Jeffrey Wernick
There is a phrase that does a great deal of work in American political argument, and almost none of it honest. The phrase is American culture, invoked as something immigrants endanger and citizens defend. It is worth asking what the phrase means, because the moment you press it, the entire architecture of the cultural-threat argument inverts, and the people cast as the danger turn out to be the ones with no power to do harm, while the damage that has actually been done to the country was done by the people doing the casting.
Begin with what binds. An American is not bound to a cuisine, a language, a faith, or a demographic composition. None of those was ever ratified. The only things every American is actually obligated to are the founding documents, the Declaration, the Constitution, and the Bill of Rights, and the obligation is formal and specific. The naturalized citizen swears to the Constitution. The officeholder swears to the Constitution. The soldier swears to the Constitution. No one has ever sworn to a way of life, because a way of life is not the kind of thing that can be sworn to or enforced. When people speak of consent of the governed, this is the consent they mean, the formal act of binding oneself to a written framework, and the framework is the only thing carrying that kind of consent. Everything else a society accumulates, its habits and tastes and accents, is real but unratified, and unratified things cannot bind anyone and cannot be used to exclude anyone, because no one ever agreed to them in the sense that creates obligation.
This matters because it tells you what culture, in the only binding sense, actually is. It is fidelity to the documents and their principles. And a sophisticated defender of the threat argument will grant this and then press a real point, that the documents are parchment and cannot enforce themselves, that they live only in the dispositions of the people sworn to them, the willingness to tolerate dissent, to accept a lost election, to keep one’s word, to extend to others the protections one claims for oneself. This is true, and it is worth conceding fully, because conceding it does not weaken the argument. It completes it. The culture that sustains the Constitution is a culture of constitutional fidelity. It is allegiance to due process, to the separation of powers, to equal protection, to free speech, held not merely as text but as habit. That culture is open to anyone and demanded of everyone. It has no ethnicity and no native tongue. And the person who insists that American culture means a folkway or a bloodline, rather than a fidelity, is the one who has departed from the actual binding tradition, not the immigrant who swears to it.
Now place the immigrant against that framework, and the supposed threat begins to dissolve before any evidence is even consulted, on the structure alone. The thing said to be in danger is the founding framework. The immigrant who has not naturalized has, by the framework’s own design, no power whatever over it. He cannot vote. He cannot hold the offices that amend. He cannot sit on the conventions that ratify. The entire machinery of Article V runs through citizens and states, and the noncitizen stands outside all of it. The instrument that defines the polity is structurally sealed against the people said to threaten it. Whatever one fears the immigrant might do, changing the binding documents is not among the things he is able to do, because the documents placed that power beyond his reach. The person with no capacity to alter the rules cannot be the danger to the rules.
This is precisely the distinction Madison drew in his Report of 1800, and it is worth recovering, because it is the founding-era answer to the present argument. Madison insisted that two kinds of foreigner must never be confounded. The alien enemy, the member of a nation at war with us, falls under the law of nations and the war power. The alien friend, the member of a nation at peace with us, falls under ordinary domestic law and may be punished only as that law allows, for an offense, after a trial. Of the alien friend Madison wrote that he stands under a local and temporary allegiance and is entitled to a correspondent protection. He owes obedience to the laws while he is here, and in return he receives their protection, and he is no party to the compact that he has no power to alter. The alien friend is the person inside the protection of the law and outside the power over it. That is exactly the immigrant the threat narrative fears, and Madison’s framework says he is owed protection precisely because he has no hand in the instrument.
So the structural case is already decisive. But the threat argument also smuggles in an empirical premise, that the immigrant is less law-abiding, less civically disposed, than the citizen, and that premise is not merely unsupported. It is inverted by the record, and the burden was always on the one asserting it. A near-majority of Americans believe immigrants increase crime, and almost no one believes they reduce it, which tells you the belief runs on assumption rather than evidence. The evidence runs the other way, and it does so across the entire span for which the United States has kept records. Immigrants have had similar or lower incarceration rates than the native-born since at least 1870, and the pattern holds across every origin group and every period of arrival. The gap is not small and it widened over time. By 2019 native-born men were incarcerated at roughly twice the rate of immigrant men. In the most recent national data, immigrants were sixty percent less likely to be incarcerated than the native-born, and for one recent birth cohort the native-born were more than two and a half times as likely to have been incarcerated by age thirty-three.
The ranking within the immigrant population is the part that answers the present argument most directly, because the threat narrative is loudest about the undocumented and the alien friend is its quietest case. The order is the reverse of the fear. The undocumented are less likely to be incarcerated than the native-born, and lawful immigrants are the least likely of all three. The alien friend, the very person Madison described, is on the measurable record the most law-abiding member of the polity. Even the undocumented, in the states that track status directly, are arrested at well under half the native-born rate for violent and drug offenses and a quarter the rate for property offenses.
Honesty requires the caveats the researchers themselves attach, and attaching them strengthens rather than weakens the case. Incarceration is a proxy for conduct, shaped by enforcement and reporting as well as by behavior. Some of the gap may reflect that noncitizens convicted of crimes are deported and so drop out of later snapshots, though the studies that measure whether a person was ever incarcerated are built to blunt exactly that objection and still find the gap. And the rise in immigrant prosecutions over recent decades is nearly all for immigration offenses, unlawful entry and the like, which a citizen cannot commit by definition and which therefore say nothing about ordinary lawfulness. Strip those out, and the core finding stands. On the most measurable proxy for the law-abiding disposition, immigrants outperform the citizens they are said to threaten, and lawful immigrants outperform everyone.
Civic virtue, though, is more than the absence of crime. In the founding sense it is the disposition to sustain free government, to work, to participate, to carry one’s share. And on the available measures of that, too, the immigrant does not lag. The foreign-born participate in the labor force at rates that tend to exceed the native-born. The contrast with other countries is clarifying, because it shows the pattern is not magic but mechanism. In places where immigrants are shut out of the labor market, they participate less and offend more. In the United States, where they work at high rates, they offend at low ones. Lawfulness tracks participation, and participation tracks whether the society lets a person in. The immigrant who is permitted to work, and does, is the law-abiding one, which means civic virtue is not a trait the cohort lacks by nature but a product of whether they are allowed to belong.
Here the argument turns, and it turns onto the people making it. If civic virtue means fidelity to the constitutional structure and to its founding principle that the governed must consent to what binds them, then the record of the enfranchised deserves the same scrutiny the immigrant has been made to endure. And that record contains injuries to the structure that the immigrant could not have inflicted, because inflicting them requires the very power the immigrant does not hold.
Consider the war power. The Constitution lodged the decision to make war in Congress, deliberately, in the body closest to the people and hardest to move, because the founders did not want the gravest of all national acts available to a single will. The long practice of undeclared war is the hollowing of that choice. Congress still exists and still nominally holds the power, and has watched it migrate to the executive without the declaration the text requires. The form remains, the function is gone, which is the signature of every constitutional erosion. The immigrant did not do this. He cannot. He has no vote to cast and no office to hold. The hollowing of the war power was the work of the enfranchised, acting through the representatives they elected, abandoning a safeguard the founders thought essential to keeping the country free.
Consider, more sharply, the matter of debt. The grievance at the root of the Revolution was being bound by a body in which one had no voice. It is the meaning of the phrase no taxation without representation, and it is enumerated in the Declaration as a reason to dissolve the bond with a crown. Spending for present consumption financed by borrowing does, across time, the very thing the colonists rebelled against. It binds people who had no vote in the decision, the not-yet-born and the not-yet-of-age, to obligations they must one day discharge. The future taxpayer stands in exactly the position the colonist occupied and exactly the position Madison’s alien friend occupies, subject to a burden imposed by a body in which he had no representation. And unlike the immigrant, who can naturalize and gain a voice, the unborn cannot retroactively consent to a debt already run up in their name. The enfranchised voted themselves present benefits and sent the bill to people who could not vote against it. That is the enumerated wrong of the Revolution, committed by the heirs of the Revolution against their own descendants.
The fairness of this charge depends on keeping it precise, so it must be kept precise. Not every transfer across time is a wrong. Borrowing to build something durable, or to win a genuinely defensive war, can be a legitimate bargain with the future, because the future inherits the asset along with the obligation, and the founders themselves financed the Revolution on debt. The wrong is narrower and for that reason unanswerable. It is consumption financed by those who cannot vote, the transfer that hands today’s citizens the benefit and tomorrow’s only the liability. There the future party receives the debt without the thing the debt purchased, and there the consent that legitimates the whole constitutional order is simply absent. One need not settle the economics of who ultimately bears a public debt to see the point, because the point is not about incidence. It is about consent. A burden placed on those who had no say in it is the precise defect the founders fought a war to escape, whatever its eventual macroeconomic accounting.
And it must be put as a defect of structure, not a verdict on character, because that is where it is both true and strongest. The citizen who tolerates undeclared war or votes for consumption on credit is not a worse person than the immigrant. He is responding to an arrangement that lets a present majority capture benefits and externalize the cost onto people who cannot vote, and that incentive operates whether or not any particular voter is virtuous. This is an old insight, that democratic majorities have a standing temptation to consume the common store and defer the cost, and that constitutional limits exist precisely to bind that temptation. The undeclared wars and the consumption debt are what appears when the limits meant to bind it are hollowed out. The fault is in the hollowing, not in the hearts of the people who walked through the opening it left.
Which returns the whole question to where it began, with the word that started it. The cultural-threat argument locates the danger to American culture in the cohort that has no power over American culture, and looks past the damage done by the cohort that holds all the power over it. The immigrant cannot run a deficit, cannot authorize a war, cannot bind the unborn, cannot amend a syllable of the documents, because the framework placed every one of those powers beyond his reach. Each of these injuries to the founding structure was committed by people exercising the very franchise that the threat narrative treats as the thing immigrants imperil. The franchise was never imperiled by immigrants. It was used, by citizens, to do several of the precise things the founders enumerated as tyranny.
So if American culture means what it can defensibly mean, fidelity to the founding documents and to their principle of government by consent, then the evidence does not show the immigrant failing it. It shows the alien friend, under local allegiance, owed protection, holding no vote, having done none of the things that have actually wounded the constitutional order, and on the measurable record keeping the laws of the land more faithfully than the citizen who claims to defend them. And it shows the enfranchised, sworn to the Constitution, holding all the power the documents confer, tolerating the undeclared war and binding the unconsenting heir. The threat was always pointed in the wrong direction. The people said to endanger the founding culture are the ones with no means to touch it, and the injuries that culture has actually suffered were inflicted by the hands that hold the power, in the forms the founders warned us of, while those hands were pointing at someone else.
Editor’s Note: At a moment when the once vaunted model of responsible journalism is overwhelmingly the play thing of self-serving billionaires and their corporate scribes, alternatives of integrity are desperately needed, and ScheerPost is one of them. Please support our independent journalism by contributing to our online donation platform, Network for Good, or send a check to our new PO Box. We can’t thank you enough, and promise to keep bringing you this kind of vital news.
You can also make a donation to our PayPal or subscribe to our Patreon.