Critiques of the Michael Anton op-ed against birthright citizenship and jus soli have rightly focused on the fraudulent use of sources and on, well, all the racism.

But that shouldn't lead us too neglect this part.

(It's time for some political theory.) 1/

Metaphors of compact, contract, and consent run deep in a lot of modern political ideologies.

They are also, in the context of the modern state, always false.

The overwhelming majority of subjects of modern states never consented.
No state has valid contractual beginnings. 2/

See David Hume. http://www.constitution.org/dh/origcont.htm  3/

Because it's always false, it's prone to wild intellectual abuse. It's like introducing a division by zero in the middle of a proof. Once you've snuck that in, any subsequent result is possible. 4/

I argued here that Justice Kennedy did this kind of thing with respect to US Indian tribal law, holding tribes to a standard of consent which they couldn't meet, while pretending that there had been universal meaningful valid consent to the US govt. 5/

https://drive.google.com/file/d/0BxwJ7kjwYA7FWnJESjM2MEJZWnM/view

Because we haven't actually consented, one of two paths is taken. Either we conclude that there is no duty to obey, no legitimate government, or (since that seems to lead to unacceptable consequences) consent is imagined and imputed. 6/

"Man is born free, but everywhere he is in chains." But Rousseau doesn't propose to *break* the chains. He instead proposes to *make the fact of being chained legitimate,* by imputing consent, subordinating individual wills to the general will. That's social contract theory. 7/

It either holds out too demanding a standard for obedience and legitimacy, one that no state ever meets... or else it lies to us and tells us that *we have chosen* the conditions of being ruled. It usually appears to do the first before sliding into the second. 8/

Now, if all that's true about the problems of individuals' duties to obey, their allegiance to the state, the state's legitimate jurisdiction, it is *very much more* true with respect to the boundaries of the "people." (We're getting to Anton, I promise.) 9/

Contract/ compact/ consent *cannot* solve the problem of dividing the world up into discrete communities, nations, peoples, states. Who is asked for their consent? Does each person consent to the inclusion of every other person? 10/

These theories always just assume there are coherent and discrete "peoples" lying around, and they can get together and agree on something political.

The division by zero here is a *powerful* tool for both forced inclusion and pernicious exclusion. 11/

(Here are two things I've written about this part of the problem over the years. http://journals.sagepub.com/doi/abs/10.1177/0090591708329668 http://journals.sagepub.com/doi/abs/10.1177/1474885117718371 ) 12/

Anton holds up an absurd standard: "those who have consented to its terms" (this is really no one except *maybe* naturalized citizens) "and whose membership has been consented to by all other citizen-members" (literally no one, ever). 13/

Having done so, he's free to make up any nonsensical boundaries he wishes. He can hold undocumented immigrants' children to the standard "is there universal consent to this person becoming a citizen"-- obviously not! 14/

But he smuggles in the idea that most people who are already inside the community he imagines *do* meet that standard, which requires either an ethnonationalist prepolitical "people" that consented all at once or else the tricks of imputed and tacit consent. 15/

Using the combination of a real consent standard on one side and imputed consent on the other, you can apparently justify any community boundaries, however exclusive and restrictive, and however coercive of internal dissidents.

It's a trick. It's a lie. It's a fraud.
16/

Under a common standard, we are all in a political world mostly not of our own making, and we all share it with other people who are not of our own choosing.

17/

Doesn't mean there can't be bounded communities. But it does mean that we should not over-moralize those boundaries. We should accept their contingency, their roots in facts, power, injustice. ("Usurpation or conquest," in Hume's words.) 18/

And we should absolutely not engage in Anton's kind of lie, which simultaneously claims a false legitimacy and unity among existing insiders and puts up a normative wall against outsiders. /fin

PS: One more thing I've written on these themes.

http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198795452.001.0001/acprof-9780198795452-chapter-4