In previous posts I have challenged the idea that there are doctrinaire libertarian positions favoring an isolationist foreign policy (//naturalrightslibertarian.com/2011/09/) and disfavoring the recognition of intellectual property rights (//naturalrightslibertarian.com/2011/10/natural-rights-libertarianism-and-ip/). I am now going to engage in a comparable exercise with respect to immigration, critiquing the notion that an “open borders” immigration policy is implied by basic libertarian principles governing property rights. I will use as my jumping off point Michael Huemer’s excellent recent essay on this subject, “Is There a Right to Immigrate?”, which is available here: http://home.sprynet.com/~owl1/Immigration.pdf. Page references to Huemer’s essay are to this draft.
Huemer’s argumentative strategy is relatively simple. He starts with the observation that laws that exclude “ordinary, noncriminal migrants who wish to leave their country of origin for morally innocent reasons” (2) have three characteristics that mark them as prima facie rights violations. Specifically, these laws are coercive, restrictive and harmful to potential immigrants (3-4). Moreover, they require the agents of the state to “prevent those in need from satisfying their needs” (30).
Thus, those who favor the regulation of immigration cannot rely on the traditional philosophical distinction between the culpability involved in actually inflicting harm on others, and merely failing to take steps to prevent it. In light of the above considerations, one need not (says Huemer) accept any particular theory of justice to find such a policy disturbing, and accordingly the normative burden shifts to the defenders of regulation to articulate a persuasive justification for it. Huemer then considers various arguments that might be advanced in this regard, and finds them all wanting. I will focus initially on the one he calls “Club U.S.A.” (19-25).
This argument likens the U.S. (or for that matter any nation facing substantial immigration) to a private club, where the policies governing it are set through some sort of democratic process. If the analogy is apt, then even if individual members of the club desire to rent apartments to or employ non-members, their wishes may legitimately be forbidden if the rules of the organization do not permit such actions. But, as Huemer correctly points out, libertarians must reject this analogy because it would imply our consent to be bound by the will of the majority, wherever that might happen to take us, including the outermost reaches of the Nanny State (23-5).
Nevertheless, there are norms governing property usage, more congenial to libertarian values, which do not employ the “club” analogy and consent theory. I am referring here to the idea of externalities. While libertarians of all stripes regard property rights as having great stringency, none believe that such rights give owners carte blanch to conduct activities on their land that harm others. So, of course, one does not have the right to incinerate material on one’s property if in doing so you release toxins that are deadly to those downwind (in Chapter 6 of my book, Nozick’s Libertarian Project, I discuss a possible libertarian approach to regulating externalities of this sort).
Might unlimited immigration be reasonably likened to harmful externalities that may be regulated under traditional libertarian principles? Huemer does address this possibility, but does not focus on what I regard as the most serious negative consequences of open borders. In his discussion of the argument he labels “Cultural Preservation” (16-9), he notes that a number of philosophers have held that citizens of a particular state have a legitimate interest in preserving the distinctive culture of their community.
However, in what is probably the weakest part of his essay, Huemer conceptualizes the concern about the preservation of Western culture in terms of our attachment to Coke, McDonald’s and trashy Hollywood entertainment. He argues that these phenomena are so ubiquitous that we have nothing to worry about. Right; but I am not worried about losing my favorite fast food option. What I and most other libertarians concerned about immigration fear is the loss of our political culture and consequently our liberty.
Accordingly, when Huemer proceeds to argue that even the loss of more substantial elements of our culture would not justify restrictions on immigration, he still misses the mark. He uses as an example the possibility that many Buddhists might move into your neighborhood and thus change its character from mostly Christian to predominately Buddhist. Since, as he frames it, the Buddhists “do not coercively interfere with your practice of your own religion” (17), you are not justified in using force to try to exclude them from your community. Yes, but what if unrestricted immigration did endanger the rule of law in your jurisdiction? Huemer does not specifically address this issue.
I contend that under libertarian principles we do have a right to insist on the maintenance of the rule of law (as Hayek understood it), even the highly imperfect version we have here. And, this commitment potentially justifies the regulation of immigration. As I argue in my book, Robert Nozick built a convincing case for libertarian rights on the ethical foundation of respect for moral agency, and this agency can only express itself in a society that respects rights, including economic liberty. Accordingly, the libertarian worry about unlimited immigration is unlike Huemer’s Buddhist/Christian case.
Would unregulated immigration imperil or degrade the rule of law here? I believe that it is plausible to think so. Mexico, the source of most of our existing illegal immigration, cannot be said to enjoy the rule of law to this day. There is massive corruption and a great concentration of economic power through crony capitalism that is incompatible with this ideal. While it may be politically incorrect to say so, due to historical developments the political culture in Mexico is substantially different than our own. But Mexico is a virtual utopia in this regard when compared to many other parts of the world, where the state (with the full support of the populace) executes people for blasphemy and sorcery, and freedom of religion and conscience do not exist.
As previously noted, Huemer limits his claim of a right to immigrate to those who wish to do so for “morally innocent reasons.” The problem is that even the most intolerant and illiberal immigrants may come here for “morally innocent reasons.” They may seek economic opportunity, but they would also bring their intolerance and backwardness with them, just as they would retain other elements of their culture. Moreover, this potentially destructive influence may be felt whether or not these immigrants have the right to vote. Supposedly civilized European countries have experienced widespread violence, including even murder, directed against those perceived to have insulted Islam, and it makes no difference in this respect if the perpetrators also happen to be voters.
Having rebutted, I think, the presumption Huemer identifies in favor of open borders on the basis of our legitimate interest in regulating negative (political) externalities, we now face the question of defining the permissible scope of such regulation. Unfortunately, because there is no way to quantify the effect of immigration on political culture in the short run, and because in the long run it may be too late, there can be no simple, bright line answer. It does seem clear that a policy of zero or near zero immigration would be irrational and would violate the right of immigrants and U.S. citizens to enter into mutually advantageous arrangements. Beyond this, however, determining how much immigration should be permitted, who should be admitted, and from where, will depend on the good faith judgment of the political authorities.