All posts by John Lee

John Lee is an administrator of the Open Borders website. Liberal immigration laws are a personal passion for him. See all blog posts by John.

Refugees and the 2016 US presidential candidates

Last month, I shared with the Open Borders Action Group an interesting Facebook post from Andy Craig, a Libertarian running for Congress in Wisconsin, pointing out the hypocrisy of many US presidential candidates promoting anti-immigrant policies:

Bobby Jindal, who wants to stop so-called anchor babies, was born four months after his parents arrived in the U.S. on temporary student visas.

Donald Trump, who has made actually deporting so-called anchor babies a centerpiece of his campaign, is the son of a woman from Scotland who was naturalized four years before he was born.

Bernie Sanders, who says allowing more immigrants is a Koch brothers plot to reduce wages, is the son of a Polish immigrant who arrived penniless in the United States to escape the Holocaust.

Ted Cruz and Marco Rubio have one and two parents, respectively, who were naturalized after their sons were born. Rick Santorum’s father was naturalized before Rick was born, when his own father brought him here fleeing Mussolini.

A nation of immigrants: where anybody’s child can grow up to run for President and campaign on pulling up the ladder behind them.

(One thing Craig forgot to mention: Trump’s grandfather Friedrich was an unaccompanied child migrant, who was later deported from Germany.)

Now, the hypocrisy these candidates embody is one thing. But something else stood out to me too: none of these candidates’ ancestors were referred to as “refugees,” even though many of them certainly were. For some reason, it’s better to label someone as an “immigrant” rather than “refugee.” But look at these stories:

  • Bernie Sanders’s father fled the Holocaust
  • Ted Cruz’s family fled the Castro regime in Cuba
  • Marco Rubio’s family fled the same Castro regime
  • Rick Santorum’s grandfather fled Italian fascism

Someone who moves across international borders owing to a fear of violence or political persecution is by definition a refugee. By this count, a substantial number of candidates for the US presidency are descendants of refugees!

It sounds strange to put it that way, because we are not used to thinking of refugees in that way. The way we normally think of people labeled as “refugees” is more similar to the thinking I saw in another posting on Facebook:

Refugees can’t be helped, regretfully. You can’t teach them anything, you can’t provide them all with housing, you can’t give them all jobs. Refugees are to remain [a] burden forever, and even their children won’t be able to integrate.

Well of course if you redefine “refugees” as “immigrants” you’ll have a mysterious shortage of refugee success stories. “Immigrant” has a successful ring to it; “refugee” does not. Self-reinforcingly, we think of successful people as “immigrants,” and the less successful ones who didn’t fare so well as “refugees.” We forget that even titans of business like Andy Grove, the co-founder of Intel, and George Soros, a self-made billionaire, are literally refugees.

(Of his early life, Grove has said: “By the time I was twenty, I had lived through a Hungarian Fascist dictatorship, German military occupation, the Nazis’ ‘Final Solution,’ the siege of Budapest by the Soviet Red Army, a period of chaotic democracy in the years immediately after the war, a variety of repressive Communist regimes, and a popular uprising that was put down at gunpoint…  Some two hundred thousand Hungarians escaped to the West. I was one of them.” Soros’s biography on his website simply states: “Born in Budapest in 1930, he survived the Nazi occupation during World War II and fled communist-dominated Hungary in 1947 for England”.)

All that said, I don’t think the distinction between refugees and “economic migrants” are as important as they’re made out to be. Whether you’re fleeing persecution, escaping economic deprivation, or simply looking to live in a slightly better neighbourhood, I think the law ought to treat you exactly the same way when you show up at the border. All of these are perfectly valid reasons for someone to move.

To this end, I consider it morally suspect to insist economic migrants be deported but refugees be welcomed. Consider: millions of African Americans moved from the southern US to the north and west during the Great Migration in the first half of the 20th century. Some fled political persecution and racial discrimination. Others simply went looking for better jobs. But both were and are perfectly valid reasons to move.

(Sidenote: Republican presidential candidate and internationally-renowned neurosurgeon Ben Carson was born in Detroit to parents who fled the Jim Crow laws of Tennessee, participating in the Great Migration. If you’d like to count “internally-displaced people” as well, you can add another one to that list of presidential candidates descended from refugees.)

At the same time, I think it’s important, as long as the word “refugee” remains part of the English lexicon, to remember that “refugee” does not connote someone who is “to remain [a] burden forever”. People sometimes presume that refugees are tremendously harder to integrate into society or the economy because of their background. This may be true, but it’s simultaneously clear that whatever problems refugees may face, they don’t stand in the way of a refugee like George Soros becoming one of the 30 richest men in the world, or in the way of refugees’ descendants becoming the face of popular national campaigns against immigration.

Refugees, like any other kind of immigrant, are people. It is not a valid use of government authority to ban people from travelling somewhere simply because of where they were born. If government can prove that certain kinds of travel would have terrible consequences, of course government can prevent that sort of movement. Take infectious diseases for example: travel restrictions aimed at preventing the spread of dangerous diseases have to be blind to nationality if they are to operate effectively. Border officers don’t need to know or care about someone’s nationality to effectively prevent the spread of Ebola because any person, foreign or not, can carry Ebola.

Now while we’re talking about the effects of refugee movements: the Great Migration of people fleeing political oppression and economic deprivation in the American South was incredibly disruptive. In many cities, from New York to Philadelphia to Chicago to Seattle to San Francisco, over the span of a few decades, the black population grew 10 to 20 times over. Boston went from being 2% black in 1910 to 22% black in 1980. Adjusting to these inflows was not easy for the affected communities outside of the South. But these adjustment costs were neither disastrous, nor valid reasons to obstruct the legitimate aspirations of the Americans who moved in search of a better life.

That’s why I support open borders for all people — be they refugees fleeing oppression, economic migrants fleeing poverty, or even just middle-class professionals who dream of living in a different city. No country should allow its public institutions — like its border controls — to become the private property of xenophobic bigots. Yet, the modern refugee system has become a figleaf for border policies of bigotry. What basic morality asks of us and our laws is clear: justice demands that all people with legitimate aspirations be free to move across political borders, be they domestic or international.

The photograph in the header of this post is of African American migrant workers from Florida bound for New Jersey in 1940. Courtesy the Library of Congress.

The claim that open borders inevitably leads to homogeneity is incredibly weak

A common argument against open borders hinges on the assumption that it will increase diversity in our societies, and that the harmful effects of diversity will outweigh the other positive effects of open borders. You can see our blog posts tagged “diversity” for various responses to that. However, there’s an interesting argument that runs in precisely the opposite direction: it claims that open borders will reduce diversity in the long run, and that this homogeneity will be harmful.

For one articulation of this from a somewhat libertarian standpoint, Patri Friedman (the grandson of economist Milton Friedman) recently blogged:

So if you even care about life existing – let alone the infinite diversity possible therein – then (contra Caplan), boundaries (such as national borders) are an absolute necessity. No differences, no energy flow, no (thermodynamic) work, no life. As in the stars, so on the earth: romance flows from polarity; trade from comparative advantage; thermodynamic work from heat differences; evolution from variation; economic competition from competing alternatives. All progress is driven by differences; so to erase differences is (counter-eponymously) to end progress.

The assumption here is that the existence of borders (and presumably, also the tight policing of who may traverse them) is critical to maintaining beneficial diversity. Now, I don’t want to wade right now into the debate over what kinds of diversity are beneficial, and what kinds of diversity aren’t.

I will say that as a general rule, I am skeptical of governments trying to engineer society. Arguments both for and against a policy on the basis that it changes the composition of society don’t persuade me much. If you can’t point to any identifiable harms or gains from the policy beyond “it will change the number of people of a particular ethnicity/religion/other identity in our  society,” then it makes me wonder why you’re proposing or criticising the policy in the first place.

Given the very shady history of governments singling out certain identities to target in their policies, I am generally not a fan of diversity-type arguments for or against a particular policy. I may personally like Indian food a lot, but I am going to be suspicious of any policy to subsidise Indian migration for the sake of “culinary diversity”. Like co-blogger Vipul, I am unimpressed by “it will enhance diversity, and that’s by definition a good thing” kinds of arguments for open borders.

The inverse is similarly problematic: reducing diversity as a policy end in of itself is inherently suspicious. If some people don’t like certain types of restaurants, is that justification for prohibiting those restaurants, or restricting the movement of the cultural groups who would supply or demand that type of food?

However, the kind of argument Patri Friedman is making here strikes me as equally unimpressive, albeit for different reasons. I’m happy to grant the claim that some level of diversity is beneficial for both human society as a whole and particular societies or countries. The kind of argument Friedman seems to be making is that open borders would eventually turn humanity into some kind of amorphous, homogeneous grey blob of uniformity, which is a different way of reducing diversity — and is thus a bad thing.

But this would imply that if we had open borders tomorrow, then on a very visible timescale, we would witness the homogenisation of humanity. That claim strikes me as quite easy to disprove. In literally the second comment on Friedman’s post one Glen Raphael points out:

I don’t think you can use this insight to argue against opening national borders – the argument proves too much. Suppose we grant for the sake of argument the notion that having some sort of border maintains “energy differentials” that are useful to humanity – why would *existing national boundaries* be the best place to put those borders and why would we expect anything like the existing set of restrictions/policies to be the best ones for maintaining those differentials?

To maximize these sort of differentials might we not be be better off with strong border controls around each house? Around each city? Each county? Each state? If not – if you think you have good arguments to the effect that allowing free trade and free movement of people between Santa Clara and San Jose has benefits that outweigh the cost (*including* the cost in terms of reducing “energy differentials”), don’t similar arguments apply to allowing free trade and movement of people between, say, the US and Mexico? If not, why not?

There are open borders today between Alabama and New York. Has this fact eliminated all the differences and inequalities between those states? or even substantially reduced them?

You could, I suppose, retort that these effects would occur on longer timescales — although the US had international open borders for over a century after its founding, and has had domestic open borders for well over two centuries. But all I had to do to be suspicious of this was simply open the newspaper from a few days back.

Recently, The Telegraph reported on a new survey of the genetic heritage of Britons, conducted by Oxford University. The findings:

Archaeologists and geneticists were amazed to find that genetically similar individuals inhabit the same areas they did following the Anglo-Saxon invasion, following the fall of the Roman Empire.

In fact, a map showing tribes of Britain in 600AD is almost identical to a new chart showing genetic variability throughout the UK, suggesting that local communities have stayed put for the past 1415 years.

Many people in Britain claim to feel a strong sense of regional identity and scientists say they the new study proves that the link to birthplace is DNA deep.

The most striking genetic split can be seen between people living in Cornwall and Devon, where the division lies exactly along the county border. It means that people living on either side of the River Tamar, which separates the two counties, have different DNA.

Almost 15 centuries later, borders still discernibly delineate regional and even genetic identities — even though the UK has had internal open borders for almost the same amount of time. Indeed, not only were the borders open; for much of this time, the borders did not even exist!

To take the most obvious example of this in the UK, Wales has been administered as part of England since the 16th century. As far as politics was concerned, the borders of Wales ceased to exist. Only in the late 20th century has Wales begun to assume any separate administrative identity from England itself within the constitutional law of the UK. Surely nobody can argue that a Welsh identity disappeared for four centuries and has only been revived recently with the creation of a Welsh legislative assembly! The Jews didn’t have a state for almost two millenia, and dispersed across international borders at will — and yet their unique identity has survived all the same.

If diverse identities can persist with open borders, or even no borders, for centuries, it seems difficult to argue that fear of homogeneity is a reason to oppose open borders. Open borders clearly has nothing to do with the ultimate homogenisation of society, at least not on any measurable timescale relevant to making law.

If anything, migration often leads to greater diversity. In many cases, when multiple cultures meet, rather than one dominating and utterly subsuming the other, the two combine to form new varieties of culture. To take one personal example, I am Chinese Malaysian — Chinese (and partly Filipino) by ethnicity, Malaysian by nationality. I grew up in a community that observes various Chinese traditions. Yet, many of these traditions are alien to most other Chinese people in the world, because they fall in one or more of the following buckets:

  • A total innovation by Chinese living in Malaysia, unrelated to Malay or Chinese culture
  • An adaptation of local Malay culture
  • An adaptation of Chinese tradition that either was not picked up or actually abandoned by Chinese in China

It is hard for me to believe that my ancestors’ migration to Malaysia had the effect of homogenising Malaysia, China, or the world as a whole, when the differences stare us in the face. The food my community eats, the way we celebrate our traditional festivals, and the little things we do because they’re “traditional” are traditions unknown to Chinese in China, and yet traditions peculiar in Malaysia to just our community. I’m not sure whether the right label for this is homogeneity or diversity, but whatever it is, it makes me doubt any sweeping claims that people make about how migration inevitably homogenises or diversifies human culture.

I am not saying that migration must be good because it leads to cultural diversity, or that we can even empirically say cultural diversity constitutes a clear benefit of migration. However, I think people are too quick to assume migration will have a straightforward diversifying or homogenising effect: it’s a lot more complicated than that. These kinds of arguments against open borders make such sweeping claims, often in the face of how diversity works in real life, that it is hard to take them seriously.

The image featured above this post is of a fish salad called yee sang. It is a culinary tradition widely-practiced among the Chinese diaspora in Southeast Asia, yet almost completely unheard of among people in China today. Photo originally uploaded to the Wikimedia Commons and distributed under the GNU Free Documentation Licence.

Tearing down Chesterton’s fence: the bigotry of border controls

A common reaction to the case for open borders is: that’s well and good, but immigration controls were established for good reason. Every country has them after all. Sure, the practical benefits of open borders look good, and there are plenty of ethical reasons why we shouldn’t close the door on foreigners. But why did our ancestors choose to do so then? Wouldn’t it be unwise to tear down the walls they erected without first ensuring their rationales don’t still apply today?

This kind of political reasoning is sometimes labeled Burkean conservatism. Edmund Burke, an Irishman who migrated to England, is often regarded as the founder of modern Western conservatism. Contrary to what the conservative label may suggest, he was no opponent of change; in criticising the French Revolution, he wrote: “A state without the means of some change is without the means of its conservation.” Burke merely preferred a bias in the political process against change: you shouldn’t change things without a really really good reason. I don’t think of myself as a political conservative, but this seems like a fairly reasonable principle.

A metaphor often used to illustrate this principle is Chesterton’s fence, attributed to the English writer G.K. Chesterton:

There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable.

So before we tear down the walls our governments have erected, we should ask why these walls went up in the first place. This is not a question that is new to us, mind you; we first discussed it on this blog two years ago. The answer to Chesterton’s question depends, of course, on which country you’re a citizen of.

In my case, as a citizen of Malaysia and Southeast Asia, we have no tradition of walling up and sealing our borders. Our borders themselves were drawn in part because Napoleon invaded the Netherlands, not because of any organic movement towards fixed borders on our part. The original reason our governments established border controls was because our former colonial masters had set these up. It seemed like just one of those things you do once you’re an independent country.

So, where did the idea of border controls and deportations for our colonial masters come from? Well, in the case of Malaysia’s former colonial power, the United Kingdom, the first notable instance of the mass deportation and collective punishment of migrants was when King Edward I expelled all Jews from England. A few were allowed to return for visits on temporary visas, but between 1290 and 1657, all Jews residing in England were actually illegal immigrants. So at least in the case of the UK, border controls were originally rooted in racial and religious bigotry, not any sound policy reason.

This is not unusual. The United States, that nation of immigrants, first began to regulate immigration with the Page Act of 1875, a law whose primary objective was to exclude Chinese immigrants. It was followed by the Chinese Exclusion Act of 1882, which doesn’t really need any explanation. Many founding principles of US immigration law were established by the Chinese Exclusion Case — again, the name needs no explanation. The case still stands as good law today, even though scholars dismiss the actual reasoning therein as racist and unsound. Later expansions of US immigration controls explicitly aimed to exclude southern and eastern Europeans, especially those of Jewish descent.

The US is not alone in this regard. You can trace a similar history for almost every Anglo-Saxon “nation of immigrants”. Australia’s first immigration law was intentionally drafted to exclude Asian and African-American immigrants:

In 1901, 98% of people in Australia were white. Australia wanted to remain a country of white people who lived by British customs. Trade unions were keen to prevent labour competition from Chinese and Pacific Islander migrants who they feared would undercut wages. One of the first pieces of legislation passed in the new Federal Parliament was the Immigration Restriction Act. Now known as the infamous White Australia Policy it made it very difficult for Asians and Pacific Islanders to migrate to Australia…

The Immigration Restriction Act enabled the government to exclude any person who ‘when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer, a passage of 50 words in length in a European language directed by the officer’. The Dictation Test could be administered to any migrant during the first year of residence.

It was initially proposed that the Test would be in English, but it was argued that this could discourage European migration and advantage Japanese people, and Americans of African descent. Instead, any ‘European language’ was specified.

This law establishing the “White Australia” policy was one of the very first passed by the Australian federal Parliament, and laid down some of the founding principles of Australian constitutional law. Looking across the Tasman Sea, here is how the New Zealand government describes the roots of its immigration controls:

Over the years, laws and regulations have been used to restrict or prevent the entry of ‘undesirable’ individuals or groups. Making New Zealand British and keeping the country white were the goals of immigration policy until the early 1970s. People from Britain have been actively recruited, while people perceived as ‘different’ have been kept out.

Strong imperial sentiments in the colonial period, and views about race through the 19th and much of the 20th centuries largely explain the purpose of New Zealand’s immigration restrictions.

Fellow Commonwealth country Canada on the other hand founded its immigration laws on the principle of promoting open immigration and safeguarding the passage of migrants. Score one for Canadian niceness?

Well, less than twenty years afterwards, the Canadian government, horrified by how many Chinese people were moving to Canada, furiously backpedaled. New laws enshrined state-sponsored discrimination against and exclusion of Chinese immigrants: these were the first major federal controls on immigration in Canada. Here’s how one Canadian newspaper characterises the history of Canadian immigration controls:

Troper points to a series of notorious examples of past discrimination in Canada’s immigration policy: the infamous Chinese head tax; the exclusion of black Oklahoman farmers from coming to Canada in 1910; the refusal in May 1914 of most of the 375 Indians aboard the Komagata Maru after landing in Vancouver, where the ship spent two months before it was ordered back to India; the exclusion of Jewish immigrants from the 1920s until after the Second World War.

These and other examples of discrimination paint a picture of a country — not unlike others around the world at the time — that was xenophobic and saw itself as an “Anglo-British outpost of British civility,” Troper says.

According to the Canadian Council for Refugees, specific measures taken by immigration officials included: an amendment to the Opium and Narcotic Drug Act to deport “domiciled aliens” with drug-related convictions (directed against the Chinese) in 1922; the prohibition of all Chinese immigrants in 1923; refusal of the ship the St. Louis, carrying 930 Jewish refugees, to land in 1939, forcing it to return to Europe — ultimately sentencing three-quarters of its passengers to death under the Nazi regime.

Let us return to my country’s former colonial master, the British. While the first recorded large-scale deportations occurred in 1290, the first recorded immigration legislation was actually the Aliens Act 1793. Prior to 1793, there actually were no legally-required controls or restrictions on foreigners entering the UK. This law imposed a new requirement on foreigners entering Great Britain: they must register their arrival with the government upon entry, and with a local Justice of the Peace. Failure to register would result in jail, pending deportation.

What was the reason for this law? The UK government archives today say: “It was introduced to manage the influx of people coming to Britain to escape the French Revolution.” But in reality, it was enacted to exclude French republicans who might have made their way to Britain, mingling among refugees. Fervent opponent of the French Revolution that he was, Edmund Burke favoured this law.

Curiously, Burke supported the Aliens Act 1793 even though it stripped foreigners of the right to habeas corpus: the right to challenge your detention in court, an ancient legal tradition rooted in the principle that no government may lock someone up and take away their liberty without just cause.

Under the Aliens Act 1793, the punishment for failing to register was not a fine. You could be jailed without bail and deported, without any right of habeas corpus or appeal, simply for failing to register. You could even be a bona fide refugee, with no revolutionary connections, and it would not matter one whit: you had no recourse to challenge your detention or deportation. The law’s own sponsor called it: “a bill for suspending the Habeas Corpus Act, as far as it should relate to the persons of foreigners.”

Did Burke ask himself whether he was unthinkingly tearing down Chesterton’s fence? Probably not; this was decades before Chesterton would be born. But one wonders what Burke was thinking. In 1789, Burke wrote: “Whenever a separation is made between liberty and justice, neither, in my opinion, is safe.” If anything counts as an injustice, surely it must be arbitrarily taking away the basic liberties of an entire class of people — not on the basis of any wrongdoing, but simply because of their condition of birth.

Oh, but it’s just foreigners being deprived of their liberty, you might say. Except that the Aliens Act 1793 was just the precursor to the Habeas Corpus Suspension Act 1794 — which is exactly what it says on the tin. Now nobody in Britain, citizen or foreigner, enjoyed the safeguards of the ancient writ of habeas corpus.

It is of course easy to condemn Burke and his Parliamentary colleagues in retrospect. If we had been in their shoes, facing possible insurrection fomented by, or invasion from, Revolutionary France, we too may have passed the same suspension of habeas corpus.

But this incident illustrates an important principle that guides how I think about immigration law: if a circumstance so endangers our state or society that we must restrict basic freedoms, then so be it. But if such a circumstance is only dangerous enough to warrant invading the rights of the peaceful stranger in our land — whilst leaving potential traitors, terrorists, or criminals amongst our own citizenry unaffected — then I am much more skeptical. Either the situation is so dire that everyone’s liberty must be put at risk, or it is simply not that dire.

Of course, there are fine gradations in between “that dire” and “not that dire”. And the more dire the situation is, the more justified and less arbitrary some distinctions based on nationality or even ethnicity become: how strongly would one object to Polish controls on German entry in the days leading up to the Nazi invasion of 1939? The problem of justice arises when you assume every scenario our governments face is tantamount to that kind of emergency. At some point, you land on a slippery slope that has you deporting Jewish refugees and throwing your own citizens into prison camps.

And while situations like a literal world war may merit restrictions on the movement of foreigners, no sane person can claim we live in such a situation today. When we aren’t at war, and when most of the people seeking entry to our shores are citizens of countries at peace or even allied with us, you can’t simply erect an automatic bar to entry on the basis that governments need extraordinary power to protect us from an invasion that nobody believes is coming.

In spite of this, discretionary and arbitrary immigration controls which assume every immigrant poses a dire threat to our society, guilty until proven innocent, are the laws of almost every land today. I submit that such paranoid discriminatory laws are all out of proportion to the risk immigrants pose. Of course anyone can name an immigrant who has done something wrong. You can select any sufficiently large group of people and find all kinds of criminals and wrongdoers amongst them. But the burden of proof rests on the restrictionist to show that arbitrarily excluding most foreigners is in fact a sound and proportionate policy.

This is quite Burkean, really: mind you, the alien registration requirement which Burke supported was later repealed after the crisis had passed. A literal Burkean immigration policy would be open borders, with the temporary suspension of habeas corpus in times when invasion or insurrection seemed imminent. The UK’s first immigration controls were only enacted over a century later with the Aliens Act 1905.

The roots of this law? Well, it came after the passage of anti-Chinese immigration laws in colonies like Canada and Australia. It explicitly borrowed wording and diction from the United States’s own anti-Chinese immigration statutes. Like Edward I’s Edict of Expulsion in 1290, its primary target was immigrant Jews.

Although on this occasion, the government had enough scruples to avoid any explicit reference to race, as historian Alison Bashford and law professor Jane McAdam document, contemporaries understood the law’s definition of migrant to be aimed at Jews originating from eastern Europe, and the law was incessantly criticised for its anti-Semitism. More than that, opponents explicitly attacked the law for uprooting ancient British tradition (emphasis added):

For many British parliamentarians, then, the introduction of the Aliens Act was not merely a natural response to a world of increasing global movement (and regulation of that movement); it was a highly controversial step. It was considered ‘drastic’ and ‘revolutionary in its character,’ even by those who put forward the various bills. Many considered that the principle of free movement, and, accordingly,the tradition of having no entry regulations, was part of what distinguished British practice; even part of what constituted British “liberty.”

The response of its advocates, such as Herbert Asquith, who would later serve as British Prime Minister? To embrace these accusations. Bashford and McAdam (emphasis added):

Asquith spoke in support of the bill, but nonetheless recognized its significance: “This Bill, it must be conceded, is an entirely new departure in legislation, for it gives to an officer of the Executive, by his own act, without any reference to a Court of law or to judicial procedure, power to prohibit admission to these shores of any person who is not a subject of the Crown, provided he comes within certain categories.”

The suspension of habeas corpus, limited to times of great danger in Burke’s day, now became an everyday occurrence for any foreigner daring to enter Britain. The revolutionary and radical arbitrary dictatorial power of the government to exclude foreigners at will was now enshrined. Today, it has been so commonplace for the past century to the point that we hardly think of it.

So if we think of immigration restrictions as Chesterton’s fence then, how should we characterise the rationale for erecting this fence? If we look at the raw texts of these statutes, we find many references to excluding paupers, the diseased, and the criminal. We can debate the extent to which these exclusions are just, but many of them make some sense on the face of it. But if we look at the intentions of the men (and women, to the extent they were involved) who drew up and bequeathed to us the founding principles of modern immigration restrictions, we find some of the worst and most blatant injustices in the history of mankind.

Immigration laws were established in theory to promote public safety and order. But in reality, their promoters drew them up to exclude people solely because of the colour of their skin, or the religion they practiced. You merely have to scratch the surface of these laws to uncover some of the ugliest expressions of base bigotry and prejudice, be it against the Chinese, the Japanese, the Italians, the Irish, the Jews, and so on. Little wonder that journalist Stephan Faris in his review of the modern border regime could write of things coming full circle, with South African apartheid using “immigration laws” as a figleaf to disguise blatant racism:

To be sure, there are differences between the global system of immigration restrictions and South Africa’s attempt to entrench white privilege through the partitioning of its territory. But it should give us pause to think that when the architects of one of history’s most recognized evils set out to codify their system of injustice, they looked at our borders and passports and saw a lot to like. Intentions aside, the biggest difference between the two is that the South Africans wanted to draw the boundaries and assign the nationalities. We make do with the existing ones.

It may of course be true that serendipitously, these laws founded in racism and unempirical prejudice are in fact beneficial and good. But let’s have an open conversation about the benefits of these restrictions then. Let’s place the burden of proof where it belongs: on those who want to prop up those legal walls and fences erected to preserve and entrench bigotry.

Once we have established the original rationale for these laws and found them wanting, we can no longer resort to tradition as reason enough to keep them. Whatever your views on the issues of gay marriage and family rights, I think US judge Richard Posner’s pointed questions in the litigation of this issue apply all the more to border controls:

Posner: What concrete factual arguments do you have against homosexual marriage?

Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Posner: What experience! It’s based on hate, isn’t it?

Samuelson: No, not at all, your honor.

Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?

The only distinction here is that border controls aren’t even a real tradition. The kind of controls on the scale first adopted in the late 19th century and early 20th century didn’t exist in Burke’s day. Massive border controls that arbitrarily restrict human movement purely on the basis of a condition of birth are a modern innovation. And, to borrow Judge Posner’s words, they are an innovation rooted in hate and savage discrimination.Anti-Japanese/-Indian rally

Arizona farmers protest Japanese and Indian farming in the state, 1934. Source: Americana, the E-Journal of American Studies in Hungary.

Immigration controls are an injustice that we must tear down as far as we can. “This policy benefits our race” or “this policy benefits our country” are not reasons enough to excuse a preventable injustice. As Burke himself said:

Justice is itself the great standing policy of civil society; and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all.

In 1879, Chinese-Australians Lowe Kong Meng, Cheok Hong Cheong, and Louis Ah Mouy authored a pamphlet lamenting the racist immigration laws that uprooted their freedom of movement and residence. Today, in this era of vast migration restrictions, their words ring true literally more than ever before:

In the name of heaven, we ask, where is your justice? Where your religion? Where your morality? Where your sense of right and wrong? Where your enlightenment? Where your love of liberty?

We recognise today the great wrongs that our border controls once visited upon the Chinese, Jewish, or other migrants of the day. But we preserve the same principles of dictatorial discretion and arbitrary discrimination that marked the very exclusionary and unjust laws which victimised these people. There may be good reasons to preserve border controls. But unless you unreservedly embrace prejudice as a sound principle for making policy, Chesterton’s fence is not such a justification. Rather than sound and solid policy, the foundations of our border controls are just rotten cesspools of hatred and bigotry.

The image featured at the top of this post is of an exhibit from the Museum of Chinese in America, depicting a poster from the late 19th century advocating the exclusion of Chinese immigrants. The photograph of the exhibit is from Robin Lung.

Confusing public and private: the nonsensical private property argument against open borders

A popular argument against open borders runs as follows:

  • Individuals who own their own homes and businesses have the right to exclude anyone they like from their property
  • Immigration controls are a way for groups of individuals to collectively exclude people they don’t like from their property
  • Ergo, reducing or abolishing immigration controls infringe these individuals’ property rights

I think this cartoon that ran in the Indianapolis Star analogising immigrants to trespassers is a pretty good summary of how people who make this argument view laws that protect freedom of movement:

Indianapolis Star anti-amnesty cartoonA simpler version of this argument is: if you want open borders so bad, why don’t you leave your front door open and let in anyone who wants to sleep in your bed?

The legal/philosophical pedigree of this argument is somewhat thin, although neo-reactionary/libertarian scholar Hans-Hermann Hoppe is often cited in its support. Nevertheless, the “why don’t you open your front door?” argument is a popular one in discussions of immigration.

I must say I like Bryan Caplan’s pithy retort to this:

The biggest problem with this kind of “respect my property rights!” reasoning is that it confuses the public and the private. Removing border controls would no more obligate citizens to let foreigners sleep in their beds than the status quo obligates me as a US resident to let any US citizen commandeer my bed. Border controls act to exclude foreign individuals from the public square, from the marketplace, from the streets.

It is this use of public power to exclude foreign people from our public spaces that open borders advocates challenge. Governments cannot simply declare our public squares off-limits to anyone without good reason. If you don’t like having foreign people in your home, that’s your personal choice. I respect that. But if I want to host a foreign person in my home, you need a better reason than “But they’re not from this country!” to order my friend deported. What happened to my property rights?

More than respecting the private spaces of those who would welcome migrants and strangers, it is particularly important that we challenge the arbitrary exclusion of these people from our public spaces. Banning foreigners from hawking their goods, applying for jobs, or simply going for a stroll may not violate any individual’s property rights per se. But the use of government power to exclude people based on a characteristic out of their control — where they were born — is inherently suspect. This is particularly so when a favourite justification of those who advocate this exclusion seems to boil down to: “I don’t like these people and I wouldn’t allow them onto my private property, so I think society should enforce my personal preferences on everyone, and force these people out of all our public spaces altogether.”

There may be good reasons to single out foreigners for special treatment, maybe even for banishment or exclusion (espionage and invasion are the obvious examples here). But the point is that you need a reason rooted in the public interest to justify excluding someone by the violent force of the state. It is fine if you want to exclude someone from your property, and call the cops to enforce your private rights. But that is not at all the same as siccing the cops on someone applying for a job because that someone is an immigrant. Dressing this process up by electing legislators who pass exclusionary laws that allow you to sic the cops on peaceful foreigners in the public square does not alter the fundamental reality here: you have misleadingly appropriated your private rights to impose your personal preferences and prejudices on the public at large.

Confusing the public and the private is hardly unique to questions of freedom of movement and residence. I was reminded of this by another comic, this time from XKCD:

XKCD free_speech

In this instance, cartoonist Randall Munroe is addressing people who object to criticisms of their speech by responding: “I have the right to freedom of speech!” Yes, you do: the government cannot infringe your freedom of speech without good reason (violent incitement, slander, and so on). But other private individuals can respond to your speech as they please.

Objecting to others’ freedom of movement because “I have the right to peacefully enjoy my private property!” is the flipside of this. Yes, you do have that right, and if others are threatening your peaceful enjoyment, you can seek government intervention to enjoin them from disturbing you. But so long as others are not disturbing you, you have no basis for complaining about them.

Most immigrants are not criminals, not soldiers in an invading army. They don’t want to disturb you: they want to study, to live in a safe home, to work, to play, to love in peace. Unless they are causing a disturbance, you do not have a reason to demand their exclusion from the public square. Imposing your personal preferences on the public is not exercising your private property rights. It is the arrogant assumption of dictatorial power over public spaces: you are claiming the public square as your own private property, to the exclusion of anyone who happens to displease you.

Some disclaim the weak “You wouldn’t let an immigrant sleep in your bed” private property arguments, but insist that as a collective, the nation privately owns its land and can exclude non-citizens at will. In this version of the argument, the nation as a collective owns its public spaces, and morally may exclude foreign nationals from these public spaces.

This more sophisticated version of the private property argument falls flat for a different reason: it holds public stewards of law and order to the same bar as private property owners. In this telling, a democratic majority, or democratically-elected government, may exclude anyone from public spaces, because they are acting as private property owners.

But private property owners aren’t accountable in the same way that a public government is. The organs of the state are not the private property of a democratic majority. Public institutions do not belong to their citizens in quite the same way that I own my personal computer or refrigerator. I can do whatever I like with my personal property. Governments cannot do whatever they like with the organs of the state, even if a majority of citizens approve.

The most fundamental function of the state is to dispense justice. The organs of the state are accountable for dispensing justice; I as a private property-owner am not. If I wastefully throw away my food before its expiry date instead of giving it to someone in need, or if I burn my books instead of giving them to the local library, I may be doing something morally wrong, perhaps even unjust. But I am not accountable to the public for the choices I make about my property. I am not accountable for disposing of my property in a fair and just manner.

Governments are clearly different. If the sole function of government was to do whatever the majority wants it to do, then government could rightly exclude targeted minorities from the public square. It could confiscate the property of hated minorities, ban them from pursuing opportunities, and even jail or deport them. In fact, this is what governments used to (and some still) do: the victims of injustice have ranged from ethnic minorities to sexual minorities, to almost any human characteristic or grouping you can name.

Foreign individuals are just such another unjustly targeted minority. Just as homosexuals were once banned in many countries from certain occupations and hunted down by the police, our governments today persecute people for the audacity to live their lives outside the country they were born in. Author Orson Scott Card put it well when he criticised proposals in the US that would punish immigrants who don’t speak English:

Efforts to “protect English” are the exact equivalent of those signs saying “No Irish Need Apply” or the rules limiting the number of Jews who could be admitted to prestigious universities or the laws telling black people where they could and could not sit in buses and trains. English doesn’t need protection. People need protection from those who would hurt them because they weren’t born to English-speaking parents.

You might object that this is not an injustice: that the difference between other minorities versus immigrants is only that it’s unjust to persecute or exclude any citizen. In this view, non-citizens are fair game: it is just for government to exclude foreigners from our public spaces, as long as that’s what citizens determine through a democratic process.

Now, I agree it is fair for governments to discriminate against foreigners in a number of circumstances. But state-sponsored exclusion from the public square and from the marketplace is not one of these. As economist Steve Landsburg puts it:

Yes, the U.S. government is elected by Americans to serve Americans. There was a time when a lot of southern sheriffs could have said they’d been elected by white citizens to serve white citizens. It does not follow that it’s okay to run roughshod over the rights of everyone else.

…It is no more inappropriate for the U.S. Army to defend Americans instead of Peruvians than it is for Burger King to provide food for Burger King customers instead of McDonald’s customers. But the labor market isn’t like that at all… After all, if it’s okay to enrich ourselves by denying foreigners the right to earn a living, why not enrich ourselves by invading peaceful countries and seizing their assets? Most of us don’t think that’s a good idea, and not just because it might backfire. We don’t think it’s a good idea because we believe human beings have human rights, whatever their color and wherever they live. Stealing assets is wrong, and so is stealing the right to earn a living, no matter where the victim was born.

How did we conclude that it is wrong and unjust for the state to violently exclude racial, religious, or sexual minorities from public spaces? We view such exclusion as fundamentally wrong because access to the streets, the square, the marketplace is essential for an ordinary life. To force people into the shadows without good reason is wrong.

Are foreigners not people too? “Yes, they are,” says the immigration restrictionist. “But if they want to live an ordinary life, they can do that in their country. They have no right to live such a life here.” That is the nub of the moral disagreement: I think people have the right to live an ordinary life in any country they please, as long as they submit to the same laws that apply to its citizens.

I do not question the state’s ability to exclude foreigners, or the capability of a democratic majority to demand their government banish the alien. These are self-evident. But I question the justice and morality of any law that excludes people simply by the alien condition of their birth.

Justice is blind. The state’s obligation to dispense justice does not disappear when one party to the dispute is foreign. Foreigners have the same right to the fruits of their labour as anyone else, the same right to pay rent for a safe home as anyone else — the same right as any citizen to walk the street in peace. Attacking someone in the street because of their birthplace is just as wrong when the government does it in the name of a democratic majority as it would be wrong when done by a lynch mob in the name of xenophobic prejudice.

The image featured at the top of this post is from Detroit, Michigan in the mid-20th century, when denizens protested African-Americans settling in their community. The original photo can be found at the Library of Congress.

We’ll likely have open borders before serious climate change mitigation

The climate change movement is not one that obviously parallels the open borders movement; it’s not a civil rights or social justice issue (except insofar as it might disproportionately harm the world’s poorest — but the same could be said for almost any noteworthy public policy issue) and it has far more clout and attention than migration. But there are three things that I think we have in common:

  1. Political leaders love to make grand statements about how they must and will act on these pressing issues
  2. Political leaders take no meaningful action to address the issue whatsoever (other than very marginal policy changes)
  3. This, in spite of reasonably strong agreement amongst experts in the field who have devoted their lives to the study of the issue that strong action is needed — and that strong action will have large impacts

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