Our public sphere is consumed with debates between so-called “creedal Americans” on the one hand, and so-called “Heritage Americans” on the other. I do not mean to say that these terms are accurate, or the ones I would choose; but they have become widely used and widely recognized, and one must, in the end, speak the language that others use. Nor do the two positions yet have canonical formulations, so we will have to do the best we can with broad outlines while noting the ambiguities of each view.
The debate concerns, in essence, the nature of citizenship; from this basic disagreement other questions flow. For creedal Americans, citizenship is adhe…
Our public sphere is consumed with debates between so-called “creedal Americans” on the one hand, and so-called “Heritage Americans” on the other. I do not mean to say that these terms are accurate, or the ones I would choose; but they have become widely used and widely recognized, and one must, in the end, speak the language that others use. Nor do the two positions yet have canonical formulations, so we will have to do the best we can with broad outlines while noting the ambiguities of each view.
The debate concerns, in essence, the nature of citizenship; from this basic disagreement other questions flow. For creedal Americans, citizenship is adherence to a core set of abstract commitments — to the Constitution and constitutionalism, to liberty, to equality, to meritocracy — that, in principle, any immigrant from any culture or faith might subscribe to, so long as respect for the equal rights of others are maintained. On this view, there is nothing contrary to justice, although it may be in bad taste, when an immigrant like Ilhan Omar comes to the United States, becomes a naturalized citizen, and — so long as she obeys the positive law and respects the legal liberty of others — rails against the evils of America, its ancestral history and its substantive heritage. For Heritage Americans, by contrast, the nation is a real, organic, pre-legal entity, a natural and historical people bearing a particular Christian culture with particular folkways and traditions. They point to the language of the Constitution’s preamble, in which “We the People” adopt the Constitution “for ourselves and our posterity,” not merely for anyone who may come along.
Bad arguments proliferate in this debate. (My favorite, just as a connoisseur of silliness, is the argument that Heritage Americans want in effect to impose “titles of nobility.” In its distilled form the point of the Heritage-American argument, right or wrong, is precisely the opposite. It is that the whole body of the citizen-people ought to consist of Heritage-Americans, without internal differentiations of privilege — a radically republican rather than an aristocratic view). Thus each camp is on its strongest ground when pointing out the flaws of the other view and its absurd consequences.
Creedal Americans ask whether the Heritage American view really is strictly based on descent by blood from some family existing at some point of reference in the past, such as the founding era (Heritage Americans are ambiguous, or divided, on this point). Creedal Americans point out, plausibly, that it seems absurd to say that a necessary condition of American-ness is biological descent from, for example, anyone present in the United States in (say) 1776. Is a Chinese-American whose ancestors arrived in the 1850s and fought in the Civil War, and whose family has lived here ever since, not fully American? What about those Hispanic-Americans whose ancestors lived for many centuries in lands of the Spanish Empire that were incorporated into the United States in the 19th or early 20th centuries?
On the other hand, Heritage Americans argue with great force that adherence to a creed of abstract universalist commitments cannot be either a necessary or sufficient condition of American-ness. On the heritage view, it cannot be a sufficient condition because passing a citizenship test and even swearing allegiance to the Constitution (at least the Constitution as interpreted by universalist liberalism) does not, by itself, an American make, except in the thinnest positive-law sense. There must in some deeper way be inculturation that adheres the immigrant to the concrete nation and its actually existing culture, to its way of life and its story as a people. Creedal commitment, on the other hand, cannot be a necessary condition of American-ness because any number of Heritage Americans have in one way or another denied the supposed creed, yet even on the creedal view they remain wayward children of America, rather than not really being Americans at all. No one seriously proposes to somehow expel all natural-born citizens who deny the supposed creed (were that even legally possible), or even to denaturalize all naturalized citizens who do so. The creedal logic is not even taken seriously by its own proponents.
Ambitiously, I want to offer an analogy from the classical law that provides a third way, neither the creedal view nor the heritage view, although retaining some of the best elements of both. In the existing discourse, a third way is offered by Aquinas’ admonition that
when any foreigners wished to be admitted entirely to their fellowship and mode of worship … a certain order was observed. For they were not at once admitted to citizenship: just as it was law with some nations that no one was deemed a citizen except after two or three generations…. The reason for this was that if foreigners were allowed to meddle with the affairs of a nation as soon as they settled down in its midst, many dangers might occur, since the foreigners not yet having the common good firmly at heart might attempt something hurtful to the people.
What I suggest is different. Although broadly in the spirit of Aquinas’ two-or-three generations test insofar as it emphasizes the duties rather than the rights of immigrants who becomes citizens, it is derived not from theological principles but from a civil-law analogy — an analogy to the Roman law of adoption. After all, inclusion within “our posterity” may ordinarily arise not only through natural descent, but through legal adoption. In brief, I suggest that the legal immigrant should understand himself as an adopted son of a natural and concretely existing family, the American family, and this brings with it particular duties of filial piety and reverence for that particular family and for its thick heritage and traditions. Our laws as made, interpreted and applied should reflect that understanding as well.
Because it is an analogy, not an identity, what I propose is not a set of legal rules to be directly mapped from Roman law into the American legal system. Rather it is a suggestion that the Roman law of adoption rested on a set of discernible principles of legal justice and political morality that represent the spirit of the laws bearing on immigration and citizenship in America — a time-honored mode of legal interpretation here, albeit not an originalist mode. Such principles should affect the interpretation of actually existing legal texts, rules, and doctrines; they should be understood as the soul of our law of citizenship. Needless to say, this does not answer or even purport to speak to all questions bearing on immigration. I do not speak here, for example, to the enforcement of the immigration laws against illegal immigrants, or to prospective questions of policy about exactly how much legal immigration, if any, there should be, and from where. All I address is the question what principles of legal justice and political duty apply, under existing law, to the immigrant who is already here legally. To that end I suggest a conceptual model for understanding the role and obligations of that immigrant — what justice classically understood requires of him.
The Roman law bearing on adoption was complex, to say the least, and for my purposes here I will omit certain details and historical texture that a specialist would mention. There was a basic distinction between adoption and adrogation (D. 1.7.1; Inst. 1.11.1), the former applying to adopted persons who were alieni iuris, or under the legal power of another paterfamilias, transferring them to a new household, whereas the latter applied to those sui iuris, not in the power of another household. The two forms of adoption required somewhat different processes by the imperial period, the former being effected by application to a magistrate, the latter by imperial rescript. In certain cases, the law required an inquiry into the motives or at least stated reasons for the adoption or abrogation. A recurring concern of the law, for example, is whether the adrogator is capable of having his own children1 — the thought being that if he is, that method is to be preferred, a thought with obvious analogical relevance to those who minimize concerns over the declining national birth rate while advocating increased immigration as a solution for that very problem. And the law is concerned about the effect of adoption or adrogation on existing children of the family whose inheritance would thereby be diluted — a point with obvious analogical relevance to the current debate, taking “inheritance” in its broadest sense.2
A basic point common to both adoption and adrogation, however, was that an adopted child was for most (not all) purposes treated by the law as equivalent to a legitimate biological child. “An adoptive child is in most respects in the same position, as regards the father, as a natural child born in lawful wedlock” (Inst. 1.11.8). As such, the adopted or abrogated person acceded not only to rights, but to certain particular natural and legal duties — crucially including substantive and special duties to the particular natural family into which he was adopted, over and above the general legal duties that applied to all Roman citizens. Most fundamentally and most simply put, the adopted child, like the natural and legitimate child, owed certain duties of filial pietas (piety), reverentia (reverence) and obsequium (obedience) to the parents of the family, and more broadly a duty of respect, loyalty and support to the family and to the gens (clan) from which the family derived. As a scholar of Roman family law puts it:
Children also were bound by filial duty and respect not to abuse or malign their parents. To treat a parent disrespectfully merited punishment at the hands of Roman authorities…. Proper behavior towards parents included obsequium, the obedience owed by children to parents and freedmen to patrons … and reverentia, submissive respect…. [Furthermore], it was a clear breach of pietas for a child to take his or her parents to court.
These background principles, although not necessarily enforceable in and of themselves in the imperial period (in part because the law disfavored litigation between parents and children), informed the creation and interpretation of enforceable duties such as alimenta, the reciprocal duty of parents and children to support one another. As the Code puts it (C. 5.25.1), in virtue of a rescript of Antoninus Pius, “It is but just that children should relieve the necessities of their relatives in the ascending line.” Pietas, reverentia and obsequium also had broader quasi-religious connotations bearing on duty to maintain the ancestral rites and family cult (sacra privata), especially in earlier periods, although over time these tended to become more secular and material. By the imperial period these principles created no direct legal duty as such, but filial pietas, reverentia and obsequium were very much taken to be background principles indirectly informing the interpretation and application of the law. The child, natural or adopted, was understood as having an obligation or expectation — both moral and, at least indirectly, legal — to maintain the ancestral legacy, in both a material and moral sense.
The analogy, then, is that the naturalized citizen-immigrant is like an adopted child of the American family, with corresponding duties. Like the Roman adoptee, or adrogatee, the citizen-immigrant owes, fundamentally, special duties of filial piety and reverence to the American family — to the actually existing, concrete American family, its ancestors and traditions, not merely to abstractions of universal principle common to all, such as respect for legality and liberty. The adopted child of the American family ought — “ought” in both a moral sense and in the sense of respect for legal justice and the spirit of the law — to uphold, reverence and maintain the substantive traditions and ancestral cult of that concrete, actually existing family, with its particular traditions and history.
These special and particular duties to the American family and its traditions run well beyond mere observance of universalist principles. Rather the immigrant should celebrate the particular heritage, political and civil and religious, of the American family, not because he is descended from that family by blood, but because he is made a child of that family by law in its richest sense, the embodiment of general legal justice in the concrete order of a polity. He should be an enthusiastic participant in the thick civic rituals of a culturally Christian nation, with its own distinctive customs and history; he should celebrate Thanksgiving and Christmas and the Fourth of July; he should remember the fallen, who gave their blood for the nation, on Memorial Day, and those who were willing to do so on Veterans’ Day; he should honor the great Presidents who shaped the conduct of our nation, its great legislators and judges. He must not say, even to himself, “all of that history happened before I got here; it has nothing to do with me and mine; we are free to wield our rights however we like, free to do as we like within the minimum boundaries of the positive law.” In contrast to Ilhan Omar and her kind, he must not assume that because he has the right legal status in the thin positive-law sense, he is free to spew venom at the American ancestors who built the very framework of society and legality that now protects his speech, his livelihood, and his very life.
For the immigrant to denigrate the heritage, culture and history of the very nation that opened its doors to him, to neglect or to belittle the ancestral cult of the very family has granted him the privilege of being counted by the law as their child, is in a substantive sense for the immigrant to self-denaturalize. He thereby forfeits the privilege of being treated as though he is a natural child of the American family. Such principles of legal justice can and should make up the spirit that informs the interpretation of our laws, such as the provision (18 U.S.C. 1425(a)) that establishes penalties for anyone who “knowingly procures or attempts to procure, contrary to law, the naturalization of any person” (my emphasis), including the immigrant himself; or the provision (8 U.S.C. 1451) allowing de-naturalization of those who, within five years of naturalization, “become a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have precluded such person from naturalization,” because such membership or affiliation is “prima facie evidence that such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization.” When interpreting such provisions, executive officers and judges ought not read them in a cramped and strictly positivist way, but in a way that captures the point and spirit of citizenship-as-adoption.
Unlike the heritage view, at least in its purest form, the model of adoption I have offered from the principles of Roman law does not say that the right sort of descent by blood is necessary to be fully American. But, unlike the pure form of the creedal view, this model also understands that it may be harmful for a natural family to take in too many adopted children at once — a concern analogous to Roman scrutiny of adrogations that might unduly burden an existing household (cf. D. 1.7.15, which admonishes against adrogating several children). Most of all, it understands that the adopted child of the American family who appoints himself a mere critic or even a political enemy of the traditions, the culture, and the very substance of that family and its history, has violated the filial obligations of pietas and reverentia, and is thus no true American at all. In this sense, our law and its interpretation should reflect what being an American really means.
“In cases of adrogatio, the scrutiny of the court is directed to the question whether perhaps the adrogator is less than sixty years old, because then he should rather be attending to begetting his own children ….” D. 1.7.15; see also 1.7.17, expressing the same concern in a different context. (All translation of the Digest is quoted from the edition by Alan Watson and collaborators).
“Furthermore, it has to be considered whether someone with one or more children of his own ought to be refused permission to adopt another, lest it should turn out either that those children whom he begot in lawful wedlock suffer a diminution in expectations of the kind which every child may build up by obsequium (dutiful conduct)….” D. 1.1.17.
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