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The Burden of National Identity

Early Americans identified themselves as citizens of their own states more so than as citizens of the United States. George Washington, James Madison, Thomas Jefferson, James Monroe, Patrick Henry, and George Mason were Virginians before they were Americans. John C. Calhoun surely was a South Carolinian before he was an American. The tide began to shift following the Civil War and the ratification of the Fourteenth Amendment, which declared that, in addition to being citizens of their own states, “All persons born or naturalized in the United States…are citizens of the United States.” State identity is weaker today, and most people consider themselves Americans first, and residents of a particular state or locality second.

The immigration policy debate of the last few years has placed a new spin on the matter of identity. With more than ten million illegal immigrants living in the United States today, some people are trying to figure out who is an American and who is not. To that end, Senators Charles Schumer and Lindsey Graham have proposed “a national biometric identification card all American workers would eventually be required to obtain.” The initial idea is that employers will be able to avoid hiring illegal immigrants if they do not have the proper identification card, which would be equipped with more security features than current social security cards. Identification based on this card is supposed to be easier for employers than the current, optional, online verification system called E-Verify.

Proposals for national ID cards raise the ire of groups like the American Civil Liberties Union and the Cato Institute. Opponents often have a difficult time enunciating reasons for their position, but rationales usually revolve around slippery slope concerns that limited identification requirements will expand to some more broad and egregious policy. An ACLU attorney spent most of his quotation describing the program and calling it “fundamentally a massive invasion of people’s privacy,” while Cato’s policy director alluded to Kafka. It is hard to get at just why a new national ID card is so bad, especially when we already have social security cards, driver’s licenses, and passports. Critics persist, however, discussing “internal enforcement” and alluding to East German checkpoints.

Proponents appear to respond to the critics’ immediate concerns easily, but they too lack some necessary answers. First is the issue of counterfeiting. Quite simply, if something can be made, it can be counterfeited, especially if there is enough at stake. With prospective immigrants literally risking life, limb, and all of their resources to enter and work in the United States, the existence of a valuable market for these cards seems obvious. Second, it is not clear that card-based verification will be easier for employers than the E-Verify system. Will an orchard owner or industrial plant manager be able to interpret accurately the biometric information on a presented card in less time and at less cost than use of E-Verify requires? According to Schumer, card scanners cost $800. Without a scanner, the employer would have to bring the prospective hire to a government office for review of the information.

With both sides having difficulty answering these and other basic questions, resolution seems like a challenge. Allocating burdens, however, may clarify the situation. If it’s right that the government needs to be able to justify its actions before taking them, it’s appropriate for the legislative proponents to bear the burden of justification in this policy debate. In other words, Schumer and Graham should have to demonstrate the necessity and value of their proposal first. They must respond to their critics, but a mere dismissal of opponents’ fears is insufficient. Until they show, with adequate specificity, why a national ID card is necessary, and answer challenges, including those about counterfeiting and alternatives like E-Verify, opponents cannot be expected to present adequate critiques. Legislators who want the new identification program must be prepared to be the first movers. Only then can we expect specificity from their opponents.

An ongoing Wall Street Journal poll currently shows more than fifty-five percent of those voting oppose issuance of a national biometric identification card to all American workers, including eligible immigrants. Feel free to cast your vote in the poll below on the broader question of national IDs and include your thoughts in the comment section.

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  1. AD
    May 1, 2010 at 2:38 pm

    Attorney and former Department of Homeland Security Assistant Secretary for Policy Stewart A. Baker wrote yesterday that he can’t understand the opposition to a secure, national identification card, outside of those who simply don’t want to enforce immigration laws.

    “It’s not an especially persuasive rebuttal to shout ‘papers, please’ in a bad German accent. We show our ‘papers’ every time we fly and every time we undergo a traffic stop. It’s just that the papers we show aren’t very secure. Is there a privacy right to carry only insecure, ineffective ID? And does the right to carry bad ID really outweigh the privacy lost by victims of identity theft — increasingly a crime being committed by illegal workers to evade electronic social security checks?”

    The full text of Baker’s short post is available at http://volokh.com/2010/04/30/words-i-never-expected-to-write/

  2. AD
    January 10, 2011 at 12:20 pm

    A reader forwarded a story today that reports that President Obama plans to authorize the Commerce Department to create for all Americans “an Internet ID.” According to Commerce Secretary Gary Locke, this is not a national ID card:

    “We are not talking about a national ID card. We are not talking about a government-controlled system. What we are talking about is enhancing online security and privacy and reducing and perhaps even eliminating the need to memorize a dozen passwords, through creation and use of more trusted digital identities.”

    What the “Internet ID” is, however, remains unclear. “Details about the ‘trusted identity’ project are unusually scarce. Last year’s announcement referenced a possible forthcoming smart card or digital certificate that would prove that online users are who they say they are. These digital IDs would be offered to consumers by online vendors for financial transactions.” Even so, White House Cybersecurity Coordinator Howard Schmidt “stressed today that anonymity and pseudonymity will remain possible on the Internet. ‘I don’t have to get a credential if I don’t want to,’ he said. There’s no chance that ‘a centralized database will emerge,’ and ‘we need the private sector to lead the implementation of this.'” Even so, Laura June, author of the forwarded story, is skeptical: ” Sorry, Locke, sounds like a national ID system to us.”

    The forwarded story, from Engadget, is available here, and the CBS News story, quoted here, on which it’s based is available here.

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