(From a forthcoming piece tentatively entitled “The Law of Nations: Its Loss and Recovery as the Way Forward”)
NATURAL LAW VS IDEOLOGY: THE STRUGGLE IN THE AMERICAN HEART
The struggle in the American heart between the Natural Law and an ideology began almost immediately after winning the American Revolution. Its first flashpoint concerned the existence and continuation of a people — the American people, an ethnic entity, a nation. Having read Vattel, the Founders were inculcated with the idea that the polity was one people which did not account for different peoples or nations within the borders of the United States. This was a convenient, if not also helpful way in solidifying the new identity as Americans because the new country was comprised of thirteen states and within those states were a variety of different peoples, though they were all from England, Scotland, Holland, Ireland, and Germany, or could claim descent from such. The only exception – the Negroes, most of whom were slaves – did not really count because they were considered property and did not form the new country, though they were a part of it.
John Jay in Federalist II issued on October 31, 1787 explained the American people:
“With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people – a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.”[1]
This was the Natural Law at work. The Founding generation sought to preserve that commonality. This took the form of the Naturalization Act of March 26, 1790, which was passed in the First Session of the First Congress. That act restricted immigration to Whites, which everyone knew then and knows now means people of European extraction:
“…any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States.”[2]
Revisions were made years later and so there was passed, by the Founding Generation, another Naturalization bill that was very similar, and was passed by the United States Congress on January 29, 1795. It stated in relevant part: “Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise: –…” [3]
George Washington, as the First President, signed these bills into law. He wrote a farewell address on September 17, 1796. In it he set out advice for how to maintain the country, and its union. He also discussed American as an ethnic identity, while clearly stating that this ethnicity was the polity:
“The unity of Government, which constitutes you one people, is also now dear to you….For this you have every inducement of sympathy and interest. Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you, in your national capacity, must always exalt the just pride of Patriotism, more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the Independence and Liberty you possess are the work of joint counsels, and joint efforts, of common dangers, sufferings, and successes.”[4]
Washington’s Farewell Address warned the Americans against being divided by regions, and by implication, by economic interests. It was a warning that stood the test of time as we watched Catholic Joe Biden’s State of the Union Address divide and infuriate Americans and pit one people, one group, against another.
[1] James Madison, Alexander Hamilton, John Jay, The Federalist Papers ed. Isaac Kramnick (Penguin Books, 1987). 91.
[2] H. R. 40, Naturalization Bill, March 4, 1790, Records of the U.S. Senate, National Archives and Records Administration
[3] “Naturalization Acts of 1790 and 1795,” George Washington’s Mount Vernon, https://www.mountvernon.org/education/primary-source-collections/primary-source-collections/article/naturalization-acts-of-1790-and-1795/
[4] George Washington, “Washington’s Farewell Address, 1796,” George Washington: Mount Vernon.