liberal creedal state won’t subject one to Gulag-like enslavement, dissidents in America today certainly suffer more than simply getting disinvited from elite cocktail parties. It is believe or be expelled from school. Believe or be denied public office. Believe or be fired and denied your livelihood.
When he accepted his Nobel Peace prize in 1970, Aleksandr Solzhenitsyn, struck against the Soviet idea that patriotic nationalism could and should be superseded. “The disappearance of nations” he said, “would impoverish us no less than if all peoples were made alike, with one character, one face. Nations are the wealth of mankind, they are its generalized personalities: the smallest of them has its own particular colors, and embodies a particular facet of God’s design.” So, when it comes to diversity, who really is its true champion? Those respectful of the right of self-preservation or those wishing to devour cultural differences?
Ian Smith is an attorney and lapsed Democrat living in Washington, D.C, and a contributing blogger to the Immigration Reform Law Institute.