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What If Justice Demands Open Borders?

Friday, May 13, 2011

Why do we cling to the myth that anyone can get in line and come to America? Mostly because our values demand it.

History shows… that the West has no model of economic development to offer the still-poor countries of the world. There is no simple economic medicine that will guarantee growth, and even complicated economic surgery offers no clear prospect of relief for societies afflicted with poverty... The only policy the West could pursue that will ensure gains for at least some of the poor of the Third World is to liberalize immigration from these countries…. each extra migrant admitted to the emerald cities of the advanced world is one more person guaranteed a better material lifestyle.
A Farewell to Alms, Gregory Clark

I don’t believe the United States of America should be in the business of separating families. That’s not right. That’s not who we are. We can do better than that.
— President Barack Obama

It was a speech the country needed to hear, yet it was full of the same old evasions.

Americans want to see themselves as a country open to immigration, a country, as in President Obama’s remarks this week, where “anyone can write the next chapter in our story,” where “what matters… is that you believe that all of us are created equal, endowed by our Creator with certain inalienable rights,” and where “in embracing America, you can become American.”

But the law states otherwise. As Obama said, “as long as current laws are on the books, it’s not just hardened felons who are subject to removal, but sometimes families who are just trying to earn a living, or bright, eager students, or decent people with the best of intentions.”

What he did not mention is that most people who apply for visas do not get them, and, anticipating this, most people who would like to come do not bother to apply. Gallup polls have found that one-quarter of the world’s population wishes to migrate, and 165 million wish to come to the United States. Only 35 million immigrants live in America. Why don’t the rest come?

Because they can’t.

Why do we cling to this myth that anyone can get in line and come to America?

“In general,” according to the State Department, “to be eligible to apply for an immigrant visa, a foreign citizen must be sponsored by a U.S. citizen relative(s), U.S. lawful permanent resident, or by a prospective employer.” Even if you have that, you are likely to be rejected, particularly those seeking employment visas, of which far fewer are available than demanded. Those without sponsorship can apply only for the diversity visas lottery, with odds of admission at just over 1 percent from Europe and Africa and under 0.5 percent from Asia.

So it’s not correct to say “anyone can write the next chapter of our story.” Only for a favored few is legal immigration an option.

Yet we don’t like to admit this, so Obama repeated the myth that illegal, undocumented immigrants have “cut in front of the line.” This assertion pretends there is a line, and all any willing migrant has to do is wait his turn. This pretends there is a recognized right to migrate, and potential immigrants only face some administrative delays in exercising it.

But the presupposition is false, and it makes little sense to blame someone for cutting in line when legal immigration was never an option for him.

Prudence requires that open borders be coupled with denying welfare benefits to (most of) the foreign-born.

Why do we cling to this myth that anyone can get in line and come to America? Mostly because our values demand it. We aspire to be a country of “liberty and justice for all.” To accept frankly that some people are excluded from America for life because of their place of birth would make nonsense of this claim. So we try to forget about them.

President Obama, and most Americans, want to find a happy medium. We want to be a place where “anyone can write the next chapter in our history;” and yet we want to accept only the “best and brightest.” We want to be humane to those already here illegally, without creating incentives for more to come. But that happy medium doesn’t exist.

We can persist with the present muddle, in which people break the laws on a large scale because they benefit by doing so. Or we could try to close the borders and do whatever it takes—abandoning all scruples about inalienable rights and liberty and justice for all— and figure out some way to redefine what it is to be American that does not depend on our historic ideals.

Or we could try a third option: resolutely examine what those ideals really demand of us, and do that, even if means changing a lot of bad habits and taking a few risks.

Migration and the Lockean Tradition

Obama described America as “a nation of laws,” but what is law? The American form of government emerged from a tradition of moral and political thought of which two of the most eminent representatives are Thomas Jefferson (1743-1826) and John Locke (1632-1704), but which has roots going back to the High Middle Ages, to scholars of canon law like Gratian, scribbling in cold monastic scriptoria.

In this tradition, certain basic imperatives of conscience and common sense (do not kill, steal, etc.) are distilled into the idea of natural rights, or natural law (ius naturale). Ethics informs politics, and in time it came to be seen that “to secure [natural] rights” is the only valid reason that “governments are instituted among men,” and that they “derive their just powers [only] from the consent of the governed,” as the Declaration of Independence states. It follows that a government cannot justly make any law it wants. Positive law must conform to natural law.

The social contract is more than a mere myth, yet it is not quite a fact.

While the tradition of Locke and Jefferson can adapt to new times, and can critique itself and make discoveries, both philosophers were right to affirm the primacy of natural rights, to believe that the task of governments is to protect them, and to found the legitimacy of government on the consent of the governed in the form of a social contract.

The social contract is more than a mere myth, yet it is not quite a fact. The consensual roots of the governments of the English-speaking world go back to medieval feudalism, with its vertical bonds between suzerains and vassals established by ceremonies and oaths; and even further back, to the deference which the last Roman emperors, and many subsequent secular rulers, paid to that great voluntary institution, the Christian church.

Yet few, if any, alive today have ever signed a social contract. Nor should consent be identified too closely with democracy, because democratic governments can violate human rights, too, and they are not justified in doing so just because they have majority support.

Is it just to tax people more just because of their place of birth? It cannot be more unjust than to shut them out altogether.

If “government by the consent of the governed” is an unattainable ideal, however, that does not make it irrelevant. It is a standard of justice, to which some policies, and some regimes, are closer than others.

One lesson to take from the Lockean tradition is the imperative for freedom of migration. A country must not prevent peaceful migration by force, because migrants are not violating natural law. They are violating no one’s natural rights. They have committed no violence against persons or property. They are pursuing happiness, without threatening the lives or liberties of others. Coercion against them has no justification if governments are instituted among men to secure inalienable natural rights.

In the 19th century, before the liberal tradition of Locke and Jefferson was partially eclipsed by relatively illiberal political philosophies, the open borders policy implied by these basic ethical facts was actually practiced, for the most part, in the United States and Western Europe. As historian Harold James recalls:

Above all, people moved. They did not need passports. There were hardly any debates about citizenship. In a search for freedom, security, and prosperity… the peoples of Europe and Asia left their homes and took often uncomfortable journeys by rail and by ship, often as part of gigantic human treks. Between 1871 and 1915, 36 million people left Europe.1

World War I and the age of fascism and communism put an end to 19th-century freedom of mobility, but the way politicians talk about immigration, and the way a decent society treats illegal immigrants, show that we still know right from wrong. We don’t want our politicians to tell us that most human beings born into this world are permanently excluded from our country.

Most Americans seem to have more qualms about reporting illegal immigrants to the police, especially those with families or who came here as children, than about doing business or making friends with them. Our immigration laws are like the Prohibition laws of the 1920s. They are a scandal, not only because they are widely disobeyed, but because they are widely disobeyed by normal, decent people. And that is because they have no basis in natural law.

Advocates of immigration restrictions tacitly borrow from another political tradition, from the 17th-century English philosopher, Thomas Hobbes, spokesman for arbitrary and absolute power. Hobbes, long dead, is still with us in disguise. He has taken the form of a word, sovereignty, the uses of which encapsulates his philosophy and sustains his influence. Hobbes and the contemporary proponents of sovereignty relegate natural law to the background, or simply ignore or deny it.

The Hobbesian tradition tells people to obey sovereign governments, no matter what. By contrast, the Lockean tradition affirms that sometimes governments ought to be resisted. As one representative of the Lockean tradition, Martin Luther King Jr., argued:

One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality… Thus it is that I can urge men to obey the 1954 decision of the Supreme Court [desegregating the schools], for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

We have treated King in the usual manner of prophets, honoring him after he is killed, but often ignoring what he said. Yet his words are directly applicable to immigration. Laws against migration, unlike laws against murder or theft, are not rooted in eternal and natural law, and they do not uplift personality.

Open Borders with Migration Taxes Could Benefit All

Many find the idea of open borders quixotic, even though it worked well in the 19th century. Why not now?

Migration tax proceeds could finance payments to the least skilled natives to offset wage losses due to immigration.

One argument is that today’s immigrants are not assimilating as fast as those in the past. In fact, most are assimilating faster. This is all the more remarkable given that current policies discourage assimilation, by leaving many immigrants unsure of whether they will be allowed to stay, and by ensuring that a larger share of immigrants arrive from physically adjacent Mexico and Latin America, and have the option of speaking to each other in Spanish. Open borders would draw a more diverse influx of immigrants, among whom English would be the only common language. With English becoming ever more dominant worldwide, and American culture penetrating every corner of the globe, assimilating immigrants could be easier than ever.

Another response is that we did not have a welfare state then, and now we do. Milton Friedman said, “You cannot simultaneously have free immigration and a welfare state.” That is true if immigrants have full access to welfare benefits. So prudence requires that open borders be coupled with denying welfare benefits to (most of) the foreign-born.

Moreover, the government could also tax migration, as advocated by Nobel Prize-winning economist Gary Becker. There has been an ongoing debate about the fiscal effects of immigration. The latest finding seems to be that “there is no strong fiscal case for or against sustained large-scale immigration.” With migration taxes, however, we could ensure that the fiscal effects of immigration are favorable.

But what about justice? Is it just to tax people more just because of their place of birth? It cannot be more unjust than to shut them out altogether. Immigration, like free trade, has its winners and losers. Migration taxes of the kind Becker advocates can tax the winners to compensate the losers.

Open borders would lead to more inequality and visible poverty in the United States. But the great injustice in today’s world is not economic inequality within countries, which partly reflects people’s effort and choices, but economic inequality between countries, which is larger, and which guarantees some people a relatively comfortable life from birth, irrespective of their merits and efforts, while trapping others in desperate poverty.

This Stimulus Would Work

Far from being quixotic, immigration reform could be just what the economy needs.

Immigrants are “stealing our jobs,” critics say. The truth is that most workers cannot substitute for one another. Their skills, locations, habits, and relationships are too different. Deporting an illegal immigrant might just mean one less job in the economy. It might mean two less jobs in the economy: the illegal immigrant’s, and the manager or coworker whose work was complementary with his. It all depends. There is not much reason, theoretical or empirical, to think illegal immigration affects the employment rate of natives one way or the other.

Our immigration laws are like the Prohibition laws of the 1920s. They are a scandal, not only because they are widely disobeyed, but because they are widely disobeyed by normal, decent people.

A more powerful argument is that immigration undermines the incomes of natives. But this is not altogether supported by the facts, either. Gianmarco Ottaviano and Giovanni Peri found that immigration has had a positive effect on the wages of most natives; but it does have small negative effects on high-school dropouts. Others have also found negative effects of immigration on the wages of the least skilled workers. Migration tax proceeds could finance payments to the least skilled natives to offset wage losses due to immigration.

From the perspective of economic theory, the effect of immigration on employment and wages is ambiguous, but the effect on housing prices is clear. The supply of land is fixed. While developers can convert farmland to suburban land, the territory of a given city center is a fundamentally scarce resource. Since immigrants need to live somewhere, immigration increases demand for housing and raises prices. Immigration reform will help housing prices recover. A house price recovery would help people with underwater mortgages get out of debt and would encourage consumer spending.

If a depressed housing sector is one of the country’s biggest short-run problems, its big long-run problem is that the government is broke. Projected revenues fall far short of covering projected costs. Open borders would mean more taxpayers to help pay for America’s debts, mitigating uncertainty about where the future tax burden will fall.

Do the Right Thing

Since 2008, there seems to be a feeling that the United States is in decline, that a great stagnation has set in, that Americans’ customary optimism is obsolete. One antidote to this declinism can be found in the ideal expressed on the Statue of Liberty:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
Send these, the homeless, the tempest-tossed to me,
I lift my lamp beside the golden door.

That famous poem remains part of American patriotic mythology, even after a hundred years of immigration restrictions have been betraying it.

Of course, it is not the first time that an American ideal has remained latent for generations. Americans took pride in the Declaration of Independence’s valiant pronouncement that “all men are created equal” through generations of slavery and segregation. At long last, though, the dream won through. So there is hope—including for those tempest-tossed beside the golden door.

Nathan Smith is the author of Principles of a Free Society. He blogs at The Free Thinker.

FURTHER READING: Andrew Biggs explains “Why Immigration Can’t Save Social Security,” Michael Barone discusses “An Immigration Tipping Point” and Scott Shane writes “Give Me Your Tired, Your Poor, Your Entrepreneurs.” Nicholas Eberstadt reveals “World Population Prospects and the Global Economic Outlook,” Gerard Alexander says “Conservatism Does Not Equal Racism. So Why Do Many Liberals Assume It Does?” and Jonah Goldberg writes “Is Arizona Law Still Wrong if It Works?”


1.    The End of Globalization, Kindle edition, locations 165-172.

Image by Rob Green/Bergman Group.

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