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.
Did you know that nation-level income inequality would drop if the government herded all the poor people onto boats and dropped them off on a distant island?
Kaus responded to criticism:
I’m happy to acknowledge a commitment to moral nationalism. Wilkinson has a plausible but extreme and eccentric libertarian position that we have no moral obligation to help fellow nationals before we help everyone else on the planet, because he views borders as a “global system of socio-economic apartheid.” Well, OK. Let’s vote!
This is a bizarre way to put it. Kaus is not proposing active “help for fellow nationals” – he is proposing coercion and prohibition against desperately poor people in order to manipulate the distribution of domestic wages. Kaus needs to believe both that “we” (who?) should help Americans first and that we should “help” some Americans by depriving immigrants of their freedom to live or work here. Is it legitimate to help (some) Americans by sending soldiers to prohibit poor immigrants from peacefully doing business with consenting American adults? By sending police to hunt them down and drag them away their homes here if they do?
Kaus says he doesn’t really care about incomes, he cares about “social equality”:
I’m interested in income inequality because at the extremes it can undermine social equality, our sense that we are the equal of our fellows. Social equality is not an economic concept.
[Isn’t it better] to live in a series of political subdivisions within which a rule of equal respect conditions all social relations?
Kaus wants rigid arbitrary geographical restrictions on all human beings in order to engineer emotions of “social equality” (I doubt the term has any meaning). Even Kaus’s goal strikes me as a creepy attempt at thought control, but most people don’t share my moral intuitions about this sort of thing. The means to his goal are worse. It would be too depressing to dig up pre-Civil Rights arguments defending racial segregation as a way to ensure “social equality” or “social relations”, but I claim that the injustice is parallel.
Kaus wants to know whether it is “better” to live in a rich society with income inequality, or a poor one without it. Obviously most immigrants seem to prefer wealth, and Kaus hasn’t moved to Africa yet. But why does Kaus think that there needs to be one answer to this question? Discard the notion that the United States is the only “society” worth thinking about, and you realize that people can make their own decisions about what sort of place they want to live in. A society can be as small as your neighborhood, maybe as large as a city. There is no need to “zone” foreigners out of a third of North America.
Since my series on immigration is now finished, I thought it might be useful reposting a linking index for the series. Enjoy!
When I showed a rough draft of this series to a few people, they were confused. They wanted to know why, if I cared so much about rights, I didn’t insist that immigrants get political rights – i.e. citizenship and the vote. The reason is that political rights are not part of my conception of objective moral rights.
One may believe that fundamental justice is either a specific set of principles or a specific procedural system. You cannot, I think, reasonably believe both. I subscribe to a certain set of beliefs about freedom and personal autonomy. I believe laws are legitimate if they respect these things. They are illegitimate if they do not, whether or not they are democratically enacted. The holocaust is not legitimate if people vote for it.
If you believe that legitimacy comes solely from democracy, then you are a democratic fundamentalist. If people can legitimately vote for whatever laws they want, then they can legitimately vote for the holocaust. If you believe that there is a limit to what people can vote for, then there is a principle of legitimacy that is stronger than democracy. I believe that principle is freedom.
The ability to vote is neither necessary nor sufficient for freedom. Denying citizenship does not itself infringe on freedom. Because I believe that legitimacy comes from respecting freedom, freedom-respecting laws would be legitimate even if not everyone were able to vote for them.
Historically, some classical liberals have gone so far as to recommend restriction of the franchise. See, for example, Bastiat. I think Hayek or Milton Friedman may also have questioned the wisdom of allowing those who pay no taxes to vote for redistribution, but I can’t find the quote.
I don’t necessarily agree with Bastiat that it is useful to restrict the franchise. I tentatively agree with the Churchillian view that democracy is the “least bad” form of government. But it does not follow from my moral argument for immigration that immigrants must have citizenship. It would be an unnecessarily controversial argument to make, as I suspect every conservative worries (and every progressive hopes) that a legion of potential Democratic voters is camped outside of the country’s borders.
Ideally, immigration reform would start with nativists getting down on their knees and begging for forgiveness. But it always exceeds a bigot’s imagination that he is one, so I would settle for legal reform alone.
Congress should open America’s borders, grant residency status to all foreigners who apply for it, and grant amnesty (residency) to immigrants who live here illegally now. If Congress wishes, it can attempt to screen immigrants for those that it reasonably suspects intend to harm Americans. This is probably beyond the capacity of the United States government, but the attempt may be politically inevitable.
A less good alternative to open borders, still better than the status quo, would be for Congress to pass a guest worker program that granted temporary resident status to any foreign worker able to find employment. This would allow in all foreigners capable of supporting themselves – those who would not be a burden to the welfare state. Congress could also increase the quotas for permanent resident and worker visas instead of eliminating them altogether.
A less good alternative to amnesty, would be to establish a “pathway to citizenship” that would provide permanent residence status to all illegal immigrants who first voluntarily paid a small fine and temporarily left the country. This is a worse alternative to amnesty because it pointlessly harasses immigrants – a bit like offering freedom to runaway slaves provided that they first briefly returned to their plantations. But it is better than the status quo. Immigrants could of course continue to live illegally in the United States, if they preferred.
What do we not need to do?
We do not need to extend welfare benefits – social security, welfare, public education, or public health care – to immigrants. If immigrants do not have a right to these things outside of our borders, then they need not have a right to them inside of it. It is a marginal improvement to grant immigrants permission to live in our country without welfare benefits. Obviously, illegal immigrants prefer living here without benefits, even illegally, to living in their native countries with them. We do not need to extend the right to vote to immigrants, though I am not convinced that we should not. If immigrants prefer disenfranchised membership in our own society to enfranchised life in the country of their birth, then we should let them have it.
Ultimately, the goal must be to make legal immigration easy, not hard. We should do this not merely because it increases American productivity, not merely because it will allow millions of foreigners to raise themselves out of poverty, but because it is right: it is their right.
My defense of open immigration is mostly an attack against conservatives. But conservatives are not uniformly opposed to a more humane, just, and open immigration policy. An obvious example is the most recent conservative president – George W. Bush. I dislike George W. Bush immensely, partly for his initiative in expanding the welfare state. But I believe that he sincerely wanted to improve immigration laws by creating a guest worker program and a pathway to citizenship for illegal immigrants (i.e. some sort of amnesty). John McCain, hate him or hate him, also worked hard to keep the failed 2006-7 immigration reform push alive. Ronald Reagan famously signed a bill granting amnesty to illegal immigrants.
I suspect that the conservative elite is ahead of its base on immigration. Maybe elites value economic thinking more and support labor mobility. Maybe the elites have broader horizons – they are more cosmopolitan and have more contact with foreigners, so they are less able to ignore their humanity. Maybe conservative politicians are just worried about the future of the conservative party, given a shrinking Caucasian share of the electorate.
Their secret convictions notwithstanding, conservative politicians have failed to make progress in the last few decades. Politicians are professionals at giving voters what they want – so the blame ultimately falls on the conservative base that the politicians are afraid to challenge. Until the conservative base learns to see immigrants as equal human beings, the conservative party will continue its pointless war against foreigners.
Systemic forces are environmental pressures that shape society independent of any individual’s intentions. If human nature is immutably self-serving and human knowledge limited, as conservatives often suppose, then constructive systemic forces are critical for advancing prosperity. The classic example of a productive systemic force is the free market. The free market allows people to transmit information about their preferences, along with incentives for others to meet those preferences, by accepting or rejecting prices. Without any central planning board intending it – without anyone intending it – prices constantly reorganize the entire economy to provide an ever increasing satisfaction of human wants.
When immigration is restricted, two types of positive systemic forces are weakened.
First, immigration restrictions weakens the free market. Wages are one of the most fundamental market prices. High wages signal that a particular job is useful for satisfying a large amount of human wants. When wages are higher for landscapers than for farmers, consumers are signaling that they value the services of an additional landscaper more than that of another farmer. If Mexican workers can migrate freely to America, they can take advantage of the higher landscaping wages, lift themselves out of poverty, and supply a service that Americans value more than additional imported food. Immigration restrictions inhibit the enriching systemic force of wages to draw laborers where they are most valued.
Immigration restrictions also undermine the systemic force of regulatory competition. In a world with free trade and low shipping costs, manufacturing companies will build factories in whatever country has the best business environment. Governments that value the jobs and tax base created by producers are forced to compete to provide a business-friendly regulatory regime. If they do not, businesses will avoid or leave those countries.
More open immigration intensifies regulatory competition. If a government knows its citizens cannot escape, it has more power to weigh those citizens down with bad laws. Governments with the worst laws are always the most eager to make sure their citizens cannot escape – witness the Berlin Wall or North Korea today. In a world where migration was a quick and easy option for all people, governments would have much less power, for example, to place punitively high tax rates on their most productive citizens to fund dangerously wasteful welfare programs.
Just as free trade forces nations to compete to pass good laws for businesses, free immigration would force nations to compete to pass good laws for people. In that sense, it is more important than free trade. By closing off our border, conservatives are undermining the most powerful systemic force for global good governance that could exist. They are disenfranchising people who want to vote with their feet. They are also betraying their own trust in the positive power of systemic forces.
Nativism is an ideological cancer that corrupts the principles conservatives claim to hold dear. In order to defend immigration restrictions, conservatives must embrace arguments that are bitterly antagonistic to their vision of a free and self-responsible society. And when conservatives embrace nativism, they drive away people sympathetic to their independent rhetoric.
First, any broad immigration restrictions will conflict with basic human liberties – the freedom to travel, the freedom to work, and the freedom to choose a place to live will all be infringed. Whatever considerations conservatives use to justify immigration restrictions, they will have to suppose that individual rights are weaker than these considerations. Conservatives may later find themselves incapable of defending supposedly weak rights against restrictions favored by progressives.
This is more than a theoretical problem. The arguments in favor of forced unionization and trade restrictions are almost identical to the “utilitarian” arguments against immigration. In all three cases, arbitrarily restricting the opportunities of some impoverished group – poor immigrants, unemployed workers, poor workers in foreign industries exporting to America – keeps the wages of other American workers higher. These American workers are generally poorer than the consumers who would benefit from freer competition, but they are not as poor as those whose options are limited by regulation. Immigration restrictions create a de facto “American Union”.
Conservatives sometimes try to distinguish these cases by insisting that American liberties are for Americans. Things that can be legitimately done to foreigners cannot be done to Americans. Americans derive certain special rights from their citizenship that foreigners do not. This line of reasoning is antithetical to the traditional natural rights foundation of conservative thought. Consider, for example, the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…
The Declaration of Independence explicitly rejects the doctrine of special American rights. It asserts that all people naturally have equal rights. Governments do not create these rights, they merely protect them. Furthermore, immigrants have no voice over the laws that govern their right to immigrate, so these laws are not “just powers”. By espousing “American Rights”, conservatives have rejected the moral theory of the Declaration.
Instead, they implicitly accept some sort of communitarian ethic – in which rights are not natural, but a creation of the community. Communitarian theories, popular among progressives, insist that rights are the product of, not the constraints on, legitimate democracies, because carefully constructed democratic institutions give people the ability to reason together carefully about difficult moral issues. Conservatives should be very careful before they embrace communitarianism, because it ultimately supplants substantive morality with a supposedly moral process. That process may produce immigration restrictions, but it will just as easily produce gun bans, progressive taxes, and the modern welfare state.
Finally, opposition to immigration makes the conservative movement attractive to people who are not conservatives, but merely bigots. The nature of democracy may lead many conservative voters to unconsciously neglect the moral worth of immigrants, but other people are quite conscious of their vicious loathing for strangers. They may hate Hispanics, foreign languages, people of color, or members of other religions, especially Islam. It is politically infeasible for them to persecute these people directly, but they can put their prejudices into policy by supporting conservative immigration restrictions. Creating a space for bigots within conservatism makes conservatism deeply unattractive to freedom-loving people who dislike bigots.
Immigration restrictions are not merely inconsistent with conservative principles. They are an ideological cancer. Political ideologies are not locked in stasis. They shift with the conflicting pull of their competing components. They grow or shrink in a marketplace of ideas. Contradictions cannot continue indefinitely – they will either be expunged or take over completely. Conservatism is no different. Immigration hatred can drive people who love freedom out of the conservative movement, or it can drive the love of freedom out of conservatives. Is this worth it?
To my ear, arguments against immigration sound like rationalizations. I suspect that most people simply oppose immigration whether or not they have a reason to oppose it. So perhaps we need not a policy argument for nativism, but a psychological explanation. If I had to explain anti-immigrant sentiment, I would tentatively explain it this way.
Jonathan Haidt, a professor of psychology at the University of Virginia, argues that conservatives score highly on their “ingroup” moral foundation in surveys. The ingroup instinct leads us to identify with and subsume ourselves to a larger social group. In tribal human society, this instinct must have been extremely important. The prehistoric (and much of the historic) world was a constant war between and within competing bands, and in this world the protection of the group would have been critical. One way to secure the group’s protection was to display absolute devotion to that group – tribal patriotism if you like.
Professions of ingroup loyalty continue in post-tribal society (e.g. Mike Pence calls himself “a Christian, a conservative and a Republican, in that order”). Hopefully, most such claims are posturing. But ingroup loyalties are fundamentally a commitment to treat similar people differently, according to their different group memberships. At its extreme it leads people to simply turn off their moral intuitions when considering members of the outgroup. Racists discount the rights of people of different races, fundamentalists discount the rights of people of different religious groups, and nationalists discount the rights of people born in different nations. But whether the people in the outgroup are members of another race, religion, ideology, or nationality, applying a different moral standard to them is unjust.
Because people frequently interact with other races and religions in a liberal democracy, ingroup tendencies toward racism and religious fundamentalism are costly and unstable. These biases have slowly collapsed as the groups intermingled. Christian ingroup bias against Muslims might be used as a counter-example, but it is a weak one in historical context. Such a bias is partially attributable to the small number of Muslims in America.
But by definition, Americans will not interact much with people from different nations. It is easy to maintain a group bias against an outgroup that the ingroup will never meet. A foreign outgroup has only limited recourse against domestic ingroup biases. If they are denied the right to immigrate legally, foreigners cannot openly petition for their rights. They don’t even have the meager protections of enfranchisement. And the foreign outgroup will always be a small part of society because their children will assimilate toward the native ingroup. Unlike racism and fundamentalism, nativism is electorally stable.
Progressives and libertarians score lower for ingroup sentiment than conservatives. They tend to be more universalist in their moral outlook. Although ingroup sentiment is important for survival in tribal society, I do not think it is morally defensible. A universalist moral outlook must be correct – though no specific outlook is correct merely by virtue of being universal. In encouraging conservatives to reject nativism, I am asking them to reject an immoral tribal instinct whose importance we have hopefully outgrown.
* Unfair Fairness
Bullies love to make others suffer as they have suffered, and even immigrants can be bullies. I sometimes hear naturalized US immigrants complain that “Illegal immigrants are jumping the line. They should have to wait their turn like I did.” My Vietnamese roommate told me this recently (ironically, while she was helping her brother’s fiance obtain a green-card marriage).
But as bullies are fond of saying, life isn’t fair. Or, to put it more reasonably, we should pass laws that are equally just, not equally unjust. The solution to slavery was not to make white people slaves; it was to free black people from slavery. The illegality of homosexual intercourse would not have been vindicated by making heterosexual intercourse also illegal. Like the rule of law argument, “fairness” needs some other substantive justification before it has any weight of its own.
* The Bad Analogy
You get to decide who comes into your house, or it wouldn’t be your property. America is the property of all the Americans who live there, so they should be able to make rules about the use of all of America. Right?
Wrong. These two ideas are contradictory. If your house is your property, then America cannot decide what you do with it. That is what it means to have property. If America was simply the property of all Americans, they could do whatever they wanted with your house. They could burn it, for example, or force you to let immigrants live there. But all America is not the property of all Americans together. It is the property of individual Americans in individual parts.
No one has to do business with immigrants if they don’t want to. If literally no one in America wanted to do business with immigrants, then no one would offer immigrants jobs or houses. Immigration would be practically impossible, whatever government policy was. Some people, however, don’t mind doing business with immigrants. They should have the right to use their own property to do so.