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Monday, April 9, 2018

The Founding Fathers on Immigration: Further Arguments Against "Open-Borders"

Immigration and the American Founding, a paper written in 2012 by Dr. Kevin Portteus, is an excellent analysis of some of the moral, legal, and practical issues related to immigration originally considered by America's Founding Fathers, and, in my opinion, serves as a necessary complement to my recent posts on immigration in a free society. 

Dr. Portteus notes that both sides of the immigration debate have sought to appropriate the Founding Fathers for their own purposes concluding:
The elements of America’s original understanding of immigration have been brought into conflict. There is only one way for America to reconcile American exceptionalism with the preservation of that exceptionalism. The key to resolving the immigration problem is for Americans to readopt the principles of the American Founding as their first principles and as the best practical guide for their politics and policy.
In arguing for sovereignty and against the so-called "open borders" position, I argued that those who claim "people have the right to immigrate" or the "right to movement" commit the fallacy of context-dropping on a massive scale.  They base such a view on a rationalistic conception of individual rights, a topic I explored in-depth in this post.  In contrast to these types, Portteus never drops the historical context of how and why the American government was formed in the first place.  For example, in discussing Jefferson's "radical new conception of the relationship of the British crown and her colonies," he summarizes:
No one has an inherent right to rule, and no one has an indefeasible obligation to submit to rule. Political obligation is the consequence of the voluntary consent of individuals. The 1780 Massachusetts Constitution holds that “The body-politic is formed by a voluntary association of individuals: It is a social compact.” The formation of political society is thus predicated on the assent of those, who will compose the society. 
The idea, "that each individual must consent to the government, under which he
lives" was "an attack on the English understanding of political obligation, which
was a legacy of European feudalism."  And while proponents of individual rights should rejoice that the American Founders rejected the notion of "feudal obligation," Portteus makes an important distinction:
 In arguing that the principles of the American Founding conferred a right to emigrate from the land of one’s birth, one should not make the mistake of assume that the principle of consent also conferred an inherent right to immigrate to any place of one’s choosing. If “all men are created equal” then consent must be reciprocal among the parties involved.
In other words, people are not obligated to stay in a country, but that does not mean anyone can enter a country.  In a prior post, I argued that since a particular group of people form a government for the expressed purpose of providing for their own common defense, they must elect and grant power to government to represent them in dealing with foreign nations or foreign nationals. Here, Portteus cites the argument that citizens must voluntarily consent to new entrants:
Return to the 1780 Massachusetts Constitution: “The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” Every member of a political community must consent to live, not just with the laws of that political community, but with the other members of the community. Failure to do so would mean that no political community is formed between the parties.  
He puts it succinctly: "Just as the individual must consent to live within the community, the community must consent to the membership of each individual. Once this is accomplished, each of the contracting parties becomes a citizen." In other words, "Mutual or reciprocal consent is dictated by the principle of natural equality. If an immigrant can successfully impose himself on a political community, in violation of its laws, then the relation between the immigrant and the community is not a relationship of equals." Furthering this argument, Portteus writes:
It follows from this theory of consent that the whole people must consent to each individual’s membership in that society. As Gouverneur Morris argued in the Convention, “every society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted.” The United States Constitution grants to Congress the power “to establish an uniform Rule of Naturalization.” The people have delegated to Congress the power to fix the terms under which America will consent to an immigrant become a member of the American political community. If the immigrant wishes to become a citizen and chooses to abide by those conditions, then citizenship shall be conferred upon him. The American people are collectively represented by their government, which speaks for them, through the law, in deciding who shall be admitted as a new member of the political community.
In relation to the idea that there is not an inherent right to immigrate, Portteus considers Madison, in Federalist 43, who dealt with the very real possibility that some colonies would not join the union as at that time, since North Carolina and Rhode Island had failed to ratify, asking "what if one or more states refused to ratify? What would be the relationship between the nation under the Constitution and the refractory states?" Although Madison states that in dealing with non-ratifying states "the rights of humanity must in all cases be duly and mutually respected" he recognized that "no political relation can subsist between the assenting and dissenting states." Portteus concludes:
Moreover, refusal to admit a person into a political community does not constitute a violation of his rights. A person who is denied entrance into a country is not denied any inherent natural right. He is perfectly free to go elsewhere, or even to form his own political community, and to take any necessary and proper measures to secure his own rights." 
In other words, while an individual has the right to leave a country if he does not assent to its terms, he does not have a positive right to enter or immigrate to another country without the approval of the citizens of that country. 

In my posts, I argued that merit-based immigration is an objectively essential component of the government's function in securing the rights of its own citizens.  Portteus turns to this topic noting that "not only do the Founders’ principles confer a right to restrict immigration, they also confer an obligation to do so under certain circumstances. As a self-governing regime, America must be particularly concerned about the character and beliefs of its citizens."  He writes:
Not only must Americans share a common set of fundamental political principles, they must also be possessed of a certain character. Madison asserts in Federalist 55 that “As there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust, so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”
He discusses Jefferson's concerns that "admitting persons who are not prepared poses a fundamental problem for the American experiment. Jefferson continues: “They will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another. It would be a miracle were they to stop precisely at the point of temperate liberty.”

In general, we can say that the Founders regarded the immigration of virtuous and oppressed people to be desirous and beneficial to America.  Washington once said that he “had always hoped that this land might become a safe and agreeable Asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong..  But note, here and in other instances, they qualify their desire to take in immigrants to those who merit entry, i.e., the "virtuous."  And while each Founder certainly differed in degree, they certainly recognized it was a necessary and appropriate function of a sovereign government (legally, morally, and practically) to regulate immigration, i..e, they rejected the concept of unlimited immigration or so-called "open borders" as it's referred to today.

A full analysis of this paper is beyond my scope, but  I recommend reading the entire piece to better achieve a balanced understanding of important historical facts and principles offered by the most brilliant political thinkers in history.   

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