Bryan Caplan argues that conservatives believe the state is an all-powerful “overlord” channeling the will of the voters – but only when they talk about immigration. Chapman University Prof. John Eastman’s* WSJ Letter to the Editor gives a perfect example. Breeze past the body of his argument (he claims the 14th amendment does not grant birthright citizenship) to the conclusion:
The Citizenship Clause actually codifies the Lockean view of government articulated in the Declaration of Independence, namely, that legitimate government is grounded in the consent of the governed. That philosophical principle rejects the old feudal notion that anyone born on the King’s soil is forever the subject of the King. Mutual consent is what makes citizens, not the illegal actions of those who try to demand it unilaterally.
Eastman is referring to Locke’s “social contract”. A social contract is nearly the opposite of a contract. Contracts require that participants actually agree to bind themselves. The social contract, on the other hand, is binding whether or not you explicitly agree to it. A private party cannot force you into an actual contract by threat of violence – this would be duress. But if you do not wish to enter into the social contract, you must, supposedly, flee.
Locke’s discussion of tacit and explicit consent leads everyone astray. It should not be taken seriously. Few people, citizen or immigrant, ever truly consent to an unconstrained leviathan. Participating in democracy is not consent, any more than a contract you were forced to enter against your will would be consensual, if you got to vote on some of its terms with 300 million other people afterward. Even the Pledge of Allegiance fails under traditional contract doctrine – there is no consideration (exchange) – unless it is loyalty in exchange for “liberty and justice for all”.
Locke does not believe that the fictional social contract creates an omnipotent government. In order for the social contract to have a hint of legitimacy, it needs to represent at least what people would have agreed to willfully and without duress. Locke believes that people have a natural right to hold and use property free from the interference of others. Locke supposes that people would contract away (only) their individual right to protect their other rights, and only for the purpose of allowing the state to do so more efficiently. He explicitly and repeatedly insists that government acts illegitimately if it intentionally violates property rights.
Any state that intentionally prohibits “landlords, grocers, and employers” (as Bryan Caplan puts it) from doing business with immigrants is violating their property rights. Immigration restrictions violate the moral conception of the social contract. The social contract that allows immigration restrictions is the one where citizens give up their rights. Not Locke’s social contract, but the Leviathan of Hobbes.
* I assume John Eastman is a conservative because he takes the conservative line on immigration. Don’t dwell on the circularity.